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.

Care Services: Abuse of Learning Disabled

Lord Hunt of Kings Heath Excerpts

Thursday 13th December 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, first, I pay tribute to the noble Lord, Lord Rix, who for so long has been a champion of people with learning disabilities. I always remember the late Lord Carter, who was the Chief Whip a few years ago, advising me that the noble Lord, Lord Rix, always gets his way in the House. That was certainly my experience as a Health Minister and my advice to the noble Baroness, Lady Northover, is to reflect very strongly on the points that he raised. I also very much welcome the maiden speech of the noble Baroness, Lady Kidron, which was excellent. We look forward to her contributing to our debates in the future.

The noble Lord, Lord Rix, made a number of very powerful points about the shocking events at Winterbourne View. He started by drawing attention to the contrast between policy and implementation. I suggest that that gap is what lies behind the unease clearly felt by many noble Lords today. We have had the welcome news from the Government that all current hospital placements are to be reviewed by next June and that everyone there who is inappropriately placed will move to community-based support as quickly as possible, and no later than June 2014. I would have thought that any assessment is likely to mean that many people will need to move to locally-based community care. Like the noble Baroness, I ask whether this is a realistic timetable in the circumstances in which health and social care finds itself at the moment.

We are going to expect a lot of commissioners, yet commissioning has led many people down. It is these commissioners who have been prepared to pay for people with learning disabilities to go miles and miles away from home and who have then forgotten about them. Does the noble Baroness, Lady Northover, really think that the commissioners are in a position to do what is required?

I would also refer to the changes in the National Health Service. I do not think that the primary care trusts can say that they dealt with this matter with any distinction but, my goodness me, what are clinical commissioning groups going to do? Can we be assured either that this is going to be done at a national level—or at least through the local offices of the national Commissioning Board—or, if it is to be done by clinical commissioning groups, that they will have the people with expertise? I am sceptical because there is no sign yet that clinical commissioning groups have people with enough seniority or expertise to do this kind of commissioning.

The noble Baroness, Lady Browning, made an important point about the owners and directors of these private institutions and their responsibilities. I have received a brief from Castlebeck, the people concerned with Winterbourne View, which details the actions it has taken and says that a new board of directors is in place. It also says that the shareholders who owned Castlebeck at the time of Winterbourne View have never drawn a return at any time and have now lost all their investment. However, there are still some serious questions about owner responsibilities. I refer noble Lords to the serious case review, which stated:

“Castlebeck Ltd appears to have made decisions about profitability, including shareholder returns, over and above decisions about the effective and humane delivery of assessment, treatment and rehabilitation”.

The review’s authors also say that,

“the corporate responsibility of Castlebeck Ltd remains to be addressed at the highest level”.

I would be grateful if the noble Baroness could say a little more about how the Government intend to do that. At the very least, will the Government require private companies to name the owners and members of the boards and details of their financial structure before they can be licensed and registered to provide publicly-funded care?

I will not labour the point on the regulation of health and social care workers. This will be the third time this week that the issue has arisen. There was also the Statement on Monday and the debate on nursing launched by the noble Baroness, Lady Emerton, only two days ago. However, persuasive arguments are being put forward for the regulation of these workers. On Wednesday, the noble Earl, Lord Howe, relied on the kind of voluntary registration that he proposed during the passage of the Health and Social Care Act. He also made it clear that the Independent Safeguarding Authority can take action to bar care workers from working in regulated activity. The point is that there are many circumstances where such workers may not have been brought to the attention of the Independent Safeguarding Authority, but may have been dismissed by, perhaps, the National Health Service or an institution and can simply go on to work in another place. We have examples of where that happens. The noble Earl also said—this is in relation to the NHS but it is just as relevant to Winterbourne View—that nurses,

“who are themselves subject to professional regulation … should not be asked to undertake a task for which they are not trained”.—[Official Report, 11/12/12; col. GC 295.]

He also said that healthcare assistants come under the supervision of those nurses. That ignores the strength of the employer as opposed to those healthcare workers and nurses. I accept that regulated nurses clearly have responsibilities, but to blame them for delegating responsibilities to healthcare assistants is wrong and unfair.

My noble friend Lord Touhig made some good points about hate crime and the challenge of care in the community. I want to end on that point. Care in the community has been the policy of successive Governments for more than 30 years. We now have a situation where money is very tight, particularly in local government, but also in the health service. The National Audit Office today signalled some of the pressures in the system. I ask the Minister this question. Do Ministers really understand what is happening on the ground? I do not think they do. They are living, not in a dream world, but one which has no link with the reality, the pressures and the strains. I end, as I started, with doubts about how on earth this change can be made within 18 months when the whole system is under such acute pressure.

Global Fund: AIDS, Tuberculosis and Malaria

Lord Hunt of Kings Heath Excerpts

Wednesday 4th July 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, it is a great pleasure for me to wind up for the Opposition on this very important Question. In the unavoidable absence of my noble friend Lady Kinnock, I, too, congratulate the noble Lord, Lord Fowler, on his commendable efforts tonight and on his long-standing and excellent record in this area.

We heard a very important contribution from the noble Lord, Lord May, which I hope that the Minister will be able to respond to. I also commend the noble Baroness, Lady Masham, for the remarks that she made. She reminded us that, although tonight we debate the global challenge of HIV, TB and malaria, we have a challenge in this country. She mentioned my own city, Birmingham, and a very tragic TB case. The trust that I chair runs one of the clinics involved. I want to tell her that I very much take her point to heart. Just as tonight we support the Global Fund in its worldwide efforts, it is very important in Birmingham that all of us get our act together to make sure that we deal with issues in relation to HIV and TB in an effective way.

The previous Government gave tremendous support to the fund and I echo my noble friend’s remarks on that matter. But so, too, we commend Mr Mitchell for the work that he has done. I hope that in the spirit of all sides of the House coming together, the Minister will be able to give us good news when she comes to wind up the debate.

As the noble Lord, Lord Fowler, said, much has been done by the fund but much more needs to happen. There is real concern about the decision that the fund had to take to cancel Round 11 of the funding grants in November 2011. There were various reasons for that, which we have heard about, such as the global economic downturn and the issue about fraud, which was exposed in part, as Aidspan has argued, because the fund has a commendable commitment to anti-corruption and transparency. As the Minister will know, the fund has moved swiftly to implement a programme of reform. Her noble friend has already told the International Development Select Committee that his department would announce new funds as soon as they were confident that the money would be well spent.

Clearly the Global Fund has to do more, but it has moved very quickly in the past few months. I simply ask the Minister whether she will prevail on her right honourable friend Mr Mitchell to be able to make an announcement very soon. That would be a fitting conclusion to this excellent debate.

Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Alderdice]

My Lords, I also have some scepticism about assured voluntary registration, but I will come back to that when we debate the subsequent amendment. I have some sympathy with the noble Baroness’s amendment. I had not intended to speak on this amendment until I heard a number of noble Lords speak, and I take a slightly different lesson from the history of the past number of years in the development of the nursing profession.

Like the noble Lord, Lord Warner, I remember sisters, state registered nurses, state enrolled nurses, nursing auxiliaries and so on, but one of the key things was that all those professionals described themselves as nurses. Indeed, I very well remember as a young doctor that nurses would not say, “I looked after that person”, or “I was on the ward when that patient came in before”, but said, “I nursed that patient”. There was a quality of compassion and relationship that was critical to the profession. I think that not only nursing as a profession, but many other professions went down the wrong road when they took the view that the future was in tighter registration and a graduate profession because that was not fundamentally the need. I heard my right honourable friend in another place being asked questions in the past few days about poor care of patients with dementia, and he made a very important point. He said that you can find two wards beside each other in a hospital with nurses with exactly the same level of training and qualifications but in one of those wards the patients are cared for with compassion and in the other ward they are not. When we move to healthcare support workers, it seems to me that whatever we move to, we do not move to a title that expresses compassion and care for the patients who are being nursed.

My gratitude to the noble Baroness is not for the specific terms of her amendment, and I do not think that they were the burden of her bringing the amendment forward. It is that we engage in a serious, proper debate about this issue, not just for nurses, but for other professions. There are some for whom I believe that statutory registration is the proper way ahead, but there are others for whom it does not seem to be the case that always moving to graduate professions with training and registration is the sole and most important way of dealing with these questions. It is quite clear that making nurses graduates and having registered nurses only has simply opened a door that has had to be filled with other, less qualified and, it has to be said, less expensive employees. Now we have a problem with them not measuring up to the professional standards of compassion that all of those—or at least, almost all of those—who aspired to be nurses at whatever level in the past aspired to in the best sense.

I welcome the fact that the noble Baroness has tabled this amendment; I am not quite sure it is the precise solution, but I hope we find ways to come back to the serious ongoing debate that the noble Lord, Lord Warner, has pointed to because there is a crisis in this area. I remember saying this two, three, four years ago in your Lordships' House and noble Lords who are now on the Benches on the other side thought it was simply a party-political attack. It was not—it was a genuine sense of concern that things were deteriorating. They have continued to do so, and it will not be dealt with solely by registration, training and academic qualifications because a quality of care and compassion and a culture of compassion are necessary. That is not to take away from the question of assured voluntary registration, which I wish to explore in a further amendment.

[Lord Hunt of Kings Heath]

My Lords, I, too, pay tribute to the noble Baroness, Lady Emerton, for her perseverance and determination in this very important area. Rather like the noble Lord, Lord Alderdice, I am clear that the role of healthcare assistants has to be seen in the context of a much more general debate about nursing care, including the compassion that he talked so eloquently about.

As the noble Baroness said to us rather earlier this afternoon, we had an excellent debate on nursing on 1 December, and we are presented with something of a paradox: on the one hand, we should not ignore the huge advances in the nursing profession over the past 20 years. There has been the move to a graduate profession and nurses have taken on much greater responsibility, including for complex care and specialist care, and I think that, overall, the public have welcomed that increased responsibility. At the same time, there has been real and mounting concern about basic standards of care and issues to do with hygiene, feeding of patients, nutrition, dignity and even face-to-face contact—the kind of compassion that the noble Lord, Lord Alderdice, has just spoken about. We have seen the reports from unannounced visits of various bodies. Recently, the CQC has undertaken important visits to many of our hospitals. There seems to be real evidence and concern about a falling of standards of basic care.

The reasons for that are not clear. It is possible that nurse training is now too focused on academic performance rather than on practical nurse training. It is also at least possible that the drive for specialist nurses and modern matrons has taken from the ward the many experienced nurses who, in retrospect, might be better placed in leading their ward as ward manager or senior sister. What is not in doubt is the need for serious thinking about how we can enhance the overall quality in standards of basic care that nurses give.

That brings us to the role of healthcare assistants. Again, in our debate on 1 December, the noble Earl, Lord Howe, in responding, referred to the concerns that had been expressed about nursing in the acute sector in particular. He said he felt that that,

“related to inappropriate delegation by nurses to healthcare”,

assistants. He continued:

“Wherever there is a multidisciplinary team of regulated professionals and unregulated healthcare workers, appropriate delegation and supervision is vitally important. This is an area ripe for formal review”.

He also said that the Government welcomed,

“the NMC’s plans to update its guidance on delegation”,

and that they have,

“asked Skills for Health and Skills for Care to accelerate production of a code of conduct”.—[Official Report, 1/12/11; col. 419.]

I am sure that those actions by the Government are very generally welcomed. The question before us is whether they are sufficient. From what the noble Baroness, Lady Emerton, has said, it is clear that she does not think that they are. Powerful support for that argument has been received from the Nursing and Midwifery Council, which argues that a system of regulation for healthcare support workers should contain provisions for consistent UK-wide standards of training and practice that would assure the public and employers that they have the knowledge and skills to practice safely. It further suggests a mandatory register to ensure that workers who have been struck off the nursing and midwifery register are not re-employed in a healthcare support role, which has been the subject of some concerns. It is also notable that the House of Commons Health Committee supports mandatory statutory regulation of healthcare assistants, which it believes is the only approach that would maximise public protection.

However, we have heard from my noble friend Lady Pitkeathley, chair of the Council for Healthcare Regulatory Excellence, who has put a different view. It will be interesting to hear the response of the noble Baroness, Lady Emerton, on why she thinks that a voluntary register for healthcare assistants is the way forward. I should like to ask her whether she would support NHS bodies which require healthcare assistants to be voluntarily registered as a condition of employment. If that were the case, what safeguards does she think could be put in place as regards a worker who was dismissed because of poor conduct towards a patient? How could we ensure that in those circumstances that person could not then work in another part of the care sector? That seems to me to go to the heart of the issue of whether a voluntary register could work.

I have no doubt that NHS employers could be encouraged to make it mandatory but the problem with that is that too many people could slip through the net. I would also ask the noble Baroness to respond to my noble friend Lord Warner. I share his view that, clearly, we are crying out for a fundamental review of these issues around nursing quality and care, compassion, and dignity of care being given to patients, and that relationship to healthcare assistants. If the Government are not prepared to move on this and on the point about only going as far as a voluntary register, can they at least give some comfort and assurance that they recognise that this matter needs close attention?

I am not a great believer in royal commissions—I think it was Harold Wilson who said that they could be established in a minute but take years—but there is a strong case for a fundamental review of the nursing profession, embracing healthcare assistants. Would the Government be prepared to give us some comfort on this?

[Baroness Northover]

My Lords, these amendments seek to extend compulsory statutory regulation to healthcare support workers. I thank noble Lords for the amendments because they raise important issues about the ways in which we assure the quality and safety of those who work in support of our regulated health professionals. The Government are publishing a fact sheet on this issue that will contain further details about their proposals, which I hope will be helpful to noble Lords.

There are more than 200,000 nursing assistants and approximately a further 1 million people working in similar jobs in adult social care in England alone. The majority of support workers give the highest quality of care. However, a minority let patients down. This is rightly a cause for concern, although as a former historian I have to say that I do not fully recognise the notion of everything having been perfect in earlier periods but everything breaking down at this point. One needs only to look at what has been said from Florence Nightingale onwards about what happened during the interwar periods, during times of war and so on. This has always been more varied than perhaps noble Lords are allowing for. Nevertheless, it is extremely important that we try to drive up quality and ensure that quality holds good right across the health service and social care. It is right that there is discussion and debate about the best way of ensuring that high standards of care are delivered at all times.

As the noble Baroness, Lady Pitkeathley, pointed out, there are already existing tiers of regulation that protect patients and service users. Professionals struck off by their regulator or sacked by an employer who pose a risk to vulnerable adults or children should be referred to the Independent Safeguarding Authority, which has been very clear that it expects this to happen. In the same way, employers should make referrals about individuals from unregulated groups where they pose a risk of harm to vulnerable adults or children. Providers and employers also play a key role in ensuring safe, high quality care that patients and service users can be confident in, being both responsible and accountable for the staff they employ. Under the registration requirements of the Care Quality Commission, providers must take steps to ensure that at all times there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purpose of carrying on any regulated activity.

An individual being on a list does not alter this and would not remove employers’ responsibility to undertake a range of checks on the suitability of any persons who they appoint, including qualifications, relevant registrations, employment history and reference checks to ensure that an individual is competent for a specific role. Equally, appropriate delegation and supervision is a necessity within teams made up of both regulated and unregulated professionals and workers. Guidance by the Nursing and Midwifery Council is being updated so that nursing staff know how to delegate appropriately and safely.

We are not ruling out compulsory statutory regulation for healthcare support workers, but our view is that the case has not yet been made for imposing further compulsory statutory regulation, given the tiers of existing regulation and the duties on regulated professionals. There is no solid evidence that demonstrates that healthcare support workers and adult social care workers should be subject to compulsory statutory regulation. Research by King’s College London concluded that little evidence could be deployed to show that regulation of healthcare support workers would reduce the risk to the public, although it was clear that some healthcare workers were undertaking roles that had traditionally been done by nurses. The point is that quality is not always what is delivered. Therefore, we have to try to tackle that concern and not simply assume that regulation will deal with it. As the noble Baroness, Lady Pitkeathley, mentioned, there are regulated professions which are in some instances letting us down. We must focus on the real problem and figure out ways of tackling it.

The Government’s view is that high standards for healthcare support workers and other professional occupational groups can be assured without imposing compulsory statutory regulation. That is why, in the wider context of supporting providers, we are creating through the Bill a system of external quality assurance for voluntary registers. To pick up the point made by the noble Lord, Lord MacKenzie, there are various examples of voluntary registration for groups of professionals. We are proposing a quality-assured voluntary approach, looking at how those registers are set up and operated and what training is offered and so on. A quality-assured voluntary register will set standards for training, conduct, competence and ethics that all registrants must meet.

[Lord Hunt of Kings Heath]

My Lords, if the Government are putting so much faith in the quality-assured voluntary register, surely the evidence from King’s College would show that that was not necessary. They cannot have it both ways. Either regulation, and what comes with it, provides advantages or it does not.

[Baroness Northover]

Regulation and training are often put as two words in one sentence. Regulation may indeed include training; assured voluntary registers may also include training. The noble Baroness, Lady Emerton, talked about that. Perhaps I may come on to it, because it is potentially relevant here.

I am particularly grateful to the noble Baroness for her contribution to this debate, not only today but throughout her time in the House of Lords. We agree that common standards of training are needed for those working in both health and social care, as well as more role-specific training, and that this will lead to a more capable and flexible group of support workers. As we seek to integrate health and social care more effectively, this area deserves a lot of scrutiny.

We expect work on the standards to begin by April 2012 in terms of training, and for them to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013. This will allow unregulated workers to demonstrate that they meet a set of minimum standards for training and are committed to a code of conduct.

[Lord Hunt of Kings Heath]

My Lords, I still do not understand this. If it is so important that the voluntary registers are established, for the reasons that the Minister has given, why on earth not go the full hog and make registration compulsory? If the Government do not think that it is important, they would not be pursuing the voluntary register approach. However, by taking that approach, they will leave lots of people outside the net.

[Baroness Northover]

As the noble Baroness, Lady Pitkeathley, and others have indicated, one has to be proportionate about this and not think that simply going down the route of regulation is going to crack it. Nevertheless, training and making sure that people are well prepared for the work that they are doing is clearly of great importance. We would expect a voluntary register, quality assured in the way that I have described, to provide a way for employers to assure what they are offering in terms of staff. There will therefore be greater take-up. Those who are on the quality-assured register will find themselves more employable, which will move things forward. Meanwhile, if, as we continue to debate this, voluntary registration does not seem sufficient and regulation seems the route to go down, the Government do not rule that out. However, it is extremely important to focus on the end point, which is to try to drive up quality, and not simply be deflected by thinking that this would crack it.

I assure noble Lords that we will keep this issue under constant review. We are well aware of people’s concerns and that standards need to be driven up in a much more even way across the board. As I say, we are developing the education and training which I hope will go some way towards this.

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.

Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 16th November 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

60A: Clause 7, page 4, line 18, at end insert—
“( ) Each clinical commissioning group has the function of safeguarding the comprehensive provision of NHS services.”

[Lord Hunt of Kings Heath]

My Lords, this group of amendments brings us to the general function of clinical commissioning groups. New Section 1F to be inserted in the National Health Service Act 2006 under Clause 7 states:

“Each clinical commissioning group has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act”.

I suppose that, in many senses, clinical commissioning groups are the flagship of the Government’s reforms, but that those functions are not particularly inspiring. I would have thought that the Government would have wished to set out a rather more ambitious remit. My amendment seeks to do that and is quite specific that the clinical commissioning groups should have the function of safeguarding the comprehensive provision of NHS services.

It is very important that words to that effect are in the Bill in order that clinical commissioning groups are under no misapprehension that they have an obligation to ensure that patients receive comprehensive services. Recently, the Secretary of State has felt it necessary to intervene with primary care trusts because there has been evidence that in order to balance their books, they have been putting restrictions on treatments both in terms of the actual treatments but also in artificially delaying access to non-urgent treatment for a number of weeks. The Secretary of State has ruled that this is unacceptable.

The question that arises is: if that situation arose with clinical commissioning groups, what is there to be done to ensure that CCGs are reminded that their job is to ensure that their patients receive comprehensive health services? Essentially, that is what my first amendment is about. It is of course linked to Clauses 10 and 11. As we have already generally agreed, Clause 10 is one of the essential parts of the Bill’s intention to change the foundation of the NHS. The clause would remove the Secretary of State’s duty under Section 3 of the NHS Act 2006 to provide key listed health services to meet all reasonable requirements throughout England and, crucially, would remove the area-based responsibilities of primary care trusts.

In Clause 10, we see in their place the clinical commissioning groups—the bodies responsible for persons on lists and other persons usually resident in unclear and potentially non-contiguous areas. As far as I can see, those specified services would clearly have to be provided for everybody except, arguably, emergency care. In addition, Clauses 8 and 9 would in effect remove from Section 3 public health functions such as immunisation, screening and health promotion, so these PCT services would not have to be covered by clinical commissioning groups. I have to say that the provisions of Clauses 8 and 9 are particularly opaque, and the interface with Clause 10 in unclear. I would also point out to the noble Earl that new charging powers are proposed in Clause 47 for those services that are free at present, although I think that the noble Earl has suggested that they would be commissioned by local authorities and would not be part of the National Health Service. My Amendments 76 and 77 would delete Clause 10 entirely, retain Section 3 of the 2006 Act in its entirety and add a new clause that would give clinical commissioning groups the duty to arrange provision for all persons usually resident in their area and, as regards emergency care, for everybody present in their area.

I was going to put a number of questions to the noble Earl, but he has written a letter that relates both to the pilot schemes to make it easier for people to move between GP practices and, if they move, to stay on with their old practice if they are likely to return to their former residence. That would apply, I suspect, to people such as students. He has also given some details about the general responsibilities of the national Commissioning Board in relation to patients who cannot find a GP who will take them on. That is helpful, and I certainly think that there will be time later on to discuss this in more detail. On the pilot schemes, one of the issues will be the approach taken when patients turn up at one of these GP practices and ask to go on its list. We know that reception sometimes can be a very good experience and sometimes not so welcoming. That factor should be kept in mind.

A second issue arises from the noble Earl’s letter, particularly about the allocation of patients on GP lists. As the NHS Commissioning Board will hold the contracts of GPs—it would be deemed a conflict of interest if clinical commissioning groups held them—the Commissioning Board itself will be responsible for allocating patients to lists if they cannot get on a particular list. How on earth is this practically going to happen? Does this not make it inevitable that not only will the NHS Commissioning Board have to establish regional offices, but, given the size, it will need local offices so that the public can get in touch with it? Presumably that means, too, that the NHS Commissioning Board will oversee the system for complaints made against GPs in terms of their primary care delivery function. So there are quite a lot of difficult issues here about how practically the NHS Commissioning Board will carry out its duties. As for the allocation of patients, what will happen about patients with severe learning difficulties or complex mental or physical health problems, or asylum seekers and the homeless, those of no fixed abode who traditionally have often found it difficult to get on a list? How will the NHS Commissioning Board know what to do about this unless it has some kind of local presence? I do not believe it can be done from the headquarters of the Commissioning Board in Leeds—or at least it would be very difficult to do so.

I know that we have discussed the issue of the clinical commissioning groups not being area-based, and I will come back to that. The noble Earl’s maps are very instructive. I would point out that the Heart of Birmingham PCT hardly covers the catchment area of the Heart of England NHS Foundation Trust. That is a matter of great regret to me because it currently has a thumping great surplus, unlike the PCTs that serve my own foundation trust. I can no doubt look to the noble Earl for a helpful intervention in that—or perhaps not.

--- Later in debate ---

[Earl Howe]

Part of the function of the board is to support decision-making at a local level if that is ever required. If there were a serious disagreement of the kind my noble friend describes, I envisage that the resources of the board could be made available to the decision-makers at local level to try to find a way through whatever disagreement had occurred.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, for his response. Essentially what he is saying is that the reasonable requirement duty based on current legislation, together with the discretionary power in Clause 11, is sufficient to ensure that clinical commissioning groups will commission in a comprehensive way and deal with the many specific issues raised by noble Lords in this very interesting debate. He went on to assure us that if they are not doing that, the annual assessment based on outcomes alongside clinical commissioning guidance will make sure that CCGs are kept up to scratch.

My concern as to whether that is going to be sufficient partly comes because of the attitude of some GP practices to what one might call “difficult to reach” patients; for example, homeless people or people with mental health problems. We have heard about the rare disease issue. I am sceptical that the views of GPs in their surgeries are somehow going to be translated into a much more comprehensive vision the moment they step inside the door of the clinical commissioning group. That, at heart, is where people’s concerns are. I agree that framing an amendment to satisfy this point will not be easy, but I suspect that we will all want to come back at Report to try to button this down.

My noble friend Lord Warner referred to the question of interventions, which is relevant to this. I am still not clear. The Secretary of State has been right to intervene with PCTs on the question of artificial waits for treatment but CCGs will do the same because they will have the same problems with resources. We were told last week that we have got this cancer fund, about which there will be no option. Ministers will make other promises in the future and yet money is being taken out of the health service. There is bound to be tension around the CCG board table. What if it decides that the 18-week wait is no longer important to it or it has a rule that if it is not urgent, a patient has to wait for a certain amount of time—because it is a way of controlling its costs? Where, then, is the intervention going to be?

My final point is about this whole question of the mechanism of health and intervention. I have not picked up the local field force yet—this is an innovation. However, it is quite clear that the NHS Commissioning Board, at a local level, will have to be a local player. It has the right of attending health and well-being boards, and presumably, if we do not get integrated health and social care, it will have to take advantage of that presence. It will hold the contracts of all GPs, so I assume that it will deal with complaints. The local field force will have to deal with the allocation of patients to practices where GPs are refusing to accept them. I am left with a sense that, in fact, there will be quite a large bureaucracy at the local level; the difference being that now it is under a proper public board. In the future it will be an outpost of a massive organisation based at the centre. I question whether that really is an improvement on what we have.

This has been a good debate. I sure we will want to come back at Report stage on the reassurance we need about comprehensive commissioning by CCGs, but, at this stage, I beg leave to withdraw the amendment.

Amendment 60A withdrawn.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

85: Clause 13, page 8, line 11, leave out subsection (2)

[Lord Hunt of Kings Heath]

My Lords, I shall also speak to Amendment 86. This is very much a probing amendment designed to elicit from the Minister the Government’s intention with regard to high security services.

My reading of the Bill is that there is a responsibility on the national Commissioning Board to arrange for the provision of high security psychiatric services but that whoever provides such services is none the less subject to direction by the Secretary of State. Equally the board can also be given directions by the Secretary of State. The noble Earl would be right in thinking that I have no problem whatever about directions by the Secretary of State. I assume that this power of direction is because of the evident importance of sensitivity and risk in relation to high security services. I would be grateful for clarity on that.

However, I also want to ask about oversight and scrutiny. If high security services are commissioned by the NHS Commissioning Board, who will have oversight of that? Presumably the Secretary of State will take an interest in how well it is done. That must be implied from the direction duty. Will Monitor or the Care Quality Commission come to this as well? Will the CQC be looking at quality and standards? Will that involve the whole question of whether the NCB is commissioning those services effectively? Those questions might also apply to prison healthcare, which also falls to the NHS Commissioning Board—again with no obvious oversight in relation to that commissioning.

Although the issue of mental health services is the subject of my amendment and I was going to ask the noble Earl to clarify, in many ways our earlier debate—many hours ago—on the comprehensive responsibilities for commissioning services by CCGs covered that matter. But if he had a word or two or would write to me about mental health services, I would be grateful. The real issue on mental health services is the GPs’ own approach. There is patchiness in relation to how well GPs are prepared to either treat people with mental health issues or to provide support. The question arises as to whether we are confident that clinical commissioning groups will take mental health services sufficiently seriously. He might want to comment on that. In the main, we need clarity on who monitors the national Commissioning Board when it is commissioning high-security psychiatric services. I beg to move.

[Earl Howe]

My Lords, the noble Lord, Lord Hunt, has introduced these two amendments which deal with the important issue of mental health, high-secure mental health services in particular. Amendment 85 would reinstate the Secretary of State’s duty to provide high-secure services. I want to reassure the Committee that while this duty has been removed, the Bill is clear that the Commissioning Board must arrange provision of these services. But I recognise the concern and I agree that we must ensure these services are provided and that the Secretary of State continues to be involved. High-secure mental health services are highly specialised and have close links to the criminal justice system. They deliver high-quality clinical care and public protection. We have, therefore, set out in the Bill powers of direction over the NHS Commissioning Board in relation to its commissioning of high-secure services and over high-secure providers in relation to the actual provision of high-secure services. To give a couple of practical examples of the Secretary of State’s accountability, he needs to ensure that there is sufficient capacity in the high-secure system so that when the Secretary of State for Justice directs an offender to a high-secure hospital, there will be a place. Secondly, the Secretary of State for Health also needs to ensure that the high-secure system is safe and secure so that the Secretary of State for Justice is confident that when offenders are directed there, public protection will be upheld. The Bill also requires the Secretary of State to authorise high-secure providers. I am confident that these measures together ensure that these services will be properly commissioned by the NHS Commissioning Board, while retaining appropriate levels of intervention by the Secretary of State. I therefore hope the noble Lord will feel comfortable in withdrawing his amendment. He asked about oversight of secure mental health services. The commissioning of those services, as I have said, will be overseen by the Secretary of State. CQC and Monitor will oversee the provision of secure mental health services.

Amendment 86 would introduce a direction-making power in relation to the NHS Commissioning Board’s commissioning of mental health services in general. The noble Lord did not speak at length to that amendment. I explained just now that it is appropriate for the Secretary of State to have direction-making powers over the board in relation to the commissioning of high-secure mental health services. That is because of the specialised nature of those services and the links to public protection. But the noble Lord will not be surprised to hear me say that the introduction of a direction-making power in relation to the board’s commissioning of mental health services in general is not consistent with the approach in the rest of the Bill. As the noble Lord knows, mental health encompasses a huge range of conditions and services and individual needs and we believe local commissioning by clinical commissioning groups will be the best solution to meet most mental health needs with some commissioning by the NHS Commissioning Board for more specialised areas of care.

The noble Lord expressed doubts about the extent to which CCGs will have the necessary focus on mental health. Here we come back to the role of the board in issuing commissioning guidance to CCGs, underpinned by the quality standards that NICE will produce. We should remember, too, that CCGs will be consistently held to account against the outcome domains of the commissioning outcomes framework. Part of the holding to account will embrace mental health outcomes.

We demonstrated our commitment to mental health with the early publication of the cross-government mental health strategy. We had a lengthy debate about that important area earlier in the Committee's proceedings. I have no doubt that there is more to say, but I hope that, after those few remarks, the noble Lord will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. On the role of the board in commissioning services, I will make a general point: clearly the national Commissioning Board will be very important. How it works should be scrutinised. I suspect that this will lead us on to the question of the mandate, which we will debate next week. At this stage, I beg leave to withdraw the amendment.

Amendment 85 withdrawn.

--- Later in debate ---

[Lord Lucas]

My Lords, I have Amendment 92 in this group. I have a long speech on this, but my noble friend has written to the Campaign for Freedom of Information, saying among other things:

“Where possible, we will push to ensure that where functions are transferring to other bodies, the coverage of FOIA is maintained”.

Perhaps I had better listen to him first and then make the speech afterwards.

[Lord Hunt of Kings Heath]

My Lords, that is an invitation to which I am sure the noble Earl was looking forward. The amendments are clearly concerned with the regulations to be made in exercise of the functions by the board or the clinical commissioning groups, to be known as standing rules. The very words, standing rules, give a clue as to the importance of this part of the Bill.

My Amendment 92ZA concerns the consultation process. New Section 6E(6) of the National Health Service Act 2006, proposed by Clause 17(1), currently states that,

“regulations may require the Board to consult prescribed persons”.

My amendment would replace “may” with “shall”. Given the importance of these matters, there should certainly be a prescribed consultation process.

The noble Earl could perhaps clear up one point about the consultation provisions in this part of the Bill. My reading is that they appear to be confined to an exercise of its functions, by virtue of new Section 6E(4)(b) and new Section 6E(5), which are concerned with the draft terms and conditions and the draft model commissioning contracts. I am sure it is right to consult on these, but I wondered why the consultation appears to be confined just to those. What about the standing rules themselves? Perhaps I have misread Clause 17, or perhaps it is covered by wider consultation requirements elsewhere, but if he were able to reassure me on that I would be grateful.

Amendment 93 is a probing amendment. Under new Section 6E(8), the board,

“may not impose a requirement on only one clinical commissioning group”.

Are there no circumstances in which it would be appropriate for the board to put a requirement on a single clinical commissioning group? I did not understand that, and, again, if the noble Earl could clarify that, it would be helpful. I can reassure him that, like the noble Lord, Lord Lucas, I will not make a long speech on that matter.

I will return to the point raised by the noble Lord, Lord Hennessy. My Amendment 94 would require regulations made under Clause 17 to be affirmative. This Bill is packed with regulating powers. You can hardly move for the regulating powers that have been given to the Secretary of State. The Department of Health is not very fond of affirmative regulations—it has very few affirmative regulations in its legislation compared with other departments—but I think it might have allowed us a few more affirmatives than is currently allowed for. It seems to me that standing rules shape the way the board and clinical commissioning groups go about their business. Given that the intent is to hand over much more authority from the Secretary of State to the board and clinical commissioning groups, I do not think it is unreasonable that matters to do with the standing rules should be subject to the affirmative procedure. I hope that the noble Earl will be able to give some comfort on that matter.

[Baroness Barker]

My Lords, I cannot remember which legislation it was, but I know for a fact that I was sitting on the other side of the House and that the Minister was the noble Lord, Lord Hunt of Kings Heath. If I could go back and trawl through Hansard, I would find the reference to the speech in which I started by saying that I feared that one day we would have a piece of primary legislation that consisted solely of regulations and that we were perilously close to it. I point out to the noble Lord, Lord Hunt of Kings Heath, that whatever he may think about this legislation, he has form on this.

[Lord Hunt of Kings Heath]

There is one very big difference. In the legislation I was bringing forward, we retained the clear accountability of the Secretary of State to Parliament which had clear direction powers over the National Health Service. Therefore, it was much more appropriate that regulations did not have to be affirmative because Parliament could demand the accountability of the Secretary of State. We are moving into a new situation where the Secretary of State is taking a much more hands-off approach, so the argument that the regulations be affirmative is much more persuasive. There is a real degree of difference between then and now.

[Baroness Barker]

That might have been the case, but I recall that under the Government of which he was a member, a fair amount of Henry VIII powers went through at the same time so, although his basic thesis might be different, I am not sure that Parliament was that much more able to question the intention of the Secretary of State at the point at which primary legislation was being debated in this House.

I want to speak up partly in support of the amendment moved so eloquently by the noble Lord, Lord Hennessey. I would perhaps differ slightly. I think that in this House there is a great deal of very high quality scrutiny of delegated powers and secondary legislation. It is one of the things that this House does extremely well. The additional point in the proposal he has made is to bring to the process of scrutiny of secondary legislation the involvement of people on the Health Select Committee in the House of Commons who, by dint of their membership of that committee, have a detailed and ongoing knowledge of the workings of the National Health Service in its entirety. I understand what he is trying to do, and I have a great deal of sympathy with it. My only reservation about that is that I think the power of the Health Select Committee is that it sets its own agenda and holds the Government to account. I would not like an inadvertent effect of what the noble Lord, Lord Hennessey, is proposing to be to trammel the independence and power of that very important committee to scrutinise what the Government are doing. However having made that criticism, I have a great deal of sympathy with what he is trying to do, but I hesitantly suggest that perhaps this problem is not quite as new as some noble Lords might suggest.

[Lord Hunt of Kings Heath]

My Lords, perhaps I might just come back to the noble Baroness. Would she agree that this is a point that deserves greater consideration when we come to the mandate itself? At the moment the Government are proposing to simply lay the mandate before Parliament before the start of each financial year. Would she agree that the mandate itself might be subject to more scrutiny by Parliament?

[Baroness Barker]

My Lords, I do not want to get into that debate, which I think we have not yet come to, but I thank the noble Lord—sorry, I am so tired tonight, I was about to call him “the noble Lord the Minister”; I am going back in time—

[Lord Hunt of Kings Heath]

In your dreams—in my dreams!

[Baroness Barker]

I thank the noble Lord, Lord Hunt, for drawing attention to a very important point that I think has been missed and in some cases distorted, which is that our debates so far have been about the powers of the Secretary of State and we have ignored a number of other elements that have a direct bearing on that, such as the mandate. That appears to have passed by people like 38 Degrees completely. I thank him for drawing it to our attention but I will resist the temptation to get into the detail of that this evening.

Female Genital Mutilation

Lord Hunt of Kings Heath Excerpts

Thursday 30th June 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I, too, welcome the initiative of my noble friend Lady Rendell in instituting this debate and for championing this issue for many years. We owe her a great debt. As in previous debates, the picture painted by noble Lords today is of the extensive nature of this dreadful practice in many countries, including our own. As noble Lords have commented, the Female Genital Mutilation Act was introduced in 2003, but there have been no prosecutions since it was brought in. As my noble friend Lady Rendell said, clearly there are police forces who would wish to prosecute but so far the evidence has not come forward.

I ask the Minister to respond to the point raised just now by the noble Baroness, Lady Tonge, as to the reason for there being no prosecutions at all, and whether we can learn anything from other countries such as France, if indeed they have been able to find ways to prosecute? It would be very interesting to know whether her department has been able to undertake some research into the experience of other countries.

My noble friend Lady Gould wondered if the law needed revisiting and made a number of suggestions for improving the law. Will the Minister very kindly consider those proposals?

My noble friend Lady Rendell suggested a public awareness campaign. Will the Government support this, including, as she said, films showing the pain and suffering caused by this dreadful practice? In her opening remarks, my noble friend mentioned a DVD that she supported. I have seen it—it is very telling. Will the Minister give support to such initiatives and to the initiative mentioned by the noble Baroness, Lady Tonge, by a schoolteacher in Bristol? It was very concerning to hear that, far from being supported, she had come in for criticism. This is extremely disappointing.

Fantastic work is being done in clinics. Can the Minister assure me that a way will be found within the new health service structure to ensure that those clinics continue to be funded and supported? The noble Lord, Lord Dholakia, raised the issue of police funding. We know that one of the consequences of cuts to police funding has been the closure of specialist units. There is a real problem with prosecutions—will the Minister consider whether there is a need for some kind of regional or national unit to gather expertise to advise police forces generally? The noble Lord, Lord Dholakia, also mentioned the role of the Children’s Commissioner. Will she consider that, as well as his suggestion about the need for education for refugees?

I also ask the Minister to respond to my noble friend Lady Kennedy about practitioners in this country because it is clear from what we said that there are some who are involved in these practices. My noble friend’s analysis of the causes was very helpful.

Picking up a point made by my noble friend Lord Parekh, what work are the Government doing in relation to UK communities, particularly men and boys in those communities? The noble Baroness, Lady Stern, mentioned the Kenyan experience. It would be helpful if we could establish whether the work being done there would be relevant to the UK. I also pick up the point made by the noble Lord, Lord Chidgey, about DfID programmes, which I thought was very important indeed.

Finally, my noble friend Lady Gould asked whether the Government would develop a long-term strategy. I ask the Minister to consider that very carefully indeed. The reinstatement of an FGM co-ordinator post in Whitehall would be an important signal of the Government’s concern and commitment in this area.

Crown Prosecution Service

Lord Hunt of Kings Heath Excerpts

Thursday 12th May 2011 Lords Chamber

[Baroness Verma]

My Lords, I can only repeat to my noble friend that serious cases will remain with the CPS, which will still have an overview of every single case that comes through the courts. However, what we are doing is leading to reductions in bureaucracy and, I hope, an increase in the efficient use of police time. The piloted programmes have indicated a saving of 50,000 police hours. Building on that, by June of this year a further 40,000 police hours will be saved.

[Lord Hunt of Kings Heath]

My Lords, will the noble Baroness address the second point raised by my noble and learned friend that it is the combination of the police being given prosecution powers on the one hand and the Government’s proposal for elected party-political commissioners on the other that brings a great deal of fear? Why are the Government pursuing these two policies, which will undermine confidence in the police force?

[Baroness Verma]

My Lords, I completely disagree with the noble Lord. As he is aware, we are trying to introduce efficiencies to the way in which charges are brought. First and foremost the lesser charges are with the police because it is much easier and quicker for them to deal with them. The serious cases will be with the CPS. As to the noble Lord’s second point, he knows exactly where we stand on that.

Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011

Lord Hunt of Kings Heath Excerpts

Tuesday 29th March 2011 Grand Committee

I would have thought that we could all agree that we should be tolerant of the views of others. In recent years, though, we as a society seem to have passed through the stage of tolerance, giving it but a casual nod, and instead rights are everything. Rights must be enforced, however trivial has been the breach of a right, and however easy and painless it would have been to have left the right unenforced out of respect for the views of others. There are many here who know the sort of case that I am referring to. In short, this obsession with rights and equality has driven tolerance out of the door and bred in its place intolerance, injustice and unfairness. Now, with the report to the Equalities and Human Rights Commission recommending that children of 11 should be asked if they are gay, it threatens the very rights of both parents and children. Surely it is time that we stepped back and asked ourselves some very serious questions about where we are going. It is certainly time that we made sure that in legislation there is protection for those with deeply held religious beliefs and who want no more than to be able to continue to follow tenets of their religion that only a very few years ago virtually all of us accepted as wholly unexceptionable. I therefore ask my noble friend to recognise that there is great concern about all these regulations. She must expect a few fireworks when the more fundamental regulations come before the House.

[Lord Hunt of Kings Heath]

My Lords, I thank the Minister for her detailed explanation of the draft order, which applies to a number of public bodies in the list in Schedule 19 to the Equality Act 2010. We will be happy to support the order.

I was interested in the remarks of the noble Lord, Lord Waddington. He has certainly livened up what is sometimes a rather dull affair in Grand Committee. He will not be surprised to hear that I do not really agree with the general thrust of his arguments; in general, I am proud of what we achieved in equality legislation. I agree that one would like to enhance people’s minds; that is a preferable approach. However, legislation sometimes needs to underpin desirable changes, and this legislation is very important.

Sometimes, of course, there is excessive zeal, sometimes there are instances where people have made mistaken judgments and it is fair to raise those issues, but overall this legislation has proved to be effective, though I look forward to a comprehensive response by the noble Baroness to her noble friend’s questions on this point. I, too, have one or two questions about the order. First, where is the Office for Budget Responsibility? Why is that not listed? I understand that it is considered to be a legal entity and since it seems to have unparalleled influence, it would be useful to know whether her department intends to put it on the list. Will she also say something about the Criminal Cases Review Commission?

I want to come on to discuss the Public Bodies Bill because I am very puzzled about some of the organisations listed in the schedule. We have spent hours and days debating the Public Bodies Bill, sponsored by the Cabinet Office, which gives Ministers the power to abolish or change the function, governance and finance of organisations. It is a remarkable Bill, which is now smaller than when it started, which is very unusual for your Lordships’ House. I see the Youth Justice Board listed in Schedule 1. It is true that last night we voted to retain the Youth Justice Board, but my understanding is that it was the Government’s intention to abolish it, so why is it in Schedule 1? Where I agree with the noble Lord, Lord Waddington, is that, if it is listed, presumably its duty is to go through the responsibilities contained in the Act.

I am hopeful that the Government will accept your Lordships’ view on the Youth Justice Board, but let us say that they do not, that they reverse it on ping-pong and that eventually that is accepted. The Youth Justice Board is going out of business, but in this order, we are placing responsibilities on it. That seems to me to be a bit of a puzzle. I then come to “A Primary Care Trust ...” In the other place there is NHS legislation abolishing primary care trusts. These bodies which face going out of business are none the less having duties placed upon them as a result of the order.

The Audit Commission is going to be abolished, not in the Public Bodies Bill, but by separate legislation: again, it is listed in this order. On page 7, police authorities are listed. Shortly, after the Easter break, we will be having Second Reading of the Police Reform and Social Responsibility Bill, abolishing police authorities. I thought that the Government were trying to reduce regulation. Why are these bodies listed? As I see it, if we are going ahead with this appalling decision to have elected police commissioners, politicising the police force and abolishing police authorities, why are they listed in the order?

I come to the bodies that are listed in the Public Bodies Bill whose functions are to be transferred to charities or trusts. The noble Baroness mentioned the Inland Waterways Association. I can see why she says that that should not be covered, but what about the British Waterways Board? That will, as I understand it, cease to be a public body and become a trust. The question is whether the equality duty ought to transfer to the trust. I think it ought to do so and I would be grateful for her views on that.

The noble Baroness mentioned GP consortia. As this is part of the NHS Bill, I ought to declare an interest as chair of Heart of England foundation trust and as a policy consultant and trainer to Cumberlege Connections in relation to the health service. I know the Government have now said—the noble Baroness has now repeated the comments of her honourable friend in another place—that in the event of the Health and Social Care Bill becoming law GP consortia will be added. That of course is very welcome, but shadow consortia are in fact being set up at the moment, and, as I understand it, starting to make decisions in relation to commissioning. Could she consider adding consortia as soon as possible, assuming the legislation goes through?

Finally, I come back to the issue of police reform. My understanding is that if the Police Reform and Social Responsibility Bill is passed in its current shape, the responsibilities which apply to the police authorities listed here will transfer to chief constables and the Commissioner of the Metropolitan Police, including the employment of police staff. Can the noble Baroness give me some assurance, assuming that this Bill becomes an Act, that this responsibility would be transferred to police commissioners and the Commissioner of the Police of the Metropolis?

[Baroness Verma]

I thank noble Lords for their warm welcome to the order and for a very good and reasoned debate. As noble Lords will know, when the Equality Bill was going through your Lordships’ House, it really did generate common consensus across the House. It was something that we all signed up to.

The first point that my noble friend Lord Shipley raised was about the opportunity for the public to challenge if they feel they are not able to get a positive response. We have to make sure that there are enough processes and systems in place, and we are working on that at the moment through making sure that local authorities will be able to give advice to individuals on how to get information if they feel they are not being heard. There will be much broader consultation on that, and I hope that in that process the noble Lord will allow me to write to him and other noble Lords about the way we are taking this forward so that we know that individual citizens are empowered. That, basically, is what the Government are trying to do: to draw back from a process-driven way of working to a point where the ordinary citizen feels that he or she is able to go and question what is being applied in their name.

The noble Lord, Lord Hunt, referred to the new police and crime commissioners. They will be listed through the Police Reform and Social Responsibility Bill. The reference is currently in paragraph 135 of Schedule 16 to that Bill, so it will follow through. The Office for Budget Responsibility has been listed through the Act that created it, so that is already there as well. The Criminal Cases Review Commission is not listed for the existing race or gender duties; we considered it but we were not convinced that it had sufficient impact on the equality list that we have at the moment. Police authorities are listed, and will remain so until the new police and crime commissioners are established.

To answer my noble friend Lord Shipley, public bodies will need to give reasons under their decisions, and guidance will come from the EHRC on how individuals will be able to utilise their powers to challenge local authorities. A body of case law has developed under the existing duties, and the EHRC’s guidance and copy of this practice will be able to reflect that.

I say to my noble friend Lord Waddington that the equality duty applies to protecting the characteristics of religion and/or belief. I agree with the noble Lord that we must not get to a place where some citizens feel that they are not part and parcel of the society that we live in and that they cannot freely practise their form of belief or religion, as long as it does not have a negative impact on those around them. I will take back the points that he raised; he is not the only one who has raised them, and they are real concerns. It is important that we take away differing views—some of us may not agree with all of them—so that we can ensure that everyone is signed in to the equal opportunities agenda, which is very much what my right honourable friend the Home Secretary is trying to do. We must move away from the process-driven place that we have developed.

I for one have seen legislation that has responded to the needs of people like me who had to fight very hard to ensure that discrimination was a thing of the past. However, I do not want to be part of a process that adds bureaucracy and adds to the burdens of local authorities and organisations so that, instead of them developing and being responsible for what they are delivering, we add to a process that often segregates and creates divisions. That is something that all of us here would sign up to.

In answer to the noble Lord, Lord Shipley—my answers are random because I am receiving briefing notes from the Box—the Government’s Equalities Office is currently developing a toolkit to help citizens, volunteers and third sector bodies and to hold public bodies to account. I am sure that we will still have a part to play in the process of developing those tools. Debate is incredibly important for this issue, because it is something that everyone has to be fully committed and signed up to.

The noble Lord raised the issue of the relationship of the general equalities duty to the specific equalities duty. We must make sure that the support of the specific duties over the general duties is there through the specific duties. That is the only way that we are going to be able to measure whether public bodies are responding. We want them to be able to respond to their own local community needs rather than for us to superimpose from the centre what we think local communities actually need. I am sure that the socioeconomic duty would have placed a great burden on local authorities. This way, we are tying to make them responsive to the local communities that they are servicing. Hopefully, when they take that responsibility, they will see the challenge and be able to respond accordingly without having to think that there are boxes to be ticked, which often reflect only parts of an individual’s needs, in contrast to the holistic approach that local authorities and local public organisations should be taking on board.

The noble Lord, Lord Hunt, talked about some of the bodies on the list. While they are in the transitional period, they need to be able to respond and to be certain that they are adhering to the equality duties that are set out in the Act.

[Lord Hunt of Kings Heath]

Let us take primary care trusts as an example, which face abolition. Already clusters are being created. Staff are haemorrhaging; one can understand that. Unless I have misread the order and the listing in Schedule 1—some of those bodies are not new and have already been listed, but some are being listed for the first time—it seems to be extraordinary that poor PCTs are presumably going to get a guidance from the Department of Health saying, “You are now listed. Your job is to implement the equality requirements”, at the same time as they are going out of business. I do not know why they are being asked to do this.

[Baroness Verma]

My Lords, while inspiration flies in from behind me, I assure the noble Lord, Lord Hunt, that there will still be a transitional period during which PCTs cannot abdicate their duty to meet those requirements. The noble Lord will take on board that there are always transitional bodies.

[Lord Hunt of Kings Heath]

I am sorry to belabour this point. PCTs are being merged into clusters. They have virtually gone as entities so the morale among people working in them is very low. To have a note from the Department of Health saying, “Despite all that, you now have to implement this”, does not seem to be sensible or consistent with what the Government are saying about regulation. I simply do not understand it.

[Baroness Verma]

My Lords, since inspiration has just arrived, my note tells me clearly that PCTs are already listed for the existing duties, so this is no great extra burden while they are still in existence. In fact the burden will be reduced because we are taking it away from being a process-driven requirement to being one where PCTs, like all other listed bodies, will be responding to the specific and general duties within the Equality Act 2010. I feel that the noble Lord is not overly satisfied but I commend this order to the Committee.

Licensing Act 2003 (Royal Wedding Licensing Hours) Order 2011

Lord Hunt of Kings Heath Excerpts

Tuesday 29th March 2011 Grand Committee

[Lord Shipley]

My Lords, I thank the Minister for this draft order. It has my full support. It has been an interesting exercise to go through the consultation; the majority of people who responded to it are against the measure, which shows us that it is not always the case that those who respond to consultations reflect the majority view. I am sure that when she made her decision the Secretary of State took account of the majority view in the population as a whole that it is right to extend the licensing hours as is proposed.

However, I ask for one piece of clarification. In the consultation, a specific request was made that we should be absolutely clear what “regulated entertainment” meant and that a lot of publicity should be given to the fact that live music and dancing would be part and parcel of this order, to avoid any confusion. In the draft order as published, it is not clear to someone who is not familiar with the law whether live music and dancing are part of that or not. I think that it is clear that they are, but I hope that the Minister will explain that that is the case and the general public will have the right, in the extended licensing hours, to have live music and dancing.

[Lord Hunt of Kings Heath]

My Lords, I, too, am grateful to the noble Baroness for her helpful explanation. We welcome and support this order. I accept that the royal wedding is an exceptional occasion and merits a small relaxation of licensing hours. Like the noble Lord, Lord Shipley, I note that the majority of respondents to the consultation seem to be opposed to it. I agree with him that people who consult do not always reflect the views of the general public or of Parliament. I am glad the Government have decided to press ahead with these proposals.

A couple of points were raised when this was debated in the other place. Perhaps the Minister could reflect on those. First, I understand that the order only applies to 29 and 30 April. Was consideration given to extending the order over the bank holiday weekend for a three-day period? Secondly, has any thought been given to the provision in the Licensing Act 2003 that allows certain areas to apply different hours on different days during the period covered? In other words, could local authorities be given further discretion at a local level? Finally, in the Explanatory Memorandum it is estimated that the additional policing of the order will cost between £45,000 and £170,000. Presumably there will be additional costs to local authorities. Has her department considered those costs? These are points of detail on which I would welcome a response, but overall we welcome this order.

[Baroness Verma]

My Lords, I thank my noble friend and the noble Lord, Lord Hunt, for this short debate. I am pleased that it has been received with such enthusiasm as we will all merrily enjoy this wonderful event. In response to my noble friend, if premises normally have dancing or serve food, this order will apply to those activities and those premises will have no difficulty in extending them.

The noble Lord, Lord Hunt, asked about a three-day period. We were mindful that we could have extended it but there were concerns during the consultation that there may be raised levels of crime and disorder. The key days are 29 April and 30 April. Two days was considered an appropriate period of time for a celebration. In response to his question about additional costs, had we not extended the licensing period, those premises would have extended it so the costs would have been there anyway. I am sure that licensed premises wishing to use this order will have taken that into account and will be responsible. This is one of those events where the country will rise to the occasion and join in the celebration and I am sure that most will be mindful that we do not end up with disorder and increased levels of crime. We have saved licensees the cost of this extension so there is an overall saving for those wishing to use it. All noble Lords have joined in with great enthusiasm and I am hoping that the country will do the same. On that note, I commend this order to the House.