NHS: Healthcare Data

Lord Hunt of Kings Heath Excerpts

Thursday 6th September 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure for me to follow the noble Lord’s excellent and visionary speech. First, I declare an interest as president of GS1, the barcoding association, which is involved with the department of health and the Scan4Safety and procurement efficiency programmes.

The noble Lord spoke with great force, all the more for being a patient advocate. Clearly, the opportunities that we have through the effective use of data must be seen not just in terms of a contribution to UK plc but, crucially, in terms of better outcomes for patients. I wholly endorse what he says. I like the concept of making the most of the value that can be generated through the use of this important data, and of taking full advantage of it as a health service and as a country. However, we face a conundrum, which is the public’s attitude to the use of their data.

The noble Lord said—and I agree—that we should put trust in patient demands to have their data used to full effect and for it to be regarded as unethical if it is not. He went on to say that we should engage patient representative groups, clinicians and the wider public sector, as well as the general public, in establishing the priorities for using healthcare data and reinvesting its value. He also said at a later stage that if the public want to opt out of allowing their data to be used in the ways that it can be, that must be respected. That is crucial.

We know from the work of the Parliamentary Office of Science and Technology, among others, that public trust in the governance of data is considered to be crucial to the use and expanded use of medical records for health research and management. We also know from surveys that the public are strongly in favour of the use of this data, but concerns remain. These are about the use of data without consent, the use of identifiable data, data security, a lack of transparency, potential discrimination by employers or insurance companies, and access by commercial organisations. Because of those concerns, some patients might withhold information from healthcare providers, and that of course could well be detrimental to their own health and that of other patients and to the quality of the data being collected.

The King’s Fund analysed the implications of these developments and said that it felt that national policy has been to keep a balance between responding to legitimate public concern about security and confidentiality of data, and enabling data to be shared and used by NHS organisations and third parties. I think that that is the right approach. Of course, you run into problems when you see previous attempts at data sharing in the NHS, such as Care.data, which was an unmitigated disaster. More recently, thousands of pieces of information about data were leaked by companies this summer, I think in July.

The problem is that other instances which may occur in the future will or could reduce public confidence. Is the Minister confident that the NHS is in a fit state? I take note of the Secretary of State’s comments this morning about the lack of progress that has been made in the use of IT generally in the health service. Is the Minister really confident that the service can tell the public that their data is secure? Secondly, can he deal with the problem that the public are finding that trying to opt out of certain information collections is becoming more difficult? I am indebted to medConfidential for this information. My understanding is that post GDPR and post new opt-outs, NHS Digital’s release register confirms that in two-thirds of releases patient opt-outs are ignored.

I shall give another example. There is no way apparently for a parent to make a consent choice for their dependent child using the online service. Instead, NHS Digital tells parents to send four forms of ID by post to their processing centre and that it will consider the request. I am fully behind efforts to use NHS information to the fullest extent and to make the most value out of it, but we will go down a wrong path if we make it difficult for the public to opt out where they want to do so. We know what will happen if there is a campaign— campaigns have been run previously. Care.data was a great example of a campaign run by a media outlet which has had a negative impact on the development of shared medical records within primary care. It may be painful, but more work and more ability for patients to opt out will in the end lead to the noble Lord’s vision being achieved.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

Debate on whether Clause 1 should stand part of the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I was not able to be present at the Second Reading and I have recently been apprised of concerns by the Residents & Relatives Association about care home residents without mental capacity who, they believe, are at risk of being let down by some of the proposed changes in the Bill. At Second Reading, the noble Baroness, Lady Tyler, mentioned that the timing of the Bill had taken many by surprise and added to that the rather pick-and-mix approach of taking some aspects of the Law Commission proposals but not others, which means that extensive scrutiny is well deserved. Unfortunately, the scheduling of the first day of Committee so soon after we came back means that many of the briefings from key stakeholders have come too late and we have not been able to translate them into amendments. So I thought it might be useful if I used a debate on the first clause to discuss some of these issues.

In particular, let me make it clear that I do not disagree with the aim of the Bill. I support its general intent, and therefore the aims of Clause 1, but there are some real concerns, particularly with the Government’s decision to depart from the Law Commission proposals regarding the role of care home managers. There are some real concerns here: first, the conflation of care planning with significant deprivation-of-liberty decisions; secondly, the burden and risk being shifted to providers; thirdly, the inherent conflict of interest being placed on managers and providers in the design of the new system; and fourthly—this came up at Second Reading—the capacity and capability of the sector to implement the proposals.

These concerns emanate from the decision to move responsibility to form the new assessments from local authorities to the care provider. This means that, in effect, care managers will become responsible for organising and conducting the assessments necessary for the liberty protection safeguards, when they are responsible for that person’s care. The Department of Health’s argument is that all it is doing is taking the Law Commission’s proposition that care planning should be at the heart of the new model, but the Law Commission did not say that these assessments should be done by care managers. In any case, if we are talking about a preventative approach, and if the aim is for assessments to take place prior to admission, which I think it is, one has to ask how it can possibly be appropriate for the care home manager to do that job.

The reality is that care home managers will have the responsibility to make crucial decisions about restricting a resident’s freedom that were previously made by independent people. The assumption seems to be that the resident’s best interests will generally coalesce with that of the provider, but we know from experience that that is not necessarily so. The Relatives & Residents Association, which has a helpline that receives lots of calls from anxious relatives and friends, points out that currently, families can be in conflict with the care home when the resident and their next of kin or lasting power of attorney may wish to move elsewhere, about who may or may not visit, and about whom they may or may not wish to see. This sometimes results in relatives or friends being restricted or banned, or residents being given notice to quit by the care provider.

These examples alone ought to give rise to concerns about what could be described as draconian powers now being given to care home managers. The responsible body makes its decision having regard to the report by the care manager and supporting evidence, but there is no requirement that I can see to have regard to other evidence. Although the responsible body must be satisfied that the care manager has been through the process in the Bill, the impact assessment suggests that this will be merely a desktop exercise. I would be glad if the Minister could confirm that, or say just what it is that the local authority can undertake. At the moment, on the face of it there is a massive conflict of interest with no external checks if the manager reports that the person is not objecting. That would, for instance, open the door to collusive relationships between the home and relatives.

There is then the question of training, which was raised at Second Reading by a number of noble Lords. We have already heard that there were problems with people in the field understanding the requirements of the existing legislation. What is now being put forward is, in my view, in many ways a more demanding and wide-ranging process, certainly in the care sector. Despite the statement in the Government’s impact assessment that they have engaged with service providers, it is noticeable from the briefings we have received in the past two days from many care providers that they too are very concerned about the responsibilities being placed upon them. The consultation seems to have been selective, in that the people who were consulted do not appear to speak on behalf of the sector. Again, it would be useful to nail this one as we go through our debates.

The impact assessment assumes a zero cost to homes and that half a day’s training will suffice. Surely the Government cannot be serious about that. Are they really saying that these new responsibilities can simply be subsumed into the everyday business of care homes at the moment? That surely gives the lie—the concern is that the deprivation of liberty in relation to people covered by this amendment Bill is not being taken seriously enough.

Over the weekend I read a briefing from a national group of regional deprivation of liberty safeguard leads, who should know a thing or two about this. They point out that, as we know, the provisions relating to care homes were never part of the original consultation, and that at no point have local authorities had an opportunity to road test how taking on such a significant assessment role would work in care homes. They say that this is all the more important because the Bill leaves the detainer determining whether the conditions for detention are met, and again, this potentially creates a conflict of interest and risks a return to the state of arbitrary detention.

In summary, it is not appropriate to give care home managers these new and inappropriate responsibilities for vulnerable and often isolated residents for the following reasons. First, they clearly require the care home manager all too often to be judge and jury about decisions in which they were involved, and in which the viability of whose business may depend on income received from detained patients. Secondly, the state of the sector surely gives rise to concern. I know that there are some fantastic care homes, but one in five has no registered manager in post, despite this being a mandatory requirement, while turnover is estimated to be a massive 27%—and they need only half a day’s training. That is simply not believable.

I question whether care managers have the background, time or training to carry out this onerous role. I also question why care home residents, who are surely part of the community, are being treated differently from peers living in their own homes who may be equally vulnerable. This is worth a more general debate, although I recognise that there are amendments to come. However, the Government need to think again and at least explain in rather more coherent terms why they think it is reasonable for care home managers to carry responsibilities which have built into them clear conflicts of interest.

--- Later in debate ---

In a further group, we will have the opportunity to discuss the reasons for doing this, as well as the role of the care homes, the arguments and the reasons, the responsibilities, the authorisations, regulatory functions and so on, which is why I have not touched on them here. On that basis, I do not think we should be stopping what we are doing. We have a responsibility to make sure we proceed to fix what is clearly a faulty system to the best of our ability so that those people who are currently being denied justice will not be. On that basis, I hope that the noble Lord, Lord Hunt, will withdraw his opposition to Clause 1 standing part.

[Lord Hunt of Kings Heath]

I am grateful to the Minister, although I am reeling from the shock that he thinks that I called for a second Second Reading debate to take place on a Clause 1 stand part discussion.

I of course agree that the current system is not fit for purpose. I agree with the Minister and with the noble Baroness, Lady Finlay, and other noble Lords. I agree with the need for a streamlined system, but it has to be the right system. I say to the noble Baroness that one of the briefings that I received was from 39 Essex Chambers, which is pretty expert in this area. It was a very interesting piece by Victoria Butler-Cole which sets out seven changes to the Mental Capacity (Amendment) Bill that the courts are likely to make unless Parliament gets there first.

We have to be very careful that in wishing to support the Government to get a streamlined process through we do not build in mistakes and errors that, rather like the Cheshire West decision, will lead to the court, and then to further legislation. In her piece, Victoria Butler-Cole says that the Court of Protection has a record of rejecting capacity assessments conducted by consultant psychiatrists with years of training in mental health and specifically in relation to the MCA. The Bill permits care home managers to assess capacity in this context. There is no way that will withstand scrutiny by the court, and there are likely to be even more cases in which assessments of incapacity are overturned as care home managers with little or no relevant training are required to carry out what can be a complex task. That seems to me to be the problem.

I know that this has to be signed off by the local authority. The impact assessment makes it clear that in the vast majority of cases that will be a desktop exercise. That does not fill me with confidence that these assessments will be scrutinised effectively by local authorities which themselves are very hard pressed. That is why I think that, when it comes to the detailed amendments, this is a very important part of this legislation. We need to be very careful to ensure that this is going to work effectively.

On training, the noble Lord has made some very welcome comments, but I refer to the fact that there is an annual turnover of 27% in this sector among the people who are going to have to do this work. I say to the noble Baroness, Lady Murphy, that I was trying to be polite. This is a very vulnerable sector, with low-paid people who have low qualifications being asked to deal with issues to do with the fundamental liberty of people in this country.

My gut feeling is that it will not do. This cannot be left to care managers. The Government will have to look again at the Law Commission’s assumption that local authorities would do the work. I of course do not wish to prevent Clause 1 standing part of the Bill.

[Baroness Barker]

My Lords, I hope that it is permissible for me to rise again. For the avoidance of doubt, will the Minister confirm that I understood him correctly? Is he saying that the role of the care home manager has not changed? I understand that, under the existing law, a care home manager may request that somebody’s capacity be assessed, but that assessment is not usually done by them. That assessment is done by somebody else. Is he saying that that is not going to change? I am sorry, but I think it very important that noble Lords understand what the Minister says.

[Lord O'Shaughnessy]

In answer to the noble Baroness’s question, the point that I was making is not that the role of the care home manager will not change but that they are not being asked to do something of which they have absolutely no experience or responsibility for at the moment. As the noble Baroness, Lady Finlay, pointed out, care home managers are already required to make applications and to consider capacity and restrictions, so they already have a role. The distinction is that, as the Bill sets out, the assessments can be made within the care home itself—of course, not by a person with direct responsibility for care. That is one of the issues, of avoiding conflict of interest. In all cases, those will be authorised by the local authority. If there is any reason, through that authorisation, for concern—for example, of conflicting views between the person cared for and their family—then the AMCP, the mental capacity professional, will have the opportunity to decide on the right course of action. That is what I meant by escalate—not that there is a choice of whether to escalate authorisation to the responsible body, as that will happen in all cases, but that there is a further opportunity for consideration by an AMCP if there is any sense of this happening. We will explore in more detail in future groups whether there is a reason for further investigation, including, of course, speaking to the cared-for person, their family and others.

[Lord Hunt of Kings Heath]

With regard to what is going to be a desktop exercise, the question then arises as to how the local authority will know that there are concerns. On conflicts of interest, it seems that the job of the care home manager is to make sure that their home is filled. There is a fundamentally wrong issue here. The initial assessment will be done by someone with a financial interest in its outcome. It is wrong.

[Lord O'Shaughnessy]

Perhaps I may say that to some extent we are getting ahead of ourselves, because we will explore these issues in further amendments. There is clearly already a system in place, which will continue and will be enhanced, to make sure—whether it is through family members and others with an interest, or, as we have discussed before, through those with a lasting power of attorney—that those who have an advocate working for them are able to register their concerns, objections or whatever it is through the process. So it is not simply the case that the care home manager would be able to wrap up the entire discussion and not let any other point of view be heard—quite the opposite. And, as I said, we will discuss that in further detail.

On training issues, addressing the second point talked about by the noble Baroness, Lady Thornton, she is quite right. That is precisely why I said that it is important for us, the Government, to explain, on the basis of consultation with the sector, what will be required to make sure that those who will have these extra responsibilities will be able to exercise them properly. We will discuss that outside this Chamber. I know that noble Lords want to make sure that, where there is a proposed change, even if they still require some reassurance about the benefits of such a change, it will be implemented properly. Clearly, that has big implications for training, capacity and so on. So we will take that away and make sure that we are able to provide more detail on it.

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[Baroness Tyler of Enfield]

My Lords, I rise briefly to support this group of amendments. I strongly support bringing 16 and 17 year-olds within the scope of the Mental Capacity Act, and support the proposed amendments to the authorisation and safeguards scheme. I will raise a couple of points, and I would be grateful if the Minister were able to provide some answers or reassurance.

First, clarity will be needed on the role of those who currently have parental responsibility, and how that will fit in with the proposals that are being put forward. Secondly, we need to make sure that there is a fully co-ordinated and joined-up approach across a number of different pieces of legislation. I have already talked about the join-up between the Mental Capacity Act and the Mental Health Act, but I am conscious that, when we are looking at 16 and 17 year-olds, we need to look also at other legal mechanisms that authorise a deprivation of liberty, such as Section 25 of the Children Act 1989, and at how the model dovetails with legal frameworks for the provision of care and support, such as education, health and care plans under the Children and Families Act 2014. So I would ask for some reassurance that someone is looking at the join-up with other relevant bits of children’s legislation.

[Lord Hunt of Kings Heath]

My Lords, I would like to follow that up. Clearly, the Government accepted in principle that these provisions should extend to 16 and 17 year-olds but then entered the caveat that,

“changes will need to carefully consider wider rights”,

as the noble Baroness has said. The Government said then that they would consider these matters carefully before bringing forward legislation. The question I would like to ask is: how far has that work got, and is there a prospect of seeing legislation in the reasonable future in relation to it, or is this our opportunity? Other opportunities may not come for some time to come. I realise Ministers are reluctant to commit themselves to particular legislation, but it would be helpful to the House if the Minister could at least give some indication of the work that is now being undertaken and when it is likely to come to fruition.

[Lord Touhig]

My Lords, the Law Commission supports this and I certainly support the amendment as tabled by my noble friend Lady Thornton. Including 16 and 17 year-olds would offer some legal protection for organisations such as the National Autistic Society, of which I am a vice-president. We do a huge amount of work with young adults and strongly believe that this is important for them—for their work and for their future. This was raised during Second Reading by a number of people—I was one of those who raised the matter. The Minister indicated that he would look at it and, indeed, in a letter from him on 24 July, he said:

“During my speech I indicated that I would like to reflect on the matter of how the model could fit with 16 and 17 year old young people”.


Perhaps, when he gets up, he will have some good news for us.

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[Baroness Finlay of Llandaff]

My Lords, I support the principle behind Amendment 8 in particular. Perhaps this is something the Minister will want to view as going in the code of practice, as I am not sure that putting this on the face of the Bill is necessarily the right place for it—although I completely understand the sentiment, which is to avoid serious risk. We live in a risk-averse system, and it is serious risk that we must be concerned with.

A case that I heard about in the last few days came to mind. An elderly lady with dementia became extremely agitated when it snowed. Because of her tendency to wander, she was not going outside unescorted. A conversation with her son revealed that she had been a meteorologist, so her view was that when it snowed she had to go outside and measure the depth of the snow and telephone the Meteorological Office. What they did was simply wrap her up really well, let her go out and measure the depth of the snow, give her a telephone and let her make a mock phone call to the Meteorological Office. She was very calm and happy. You do not want her to go wandering because she is near a main road and a railway line and all the other risks, but it was not a serious risk to let her out in the garden, well-wrapped up when it was snowing. That illustrates the granularity of the need to take appropriate decisions focused around the individual person.

Other cases that do concern me are those people who will become sexually disinhibited when exposed to great temptation. That struck me about a case I came across in a home for people with a history of sexual offences. There had been a DoLS in place for somebody not to go unescorted through woodland because, if he came across a young girl on her own in woodland, his sexual drive would overcome his rational behaviour—exposure to porn sites would also overcome his rational behaviour. However, the rest of the time, he could live well. Sadly, that DoLS was apparently overturned by the Court of Protection and, within weeks, he offended and ended up being imprisoned for his offence, but he had been living well with an enormous degree of freedom prior to that point. I think that the serious risk to the cared-for person has to be considered, because there the risk to him was that he would offend and, sadly, that came true.

I hope that the Minister will look sympathetically on the sentiment behind this.

[Lord Hunt of Kings Heath]

My Lords, my Amendments 27 and 28 follow the same lines of argument that we have heard from the noble Baronesses but relate to paragraph 16, “Determination that arrangements are necessary and proportionate”, on page 12 of the Bill.

I know the Minister will refer us back to Section 4 of the Mental Capacity Act, which is very comprehensive in defining what “best interests” are. Clearly, the intention is that, because it is stated there as a principle at the front of the Act, that permeates through all of the issues that we will be discussing in this amendment Bill. There is always an issue when you have an amendment Bill. It is not incorporated in the principal Act and is quite difficult to follow. It will be difficult to follow for the practitioners who are going to have to operate the new provisions. This must relate, too, to the code of practice. We seek certain reassurances that it will be made clear to the people at the front line who are going to operate it that the best interests provisions in this amendment Bill will apply equally.

What is confusing is the wording “necessary and proportionate”. In a sense, the Government are saying there is a qualification—that things have to be necessary and proportionate. I wonder whether that is helpful. It is confusing that we have a qualification of necessary and proportionate, but in the principal Act it is “best interests”. Clearly, these are probing amendments, seeking to tease this issue out, but I wonder whether the Government could give further consideration to how we can ensure that everyone involved is very clear that the best interests apply.

[Lord Touhig]

My Lords, at Second Reading I expressed the hope that the Government were in listening mood. They certainly needed to be. To be fair, the Minister and his team are to be congratulated on the level of engagement that they have been willing to participate in to help us perhaps make a better Bill at the end of the day. But—there is always a but—the Bill might have had a smoother passage if the Government had published an equality impact assessment. They are yet to do so; perhaps the Minister can tell us why. Many concerns have been expressed in debate on other amendments, which might have been assuaged—and we might have made more progress—had such an assessment been available to us.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Baroness, Lady Hollins. As she eloquently said, the puzzle relates to paragraph 17 of new Schedule AA1 on consultation, which references those who must be consulted. The aim of the consultation is,

“to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements”,

but the paragraph does not specify that the cared-for person must be consulted. The Minister might just refer me to Section 4 of the Mental Capacity Act and say that it is covered there, but so are the provisions in sub-paragraphs (a) to (e) in paragraph 17(2)—they are all listed in the best interests test. Therefore, the puzzle is why the Government have decided that there should be no attempt, at least in statute, to seek the cared-for person’s wishes and feelings. We are already concerned that these measures are not focused on the interests of the cared-for person; they are about streamlining bureaucracy and saving money, and this rather lends to that suspicion. I hope that the Minister will be able to agree to the noble Baroness’s amendment, because it is a very important symbol of what this is really all about.

[Baroness Thornton (Lab)]

My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.

I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.

First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.

Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—

[Lord Hunt of Kings Heath]

I understand the Minister’s argument, were it not for the fact that the amendment, in paragraph 17(2)(a) to (d), just copies what is already in the best interests clause. I would argue that, if we are going to copy four of those, why do we not copy the issue about the cared-for person being listened to? The Minister is arguing different points from amendment to amendment on this.

[Lord O'Shaughnessy]

We try to be consistent, but it is not always possible. The noble Lord makes a good point; it is something that I would like to explore further.

Turning to the matter of considering less intrusive arrangements, again this is incredibly important. Case law establishes that the test of whether the arrangements are necessary and proportionate must also include consideration of whether less intrusive arrangements are available and have been fully explored. As we discussed in the last debate, it is already a principle under the Mental Capacity Act. The code of practice will provide further detail about how that will work in practice.

This has been a useful debate, continuing, in some ways, the previous debate on best interests. As we have all agreed, it is important that the person’s wishes and feelings are at the centre of arrangements being proposed. That is certainly our intention through the liberty protection safeguards scheme that we seek to introduce. I want to continue working with noble Lords over the coming weeks to make sure that there is clarity that that is the case. I hope that on that basis, the noble Baroness will be prepared to withdraw her amendment.

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[Baroness Hollins]

My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.

I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.

I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.

The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.

I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.

Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.

Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:

“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.


I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.

The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.

ADASS has stated:

“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.


Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.

General Practitioners: Indemnity Scheme

Lord Hunt of Kings Heath Excerpts

Monday 16th July 2018 Lords Chamber

[Lord O’Shaughnessy]

My noble friend makes an excellent point and I will certainly do so. There is an attempt not just to recruit many more GPs into service but to recruit them into hard-to-reach areas, such as rural areas, through a targeted recruitment campaign. I am sure that that is one of the areas that we will want to look at.

[Lord Hunt of Kings Heath (Lab)]

My Lords, is it intended that locums will be covered by the scheme?

[Lord O’Shaughnessy]

My understanding is that the scheme is for all providers of primary medical care services under GMS, PMS and APMS contracts.

The NHS

Lord Hunt of Kings Heath Excerpts

Thursday 5th July 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is an honour for me to wind up for the Opposition in this debate. Because I am going to refer to NHS management, I remind the House of my presidency of the Institute of Healthcare Management, the Health Care Supply Association and the Hospital Caterers Association.

I start by expressing my thanks to my noble friend Lord Darzi for his magisterial opening speech. The vision that he set out was profound and inspiring in urging us to revitalise quality as the organising principle of health and care, investing in health and not just healthcare and investing in the talent of our staff as well as tilting, as he said, towards technology to create a digital-first health and care system. My noble friend Lord Bhattacharyya really very much reinforced that. He also said something very important—that he saw the NHS as the expression of a moral principle that no one should be denied healthcare because of their means. I could not help thinking that Nye Bevan would have approved. In his essay “In Place of Fear”, he uncannily anticipated the wretched outcome of the Government’s attempt to marketise the NHS when he said:

“Preventive medicine, which is merely another way of saying health by collective action, builds up a system of social habits that constitute an indispensable part of what we mean by civilization. In this sphere values which are in essence Socialist challenge and win victory after victory against the assertions and practice of the competitive society”.


Amen to that, my Lords.

The intervention from the noble Lord, Lord Lexden, in response to the noble Lord, Lord Pendry, about the history of the Conservative Party and the NHS was very interesting. However, at the end of the day, the party voted 21 times in that Bill on the formation of the NHS. I say to the noble Lord, Lord Lexden, that I think Bevan was entirely right to believe that Henry Willink’s plan to leave the voluntary and local authority hospitals in their existing ownership would have led to a much patchier and second-rate service.

The remarkable speech of the noble Lord, Lord Hennessy, recalled the profoundly positive impact of the lifting of the financial fear of the consequence of illness. It is right to celebrate that—but I am with noble Lords who want a sober analysis of the NHS and the challenges that it faces. The BBC should be commended on commissioning a report on the relative strengths and weaknesses of the NHS from the Health Foundation, the IFS, the King’s Fund and the Nuffield Trust. You could not look to better institutes than that for it—and it was sober. It said that, although the NHS leads the world in terms of equity of access and ensuring that people do not suffer financial hardship and performs well in managing long-term conditions, such as diabetes and kidney disease, and is relatively efficient compared to other systems, outcomes are its Achilles heel.

Although the NHS is closing the gap in a number of areas, we still lag behind in saving lives when treating many of the leading causes of death, including several types of cancer, heart attacks and stroke. It is comparatively poorly resourced. I do not think that having average GDP spend for the whole of Europe is actually anything to be proud of, given that we are the fifth or sixth-wealthiest country in the world. We are poorly resourced. We have markedly fewer doctors and nurses than comparable health systems. We have the lowest number of hospital beds, CT scanners and MRI scanners. We are one of the slowest nations to take up new medicines and new developments. We have a long way to go. Although international comparisons are always subject to the caveat of being a partial picture, it is clear that we enter the eighth decade in uncertain health.

Funding is a clear issue. Of course we welcome the injection of £20 billion for the NHS over the next five years, but it is not the long-term solution that my noble friend Lord Winston and other noble Lords have called for. It is nowhere the near the 4% per year that most organisations reckon should be the base funding. Of course, that money does not cover public health, training, capital spending and social care.

All my noble friends have talked about the need for a fundamental change in social care. The Green Paper is awaited in the autumn. All I have to say to the Government is that they had better deliver on this. Frankly, there is no chance of integrated care in the way they talk about unless we deal fundamentally with the problem of the current means test and find a way to cap the cost for individuals having to pay for their own care. Nothing else will deliver the kind of integrated care that we need.

Noble Lords have talked to an extent about other forms of funding. The noble Baroness, Lady Finn, implied that we need to look at those. I repeat what my noble friend Lord Darzi said: by far the most efficient, dignified and lowest-cost way is to create a universal service free at the point of need. As he said, it is a fundamental error of logic to say that because something is unaffordable we should move to something more expensive and, indeed, more inefficient.

Noble Lords have raised many issues. On mental health and public health, I echo their points, but I want to end on the workforce. The NHS faces some pretty fundamental issues in relation to its workforce. One in nine nursing posts is unfilled and the number of unfilled vacancies among GPs is soaring, as is that of young doctors qualifying, leaving the NHS and going abroad. Morale is probably the most serious issue that we face. My noble friend Lord Parekh suggested, I think, that front-line workers were inhibited by managers. In my role as president of the Institute of Healthcare Management, I want to defend the role of managers in the health service, but I accept, as my noble friend Lord Darzi said in his report, that poor leadership and demotivated staff are a precursor of system failure. That echoes one of the most incisive reports on NHS leadership and management, by the noble Lord, Lord Rose, when asked to look at this in 2014. The Secretary of State did not like the response, so nothing happened because of it, but it talked about the,

“level and pace of change”,

being “unsustainably high”, with,

“the administrative, bureaucratic and regulatory burden fast becoming insupportable … The NHS has committed to a vast range of changes”,

but,

“there is insufficient management and leadership capability to deal effectively with the scale of challenges”—

that echoed what the noble Baroness, Lady Harding, said. However, I have to say to her that it is no good just blaming managers. There is a combination of overbearing regulators, an absence of leadership from Ministers, the complexity of the 2012 Act, the tightness of funding, the risk aversion and the widely prevalent bullying culture—which starts with the Secretary of State, with his insistence on sacking chief executives willy-nilly. It is no good the Secretary of State talking about bullying in the health service until he looks at his own behaviour and how he and the regulators relate to people in the service, because no one locally will believe in this unless the people they are answerable to change their own behaviour.

We come now to the issue of the disastrous Health and Social Care Act 2012. It was the most ill-conceived piece of legislation that the health service has ever seen. As was said earlier in the debate, in an extraordinary speech made on 18 June, the Prime Minister basically said that the Act was a disaster. She referred to clinical commissioning groups having to negotiate 200 different legal contracts with other parts of the NHS. That is ludicrous, costly and totally ineffective. I say to the Minister that the Government should consider bringing forward a Bill to get rid of the current bureaucracy and the enforced marketisation contained in the 2012 Act.

No one can pretend that the future is going to be easy for the NHS and social care. The challenges are formidable and the solutions are tough. Moreover, the demands will not go away. However, the NHS is resilient. It has brilliant people and it enjoys huge support. My noble friend Lord Darzi said that in 30 years’ time, he hopes to see the centenary of the NHS. I am pretty confident that he will and that the people of this country will demand nothing less.

Health and Social Care Act 2012

Lord Hunt of Kings Heath Excerpts

Thursday 5th July 2018 Lords Chamber

Asked by

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government, in the light of the Prime Minister’s criticism of the regulatory framework established under the Health and Social Care Act 2012, what plans they have, if any, to bring forward measures to amend or repeal that Act.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

My Lords, the Government have announced a five-year funding settlement, and we have asked the NHS to develop a 10-year plan to transform health and care. As my right honourable friend the Prime Minister said, as it develops its plan we will listen to the NHS about whether there are any barriers created by legislation. We will consider, after that, what changes may be needed.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in her speech on 18 June the Prime Minister referred to chief executives of NHS organisations having to make so many reports to different regulators that they have no time to improve their own organisation, and to a typical clinical commissioning group having to agree 200 contracts with other parts of the NHS. Is not the answer to the first question from the noble Lord, Lord Hamilton, that the NHS, employing 1.3 million, is not hard to manage, but the fact is that the Government have bequeathed to it an organisational structure that is dysfunctional and costs billions of pounds? If he really wants to help the NHS, will the Minister not come forward with a Bill to repeal the Health and Care Act 2012?

[Lord O'Shaughnessy]

My Lords, since the 2012 Act was passed, there have been some significant improvements in NHS performance, not least in cancer outcomes, for example. There are also around 42,000 more staff since 2010. So improvements have clearly been able to happen within the legal framework set by Parliament in 2012. Nevertheless, we recognise that as the service is required to become more integrated and people across different care functions are required to work together, we need to look at the structure. There is already joint working, for example, between NHS England and NHS Improvement at the regional level. But if the NHS identifies any barriers, we will look at those.

Branded Health Service Medicines (Costs) Regulations 2018

Lord Hunt of Kings Heath Excerpts

Wednesday 20th June 2018 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

That this House regrets that the Branded Health Service Medicines (Costs) Regulations 2018 do not propose any action to be taken in respect of the high cost charged by Concordia and other companies for the drug Liothyronine for the treatment of hypothyroidism, thereby depriving patients of the use of that essential drug, and further do not put an end to the practice of a growing number of Clinical Commissioning Groups refusing to follow the latest guidance from NHS England on making that drug available to NHS patients via referral to thyroid specialists (SI 2018/345).

[Lord Hunt of Kings Heath (Lab)]

My Lords, ensuring that patients get quick access to the most effective drugs ought to be one of the essential aims of any Government in relation to the NHS, yet we know that NHS patients are at a serious disadvantage when compared to patients in, as an immediate example, Germany and France. This of course was a major subject in our debate on the Health Service Medical Supplies (Costs) Bill, from which these regulations emanate. While the eventual Act came about because of concern about certain companies abusing their position in relation to the prices of drugs, we also kept our focus on the overriding need to ensure that patients had access to effective medicines. This becomes ever more important at a time when clinical commissioning groups are being seen to ration services more and more widely. I want to bring to the House’s attention a clear example of clinical commissioning groups ignoring guidelines in relation to this area—an extremely common condition—with many patients suffering as a result.

The regulations before us permit the Secretary of State to control the costs of branded health service medicines for companies that do not belong to the voluntary 2014 Pharmaceutical Price Regulation Scheme, belovedly known as PPRS. The regulations set out details of the new scheme. They do not identify specific companies or branded medicines. No doubt the Minister will point out that they apply only to branded medicines, while the medicine that I am dealing with tonight is a generic medicine. It is a device to enable us to debate this important point. However, the fact that the Government brought the legislation to Parliament and are bringing the regulations here shows that they understand that there was a need to deal with abuse in the case of branded medicines. One of the questions I want to put the Minister is: what about generic medicines? How do we ensure effective early action when it becomes likely, or obvious in fact, that some companies are taking the NHS for a ride?

Liothyronine—or T3, as I will call it, because it is a lot easier to pronounce—is the subject of my Motion. As many as one in 20 people in the UK is affected by thyroid disease. The symptoms of an underactive thyroid, which is the most common condition, are serious and require daily medication. Most patients resolve their symptoms with the standard medication, levothyroxine, otherwise known as T4, but there is a subgroup of patients for whom T3 can be an effective option.

T3 was de-branded in 2007, at which point its cost started to increase. Normally, after de-branding, the cost comes down. By July 2017, the cost had increased by a massive 6,000%. The price per pack had risen from £4.46 to a massive £258 in 10 years. Whereas prices on continental Europe range from 2p to 26p, the NHS pays more than £9 per tablet—this is a tablet that needs to be taken daily.

Concordia was the only manufacturer with UK marketing authorisation until very recently. Throughout the price increases, I understand that there was no intervention by the Department of Health until it referred the matter to the Competition and Markets Authority in 2016. In November 2017, the authority provisionally found that Concordia had abused its dominant position to overcharge the NHS by millions for this essential thyroid drug.

A final decision is still awaited. My understanding—I should be grateful if the Minister could confirm this—is that no intervention will be taken by the Department of Health until the final decision is made. Pace our previous debate about why Governments sometimes hold up making decisions while inquiries are ongoing, that reflects some of the problems in Gosport, which we are now seeing in a totally different area.

The trouble with the delay is that patients are suffering. Because of the high cost, in 2017 NHS England ran a consultation under the title Items which should not Routinely be Prescribed in Primary Care: A Consultation on Guidance for CCGs. T3 was included in the list to be considered as an effective product subject to “excessive price inflation”. The issue was not the effectiveness of the drug; it was the fact that it was costing so much money.

There was a lot of consultation, including submissions by the British Thyroid Association and Thyroid UK that T3 should continue to be prescribed in primary care. However, NHS England’s recommendation was:

“The Joint Clinical Working Group therefore recommended the prescribing of liothyronine for any new patient should be initiated by a consultant endocrinologist in the NHS, and that de-prescribing in ‘all’ patients”—


in other words, patients who were already on T3—should not automatically occur,

“as there are recognised exceptions. The recommendation would therefore be changed to advise prescribers to de-prescribe in all appropriate patients”.

So the consultation led to a change in the guidance.

But you have to read the guidance very carefully to understand what it is saying, and it is clear that, to put it at its kindest, clinical commissioning groups have perhaps misunderstood what the guidance stated. That has led to many of them informing clinicians in both primary and secondary care to withdraw T3 from all patients, some of whom have been prescribed it for years, and not allowing them to initiate a prescription, or to offer to refer it to an endocrinologist, as the latest guidance states that they should.

This is causing many patients a great deal of distress. It is making them ill again and impacting on their social and mental welfare. As the Thyroid Trust has pointed out, that is compounded because many GPs are not following treatment guidelines to fine-tune the dose of the standard medication for these conditions or to refer patients to see a specialist if well-being cannot be restored in primary care.

Where T4 is not working, it is important that T3, in combination or in its own, can be prescribed. Some patients are appealing against the decision of their CCGs, but this is daunting for an individual patient to do. I have had one description today, who said: “Applying for T3 is like wading through treacle with your legs tied together”. What is particularly difficult for them is that the criteria for being an appropriate patient have not been listed. If you are appealing against a decision by a CCG, what chance do you have?

We know that at a meeting with NHS England fairly recently, it was admitted to patient groups—Thyroid UK and the Improve Thyroid Treatment Campaign—that what happened was not its intention; its intention was to reduce regional prescribing variations. Both organisations have asked for further guidance for CCGs whereby CCGs understand what they should be doing.

In a debate in the other place and in the noble Lord’s Answer to me, Ministers have said that the South Regional Medicines Optimisation Committee has been considering the issue further and that it will issue a statement in due course. Has this august body issued such a statement? You can find this organisation on the web. It is not very transparent. At its January meeting, the matter was discussed and the minutes of that meeting are on the web. The papers have not been made available. There was a further meeting in May when this matter was on the agenda, but the minutes have not been made available, so the latest we have is what happened in January.

The list of members who attended the January meeting is there, and it is noticeable that 21 professionals attended the meeting with one lay member. Yet the terms of reference of these committees is to look at the outcome of medications for the benefit of patients. It is clear to me that it is a rationing body. Let me take one example. We already have guidance, but the committee was most taken by the fact that a sub-part of the south- west had produced its own guidance. Why is a subgroup of the NHS producing its own guidance when guidance is nationally based?

Patients are left in a hopeless position. It is clear that T3 should be initiated by an endocrinologist, but not what happens afterwards. That is being left for CCGs to work out for themselves, often to the detriment of the patient. Some endocrinologists are saying that they cannot prescribe because the CCG has said no. Some are prescribing, but patients have to visit them for their prescriptions thereafter. Some are trying unsuccessfully to pass care on to GPs, but GPs are saying that they cannot take over care without CCG permission. It is a Catch-22 position.

Some clinicians are helping patients by giving them private prescriptions, but these are expensive. The Brighton and Sussex University Hospitals NHS Trust is informing patients that their only option is to obtain the drug privately. For an NHS body to advise patients as such goes against the whole ethos of the NHS. I must say that I am very surprised at the trust doing so.

I received details yesterday through Thyroid UK of a patient who is looking for a price to purchase T3 privately. She contacted Pharmacy2U and asked for a price for 56 T3 tablets. From four suppliers, only one could supply and that price was £774. That was for 56 tablets, one a day.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the Minister and to other noble Lords who have taken part in this interesting debate. The noble Lord, Lord Borwick, really put his finger on it when he said that the key point is the misinterpretation of guidance. As my noble friend Lord Turnberg said, essentially, the system has gone the wrong way about this. Instead of trying to deal with the prices, guidance has been produced that is pretty restrictive and then CCGs have reinterpreted the guidance to make it even more restrictive. As the noble Baroness, Lady Jolly, said, the problem is that if you cannot drive down the cost of T3, the emphasis is almost bound to be on clinical restrictions, which are hard to start with and are then misinterpreted.

On the point raised by my noble friend Lady Wheeler, who asked a number of questions about the regulations before us, I just say to the Minister that I hope that the review, to be published in April 2019, could be shared with noble Lords in one way or another, because I think that there will be general interest in it. I am grateful to the Minister, because he said that the Government are committed to pursuing further with NHS England the way that the guidance has been interpreted. He has also promised me a progress report on the delightful workings of the south regional medicines optimisation committee, which I am sure all noble Lords will be very anxious to see. He has also invited us to send to him details of cases where there is clear evidence that the guidance is not being pursued. We will pursue that; it is all very helpful.

On the issue of pricing and competition, I very much take the Minister’s point about the unbranded generic market generally working well; I agree with him. Clearly there is an issue when it is not working well. One question I will put is whether the department should have intervened earlier; I think it might have done. Hopefully, in the future, it will be able to do so. On PPRS, the noble Lord, Lord Lucas, made a very interesting intervention—but, from my point of view, the PPRS agreement was a good one, as it basically stabilised the costs of branded drugs to the NHS because of the rebate scheme, which meant that, if the costs went above a certain limited level, the extra cost was paid back into the NHS. The problem is that it was not paid back to the NHS—it was paid to the Treasury, because it discounted in advance the likely rebate. The tragedy—and why this is very important in terms of future negotiations on PPRS—is that, if that rebate money had then been routed towards investing in new medicines, we would have had a win-win situation where, essentially, the pharmaceutical industry would have paid for its investment in new medicines. The noble Lord will know that one of the issues facing the branded pharma industry is that the NHS is a lousy customer when it comes to the uptake of new medicines. This is a separate issue, but one that is really important for the future.

Overall, I am very grateful to noble Lords who have taken part in this excellent debate. Considerable progress has been made and the commitments given by the Minister are very welcome indeed. I beg leave to withdraw the Motion.

Motion withdrawn.

Gosport Independent Panel: Publication of Report

Lord Hunt of Kings Heath Excerpts

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The noble Lord makes two excellent suggestions. His suggestion about whether cover-ups should count as serious professional misconduct will be something the regulators will want to consider, as is better training on the use and prescription of opioids. We have made some progress in recent years. The freedom to speak up guardians are in place, and we talked about the learning from deaths programme. There is also the duty of candour. They are clearly steps forward but the panel has exposed that we are still not there yet. The suggestions the noble Lord makes are good and serious and we will want to consider them.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I had ministerial responsibility for this area in 2002 and the beginning of 2003, which is reported in the report. First, I associate myself with the Minister’s remarks, his commendation of Bishop James and his panel and the apology that has been given. Reading this report, the question I think about is whether, if those circumstances arose now, the response would be very much different. I am not at all sure it would. First, the report shows the reluctance at local level to have what it saw as interference from the centre in causing inquiries to take place. Secondly, while the police investigations were going on the other inquiries felt they could do nothing, as the noble Baroness, Lady Jolly, said. Thirdly, once the police investigation had been completed and the decision that no prosecutions would take place had been taken, there was an agonised debate within the coronial system about whether inquests would be appropriate. The real issue seemed to be resources. The local coroner’s office did not feel that it had the resources to conduct the inquests and if it did so it would undermine the rest of its important work. In the work now being undertaken, will a real effort be made to grip the issue of the deadening impact of police investigations in stopping us learning lessons immediately? Is the Minister confident that the changes in the coronial system will prevent the kind of unseemly debate that prevented inquests taking place for some time occurring in future?

[Lord O’Shaughnessy]

I thank the noble Lord for associating himself with that apology. He asked the right question. It was very well put. If the circumstances arose now, would the response be different? I think there is reason to believe it would be, for the reason I have set out—the improvements that successive Governments have made on patient safety—but we should not be complacent. We cannot assume that those things are enough. I hope they are an improvement. We believe they are an improvement, but we need to ask ourselves that very difficult question about whether they would be enough. That is what we will be doing through this process.

Resources are one of the issues. We need to make sure not only that there is clarity about the circumstances under which the different bodies can carry out inquiries without impinging upon inquiries by other bodies, but that they feel that they are capable of doing so. That is one of the things we are going to need to investigate.

Education (Student Support) (Amendment) (No. 2) Regulations 2018

Lord Hunt of Kings Heath Excerpts

Monday 21st May 2018 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

That this House regrets that the Education (Student Support) (Amendment) (No. 2) Regulations 2018 extend the normal student maintenance regime to more categories of nursing students as a replacement for the NHS Bursary Scheme; and calls on Her Majesty’s Government to postpone the introduction of the Regulations until the current review of post-18 education and funding has been completed (SI 2018/443).

Relevant documents: 21st and 25th Reports from the Secondary Legislation Scrutiny Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, the huge pressure which the NHS is under is taking a massive toll on our nursing, midwifery and other health professionals. It has been estimated that the NHS in England has approximately 40,000 nursing vacancies, with a vacancy rate of over 10%. A similar rate applies to midwives, although the RCM estimates it to be higher, to reflect the number of babies being born. The other health professions covered by this regulation are similarly affected. More nurses and midwives are leaving the profession before retirement; one in three nurses is due to retire in the next 10 years. For various reasons, including Brexit, work pressures and the age profile of the nursing profession, the number of nurses and midwives on the NMC register at the end of March 2018 was less than that in March 2017 and significantly less than at the peak in March 2016.

The House of Commons Health and Social Care Committee inquiry found that the nursing workforce in England must be,

“expanded at scale and pace”,

and that,

“future projections of demand for nurses should be based on demographics and other demand factors, rather than on affordability”.

Given this, one would have thought that the Government would do all they could to support and encourage entry to these professions. Instead, they are doing the opposite, reflected in these regulations, by ploughing ahead with their plan to scrap bursaries for yet more students, despite knowing full well the disastrous consequences that will follow.

Two years ago, the Government scrapped the undergraduate bursary. The results were predictable. In 2016, before the abolition, there were more than 47,000 nursing applicants in England. In 2018, the figure fell to about 31,000—a fall of over 15,000. It is clear that this is the reason why we have seen the sharpest ever decline in nursing applications. I have no doubt that the Minister will say that the number of applications is less important than the number of acceptances. I disagree: I want nursing to be seen as a profession where there is hot competition for places because it is such an attractive profession to be in.

No doubt the Government will say that they have committed to create more training places for nurses. They certainly promised an extra 5,000 nursing places and said that nursing bursaries had to be scrapped to make that possible. What has been delivered is a mere 700 fewer students training to be nurses. It is worrying, too, that there has been such a huge drop-off in mature students applying—the extraordinary figure of 42%. The very people we need to apply, who have often brought up a family, are now being denied an opportunity to make a career in nursing or face the consequences of being forced into huge debt.

We know that postgraduate students in particular are more vulnerable to the introduction of fee loans: 64% of postgraduate healthcare students are aged over 25 compared to only 18% of students generally. Women are largely attracted to the healthcare postgraduate route and represent 80% of the course places. There is a higher percentage of ethnic minority students on postgraduate healthcare courses compared to the general population, and the Department for Education equality analysis clearly states that these groups are known to be more debt averse. So introducing loans is likely to undermine recruitment of this cohort and represents yet another missed opportunity to grow the nursing workforce at a time of severe shortage.

The Government claimed in the other place that raising the cap will unlock additional places, but it was the Government themselves who set the cap through their funding of Health Education England. They also say that they can fill some of the gap with nursing apprenticeships. They have promised 1,000 of them, yet only a handful have started the course. This shortfall is not the only problem with overreliance on apprenticeships. A nursing apprentice will take four years to become a registered nurse. Even if there were a miraculous surge in apprenticeships starting this summer, we would not see any qualified nurses on our wards until 2022. Contrast that with an undergraduate nursing course, which can take three years, or postgrad courses referred to in the regulations, which can take two years, which makes them the quickest way to tackle the shortfall in numbers.

Another solution the Government have come up with is nursing associates. But there is clear evidence that using support workers or trainees as replacements for qualified nurses has potentially disastrous consequences for care. I hope that the Minister will confirm that that is not the Government’s intention. The nursing associate is a support role and must not be used as a substitute for registered nurses. Research is clear that diluting and substituting the registered nursing workforce with nursing support workers has ill consequences for many patients.

In pushing ahead with this regulation, Ministers ignore their department’s impact assessment. The DfE’s assessment of the changes to the bursary said that it would disproportionately affect women and ethnic minority students, yet Ministers have pressed ahead. Then the department found that the change could make women, older students and students with lower incomes less likely to participate. Again, Ministers pressed ahead.

This is not just a matter of fairness or even just about the benefit of having a diverse working population. In fact, older nursing graduates, to take the nursing profession in particular, are more likely to stay longer in the NHS and are more likely to choose areas such as mental health or learning disability nursing, which are facing such severe staff shortages. Nearly two-thirds of postgraduate nursing students are over 25, more than a quarter are from minority ethnic groups and 80% are women, so the impact of today’s regulations will surely be even worse than the previous cuts.

I welcome the golden hellos to postgrad students in specific hard-to-recruit disciplines, but the Government need to do much more to financially support postgraduate students.

Even if the Government are determined to make the change, there are good reasons not to make it now. This policy would move postgraduate nursing students over to the main student finance system, which means dealing with the Student Loans Company. There is every reason to believe that that company may not be ready. In recent weeks, the Government have been dealing with an error made by the company that has led to 793 nurses being hit with unexpected demands to repay accidental overpayments they were unaware of. I do not know whether the Minister has seen the recent NAO report on the company, but that also gives great pause for thought about whether it is able to accept this new responsibility. It strikes me that, before embarking on these regulations, we have the flagship review of higher education. The Government could have allowed that review to take account of this matter, rather than going ahead with the change today.

My final point is about student finances in general, and the impact on the Government. How many postgraduate students affected by this policy will repay any or all of their additional loan? How is this financially sustainable? Or is it just another example of what the Treasury Select Committee called a “fiscal illusion”—in this case, a student financial system that allows the Government to pretend that they have made a saving when all they are doing is passing the Bill to the next generation?

It is little wonder that the devolved nations have retained the NHS bursary system. We in England should do the same. I beg to move.

[Baroness Walmsley (LD)]

My Lords, like the noble Lord, Lord Hunt of Kings Heath, we, too, oppose the introduction of these regulations—and for very similar reasons. It always makes sense to make policy based on evidence and on the advice of experts. This is what the Government have failed to do in relation to the funding of student nurses. The removal of the bursaries for undergraduate nurses has already considerably reduced the number of applicants, and the number of those taking up a place was 705 lower last year than the year before. Given the 40,000 nurse vacancies that the noble Lord mentioned, this is a serious matter for patient safety, as pointed out by the Care Quality Commission. I accept that these are only one year’s figures, but I believe that, before upsetting the apple cart even further, the Government should postpone removing bursaries from postgraduate nurse trainees and other important groups until we have clear evidence of the effect on the number of undergraduate student nurses.

If we want to increase the number of registered nurses quickly, which we need to do, it makes more sense to support the two-year postgraduate route, not put it at risk by removing those bursaries, too—because this is the quickest way to get more nurses. Most suppliers of the two-year courses indicate that capacity could be increased by 50% given the right financial support, yet the Government are planning to deter applicants by removing the bursary. This does not make sense. Instead, the Government are focusing on the two four-year routes into nursing, yet the apprenticeship route is not providing the expected 1,000 extra nurses per year. The most recent data tells us that there are only 30 apprentice nurses—hardly a success. Will the Government look into the barriers that are preventing NHS employers taking on apprentices? It could be the 60% cut in funding for further professional development, which has affected the number of those who would like to become training assessors and mentors for student nurses and apprentices.

Nursing associates have a role both as assistants to registered nurses and as users of an alternative four-year route into nursing—but, again, it takes a long time and these associates, as the noble Lord, Lord Hunt, said, should not while training ever be seen as substitutes for fully qualified nurses. So why are the Government planning to deter applicants for the rapid postgraduate route, where 64% are over 25, where they are predominantly women and where they are more diverse than the general student population? In a career such as nursing it would be advantageous to attract people with a little more life experience than the average 18 year-old.

Also, we know that older women and ethnic minority students are more debt averse, as well as already having a student debt of up to £50,000 from their first degree. Therefore, it is vital to look at how this fast route into nursing could be supported. The RCN tells us that, if the fees were paid and a modest bursary towards living costs provided, the total would be less than the average annual premium paid by trusts over a single year for a full-time agency nurse. This is short-termism of the worst kind.

While the Government carry out their review of post-18 education, they might benefit from looking at the measures introduced in Wales by Kirsty Williams AM, the Liberal Democrat Minister in the Welsh Government responsible for medical education. Her conversations with students revealed that the main concern and deterrent was not fees but living costs. Therefore, she has introduced the equivalent of the minimum wage for students during their course. This method of student funding should be carefully considered by the Government while carrying out their review, particularly for nursing students, who have more contact time than other students because of their clinical placement and therefore less time to get a part-time job to support themselves. Will the Government please consider this sensible idea?

The House of Commons Select Committee on Health and Social Care stated that the nursing workforce should be expanded at scale and pace to avoid dangerous levels of vacancies. It should be based on need and demand rather than affordability. It is up to the Government to say how the money will be raised, but from these Benches we recommend some sort of hypothecated taxation or a reformed national insurance scheme which is truly progressive and demonstrates intergenerational fairness. The Liberal Democrats are also in favour of restoring the bursaries for undergraduate student nurses and we are against these new regulations, which would remove the bursary from postgraduate nursing students and other important health professional courses.

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[Lord O'Shaughnessy]

That is quite right. That is fully funded clinical placements—just for the sake of clarity. I thank the noble Baroness.

There is understandable concern among noble Lords, which has been expressed previously in this House, about the new system of financial support, but I want to be clear that we are giving the group of postgraduate students that we are discussing access to undergraduate maintenance and tuition fee loans, just as we do with postgraduate teachers. This represents a more generous package of support than the postgraduate master’s loan. We are also making available additional funding for childcare, travel to clinical placements and exceptional hardship funding to ensure that the students are fully supported and are able to complete their studies.

Furthermore, as many noble Lords have mentioned and as the noble Lord, Lord Hunt, and the noble Baroness, Lady Watkins, welcomed, in the debate on the regulations in the other place on 9 May, my honourable friend the Minister of State for Health set out a range of additional support that we are investigating for postgraduate nursing students. This includes specific incentives such as “golden hellos” for postgraduates who go to work in mental health—where the noble Lord, Lord Willis, was quite right that we need to attract more nursing and where there has been a shortfall—the area of learning disability and community nursing. The Government have announced £10 million to support such incentives and we are considering how this should be best delivered.

Many noble Lords have expressed concern about the drop in number of undergraduate applications to nursing courses. We acknowledge that early indications from the latest UCAS data, published in April, show that the number of students applying to study nursing has decreased from this point in the cycle last year. However, that cycle is not yet over, so we need to apply some caution.

It is also worth noting, as noble Lords have pointed out, that there is a distinction between the decline in number of applications and that in the number of students starting their courses. That was exemplified last year, which showed a 23% drop in the number of applications compared to a 3% decline in the number of acceptances. That is regrettable, but it was still the second-highest number of acceptances on record. Several noble Lords have expressed their desire for further information on how this develops. I can confirm that my department has committed to publish an update in autumn 2018 following the close of the 2017-18 application cycle.

As the noble Baroness, Lady Watkins, pointed out, there is a global challenge to recruit more nurses. We are working hard to make nursing as attractive a profession as possible. As a result of constructive dialogue over recent months, NHS Employers and the relevant trade unions began a consultation exercise on a three-year pay deal for NHS staff employed under the Agenda for Change contract. Under the plan, the starting salary of a nurse will rise to £24,907 by 2021, not only rewarding current staff for the incredible work they do but sending a clear signal to the country about how much nurses are valued.

We are boosting the attractiveness of the profession in a number of other ways, too. Nearly 4,500 nurses have started the return to practice programme and 3,000 have completed it. Across the country, NHS trusts are developing arrangements for flexible working and there is a concerted effort to tackle workplace bullying through an NHS-wide call to action. Our homes for staff programme is supporting NHS trusts to dispose of surplus land to help up to 3,000 nurses and other staff access affordable housing. I hope that gives the noble Lord, Lord Clark, some concrete examples to back up the warm words we use about supporting the nursing profession.

Several noble Lords have touched on new routes into nursing, which the Government are prioritising. The most significant innovation in this area was the announcement of a new nursing associate role in November 2016. Health Education England has already trained 2,000 nursing associates in a pilot programme and is planning to train up to 5,000 in 2018, with up to 7,500 nursing associates trained through the apprenticeship route in 2019. As well as creating a much-needed new role in its own right—I emphasise “in its own right”, as it is an augmentation to the nursing and other professions—nursing associate training offers an alternative route to becoming a registered nurse. We expect this “earn and learn” approach to be more attractive to older students, a concern which many noble Lords have raised.

To support this career path, Health Education England is developing a shortened nurse degree apprenticeship to facilitate transition from nurse associate to registered nurse, which will also automatically recognise the prior learning and experience gained in the nursing associate role. For the first time, apprentices will be able to work their way up from entry-level health work through to advanced clinical practice in nursing.

Several noble Lords expressed their concern about the apprenticeship route and the figure of only 30 nurses. The official data has been delayed and we believe that the figure is more like 250. We will be able to confirm that. It is a better start but, clearly, not yet the target that we want to reach. However, we believe that this stepped approach through the nursing associate role, giving the opportunities for a pause after two years and then to go on for two years, ought to be more attractive to employers than the current four-year commitment. This development of the nursing associate route therefore provides for a better use of the apprenticeship route.

I want to address a couple of what are perhaps misconceptions. The figure of 40,000 vacancies is used often in this House. I might be pedantic and disagree with that number—the quantum is just about right—but it is important to say that these are not empty places. They are being filled by agency and bank staff. Part of the reason for that is that people want flexibility and more pay, two of the things that we are trying to address so that we can provide more permanent contracts for those people who currently work flexibly.

The noble Lord, Lord Clark, and the noble Baroness, Lady Garden, talked about EU staff. I hope your Lordships will agree that I miss no opportunity to say from this Dispatch Box how much we value those staff and that they have just as much right to apply for settled status as anyone else in this country, provided they fit the criteria. However, it is worth pointing out that there are more EEA staff in the NHS than there were in June 2016. The one category where the figure is lower is in nursing and midwifery but the reason for that was the introduction of a more stringent language test. We are dealing with that issue, which I hope will mean that we continue to see an increase in EEA staff working in our NHS.

The noble Lord, Lord Willis, asked specific questions about the apprenticeship levy. I will need to write to him on that issue having consulted my colleagues in the Department for Education.

Turning quickly to the second point of the Motion, several noble Lords, including the noble Lord, Lord Hunt, the noble Baronesses, Lady Walmsley, Lady Watkins and Lady Garden, and others said that we should postpone the introduction of the reforms until the post-18 education and funding review has been completed. As noble Lords know, the Prime Minister launched the review earlier this year to ensure that we have a better system of higher education support that works for everyone. Many aspects of the current system work well and, as was set out in the terms of reference for the review, there are important principles that the Government believe should remain in future. One of those is that sharing the cost between taxpayers and graduates is the right approach, as I rehearsed earlier in my speech.

I take the point made by the noble Baroness, Lady Walmsley, about looking at the Welsh example. I have looked at it myself and I am sure it is something that the review would want to consider. However, it is important that we do not prejudice the work of the expert panel established to support the review or prejudge its outcomes. The fact of the review should not delay these healthcare education reforms, not least because they predate the launch of the review by some distance and already apply to the vast majority of nursing students. We believe it would do more harm than good to further delay these reforms, although it is worth underlining that any relevant reforms stemming from the review will apply equally to this group of student nurses.

In conclusion, I recognise the well-motivated concerns expressed by noble Lords during this debate. However, I hope I have been able to demonstrate that the student finance reforms that this Government have introduced have allowed both the removal of the artificial cap on nurse training places and the largest expansion of student nursing places in a single year ever seen. These two facts are not coincidental; they are inextricably linked. The latter is possible only because of the former and they form part of a wider set of workforce reforms designed to expand, train and reward our nursing profession better so that we can continue to deliver the high standards of NHS care that patients demand. On that basis, I hope the noble Lord, Lord Hunt, will feel able to withdraw his Motion.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Watkins, who returned early from the WHO to take part in it.

I am left, though, with huge concerns and a real puzzlement as to the Government’s approach. As the noble Lord, Lord Willis, said, faced with this huge crisis in nursing in particular but also among the other professions covered by the regulation, the Government, without any evidence base, seem to be setting out a plan to discourage older women and people from black and minority ethnic groups from entering nursing, midwifery and other professions. In the breakdown of postgraduate healthcare students, the statistics show clearly that 64% are over the age of 25, women are largely attracted to this route and there is a higher percentage of minority ethnic students. We also know from the Department for Education’s own analysis that those groups are known to be more debt-averse. So the consequence is bound to be a negative impact on the very group of people we probably most need to come into the nursing profession.

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[Baroness Walmsley]

I would add that the Browne recommendations had no cap at all.

[Lord Hunt of Kings Heath]

My Lords, I would pray in aid my noble friend Lord Adonis, who sadly is not here tonight, and take the Minister back to the original intent of the loans that we introduced.

The Minister does not seem to have responded at all to the issue that, essentially, we are transferring this debt to future generations. At some point, the fact that so little of the loans is being paid back will have to be confronted. The Minister justifies increasing the number of places now on the basis that at some time in the future some Government are going to be faced with a massive problem. So not only are we discouraging some of the most important people that we want from coming into the profession, but we are also engaging in the most extraordinary financial trickery to justify current expenditure.

The Minister mentioned apprenticeships and associates. Of course we should welcome apprenticeships, and I welcome the associate profession, which is a good thing. However, the problem is that we know what the health service gets up to. We know that directors of nurses do not have as much influence on boards as they need, and that NHS trusts up and down the country will substitute associates for qualified general nurses whenever they can. Given the debacle of the whole apprenticeship approach, in putting all our eggs into that basket we are very much risking the future of this profession.

My noble friend Lord Puttnam talked about the problem that it takes a long time to recover from a situation of drastic shortage, and my noble friend Lord Clark talked about some of the implications. When you see a car crash about to happen, you usually attempt to stop it. I see this policy as putting the foot on the accelerator, leading to an inevitable crisis.

However, this was debated in the other place. I see no purpose in prolonging the debate. I hope that, under the auspices of the review of student finance, the Government will start to think again. I beg leave to withdraw the Motion.

Motion withdrawn.

NHS: Cybersecurity

Lord Hunt of Kings Heath Excerpts

Wednesday 2nd May 2018 Lords Chamber

Asked by

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what assessment they have made of the response of the National Health Service to cyber attacks.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

My Lords, as the lessons learned review into the WannaCry attack by the Chief Information Officer for Health and Care set out, the NHS responded well to what was an unprecedented incident. However, a number of areas for improvement were also identified. Consequently, several immediate actions were taken to improve the cyber resilience of the NHS. They included updating and testing incident plans and investing more than £60 million to improve security in local IT infrastructure.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I welcome the measures that have been taken, but the noble Lord will know that recently the Public Accounts Committee has identified that his department and the NHS were wholly unprepared for what was a relatively unsophisticated attack, and that many trusts failed to act on warnings that they had been given to patch exposed systems. I understand that the committee said that, extraordinarily, at the time it took evidence some trusts had still not patched up their systems. My understanding is that that is because those systems were linked to the use of medical equipment, and in patching up the systems they could have damaged a lot of the service-giving infrastructure. That suggests that the NHS is in a very poor condition indeed to deal with this kind of threat in the future. Can he reassure me that the recent announcement by the Secretary of State will really do the job?

[Lord O'Shaughnessy]

The PAC review found that the use of Windows XP was at the heart of the problem, as an unsupported and unpatched system. Several things have happened as a consequence. First, XP usage has gone down from 18% in 2015 to 1.7% now. We also have a customer support agreement with Microsoft now and are transitioning to Windows 10, which is of course fully supported and much more secure. We also have a system now called cursor collect. The notifications that go out, called cursor notifications, are due to be acted on within 48 hours. That exposes the fact that we did not have a way of tracking that. We now have a way of tracking that and enforcing action at trust level. So there is a much higher degree of security than there was. Of course, no security is ever perfect and our vigilance carries on.

--- Later in debate ---

[Lord O'Shaughnessy]

The noble Lord makes an excellent point. One thing we are now doing is more intelligence-led penetration testing based on work that the Bank of England does, which is to probe in a safe way any weaknesses and to make sure that they are dealt with. The CQC has also added data security to its well-led criteria for inspections. We have now demanded that a board member of each trust takes responsibility for cybersecurity. Indeed, for a trust to be rated as well led, it has to demonstrate that competence.

[Lord Hunt of Kings Heath]

My Lords, one of the things that happened when this occurred made it clear that NHS trusts did not follow the instructions they were given to patch their systems. Is the Minister assured that, if this were to happen in future, trusts would follow, without exception, the instructions given?

[Lord O'Shaughnessy]

I am absolutely assured that they would perform much better than they did that time. I do not think I can give the assurance that every single one would do it, because there are still capacity issues in some trusts. The investment that we are carrying out is designed to deal with that. It is a much better performance, but we need to make sure that we are always vigilant for weakness in the system.