National Health Service: Sustainability
Lord Hunt of Kings Heath Excerpts(11 years, 1 month ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, as we are touching on procurement, I declare an interest as president of GS1 and the Health Care Supply Association. I, too, warmly welcome the debate of the noble Lord, Lord Patel, and the excellent way that he put forward his arguments. Of course, the issue of sustainability has been asked almost every year since the NHS’s formation in 1948. Right from the start, voices said that public expectations were too high and called for explicit rationing of services. We know that almost as soon as the NHS was established, our friends in the Treasury were keen to see the introduction of charges. Indeed, in the early 1950s, charges for spectacles, dentures and then prescription charges were introduced. This was followed by the 1953 Gillebaud commission. At the time, it was thought that NHS costs were spiralling out of control and Gillebaud was asked how we could reassert control over NHS spending. In fact, he came to the conclusion that there was a popular misconception about a vast increase in costs and ended up recommending a big increase in capital expenditure.
Through the years, we have had many other reports. Harold Wilson in opposition did not think much of royal commissions. He famously said that they took minutes and wasted years. But he was very fond of them in government and set up a royal commission on the NHS. Interestingly, its brief included the possibility of a greater reliance on other means of funding the NHS. But it was not convinced of that, and said that the claimed advantages of insurance, finance or substantial increases in charges—or co-payments, as we now call them—would outweigh the disadvantages in terms of equity and administrative cost. Mrs Thatcher had another go. Patrick Jenkin set up an internal review to look at the sustainability of the NHS, with potential restrictions of coverage, but it never published the results and no change took place. Now again, we are debating the sustainability of the NHS and the suggestion that a royal commission should be established.
I do not doubt that the challenges put forward today are formidable, but I agree with my noble friend Lord Turnberg that the NHS is still sustainable. For all the problems that we face, the US Commonwealth Fund’s analysis of the NHS two years ago, on comparative terms, as the number one health system in the world at least gives us some confidence that we have something that is worth preserving—albeit one that needs developing as we try to deal with some of the issues that noble Lords have raised.
That does not underestimate the financial gap and the productivity challenge facing the noble Lord, Lord Prior, in his new responsibilities. We talked about the £30 billion gap by 2020. We have heard the forecast from NHS England that if we achieve a 2% to 3% per annum rise in productivity, we could reduce that to £8 billion. The Government have promised that £8 billion, but I doubt that it will be seen until the 2020-21 financial year, judging by the documents published alongside the Budget yesterday. We know that historically the NHS has achieved a 0.8% productivity gain, so that would make the gap £21 billion and not £8 billion. More recently, in the last Parliament, there was a 1.5% productivity gain, but that dipped in the last two years because of the post-Francis impact of increased staffing and, because there had been cuts in training commissions, agency costs spiralled out of control.
Then we had the report of the noble Lord, Lord Carter. My noble friend Lord Reid is quite right: clearly, in relation to procurement, there is money to be got. But even if we implemented the whole of the Carter report, which includes some brave decisions about the employment of staff midweek on wards, it would produce only £5 billion. Put all that together and clearly there is a big gap. Last year provided deficits of £822 million: this year they are projected to be £1 billion.
Alongside that, the Government are actually increasing demand rather than discouraging it. Understandably, more people want access—but 24/7 access? The NHS Choices website is always encouraging people to use the service more and more. It was right for my noble friend Lord Desai to ask the noble Lord about the tension between this desire to give greater accessibility and the issue of demand management. We are reaching a difficult point where the two are not deliverable.
I hope that the Minister will say how he thinks productivity will be improved, but another issue that is vitally important is the quality of management and leadership in the NHS. The challenge is daunting: the productivity gap, the move to seven-day working without the use of agency staff—let alone health and social care integration. At the same time, we know that at the moment performance is deteriorating. Clearly, we need the best possible managers and leaders. I am sure that the Minister has read the Health Service Journal report on leadership, chaired by Robert Naylor, which came out last month. It said that a third of trusts have either vacancies at board level for key leaders or were employing highly expensive interns. There is a 20% vacancy rate for financial directors and chief operating officers. One in six trusts has no substantive chief executive. One in 10 has retained the same CEO for more than a decade, but the median time in post for a trust CEO is a mere two and a half years. One in five CEOs has been in post for less than a year.
Nigel Edwards of the Nuffield Trust has said that high executive turnover,
“has a chilling effect on the willingness of chief executive officers to take bold initiatives and encourages a passive and responsive culture”.
In other words, the fact that chief executives are in fear of losing their jobs encourages the kind of culture that will make sure that we cannot deliver the productivity challenge. I agree with my noble friend Lord Warner that there is no chance whatever that the Government will get to 2020 with a 3% to 4% productivity gain with the current culture—a blame culture with incessant interference by the regulatory bodies and supervising bodies into the work of NHS trust chief executives.
I know that the Minister has huge experience—apart from CQC, he chaired a highly successful trust in Norwich, Norfolk—and I know that he understands this. At heart, Ministers set the tone and culture. I appeal to him to start to change the culture. He will have to put much more trust in people in the field to achieve this change. Of course we have to intervene, as my noble friend Lord Warner said, when an organisation is clearly failing, but if we carry on the way we are doing at the moment we will simply not achieve what we need to achieve, and I believe that the health and social care system will fall over.
I know why noble Lords wish to see a royal commission established—on the face of it, it is very attractive. But I sound a note of warning. My experience of the NHS is that the moment you set up a committee of inquiry, it is always used as an excuse to put off difficult decisions. In a sense, we have in the Five Year Forward View a challenging and agreed programme—agreed by almost everybody—for the way forward. If a commission were established, it would have to be clear that its remit accepted the five-year forward plan as the way to go. I fear the killing effect of a royal commission that took two years and then a Government taking another two years to make up their mind about challenging funding issues such as co-charges. We have already had the Barker commission, set up by the King’s Fund, which went into most of the issues that noble Lords raised.
At the end of the day, I agree with my noble friend Lord Reid that the political process will always come to the fore. The sustainability of the NHS ultimately depends on political will. In the end, it is down to Governments to make sure that the NHS provides what the public want. Do the public want the NHS to be sustained? Yes, they do.
Lord Patel
I thank the Minister for his response, and I am encouraged by his last comments. A 10% gain is still a gain—I would not have expected him to agree. By the way, I did not use the words, “royal commission”. I asked for an independent commission. I understand why political parties may not like the idea of a royal commission, but I am encouraged by what the Minister said.
I am grateful to all noble Lords who have taken part. It has been an excellent debate and the stature of those who have spoken indicates the interest in the subject. I do not think that the matter will be left today, just for another debate. I have to say to the noble Lord, Lord Hunt, that I get the feeling that political parties want to keep the health service in some trouble all the time, so they can use that for the next election.
Health: Children and Young People
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Lord Hunt of Kings Heath (Lab)
My Lords, we have had a very good debate, and I am pleased that the noble Baroness, Lady Hollins, has enabled us to do it. Rather like the noble Baroness, Lady Walmsley, I want to start by focusing on physical health issues. As she said, the frightening obesity rates among young people are associated to a certain extent with lack of exercise, but I agree with her on what she said about food, eating and poverty.
We have heard the noble Lord, Lord Prior, speak at a number of seminars recently. He has stressed the Five Year Forward View, which the Government have endorsed. One of the encouraging things about that report is that I see—I think for the first time—some passion coming from NHS management about the need to deal with public health issues. That document points out the issue of obesity among young people and the problems that it is going to store up for the future. It also recognises the role of government in terms of legislation. Does the Minister accept the need for legislation when it comes to basic issues of the amount of salt, sugar and fat in foodstuffs, particularly those marketed at young people? He will know that in this country young people drink more of those super-sugary drinks than in any other country within Europe. Of course there is always a balance to be struck between the emphasis on individuals, the parental role and schools, but in the end legislation is sometimes required. I urge the noble Lord that his department ought to be battling in Whitehall to get some legislation around the protection of young people.
I hope that the noble Lord will respond to the point made by the noble Baroness, Lady Walmsley, about academy schools and their ability to go outwith much of what is sensible in relation to the teaching of young people in this area. Also, alongside the issues of food and healthy eating, there is a real concern about where exercise for young people has gone within our schools.
Frankly, we have now reached a point of hysterical obsession with testing young people, and that is crowding out the agenda and the focus. When I talk to year 6 teachers about the SATS testing that now has to be undertaken, I realise that in many schools they are doing nothing else but preparing for the tests for six months, mostly all the wretched testing around maths and English to the exclusion of almost anything else. We are reducing children’s education to a miserable exercise, one in which teachers do not believe, but they are being forced to do it. This is the Government’s obsession, and of course Ofsted has lost any notion of independence in terms of its own role.
The noble Lord may ask what all this has to do with him. It has plenty to do with the health department now that it is no longer concerned with NHS performance—or at least we are being told that, because the 2012 legislation promised it. The department has the space in which to argue in Whitehall for some of the measures that now need to be taken.
I agree with the noble Earl, Lord Listowel, about the whole issue of access to leisure facilities and the impact of local government reductions on many of them. Many local authorities have decimated their leisure service provision, which has a devastating impact on the ability—particularly of those who do not have access to resources—to use such facilities. This will become a very serious problem for the future.
I do not want to spoil the noble Baroness’s Question for Oral Answer on Thursday, and she might have mentioned it, but the Government and certainly the Chancellor have rather undermined NHS England when he swiped £200 million from the public health budget of local authorities in-year. There is a sense in which the Government are saying that of course prevention is important, but their first action after the election was to reduce the amount of money available to local authorities to act in this area. The noble Baroness, Lady Stedman-Scott, made some important points about families, which I hope the noble Lord will respond to.
We have debated the issue of mental health some four times, I think, over the past few weeks. That is important because it is an important subject, but we know from the Royal College of Psychiatrists, which is one source of information for this debate, that one in 10 children and young people suffers from a diagnosable mental health disorder. Half of all diagnosable mental health conditions start before the age of 14, and 75% by 21. We also know that the figures are even more worrying for young people from BME backgrounds. The Health Select Committee report published in November 2014 talked about,
“serious and deeply ingrained problems with the commissioning and provision of children’s and adolescents’ mental health services”.
I know that the Government are going to talk about the task force, and that is welcome, but perhaps I may put four questions to the Minister. First, why is the funding for children’s mental health services still so low in view of all the problems that have been identified? Secondly, I understand that, of the joint strategic needs assessments that are written by each public health director for their local authority, very few mention children’s mental health services. I also suspect that even fewer pick up the point made by the noble Earl, Lord Listowel, about the health concerns around looked-after children. Why is that? Does the Minister believe that directors of public health need to have their attention drawn in their annual report to the importance on the state of the health of their local authority, and that this is an important area for them to be concerned about?
Finally, I want to ask about the introduction of waiting time standards for mental health services. The Minister will know that this was introduced in April 2015 and people are guaranteed talking therapy treatment within six weeks, with a maximum wait of 18 weeks. For individuals experiencing a first episode of psychosis, access to early intervention services will be available within two weeks. I recognise that it is early days; we are only four months away from the start of these new standards, but I wonder whether the Minister can say something about how he thinks the service is progressing.
NHS: Whistleblowing
Lord Hunt of Kings Heath Excerpts(11 years, 1 month ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, the noble Lord rightly expects a fundamental change of culture among NHS bodies, but does he agree that one way in which that could be helped would be if Ministers welcomed criticism from chief executives and leaders of those bodies of unrealistic expectation on the part of Ministers and of there being too few resources? Does he agree that such leaders are stamped on for making their views known, which is simply not conducive to encouraging openness in their own organisations?
Lord Prior of Brampton
The noble Lord makes a good point. If one looks back at the history of Mid-Staffordshire, one sees clear evidence that the priorities of that organisation were too skewed towards hitting financial targets and meeting other extraneous objectives such as becoming a foundation trust. The message to all NHS organisations should be that patient safety and quality of care come first.
Mental Health Services
Lord Hunt of Kings Heath Excerpts(11 years, 1 month ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, I very much welcome the debate and very much support the speech made by my noble friend Lady Thornton. I also welcome the work done by the CQC, which identified some good practice but also raised some very serious failings in services. My noble friends Lady Massey, Lord Graham and Lady Thornton have rightly focused on CAMH services and the failures that have been very well documented. We know that the budget for CAMH services has been cut in real terms from £766 million in 2009-10 to £717 million in 2012-13. As we have heard, NHS England’s own 2014 tier 4 CAMHS report confirmed that 16% of patients travelled more then 100 miles to receive treatment, with many going more than 200 miles. It is clear that access for these young people to 24/7 services has worsened, with A&E or a police station often the only place to go.
I have no doubt that the Minister will put his trust in the crisis care concordat. I acknowledge the excellent work that has been done, and the concordat is clear: people experiencing a mental health crisis should have access to the help and support that they need 24 hours a day, seven days a week. But what is the status of the concordat? Is it being performance managed? Who, ultimately, is accountable for its implementation?
The CQC recommends that representatives of local crisis care concordat groups ensure: first, that all ways into crisis care are focused on providing accessible and available support; secondly, that commissioners are to be held to account; and thirdly, that they should engage with partners to encourage innovation. The question is how. If, for instance, their action plans are insufficient, what is going to happen and who is going to make them turn them into effective action plans? The concordat does not specify which organisation should lead this work locally. Why on earth not? The care concordat approach is an excellent one, but it lacks bite because no one is being held accountable for its implementation. Can the Minister sort this out and make sure that someone is truly held accountable?
I read a letter sent very recently by the Minister’s right honourable friend Mr Alistair Burt to the mental health crisis care concordat national signatory organisations. It is a remarkable letter of four pages, reading as eloquently as I would expect because DH officials drafted it. I have told the Minister before that DH officials are very good at writing letters and reports. However, it is all words. There is absolutely nothing in it. It has nothing to say about forcing the pace locally on implementing the concordat.
Of course, the Government have form here. I will not cross swords with the noble Baroness, Lady Walmsley, about credit for the parity of esteem amendment. All I will say is that it might have been her amendment but it was our votes “wot done it”—but we look forward to working together in future. Yet, despite the law, the NHS is determined not to implement it. We start with what can only be described as the outrageous decision of NHS England the year before last to discriminate in mental health funding as opposed to other services.
We have been told that funding for 2014-15 in mental health was planned to rise by £120 million. What was the actual outturn figure? Why do the Government say that more money will go into mental health whereas my understanding is that the forward plans of mental health trusts show that many are planning for a reduction because they have no confidence whatever that clinical commissioning groups will actually do what they were told? NHS England has direct control over CCGs. Why is it not informing CCGs that they must put more money into mental health services?
We now have transformation plans. My understanding is that the Government tasked every CCG with creating transformation plans outlining what they will do to deliver mental health. How will we judge whether those have been successful? We know that mental health data collection is poor. We also understand that the Government are producing guidance for CCGs on how to complete the transformation plans. A key question is: they produce the plan, but then what? Who will actually hold them to account for delivering on it?
That leads me to the better care fund. The Minister knows that this is designed to provide a joint approach to the planning and delivery of health and social care services. Now, given the pressures on A&E, which is really what this is meant to address, and given that we know that because of the cutbacks in mental health services more and more people with mental health issues come to A&E, I would have thought that mental health services would be at the heart of these better care fund plans. However, my understanding from Written Answers to PQs is that of the £5.3 billion of plans submitted in September last year, a mere £370 million was planned for investment in mental health services. That is an extraordinarily low figure. It means that the health service is determined not to implement parity of esteem despite it being a legal requirement. Finally, when will the Government get serious about making the NHS not only respond to guidance or plans but actually act in relation to mental health according to the law of the land?
NHS: Immigration Rules
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what their response is to the Royal College of Nursing report concerning the impact of immigration rules on the employment of foreign nurses within the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)
My Lords, ensuring we have the right number of nurses is vital. That is why we are taking the issue of nursing recruitment seriously and have prioritised and invested in front-line staff, so there are over 8,600 more nurses on our wards. Health Education England’s workforce plan for England for 2015-16 forecasts that, following further increases in the number of training commissions, the proposed levels for nurse training will deliver over 23,000 more nurses by 2019.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Lord will know that the RCN report estimates that as a result of the migration rules around 7,000 nurses will be forced to leave the NHS because they do not reach the £35,000 per annum employment threshold. Despite the modest increase in the number of training places, is he confident that that gap can be filled, alongside dealing with the current recruitment crisis, the extra nurses needed for seven-day working, the extra nurses needed for improved patient-staff ratios and the Government’s indication that they want to rule out the use of agency nurses in future? When will all those policies be adopted alongside the 7,000 reduction in overseas nurses?
NHS: Innovation
Lord Hunt of Kings Heath Excerpts(11 years, 2 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, I thank my noble friend Lord Wills for opening this debate in an excellent way. I am going to talk a little bit about NHS procurement so I should declare an interest as president of both GS1 and the HCSA.
It is my great privilege to anticipate the Minister’s maiden speech, congratulate him on it and welcome him to your Lordships’ House. He is a distinguished businessman, politician and, latterly, was chairman of the fantastic Norfolk and Norwich University Hospital and the Care Quality Commission. I think it is fair to say that he inherited the CQC in a somewhat fragile state. It is to his great credit that he and chief executive David Behan have stabilised the position. I do not take the Roy Lilley approach to the CQC. Of course there will always be issues about its methodology and the way it practises regulation, but I have no doubt that under the leadership of the noble Lord, Lord Prior, the CQC was definitely going in the right direction, and we owe him a great debt for that. I should also say that I particularly appreciated the fact that he and his chief executive made themselves available frequently to politicians, and that approachability is also very much respected and appreciated. I am sure that that will also characterise his frequent appearances in your Lordships’ House in our many health debates.
This is a very important question. We have the great paradox that this country has, as my noble friend Lord Turnberg suggested, a hugely impressive life science base and much-valued R&D. Even today, with all the pressures on UK pharma, there are still many drugs in the top 100 globally which have been developed in this country, yet we have a real problem in adoption by the National Health Service. My fear is always that unless we can dramatically change the approach of the NHS, we will put at risk future global investment in this country.
I shall start by referring to the points raised by my noble friend in opening the debate, on giant-cell arteritis. I have come across similar problems in another disease area—we have had debates on them in your Lordships’ House: one on PAWS GIST, and another on neurofibromatosis NF-1—and my experience is exactly the same as my noble friend’s. The problem is where there are small numbers of patient groups and effectively no national strategy. CCGs simply do not have the capacity, capability or desire to do anything about it at a local level, and GPs are inundated with guidance on one thing or another, making it very unfair to attack GPs on this matter. It is clear that we lack a strategy within NHS England for dealing with these patient groups—these disease areas—where they involve a small number of people. Like my noble friend, I have had a number of meetings with officials at NHS England who are clearly completely overwhelmed by the task in hand. There is no decision-making structure that I can see where you can ask, “Who in NHS England is responsible for giant-cell arteritis?”. It is quite clear that no one has responsibility. They may well have a clinical director who has some vague oversight, but that is as good as it gets.
What has happened to the clinical directors is disgraceful. Under the Labour Government they were employed in the department, with direct access to Ministers. Now they are part-timers in NHS England, with no support and no access to the top of the office, and are left in an impossible position. I hope the noble Lord will sort that out. I also hope he will encourage NHS England to take a much more progressive view on innovation. I welcome a number of the Government’s initiatives, such as AHSNs and the current accelerated access review. Those are strongly welcomed. I know that Mr George Freeman, in his department, shares the concern that we have about the need for adoption in the NHS. However, someone has to sort NHS England out.
We have already heard about the problem of drugs that do not go through the NICE cycle. Basically, NHS England has set up a rationing tool to delay their introduction; that is why there are so many committees—it is simply a rationing tool. The gross example of this relates to the new PPRS agreement on drugs. In that area I congratulate the Government on negotiating an agreement whereby over a five-year period, if drug costs go up a certain level, a rebate is paid out to government. Every quarter a rebate is paid back. I think we have now gone through 18 months, so another rebate is due shortly. The money coming back could have been used to finance new and innovative medicines, but no—it is simply being taken and put into general allocations. There was an opportunity there for the pharmaceutical industry to finance the introduction of innovative new drugs, because we know what the drug costs will be over a five-year period. However, my understanding is that because NHS England was not part of those negotiations, and despite what it says in the NHS Five Year Forward View and Simon Stevens’ commitment to innovation, the practice of NHS England is in fact to stamp on innovation, because the only thing it is interested in is containing costs, and it sees that at a very crude level.
As the noble Lord will know, the 2012 Act has effectively been disowned by the Secretary of State. Every announcement that has been made in the last few weeks suggests that we are going back to good old command and control, and thank goodness for that. The Minister needs to take a grip on this, otherwise we will have another debate on innovation every year. Frankly, it is clear that the NHS is not going to adopt proven innovative new developments, techniques and medicines.
My final point concerns the report of my noble friend Lord Carter, which was published today. I am very grateful to my noble friend for the work that he has done, and I absolutely agree with him when he says that a better approach to purchasing will bring good returns. Again, it has been abundantly clear that we need a central, directional approach to procurement if we are to get those savings. The question that I want to put to the Minister relates to a new approach to purchasing, where essentially the Department of Health or NHS England, on behalf of the NHS, will commit itself to volume purchasing in order to get the kinds of savings that we want. Can he ensure that in the discussions that he takes forward it will be clear to the people doing the negotiations that part of the outcome will be a willingness to invest in innovation? I think that there is the potential for very good, longer-term agreements with industry in which the NHS, because it can commit to volumes, can achieve considerable savings. However, the deal has to be that the NHS adopts new, innovative products and medicines, rather than a penny-pinching approach, which in the end will be cost effective.
I know that some of those matters come within the responsibilities of the noble Lord, Lord Prior. He is warmly welcomed to this House and to his position, and we very much look forward to hearing his maiden speech.
Penrose Inquiry
Lord Hunt of Kings Heath Excerpts(11 years, 4 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, I thank the noble Earl for repeating that Answer. Clearly the Penrose report is a detailed factual account of what happened, and I pay tribute to Lord Penrose for the work that he and his team have completed.
I noted the noble Earl’s comments this afternoon that we have the initial response, but that the full response is to be left to the next Government. It is clear that the report needs very careful reading in order to come to a substantive view. Certainly, as a Minister, I dealt with this issue in my time at the Department of Health—I see the noble Lord, Lord Fowler, and other former Ministers here—and Dr David Owen has on a number of occasions drawn attention to some issues about the way this was handled by the Department of Health. On the face of it, does the noble Earl think that at the very least this warrants some discussion about whether his own department needs to establish some kind of view on the Penrose report?
Lord Penrose made a single recommendation: that all people in Scotland who had a blood transfusion before 1991 should be tested for hepatitis C. Again, is that to be left to the substantive response after the election, or can he give an initial view on the implications of that recommendation for people affected in England?
The noble Earl referred to relief. Can he say anything about the Skipton Fund payments and progress made on that fund since its establishment in 2004, and about decisions that I believe were made by the Government in January 2011 with regard to payments to the estates of people who died prior to the announcement of the scheme in August 2003?
One of the stark conclusions from reading the report is about what could be described as the paternalistic view taken by doctors on information to be given to patients. He says that the expert evidence available to the inquiry indicated the withholding of information from patients on the absence of treatment for the condition, which from a contemporary ethical perspective was not acceptable. Does the noble Earl agree with that, and does he consider that circumstances have moved on such that today such information would not be withheld?
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments and questions. There is no doubt that Lord Penrose has done a very thorough job in examining the facts. It is worth understanding that he has considered the evidence from England as well as Scotland.
I pay tribute to those who showed tremendous courage in telling the inquiry about the impact of infection on their lives and the lives of their families. The report has systematically examined the facts and set them out. As well as other inquires, such as the Archer inquiry, with which the noble Lord is familiar, this report has now given us a detailed account of what happened, which is extremely valuable. I agree that there will be a need to reach a formal view on Penrose’s conclusions once my department and the next Government have had an opportunity properly to consider the conclusions that he reached.
As for Lord Penrose’s recommendation to offer a hepatitis C test to everyone who had a blood transfusion before 1991, the department conducted a look-back exercise in 1995 to try to identify everyone who might have received infected blood prior to 1991. We will consider whether anything more can be done on this in England, although obviously Lord Penrose’s recommendation relates specifically to the Scottish Government taking steps along these lines. We have already done an exercise to identify anyone who could have been affected, and we will consider whether anything more should be done on this.
The noble Lord asked about the Skipton Fund, which, as noble Lords will remember, is there to make non-discretionary payments to patients infected with hepatitis C. To date, over 5,100 individuals in the UK have received the stage one payment and around 1,500 have received a stage two lump sum in the UK, with around 700 receiving annual payments in the UK.
Public Contracts Regulations 2015
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Lord Hunt of Kings Heath
That this House regrets that the Public Contracts Regulations 2015 laid before the House on 5 February are being implemented with unseemly haste, will cause confusion as to which procurement regime is to be used for integrated health and care contracts, and do not implement the assurances given by Ministers to Parliament during the passage of the Health and Social Care Act 2012 that NHS commissioners would be free to commission services in the way they consider in the best interests of NHS patients. (SI 2015/102)
Lord Hunt of Kings Heath (Lab)
My Lords, I say at once that I welcome certain aspects of the regulations we will debate tonight, specifically the help for social enterprises. However, I am concerned about their potential impact on the NHS, the enforced tendering of services that will entail and the potential confusion between two different sets of procurement regimes for the health and social care sector.
These regulations implement the main public sector procurement directive agreed by the EU in 2014 but also introduce a number of UK-specific changes intended to open up public procurement, including for small businesses. The directive replaces the old system of type A and type B services, and the new light-touch regime will apply to health and social services—formerly Part B services.
Contracts in the category will fall under the new rules if they are valued at above €750,000. Above the threshold, commissioners will have to publicise in advance their intention to award contracts and announce the contract award decision after it has been made. This regime will sit alongside the healthcare-specific requirements in the NHS (Procurement, Patient Choice and Competition) Regulations 2013 and Section 75 of the 2012 Act, which we debated in your Lordships’ House on 24 April 2013. I am sure that the noble Earl will recall that lively debate.
The introduction of this new regime has been delayed for NHS-funded healthcare services until April 2016 to allow commissioners time to adapt. The Government have argued that this is necessary because of the need to ensure that commissioners and other key stakeholders are fully prepared. The Government have stressed that other contracting authorities, such as local authorities, are not subject to these additional domestic regulations and therefore need to follow the new rules for the light-touch regime as soon as they come into force. However, the Government have also been forced to acknowledge that there are concerns about the scope for potential confusion as a result of the existence of two regimes side by side for another 12 months.
The Opposition have sought two different legal opinions, both of which advised that these new regulations could force the tendering of NHS health and social care services to go beyond the requirements of the Section 75 regulations under the 2012 Act. Practically all health services will be above the €750,000 threshold. This would escalate the level of service tendering and privatisation of health and social care services as well as wasting vast amounts of money on pointless tendering procedures when the money would be far better spent delivering services for NHS patients.
At best, the new procurement regulations are confused and unclear. NHS services have an additional year because the new regulations do not come into force for health services until April 2016, whereas they came into force on 26 February 2015 for all other areas. Council social care services have to comply with these new regulations immediately so, in effect, two procurement systems will be operating for health and care until 2016. There will undoubtedly be confusion over the definition of some services, to do with whether they are strictly social care or include elements of healthcare as well, and therefore whether they are subject to these regulations and there is a requirement for them to be advertised and tendered. The advice we have—I think experience in the last three years shows that this will be the case—is that CCGs will understandably err on the side of caution to avoid legal challenge and therefore advertise or tender services in case the new regulations are found to apply to them.
What happens if an NHS body wishes to commission a contract that includes elements of clinical healthcare and social care? This will not be completely unknown, given the effort that we all support towards trying to integrate health and social care. The question arises: which regime will the NHS body have to follow? Will it not be driven to split out these elements in two separate contracts to comply with two separate legal requirements? What about the potential for legal challenge? Would it not drive a wedge between joined-up commissioning of health and social care?
The regulations also fail to take advantage of many of the flexibilities in the 2014 directive that could have exempted the NHS from having to run pointless tenders. They also fail to incorporate the flexibilities in the directive that would have allowed NHS bodies to decide not to tender when there are wider strategic interests that mean a comprehensive local health service must continue to be provided by a key NHS provider.
These missed opportunities reflect the Government’s political imperative to turn the NHS into a market and pave the way for private sector operators to deliver more NHS services. The imposition of market mechanisms when they are not needed, and the failure to allow CCGs flexibility to decide when tendering is the right approach for patients, will create wholly unnecessary additional cost and uncertainty at a time when NHS bodies should be focused on meeting the needs of an ageing population and improving services.
We are already seeing the impact because many CCGs undoubtedly believe that there is no alternative to full-scale tender. A vast amount of resources is being consumed, with no benefit to patients. The evidence is clear. Commissioner spending on private providers has increased from £4.1 billion in 2009-10 to £6.3 billion in 2013-14. The proportion by value of community health services provided by private sector providers has increased from 12% in 2010-11 to 18% in 2012-13. Private provider spending on mental health services increased by 12% between 2010-11 and 2012-13. Overall, the Department of Health’s annual accounts suggest that some £10 billion of the total NHS budget of £113 billion is spent on care from non-NHS providers.
Some large contracts have attracted particular attention and concern. For example, in Staffordshire, CCGs are seeking bids for a 10-year contract worth £1.2 billion for cancer and end-of-life care, which is potentially likely to significantly involve private sector providers. Then there is the Bedfordshire case. The Bedfordshire CCG awarded a five-year contract to Circle as prime provider, assuming a total risk for musculoskeletal services worth £120 million. A local NHS provider has subsequently refused to sign the contract under which it would provide some of those services because it would see a referral drop of 30%, thereby putting at risk its trauma services, which are cross-subsidised by musculoskeletal services. There are other examples of bizarre decisions being made by clinical commissioning groups because they feel that they must put services out to tender, and by doing so they seem to have no analysis of what that would mean for the viability of the whole health service system.
A recent study by the British Medical Journal found that one-third of contracts to provide clinical services awarded in the year from 2013 were secured by private providers. A study by the NHS Support Federation found that, of 80 contracts awarded, 54 went to non-NHS providers. We have also seen what I can describe only as a ludicrous intervention by the competition authorities in sensible service changes in Dorset and then Bristol.
I am sure that the noble Earl will want me to refer to the recent King’s Fund study, which concluded that any benefits from competition,
“can be outweighed by costs and difficulties of competitive process”.
As the study says, it is also clear that CCGs remain very uncertain about procurement and tendering rules. They are spending a lot of money on legal advice. A lot of that legal advice is very risk-averse, which is why so many services are being put out to tender.
Lord Hunt of Kings Heath
My Lords, I thank the noble Earl for his response. He said that the imperative of the Government to introduce the regulations early is because of the economic benefits. Let me say at once that I have always accepted that there are some benefits in these regulations. I particularly welcome the social enterprises provisions, but my concern remains, rather like that of the right reverend Prelate, that the introduction of the regulations applying to care services now as far as local government is concerned, along with the existence of NHS regulations, will cause a great deal of confusion.
I also think that the noble Earl is underestimating the confusion out there in the health service about which services should be tendered and which should not. I do not believe that clinical commissioning groups accept the kind of view that he is putting forward. They are getting legal advice that actually makes them very risk averse. The noble Earl said that the requirement to advertise does not mean that people have to tender, but once you advertise you are inevitably on a route towards tendering.
Finally, on Staffordshire, my issue is that essentially the CCGs are outsourcing commissioning decisions which they as the statutory bodies ought to be taking for 10 years, and they are failing to engage with the public. They will not appear at public meetings to defend the position. The noble Earl will know from MPs in Staffordshire that there is a lot of concern about this, and if a Labour Government are elected we will certainly want to call in on what is happening.
Before I beg leave to withdraw the Motion, perhaps I may say to the noble Earl that he has been the Minister for Health in this Chamber for five years, and on behalf of my noble friend Lady Thornton and myself I would like to thank him for the courteous way in which he has responded to our many debates. I particularly thank him for the way he has agreed to meet a number of small charities over those five years on issues that I have raised. That is very much appreciated. I should also say that we have enjoyed working with the noble Baroness, Lady Jolly, as well.
Barts Health NHS Trust
Lord Hunt of Kings Heath Excerpts(11 years, 4 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, I am sure that the House is grateful to the noble Earl, Lord Howe, for repeating that. It is a worrying report about the largest trust in England, which is directly managed by his department through the NHS Trust Development Authority. Why have these problems been allowed to get worse over the past two years? Does he agree that the report has identified that the root cause of the problem was the reorganisation of the trust in 2013? Can he say why Ministers overruled the Co-operation and Competition Panel, which advised against the proposed merger and warned of the adverse consequences for patients?
Earl Howe
The decision to create Barts Health was taken following a report that analysed the options open to the department at that time. As the noble Lord knows, there was, effectively, a merger of several trusts to create Barts Health. The advice received by the Secretary of State at the time was that none of the three trusts subject to the merger with Barts was sustainable as a stand-alone organisation. The appraisal of the options identified the three-way merger as the most beneficial and strategic solution for the system as a whole, taking into account a wide range of clinical, financial and government issues.
False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, before I go into the detail of the regulations, I will briefly set out the background for why this offence was set in statute and why the regulations are required.
The report of the Francis inquiry into the events at Mid Staffordshire NHS Foundation Trust made clear the need for clear and reliable information about the quality of care and organisational performance. The inquiry found that inaccurate statistics about mortality rates obscure the true picture of care and can allow poor care to continue unchecked. The creation of a culture of openness and honesty is vital in improving care in the NHS and in empowering staff to challenge poor care where and when it occurs, and this Government have taken great strides to ensure that this is the case.
The provision of accurate information is central to the safe functioning of the NHS. It provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Deliberately falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users.
Care providers, which are directly responsible for the standard of services, have a clear responsibility to ensure that the information they supply is accurate and gives a true picture of the standards of care that they provide. The Care Act 2014 put in place a new criminal offence that will apply to care providers that supply, publish or otherwise make available false or misleading information. The offence will apply to the misreporting of information that is required to comply with a legal obligation. I wish to emphasise that last point: this offence applies only to providers of care, not regulators or commissioners of care.
Where a provider is found to have committed the offence, which could be as a result of deliberately supplying false or misleading information or as a result of neglect, the provider can be fined by the courts. In addition, the courts can require the provider to take action to address the failings which led to the offence occurring and make publicly known the action it is taking.
The FOMI offence can also apply to senior individuals within a care provider but only when the care provider has been found guilty of the offence. Senior individuals can also be found guilty of the offence where they have consented or connived in the publication or submission of false or misleading information, or have been sufficiently neglectful in their duties to allow false or misleading information to be published. An individual found guilty of the offence could face imprisonment of up to two years, a fine or both.
Of course, misreporting of information can be the result of genuine error and it is essential that such mistakes do not result in a criminal conviction. The Care Act 2014 therefore allows for a defence against the offence where a care provider is able to demonstrate that it took all reasonable steps and exercised due diligence to avoid the misreporting of information.
The primary legislation contains a regulation-making power that allows the types of care providers and the types of information to which the offence applies to be specified in regulations. The regulations before the Committee specify that the offence will apply to NHS trusts in England, NHS foundation trusts and other persons who provide health services from a non-NHS hospital,
“pursuant to arrangements made with a public body”.
For clarification, this means that the offence can apply to independent providers delivering services under an NHS contract, but only if they are also required to submit or publish the information included in the regulations.
The information to which the FOMI offence applies is focused on the issues raised by Robert Francis, such as mortality figures, and is supplied by providers of NHS secondary care. This is a short list, but one that represents a significant quantity of data provided by the NHS and forms the foundation of the information used to assess NHS performance.
The regulations include other key information supplied by providers of NHS secondary care, including cancer waiting times, maternity data sets, many of the core commissioning data sets and NHS quality accounts. The latter is an important inclusion, as Sir Robert Francis specifically recommended that:
“It should be a criminal offence for a director to sign a declaration of belief that the contents of a quality account are true if it contains a misstatement of fact concerning an item of prescribed information which he/she does not have reason to believe is true at the time of making the declaration”.
All the information listed in the regulations is that which providers are or will be required to publish or submit because of a statutory or other legal obligation. This is a requirement of the primary legislation of the Care Act 2014 and an important part of the legislation for a few reasons.
First, it means that a provider cannot opt out of submitting or publishing information just because it wants to circumvent the false or misleading information offence. Secondly, as this is information that is already required to be published or submitted, we are not requiring providers of NHS secondary care services to undertake any additional work—only that they should ensure the information they provide is accurate and not misleading. Finally, providers of NHS secondary care services publish or submit on a voluntary basis a great deal of information which is incredibly valuable to improving the delivery of services and developing a greater understanding of the nation’s health. We do not want to dissuade providers from submitting or publishing such information, which is why the offence cannot be applied to information of that type.
In summary, the offence will apply only to the providers listed in the regulations and only where the offence occurs in relation to the provision or publication of the information listed. When the Department of Health consulted on the regulations in 2014, it was noted that the application of the offence was quite complicated. We have addressed this concern through guidance on the application of the FOMI offence which sets out how this law works.
The FOMI offence puts in place an important new sanction against providers of NHS-funded secondary care that mislead others about the performance of their services. As this offence is new, the regulations have been developed to focus the application of the offence so that it covers important data sets and data that can be robustly interrogated to determine if a provider has committed the offence. Designing the regulations this way will enable us to better understand how the offence operates in practice and allow us to make changes to the regulations in a targeted way in the future. I hope that noble Lords will support this rationale and will therefore agree to these regulations being commended to the House. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am very grateful to the noble Earl for introducing these important regulations, which the Opposition are very happy to support. It is clearly unacceptable for anyone or any organisation in the NHS to knowingly publish false or misleading information. We are fully behind the Government on this. The noble Earl will probably remember that during the passage of the Care Act we tried to strengthen the clause that the regulations emanate from by tabling an amendment which would have made it an offence to withhold information with the intention to mislead or misdirect. That was not accepted by the Government.
I come back to the point that the Minister ended with. He emphasised that this applies only to NHS trusts, foundation trusts and those providing services. He will know from our discussions on the Bill that we wanted to expand this to cover other organisations, including local authorities and clinical commissioning groups. I would be grateful if he could respond on why the Government still think this should be confined to those who provide services.
I put to him that the Francis report into Mid Staffordshire, and indeed the more recent report by Bill Kirkup looking at the very worrying incidents that happened in Morecambe Bay, do not just put responsibility for what happened at the door of the providers, though I fully accept that in the end the board of the Mid Staffordshire NHS Foundation Trust and the board of the trust that ran Morecambe Bay must take primary responsibility. However, a number of other organisations were listed—organisations that would not be defined as providers. There are circumstances in which clinical commissioning groups, or part of NHS England, ought to be covered by the same rules and law because one depends on honesty and openness throughout the system. I would be interested in the Minister’s comments on that.
This is part of wishing to develop a culture of openness and transparency. People in the health service are very cynical about these proposals because they do not see the same transparency and openness and, to be frank, honesty emanating from the Minister’s own department. If my noble friend Lord Brooke were here, he would remind the Minister about the lack of publication of the interim risk register. I point to the report by the noble Lord, Lord Rose, on management capacity. It is one thing to have a legal provision, but it is another to ensure that everyone in the system actually operates according to the spirit of what the Government intend. I myself believe that that should apply as much to the Minister’s department and NHS England as it does to the providers in the health service.
Earl Howe
My Lords, I am grateful to the noble Lord for his support for these regulations. He returned us to an issue that we debated during the passage of the Care Act: the question of why this offence is restricted to providers and does not extend further to either NHS or local authority commissioners. We took the view that, in determining the scope of the offence, the focus should be on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. This type of information is required by law from providers of NHS secondary care, such as hospital trusts, and to be frank we have not yet identified information that would warrant extending this offence to commissioners or other providers of information. The scope of the offence is therefore determined by the information to which it applies.
The noble Lord referred to the need for openness throughout and across the system. I agree with him, of course, and I contend that over the past five years this Government have done more than any other to promote transparency in the health service and indeed from the department itself. The particular case of the risk register is one that we have debated on a number of occasions. He may recall that while the decision was taken by the Cabinet not to publish the transition risk register, nevertheless I laid before the House the essential elements contained within the register to enable noble Lords to understand the broad content of the risks that the transition addressed. The approach to risk registers in general is one that was taken under the previous Administration in a number of departments.
The report prepared by the noble Lord, Lord Rose, on NHS leadership is being looked at in the light of NHS England’s five-year review. The five-year review was published during the time that the noble Lord, Lord Rose, was preparing his report and the possibility of extending the report to take account of the review is being considered. We look forward to seeing the conclusions of the report once it is ready.