Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years ago)
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Baroness Northover
As we are on Report, perhaps noble Lords will allow the Minister to develop his argument and then put brief questions in the light of what he said—otherwise he will lose his train of thought.
Lord Hunt of Kings Heath
My Lords, I hesitate to take issue with the noble Baroness because clearly she is in a position to help the House. However, interventions on Report are quite allowed. I am very puzzled that the Government are trying to seek to rule that Report stage procedure should change so that we simply listen to the Minister. That is not Report.
Baroness Northover
My Lords, I am not saying that short questions cannot be put. However, it might be beneficial to the House if the Minister were able to develop his argument. Then, if noble Lords had questions that he had not addressed, that would be the relevant time to put them.
Baroness Northover
That is what the noble Lord, Lord Hunt, preferred when he was a Minister. I hear from around the House some sympathy for the point. If the suggestion does not work, no doubt we can take the matter to the Procedure Committee and look at a different way of doing things.
Lord Hunt of Kings Heath
My Lords, the noble Baroness is not in a position to dictate to the House that it should change its procedure on Report. Surely the beauty of debate lies in interventions, and responses by Ministers. When I was a Minister for 10 years at the Dispatch Box, I always took interventions and welcomed effective and proper debate. I am on my feet—
Baroness Northover
For clarification, perhaps I may remind the noble Lord that the Companion sets out that a Member shall not speak after the Minister on Report,
“except for short questions of elucidation to the minister”.
I realise that noble Lords are putting short questions of elucidation. The Minister made it clear that he wishes to make progress and that at the moment he does not wish to take interventions so that he can develop his argument.
Baroness Wall of New Barnet
My Lords, I also support the amendment. Adding to what the noble Baroness, Lady Finlay, has said, the House may be aware that trusts are now committed to quality accounts, certainly for clinical staff, and an integral part of those quality accounts is education and training. I would like to see it being widened beyond the clinical staff, because there are lots of staff in a hospital who need that constant education and training, to make sure that patient care overall is as good as we would all want it to be.
Lord Hunt of Kings Heath
My Lords, I refer to my chairmanship of a foundation trust. From the opposition Benches, we very much support this amendment and wish to reinforce the importance of education and training.
It is right that we should emphasise the importance of NHS foundation trusts recognising their responsibilities in relation to education and training. It is equally important that they have an influence over the architecture for education and training. As the noble Earl will know, there are going to be local boards responsible for commissioning the education and training of professional people. It is very important that the people who run hospitals should be very much involved in the selection of students and ensuring that the curriculum is effective. The noble Earl will know that the Future Forum paper chaired by the chief executive of University Hospitals Birmingham NHS Foundation Trust emphasised the importance of looking at these matters.
We will be debating the quality of nursing next week, but there is no doubt that there is a real problem with public perception of the quality of nursing in particular, and issues to do with nutrition and basic nursing skills. I am convinced that there is a real problem that the universities that train our nurses, in the end, are much more focused on academic practice, because that is what universities do. I am anxious that no one has been able to put their finger on the solution. One way of improving the quality is to involve the foundation trusts much more in these matters. My noble friend’s amendment is very helpful in that respect.
Earl Howe
My Lords, as noble Lords will know, we have had a number of earlier discussions about education and training and I welcome this new opportunity to return to the subject. As the noble Lord, Lord Turnberg, is aware, we are putting in place what we see as a strong national system for education and training, with a strengthened focus on quality outcomes.
In the Bill we have introduced a clear duty on the Secretary of State to ensure that such a system is in place. We are now making good progress in establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system. We are proceeding with care and at a sensible pace to ensure that the new system is fully up and running by April 2013.
We have also introduced amendments to strengthen links with the wider system. Our Amendments 61 and 104, which were accepted in an earlier debate, place duties on the board and on clinical commissioning groups to have regard to the need to promote education and training. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions.
We also accepted an amendment tabled by the noble Lord, Lord Patel, to strengthen co-operation among providers of NHS-funded services, which would place a duty on commissioners to ensure that any person providing services as part of the health service would have to co-operate with the Secretary of State in the discharge of his education and training duty, or with any special health authority discharging that duty—that is, Health Education England. This aims to ensure that providers, too, play an active role in education and training.
The noble Lord, Lord Hunt, spoke with his customary authority on this subject and I agree with what he said. I particularly agree that employers best understand the workforce they employ and the kind of workforce they want to employ. They also understand the need to link service planning and workforce planning. They are able to focus on the whole workforce and to recognise the levels of contact with patients and service users, and the varying local needs. Evidence from other sectors and feedback from providers has been clear that in order to deliver successful and responsive world-class services, employers need to have clear ownership and involvement in the education and training and planning of their workforce. I am entirely at one with the noble Lord on that.
Employers have welcomed our plans for education and training. They believe that this approach should provide real opportunities so that healthcare providers have the right incentives to secure the skills that they wish to have, invest in training and innovate to improve the quality of services that they provide. They welcome the opportunity to have the incentives to align service, financial and workforce planning, and to have greater flexibility to respond to the strategic commissioning intentions of the NHS Commissioning Board and clinical commissioning groups.
The NHS Confederation, NHS Employers, Foundation Trust Network and the Association of UK University Hospitals all support a system that provides greater accountability for employers. Strategic health authorities are working with employers to support them in developing these local partnerships so that they can take full responsibility for workforce planning, education and training.
I hope that that is of reassurance to the noble Lord, Lord Turnberg. What is happening on the ground almost pre-empts the speech he so articulately made. We are rapidly moving towards the kind of system to which he and other noble Lords aspire. Having secured the amendments that are already in the Bill, we do not believe that it is necessary to build in any more. On the strength of what I have said, I hope that the noble Lord will feel comfortable in withdrawing his amendment.
Baroness Murphy
I have concerns similar to those of the noble Lord, Lord Warner, but this amendment is different from those that I have seen floating around from the noble Lord, Lord Phillips. I also have questions, but we must be very clear about what we mean by “queue-jumping”. If an NHS patient goes to an ordinary NHS hospital consultant and is told that they need an operation, it is completely legitimate for them then to ask to go privately and pay for the operation. That is, as the noble Lord, Lord Warner, said, enshrined in the NHS Act of 1948, and completely legitimate. Queue-jumping is when a patient sees a private consultant who then inserts the patient into the NHS list ahead of other NHS patients. That is what we want to avoid, and it is already completely illegal and highly frowned on. Most hospitals do what they can to exclude it, but I take the point made by the noble Lord, Lord Phillips, that it goes on, and we know that it does. It is an unpleasant practice and should be stamped out, but I do not know whether this amendment does that.
As the noble Lord, Lord Kakkar, reminded us, the conundrum of private units in NHS hospitals must be borne in mind. That may be the most constructive way in which to ensure that NHS consultants are available to NHS patients when they need to be, as the noble Baroness, Lady Finlay, said. But often private patients have operations that go wrong—and then, if there are two patients in need of an NHS intensive care bed, the patient who takes priority is the person with the clinical need. It is very much the same as someone on a battlefield. It does not matter whether it is an enemy soldier or a domestic soldier.
Lord Hunt of Kings Heath
I thought that the amendment was focused not so much on clinicians but on the board of the trust. That is a slightly different argument.
Baroness Murphy
The noble Lord may be right. If the change in wording applies to how the management behaves but makes no change in clinical priorities—the noble Lord, Lord Kakkar, said that it would not interfere with clinical priorities—I would support it. It is necessary to ensure that management acts like that, as long as it does not cut across the clinical priority that the sickest person comes first, whether private or NHS.
Lord Campbell-Savours
I want to intervene briefly because we want to vote on these matters today. The amendment subtly gets to the problem at the heart of the Bill, which totally underestimates the new pressures that will build up within foundation trusts on management to change the nature of the patient body that comes into the trust for financial reasons. The noble Lord who has just spoken in many ways let the cat out of the bag. Pressures are exerted on clinicians by management to take actions that they do not necessarily want to take. If a trust is building up a substantial body of patients referred to it by insurance companies, it will want to be sure that within that trust’s operation some element of priority is given to its patients if only to minimise the liability that the insurance company has to the patient to pay their bills. In 10 years’ time, when the Government review the Bill, they will find that the pressure on management to change what happens in hospitals will lead to the beginning of the destruction of the National Health Service as we know it.
Lord Hunt of Kings Heath
My Lords, I have a great deal of sympathy with the amendment. When I first worked in a hospital in 1974, the Nuffield Orthopaedic Centre in Oxford, we had a private patients’ ward called Mayfair. The succession of senior consultants, the head OT and head physio, gave me an impression of the priority that was given. There will always be debate about the phasing out of paid beds—this was the case even under Barbara Castle—but some of it arises from real concerns over differentiation in equity of treatment.
I take the amendment to be very focused on the board of an NHS foundation trust, not on individual clinicians. It is an important safeguard regarding the way in which the board of a foundation trust may wish to deal with the financial pressures that it is under. We should not be under any doubt, and I speak as an FT chair, that many foundation trusts are facing financial pressures alongside the rest of the NHS. They are required to make efficiency savings and, probably, to move resources from acute hospitals into primary care without any reassurance that primary care is going to demand-manage. There is a real worry that GPs will give more money to themselves but with no guarantee that that will impact on the flow of patients through acute hospitals. There is concern that the pressure on acute hospitals, instead of reducing, which we would like to see, will actually grow.
Baroness Rawlings
May I just remind the noble Lord that the Companion sets out that a Member shall not speak twice on an amendment on Report.
Lord Hunt of Kings Heath
My Lords, I have to say that we are seeing a reinterpretation of the normal procedure on Report. Nothing in the Companion prevents a noble Lord intervening and asking the Minister a short question. The fact is that by ploughing on and refusing to answer questions, the Minister is not serving the House appropriately.
Baroness Rawlings
I shall just read from the Companion:
“A member of the House who is speaking may be interrupted with a brief question for clarification. Giving way accords with the traditions and customary courtesy of the House. It is, however, recognised that a member may justifiably refuse to give way, for instance, in the middle of an argument, or to repeated interruption, or in time-limited proceedings when time is short. Lengthy or frequent interventions should not be made, even with the consent of the member speaking”.
Baroness Bakewell
My Lords, the amendment calls for a commissioner for older people. When I moved such an amendment in Committee, I suggested the role as a freestanding one. In this amendment, I seek to have it subsumed into the agenda of HealthWatch England, requiring a commissioner to be a member of HealthWatch England but exercising this function entirely independently.
After a fruitful meeting with the noble Earl, Lord Howe, I realise that there are certain limitations around this suggestion—also put to me by other Members of this House—to which I shall come in a moment. However, first let me briefly revise the need for such a position. On every hand, the calls get stronger for the case of the old to be heard. Earlier this week, some 1,000 older and disabled people came to lobby their MPs about the crisis in social care. The Care and Support Alliance, which organised the event, represents more than 60 charities and organisations across the social care and health sectors. MPs heard stories from some of the estimated 800,000 people needing care who are currently not receiving it. Recent reports from the Equality and Human Rights Commission and the Commission on Dignity in Care have reported neglect and abuse. All this since the Committee stage of the Bill. Older patients take up most of the beds in our hospitals where they are patronisingly accused of bed blocking. Given the demographics of a growing population, this situation is set to get worse. No one now doubts that there is a growing national crisis.
All these commissions and reports are fine and often very thorough. However, they tell us about “them”, the old—a category of the population who need to be dealt with and have their needs met. But the old are not a lumpen mass; they are each as highly individual as those in any other age group. They need someone to speak in different terms and in a different tone about, “what we need” and, “what I am asking for”. A commissioner for older people would answer that need and relate directly to the personal stories that arrived in my post bag when I was the Voice of Older People. I feel confident in saying this because Wales already has an Older People’s Commissioner—Ruth Marks, who has a fine record of touring the country, visiting care homes, day centres and individuals, and bringing individual concerns to bear on the Government in Cardiff.
Let me now come to the limitations of this role. The NHS Future Forum report states:
“If the fundamental purpose of the Government’s proposed changes to NHS—putting the patient first—is to be made a reality, the system that emerges must be grounded in systematic patient involvement”.
The problem here is the word, “patient”. Older people are indeed patients, but their needs extend much further than this. As the noble Earl discussed with me in our very useful meeting, the needs of the old extend much further. They extend to matters that concern not only health but work and pensions, housing and transport. They extend across all other activities of life and all departments of government. I am wary of confining the function too tightly within the health Bill agenda. I take the noble Earl's argument, and other Members of the House have expressed similar concerns. I would value their views on this matter put on the record.
However, we have to start somewhere. Some initiative has to start the ball rolling. People want their voice, our voice, a voice, to speak out about our needs. The impulse to establish such a post is right, but the move to have a commissioner for older people has to be triggered somewhere. I hope that it will be triggered by the amendment. I beg to move.
Lord Hunt of Kings Heath
My Lords, my noble friend has made a powerful case for having a champion for older people to look not just at the impact of decisions made in the NHS but going much wider. She is right to refer to pejorative remarks such as bed-blocking being very insensitive to old people. We face a considerable challenge within the health service to ensure that we are sensitive and reflect that there is huge demand from frail older people which is not being met as effectively as we would wish.
My noble friend said that the amendment may not be perfectly formed but that we have to start somewhere. I wonder whether the noble Earl, late on this Thursday afternoon, might give some comfort. After all, it would not be impossible within HealthWatch England to have a designated person with responsibility for overseeing—or, if you like, monitoring—services for older people. It could be well worth exploring whether the thought behind my noble friend's amendment is worth pursuing.
Baroness Barker
I just make two or three simple points. I have enormous sympathy with the amendment of the noble Baroness, Lady Bakewell. My party's policy is in favour of the establishment of an older people's commissioner in England, building on the interesting work that has been done in Wales. I have a great deal of sympathy with what she is trying to do. She made the argument that one has to start somewhere. I disagree with her that this is the right place to start. If one had to start somewhere, it should be in social care. The deficiencies in social care matter more to more older people than those in health.
Having said that, the noble Lord, Lord Hunt of Kings Heath, is right. Given that older people are by far the biggest users of NHS services, it would be remarkable if healthwatch were not to include people with the expertise to follow up older people's issues.
My deep resistance stems from two things. First, I think that the biggest challenge set out in the Bill, which has been overlooked, which is why I take the opportunity to mention it again, is the challenge for the NHS to get to grips with social care and enabling older people—all people, but, by definition, older people—to live healthier lives for longer and not to wait until they turn up in the NHS.
However, my fundamental point is that I have talked to lots of older people over the years and I believe that old age has to be about more than the health service. If the only government recognition that older people have is the right to have someone to complain about the health service, I think we will be in danger of medicalising old age and inadvertently removing the full experience, wealth creativity and knowledge that older people bring to many aspects of life. I know that, given her former role, the noble Baroness, Lady Bakewell, would not intend that. Therefore, I hope that she will accept my support for what she is trying to do and my reservations about the way that she is trying to do it with this amendment.
Baroness Northover
Again, my Lords, what shines through is a great commitment to public and patient involvement at a local level; the only dispute is over the form of that. Again, noble Lords are familiar with the fact that various models have been tried, and I emphasise once again that we are seeking to build on the strengths of what has worked and mitigate some of the problems that have been encountered.
My noble friend Lady Jolly has tabled Amendments 234 and 235, the result of which would be to replace references to “people” with “local people” in Section 221 of the 2007 Act and insert the definition of “local people”. We talked about the difficulty of organisations— LINks in particular—reaching groups that were defined as hard to reach. The definition in my noble friend’s amendment says that when carrying out its functions, local healthwatch has to be representative of people who live in the area, service users and people who are representative of the local community. That applies to people of all ages and emphasises the need for local healthwatch to champion the views of the whole breadth of the local community. I am therefore grateful to my noble friend for this contribution, and I am happy to support her amendments.
Although I am sympathetic to the sentiment behind my noble friend Lady Cumberlege’s Amendments 232, 236 and 237, I hope I can reassure noble Lords that, as corporate bodies, local healthwatches will have the flexibilities to make their own arrangements for securing staff, accommodation and so on, so the local authority should not have to make such arrangements on their behalf. There is no need for express provision on payment of expenditure because the legislation requires local authorities to make arrangements to ensure that the relevant activities can be carried on in their area. Necessarily, that means providing adequate funding to enable the functions to be carried out. This is an important point that I hope reassures noble Lords: the statutory functions must be delivered, and that is a protection of these bodies.
My noble friend Lady Cumberlege is quite right about local healthwatches working out their own priorities and work, and they will no doubt be doing that in conjunction with what is found to be good practice around the country, information coming from HealthWatch England and so on. I assure my noble friend that staff are there to help to facilitate such work, not to dominate it. My noble friend Lady Jolly is right: local healthwatch is a partner with local authorities—the eyes and ears, as the noble Baroness, Lady Murphy, and others have said.
My noble friend Lady Cumberlege was concerned that government amendments would damage local healthwatch’s independence. I do not agree: the amendments do not dilute in any way the statutory functions of local healthwatch, including the ability to give advice to local authorities among others. In response to concerns that local authorities may try to suppress local healthwatch, we specifically brought forward Amendment 236E giving the Secretary of State the ability to publish conflicts of interest guidance that both local authorities and local healthwatch would have to have regard to.
The noble Lord, Lord Harris, raised a number of issues. He regretted the fact that yesterday he was not at the seminar that I mentioned. I regret that he was not there. It was interrupted by a couple of votes, but I am sure that he would have engaged with those who were speaking there. That would have helped to inform everybody. All Peers were invited and some from his group attended. I see a few shaking heads.
Lord Hunt of Kings Heath
My Lords, the seminar was held during the regular meeting of Labour Peers which has occurred at 5 pm on Wednesday evenings since time began.
Baroness Northover
I am very sorry if there was a conflict of timing. Obviously it is difficult to schedule all the various meetings. My noble friend Lord Howe has had 100 meetings on this Bill.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years ago)
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Baroness Barker
My Lords, the noble Lord, Lord Walton, will be aware of many occasions in this house—when the noble Lord, Lord Hunt, was Minister and some of us were in opposition—when we listened to Lord Weatherill speaking on behalf of Christian Scientists, who often wish to refuse treatment. I understand that this amendment originated from the Christian Scientists, who merely wish to draw again to the attention of the medical authorities the fact that they have a belief system that deserves the same amount of dignity and respect as any other. Perhaps he might view the amendment in that light.
Lord Hunt of Kings Heath
My Lords, I do indeed recall the debates that we had during one of the many health and social care Bills that have gone through your Lordships’ House in the past few years. It was indeed Lord Weatherill who raised the issue with me. Essentially, it was about standards in nursing homes where there was some concern that an insensitive regulator would take action against a home that was actually respecting the wishes of a member of the Christian Science religion. We were able to reach a satisfactory solution. An appropriate amendment was put forward and I think the noble Earl, Lord Howe, was also part of what I like to think of as the “second Weatherill agreement”. We may need another one in a couple of years’ time—who knows? I ask the Government for an assurance that the position that we then agreed will continue under the new Bill.
Lord Marks of Henley-on-Thames
My Lords, I will speak briefly, in addition to what my noble friend Lady Williams of Crosby said, to the amendments in our names concerning the Secretary of State giving guidance to Monitor: Amendments 163C, 166B, 173A, 173B and 173C.
These are further amendments concerning the role of the Secretary of State and are intended to ensure that the Secretary of State has a practical and effective influence over Monitor’s overall approach to the work it does. The Secretary of State would exercise that influence by issuing statutory guidance to Monitor that will have to be published and laid before Parliament. The guidance in each case could be revised but the revised guidance would also have to be published and laid before Parliament.
The heart of the scheme is Amendment 166B. The duty referred to in that amendment under Clause 61(9) is the duty on Monitor to exercise its functions consistently with the Secretary of State’s duty to promote a comprehensive health service. The amendment allows the Secretary of State to publish guidance to Monitor on the objectives specified in his mandate to the board and to set out guidance on how those objectives are relevant to the separate work carried out by Monitor. Monitor is, of course, required to have regard to such guidance.
Amendments 173A to 173C empower the Secretary of State to give guidance to Monitor in line with any guidance that he has published under new Section 13E of the 2006 Act. That is the so-called outcomes document issued by the Secretary of State to the board in connection with securing continuing improvement in the quality of services and outcomes achieved by the health service. These amendments make it incumbent on Monitor to have regard to that guidance, which must also be published and laid before Parliament. Amendment 163C concerns reporting by Monitor so that in its annual report Monitor would be required to state what it did to comply with the guidance, envisaged by these amendments, given by the Secretary of State in relation to the exercise of its functions.
These are modest but important amendments. They seek to weave into the fabric of the Bill a clear role for the Secretary of State to give strategic guidance to Monitor in line with the Secretary of State’s overarching duties, in particular with the objectives set out by the Secretary of State in his annual mandate to the board, and in line with the outcomes document that he publishes that is designed to ensure the board’s performance of its duty to secure improvement in the quality of services.
These amendments are part of creating a coherent and consistent framework within the new structures established by the Bill, to ensure a single and purposive approach by all the bodies within the NHS, with the Secretary of State remaining in charge of setting the strategic objectives for the service. In those circumstances I suggest that they are very welcome.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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Lord Hunt of Kings Heath
My Lords, as this is a government-supported amendment, perhaps I may seek clarification from the noble Lord. In the past three months the Secretary of State has intervened in the health service any number of times: for example, on issues arising from primary care trusts massaging figures on waiting times and on the way in which A&E departments work. If an issue was raised in Parliament, would the Secretary of State be able to intervene without any question or worry about whether it meets the terms for failure set out in the amendment? It is important to clear that up.
Lord Marks of Henley-on-Thames
It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State’s powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.
A similar test applies in the case of the board’s powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board’s view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.
As my answer to the noble Lord’s intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.
I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.
Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State’s prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.
Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate—and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.
The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.
The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.
Baroness Murphy
My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.
Lord Hunt of Kings Heath
My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.
The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this group consists of amendments to the Secretary of State and the Commissioning Board’s powers of intervention over health bodies and to the Secretary of State’s powers in the case of breaches of duty to co-operate. First, I should like to discuss the amendments relating to the powers of intervention. In doing so, I thank my noble friend Lord Marks for tabling the amendments and presenting them to the House so ably. He committed a great deal of time and effort to developing these amendments and I believe that they will make this a better Bill.
As noble Lords will be aware, the amendments sit within the package of amendments relating to ministerial accountability that was agreed through a process of cross-party negotiation and consensus-building. They address concerns from several Peers that, in the words of my noble friend Lord Marks,
“the bar may be set too high against the Secretary of State’s intervention”.—[Official Report, 11/10/11; col. 1572.]
I hope they provide reassurance to the House that this will not be the case. I support the amendments and hope that other noble Lords will follow me in doing so.
In answer to the noble Lord, Lord Hunt, my noble friend’s amendments clarify that the Secretary of State can intervene where he considers that a national body is failing to discharge its functions consistently with what he considers to be the interests of the health service, provided that he considers that the failure is significant. They also clarify the same point for the Commissioning Board’s intervention powers over CCGs and, in addition, where a national body may have functions beyond the remit of the health service, these amendments clarify that the Secretary of State can intervene where the body significantly fails to exercise the function consistently with the purpose for which it was conferred. I hope that that explains fully the point of the amendments and answers the noble Lord’s question.
Lord Marks of Henley-on-Thames
My noble friend the Minister has certainly persuaded me not to press those amendments. I never had any intention that they should go to the vote. However, I still express some concern about the point made by the noble Lord, Lord Hunt, as to whether the stop power can actually involve the Secretary of State in having the power to knock heads together in the way that he describes. Of course, I entirely accept that the intervention powers under the other amendments go a great deal of the way to improving the position, but if he would like to give it further thought that would be very helpful.
Lord Hunt of Kings Heath
I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?
Lord Hunt of Kings Heath
Does that mean that the matter can be brought back at Third Reading? I think that is the point here.
Baroness Hollins
My Lords, I have been reflecting on the amendment tabled by my noble friend Lady Finlay. I declare an interest as one of my daughters has one of the conditions that she mentioned in her speech.
This lacuna must be addressed because the discretionary powers of clinical commissioning groups to apply the appropriateness test provide no assurance for those with these rare diseases. Today’s debate shows that it is essential that this is addressed in the Bill. I hope that the Minister will be able to suggest a way in which perhaps a government amendment might be able to address this lacuna.
Lord Hunt of Kings Heath
My Lords, this is a very interesting group of amendments. They do not entirely fit together but all of them raise important points.
I very much support the noble Baroness, Lady Cumberlege, in her comments about HealthWatch. This is my mea culpa moment about the demise of community health councils. It is clear that having a statutory body with the right to be heard and listened to is very important at local level. Of course, I would link the noble Baroness’s amendment with the desire for HealthWatch England to be wholly independent of CQC, which is another important ingredient in ensuring that the patient voice is heard as effectively as possible.
We support Amendment 96. There has been a persuasive argument about the need to ensure that services for patients with less common conditions are commissioned effectively. We debated these issues on Monday. We know that primary care trusts have often found it difficult to give proper attention to these services. With clinical commissioning groups, this will become even more problematic. I hope that the noble Baroness will be able to pursue that.
I entirely support the noble Baroness, Lady Williams, on Amendment 75. This is a very important statement of principle. I understand the points made by the noble Lords, Lord Mawhinney and Lord Newton. I am sure that this matter will be put to the vote. The whole point about Third Reading is that it can be used for parliamentary counsel to tidy up the wording of such amendments. I do not think that we should let minor technical difficulties get in the way of passing an amendment which has a very important principle. It may be that the noble Earl, Lord Howe, will agree to it. Let us hope so.
My amendments relate to the corporate governance of clinical commissioning groups. On Monday, I developed my arguments when we discussed conflict of interest issues. I do not want to go over the same ground again, save to say that clinical commissioning groups will have a crucial role to play in the new system. They are to be handed billions of pounds by the NHS Commissioning Board to commission services. Essentially, a clinical commissioning group is not an NHS board as we know it. It is a group of small business people—GPs—who will be able to benefit financially from the decisions of that board. I cannot conceive that the Government could be going down this route if they did not want more resource spent in primary care. That must be one of the end results of the Bill. The Government want to spend more money in primary care and to reduce expenditure in acute hospital services, which is a very fair aim. But that means that the board of clinical commissioning groups will be spending public money and placing it in the hands of GPs who also sit round the board of the clinical commissioning group.
The conflict of interest amendment in the name of the noble Baroness, Lady Barker, which the noble Earl accepted, was very weak and does not provide the kind of assurance that we require. I have to say to him that there will be trouble in the future with clinical commissioning groups in this area. The proper safeguard would be for clinical commissioning groups to have a proper board. Proper boards in the public sector usually ensure that there are a majority of non-executives, people who are appointed independently, who can make sure that the public interest is protected. We have the extraordinary proposal that we are guaranteed only two non-executives on the board of clinical commissioning groups. We are not even guaranteed that one of them will be the chair of that clinical commissioning group. Looking over all the corporate governance difficulties in this country in the past 20 years, can noble Lords imagine that any of those inquiries would endorse the kind of governance arrangements that the Government are putting forward for clinical commissioning groups? I say to the noble Earl, Lord Howe, that I just wonder how long it will be before the first group of members is prosecuted for corruption. This is an open invitation for corrupt action. The Government show no signs of understanding or realising what difficulties they will put the whole service in by these proposals.
I have put forward a number of amendments to put in place proper corporate governance protection. I also believe that the constitution of clinical commissioning groups should be subject to approval by your Lordships’ House. In relation to primary care trusts, orders go through. I do not see why the same thing should not happen to clinical commissioning groups. I also endorse everything said by the noble Lord, Lord Patel, about quality payments. It is absolutely abominable that quality payments could be made to clinical commissioning groups where those payments end up in the pockets of individual GPs. That money ought to go into the commissioning of services. Again we see the conflict of interest. There is so much potential for conflict of interest between commissioning decisions in the public interest and commissioning decisions which are to the financial advantage of the members of the clinical commissioning group.
Finally, Amendment 118 would remove the quality premiums altogether. This is very much a probing amendment. I am content to support the noble Lord, Lord Patel, in his argument that, if quality payments are to be made, they should simply be put back into the commissioning pot.
“( ) provide for the chair and non-executive members of each governing body to be appointed using an independent process, the details of which are to be laid out in regulations;”
Lord Hunt of Kings Heath
The Minister thought that I was projecting a doomsday view of corporate governance within clinical commissioning groups. It is not doomsday but a warning that if you give enormous power to professionals who can take advantage financially from their decisions, you need strong corporate governance safeguards. The best safeguard is to have independent appointment of non-execs, who should be in a majority on a board. That is such a well known process and a safeguard in all public bodies. I beg to test the opinion of the House.
“(8) That the funds to meet the running costs of fluoridation schemes covered by legal agreements entered into before 1 April 2013 shall be—
(a) met from the identified fluoridation funds within the ring-fenced public health grants to be made by the Department of Health to local authorities with effect from 1 April 2013;(b) held by Public Health England on behalf of the responsible local authorities in order to meet the costs incurred by water companies in operating those fluoridation schemes;(c) accounted for by Public Health England to the responsible local authorities in annual reports on the expenditure incurred on behalf of those authorities.(9) That the funds required to meet the running costs of new fluoridation schemes covered by legal agreements entered into after 1 April 2013 shall be—
(a) met from additional ring-fenced public health grants allocated by the Department of Health to the local authorities requesting fluoridation of all or part of their areas following a public consultation held under the provisions of this Act and its associated regulations;(b) held by Public Health England on behalf of the responsible local authorities in order to meet the costs incurred by water companies in operating those fluoridation schemes;(c) accounted for by Public Health England to the responsible local authorities in annual reports on the expenditure incurred on behalf of those authorities.
Lord Hunt of Kings Heath
My Lords, I shall be brief. I was very grateful to the Minister for a meeting with her and her officials a week ago. I have two concerns about fluoridation schemes. The first is to make sure that where there are current fluoridation schemes, the amount of money being spent on their running costs will transfer to local authorities and that it will be recognised in terms of the allocation that is given. I think the noble Baroness will be able to reassure me on that.
The other question I want to put relates to where new schemes come into being. The proposed system seems rather convoluted, with various bodies involved, including Public Health England at a national level but also many local authorities. I just want some assurance that if a local authority or a combination of local authorities decide to go for a fluoridation scheme, the system of financing will be as smooth and easy as possible and that resources will be available to enable those schemes to go ahead. I beg to move.
Lord Colwyn
My Lords, I support everything that the noble Lord, Lord Hunt, has said and declare an interest as vice-president of the British Fluoridation Society. I believe in the efficacy of the fluoride ion, and during my own dental career have seen the beneficial results of this public health measure.
I do not want to repeat what the noble Lord, Lord Hunt, has said, but the Government envisage that, in future, local authorities will be the bodies that consult on fluoridation and decide whether to introduce and maintain a scheme. The issue is about funding for existing schemes and for possible future schemes. The Bill as it stands would mean that on 1 April 2013 the money currently spent by the NHS on existing schemes would pass to local authorities, which would then have to pass it on to the Secretary of State via the new organisation, Public Health England, to pay the bills presented by water companies. This would be a complex, bureaucratic process. If, for example, the money got stuck somewhere, the water company affected would quickly get fed up and stop fluoridating. How much smoother and quicker it would be if the money that the NHS is currently spending went directly on 1 April 2013 to the Secretary of State and Public Health England. This would mean that the organisation that will actually pay the bills will have the money in its account and not be reliant on local authorities transferring it.
The Bill as it stands also means that if any of the new schemes are ever voted for by local authorities when they take charge of consultations on fluoridation, the Secretary of State will look to them to pay for those schemes. Yet local authorities are not responsible for dentistry and have no dental budget. So where would they get the money from? In all probability they would not get it and, as a result, no new schemes would ever be implemented. This amendment means that, although the local authorities will be the decision-making bodies in future, the money for any fluoridation schemes that they support will come from the dental health services budget of the NHS Commissioning Board, the body that stands to benefit from the reduced treatment costs that would follow. The NHS Commissioning Board would transfer funds to the Secretary of State, who would pay the bills submitted by the water companies. I may have got this wrong, but I would be delighted to hear what my noble friend the Minister has to say.
Baroness Northover
I thank noble Lords for that extremely brief and consensual approach to this issue. We debated this in detail in Committee, and I commend all noble Lords for their work in this area.
We certainly agree that the rates of tooth decay in children and adults is an important public health measure. I point noble Lords to the public health outcomes framework, which my noble friend Lord Colwyn might like to have a look at, which is a document to which local authorities will have to have regard.
The noble Lord, Lord Hunt, asked whether, in terms of the public health funding allocation to local authorities, if a local authority has a fluoridation scheme, whether it will be covered within the budget. I can assure him, as I did in the meeting that we had earlier, that indeed it will be covered in the budget, which will look at the public health needs of the area—and that will be reflected in the grant. Those are the current schemes. The noble Lord asked about future schemes. Public health funding is ring-fenced, and the Government look at the needs of the area. However, local authorities will be deciding how they prioritise various issues, so it would not be appropriate for us to say that they must address this issue through a fluoridation scheme. They might be looking at all sorts of other public health issues and seeking to address their responsibilities in terms of dental health in some other way. However, I point out something that I did not know before—and I do not think that the noble Lord knew before—which is that just about all fluoridation schemes currently in place have been initiated by local authorities over their history.
I recognise the commitment of noble Lords to dental health. I appreciate it and realise that noble Lords want to speed it along. I hope that reassurances about the level of funding for current schemes will reassure the noble Lord, Lord Hunt, so that he feels able to withdraw his amendment. We continue to be very keen to engage in this area.
Lord Hunt of Kings Heath
My Lords, I should have declared in moving my amendment that I am president of the British Fluoridation Society. The noble Baroness, Lady Gardner, reminded me by making her own declaration. I am most grateful to the Minister and beg leave to withdraw my amendment.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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Baroness Northover
My Lords, noble Lords have raised a number of issues regarding Public Health England, many of which we discussed in Committee. Both then and today, we heard serious points very cogently argued, which we greatly appreciate. We have considered all these issues very carefully. Since Committee stage, the department has published more detail on the new public health system, including its operating model for Public Health England. The views expressed in Committee influenced the tone of those documents, and I hope that I can now reassure noble Lords that our proposals will give the agency the operational independence that it needs to become the leading organisation of its kind in the world.
The first point I want to stress is that Public Health England will function openly and transparently. Its operational freedom will be formalised in a clear and published framework agreement between it and the department. My noble friend’s amendment proposes that the PHE board must have a non-executive chair and a majority of non-executive members. We have considered this at length and understand what the amendment aims to achieve, but we do not agree that this is the best option.
The Public Body Review was clear that Ministers should take more responsibility for arm’s-length bodies. Cabinet Office guidance is also clear that nothing should undermine the direct accountability of an agency chief executive to the relevant Minister. We believe that there are sound and pragmatic reasons underlying that position, which could be put at risk by a governance structure dominated by non-executive representatives.
The public will look to the Secretary of State for leadership and accountability in protecting the nation from threats to health and they will be right to do so. The buck must be seen to stop with him. In the past, public health has too often been pushed to the fringe, which has been recognised by noble Lords. This arrangement brings public health centre stage. Instead of the NHS simply being a treatment service, public health in its widest sense will be central to the new arrangements.
Lord Hunt of Kings Heath
Does the noble Baroness not recall the reason why the Food Standards Agency was set up? The agency was given complete independence because the public had lost confidence in the role of Defra in relation to food safety. On public health issues, surely she can see that when she simply says that it should be a Minister who responds, the risk is that people will lose their faith in the fact that public health advice will not be impartial and independent. The Government are really putting at risk the integrity of the public health advice that is received.
Baroness Northover
I have heard what the noble Lord and other noble Lords have said in that regard. There have been very interesting debates over the role of the Secretary of State in the whole of the NHS. Public health is one part of that. It is interesting to see that in some areas noble Lords would like the Secretary of State to be closer.
Lord Hunt of Kings Heath
Perhaps I may come back on that. Surely, it is very different. In relation to the National Health Service, we have been arguing that because of the need for parliamentary accountability, it is absolutely right that the Secretary of State should have the responsibilities that are now in Clause 1. But here we are talking about critical issues around public health where the need for independence is very important. Having professional advice on issues such as public health is very different from there being direction over the operation of the NHS.
Baroness Northover
As I have outlined, there is independence. It is key to the changes that we hope to put in place in terms of public health that it moves to the centre stage and that the Secretary of State has a much more direct line of sight in terms of promoting public health and the protection of the public. The Secretary of State will lead and have direct accountability for public health, which many people have welcomed.
Inserting an independent chair and board between him and the individual charge for the day-to-day running of Public Health England could blur those clear lines of accountability and undermine the chief executive without enhancing the agency’s flexibility, responsiveness and effectiveness in dealing with threats. This is not to say that the chief executive should not face independent challenge from the board. On the contrary, the board will include at least four independent—
Lord Hunt of Kings Heath
My Lords, I declare an interest as president of the Royal Society of Public Health, which I should have done in my earlier intervention. Can the noble Baroness—briefly but taking a little time—say whether she thinks from what she has heard from the Minister that she can now bring this issue back on Third Reading? I was not absolutely sure what the implications of the offer of talks meant in terms of our being able to debate it on Third Reading. I hope she takes it as an acceptance that the matter could come back on Third Reading.
Baroness Cumberlege
Perhaps I may address that in one minute’s time.
I appreciate the commitment of my noble friend Lady Northover to this matter. I understand that the Government are anxious to build on public health, as the noble Lord, Lord Patel, said, and that they take this area with all due seriousness.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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“(8A) The standing rules under subsection (1) shall make provision as to how clinical commissioning groups are required to register, manage and report upon conflicts of interests of both members and employees of a clinical commissioning group, or any individual engaged by a clinical commissioning group to be involved in any part of the process of commissioning NHS services (“the Conflict and Financial Interests Rules”).
(8B) The Secretary of State shall consult upon and then publish a Code of Conduct for members of clinical commissioning groups concerning the registration of pecuniary and non-pecuniary interests by members of a clinical commissioning group, and setting out how clinical commissioning groups shall manage actual or potential conflicts of interests amongst its members, which shall include provisions concerning the provision of services (other than NHS services) to NHS patients.
(8C) The Conflict and Financial Interests Rules shall include the following provisions—
(a) a duty on members of a clinical commissioning group to abide by the terms of the Code of Conduct to be published by the Secretary of State under subsection (8B) hereof;(b) that each clinical commissioning group shall maintain a register of pecuniary and non-pecuniary interests of members of the clinical commissioning group;(c) a requirement that each member of a clinical commissioning group shall register all of his pecuniary and non-pecuniary interests in the Register unless the said interest shall be within a de minimis classification set out in the Regulations, and shall keep the said register up to date;(d) a requirement that the register of interests of each clinical commissioning group shall be published and made available for public inspection;(e) a requirement that, unless approved by the Board, a clinical commissioning group shall not be entitled to enter into any arrangements to commission healthcare or other services with any person where any member of the clinical commissioning group has a financial interest or link to that person of a type set out in Regulations (“a Conflicted Arrangement”);(f) a procedure (“the Exemption Procedure”) under which a clinical commissioning group shall be entitled to request an exemption from the Board so as to permit the clinical commissioning group to enter into any a Conflicted Arrangement;(g) that the Exemption Procedure shall require the clinical commissioning group to publicise the application for the exemption and to permit any objections thereto to be considered by the Board;(h) that the Exemption Procedure shall provide that, after considering the merits of the individual application, the Board shall be entitled to approve the arrangement if but only if the Board is satisfied that the proposal to enter into any such arrangement has been the subject of an open and transparent procurement process, that it provides the best value for money for the clinical commissioning group and that there are appropriate safeguards proposed by the clinical commissioning group to manage any conflict of interest in the management of the said arrangement;(i) that no member of a clinical commissioning group shall be permitted to take any part in any discussion of or decision making process concerning any arrangement or proposed arrangement with a provider of services with whom that person has a registerable interest;(j) a procedure for complaints to be made to the Secretary of State by any person who alleges that a member of a clinical commissioning group has acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Regulations;(k) a procedure for the Secretary of State to appoint an adjudicator to investigate and to rule upon any such complaint; and(l) for the adjudicator to be able to impose sanctions on any member of a clinical commissioning group has been found by an adjudicator to have acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Rules including—(i) such financial sanctions as the Secretary of State shall consider appropriate;(ii) suspension of such a person from being a member of a clinical commissioning group; (iii) removal of such a person from current membership of a clinical commissioning group;(iv) a bar on such a person being a member of a clinical commissioning group for a period of up to 10 years;(v) the referral to the Board for action to be taken against any individual who is a performer under the National Health Service (Performers List) Regulations 2004; and(vi) the suspension or termination of any contract or arrangement for the provision of NHS services that may exist between the Board or any clinical commissioning group and that person or any partnership, company or other organisation with whom that person shall have a registerable interest.(8D) Where any contract or other arrangement is suspended or terminated by the action of an adjudicator following an adjudication under sub-section (8C)(I), no other person shall be entitled to assert any legal right or make any claim for damages or financial compensation on any other basis whatsoever against the Board or any clinical commissioning group as a result of the said adjudication.”
Lord Hunt of Kings Heath
My Lords, we return to one of the most important matters in the Bill: clinical commissioning groups and their effective corporate governance, or lack of it—specifically, the question of how conflicts of interest are to be dealt with. In his letter of 16 February to putative clinical commissioning groups, the Secretary of State spoke enthusiastically of the freedoms that they were to receive. There can be little doubt that they are one of the most important features of this Bill. They are to be given a huge amount of money. They are to be given freedom to commission services. They are to be given freedom to decide when and how competition should be used. Because clinical commissioning groups will exercise such important roles, I would have thought that public interest demands that the principles of good corporate governance should apply as much to them as to any other public body.
In Committee, the noble Lord, Lord Kakkar, drew attention to the seven principles of public life and asked whether they applied to clinical commissioning groups. I asked the noble Earl, Lord Howe, whether independently appointed non-executives would be on the board of clinical commissioning groups. I also asked how conflicts of interest were to be dealt with. He said that the Bill places a duty on the Secretary of State,
“to publish a code of conduct for CCGs, incorporating the Nolan principles on public life”.—[Official Report, 14/11/11; col. 564.]
To my suggestion that each clinical commissioning group board should have on it a majority of non-executives and be independently appointed, he said—disappointingly—that each group must only have at least two lay members and that one must be either the chair or deputy chair of the governing body.
On the conflicts of interest, the noble Earl said that the Bill had three safeguards: statutory requirements on clinical commissioning groups to make arrangements to manage conflicts of interest, governance arrangements, and specific regulations on good practice in the procurement and commissioning of healthcare services. Is that sufficient? I do not think that it is. These groups are unique. In essence they represent groupings of small businesses which have had handed over to them billions of pounds, a proportion of which they can spend on primary care services. Sometimes these are to be provided in the surgeries of GPs who are members of the clinical commissioning group, or perhaps are to be provided by companies in which GPs within a clinical commissioning group may have a financial interest. The potential conflict of interest is so obvious that it surely begs the question as to why the Government are not putting safeguards on this matter in the Bill.
My amendment is a lengthy one, but I hope comprehensive. It sets up a register of pecuniary and non-pecuniary interests. It places an obligation on clinical commissioning groups to register. It prevents any arrangements being entered into between a clinical commissioning group and a party with whom a member has an interest. It provides for an exemption procedure whereby the board could approve the arrangement if it was open and transparent. It prohibits a member of a clinical commissioning group taking part in discussions with any business in which he or she has an interest. It also provides a process under which an adjudicator appointed by the Secretary of State can adjudicate on complaints about members of clinical commissioning groups breaching the code of conduct, which is provided for in my proposed new subsection (8C). The sanctions include removing the individual as a member of the clinical commissioning group and the termination of any contract which has been put in place between the group and anyone with whom the member has a registerable interest.
A clinical commissioning group board will have a majority of GPs sitting on it. They are involved in running businesses which are largely dependent on the NHS for their income. The role of a clinical commissioning group will be to commission services, some of which will be commissioned from those GPs who are members of that group or, as I said earlier, from companies in which some of those GPs may well have an interest. Independent lay members will be in a minority and we have yet to receive assurance that they will be independently appointed. We have not even been assured that the chairman of the clinical commissioning group will be an independent lay member. It will have the weakest corporate governance of any public body in this country.
We know that over the past 20 or 30 years any number of inquiries have shown the problems of poor corporate governance. After all, the Nolan commission was started because of such problems. This will explode in the Government’s face unless they strengthen the corporate governance of clinical commissioning groups. If you combine these weak corporate governance arrangements with the ability of a clinical commissioning group to make decisions that could be to the financial advantage of GPs who are members of that group, you are heading for trouble. We need robust safeguards and they ought to be in the Bill. I beg to move.
Baroness Barker
My Lords, noble Lords will recall that in Committee I too highlighted the issue of conflicts of interest. I did so because, like many other noble Lords, I had listened to and read the briefings sent by the professional bodies, many of which raised fears and concerns about conflicts of interest. Like many other noble Lords, I believe it is important not only that members of the public have faith in the integrity of the decisions being made by CCGs but that members of the professions believe in those decision-making processes and feel able to participate in them. They should also have the protection of good governance and good conflict-of-interest policies to enable them to carry out what will be a difficult role.
Before we look at the detail of this, it is important to remind ourselves a little of the context. There are conflicts of interest in the National Health Service now. There always have been, as anyone who has ever sat around the table at a joint finance meeting at which every single person has an interest in the discussion will know. It may not be a direct financial interest; it could be about a post, a project or money. Managing conflicts of interest is something that the NHS and PCTs do now. That is not to say that we should not take the opportunity of the Bill to make the principles according to which the NHS should act more overt. They should be the highest of principles.
It is for that reason that my colleagues and I raised the matter in Committee. We then drafted a set of amendments that are in this group—Amendments 84, 89, 91, 92, 93 and 116. I am very grateful to several noble Lords, including the noble Lord, Lord Newton of Braintree, who looked at those amendments with the seasoned eye of an ex-Health Minister. His response was, “Very good but an awful lot of this needs to be in regulation, not in the Bill”. I took his comments to heart, which is why my colleagues and I withdrew those amendments on Friday and noble Lords now have Amendments 79A, 82A, 86A and 86B before them on the Marshalled List.
It is also important that noble Lords understand one particular point about the interpretation of the Bill. A great deal of anxiety has been expressed by some of the professional bodies about the role of commissioning support organisations. Noble Lords may recall that I raised that in Committee. I have been in discussion with several members of the professions to try to understand the source of that concern. As far as I can understand, there is a view within some of the professional bodies that commissioning support and the commissioning of services are one and the same thing, whereas the Minister was at great pains in Committee to stress that they are two different processes that go side by side.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Baroness. Could she clarify what happens in the situation that she has laid out in these amendments if a member of a CCG does not do the right thing? Are there any sanctions in her amendment?
Baroness Barker
The noble Lord is quite right and I will come on to that.
These amendments also refer to the board publishing guidance and what that guidance would include. As I understand it, members of CCGs who are in material or consistent breach of a conflict-of-interest policy might be referred to their professional body. Amendment 86A is a regulation-making power. It is under that power that many of the important details could be included. They would, I imagine, include issues such as the ones which the noble Lord has just raised about the sorts of sanctions which CCGs should include in their guidance and policy.
Lord Hunt of Kings Heath
My Lords, with respect to the noble Baroness, she has withdrawn some amendments and put in some substitutes, so I think it is fair to ask her these questions. Without sanctions, this is not going to have any teeth. There is a major concern about corporate governance in CCGs. Surely it would be better to put it on the face of the Bill rather than, as it seems to me she is doing, leaving it up to CCGs to do the necessary.
Baroness Barker
Not entirely, my Lords. As I was coming on to say, an important piece of work is that the GMC is updating its guidance on how its members should work in the new setup. It is important that members of bodies such as the GMC, the BMA and other professional bodies are involved, should they wish to be, in setting out the detail of what those sanctions should be. We should end up with something that is effective and workable, as well as principled. The noble Lord’s argument does not therefore stand up. Nothing in these amendments would preclude that sort of sanction being put into regulations or guidance.
Our amendments are, admittedly, not as detailed as the amendment of the noble Lord, Lord Hunt, nor do they—as his amendment does—incorporate language from the world of commercial legislation. The terminology of conflicted arrangements and exemption procedures comes from commercial law, and I am not sure that that is appropriate for what we are seeking to do. At the end of this debate we should achieve the objective that all noble Lords are seeking—transparency and accountability around the decision-making processes of CCGs, and the legislation and regulations around them should be sufficiently robust so that not only can members of the public have faith in those procedures but the procedures should be workable. I accept that our previous amendments included provisions that were so draconian that they would not work in practice. We could have ended up in a position whereby the very people who should be making decisions on CCGs would not have been eligible to do so, particularly at the precise moment at which their expertise would be necessary.
Our amendments are not by any means the end of the matter; they are the beginning of a process that should move on further in the discussion on regulations and guidance. That is where much of the detail of this should come to the fore, but the principles that we have set out in these amendments are robust and workable, and I hope that in his reply the Minister will accept them.
Earl Howe
My Lords, this has been a very good debate indeed and I thank noble Lords for the careful consideration that they have given to how CCGs should best manage conflicts of interest. I have listened carefully to the various points raised and it is clear that this is an area of key concern. I hope that the House will therefore forgive me if I start by setting out the position on this issue before I turn to the detail of the amendments before us.
At the heart of the Bill is an intention to balance autonomy with accountability. We are giving freedom to those best placed to take decisions in the interests of patients to do so, but we will also hold them to account, not only for the outcomes they achieve but also for their managing this responsibility effectively, transparently and with integrity.
CCGs will be the guardians of significant amounts of taxpayers’ money, as the noble Lord, Lord Hunt, rightly pointed out, so it is only right that there are strict requirements in terms of governance, probity and transparency of decision-making. We must balance the benefits of the clinical autonomy of doctors with a robust management of potential or actual conflicts of interest. It is essential to get this right, and that means a proportionate and reasonable approach.
I reinforce the point that the Bill already provides very real safeguards in relation to conflicts of interest. The CCG must make arrangements in its constitution for managing conflicts and ensuring the transparency of its decision-making process. The CCG must have appropriate governance arrangements, including a governing body with lay members and other health professionals. These arrangements will be scrutinised by the NHS Commissioning Board as part of the process of ensuring that a CCG is fit to be established as a commissioner.
Let me be clear that this is not just about declaring conflicts of interests, which of course is vital, but also about putting in effective and appropriate arrangements to manage these conflicts where they arise. There is not, and cannot be, a one-size-fits-all approach to managing conflict, as it depends on the interest itself and where it may become a conflict. However, likely methods may include absenting the person from decisions in that area, or bringing in others—for example, the independent lay members—to oversee the process for decision-making in a particular area. The key factor here is that they cannot avoid the need to manage the conflict and to be clear about how they are going to do so.
The provisions around conflict of interest apply to all aspects of a CCG’s commissioning activity, which means that they would apply to how it worked with a commissioning support organisation. I appreciate that there is apprehension and, in some cases, misunderstanding about the role of commissioning support organisations, so I shall set out the facts about this issue for the benefit of noble Lords today, in particular my noble friend Lady Barker, to whom I was grateful for referencing the brief on this issue provided by Professor Allyson Pollock.
Commissioning support organisations are not intended to act on behalf of a CCG in making decisions. They provide support, which might take the form of analysis of performance or finance data, supporting procurement or the management of a contract, and back-office functions. Let me be clear: at no point can they take decisions for the CCG or assume responsibility for a CCG’s statutory duties. It would be unlawful for a CCG to sub-delegate its commissioning responsibility to another organisation.
I am, however, conscious of the concerns, particularly those raised by my noble friend Lady Barker, about whether members of commissioning support organisations could sit on a CCG governing body. I give noble Lords a commitment today that we will prohibit any representative of a commissioning support organisation sitting on a CCG governing body through our secondary legislation-making powers under new Section 14N.
I should also like to explain some of the other safeguards in the Bill relating to management of conflicts of interest. Under Clause 73, the Secretary of State may make regulations which we intend will impose specific requirements in relation to the management of conflicts of interest. They will also confer on Monitor various powers to investigate the actions of a CCG and take remedial action. Monitor will be required to issue guidance on these regulations.
The NHS Commissioning Board may also provide guidance on conflicts of interest. This renders unnecessary any additional amendment requiring the Secretary of State to issue guidance on conflicts of interest, as Amendments 86 and 93 would do, or to issue a specific code of conduct or financial interest rules, as Amendment 38B requires. I shall return to that point in a moment.
The Bill is also clear on the transparency and accountability of the decision-making process. Schedule 2 provides that the CCG constitution must specify arrangements for securing transparency about the decisions of the CCG and governing body. The NHS Commissioning Board will be able to issue guidance on the publication of minutes and will ensure that the constitution meets these requirements. This meets the intention behind Amendment 92. We cannot accept the amendment because it might not always be appropriate to publish details of all decisions made by a governing body.
Transparency and accountability must not be achieved at the expense of the effectiveness of the commissioner. PCTs are not required to discuss all matters in public now and we should ensure that CCGs are not subject to more onerous requirements. Amendment 91 may well prevent CCG governing bodies discussing potentially commercially sensitive issues relating to contract values or performance without the public being present, which could pose difficulties.
I can fully understand the intention behind Amendment 102, tabled by the noble Baroness, Lady Finlay, to ensure that local knowledge informs the work of the CCG. However, we have always maintained that the presence of health professionals on a CCG governing body is not intended to be a means for the CCG to obtain advice to inform its commissioning decisions. The non-GP members of the governing body are there to provide an independent perspective, informed by their expertise and experience, in the body responsible for ensuring that the CCG adheres to the principles of good governance. They must have no conflict of interest in relation to the clinical commissioning group’s responsibilities. Amendment 102 would mean that a CCG could have only local professionals in the governing body. This would obviously limit the CCG in its choice of governing body members and risks a conflict of interests. I urge the House not to accept that amendment.
GPs in CCGs have to meet the ethical standards set by the General Medical Council in good medical practice. That includes provision to avoid conflicts of interest. Anyone may raise a concern that a doctor has failed to meet the conditions of their registration with the regulator. However, a failure to meet the conditions which Amendment 93 would impose would not necessarily mean that a GP had been in breach of their conditions of registration, and the duty which Amendment 110 would place on the board would be disproportionate. I know that there is a real concern among some noble Lords and that it is felt that this is a necessary sanction, but it is far better to ensure the robustness of the approach that CCGs take and that it is appropriately overseen. It is more appropriate for an independent monitor to police the transactional behaviour of CCGs and to be able to take effective remedial action where it discovers evidence that a CCG has not followed regulations in relation to procurement and the management of conflicts of interest, which is the approach taken in the Bill.
I similarly urge that we do not place in legislation an indiscriminate requirement, as Amendments 38B, 93 and 116 would do, that people with an interest withdraw from the relevant decision-making process of the CCG. Clearly, that is often going to be the most appropriate means to manage a conflict of interest, and that is made clear by the NHS Commissioning Board Authority’s guidance, Towards Establishment, which was published recently. However, it should not lead us to impose on CCGs a blanket ban on individuals being involved in a decision-making process or sitting on the governing body in all circumstances in which they have an interest. It ignores the fine line that can be drawn between situations in which withdrawal is absolutely necessary and those in which it would be more effective for the CCG’s exercise of its commissioning function for the conflict to be managed, carefully and with external oversight, in a different way that maintains the integrity of the CCG.
I listened with great care in particular to the speeches of the noble Lords, Lord Warner and Lord Walton, on this theme. The best example of the second category that I mentioned is where a CCG is commissioning for local community-based alternatives to hospital services and it determines that the most effective and appropriate way to secure these is from all local GP providers within its geographic area. There are already inherent safeguards in the legislation to help manage conflicts in this scenario. The CCG would have to declare its commissioning intentions as part of its annual commissioning plan, on which it would consult the public, and it would engage with health and well-being boards in developing; and that makes the proposal transparent. It enables the health and well-being board and others to challenge the proposals. CCGs could similarly secure additional involvement in the decision-making process—for instance, by involving members of the health and well-being board or, indeed, other CCGs or members of the CCG’s audit committee. There is a choice. We have not identified one single right way of doing this. We think it is important to allow best practice to evolve rather than trying to pin it down in legislation. If all GP members of the CCG had to withdraw from the decision-making, it would be extremely hard for the CCG to actually make a valid decision, as it could not be delegated to the non-GP members of the governing body or a similar arrangement. It is only in certain circumstances that we would expect individuals with a conflict not to withdraw absolutely, but we have to keep this option open in legislation.
For the same reasons, I cannot support the proposals of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, in Amendment 38B, which would either require a CCG not to contract with a provider in which any member of the CCG had an interest, or require them to secure an exemption from this rule from the NHS Commissioning Board. The conflict and financial interests rules, which this amendment references, already require an individual to withdraw from any part of the decision-making process with a provider in which they have an interest. It is hard to see why it would be necessary also to prevent the CCG from contracting with such a provider or undergo a cumbersome—I have to say cumbersome—exemption process. That approach would make the board have to scrutinise individual procurements and generally police the transactional behaviour of CCGs. It would not allow for alternative local arrangements for quality-assuring the openness and transparency of a CCG’s approach. It should not have to be the board only that can ensure the probity of the commissioning decision. As I have suggested, the health and well-being board might provide a suitable external view, as might another CCG.
Lord Hunt of Kings Heath
I am grateful to the noble Earl for giving way so freely. I understand what he is saying about the bureaucratic process. However, will he not accept that the reason for that is that the corporate governance processes around the clinical commissioning group are so weak? For instance, why is there not to be a majority of independently appointed non-execs, as there would be on any other public board?
Earl Howe
I will come to that point in a moment. I do not agree with the noble Lord that the governance arrangements are weak. As I have said, one of the things that the board will have to do when authorising CCGs is to assure itself that there are fit and proper governance procedures in place.
I turn to the question of sanctions, which has been raised by a number of noble Lords. It is essential that patients and clinicians remain confident that members of clinical commissioning groups will always put their duty to patients before any personal financial interest. It is important that CCGs take all possible steps to avoid conflicts of interest. We foresee that the guidance that Amendment 79A requires the board to produce would set out the need for CCGs to make clear in their conflict of interest policy that any member of a CCG found to have failed to declare an interest may face a number of possible sanctions and individuals may also be referred to their professional body, which is a serious matter. The noble Lord, Lord Walton, was quite right in all that he said. I am very drawn to the provision of Amendment 79A, and I will come on to that more fully in a moment.
Lord Hunt of Kings Heath
My Lords, I think that that is a very disappointing response. The noble Earl, Lord Howe, said that clinical commissioning groups will balance autonomy with accountability, and he acknowledged that they will be guardians of billions of pounds of taxpayer’s money. He went on to say that there were three safeguards: the constitution, transparency and the governing bodies. However, he still fails to respond to the fundamental gap, which is the lack of proper corporate governance around clinical commissioning groups. Looking at other public sector bodies—NHS trusts, for instance; not foundation trusts, but NHS trusts—how would we feel if the Government came forward with proposals stating that the board of an NHS trust would consist of executive directors and one or two lay members? It is just possible—but it is not certain—that one of those lay members will be the chairman of the trust, or they could, indeed, be the chief executive. That, in essence, is what the Government are proposing for the governance of clinical commissioning groups. A group of GPs will sit round the table. They will have a couple of lay members who presumably will be appointed by the clinical commissioning group, because the Government consistently fail to say whether there will be an independent appointments process. The noble Earl never responds to me on this point. They will be deciding how billions of pounds should be spent. The noble Earl refuses to acknowledge that these GPs are business people who run businesses which depend mainly on contracts—
Earl Howe
My Lords, I realise that I did not answer the noble Lord and I apologise to him. It may be helpful for him to know that we intend to work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. We will be issuing regulations in due course setting out in more detail the requirements for appointing clinical—that is to say, non-GP—members to the governing body.
The report that we had from the NHS Future Forum stated that it would be unhelpful for clinical commissioning groups’ governing bodies to be representative of every group under the sun. We agreed with that. Requiring a bigger group of professionals on the governing body itself, or expanding it in any way at all, would not really mean that a broader range of interests are involved in designing patient services. It would just lead to governing bodies that are too large and slow to do their job well. However, we think that it is important for clinical commissioning groups to be led clinically. That is the point.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl. However, that ultimately means that a majority of the people on the board of a clinical commissioning group will potentially be able to take advantage of the commissioning decisions of that group. That is why the corporate governance is so concerning. I accept that my amendment might be regarded as rather lengthy. However, I am pushing this forward because I am trying to replace the lack of effective corporate governance.
The noble Earl says that sanctions will be contained in guidance, but I do not think that that is sufficient. The potential for conflicts of interest are so great and the amount of public money involved so considerable that we should have in the Bill a clear commitment to sanctions. I do not agree with the noble Earl that this is something that can be left to professional bodies. My noble friend Lord Warner was absolutely right to mention that case. It shows some of the risks of what essentially was, in that person’s case, a managerial issue being pursued by a regulatory body. I do not think that that is the right way of dealing with GPs who, it was alleged, had pursued actions in breach of whatever guidance was issued.
Lord Hunt of Kings Heath
My Lords, I am sure that Monitor will play an extremely useful role, but surely it would be much better to give further and clear guarantees that these matters will be dealt with effectively. I believe that we need more provision in the Bill specifically on sanctions. I should like to test the opinion of the House.
Lord Hunt of Kings Heath
My Lords, I would like to echo my noble friend Lord Rea and noble Lords from the Cross Benches on the importance of this group of amendments. At its best, primary care can be brilliant, but at its worst it can be absolutely appalling. The variation in primary care is probably wider than in any other part of the National Health Service. As the changes take place we can see that this may cause many problems in the future.
We are all agreed about the need for an integrated approach and for a smooth patient pathway. Clearly, primary care potentially has a very important role to play. However, it needs to step up to the plate. If acute hospitals are to reduce the scale of their operations, more will be expected of primary care. Yet acute hospitals are open every hour of the day: primary care is not. Indeed, there are often very big issues about how primary care can be accessed out of working hours. The out of hours services are not always as effective as they might be, and there are some practices where patients know that it is very difficult to get attention unless they turn up at the convenience of the doctor, and so they then end up at the accident and emergency department. As I read where the NHS is going, this is no longer going to be acceptable. If money is being taken away from acute care and more money is being spent on primary care, which must be the logical outcome of clinical commissioning groups, unless those clinical commissioning groups can ensure that GPs do what is necessary to ensure that primary care takes up the responsibility, we are going to end in great difficulty, where acute care services will continue to be demanded by patients and money is being spent on primary care but it is not doing the necessary job. Therefore issues around the monitoring and performance management of primary care become very important indeed.
The Government have decided not to place the contracts of GPs within clinical commissioning groups. I understand that because clearly there is another potential conflict of interest. They are to be held at the local offices of the national Commissioning Board. However, there are real questions to be asked about how bureaucrats, as the Government seek to call them—I like to think of them as managers—are going to handle those contracts. What will happen within a particular clinical commissioning group if there is a group of GPs who simply will not do what is required of them to make a contract work with a local hospital? For instance, there may be a risk-share arrangement with a local hospital, where essentially agreement is made on the contract price, but part of it is very much about demand management, where there is a risk share between the clinical commissioning group and the acute trust. That will depend on all the GPs within a clinical commissioning group doing what is necessary, playing their part and contributing to demand management measures. Frankly, there are a lot of GPs who will not have anything to do with that. We know that at the moment. It is happening everywhere, up and down the country, with GPs who do not give a damn about anything to do with demand management. What will happen? Who will be able to intervene in those circumstances? Clinical commissioning groups do not have many levers when it comes to poor performance among general practitioners. I suspect that the national Commissioning Board will not have the expertise either. That is why this group of amendments is so important. We all know that primary care can make a huge contribution to a good NHS in the future, but we have to admit that, of all parts of the NHS, we can probably also find the poorest quality of service as well. That is why we are looking for reassurance from the noble Earl that this new system will be able to deal with those poor performers.
Earl Howe
My Lords, I am grateful to the noble Lords, Lord Kakkar and Lord Patel, for their contributions to this debate and, indeed, to other noble Lords who have spoken. We have heard some very powerful and persuasive arguments. I have listened very carefully to them.
Amendments 43A and 43B highlight the concerns that I expect all of us in this Chamber share in relation to the need to ensure high-quality primary care for all patients. The noble Lord, Lord Hunt, made some very telling points in that regard. Of course, there can be no doubt that good primary care contributes to good healthcare outcomes overall. I fully agree that the NHS Commissioning Board should be held to account properly for its performance in commissioning primary care. I do not think, however, that the right way to achieve that is to prescribe that this must be part of the mandate. Our aim is that the mandate should have at its heart the NHS outcomes framework, which covers the range of care that the NHS provides. I make the simple point that good primary care will be essential to improvement against the NHS outcomes framework.
More widely, the department will be keeping under review the performance of the board and the way that it carries out its functions, including its direct commissioning. What matters here are the accountability mechanisms and how those in the system are monitored and held to account. Just as the board will have a commissioning outcomes framework to hold CCGs to account for the quality of their commissioning, it will be important to have robust and transparent information to assess the quality of what the board commissions itself.
We come back to what the Bill already says: it places duties of quality on the Secretary of State, on the board and on CCGs, requiring each of them to exercise functions with a view to securing continuous improvement in the quality of services provided to patients. The Bill also sets out robust arrangements for holding those bodies to account for delivering quality improvement. As noble Lords will be aware, the Bill already requires the board to submit a business plan setting out how it proposes to exercise its functions, and a report setting how it has exercised its functions, to the Secretary of State on an annual basis. In turn, CCGs must also submit their commissioning plans and annual reports to the board. Both the board, in reporting to the Secretary of State, and CCGs, in reporting to the board, will be expected to demonstrate how they have fulfilled their quality improvement duty, including in relation to primary care. Consequently we expect, for example, that both the board and CCGs will wish to monitor the standard of care and services provided by all primary medical services providers in fulfilling their duties.
It is possible that we will need a dedicated objective relating to primary care in the mandate—I am not ruling that out. It would be better, though, not to prescribe that in primary legislation. What matters is that there are clear and effective accountability arrangements, and the Bill as it stands provides flexibility to ensure just that.
The noble Lords, Lord Kakkar and Lord Rea, asked about the QOF. I agree with the noble Baroness, Lady Finlay, that the QOF is a separate issue, but I can say that the whole of the QOF is kept under review in consultation with the profession to ensure that it reflects the best available evidence and supports continuous improvement in the quality of care for patients. Over the coming months we will continue to discuss with the profession and its representatives how to focus the QOF on securing better healthcare outcomes and what that means for existing GP contractual arrangements.
I turn to the final amendment in this group, Amendment 95A. The Bill already ensures that the board has the information that it needs to demonstrate how it has fulfilled its duties. CCGs are required to provide information to the board in the form of the annual commissioning plan and annual report. In addition, the board and CCGs are under a duty to co-operate. In the normal course of business we expect this to involve the sharing of information as necessary but, in the event that a CCG might have failed, be failing or fail to discharge any of its functions, the board’s powers enable it to require any information or documents that it considers necessary from CCGs.
The noble Lord, Lord Hunt, posited the situation that there might be reluctant GPs who did not fulfil their part of the bargain, whatever that was, with the acute sector. There needs to be a way of investigating allegations that actions by GPs in their practices are adversely affecting a clinical commissioning group. Where a general practice is operating in such a way that it is a barrier to a clinical commissioning group meeting its functions, it will be for the commissioning group to work with the members of that general practice to support it to improve and contribute to the work of the commissioning group as a whole. Ultimately, if it is unable to do so, a clinical commissioning group may need to refer such cases to the NHS Commissioning Board, along with the evidence of the failure of the practice and details of any support that the commissioning group has provided to the practice to help it overcome any perceived difficulties.
Among other matters, the board may wish to consider if the practice’s actions are in breach of the practice’s primary medical services contract. Separately, the NHS Commissioning Board will have the power to investigate the suitability of individual GPs under the medical performers list provisions. As the noble Lord will know, this power is currently with primary care trusts.
In a nutshell, therefore, the Bill already imposes a duty on CCGs in respect of the mandate and allows the board to ensure that CCGs fulfil it. Further specific requirements in relation to providing information to the board are therefore unnecessary, so I hope that what I have said reassures the noble Lords, Lord Kakkar and Lord Patel, sufficiently to enable them to withdraw their amendment.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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Lord Hunt of Kings Heath
My Lords, this is a useful debate and I hope that the noble Earl, Lord Howe, will be able to describe how he thinks specialist services and services for less common conditions will be protected in the new arrangements.
We know that there have been problems with the current commissioning arrangements by primary care trusts, the issue being that if they are dealing with services that cover only a small group of patients they do not have the experience or expertise to commission services effectively. The possibility exists that clinical commissioning groups that cover even smaller areas than PCTs will have the same challenges to face. We know that the NHS Commissioning Board will be commissioning some services at a national level. It would be helpful if the noble Earl, Lord Howe, could explain the distinction between those services that will be deemed to be of national importance but there is clearly concern that CCGs will not be able to have the critical mass to commission locally, and so they fall to be commissioned nationally. Where will the line be drawn? There is a powerful case for highly specialist services and those that are known as services for less common conditions to be given some protection in the system.
Amendment 64ZA is rather different but it comes back to the point raised by my noble friend Lord Walton in our debates in Committee on the need for strategic direction on reconfiguration issues. I am sure that he is right, as indeed was the noble Baroness, Lady Finlay, to point out that decisions on emergency care and specialist networks are very difficult to make. We know that we probably have too many hospitals providing emergency care at the moment, but we also know that it has often been very difficult to reach local consensus. I know that the thrust of the Government’s legislation is for local determination but that is asking a lot. If you take a region you are asking for a huge number of clinical commissioning groups to come together and sign up to some kind of reconfiguration process which would lead to a more integrated approach in relation to emergency care. Without strategic health authorities and unless the local outposts of the national Commissioning Board are actually going to take an assertive role, there is a risk that we will not have the mechanism for making the kind of hard decisions that need to be made.
I am convinced that some strong, national leadership is required if you are to get movement on better emergency care and an acceptance that the current arrangements in some parts of the country simply will not do. It is interesting to see the debate in Mid Staffordshire following the problems in that trust and the recent publication of letters sent by the local clinical commissioning groups about the future of that hospital, causing a furore in the area. It shows some of the problems of an individual clinical commissioning group seeking to come to a view about the kind of reconfiguration of acute services. Of course, CCGs will need an input, but some external view and leadership would be very helpful to enable us to get better provision of services. As my noble friend Lord Walton says, one of the best examples of this is in relation to stroke services. The experience in London has shown, without any doubt, that pooling stroke services together in a limited number of acute centres has led to hugely enhanced outcomes. As a result of the London experience the strategic health authorities are requiring the same to be done throughout the rest of the country. The question I put to the noble Earl, Lord Howe, is: under the arrangements in the Bill, how can we ensure that that kind of national leadership will continue?
Earl Howe
My Lords, this has been another excellent debate. It is worth saying at the outset that I fully appreciate the importance of the board and CCGs paying due attention to the way they commission specialised services and services for less common conditions and indeed emergency services. I fully endorse the importance of services being delivered in an integrated way when that is in the best interests of patients. I listened very carefully to the case put forward by the noble Baroness, Lady Finlay, on Amendment 50A. She made a very persuasive case about the importance of only ever commissioning specialised services with a close acquaintance with the relevant guidance and evidence base. I could not agree more with her on that. Commissioning of specialised services requires specialist skills and this is precisely why we feel that the Commissioning Board is the right body to commission such services. The board will be able to draw on a great deal of expertise in doing so. I hope the noble Baroness recognises our shared commitment in this area. Very shortly we will be publishing a consultation document as a UK response to the EC recommendation on rare diseases. We hope to be able to do that within a few days. The consultation document and responses will form the basis of the UK’s plan. She will see in it that a great deal of thinking is going into how these services should be commissioned.
The noble Lord, Lord Walton, spoke with his customary authority about Duchenne muscular dystrophy. He may like to know that all regional specialised commissioning groups have undertaken reviews of neuromuscular services in their localities. Improvements to services are already being put in place. For example the NHS has invested in care co-ordinator posts which can reduce emergency admissions and readmissions. The national specialised commissioning group has also included neuromuscular disease as a priority in its 2012 work plans and it has been looking at emergency admissions as part of that work.
The noble Lord, Lord Winston, referred to rarer conditions, including those of genetic origins, as did the noble Baroness, Lady Masham, in relation to neuroblastoma. I identified closely with all that they said. Many of these conditions are extremely rare, fortunately. It is not possible for all health professionals and carers to have detailed knowledge of conditions which they will see only very rarely in their working life. However, already we are addressing this through such initiatives as NHS Choices. It is one of a number of initiatives that we have developed to provide comprehensive, clinically accredited information about health and health services. Comprehensive information to support clinical decision-making is also included on NHS Evidence, the new web-based portal hosted by the National Institute for Health and Clinical Excellence. It provides access to a range of information, including primary research literature, practical implementation tools and guidelines. I am not suggesting that it is the total answer to this conundrum but it is certainly a demonstration of the direction of travel. We want to see much more information available to commissioners at a local level.
I think there has been consensus in this debate as to the need to think long and hard about how and at what level particular services should be commissioned. I completely agree with that. It is not always clear cut and it does require careful thought. The Bill says that certain services will be for the board alone to commission. We expect these to include certain highly specialised services—I direct that assurance particularly to the noble Lord, Lord Walton. Other services will be by and large for CCGs to commission, but in collaboration if need be with other CCGs and supported by the board.
I appreciate the keenness of the noble Baroness, Lady Finlay, to ensure that the board’s commissioning of highly specialised services pays due regard to NICE guidance. However, we would prefer not to impose a blanket requirement on the board to exercise its functions in respect of specialised services, or any of its commissioning functions, in accordance with NICE guidance. NICE guidance will undoubtedly be relevant to specialised commissioning—that is obvious—but the amendment could well have the effect of requiring the board to have regard to it at the expense of other authoritative sources of advice. I have already referred to a couple. In exercising its duty to obtain expert advice, we would expect the board to draw on as wide a range of professional expertise as possible and not be constrained into prioritising that of NICE, valuable though that would be.
It is important for us to remember that CCGs must be competent to commission all services to meet the reasonable needs of all those for whom they are responsible. This includes services to meet the needs of patients with “less common” conditions, as Amendment 63A points out. CCGs will need to be well supported in developing as commissioners and the Bill provides a framework for just that. It provides for collaborative working, in Section 14Z1, between CCGs. The NHS Commissioning Board must publish guidance on commissioning, to which the CCG must have regard, which could also cover issues relating to commissioning for less common conditions.
The clinical senates and networks will be overseen by the board to ensure that CCGs can access specialist advice. Clinical commissioning, by giving responsibility for ensuring services meet the reasonable needs of patients to the very clinicians who deal with those patients daily and understand their needs, provides a far stronger basis for ensuring that commissioning caters to the needs of those with less common conditions than the current commissioning arrangements. GPs will be able through their membership of the CCG to seek to ensure that commissioning takes account of the less common conditions, which might not be of great significance across an entire geography but which are of great concern at the level of the individual GP practice.
I can assure the noble Baroness that the NHS Commissioning Board will be required to have a robust authorisation process to ensure that CCGs have made appropriate arrangements to discharge their functions competently, including consideration of the extent to which CCGs have collaborative arrangements for commissioning with other CCGs or local authorities as well as any appropriate commissioning support.
However, while I completely recognise the importance of commissioning services for this particular group of patients, I am afraid that I would prefer not to single out a requirement for authorisation to look at specific groups of conditions in the Bill. It would not make the NHS Commissioning Board’s process any more effective, but it might lead emerging CCGs to add undue weight to this if it was the only part of the services that CCGs will be responsible for commissioning that was specified in relation to the authorisation process.
I hope that it is recognised by your Lordships that in opposing Amendment 64ZA I do not wish to suggest that the concerns of that amendment, to ensure the quality of urgent and emergency care and the integration of its different elements to the benefit of patients, are unimportant—indeed, quite the opposite. The framework in the Bill for ensuring the competence of commissioners, securing continuous improvement in the quality of care and ensuring the promotion of integration applies to emergency and urgent care services every bit as much to as other areas of care. Commissioners will use the expert advice from senates and networks, and from other sources, to determine the best approach to commissioning integrated approaches to the delivery of urgent and emergency care, and within the context of a far-reaching national programme. As the House will know, we already recognise the importance of integration across the health service, particularly in urgent and emergency care. The introduction of NHS 111 will act as a driver for the redesign of local urgent and emergency care systems to create a more integrated system that is easier for patients to access and understand.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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Baroness Emerton
My Lords, I support the amendments in the name of the noble Lord, Lord Patel, from the point of view of other healthcare professionals—our debate has focused mainly on medical professionals to date. The noble Lord was careful to relate his Amendment 16 to all healthcare professionals. We need to make sure that Health Education England is multiprofessional in its focus. However, the amendment makes no mention of any links with social care. I am aware that we will debate social care in the spring, but it is important that healthcare professionals have included in their programmes and curriculum information on social care.
Amendment 16 mentions workforce planning, which must be a joint exercise between healthcare education and commissioning. The professions will be reassured if they know that workforce planning will be shared between the two rather than it being the concern of health education or commissioning alone. I support wholeheartedly Amendment 13, which encompasses all our discussions and brings to the fore the need for wholeness in healthcare professional education.
Lord Hunt of Kings Heath
My Lords, I support Amendments 13 and 16. This debate follows on from our useful discussions on education and training last week. Once again, we see a tension between the need for a national strategy on education and training and the need for local ownership. Amendment 16 in the name of the noble Lord, Lord Patel, gives us that, and I hope that the noble Earl will be sympathetic to it.
We all know about the problems that have arisen in the past where there has not been sufficient national leadership. Decisions about training places have been left to local bodies and the budget has been squeezed, the result being that a few years later there have not been enough people coming into the National Health Service, which has had a very damaging impact. I think there is unanimity in your Lordships' House that there has to be a very strong national strategy.
I very much take the point made by the noble Baroness, Lady Emerton, that there must be co-ordination in workforce planning between Health Education England, as the national strategic body, and commissioners, but I would add providers because it is they who will employ the staff who have been trained. It is essential to get our workforce planning and our commissioning at a national level into sync. It is more an art than a science, and I suppose that it has never been achieved to 100 per cent satisfaction. None the less, that is what we should strive to do. Speaking as a foundation trust chair, I say to noble Lords who have discussed the national element of this that it is vital that NHS trusts and foundation trusts play a full part in the discussions. At the local level, the local education boards have a crucial role to play.
I very much support the argument of the noble Lords, Lord Patel and Lord Kakkar, on independent chairs and transparency. That is important, but it is also important that the education providers feel sufficient challenge from local NHS bodies when it comes to the quality of their education and training. I am sure that we will come later to the issue of nurse education and training. There are some real issues about the quality of nurse education and training in our universities. It is important that the local education bodies and employers provide sufficient challenge to the work of the universities. I hope that in accepting the need for an independent chair, noble Lords will agree that there should be no cosy relationship between commissioners, who ultimately have no real responsibility for the employment of staff, and universities. Unfortunately, the current system has led to too cosy a relationship. I look to the noble Earl, Lord Howe, for recognition that NHS trusts and foundations have to be very much around the table.
It would be useful if the noble Earl replied to the noble Lord, Lord Kakkar, and gave some sense about where postgraduate deans are to be placed within the new structure. I also hope that postgraduate deans will be able to recognise that in the new circumstances they can have a huge impact on NHS trusts and foundation trusts when it comes to their visitations. I also hope that clinical commissioning groups will recognise that if they are going to start shifting resources away from NHS bodies, that might have an impact on their capacity to provide education and training in the future.
That brings me to the point raised by the noble Lord, Lord Kakkar, about whether private providers will have contractual obligations with regard to education and training. It is important that there is a level playing field. If the Government insist on more contracts being placed with private sector providers in the future, there will have to be obligations on the part of providers. It would be grossly unfair and in the end it would not lead to the establishment of a national coherent system if private sector providers did not pay their fair share.
On governance, again, the noble Lords, Lord Patel and Lord Kakkar, made some substantive points about local education and training boards. It would also be helpful if the noble Earl responded to the point raised about academic science networks. We all agree that we must make the most of the fantastic basic education and science capacity in this country, and the links with the provision of patient care and the pharmaceutical industry. They have great potential. It would be useful to know how the noble Earl thinks they will fit into the new structure and particularly how they will link to the postgraduate deans and the academic science network. Overall, I am sure that the noble Earl will be able to come forward with a constructive response and I certainly hope that he is prepared to accept Amendments 13 and 16.
Earl Howe
My Lords, as I set out in our previous discussion on education and training, the Government are putting in place a strong national system for education and training, with a strengthened focus on quality outcomes.
We have introduced a clear duty on the Secretary of State to ensure that such a system is in place, and are now making good progress with establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system and are proceeding with care and at a sensible pace to ensure the new system is fully up and running by April 2013.
As noble Lords will be aware, we have confirmed that we will set up Health Education England as a Special Health Authority in June 2012, so that it can take on some operational functions from October 2012 and be fully operational from April 2013, when it will take on the strategic health authority education and training functions. I repeat those assurances today. It will have an independently appointed chair and non-executive appointments. For this reason, we do not think that that part of Amendment 16, tabled by the noble Lord, Lord Patel, and others, which would place a duty on the Secretary of State to set up Health Education England as a new special health authority, is necessary.
I hope that the undertaking will be sufficient by way of reassurance to noble Lords on that score. Nevertheless, in addressing the more detailed issues set out in that amendment, it would be helpful to elaborate a little on what I was able to tell the House last week.
Lord Hunt of Kings Heath
On that welcome news, I assume that would mean that it would also not involve having a higher education chair and that, in fact, to have an independent chair means that they should be independent of commissioning, providing and university providing.
Earl Howe
That is a logical inference but, if I can get further and better particulars for the noble Lord, I would be happy to do so. Each local board will set up local advisory arrangements to reflect the breadth of local interest and ensure that its decisions are informed by clinicians, clinical networks and education providers. My noble friend Lord Willis and the noble Lord, Lord Winston, asked about “any qualified provider” and whether non-NHS providers will have to play their part. Yes, indeed; all providers of NHS services will be expected to participate in education and training activities, and Health Education England will invest only in organisations which do that. The answer to the question from the noble Lord, Lord Hunt, is indeed yes. He is correct.
By April 2012, we expect the strategic health authorities to establish sub-committees that will develop the emerging local education and training boards. The role of strategic health authorities to lead on education and training has been extended until April next year. When Health Education England is fully functional as a special health authority from April 2013, it will then, as I have explained, take on the responsibility for hosting the local boards. There are plans for a safe and effective transition to the new system, which will ensure that the strategic health authority functions for education, training and workforce planning, including the work of the postgraduate deaneries, are continued. LETBs will take on these education and training functions and it is expected that many SHA and deanery staff will migrate to the local boards to ensure continuity and essential skills and knowledge for the future, subject to affordability.
As I emphasised in our earlier debate, postgraduate deans will continue to be a critical part of the medical training arrangements. We expect LETBs to be able to demonstrate that their postgraduate deans will be able to act independently so as to be able, among other things, to provide challenge where necessary—a point raised, quite rightly, by the noble Lord, Lord Hunt. There will be systems and indicators in place to hold local education providers to account for the quality of education delivered by individual providers. Postgraduate deans will have all the powers that they have now to respond to any concerns about the quality of training, and to take action where required to improve standards and to assure the professional regulators, and indeed Health Education England, that poor performance is being tackled. In the new system, they will have support from the LETBs themselves and, if necessary, from Health Education England to challenge poor quality and behaviours.
Our proposed funding mechanisms reinforce that focus on quality by putting responsibility for education and training decisions in the right place, to be transparent so that funding follows the student on the basis of quality and value for money. The MPET budget will, as now, be predominantly provided to support the next generation of clinical and professional staff. Local boards will have some flexibility to invest in innovative approaches to continuing professional development and the education and training of the wider workforce. Health Education England will be responsible for developing a more transparent allocations policy for distributing education and training funding to local boards.
Now that the policy framework has been worked out, we need to push on and get the foundations of the new education and training system in place. We are doing that by establishing Health Education England and supporting the development of the emerging LETBs. It remains our intention to consolidate the functions of Health Education England by establishing it in primary legislation as a non-departmental public body. That will enable it to operate on a permanent statutory basis at arm’s length from the Department of Health while remaining accountable to the Secretary of State.
We want to do all this on the basis of consensus. We want to ensure that people with an interest have the opportunity to comment on and feed into the design of the new system, ahead of bringing forward the primary legislation in a second Bill. With that in mind, we intend to publish draft clauses on education and training for pre-legislative scrutiny in the second Session to ensure that the legislation is fit for purpose and to give Parliament an additional opportunity to scrutinise the proposals. I add that our vision for an education and training system that gives greater responsibility to employers and health professionals has been warmly welcomed.
As noble Lords will see, we have tabled amendments to strengthen links with the wider system. We have already discussed government Amendments 61 and 104, which would place duties on the board and on CCGs to promote education and training. These amendments were accepted in a previous debate. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions. The noble Lords, Lord Patel and Lord Warner, have tabled the very similar Amendments 62 and 106, and I hope that they will be reassured by the amendments that we have tabled and will feel able to withdraw them.
The noble Lord, Lord Patel, has tabled Amendment 13 on the role of providers. I say straight away that I am sympathetic to his intentions and I have given the amendment significant thought since it was first put down. In the beginning I thought that an amendment might not be needed, given that, in order to be established, LETBs will need to demonstrate that they meet robust authorisation criteria set by Health Education England, including demonstrating that all providers of NHS-funded services are fairly and properly represented in the LETB’s business.
At this point I shall answer the question posed by my noble friend Lord Mawhinney about the estimated costs of the amendment. I understand that Amendment 13 would be delivered by requiring commissioners to place a duty of this kind in their commissioning contracts. We do not anticipate any additional costs as a result of the amendment. Employers have told us and the Future Forum that they are keen to participate and play a leading role in the planning and commissioning of education and training through the LETBs, and of course we plan to legislate further for education and training, which will provide the opportunity to consider any duties that might be required of providers.
However, the amendment is satisfactorily drafted. In the light of what the noble Lord and others have said today in support of it, and in recognition of the strength of feeling on the issue, I can tell the noble Lord that I am willing to accept his proposal and support the amendment.
“The Secretary of State’s duty as to preventing bureaucracy
After section 1F of the National Health Service Act 2006 insert—“1G Duty as to preventing bureaucracy
In exercising functions in relation to the health service, the Secretary of State must, so far as in consistent with the interests of the health service, act with a view to securing—
(a) that the NHS Commissioning Board shall exercise its functions in relation to the health service with a minimum level of management tiers, and(b) that any other person exercising functions in relation to the health service must have regard to the need to curb bureaucracy.””
Lord Hunt of Kings Heath
My Lords, one by one, the pillars holding up the Government’s reasons to justify the mayhem they are raining on the NHS are being kicked away. The Prime Minister promised “no top-down reorganisation” of the NHS, yet it is faced with the biggest change since it started life 64 years ago. The Government implied that the NHS was failing, yet the 2010 British social attitudes survey put public satisfaction with the NHS at its highest-ever level. The Government have said that falling productivity is a problem, yet Professor Nick Black, writing in the Lancet, described this as a myth. The Government said they wanted to encourage collaboration and the integration of services, yet Mr Lansley spilled the beans this morning by making it clear that competition between doctors and nurses is really what he is about.
The Government argue that they will end micromanagement by the Secretary of State and introduce democracy. Last week, the noble Earl, Lord Howe, on the first day of Report, sought to persuade your Lordships that the Government are aiming to free the service from micromanagement by the Secretary of State. Indeed, the noble Earl went further and said that Mr Lansley is the only Secretary of State,
“who has not succumbed to the temptation of micromanaging the NHS”.—[Official Report, 8/2/12; col. 349.]
The noble Earl went further when he said that the NHS Commissioning Board will have a facilitating role to promote guidance, and is,
“not … a replica of the kind of line management that the NHS has seen to date”.—[Official Report, 8/2/12; col. 352.]
I say gently to him that the reality seems a little different. Indeed, since your Lordships started to debate the Bill, the Secretary of State has shown no inclination whatever to keep his hands off the National Health Service. He has announced a set of indicators for patient outcomes for NHS trusts to meet; he has pronounced that hospitals are admitting too many patients; he has pronounced that patients are being discharged from hospitals too quickly; the A&E four-hour indicators have been extended; primary care trusts have been told to speed up treatments for patients waiting longer than the 18-week waiting limit; hospitals have been ordered to remove advertisements for personal injury lawyers in NHS-branded leaflets from being distributed in casualty wards; primary care trusts have been told to identify three services that can be handed over to the private sector; and the Prime Minister—no less—has announced that there will be hourly nursing rounds to check that patients are properly fed and hydrated. I might have missed a few examples in my recording of the interventions that have taken place in a short period of time.
Lord Hunt of Kings Heath
My noble friend urges me to keep going. I will certainly continue to note down the evidence on whether the Secretary of State is not micromanaging the National Health Service.
Let me make it clear to the House that I do not have a problem with those kinds of interventions. In fact, I wish the NHS could be left to get on with dealing with some of those issues rather than having to be diverted by this centrally imposed top-down restructuring.
I do not think that we should let the Government get away with the myth that what they are proposing is some kind of anti-bureaucratic Minerva or kid us that they are standing back from interfering in the NHS. I have no doubt that the noble Earl, Lord Howe, will regale us with how many reductions there are in the number of bureaucrats employed in the NHS. He will probably pass over the huge redundancy costs that are being paid out. He might also pass over the possibility of there being a cost-shift as clinical commissioning groups, for instance, hire the very people made redundant by strategic health authorities and primary care trusts.
The fact is that the Government are busy constructing a huge edifice of confusion and a multilayered decision-making process. I remind the House that the Commons Health Select Committee report on 24 January concluded that the Nicholson challenge, the £20 billion efficiency challenge,
“can only be achieved by making fundamental changes to the way care is delivered”.
It continued:
“The reorganisation process continues to complicate the push for efficiency gains. Although it may have facilitated savings in some cases, we heard that it more often creates disruption and distraction that hinders the ability of organisations to consider truly effective ways of reforming service delivery and releasing savings”.
Let me be clear. In criticising the Government's approach, I do not seek to undermine the role of managers and leaders in the NHS. They are at a premium, and I have been somewhat concerned by the tenor of some of the Government's remarks about the role of managers in the health service. We need good managers to lead and support change on this vast scale. What we do not need are layers and layers of bodies without any clarity in organisational responsibilities. We do not need systems and practices that mean that the same information is collected many times over, and we certainly do not need the increasingly complex paperchase that the internal market will morph into when it becomes a real market.
In essence, the Government are replacing a managed-system bureaucracy with a market bureaucracy. Monitor and the national Commissioning Board will grow and grow, mostly by spending on external consultants to mask the baseline costs. Here I return to the point made by my noble friend Lord Graham. Again, one sees a plethora of organisations in the new structure. We have Monitor, with its hugely contradictory role in both supporting the foundation trusts and being the economic regulator for the NHS. We will have the national Commissioning Board overseeing the system in accordance with a mandate given to it by the Secretary of State. However, the board, which the noble Earl, Lord Howe, talked of as being a facilitating organisation, will none the less have a massive £20 billion commission of services. The national Commissioning Board will also have four regional outposts and 50 local outposts. The noble Earl called them field forces last week, but I suspect that the jargon has moved on since then.
We then have 244 clinical commissioning groups, at the last count, but because the clinical commissioning groups do not have the skills to commission services we are also to have 35 commissioning support units. Then there are the clinical senates—15, perhaps—but no one has any idea who they will be, what they will do or who they will be accountable to. We then have 165 local authorities taking over responsibility for the public health function, 165 health and well-being boards and the same number of local healthwatches. As we heard earlier, the local education and training boards are accountable to Health Education England. Then there is the leadership academy and the improvement body that the noble Earl referred to last week.
Earl Howe
My Lords, during the passage of the Bill we have had much discussion about the importance of freeing front-line professionals from needless bureaucracy and ensuring that they are able to focus on patient care—not least when we considered the duties of autonomy. This is one area where the House is in agreement. Certainly one aim of the Bill is to reduce bureaucracy and micromanagement, prevent politicians in Whitehall second-guessing the decisions of doctors and nurses, and streamline the architecture of the NHS.
The noble Lord, Lord Hunt, indulged himself in one of his occasional rhetorical forays, which I enjoyed. However, the amendment is rich coming from him. Perhaps I should remind the House that the previous Government did to management costs what the noble Lord accused us of doing. Since 2002-03, the management costs of PCTs and SHAs have increased by more than £1 billion—a rise of more than 120 per cent. The Bill aims to get a grip on a problem that under the previous Government simply got out of control. The noble Lord will know that my department has confirmed an overall running-cost budget of £492 million. That represents a 50 per cent reduction in costs and staff compared to the current cost of functions that will transfer to the board. At board level, the work previously done by 8,000 people will be done in future by approximately 3,500 full-time equivalent people. That is a major reduction.
The amendment tabled by the noble Lord seeks, first, to introduce a new duty on the Secretary of State to prevent bureaucracy and, secondly, to minimise the layers of management tiers within the Commissioning Board. The noble Lord produced a confection of arguments to bolster his case that bureaucracy in the NHS is increasing rather than diminishing. I can tell the House that the opposite is true. In saying that, I should stress that I am not in any way denigrating NHS managers. I have never done that and I will never do it.
Setting aside the noble Lord’s knockabout routine and getting back to earth, I agree with the principle behind this amendment. Noble Lords will already be aware of the autonomy duties, which we have recently amended, in no small part due to the Constitution Committee. Those duties ensure that proper consideration is given to whether any requirements or objectives set by the board or the Secretary of State will place unnecessary burdens on the health service or distract from good quality patient care. In addition, the Bill places duties on the NHS Commissioning Board, CCGs and other bodies to exercise their functions effectively, efficiently and economically. That is in new Section 13D of the National Health Service Act 2006 for the board and new Section 14P for CCGs. Together, I believe that these provisions ensure that the duty to maximise efficiency and minimise bureaucracy is embedded throughout the system. We do not need anything further.
The noble Lord, Lord Warner, asked me a question that I have been asked before in these debates. It concerned why we did not simply reform the PCT model. We chose not to try to reform the PCT model because it would not have delivered the empowered clinical commissioners we want to see and, indeed, the Opposition want to see. This Government supported the principle of practice-based commissioning, but there is one thing to say about practice-based commissioning: it was not working. It did not live up to the ambitions that people had for it. Central to this was clinical commissioners’ lack of autonomy. Only by conferring functions directly on clinical commissioners, as this Bill does, can that autonomy and responsibility be properly established.
Subsection (a) of the noble Lord’s amendment refers rather bafflingly, as my noble friend Lord Fowler pointed out, to a minimum level of management tiers. I am not quite sure how that would be interpreted by the courts, but I believe that the noble Lord is drawing attention to the published proposals for the board’s organisational structure. In line with the vision we set out in the White Paper, the proposals put forward make clear that the board will be a single nationwide organisation that will work across the country to improve quality and outcomes. However, there are some who have focused on the board’s proposal for a maximum of five layers of management, claiming that this represents some sort of increase rather than a reduction in bureaucracy. That is not the case. The structure proposed by the board is based on sound and well recognised principles of effective organisational structure. The proposed organisational structure for the board is designed above all to support it in its overarching role to improve health outcomes. What surely matters is the board’s efficiency and effectiveness. In fact, as I have already said, the board will operate with a 50 per cent reduction in running costs in comparison with the current system. I am not attracted to the part of the amendment that requires the Secretary of State to influence the number of management tiers in the NHS Commissioning Board. Apart from being inappropriate, it is unnecessary. The Bill already makes clear that the Secretary of State sets the resource limit for the board and new Section 223E of the 2006 Act allows him to impose a cap on administrative spend. Together these provisions ensure that financial limits are placed on the board, which will necessarily influence the way in which it is structured. However, I believe it would be inappropriate for the Secretary of State to go any further than this in influencing the organisational design of the board. The board is the body best placed to determine how to organise itself in the most effective and efficient way. It is therefore our intention to allow it as much autonomy as possible in determining its own membership, structures and procedures.
All our proposals for modernising the NHS, including the provisions in the Bill, are designed to minimise bureaucracy, micromanagement and unnecessary waste to enable the whole system to focus on what really matters, which is patient outcomes. For example, the outcomes framework will directly link quality improvement and outcomes with commissioning; clinically-led commissioning groups will be judged, through the commissioning outcomes framework, on whether they improve patient outcomes and experience rather than process targets; the NHS Commissioning Board will hold GP commissioners to account for their performance against NICE indicators; and CCGs will hold providers to account for driving up quality improvement using contracts and incentives. It is quality and outcomes that matter and with the safeguards already in place to limit administrative spend throughout the system, I believe that the noble Lord’s amendment is unnecessary. I hope that he will feel able to withdraw it.
Lord Hunt of Kings Heath
I must say that I am really rather disappointed by the noble Earl’s response to my constructive amendment. He does not seem to have answered the charge that is being made. First, I think we are all agreed that when we talk about bureaucracy we are not talking about the fine managers that the NHS has to whom we owe so much. This is an argument about the structure, the layers and the cost of a market that the Government wish to bring in to the health service. It is not about managers in the health service.
The fact is that the Secretary of State and his colleagues, including the noble Earl, have continued to intervene in the health service on a daily basis. They have yet to explain how, if this Bill eventually receives Royal Assent, at that point, magically, Ministers are going to step back and simply let this new system continue. I do not believe a word of it. What I believe will happen is that on the one hand you will have this complex structure where the mantra is that it is all arm’s length, it is all down to the clinical commissioning groups, the market and the gentle guidance of Sir David Nicholson and his colleagues at the national Commissioning Board, and Ministers can simply step back. It will not happen. What we will have is the system that the Bill enacts, if it is enacted, and Ministers continuing to micromanage. It is inevitable that Secretaries of State are accountable to Parliament, and they will be required by the very process of parliamentary democracy to continue to intervene and to take a close interest in what is happening. That is the charge I put to the Government as to why I believe that this is going to be a very complex situation indeed.
It is always good to debate with the noble Lord, Lord Fowler. Twenty years ago, I enjoyed debating with him issues mainly to do with the funding of the National Health Service. I think the National Association of Health Authorities and Trusts was a very modest organisation. It was very lean and certainly not subject to the strictures of the noble Lord who suggested that it was part of the bloated bureaucracy that I think he was implicating me in. He does not like the idea of declaratory law. That is all very well, but what is Clause 4 but a declaratory statement: “The Secretary of State’s duty as to promoting autonomy”? Indeed, the noble Earl, Lord Howe, referred to it in his winding-up speech. I have to say to him that if the duty of autonomy were currently on the statute book, I do not think that he could have brought this legislation in under it because it states that,
“unnecessary burdens are not imposed on any such person”.
This whole edifice is going to impose enormous burdens on many such people within the National Health Service.
The noble Lord, Lord Fowler, referred to the Griffiths report—at 24 pages, it was a remarkable letter which had a long-term impact on the health service. He will recall that we were very strong supporters of the introduction of general management. I am very concerned about the structures that are now being brought in because they may well inhibit the kind of leadership and clinical engagement that we saw as a result of the Roy Griffiths management inquiry.
I have to say to my noble friend Lord Harris that the description of Sir David Nicholson as the chief inquisitor was a little unfair.
Lord Hunt of Kings Heath
All of us who have worked with Sir David will know that he is a very fine manager and I am very glad that someone of his calibre is in that position.
The worry is that although the national Commissioning Board is going to be one organisation, it will have different layers and at the local level it will be very powerful. If there are, say, 50 local offices of the national Commissioning Board, given the smallness of clinical commissioning groups—the Government have followed us into the trap made when we created too many primary care trusts—when it comes to the real issues at local level and the kind of leadership of a system that goes across local authority boundaries and covers populations of around 1 million to 2 million, the clinical commissioning groups are simply not going to be big enough to provide the kind of strategic leadership that is required. Inevitably it is going to fall to the local office of the national Commissioning Board. I worry that there is no accountability because these will be simply the outposts of a national body.
However much one might criticise primary care trusts or strategic health authorities, the fact is they had a majority of non-executive directors on their boards, they met in public and they felt some local accountability. The local offices of the national Commissioning Board will have no such feel because their sole accountability will be to the national Commissioning Board at national level. Alongside that, we see from Mr Lansley’s article in the Health Service Journal that he is very keen on the implementation of a market. We know that that will come at a price—in terms of the complexity of contract-making and of legal costs and certainly in the profits that private sector companies will wish to take out of the National Health Service.
This is a very complex structure that the Government are introducing. My amendment is a helpful reminder to the Secretary of State that there should be a very clear presumption that the kind of bureaucratic monstrosity that is now being introduced ought not to be introduced. I wish to test the opinion of the House.
“(2) The Board has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act and subject to any directions issued by the Secretary of State.
(3) The Board must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act.
(3A) The Secretary of State may give a direction to the Board to discharge each of those functions, and in such manner and within such period or periods, as may be specified in the direction.”
Lord Hunt of Kings Heath
My Lords, Amendment 19 comes back to a theme which takes us to the overriding responsibility of the Secretary of State for a comprehensive health service and to the relationship between the Secretary of State and the national Commissioning Board. I do not want to go over the ground that we went over in the previous debate but I want to make just two or three points.
The Minister will recall that in Committee we debated the whole question of the concurrent power being given to the national Commissioning Board in relation to the Secretary of State’s responsibilities in Clause 1. Given Clause 1 and our really important debates on it, and the welcome agreement on the first day on Report regarding the way in which an amendment was accepted to make clear that the Secretary of State is accountable to Parliament for NHS provision, I remain concerned as to whether it is right that a body such as the national Commissioning Board should carry such responsibilities as well—that it should have a concurrent responsibility and duty.
Surely, ultimately, the national Commissioning Board is a secondary body as compared to the Secretary of State. The very fact that there is a mandate in which the responsibilities and duties of that board are laid down on a regular basis by the Secretary of State reinforces the proper relationship between an unaccountable body, such as the national Commissioning Board, and an accountable person, such as the Secretary of State. I should be grateful if the Minister would give further reflection as to whether a concurrent power really is the appropriate way in which that relationship should be set out.
Of course, that is associated with the power of intervention by the Secretary of State. It seems to me that in the end, since the Secretary of State is accountable to Parliament for provision and for ensuring a comprehensive service, if he feels that the national Commissioning Board is not doing the right thing or that there is a matter which requires the intervention of the Secretary of State, it is right that that intervention can be taken out without obstruction or legislation. In my view, that would lead to a confusion of role as between the Secretary of State and the national Commissioning Board.
When we discussed this issue in Committee, I asked the Minister what would happen if there was an issue. Let us take, for instance, some of the recent interventions by the Secretary of State. He has expressed concern about the way in which primary care trusts have manipulated waiting lists. Rightfully, in my view, he sought to intervene. How would you do that under the new arrangements if clinical commissioning groups or some individual clinical commissioning groups were not doing what the Secretary of State thought to be appropriate?
From our debate in Committee, I had the impression from the Minister that in those circumstances provision could be made in the mandate set for the board by the Secretary of State. I can see that every so often you can alter the mandate to deal with an issue like that. But sometimes he will need to intervene rapidly rather than have to wait for the process of a mandate to be set. I also suspect that there is a risk that the mandate could become very detailed and prescriptive—in other words, the micromanagement that the Minister is so keen not to see introduced. There will be issues that arise during the year which might not have been envisaged when the mandate was drawn up.
The noble Earl may well say that we will have the intervention powers set out in proposed new Section 13Z1 set out on page 24. My problem with this is that the wording constrains the intervention because it has to be based on a failure to discharge or a failure properly to discharge any of its functions, and the failure is significant. Of course, the intervention none the less is based on what the Secretary of State himself considers, and no doubt he would always be properly advised by his officials and, in extremis, the Government Law Officers. But I can envisage situations in which the NHS Commissioning Board actually rejects the Secretary of State’s view and where it would be deemed that the issue is not one that comes under the auspices that could lead to intervention under Section 13Z1. I think that there should be a clear right in the Bill for the Secretary of State to have a power of direction.
In the end the sole accountability of the national Commissioning Board has to be through the Secretary of State and thus to Parliament. The board is not elected; it is an appointed body. There has to be full accountability, and for me, one element of that accountability is that the Minister responsible to Parliament has the right to tell that body what to do. I feel very uncomfortable with a body that is floated off. Okay, we have the mandate, but in the end it is not an accountable body except through the relationship it has with the Secretary of State, so it is right that the Secretary of State should issue direction powers without being fettered as I believe he is in Section 13Z1.
I do not think I need to mention the other two amendments at great length. Amendment 23 merely tries to encourage the noble Earl to say that clinical commissioning groups have the function of safeguarding the comprehensive provision of NHS services. It is very important that within all the autonomy that the Secretary of State wishes to give the clinical commissioning groups, it is made clear that they must, none the less, sign up to the overriding responsibility of anyone involved in the NHS to ensure that comprehensive provision is safeguarded. Amendment 70 is really consequential on Amendment 19. I beg to move.
Earl Howe
My Lords, Amendments 19 and 70 seek to reintroduce the Secretary of State’s powers to direct the health service. I have listened with care to what the noble Lord has said, but I continue to believe that this would be a retrograde step on every count, not least that of transparency. Under the Bill as it stands, the Secretary of State will be able to set objectives and requirements both through the mandate and through “standing rules” regulations under Clause 19, but unlike directions, these would be subject to full scrutiny, and the Bill creates a clear expectation that they would be set only once a year in order to provide certainty for planning. Ministers would also have robust intervention powers in the event of significant failure, as the noble Lord mentioned.
The system we are creating is designed to be predictable, transparent and structured, and will provide stability for the health service. I think that this is a better approach than allowing the Secretary of State to direct the health service whenever he wants, which risks returning us to the unpredictability and opaqueness of the current system. The noble Lord described the Commissioning Board as “unaccountable”. I must scotch that myth. The Secretary of State will have wide-ranging powers over the Commissioning Board, most prominently through the mandate and the standing rules, which will enable the board to be held rigorously to account. In addition, the board will have to meet in public, produce a business plan and an annual report, both of which will have to be laid before Parliament. Further, I would remind the noble Lord of Clause 51, which covers the,
“duty to keep health service functions under review”.
The process of holding the board to account is not a once-a-year task. In turn, the Commissioning Board will hold CCGs to account for the quality outcomes they achieve and for financial performance—and, again, will have the power to intervene where there is evidence that CCGs are failing or likely to fail to fulfil their functions. If the Commissioning Board fails to hold CCGs to account, the Secretary of State could then direct the board to do so. If the board failed to comply with that instruction, the Secretary of State could either discharge the function himself or make arrangements for another body to do so on his behalf. So it is quite wrong to say that there are no levers available to the Secretary of State.
I turn now to Amendment 23, which emphasises the need for clinical commissioning groups to safeguard,
“the comprehensive provision of NHS services”.
Noble Lords will recall that the House has already agreed an amendment to Clause 12 which explicitly requires CCGs to act consistently with the discharge by the Secretary of State and the Board of their duties to promote the comprehensive health service, and with the objectives and requirements in the mandate.
I fully appreciate and support the intentions behind this amendment, and I hope that the discussion we have already had and the amendment we have already discussed to Clause 12 will offer the noble Lord a reassurance that the effect of this amendment is already covered in the Bill. In the light of what I have said, I hope that he will feel able to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, Lord Howe, particularly for his remarks in relation to Amendment 23. Clearly we are not going to agree about this matter. I do wish that the late Lord Marsh could still be present because he would have enjoyed these debates. I think that he would have reminded us of the traditional relationship between the chairman of the board of a nationalised industry and the Minister responsible to Parliament. Although we have lost those nationalised industries, in one sense the Department of Health is now busily engaged in setting up the kind of structure that in many ways is akin to those industries. That is because the chairman and chief executive of the national Commissioning Board are, in essence, being handed a huge amount of power by the Secretary of State. They are to be given the budget, the mandate and the standing rules, and are to be told to get on with it. If we go back to our experience with the nationalised industries, of course it never worked because there was a continuous tension between the board of a nationalised industry and the Minister which arose from the fact that the Minister was accountable to Parliament for the running of the railways, iron and steel and the coal board.
That is exactly what we are constructing today. We have the myth that simply by having a mandate and standing rules, we can say to the national Commissioning Board, “Get on with it. I as a Minister will no longer intervene unless in extremis”, under the circumstances set out in Bill. Life is not like that. Parliament will continue to debate the health service, issues will arise and Ministers will make pronouncements. I do not believe for a minute that the 12 or so pronouncements we have heard from Ministers over the weeks that this Bill has been in your Lordships’ House will not be followed by similar pronouncements under the new structure. They will be forced to do so because Parliament will require it. That is the risk and why I believe it is such a complex system. On the one hand there is a structure which is based on an arm’s-length relationship, a market, with clinical commissioning based on a mandate, while on the other hand there is still the Secretary of State who will be fully held to account in Parliament. There will be enormous tension and great confusion within the National Health Service. For that reason, there is a strong argument for accepting that, in the end, the Minister is accountable and ought to have a power of direction. Saying that this can be done through a mandate and standing rules is not realistic, and no doubt, if the Bill is enacted, we will see this played out. I do not think anyone should be under the misapprehension about the fact that we are building into these arrangements a very unstable situation. But we have had a good debate, and I beg leave to withdraw the amendment.
Health and Social Care Bill
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Lord Hunt of Kings Heath
My Lords, I shall refer also to Amendments 21, 21A and 22. The amendments take us to a number of other matters in relation to the national Commissioning Board. I think that we are all agreed that the board will have an important role to play within the new arrangements, and its governance is a matter of considerable interest. My amendments, which follow closely amendments that I tabled in Committee, invite the noble Earl, Lord Howe, to give further consideration to how we can ensure that the governance of the national Commissioning Board is as effective as possible and that due parliamentary processes are involved.
The amendment would ensure that the chair of the national Commissioning Board was appointed only with the consent of the Health Select Committee. I am well aware that Professor Grant, the excellent chair of the board, gave evidence to the Health Select Committee and I am glad that that occurred. I should like to put the matter beyond doubt by putting this provision in statute for when future appointments of chairs need to be made. The noble Earl will know that I have followed precedent because this Government’s legislation that established the Office for Budget Responsibility makes it clear in statute that the appointment of its chair has to be agreed to or approved—or consent has to be given—by the appropriate Select Committee. My argument to the noble Earl is that the national Commissioning Board is as important as the Office for Budget Responsibility. I realise that one could look at a hierarchy of these organisations and I would understand if the noble Earl were to say that we cannot apply this provision to all bodies in a similar position. However, the responsibility of the national Commissioning Board is immense and there is a case for putting this in statute.
I sense that my Amendment 21 may not be necessary, but perhaps the noble Earl can confirm that the vice-chair of the national Commissioning Board would always be a non-executive appointment and that that person would always be the senior independent director.
Amendment 21A concerns public health specialist input. I should like some assurance from the noble Earl that the national Commissioning Board will have public health expertise. I understand that it is to have a medical director—and that is of course welcome—but, given the need to ensure that in the NHS, through the Commissioning Board and clinical commissioning groups, there is a good tie-in to the public health function, it would be good to know what arrangements the board will make to ensure that there is a strong enough link with public health. Having public health expertise around the board of the national Commissioning Board would, I should have thought, be very welcome indeed.
I come, finally, to my Amendment 22, which would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I said in Committee that I had no problem with the provision that ensured that the first chief executive should be appointed by the Secretary of State. That is normal practice when new bodies are established. In order to get on with it, you clearly need to have a method by which the chief executive is put in place as soon as possible. I quite understand why it should be the Secretary of State in the first instance, but I do not understand why future appointments of chief executives should have to be approved by the Secretary of State.
Back in our debates on bureaucracy and the issue of the concurrent power of the national Commissioning Board with the Secretary of State in relation to the crucial parts of Clause 1, the noble Earl emphasised that the relationship between the Secretary of State and the national Commissioning Board should be seen principally through the mandate and the standing rules. He resisted my efforts to give Ministers powers of intervention other than the extreme power given under the Bill. If that is so, I cannot for the life of me see why the Secretary of State would want to approve the appointment of the chief executive. Surely the relationship should be between the Secretary of State and the chairman of the national Commissioning Board. Why must the Secretary of State have a veto on the appointment of the chief executive? That seems inconsistent with the general points that the noble Earl has been making about the need for the Secretary of State to have a hands-off approach.
The noble Earl may repeat what he said in Committee, which is that that is to do with the accountable officer status of the chief executive. With the greatest respect, is that very different from the accountable officer status in relation to many organisations within the NHS where the Secretary of State does not have to approve the appointment of the chief executive? I hope that at least on this one the noble Earl will recognise that Secretary of State approval for the appointment of a chief executive is wholly inconsistent with the general thrust of where the Government say that they are going, and will be sympathetic. I beg to move.
Lord Beecham
My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A—influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.
The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.
The Government’s response to the Select Committee’s report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health—and the Government have stated their intention that there should be clinical and professional leadership on the board—they state explicitly that,
“it is an important principle … that it”—
that is, the board—
“should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions”.—[Official Report, 14/11/11; col. 514.]
That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence—and, indeed, with the substantial resources at its disposal—simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board’s deliberations as a matter of course.
I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.
Earl Howe
My Lords, I will attempt to answer the noble Baroness in a moment. She is right that the chief executive designate, Sir David Nicholson, was appointed before the establishment of the NHS Commissioning Board Authority. My right honourable friend felt that not only was it a sensible and good appointment, as we think very highly of Sir David—as most people do—but that it would provide continuity for the NHS. I hope that the noble Baroness accepts that it was a rational decision. As I outlined, Malcolm Grant, too, was the Secretary of State’s appointment, as was appropriate. I will probably have to come back to the noble Baroness on the non-executive directors because I am not aware of the precise timescale or mechanism for doing that, but I will enlighten her as soon as I possibly can.
The noble Lord, Lord Rea, asked me about the relationship between the board and Public Health England. Public Health England will be an executive agency carrying out functions of the Secretary of State with relation to public health. Those functions are conferred on the Secretary of State primarily through Clause 10. As regards the relationship between the two bodies, the simplest way of putting it is that they will work very closely together on public health issues. I have no doubt that there will be a number of ways in which Public Health England will commission public health services from the board in one or other of the aspects of its health protection role.
To get back to what I was saying before the intervention, the Official Opposition at one moment want the Secretary of State to be hands on and at another moment to be hands off, so perhaps I am entitled to feel a little confused about the direction that they are coming from here. The noble Lord, Lord Hunt, questioned the rationale for the Secretary of State appointing the chief executive. As I said in Committee, the requirement for the Secretary of State to consent to the appointment of the chief executive of the board is included for the very important reason that the chief executive of the board will be the accounting officer for the commissioning budget—more than £80 billion of public money—for which the Secretary of State is accountable to Parliament. It is entirely appropriate in our view that the Secretary of State should approve his or her appointment. It is quite usual for chief executives of non-departmental public bodies to be designated as the accounting officer by the department to which they are accountable.
I hope the noble Lord will agree on reflection that we have struck an appropriate balance between autonomy and accountability in the current provisions for appointments to the board and that he will be content to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Earl, Lord Howe. He thinks that I am being inconsistent with some of my amendments, but I still believe that at this stage it is appropriate to put forward probing amendments. If I am inconsistent, I am trying to point up the inconsistency in the Government’s approach, which is that on the one hand we are told that the national Commissioning Board is to be at arm’s length from the Department of Health and Ministers, but then we find that it is at such arm’s length that the chief executive has to have his appointment approved by the Secretary of State.
On parliamentary hearings, the noble Earl said that the Office for Budget Responsibility is rather different from the national Commissioning Board because it has a unique role in being dually accountable to government and to Parliament. My argument is that the national Commissioning Board is different from many other public bodies because of the concurrent powers it is given in Clause 1 and the fact that, unlike many bodies, it does not have a straightforward ministerial power of direction, as we have discussed. The Government have deliberately sought to put it on a different plane. For that reason, it would have been useful for them to have followed the example of the Office for Budget Responsibility and given the appropriate Select Committee a veto over the appointment of the chairman. As I said earlier, I accept that the Government have certainly gone halfway in the sense that Professor Grant appeared before the Health Select Committee. That is very welcome, and I am sure it sets a precedent for the future.
On public health representation on the board, for which my noble friend Lord Beecham and the noble Baroness, Lady Williams, argued, I hope that the national Commissioning Board will take account of the views expressed in your Lordships' House to ensure that there is strong public health input at the NCB level.
The first point the noble Earl made was that the national Commissioning Board is to have as much autonomy as possible. If it is, then it jolly well has to show that it is going to be accountable. I hope that the NCB will give parliamentarians a regular opportunity to discuss with it its programmes and the way that it is going to work in the future. I would be very concerned if, through the autonomy philosophy, Ministers in one way or another resisted debates or interventions in relation to the actions of the NCB and the NCB itself proved not to be open to having debates with parliamentarians. That is where the problem may well arise.
We will have to see but I for one hope that the national Commissioning Board will accept that it has been given enormous power—albeit with some constraints, which we have discussed today—and that it has to show it is going to be properly accountable for it. I beg leave to withdraw my amendment.
(1A) Such regulations shall”
Lord Hunt of Kings Heath
My Lords, I shall speak also to Amendments 41, 46, 48 and 293.
On a number of occasions, the noble Earl has spoken about the mandate to be issued to the national Commissioning Board. In our debates we have given a great deal of focus to the relationship between the Secretary of State and the national Commissioning Board, and the role of the mandate. When the noble Earl has been pressed to say how the Secretary of State would be able to bring influence to bear in relation to particular issues, he has referred on a number of occasions to the role of the mandate and indeed to standing rules. There is no doubt that the mandate assumes considerable importance. My amendments are seeking to give Parliament a stronger role in scrutiny of the mandate.
I have taken as my reference point the procedure for national policy statements in relation to major infrastructure planning applications. The noble Earl will be aware that the Planning Act 2008 introduced a parliamentary procedure to deal with major infrastructure planning applications. Essentially, it goes back to the issues that have bedevilled infrastructure planning decisions in this country, which mean that very often when there are public inquiries into applications, much of the public inquiry debate has been around the principle of whether a particular infrastructure should be developed in the UK rather than actual local planning matters. The classic for me was the Sizewell B application, where I think there were roughly 300 days of public inquiry, of which only about 10 to 20 were concerned with local issues; the rest were concerned with whether nuclear power should be developed in the UK.
The Planning Act brought in a new procedure where it was accepted that issues to do with nuclear power—or High Speed 2, for instance, if it were not going to go through the hybrid legislation process—would be decided by Ministers because those are national decisions, and the local application would then be decided very much around the impact of an actual planning consent.
What is the connection between this and the mandate? It is the parliamentary scrutiny, because a national policy statement has to be debated in your Lordships’ House in Grand Committee, Members of the House having every opportunity to ask questions, and then brought before your Lordships in the Chamber where it is open for debate. My proposition is that the mandate is of such importance that a similar approach could be taken in your Lordships’ House and in the other place, providing a real process of questioning and debate. Although, ultimately, it is, in my view, a ministerial decision, I argue in Amendment 46 that such a process of parliamentary scrutiny and ministerial consideration followed by an affirmative order to approve the mandate would provide a robust approach that would give much more parliamentary comfort to the nature of the mandate between the Secretary of State and the national Commissioning Board.
I do not believe that the current provisions in the Bill allow for that kind of parliamentary scrutiny and I hope that at the very least the noble Earl might be prepared to take this back to see whether there are ways in which we could beef up parliamentary scrutiny of what all of us acknowledge is probably one of the most important processes between the Minister and the national Commissioning Board. I beg to move.
Baroness Williams of Crosby
My Lords, I shall address Amendments 38, 43 and 49 in this group but, given the lateness of the hour, I can reassure the House that I shall not be lengthy on any of them. My comments will follow fairly closely some of the matters raised by the noble Lord, Lord Hunt, and will therefore fit in well with our brief debate.
Amendment 38 in essence is the suggestion that the Secretary of State should issue regulations at least once a year. In addition, those regulations should be shown within an adequate timeframe of about two months to the Select Committee, presumably before they pass through the affirmative or negative procedure. This issue is quite close to the amendment addressed at the beginning of our proceedings by the noble Lord, Lord Hennessy. Members in the Chamber will remember that the noble Lord raised the issue within the context of our discussions on constitutional matters when he suggested that any regulations should be subjected to scrutiny by the Select Committee before proceeding to either the affirmative or the negative procedure.
Quite simply, the reason for this, which I think we all recognise, especially those of us who served for some time in another place, is that the negative procedure is extremely weak. Unless one or two Members of Parliament are particularly concerned about a matter, the regulations pass through with not much more than a nod from the House of Commons. In the case even of the affirmative procedure, unless one can organise a substantial group of people who are deeply concerned about the regulation, debates are not profound. Little scrutiny is offered and very often the procedure is little more than routine.
I am not so concerned about the first part of Amendment 38. I do not think that one should necessarily hold the Secretary of State to having to produce regulations annually, but I am very interested in the second part, which refers to passing it to the Select Committee for scrutiny, presumably of its merits, before it passes on to the fixed procedures. There is of course a fairly close parallel with the Select Committee on the Merits of Statutory Instruments as distinct from the older Select Committee on the vires of statutory instruments.
This is an interesting idea. I am one of those convinced that it is important to strengthen parliamentary accountability, not only on health but across the whole front. Therefore, Amendment 38 is well worth consideration. I hope that the Government will consider it carefully because it would be a substantial and interesting step forward. It would enable the regulation to be looked at carefully instead of in effect just being passed on the nod.
Amendment 43 is about the mandate, to which the noble Lord, Lord Hunt, has already referred. We on these Benches see the mandate as a first-class way for the Secretary of State to indicate his most important priorities for the health service for the coming year or so. As such, we put considerable weight on it. The issue that I should like simply to underline is that the role of the mandate is so important that I hope that in it the Secretary of State would be able to address the known priorities of the Bill, including such issues as the narrowing of inequalities and the proper provision of care for the elderly and those who are chronically sick. The mandate could be a very important instrument for setting before the House, and more widely the public, the goals that the Secretary of State hopes the health system would be able to prioritise.
Finally, Amendment 49 is also in the names of the noble Lords, Lord Warner and Lord Patel, both of whom are unable to be here as late as this. They have asked me to apologise on their behalf. The noble Lord, Lord Warner, is particularly interested in this amendment, which sets out in considerable detail the need for audited accounts and for the careful comparison of those accounts for the levels of performance and for comparison with one another. Given his substantial experience in the field of accountability for health issues, this deserves careful consideration. It would at least enable us to be closely concerned with differential performance in the health service and allow people to make a good judgment of the quality of the care being given. I therefore hope that the Government will look sympathetically at Amendment 49.
Earl Howe
My Lords, let me begin by setting out what we intend for the standing rules. We intend to use the rules to replicate core elements of the current system that need to be maintained in the future. For example, the standing rules will be used to provide the legal basis for certain patient rights as set out in the NHS constitution. Amendment 38, tabled by the noble Lord, Lord Hunt, will do three things. First, it seeks to require the Secretary of State to make standing rules as opposed to enabling him to do so. Secondly, it would require rather than enable him to update the standing rules no less than once a year; and finally, the Secretary of State would be obliged to share the standing rules with the relevant committee of the House of Commons for consideration at least two months before they are laid in Parliament. I hope that I can help the noble Lord here.
It is already our intention to make standing rules and to review them on an annual basis alongside the mandate. Where it is necessary, the Secretary of State would update the standing rules. Imposing a requirement on him to produce regulations regardless of whether an update is necessary will introduce what I believe is a needless administrative and bureaucratic burden on the system, and we surely do not want that. The amendment would also set out a requirement in legislation for the Health Select Committee to examine the proposed standing rules. I hope that I can reassure him that the committee would have the opportunity to examine proposals, and that Ministers in the department would engage constructively with the committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations as to the subject that Select Committees should examine or what areas committees should focus on. I should also remind the House that any regulations laid in Parliament are also considered by the Merits Committee of your Lordships’ House, as well as the Joint Committee on Statutory Instruments.
I turn now to the remaining issues. I think that it would be helpful to set out what we aim to achieve with the mandate. The mandate will bring with it an unprecedented degree of transparency, scrutiny and accountability to government policy for the NHS. For the first time, the Government’s core objectives for the NHS commissioning system will be subject to full public consultation.
A number of the amendments in this group, both government and from your Lordships, focus on the parliamentary scrutiny of the mandate. Amendments 41 and 46, tabled by the noble Lord, Lord Hunt, would make the mandate subject to the affirmative resolution procedure and require the Secretary of State to lay the mandate in Parliament in draft. I hope that I can reassure your Lordships that we have already built in sufficient parliamentary scrutiny of the mandate to render the amendments unnecessary.
Following the Delegated Powers and Regulatory Reform Committee’s recommendations, the Government have tabled Amendments 45 and 47, to which I now speak, to allow specific parliamentary scrutiny of the “requirements” within the mandate by providing that they can be brought into effect only by regulations subject to the negative resolution procedure.
However, making the mandate as a whole subject to the affirmative procedure would go too far. Parliament will set the parameters that the NHS will operate within, through this Bill and the legislation that will support it. This is a Bill that takes many powers away from Ministers and gives them back to Parliament, but it should be for the elected Government of the day, not for Parliament, to set specific policy objectives within that legislative framework following full consultation.
Of course, parliamentarians will have an interest in the mandate, and will have the opportunity to debate and influence it in the usual ways. As Clause 1 of the Bill makes clear, following our debate last week, the Secretary of State retains his responsibility to Parliament for the health service; and Parliament has the right to hold him to account for the health service, including the setting of the mandate.
Amendment 43, tabled by my noble friend Lady Williams and three of my other Liberal Democrat noble friends would require the Secretary of State to explain how the mandate supported his cross-cutting duties. I think that part of the motivation for the amendment is a concern to ensure that the mandate is not simply about financial issues. I hope that I can reassure my noble friend Lady Williams in particular on this point. It is our firm belief that the mandate should focus on the strategic outcomes and policies that the Government wish the NHS Commissioning Board to achieve. At the heart of this should be objectives for improvement against the NHS outcomes framework. The mandate will also be an opportunity for the Government to set specific objectives about the policies that we have set out in the NHS White Paper and the government response to the NHS Future Forum; for example, about extending patient choice and enabling clinical commissioning groups to flourish.
While the mandate will set the budget for the board and could include objectives relating to efficiency or financial management, it definitely will not be primarily about financial controls. Of course financial controls are essential, but the Bill has separate provisions for these under Clause 23. The mandate will not be a narrow and technical financial document which requires a separate justification of how the Secretary of State has fulfilled his legal duties; rather, it will visibly embody his duties. So I do not believe that an extra reporting requirement in the Bill is necessary.
Amendment 49 would require the board in consultation with the Secretary of State to set standards for the management of commissioners’ and providers’ accounts to enable efficiency comparisons. This comparison would be published annually by the Secretary of State. I understand the concerns which have led to the tabling of the amendment, but it would be an unnecessary and perhaps bureaucratic imposition on NHS providers and commissioners, distracting them from improving outcomes for their patients and the wider QIPP challenge.
It is important to be able to make comparisons of efficiency, but the board and, in turn, CCGs should be given the autonomy to decide whether and how to do this. I happen to know that work is currently proceeding in this area.
Monitor’s role currently includes the oversight of the financial management of foundation trusts, and the Trust Development Authority will do the same for non-FTs, so this information is already available for providers.
My noble friend Lady Jolly referred to HealthWatch England. It is specified in subsection (8) of new Section 13A as someone the Secretary of State must consult in developing the mandate. HealthWatch England will be able to feed in the views of local healthwatch as well.
Amendments 48 and 293, tabled by the noble Lord, Lord Hunt, would require parallel mandates to be set for Monitor and the Care Quality Commission. Again, I hope that I can persuade him that that is not necessary.
Monitor and CQC are independent regulators, with clearly defined statutory functions. Their core role is unchanging and regulatory, rather than about achieving a series of evolving policy objectives. Therefore, there is far less reason for the Government to set them a specific mandate. The fact that there is a statutory mandate in the Bill for the Commissioning Board reflects the different nature of the board’s role.
As with any arm’s-length body, there is a framework agreement between it and the sponsor department, which is used as the basis for monitoring the body’s ongoing performance. That is the approach that the department uses and will be using for all of its arm’s-length bodies, including CQC and Monitor. That will be underpinned by formal reviews of each organisation’s capability, at least every three years.
The department will retain overall stewardship, system leadership and accountability for ensuring that the different national bodies are working as Parliament intended. As I have mentioned on previous occasions, the Secretary of State will have formal powers to intervene in the event of significant failure. I hope that that reassures the noble Lord, and that he will feel able to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I thank the noble Earl for a comprehensive response to the interesting amendments that have taken us to the duly appointed hour. He has given quite some assurance about the fact that parliamentary Select Committees will have an opportunity to scrutinise both the mandate and the standing rules, and that is to be welcomed. I urge him even now to reflect on whether the parliamentary scrutiny might not be beefed up somewhat by some reference in the Bill alongside some of these amendments.
The noble Earl has said that the process will be transparent. That is to be welcomed. But in the end, if Ministers are determined to hand off power to the national Commissioning Board, it seems only sensible and right that the mandate in the standing rules under which that should be done should be subject to decent parliamentary scrutiny. I very much hope that the Government will give that further consideration.
This has been a good debate to round off tonight. I am most grateful and beg leave to withdraw the amendment.
Health and Social Care Bill
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Lord Patel
My Lords, I pay tribute to the noble Earl for how he has met our concerns in the Committee debate on education and training. The noble Lord, Lord Walton, mentioned Amendments 13 and 16. To me, Amendment 13 is crucial. The reason I degrouped them is because Clause 6 addresses the Secretary of State's responsibility for education and training. I hope that we will have the debate about the issues that he raises when we debate Amendment 13. I agree with the amendment of the noble Lord, Lord Turnberg—Amendment 16—which provides that universities need to take a greater part in education and training than they have hitherto.
Lord Hunt of Kings Heath
My Lords, as this is a new stage of the Bill, I should declare a number of interests which are also listed in the register; I am chairman of the Heart of England NHS Foundation Trust, a consultant and trainer with Cumberlege Connections, president of the British Fluoridation Society and of the Royal Society for Public Health.
I put my name to Amendment 2, tabled by the noble Baroness, Lady Finlay, which has perhaps not received as much enthusiasm as I would have wished from noble Lords, who have pointed to Clause 6. Behind her amendment is real concern to ensure that we will train enough health professionals in the years ahead and that they will be of sufficiently high quality. There is some history here. I very much support devolving as much as possible decisions about the commissioning of training places to local NHS organisations. I warmly welcome the work of Dame Julie Moore and her team, who have produced the report. She is chief executive of the UHB Foundation Trust in Birmingham and brings a lot of expertise to that position. Some noble Lords will have been to a seminar where the report was debated. I have no argument with its general thrust, but we know from experience that when money is tight, the NHS reduces the number of people that it trains and its training budget. That always happens and, a number of years later, the NHS then pays the consequences. If we are to have a highly effective National Health Service in future, we need to recognise that the quality of our professional staff goes to the core of what we seek to do. Therefore, it is right that the Secretary of State should be seen to have major responsibilities enshrined in legislation. That is the essential point of Amendment 2, whatever the technical deficiencies to which noble Lords have kindly drawn our attention.
In that regard, let me say that I welcome the government amendments in this area and the work of the noble Earl, Lord Howe. Of course, he is also responsible for research in the department, and I think that he well understands how the education and training of our professionals very much ties in to the research agenda. I know that we will come to research later tonight.
In relation to the other amendments in this group, I have already welcomed the government amendments, but perhaps I may pick on Amendment 63. It is right that the national Commissioning Board should have regard to the promotion of training of clinical staff in any provider from which it commissions services. There is essentially a parallel amendment—Amendment 104—which applies to clinical commissioning groups. The whole point here is to ensure that there is a level playing field. If, regrettably, the Government persist with this lunatic idea of a competitive approach within the health service, it is essential that when it comes to commissioning decisions all qualified providers contribute to education and training. It would be an absolute disgrace if clinical commissioning groups and the national Commissioning Board started to commission services from organisations that did not play their full part in education and indeed research. I hope that the noble Earl, Lord Howe, will make it clear that that is what his Amendment 104 means when it says, in parliamentary counsel terminology, that clinical commissioning groups must,
“have regard to the need to promote education and training”.
I take that to mean that the amendment does not permit CCGs to place contracts with qualified providers who do not make a contribution to education and training.
Overall, I echo the words of the noble Lord, Lord Walton, regarding the work of postgraduate deans and his question about their future. Where are postgraduate deans going to lie in the future? Are they going to lie in the local branch offices of the national Commissioning Board; are they going to be aligned with the clinical senates; or are they going to float free? I think we should be told.
I also echo the words of the noble Lord, Lord Willis, regarding the role of universities. It should not be an option; they need to be round the table. It needs to be what I would describe as a “hard partnership”. I think we are all well aware of the issues and concerns surrounding the quality and outcome of nurse training. The noble Earl, Lord Howe, himself has often commented on issues such as dignity, nutrition and so on, where matters have been raised by patients and there is concern about whether today’s nurses are getting the kind of training that is required. It is very important that those who commission from universities do so in as vigorous a way as possible and hold those universities to account. However, equally there has to be a partnership. The noble Earl, Lord Howe, will know about the intention to expand academic clinical science networks. That is a very good example of universities and the health service coming together, and we need to encourage that in the future.
Finally, the noble Lord, Lord Walton, raised a point about the duty on any willing provider regarding training or research. I think that I have covered that, but he also mentioned NHS foundation trusts. I am not aware of any situation in which NHS foundation trusts are ignoring their responsibilities but I certainly agree with him that, as they are more independent of the Secretary of State than other parts of the NHS, some assurances from the noble Earl in that regard would be welcome.
Lord Northbourne
I wonder whether the noble Lord could clarify a point for me. In his Amendment 62 he speaks of the “healthcare workforce”, whereas the noble Baroness, Lady Finlay, in her amendment talks of “healthcare professionals”. Are these identical groups of people? I am particularly interested in whether nursing staff are included in one or both of those terms.
Lord Hunt of Kings Heath
My Lords, that is a very good point. As I say, it is always helpful when noble Lords point out errors and omissions in the drafting of amendments. Amendment 2 refers to “health care professionals”, and I am clear that nurses must be embraced within that definition.
On Amendment 62, I would not detract from the use of,
“education and training of the healthcare workforce”.
Lord Hunt of Kings Heath
My Lords, the noble Earl, Lord Howe, has kindly reminded me that we are not debating Amendment 62. It will be debated in a later group, which allows me a little time to reflect on the point raised.
Earl Howe
My Lords, this has been a very useful debate. Perhaps I can begin with a clear statement that the Government are committed to the education, training and continuing development of the healthcare workforce. This is fundamental in supporting the delivery of excellent healthcare services across the NHS. I am pleased that so many noble Lords share that view.
We are, however, in the rather odd position of having before us two groups of amendments on education and training. Given that we still await a further debate on the subject today, I should like to reserve some of the detail of my remarks, if I may, for that debate, when I address one of the amendments in the name of the noble Lord, Lord Patel. However, to begin with, and for now, I think that it will be helpful if I set the scene.
First, I confirm to the noble Baroness, Lady Finlay, that we made it clear in Liberating the NHS: Developing the Healthcare Workforce—From Design to Delivery, which was published recently, that we are committed to a national framework for education and training, with Health Education England providing national leadership and being directly accountable to the Secretary of State.
Health Education England will ensure that the healthcare workforce has the right skills, behaviours and training, and is available in the right numbers to support the delivery of excellent healthcare and health improvement. It will work with a range of key partners, including the medical royal colleges, professional regulators and the academic and research sectors. The national input and oversight will be there in all the areas which, rightly, the noble Baroness is concerned about. Health Education England and the wider education and training system will, as I said, remain accountable to the Secretary of State, who will have a duty to secure an effective system for the planning and delivery of education and training in the NHS. Employers and healthcare professionals will play a leading role in workforce planning and development through the establishment of local education and training boards, working with the education and research sectors. I shall have more to say about that in a moment.
I can reassure noble Lords straight away that postgraduate deans will continue to be a critically important part of the medical training arrangements. The Government listened to the concerns expressed in Committee by a number of Peers that the Bill did not go far enough in safeguarding the future education and training system. In this group of amendments, which I shall speak to shortly, we have tabled a number of proposals designed to address the gaps that noble Lords identified.
On Amendment 2, tabled by the noble Baroness, Lady Finlay, the Government have already introduced a duty for the Secretary of State to maintain an effective system for education and training. Our duty is more comprehensive than this amendment in that it applies to the whole healthcare workforce and not just doctors. The noble Baroness asked about the scope of Clause 6. Our duty applies to people who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England. This covers healthcare professionals at the centre of delivering healthcare, including doctors, dentists, nurses, midwives, pharmacists, healthcare scientists and the allied health professions. It includes registered and unregistered professions. It also covers non-clinical staff who are involved in, for example, the commissioning or administration of services. In the light of that, I hope that the noble Baroness will feel reassured to some extent and feel able to withdraw her amendment.
Lord Hunt of Kings Heath
My Lords, the government amendments on health inequalities are welcome. I take this opportunity to ask the noble Earl about clinical commissioning groups. Has he given further consideration to the links between health and well-being boards and clinical commissioning groups? He will recall the debate in Committee, when what I thought was a persuasive argument was made that to ensure that the links between clinical commissioning groups and local authorities taking on public health responsibilities were as strong as possible, it would be a good idea if a local authority nominee from the principal local authority served on the board of the clinical commissioning group.
My noble friend Lord Harris suggests in his comments about population coverage by clinical commissioning groups that there will be a grammar school-type impact, a creaming off of patients by some clinical commissioning groups so that the remainder will be left in other clinical commissioning groups. There will be areas of a city or locality where the health inequalities and morbidity and fatality ratios will cause a great deal of concern. It would be good to hear some assessment of that from the noble Earl. We have seen mapping of clinical commissioning groups in different parts of the country and they look weird and wonderful. They are not aligned to electoral wards and it will be very difficult to plan sensible provision of services because there is no geographical alignment.
I also ask the noble Earl, Lord Howe, to follow on from the remarks of the noble Baroness, Lady Finlay. We hear very little about primary care performance in our debate, but when I think back to the original speeches made by Mr Lansley, the whole purpose of the reforms is about GP performance. The argument is that GPs are responsible for most expenditure through referrals or prescribing, and that if you give them the budget, they will therefore be much more responsible in their behaviour. We have yet to be told how a clinical commissioning group will influence the behaviour of GPs within it. I know that that is a concern among the leaders of clinical commissioning groups.
If, for example, a clinical commissioning group has reached an agreement with providers, NHS trusts and NHS foundation trusts, on a shared risk approach to demand management—which I hope will be the outcome of most of these agreements—what on earth do you do if some GPs do not exercise responsibility over their referral or prescribing performance? We know that the variation in quality among GPs is very wide. What are the levers that will bring poorly performing GPs to the table? The leverage that clinical commissioning groups have is very limited. On balance, I think it would have been better if they had had the contracts of GPs. I know that there is an issue about Chinese walls and conflicts of interest, but the fact is that the contracts of GPs will be with the branch office of the national Commissioning Board. Therefore, the levers that the clinical commissioning groups have are likely to be very limited.
Then we come to the issue of, for example, prostate cancer. I very much agree with and support my noble friend Lady Royall on the need for quality standards and I hope that NICE will get a move on in relation to this. However, as my noble friend Lord Harris said, underpinning an argument about prostate cancer is the question of how you make such a standard work at the local level. If there is to be a quality standard, I doubt very much whether it will simply be confined to what an NHS hospital, a clinical commissioning group or a GP is expected to do. The quality standard will look at an integrated approach at the local level which will straddle various features of the architecture of the NHS locally. It might even have some regional aspects too where an input needs to be made.
Therefore, the question is: who on earth at the local level is supposed to sign that off? Who is going to take the leadership role? The clinical commissioning groups will be far too small to do that within a locality, so either they will come together and agree a strategy that will cover a sufficiently large population or, as I suspect, the national Commissioning Board will have to do it itself. I think that we will come on to these debates when we deal with the role of the national Commissioning Board. We have all been highly entertained by the paper produced by Sir David Nicholson showing the less bureaucratic approach that the Government have adopted in relation to the health service with the various layers of bureaucracy that are being brought in. However, I am still left completely clueless about who at that sub-regional level, where so many critical decisions have to be made, is going to take responsibility. We know that in relation to prostate cancer much more needs to be done.
The noble Earl will remember the debates that we had on prostate cancer 10 years ago. He will remember the controversy over testing and how noble Lords were very keen to put their point of view across. That has rather gone away and I think that it has been replaced by a much more informed debate about a cancer on which we know we could do very much more and on which we know there has to be education in the public domain.
I very much support my noble friend in what she is seeking to do but it also raises the issue that the noble Earl’s amendments touch on—that is, the architecture surrounding how a quality standard is implemented in the future, assuming that NICE is able to produce that standard as quickly as possible.
Earl Howe
My Lords, I am grateful to noble Lords for some very valuable contributions to this debate, which has ranged quite widely. I think that the first thing we can all do is agree on the importance of reducing health inequalities and developing NICE quality standards, which was where we began with the noble Baroness, Lady Royall. She is right that the Bill presents a major opportunity to drive up quality in the NHS, not least through the development of NICE quality standards.
The noble Baroness expressed her concern about the time that it is likely to take for this library of quality standards to be rolled out. I completely understand her desire to have NICE working quickly and effectively in producing quality standards. Against that, I simply say that we have to balance the need for speed with the need to produce standards of a high quality. We have already set NICE a challenging programme to produce the quality standards and we have to recognise that, if it is to do the job well, it cannot be done in a hurry.
However, we continue to believe that the programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales. That will lead to a comprehensive library of quality standards, to which she referred, within five years. Of course, I understand that that timescale is disappointing. However, I simply say that, while the quality standard for prostate cancer, in particular, is clearly important, there are many things that we can do, and are doing, to improve the care of cancer patients in the NHS, and we have recently debated some of those in your Lordships’ House.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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Baroness Finlay of Llandaff
My Lords, I would also like to formally record an enormous welcome to these changes to the Bill. What has been said in particular by the noble Lords, Lord Willis and Lord Warner, is very pertinent regarding the need to keep questioning. The one thing now that can happen is that those who are actively involved in research can actually question if they get blocked, in a way that they could not before. I think that they will be very bright and questioning people who will make it known if they are not able to do the research that they see needs to be done for the improvement of clinical services.
Indeed, if we can speed up the processes, perhaps we can create an environment in which all patients and relatives understand that a research-rich environment is one that drives up standards of care, and therefore that they are not being experimented on but are being invited to participate when there is equipoise in the highest standards of monitoring that they could possibly have. The governance around research processes in this country is potentially second to none. We may then regain some of those external trials that up until now have, sadly, been bleeding from our shores. The amendments are incredibly important and their universal welcome is very appropriate. The Minister is to be personally congratulated.
Lord Hunt of Kings Heath
My Lords, from the opposition Benches we too welcome the amendments, which very much reflect the debate that we had in Committee on the importance of research. The Chief Medical Officer has paid a visit to Birmingham over the past two days; he gave a lecture at Birmingham University and visited my own trust to discuss research and the role of the NHS in it. My noble friend Lord Warner has put his finger on it: the question to the Minister is how we make sure that the NHS makes a sufficient contribution in future to the development and support of research. The Minister will know that the Chief Medical Officer is a passionate advocate of research and excellence in the NHS, and that is to be warmly welcomed.
There are some issues that need to be tackled. We have already heard about the issue of getting approval for clinical trials. We still have the problem, which has been with us for many years now, of local committees taking far too long and repeating work by other committees. I understand that there are some issues around the fact that, because foundation trusts are separate legal entities, they have to go through the process themselves, but if they join a clinical academic network some of that work can be reduced. I know that there is to be an announcement at, I think, the end of March about how these clinical networks are to be developed in the future. That is a very important way of enhancing research.
There is no question that the more we do in research, the better the outcomes not only for patients but for the UK’s reputation and economic well-being. Healthcare research is surely an area to which we need to give great priority. The noble Earl, Lord Howe, is of course responsible and we are very glad that he is leading this work. However, there is no doubt that, welcome though these amendments are, we should be given some assurance that the Government will now take them forward into the new situation with enthusiasm.
Earl Howe
My Lords, I begin by saying how much I agree with the remarks of the noble Lord, Lord Hunt. There are two very good reasons why research needs to be promoted in the NHS. The first is that it is for the good of patients. The other is that it is potentially for the good of UK plc. If we can attract investment in translational and clinical research to this country, it will be a major advance. The sad truth is that in recent years the UK has been slipping back in the international league table as a location for clinical research. The Government are determined to reverse that trend, as were the previous Government. We are trying our best to build on the foundations that the previous Government set.
Noble Lords have asked me to explain how the Secretary of State’s duty to promote research will work in practice. I shall try to do so in a few words. The Secretary of State will use the mandate to set priorities for the health service, based on his legal duties. One of those duties is to promote research within the health service, which is shared by the board and CCGs. What are the tools at the Secretary of State’s disposal? The National Institute for Health Research—the NIHR—which is headed by Professor Dame Sally Davies, provides transparent, competitive funding to support clinical and applied health research, the training and development of health researchers, systems to support research and the NHS infrastructure for research. The NIHR will continue to be part of the Department of Health. Its budget of £1 billion is held centrally by the department. The Chief Medical Officer will remain responsible for the NIHR and its budget.
The second main route that the Secretary of State uses, and will continue to use, to support research, is through the NHS. Since the NHS was established, its patient care budget has funded the patient care costs of patients who are taking part in research in the NHS, as set out in existing guidance. In the future, the NHS Commissioning Board and clinical commissioning groups will ensure that these costs continue to be met through these arrangements. The research costs of these studies are paid by the Government and charity research funders such as the Medical Research Council, the NIHR, Cancer Research UK and the Wellcome Trust. The NHS benefits greatly from the evidence provided by this research.
Let us not forget, too, that the Secretary of State will be held to account for what he does. He must report annually to Parliament on the performance of the health service. There is an expectation that he will report on how he has fulfilled his statutory duties.
That brings us to the duties placed on the board. In the document we published, Developing Clinical Commissioning Groups: Towards Authorisation, we set out the early thinking on the authorisation process. The document highlights that as part of the process CCGs will need to demonstrate how they will exercise important functions, such as the duty to promote research, and the NHS Commissioning Board will seek consistency in the way in which CCGs exercise these duties. Furthermore, a CCG’s commissioning plan, and its annual report, as well as the board’s annual assessment of the group’s performance, will cover the exercise of all the CCG’s functions, including the duty to promote research.
I hope that that has given noble Lords a clear outline of how this is all going to work. We regard these duties as extremely important. These amendments are extremely important, as my noble friend said. I am in no doubt that both the health service and its patients will be better off as a result of them.