Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Earl Howe
That is helpful. My noble friend and I are clearly in agreement. I apologise if I imputed any different views to him.
The noble Baroness, Lady Armstrong, indicated that she felt that the oversight powers for foundation trusts should be retained. As the regulator of all providers of NHS-funded services, Monitor will continue regulating foundation trusts under this Bill. These would be enduring functions, not transitional. I hope the noble Baroness is reassured by that. What would be transitional, however, is Monitor’s power to remove foundation trust boards and board members. That is what Clauses 109 to 112 provide for until 2016, although the Secretary of State would be able to extend the transition period by order, as I indicated earlier, if he or she considered it necessary.
My noble friend Lord Ribeiro sought assurances that all providers will work on a level playing field. I am happy to assure him that all providers will indeed be required to meet the same quality standards for the same procedures. Before being qualified, providers will be required to demonstrate that they can meet those quality standards and Monitor will set fair prices for all providers. Competition, as I have said on previous occasions, will be on quality and not on price. If my noble friend will allow, I shall write to him in some detail with answers to his specific questions, which of course were extremely pertinent. I will copy the letter to all noble Lords who have spoken in this debate.
The noble Baroness, Lady Armstrong, also said that the Secretary of State should not raid the budgets of successful foundation trusts. I can assure her that this Bill would not enable the Secretary of State to direct individual foundation trusts or to raid foundation trust budgets, which she has rightly cautioned against. She said that there was a need to ensure that the new system should allow care to be shifted out of hospital. I share her view on that. It is essential that the new system enables more care to be shifted out of hospital into people’s homes and communities. This will require strong commissioning, and that is a key point made by the King’s Fund.
Lord Hunt of Kings Heath
My Lords, I declare my interest as chair of a foundation trust. It is quite simple for commissioners to be instructed to top-slice, say, 2 per cent of their budget and for the commissioning process to be used to divert money from some foundation trusts to others. What the Minister ignores in his construct of the Bill is the actual practice that is happening in the system at the moment.
Lord Hunt of Kings Heath
My Lords, I do not see how the noble Earl can get away from that. We have recently seen that the Secretary of State, having said that he will not intervene, has made three interventions, twice in relation to PCT behaviour and once in relation to the quality outcomes, and in the last debate the noble Earl said that he would continue to use that mandate in future. It seems to me that we will continue to see these kinds of central interventions. It is as if we were in parallel universes. In one, we have the Bill and the theory. In the other, we have the practical management of the health service. Which is it to be?
Earl Howe
Once again, the word “micromanagement” springs to mind. We want to get away from the Secretary of State micromanaging the health service. On the other hand, we think it is perfectly right and proper for the Secretary of State, on behalf of voters, patients and Parliament, to set broad objectives for the NHS, such as the NHS outcomes framework. That document has been very well thought out by clinicians led by Sir Bruce Keogh in the department and has, I believe, commanded universal approval. Surely this is the territory that the Secretary of State should be on: to drive up the quality of care and the performance of the NHS, but not to micromanage.
I recognise that there are fundamental fears that this Bill would increase the role of competition in the NHS and take us down the road to privatisation. I need to be clear that it is not the intention of this Bill, and I do not believe that it is the effect of this Bill, to privatise the NHS. The Bill reaffirms that the NHS will always be there for everyone who needs it, funded from general taxation and free at the point of use. Extending choice and increasing competition is not about privatisation. We want patients to be able to choose to receive their care from the highest-quality providers. Competition in services, where it is introduced, should only be introduced when commissioners genuinely and for good reasons believe that it will benefit patients and the quality of their care. Should we allow this to happen without any check that it is happening legally and properly? Our answer is no; it needs to be overseen fairly and apolitically by a sector-specific regulator with the interests of patients as its core duty.
As with other parts of the Bill, I am more than willing to enter into discussion with noble Lords on Part 3, and I have already indicated that I am sympathetic to some of the key concerns which these amendments raise. With that in mind, I hope that we can move on and debate different issues arising from this part of the Bill and that noble Lords will feel content for the time being not to press the amendments.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Baroness Cumberlege
My Lords, I have two amendments in this grouping and, lest I be drummed out of the Brownies, I would like to explain that there is a typo in the Marshalled List. It should read not “detailed merits” but “detailed remits”. As noble Lords will appreciate, there is a great difference, and I do not need any persuasion as to the merits of this Bill.
The purpose of my two amendments is to be probing; I am really just seeking clarification. The Future Forum was very widely welcomed by most people, but it further complicated the new proposals in the Bill regarding how we are to organise and manage the NHS. After years of being dictated to and micromanaged, there is a real risk of paralysis, and this at a time when commissioners need to reach decisions and be truly radical.
As I understand the proposed structure, the national Commissioning Board and clinical commissioning groups will be supported by clinical networks, clinical senates, commissioning support organisations and health and well-being boards, which will work in partnership with them. In addition, we have a new public health system, which we debated last Monday, with the creation of Public Health England and the establishment of HealthWatch England and Local HealthWatch to try to improve patient and public involvement. This has the potential to cause confusion and duplication if the Government are not clear about the accountabilities, roles and responsibilities of these different organisations. I would like to take a very serious example: it is still unclear who will take the lead on the commissioning of specialist doctors and nurses responsible for safeguarding children within the NHS.
At a national level, the movement from a single department of state to a more dispersed range of organisations, including the national Commissioning Board, Public Health England, HealthWatch England, Monitor and the Care Quality Commission, could have a similar effect. The danger is that the NHS could find itself in paralysis at just the moment that it needs to make key decisions that are crucial for the sustainability of parts of the service. In particular, some of the important decisions on potential service reconfigurations are urgent if the NHS is to meet the Nicholson challenge and at the same time fulfil its commitment to high quality and safe services to patients.
It is still unclear to me, and I know that it is to some others, how the respective responsibilities and accountabilities of commissioners, providers and regulators for quality are intended to work together. We also need to ensure that additional complexity does not result in an increased administrative burden or financial cost, as the noble Lord, Lord Warner, has said, falling on healthcare organisations. I think that my noble friend gave an undertaking on that on Monday but further clarification would be welcome.
Because of these concerns about the complexity of the new structure, I am asking the Minister if he could look seriously at this issue; go beyond the organograms and design detailed remits and powers for all those in the system to minimise confusion, gaps and duplication; and be as clear as possible at the outset as the reforms are implemented, while at the same time keep under review and address any confusion, gaps and duplication between the components in the system. Change is always a challenge. The more we can reduce muddle and confusion from the outset, the more successful these reforms will be.
Lord Hunt of Kings Heath
My Lords, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.
It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register—I am very doubtful that we will see it before the Bill has passed through your Lordships' House—we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.
It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?
Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.
Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State’s annual report is bound to cover these matters.
However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.
Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?
Amendment 245C deals with liabilities and the Secretary of State’s responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?
Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?
My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.
We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.
When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain’t going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.
Baroness Murphy
My Lords, I had not intended to intervene but I have been stimulated to do so by the noble Lord, Lord Hunt of Kings Heath. The model being described of the Commissioning Board and its regional offices—the outposts—is very similar to the model that functions rather well for universities. There is the Higher Education Funding Council for England, which is centralised but also corporate with all its regional offices. The vice-chancellors, who you might say are the chief executives of the local organisations, relate directly to HEFCE. However, the regional executive officers are there to act as a moral support and a conduit. They do not necessarily sort out problems, but at least they are aware of them and know which areas the central body ought to be looking at. That is not so different from the way the regional officers from the Department of Health worked during the time of the district health authorities, between 1983 and 1990. If it is well done, and it has certainly functioned well for the duration of HEFCE, then it seems to me that it is a model which can be built on and developed. Is not that the way the problems the noble Lord is talking about will be resolved?
Lord Hunt of Kings Heath
I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems—if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.
Earl Howe
My Lords, as I have observed on earlier occasions, I believe that this Bill increases Ministers’ accountability for the health service through a range of mechanisms. However, perhaps I may begin by saying to the noble Lord, Lord Hunt, that I agree that the Secretary of State’s annual report is an important mechanism through which he will account for the system. I am sympathetic to the objective behind Amendments 243 and 243A, which seek to specify areas for inclusion in the Secretary of State’s annual report, but I can reassure noble Lords that I expect to see mention of areas such as the reduction of inequalities set out in the report, as these issues are the foundation of a high-performing health service.
The Bill also sets out extensive powers of intervention in the case of failure, which are essential if Ministers are to be able to retain ultimate accountability for the health service. The intervention powers in the Bill are specific to the organisations to which they apply, which is the issue covered by Amendments 245B and 245C. With that point in mind, I believe that the powers set out by the Bill strike the right balance, enabling appropriate freedom for NHS bodies while ensuring that the Secretary of State can intervene in the event of their failure.
The Secretary of State’s duty of keeping performance under review only applies to national arm’s-length bodies. It does not refer to CCGs. The noble Lord, Lord Hunt, questioned why that was. We think that is right; however, the CCGs will very definitely be kept under review. The Bill sets out a robust process for the board to hold CCGs to account and sets out extensive powers for the board to keep the performance of CCGs under review and to step in where they are not performing.
The noble Lord also queried why there was no mention of a range of other bodies, such as senates and field forces. The answer is that they are part of the NHS Commissioning Board, which is specifically mentioned. As regards health and well-being boards, as the noble Lord will know, we intend them to be part of local government. I do not think local authorities would take very kindly to the Secretary of State for Health keeping them under review.
There are also a number of amendments in this group that are concerned with the transparency and accountability of arm’s-length bodies, such as the amendments of the noble Lord, Lord Warner. Much like the Secretary of State’s annual report, each arm’s-length body’s annual report and accounts must be laid before Parliament. I simply remind the Committee that all ALBs are under a duty to exercise their functions effectively, efficiently and economically, and the Secretary of State is required to keep under review how effectively they are exercising their duties and functions.
Finally, I turn to co-operation between the bodies in the system. The Bill sets out a formal duty on each organisation to co-operate, and the department will hold organisations to account for the way they work with each other, not just how they perform their own functions. As regards Amendments 240A, 243ZA, 350 and 351, I hope I can reassure noble Lords that, through these two routes, the department will work to ensure that duplication is prevented and gaps do not emerge. If the Secretary of State believes that the duties of co-operation are being breached or are at significant risk of being breached, he will be able to write formally and publicly to the organisations. If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself.
Amendment 245ZA looks to reinstate a power at Section 2 of the National Health Service Act 2006, which would enable the Secretary of State to provide services. We believe that the role of the Secretary of State should be one of oversight, direction-setting and intervention when organisations are failing. We have had many hours of valuable discussion on this topic; so while I fully understand the various concerns raised by noble Lords, I remind the Committee that all sides of this House have agreed to a process of engagement and discussion on this subject. The noble Lord, Lord Hunt, asked specifically in relation to this amendment whether this issue was covered by that process. The Clauses 1 and 4 process, as I call it, is considering the issue of the Secretary of State’s accountability for the NHS in the round rather than specific clauses in the Bill; so, yes, this would be covered by that process.
I hope that I have provided enough detail on these clauses to enable the noble Lord to withdraw this amendment.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Lord Hunt of Kings Heath
My Lords, I congratulate the noble Lord, Lord Fowler, and my noble friend Lady Gould, on their perseverance. I think they have been waiting for about three days for this amendment. Clearly, they have pointed out the anomaly in the law and the perverse incentive under the current situation; in particular, the fact that if charges result in no treatment, there is danger to the individual and risk of spreading the disease, and that knowledge of charging prevents people from coming forward for testing and treatment. As my noble friend Lady Gould has just said, the contrast with other infectious diseases such as TB clearly points this out as an anomaly.
I too was interested in the answer to the question about health tourism. We have been given a pretty convincing response. The experience of Scotland, Wales and Northern Ireland is very clear. I also found very interesting the question of cost against benefit. It appears that very little money is raised by the charge, but that it is a disincentive for people to come forward. If they do not come forward, the cost to the system in the end is much greater. It seems to me a pretty convincing argument. I know there is a review, but we encourage the noble Baroness to anticipate that review and give good news to your Lordships tonight.
Baroness Northover
My Lords, I am very grateful to my noble friend Lord Fowler for the constructive way in which he has raised this amendment and I pay credit, as others have to done, to his continuing, enormous commitment to improving HIV services for all. I also pay tribute to other noble Lords who contributed to this debate and to this long battle over many years. I will commit to having considered by Report the arguments and proposals set out by my noble friend.
The Department of Health is indeed currently concluding an internal review of the current policy to charge some people for HIV treatment. We will be concluding this review by the new year, including any discussions with the other government departments which will have an interest. The review has considered many of the issues raised by noble Lords today. These include the increasing evidence of the public health benefits of early diagnosis and the role of HIV treatment in reducing onward transmission of HIV.
In the UK, around 25 per cent of people with HIV are unaware of their infection, which means they are unable to benefit from effective treatment and risk transmitting HIV to others. Promoting HIV testing to reduce undiagnosed HIV and late diagnosis remain important priorities for HIV prevention. We would be very concerned if our current policy were to deter people from testing for HIV, even though testing has always been free of charge to all. Those already entitled to free HIV treatment and care include asylum seekers and, from 1 August this year, failed asylum seekers receiving specific support packages from the UK Border Agency. Further, failed asylum seekers who are already receiving HIV treatment when their asylum application and any appeal fails continue to receive free HIV treatment up to the point that they leave the country, regardless of whether or not they receive the UK Border Agency support.
However, I acknowledge that a small number of vulnerable people will not be covered by the current exemptions and they may be deterred from accessing HIV testing services because they cannot afford treatment or are confused about the entitlement to free NHS treatment.
The world has made huge progress against the HIV epidemic in the 30 years since AIDS was first identified. Globally, new infections have fallen, and nearly 7 million people are on ARV treatment. While there is currently no significant evidence of health tourism in relation to HIV, in considering any changes to our current policy we must make sure we that we do not create an incentive for people to come to the UK for the purpose of free HIV treatment, without compromising our overriding responsibility for public health. I stress again that our overriding responsibility is to public health. As my noble friend Lord Fowler said, the Select Committee on HIV examined the issue of health tourism.
In conclusion, the department's review identified and considered many of the issues raised today. We are now looking urgently at how these can best be addressed. I assure my noble friend that we will provide a clear position in time for Report. I hope that in the light of this he will feel able to withdraw his amendment.
Nursing
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Lord Hunt of Kings Heath
My Lords, in thanking the noble Baroness, Lady Emerton, for her splendid opening to our debate, I declare an interest as chair of the Heart of England NHS Trust and as a consultant and trainer for Cumberlege Connections. I also acknowledge my noble friend Lord MacKenzie on the Front Bench. I suspect that what he does not know about nursing is not worth knowing; it is very good to see him there.
This is a very timely debate. We all agree that the quality of nursing care is fundamental to the quality of the patient experience. However, we are presented with a paradox. On the one hand there have been huge advances in the nursing profession over the past 20 years. There has been the move to it being a graduate profession. Nurses have taken on much greater responsibility. There is complex care and specialist nurses, in both hospital and the community, as the noble Baroness, Lady Jolly, so vividly informed us. I think also of midwifery. If the noble Baroness, Lady Cumberlege, were here, she would be able to talk about changing childbirth and how the profession was encouraged to take on a huge leadership role. The public have welcomed the increased responsibility that nurses have taken on.
At the same time there has been a mounting concern about basic standards of care and issues to do with hygiene, the feeding of patients, nutrition, dignity and even face-to face contact. This has been reinforced by several reports from unannounced visits and the CQC over the past few years. There have been any number of investigations of concerns about what seems to be a falling off in basic values of care. What is the reason for that? My noble friend Lady Warwick convincingly demonstrated that the old canard about modern nurses being “too posh to wash” just does not stack up. However, there are a number of questions that one might ask. There is a real question about whether nurse training is too focused on academic performance rather than on practical nurse training.
I also wonder whether the drive for specialist nurses and modern matrons has removed too many experienced nurses from the ward or the equivalent within the community. Has the lack of regulation for healthcare assistants led to patchy and inadequate care in some places, despite the undoubted dedication of many of them? We need some serious thinking about how to enhance quality overall and the standards of basic care that nurses give. Certainly, in my own trust a lot of thinking has gone into the quality of nurses. I claim no credit for it. While we do not have matrons in starched caps, we certainly have visible chief nurses in purple uniforms walking the wards as a visible demonstration of nurse leadership, which has been warmly welcomed. Anyone who wants to see nurses really dressed up should go to the Florence Nightingale service in Westminster Abbey once a year. I always hope that the chief nursing officer will come in uniform—alas not. To see the chief nurses of the Army, Navy and Air Force marching up the aisle is a wonder to behold. The reason why the public like to see it is that they want to see nurses in authority. They want them to have the confidence to be leaders in the ward, in the community and in the health service as a whole.
Another thing that we have done is to develop a robust measurement of nurse standards by polling 400 patients a month, looking at the results, reporting to the board and trying to identify any problems with nursing care. The third thing that we have done is to develop VITAL—virtual interactive teaching and learning. Essentially, it assesses all nurses online for their knowledge of best practice in fundamental care. This covers, for example, nutrition, falls, privacy and dignity and pain management. Since the summer, 60 per cent of our trust’s workforce have achieved 100 per cent in that online examination. Our intention is that from next year all newly qualified nurses and midwives will have to achieve 100 per cent within six months or they will not get the substantive contract. We also expect our nurses and midwives to sign up to a code of values and behaviour. We are introducing a badge for our nurses which will be achieved only if they get 100 per cent in the online test, sign up to our values and have evidence that they are putting those values into action. The noble Baroness, Lady Emerton, will certainly remember the badge, which nurses wore with pride. It showed where they came from and who they were; for example, the Tommy’s nurses. We need to get some of that ethos back into the health service.
We have done a lot but there are a lot of issues around the training and education of nurses. I do not disagree with the requirement for nurses to have a degree. I do not think there is any argument about that. However, we have thought about how a foundation trust could be much more involved in nurse education and in supporting students in practical nurse training. We wanted to facilitate a practice-based model built around the trust which promoted our core values but adhered to national standards and the curriculum as laid down by the Nursing and Midwifery Council and with appropriate academic accreditation. It is fair to say that our proposal has not met with universal acclaim. Indeed, I feel that all the establishment bodies concerned with nurse training and education have put a real dampener on this. We have been accused of turning the clock back to the old schools of nursing. That is a bit unfair to some of the old schools of nursing because they were pretty good. However, we are not trying to do that. We seek to facilitate a more practical-based nurse education degree, which would have degree status but would be built much more around the hospital and its values. I do not think that this discussion is at an end. I believe that we will soon have a new chief nursing officer to follow on the excellent current CNO Christine Beasley, if one has not yet been appointed. This must be one of the main focuses of the new chief nursing officer. What could be more important than sorting out the education and training of nurses?
The noble Viscount, Lord Bridgeman, and the noble Baronesses, Lady Jolly and Lady Masham, were right about the role of senior sisters, or their equivalent, in the community. We need to empower them to lead. That means they have to have control of the budget so that whoever is providing the cleaning or the food, whether it is directly employed people or contract cleaners, none the less when the senior sister wants something to happen there is no question but that it happens. We need to give our senior sisters much more confidence and support to take on a leadership role. We need to go back to the days when doctors were a bit scared of the senior sister because she is in charge and she is the person on whom the patients depend for the overall quality of care. Making our senior sisters supernumerary so that they can focus entirely on leadership and management will cost us £1.6 million. It is a challenge to find the resource to allow them to focus much more on leadership. The problem with being drawn back into being counted as one of the qualified nurses on wards is that they then get so focused on caring for patients that they just do not have the time to carry out the leadership role that is required.
I urge the noble Earl to take account of two further points. My noble friend Lady Warwick talked about the lack of UK research in relation to basic nursing standards. The noble Earl will not be surprised to hear that there is an issue with regard to the amount of money spent on research into nursing. I know of the efforts made by the department over the years to give a boost to the amount of money spent on research in relation to nursing but clearly we need to go somewhat further in that regard. We probably need to have more academics who can focus on research.
With regard to healthcare assistant regulation, the Government’s response is to have a voluntary register. I suspect that there will be a halfway house and that it will not be long before some NHS organisations will say, “You can’t be a healthcare assistant with us unless you register voluntarily”. I hope that training programmes will be set up but, for the reasons that the noble Baroness, Lady Masham, has given in terms of safeguarding the public, the argument for regulation is becoming ever more persuasive.
I hope the noble Earl recognises that the number of nurse training places should be determined by Ministers. If he devolves that issue, he will find that in times of financial difficulty the number of training places will be cut. I would give much more discretion to the NHS locally to determine arrangements with universities regarding the provision of graduate education for nurses. However, history tells us that the moment the department relinquishes control of the number of training places, the health service does the wrong thing. I know that we are debating the tension between national leadership and local discretion, but national leadership is required in some areas, and this is one of them.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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“(1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) about the exercise of any functions.
(2) For the purpose of subsection (1) the bodies are—
(a) NHS Commissioning Board(b) clinical Commissioning Groups”
Lord Hunt of Kings Heath
My Lords, that is exactly the point I was going to raise. Originally my Amendment 152 was grouped with Amendment 153 and other groups. For some reason I have been divorced by the Liberal Democrats, who are going to have a second debate on the same issue. This is a complete waste of time. I think that the best thing is for me not to move my amendment now, but I will speak to it in the next group.
Lord Owen
My Lords, I have followed with great interest the career of the noble Lord who has just spoken. He has now reached great eminence in his profession, and he has succinctly explained exactly what this Bill needs. This is by far the most important amendment that we have had before us. I welcome both of its parameters. It would be a terrible failure if we did not pass such a Bill. It is inconceivable that a person could even call himself Secretary of State for Health and not have this power. It would be impossible for him to stand before the House of Commons, where he is most likely to be holding that great office, and be unable to say if he felt that there had been a failure to carry out the responsibilities with which he is charged. How could he hold the office? It would effectively be a resignation issue on an important matter if he did not have that power and was not able to exercise it, and not to give him that power is effectively to strip the Secretary of State of his substance and his standing. This amendment is therefore utterly crucial. I personally think the wording is correct.
I would just like to deal with this word “significant”. Until a few weeks ago I would have queried whether or not the word “significant” would be adequate. However, if you look at the legislation that this House has already examined in great detail and which has now been passed into law, namely the European Union Act 2011, which was given very close scrutiny, there is an issue—I think it is in Article 48—that I suspect we will be debating quite soon. This allows the Government, in circumstances in which they think a change has been made to the EU legislation that is not significant, to give up having a referendum. It has already been indicated to the rest of the eurozone countries that there are some circumstances under which the British Government would consider a eurozone amendment predominantly the concern of the eurozone and not significant, and therefore it would be able to be passed with unanimity and not need a referendum in the UK. So this word “significant” has already been crawled over with a great deal of care by a large number of people, not least the Eurosceptic element within the Conservative Party.
It has also been made clear that that would be subject to judicial review, which might be another safeguard that you would have to see. I think it is implicit in the wording—the noble Lord would know the legal consequences better than I—but I personally could live with the “significant” because there is an important issue here that if decentralisation is to be effective, there must not be micromanagement. I looked at putting down an amendment using the word “micromanagement” and then I came to the conclusion that micromanagement is in the eye of the beholder; it is not really a word that we could carry through in legislation. I think the combination of wording that the noble Baroness has used is the correct one: you have got the right to intervene but it is qualified by the fact it has to be significant, and it might be that that significance could be challenged. I very much hope that, having given it due thought, the Government will rise today to tell us that it is going to be accepted. If they do not do so, I hope it is pushed to a Division, whether that is now in Committee or on Report is up to the noble Baroness, Lady Williams, whose judgment I always accept—almost always.
Lord Hunt of Kings Heath
My Lords, I remain very puzzled by what the noble Baroness, Lady Williams, said. There is no disagreement at all, it seems to me. My original amendment and the amendments of the noble Lords on the Liberal Democrat Benches are entirely about the whole question of what is an appropriate intervention by the Secretary of State. Perhaps the noble Earl is going to accept this amendment and the Liberal Democrats want the glory of having it accepted—who knows? I agree entirely with the analysis of the noble Lord, Lord Marks, that the powers of the Secretary of State have to be sufficient to enable the Secretary of State to discharge his or her accountability to Parliament and to be responsible for the overall performance of the National Health Service. I agree with him that the current intervention powers are too weak in terms of the threshold and I agree that they are set too high. I also agree with his analysis about the relationship between the board and clinical commissioning groups.
It is very interesting as this Bill has progressed—somewhat slowly but none the less some progress has been made—that we have seen a number of interventions by the Secretary of State into the affairs of the National Health Service during that time. They have included coming down very hard on primary care trusts that were making people wait longer on the waiting list, although within the 18-week target period in order to save money, and on NHS trusts that, once a patient missed the 18-week target, let them wait many more months. I make no complaint about those interventions. I believe the Secretary of State was entirely justified. One of the questions is, how would that happen under this legislation?
When we debated this last week, the noble Earl, Lord Howe, essentially said that provision could be made in the mandate set for the board by the Secretary of State. That in itself risks the mandate becoming prescriptive and potentially another way to micromanage the National Health Service as one thing after another is added on. He was not very keen on my noble friend Lord Warner’s suggestion that the mandate be restricted to, I think, five objectives and five desirable objectives. I suspect that when we see the mandate it is going to be very detailed because the Secretary of State will seek to cover himself so that when blame comes it will fall entirely on the NHS Commissioning Board.
It may be that in writing the mandate there are some events or issues that could not be anticipated in advance. However, in the circumstances that I have mentioned, the noble Earl, Lord Howe, could say, “Well, you have the intervention powers contained in Section 13Z1 on page 23”. As the noble Lords, Lord Owen and Lord Marks, have suggested, the problem is that the intervention has to be based on a failure,
“properly to discharge any of its functions, and the failure is significant”.
The intervention is based on the consideration of the Secretary of State. The Secretary of State will be properly advised by his officials and possibly by the Government’s law officers. However, what if the NHS Commissioning Board rejects the Secretary of State’s view? What if clinical commissioning groups which had contained costs took the view that, in the case of non-urgent treatments, it was legitimate to make patients wait a few weeks if they were none the less treated within the overall 18-week target? Looking at the robust evidence given by the chair of the NHS Commissioning Board to the Health Select Committee, which scrutinised his appointment, it is just possible that the NHS Commissioning Board might tell the Secretary of State to back off. I do not think that is right. I am firmly on the side of Mr Lansley, since he is the Secretary of State and firmly answerable to Parliament. In the way that the Bill is currently constructed, I worry that the Secretary of State will be inhibited from necessary interventions.
Lord Warner
My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State’s mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.
The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.
Lord Hunt of Kings Heath
Perhaps I could try to answer my noble friend. There are two reasons why this is important. First, there is a real risk that the mandate will become so large and extensive to cover the Secretary of State—who wishes to transfer responsibility to the national Commissioning Board—that we will end up with a real fudge about who is actually responsible. Secondly, there are circumstances. Until last week, I do not think that many people knew that once a trust had allowed its waiting times to go beyond 18 weeks, there was a problem with some of them taking their eye off the ball. If a patient missed the target, often he might have to wait for weeks. It is quite possible that even if the mandate is as extensive as I suggest it might be, there will be circumstances in which the Secretary of State may need to intervene. It is not the case of having time to rewrite or edit the mandate, or look at the standing rules. The Secretary of State may need to intervene on the day that an issue arises. All that I want to do—and I suspect the noble Lord, Lord Marks, also wants this—is to make sure that the Secretary of State is able to intervene in circumstances that we cannot necessarily anticipate but, knowing the health service, we suspect will arise from time to time.
Lord Mawhinney
My Lords, the contributions of the noble Lords, Lord Marks and Lord Owen, demonstrate again why this Chamber is frequently held in the highest regard for the strength, clarity and coherence of the arguments that are advanced within it. I am not going to repeat what they said because I agreed with both of them. My noble friend Lord Newton and I are in danger of becoming Tweedledum and Tweedledee when it comes to trying to persuade the Government that there is a real world out there with around £130 billion worth of responsibility. Lots and lots of people are doing their best, but human beings have the inescapable ability of getting things wrong from time to time, no matter how good their intentions.
I have to say to the noble Lord, Lord Warner, that one of the interesting things about this Bill is that it talks about a mandate. I think of my time in Richmond House when something had gone seriously wrong and civil servants came in to say, “Well, there’s a mandate, Minister,” and I would say, “Isn’t that fantastic?”.
Let us get down to the reality of what we are going to do about this latest mishap. That is not an argument for not having a mandate, it is an argument for not putting all your eggs in one basket, even if this particular basket is as widely constructed as the noble Lord, Lord Warner, thinks. I have not resiled from what I have previously said in this Committee in that the Secretary of State is responsible. He has to be responsible to Parliament, he has to be responsible in law, and in reality he has to be responsible in the health service. I am relaxed about the Government putting in place arrangements which they believe—it will all have to be tested over the next few years—will provide a more coherent way of delivering a better and more efficient service than we currently enjoy. I do not resile from the fact that when push comes to shove—and it will, because that is one of the characteristics of the Department of Health, more than any other single department in Her Majesty’s Government in my 30-odd years in this building, one end or the other—it must be clear that the Secretary of State can act, and in a way where the people of this country believe he is acting for them and on their behalf.
Lord Hunt of Kings Heath
My Lords, does not the noble Lord make my point for me, apart from believing that the 2006 Act is perfectly formed in every way? Surely the point is that it should not be open to any doubt whatever. In the end, if a Secretary of State intervenes, it must be because he considers it in the best interest of the National Health Service. Why should we complicate matters by potentially giving at least an argument for judicial review when, in the cases mentioned, the Secretary of State simply will need to, or be required to, intervene?
Lord Marks of Henley-on-Thames
The answer is that we are not at one about the vulnerability of my amendment to judicial review. I rather hope that that is never tested; nevertheless, I hope that the amendments are accepted.
Lord Hunt of Kings Heath
My Lords, my Amendment 154 brings us to a group of amendments which consider a number of interesting points about clinical commissioning groups and their relationship with GPs, other contractor services and local authorities. They also allow us an early canter at probing exactly where the Government’s policy on clinical commissioning groups currently is.
My first Amendment 154 is partly probing, but it is also to ask why membership of a clinical commissioning group is only confined to general practitioners or, in the jargon of the Bill, providers of primary medical services. What about the other contractor professions within primary care: the dentists, the pharmacists and the ophthalmologists? What about primary and community nurses? I would not in any way seek to undermine the potential leadership role of general practitioners, but they are part of a primary care team. It is rather unfortunate that other members of the primary care team were not considered worthy of membership of a clinical commissioning group.
I must say that I have yet to hear any rational explanation as to why GPs only have been singled out for this exalted membership of a clinical commissioning group. It would have been perfectly possible to have brought all the contractor professions and, I would hope, primary care nurses, into membership of a clinical commissioning group, and then to have a governance structure which none the less recognised the pivotal role of GPs but did not exclude the other professions. One could have had a weighted voting system or some other way of reflecting that yes, GPs are clearly a very important profession in primary health care, but they are not the only one.
I am curious to know why the Government did not adapt that approach, and how they expect clinical commissioning groups to really relate to the other professions. How can they bring them on board? I think of rural clinical commissioning groups and rural dispensing, and how there can be terrible tensions between GPs who dispense in rural areas and community pharmacists in those areas. If I were a community pharmacist, I would be rather concerned that the rural clinical commissioning group is not at all going to act in the interest of community pharmacy. It is almost bound to act in the interest of rural dispensing general practitioners.
I would be interested therefore, if the noble Earl, Lord Howe, could give some further explanation as to the construct of clinical commissioning groups. I should say to him that, having talked to dentists and community pharmacists, they are really concerned that they will be excluded from the decision-making process within clinical commissioning groups, and that it will be purely GP-dominated. Some of the people most concerned, and quite rightly, are primary care nurses, whose voice should be heard. One fears that the traditional approach will be to exclude them from those discussions when they have an enormous amount of expertise to bring to the table.
Amendment 158 is a probing amendment. It relates to the areas of clinical commissioning groups and argues that clinical commissioning groups ought to be coterminous with the boundaries of a local authority or contiguous group of local authorities.
I stress to the noble Earl, Lord Howe, that this is a probe. If health and well-being boards are to work well, there clearly needs to be an integration of public health and commissioning between the various groups at local level to make sure that they come together in a cohesive plan and at interventions. It is very important that clinical commissioning group areas at least do not go over into other local authority boundaries. There is an argument for coterminosity, but of course I do accept that in some areas that would make the clinical commissioning groups far too large and that is why I stress to the noble Earl that this is a probing amendment.
In the county, non-metropolitan district areas where you still have a two-tier system, I would have thought there is some concern about the involvement of the non-metropolitan district councils in the arrangements for liaison between local government and clinical commissioning groups. While it does not strictly come within the remit of this amendment, it is a matter to which I suspect we will want to return at Report stage.
Beyond that, this is a good opportunity to ask some serious questions about clinical group commissioning. It seems to be clear that there is now increasing anxiety among GPs that the likelihood of them having significant control of commissioning is becoming remoter by the day. The noble Earl will be aware of the BMA’s decision to come out decisively against the Bill. But I have also noted with great interest a press release by the NHS Alliance, which of course has been very much a flag waver for the Government, in which it complained about bullying taking place by the system in relation to clinical commissioning groups. The headline is that doctors leading the NHS reform changes report coercion and bullying in the way the organisations are being set up, which followed a survey of a number of pathfinder clinical commissioning groups. The survey asked: “Do you believe that your clinical commissioning group is being coerced or bullied in how you are setting up in ways that conflict with what you feel would benefit your local population?” Out of the 67 clinical commissioning groups surveyed, 60 per cent answered yes. So much for this hands-off approach that we have been promised. Clearly things have changed. When this started the assumption was that we would have a large number of clinical commissioning groups covering fairly small areas where GPs would actively be involved around the table in commissioning decisions. It has been made abundantly clear that CCGs would not be authorised unless they merged into much larger organisations covering very large population bases.
I wonder whether the noble Earl could perhaps say how many clinical commissioning groups he now expects to be informed. Can he also confirm that they are going to be forced to obtain external commissioning support? Indeed, they have been promised the delight of a bureaucratic procurement process for that support lasting, I understand, up to 12 months. So they are also clearly being leaned upon to use the private sector for such support and they are being forced also to merge commissioning for large-scale commissioning projects. No wonder some GPs are beginning to wonder what this is really all about and whether one beast is being replaced by another. Today Dr Michael Dixon, the chair of the NHS Alliance, told the annual conference about the challenges ahead for clinical commissioning groups or, as he called them, the nation’s future clinical commissioners. He said that they will be confronted by the demons of self-interest, factional politics, ignorance, laziness and raw emotion. They will be hated by all of those who have fed from the gravy train of the current system.
I am a longstanding admirer of Dr Dixon, not least because of his pressure when I was in government to give support to complementary medicine, which I suspect that noble Earl, Lord Howe, now enjoys as well. But I think he made those remarks because he knows, deep in his heart, that the game is up. Whatever one thinks of the Government’s reforms and whatever changes have been made as a consequence of the listening exercises, I had always clung to the thought that the Government were serious about giving GPs control of commissioning. It has become abundantly clear that this is not the case. GPs have been sold a dupe and so too has Parliament, I fear. I beg to move.
Lord Warner
I speak to Amendment 157 which is aimed at containing the number of clinical commissioning groups and their total operating costs. I have some sympathy with the remarks made by my noble friend, but before I go into the detail of these particular amendments, I want to give a little context.
My Lords, there has been a great deal of concern expressed by many people who are well versed in the background and activities of the NHS about the number and small size of clinical commissioning groups that might emerge. I do not condone bullying, but we have a problem. The smallest population size for a CCG that I have come across is 18,000 for Radlett, near Watford. I asked the Minister for the Government’s latest estimate of the number of clinical commissioning groups likely to be operational in April 2013. In his answer to me on 9 November, he said:
“It is too soon to estimate the number of clinical commissioning groups that will be operational in April 2013. There are, however, currently 266 pathfinder CCGs covering 95% of GP practices in England”.—[Official Report, 9/11/11; col. WA 58.]
So it is possible that there could be about 280 clinical commissioning groups when all practices are covered. This is far too many to be effective, for reasons I will explain in a moment. We are getting into an extraordinary position. It seems almost an article of faith, or really bold ministerial courage, for the Government to be embarking on this massive NHS reorganisation, at a time of great financial challenge, without knowing, 16 months before they go live, how many clinical commissioning groups—the bodies that will be handling large chunks of this money—will be in place. That seems a pretty racy way to live with a national icon like the NHS.
We will come to the competency tests for CCGs in later amendments. If those competency tests are to mean anything, a significant number of these groups could, presumably, flunk them. Or will all the geese suddenly become swans? What light can the Minister throw on the likely failure rate for clinical commissioning group applicants? When will we have more reliable data on how many clinical commissioning groups we are likely to end up with? For the purposes of discussing the amendment, I will assume that the Government anticipate having something of the order of 250 clinical commissioning groups by April 2013. For many of us, this would seem far too many, and totally fails to learn the lessons of history. As someone who had to learn the lessons of history in the area of commissioning the hard way, I want to share some of that experience with the House.
In 2002, the previous Government set up 302 primary care trusts to undertake commissioning. To some extent, in doing this, it was following the course that this Government are trying to pursue—of getting commissioning closer to local populations. That was one of the arguments for doing it and it is not one which I would quarrel with, in principle. But, like clinical commissioning groups, small PCTs were expected to be able to carry out most of the functions of a commissioner. They needed to have all the skills to undertake commissioning, they needed to be effective demand managers, they had to have the muscle to stop acute hospitals gobbling up too much of the money and they had to be able to secure a more appropriate balance between community-based and hospital-based services in their delivery. They failed, and their failures were shown by a number of reports by the Health Select Committee in the House of Commons. They failed because many of them were simply too small and there were too many of them for the commissioning capability nationally available to be able to staff and run that number of bodies. We are heading down exactly the same path with clinical commissioning groups. The manifestation of the failure of the PCTs was the financial meltdown of the NHS in 2005-06. This meltdown occurred after several years of 5 per cent real terms growth in NHS expenditure and in the middle of a financial year with 5 to 6 per cent real terms growth. This is not the situation that clinical commissioning groups will be faced with.
Baroness Jolly
My Lords, I have supported the idea of coterminosity from when I first saw the Bill in January. It struck me as being straightforward and sensible that if health and social care were put together, the health boundaries would be aligned with the social care boundaries. That clearly happened in the middle of the last decade, when PCTs were grouped together to be coterminous with social care boundaries. There are all sorts of issues. If you have a large clinical commissioning group, then there is a capacity issue in that you have one clinical commissioning group that might need to work with several local authorities’ health and well-being boards, directors of public health, healthwatches or whatever. If you have a small group, then you have many CCGs working with all those bodies. It struck me that if there were a direct fit, everything would look quite neat and hunky-dory. I parked the thought in my mind that everything was fine.
Then I started to look at what was happening around me locally in the south-west. Torbay has been mentioned many times in your Lordships’ House. It provided a care trust—health and social care together. One of the areas they are really anxious about is that if they become part of Devon, an awful lot might get lost. So there are special circumstances around that integration. They know that they are small and they are trying to look at making themselves bigger by working with other parts of Devon, all of which take their acute services from one DGH. The same sort of thing is happening in Plymouth. Noble Lords will remember from the Bill about constituency boundaries in January that there was a huge big deal about Cornwall being all on its own. Cornish patients, believe it or not, actually do cross the Tamar in order to go to hospital in Plymouth. A fifth of Cornish hospital patients actually do that, so a whole group of Cornish GPs who face that way, along with some in south-west Devon who face that way, along with Plymouth, have discussed the possibility of working together as a group, simply because they all face one DGH. It was a common bond, if you like.
Therefore, we have a county or a district or a borough seen as one possible common bond. We have an idea that commissioning groups who commission from a particular hospital, trying to work together in a pathfinder mode, is not peculiar to the south-west; a lot people seem to think it would be a good idea. There are lots of issues, so how do we solve this? I still think that, for an awful lot of situations, co-terminosity is the right answer. The test really has to be: what actually can be deemed to be in the interest of the patient? The whole thing has to be taken in the round; it has to include care providers and health providers and there has to be an element of size capacity. My head—and my heart—say coterminosity, but then I look at certain other areas where there are groups that have—
Lord Hunt of Kings Heath
Would the noble Baroness give way? She has raised an interesting point. Could I describe the situation in Birmingham? My understanding is that although there will be more than one clinical commissioning group, there will clearly be one HWB group and the membership has now reached 25. There is one place for providers on it. One gets the feeling that there is a risk that it will become a talking shop. Secondly—and I declare my interest as chair of an NHS foundation trust in Birmingham—if you exclude the providers from those key discussions, you will not get a buy-in. Think of patient discharge and the relationship between reducing length of stay, preventing admissions and the support that social services needs to give packages of care. One worries that you reach a situation where the whole thing is so unwieldy that it will not really work.
Baroness Jolly
I have lost my thread. We are talking about Birmingham, which is humongous, and presumably any large city would have exactly the same sort of issues. Is the noble Lord arguing for coterminous clinical commissioning groups?
Lord Hunt of Kings Heath
My point is that my amendment was a probing amendment to get some information from the Government about their intent regarding boundaries. Clearly, one of the problems that we are discussing is size and the larger you make clinical commissioning groups, the less influence GPs will have on their deliberations. The whole point about clinical commissioning groups was to put GPs in the driving seat. I do not know if Ministers know how much pressure within the system is being put upon potential clinical commissioning groups, but they are being told that they have to get large. The numbers who put themselves forward at the beginning were basically told that there was no way that they would get approval, so they have been forced into big marriages.
I simply point out that even if you take Birmingham, where there will be very big clinical commissioning groups, you will still end up with an unwieldy health and well-being board. One has to think through the implications of this if you are then trying to get a cohesive strategy on public health and on joint commissioning that pulls all of the players together—while still excluding the providers from those discussions. We started from an original prospectus that was going to give GPs real control over commissioning. That is gone. I agree with the noble Lord, Lord Mawhinney. I do not think that there is now any chance in the system that is being forced upon the service, that individual GPs will have any influence. As with the noble Lord, Lord Mawhinney, it is clear that GPs are realising this now, and that the prospectus is a false one.
Baroness Jolly
I think that the noble Lord’s point is well made. The noble Baroness, Lady Finlay, however, talked about the element of size and back office, which needs to be quite large. Small CCGs will need to share a back office, simply because that is the way it is. There will need to be shared commissioning arrangements. I think that the noble Earl, Lord Warner, was saying much the same thing: these things will not work if they are tiny but might if they are larger. I remember primary care groups, which became primary care trusts, which became bigger primary care trusts. What is a reasonable size to make all those linkages work? What we do not want is for all of these organisations to spend their days going to meetings. If we are not careful and clinical commissioning groups go over local authority boundaries then they will have to serve more than one health and well-being board.
The ideal would be to have some co-terminosity but clearly it will not work in really enormous situations. My background and experience is in rural areas, where it strikes me as the most obvious way forward. Even if that is not how it starts, that is how it probably should end up. As for the Torbay example, the PCTs are very small. However, they are also perfectly formed and have done a really good job. They are desperate to keep what they did, and did well, but they are being pressured to join a Devon PCT—which also has pressure on Plymouth, which is also part of the Devon PCT. So it is not a straightforward picture. When clinical commissioning groups put their case to the board, there needs to be some sort of nuancing in application.
Lord Greaves
I was going to make merely a brief intervention on this group on the question of coterminosity. However, this has extended into a much more important debate, which is coming down to some very fundamental issues in relation to clinical commissioning groups. The noble Lord, Lord Hunt, is to be congratulated on introducing this debate because it is absolutely crucial. We have to have it some time—if we are having it on this amendment, fine.
The noble Lord said in passing that the same issues keep coming round at different stages of the Bill. On this Bill the same issues keep coming round in different sessions in Committee. This is the second time we have talked about coterminosity. I think previously it was on an amendment from his colleague, the noble Baroness, Lady Thornton. I will not repeat everything that I said then, except to say that there has to be some flexibility. There are very good arguments for saying that CCGs should not cross local social care authority boundaries. However, the point I made previously was that in very large counties, like Lancashire or North Yorkshire or, if I think about the south of England—which I force myself to do occasionally—Hampshire and Kent perhaps, at the very least they ought to have the ability to not have a very large CCG forced on them that covers a whole county, which would be very remote indeed.
We have heard about Cornwall and Devon from my noble friend. We have heard about Birmingham. I am going to say a few things about Lancashire. I am very interested to know whether there are any noble Lords in Committee today who are very clear about what is happening in relation to setting up CCGs in their own areas, how it will work and what will come out of it. Asking colleagues on the Liberal Democrat Benches while this debate has been going on, nobody seems to know; chaos and confusion seem to be the impression. I am not saying that it is chaos and confusion, but as far as ordinary members of the public are concerned, let alone other people like myself who try to take a more direct interest, it is not very clear at all what is happening, or if what is happening is clear, it is not clear why and how it is happening. This comes back to the points raised by the noble Lord, Lord Hunt, about the fact that there are very clear pressures from above that are moulding the system that is going to take place. I very much take the point from the noble Baroness, Lady Murphy, that there ought to be local discretion and local decision-making here. However, that is not happening. People are being forced into decisions, and that goes against what she was saying.
Let me tell you about where I live, in east Lancashire. At the moment there are two PCTs. There is a Blackburn with Darwen PCT, because Blackburn with Darwen escaped from Lancashire County Council at some stage in the past and became a small unitary authority, so it has its own PCT. The other five districts, which are part of Lancashire County Council, have an East Lancashire PCT which, as the noble Baroness pointed out, had been formed by amalgamations over the years. There is one East Lancashire Hospitals NHS Trust that effectively covers the two PCTs, so there are two PCTs and one hospital trust at the moment. The PCTs have been combined with the rest of Lancashire into a county-wide cluster, but the East Lancashire PCT still exists.
I have recently been given a whole set of minutes and agenda papers, a great big thick file, from a relatively recent meeting—in the last few weeks—of the East Lancashire PCT. Although they find it increasingly difficult to keep going because all their chief officers have gone, there are still functions taking place at the PCT level; there are functions taking place at the cluster level, and for somebody like me who takes an interest in but is not directly involved in the health service nowadays—I used to be on a district health authority, an area health authority and a community health council, but am not now—I find it very difficult to find out where the decision-making is taking place.
Back when CCGs came along, the original idea was that they would be quite small, as the noble Lord, Lord Mawhinney, quite rightly said. They would be groups of GP practices within a recognisably local area. Whether that was a good or a bad idea—and in many ways it was an attractive idea—that has clearly now gone by the wayside. People were told that the minimum that you could get away with in east Lancashire was district-wide—that is the lower tier—so people were getting together and forming proto-CCGs at the district level.
In terms of population, Rossendale is about 70,000 and Pendle is probably the biggest of the five at about 90,000; it is that sort of range. The doctors who were getting together and working on these CCGs—and certainly in both Burnley and Pendle they were working closely with the district authorities to share back-room services and so on when they were set up—were told that this will not do any more. I am not at all clear who told them, but it has been made absolutely clear that there now has to be a new CCG covering the five districts, an area of 450,000 people. It is a very significantly different proposition, however you define significant, from groups of local practices, where the whole thing started off.
Blackburn and Darwen, because it is a unitary authority, is insisting that as far it is concerned, it will have its own CCG, which will be coterminous with the relatively small unitary authority, which has a population of around 140,000.
Lord Hunt of Kings Heath
Has that potential CCG been told that it will not get authorised? I would think that that is the way in which the system will force it into a larger merger.
Lord Greaves
I assume so, but I have no personal knowledge of the processes that are leading to these outcomes. All I hear about—from talking to people who are professionals and politicians involved in these systems and through the normal bush telegraph—is the outcome. The outcome is that there is almost certainly going to be a CCG 450,000 bigger, as I understand it, than any of the doctors involved would really like, and there have to be far fewer doctors involved from each of the districts. In my own district, it was going to be a Pendle-wide organisation where all the doctors involved would be known to a lot of people in Pendle, but now there will be just a small number from Pendle and some from Rossendale and some from far-flung parts of the Ribble valley. Meanwhile in west Lancashire, along the Fylde coast, where there is a string of small holiday towns with Blackpool in the middle and then a large area of countryside, are the two districts of Fylde and Wyre while Blackpool itself, the main town of the Fylde coast, is a unitary authority. What we understand is going to happen there—I have no direct evidence of this, it has come through the bush telegraph—is a CCG of Fylde and Wyre, a relatively smaller one, with Blackpool on its own. Of course all the hospital services and everything else are mainly in Blackpool. There does not seem to be any logic about what is going on, even though it is being defined by local authority boundaries.
I ask the Government to provide some clarity over what is happening in two ways. First it would be very helpful to have clarity on what is actually happening in each area, and for this whole process to be taking place in a much more public way. But it is not. It is all taking place out of the public gaze, and unless there are local journalists who are particularly interested in it and try to research it, nobody has the slightest idea what is going on, whether or not it is being decided locally.
More importantly, I accept what the noble Baroness, Lady Murphy, says, but I think that we need an understanding of the sort of pattern which is going to result from this Bill once it is enacted and the CCGs are set up. We want a clarity of vision from the Government. What sort of number are they talking about? What range of size will be thought to be permissible? If they are saying that it could stretch from areas of 15,000 right up to a major city of half a million or so, and that sort of thing will be left to some sort of diffuse local decision-making, then that is okay, but we need to understand that. If, on the other hand the Government are saying that a lot of the groups that have been looking at this are far too small and they have to be much larger, then they are really moving towards what I might call the Lord Warner position, and again we need to understand that. We have a right to know what the outcomes of this legislation are likely to be before we allow it to go forward.
Baroness Wall of New Barnet
I cannot answer for the whole of London. I really do not know. What I do know is that the more the clusters emerge, obviously the more those PCTs will be absorbed into them. My noble friend will be much more able to give you more detail about that.
What is happening in real life in north central London is that the PCTs are being absorbed into the cluster. Contrary to the experience of the noble Lord, Lord Newton, the clusters have not just taken over the whole PCTs, including staff and everything else; they have not. In fact, the chief executive of the cluster in north central London did not come from north London at all. So that is very different, I think, from some of the experiences that other people have. However, I cannot give you the view of the whole of London because I really do not have that knowledge.
Lord Hunt of Kings Heath
My Lords, perhaps I could intervene to say that I echo everything that my noble friend said about the work of the clusters. They are covering, in my case, some 1.3 million and clearly are trying to get to grips with the strategic leadership that is required on the whole issue of reconfiguration of bed numbers and all the things that have been put off for so long. My understanding is that they go on as local field offices of the NHS Commissioning Board. That is the whole point. The question that then comes back, and where I am completely puzzled, is where on earth is GP commissioning in this? It is abundantly clear that the clinical commissioning groups are going to have very little influence. When you come to the issue of the individual GP, which was what this was all about, it is very hard to see what on earth they will be doing in terms of commissioning.
Lord MacKenzie of Culkein
May I intervene briefly, as I have my name down to Amendment 168? This has been a very important debate, and I want to return briefly to the issue of collaboration. Whatever the outcomes in size of the clinical commissioning groups, there will be a need for joint commissioning. I refer particularly, as the noble Baroness, Lady Finlay, has said, to some of the rare conditions, such as many of the neurological conditions, which will require a population, as I understand it, of some 250,000. For motor neurone disease this will be a population of some 500,000. It is vital that we have in the Bill something about joint commissioning for long-term illnesses. We will come back to that issue in a later group of amendments, but I want to emphasise its importance.
Earl Howe
Earlier on I noted that the noble Lord drew parallels between CCGs and his attempts when he was a Minister to reduce the number of PCTs. I do feel there is a critical difference. The decision to establish a certain number of PCTs was taken in Richmond House by Ministers. I am not saying those decisions were arbitrary—of course they were not—but they certainly were not bottom-up. With CCGs, the onus is on GP practices to determine the most appropriate size and configuration for their local population. As I have said, the board will then rigorously assess whether this proposal will result in the CCG being able to fulfil its functions. That is a judgment, but it is a proper fitness for purpose test which PCTs never had to go through. I simply do not accept that, come April 2013, there is likely to be a raft of CCGs failing. If a CCG’s proposed constitution is not robust, then it will not receive full authorisation.
Lord Hunt of Kings Heath
I do not think that is quite fair, since I was involved in setting up PCTs. I accept the strictures of my noble friend about whether we made them too small. As for the idea that Ministers came up with PCTs, it was of course the service which, basically, came and made recommendations. Frankly, the same tiers are deciding on CCGs as decided on PCTs. There has been huge pressure on CCGs to come together and merge. Yes, it started as a bottom-up idea, but I have to put it to the Minister that the reason why I quoted Dr Mike Dixon is because he, like many people, knows that the “forces of bureaucracy”, as the noble Earl, Lord Howe, likes to put it, have been very strong and have basically said to CCGs that they will not get anywhere unless they merge.
Earl Howe
Yes, the noble Lord, Lord Hunt, suggested earlier that there was a process of shoe-horning CCGs into certain shapes and sizes, forcing them to take up external support and merge commissioning functions. I emphasise that CCGs will not be forced to take up external support or merge functions. What is happening at the moment is a process of advice and information from the centre. Obviously, the board will not authorise the establishment of any CCG which could not satisfy the board of its ability to discharge its functions and be an effective commissioner. We want to ensure that the process is not too bureaucratic or cumbersome. The noble Lord suggested that it was likely to be, but I do not accept that. We are working with stakeholders to ensure that emerging CCGs can articulate their requirements for commissioning support. I do not accept the picture that he has painted.
My noble friend Lord Newton spoke about the clustering of PCTs. Clusters bring together PCTs to prepare for and support the transition to clinical commissioning. Until PCT abolition in April 2013, they continue to exercise their functions and remain statutorily responsible for their functions until abolition. Pathfinders, or emerging CCGs, can act as sub-committees of PCTs until this time. The role of PCT clusters during the transition is to support clinical commissioning groups, not dictate how they operate. For the reasons that I have stated, it is important that CCGs have the freedom to develop their own solutions from the bottom up and that they are fully supported in doing so. The latest operating framework for the NHS emphasises this and we will see that it is acted upon.
My noble friend Lord James queried the legal arrangements. The process of clustering has been open and transparent. If it is acceptable to noble Lords, I can provide a written update on the latest position, giving the numbers, locations and so on, to save time.
Lord Hunt of Kings Heath
My Lords, I thank the noble Earl, Lord Howe, for his response. This has been a really good debate, which has gone to the heart of the Bill and the Government’s intentions. I would like to come back to a point that the noble Baroness, Lady Murphy, made when she reminded us of the central tenet of the Secretary of State. Essentially it is that GPs are responsible, like GPs the world over, for most expenditure in the NHS, either through their referrals or through their prescribing decisions. The clear intent was to put budgetary responsibility with referral and prescribing responsibility, in the hope that it would lead to a more cost-effective system. I think the issue that many noble Lords have is that in the way this has emerged and in the guidance that has been given by the board and the department it is becoming clear that the influence of the individual GPs within this huge structure that is being established is likely to be very limited. On the other hand my Lords, because of the mantra of the Bill and the reforms, patients are likely to believe that it is their GPs who are making the commissioning decisions. Therein lies trouble, because I think the GPs are going to be in a very unenvious position. We as patients will hold them to account for commissioning decisions in a way they have never been held account before, but their influence on commissioning is going to be very limited indeed. I think this has been a very good debate, I beg to withdraw my amendment.
Health and Social Care Bill
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Lord Warner
In moving Amendment 159 I shall also speak to Amendments 160 and 164 in my name. I start by emphasising that this is a package of amendments that relates to many concerns that have been expressed to me and others—namely, that we need to make very sure that we ensure the assessment of competence of CCGs is sound and open before they undertake the commissioning of services that this Bill will enable them to do.
My earlier Amendment 157 enabled us to debate the number and population size of clinical commissioning groups, both of which considerations have a considerable bearing on the issue of competence of CCGs. I will not rehearse those arguments again except to emphasise that if the Government go ahead with such a large number of clinical commissioning groups, as it seems may well happen, then it is even more necessary to tighten up the Bill’s provisions on proof of competence and the ability of the National Commissioning Board to reject applications where competence is in doubt. It is for those applicants to take on the role of a clinical commissioning group to prove that they are competent to take on this task and to safeguard the public money that will be entrusted to them.
Amendment 159 makes it clear that in submitting an application to the board, the clinical commissioning group applicant must demonstrate that it can meet the requirements of commissioning competence specified by the board. If its application does not do so then the board should be able to reject it out of hand. The onus is on that group to show that it is competent to undertake the commissioning. It seems to me that clinical commissioning groups will have had plenty of time to assemble their case and to prepare for their application. The Bill should make it absolutely clear that a demonstration of competence should be mandatory in submitting an application. If I can put it crudely, we do not want to see people taking a punt. They have to be able to demonstrate that they can actually do the job, otherwise public money and safety will be put at risk.
Amendment 160 is linked to Amendment 159. It requires that when the board publishes information for applicants, that information document must specify the competencies required to commission health services. This problem of specifying competencies in commissioning has bedevilled the whole movement towards commissioning over several decades. Mark Britnell’s attempts at world-class commissioning ran into the same problem—we were not sufficiently clear about what competencies would deliver good quality health services from commissioners. So this competency issue is at the heart of making clinical commissioning groups work. It is vital that the board is left in no doubt of its responsibility for doing this and that applicants are in no doubt that the competency hurdle that they have to clear is put very clearly to them before their application can be accepted. What we do not want to see, if I may put it this way, is a load of well meaning waffle coming out of the board about commissioning. We want to have articulated the competencies that have to be met before applicants can be successful. Amendment 164 rounds the whole process off in terms of applicants showing that they can discharge clinical commissioning group functions “competently”, which is the word which it adds to the Bill.
These amendments make it clear that Parliament regards competence in commissioning as the yardstick by which the success or failure of applications to become clinical commissioning groups will be judged. This issue should be uppermost in the mind of the board when it makes decisions, and wording that makes this clear should be on the face of the Bill. Competence in commissioning has been missing in the past and we are in danger of repeating the mistakes of the past by not making it absolutely clear in this Bill what is required of the applicants to be clinical commissioning groups. I beg to move.
Lord Hunt of Kings Heath
My Lords, I have a number of amendments in this group. I will start with Amendment 159A which questions why, on page 9, line 36, it is possible for non-providers of primary medical services to be eligible to apply to establish a clinical commissioning group. Particularly in the light of my noble friend’s comments on Amendment 159, one would surely only want applicants who had experience of providing GP services to be able to apply to form a clinical commissioning group.
Amendment 160A requires the board, before considering an application to form a clinical commissioning group, to consult with the general public, the relevant local authority, the relevant health and wellbeing board, and patients receiving primary medical services from providers within the clinical commissioning group. The noble Lord, Lord Greaves, raised some pertinent questions about transparency in the formation of clinical commissioning groups. It is extraordinary that there seems to be no process by which putative CCGs consult with their patients before they make an application. The decision is, essentially, being made by bureaucrats within the National Health Service system—who put constraints on CCGs,—and the GPs themselves. Where on earth are the public in all of this?
Lord Greaves
The noble Lord very kindly referred to what I said. Is it not also the case that a group of GPs could go ahead and put forward proposals without even consulting all the GPs in their area?
Lord Hunt of Kings Heath
From reading the Bill, it is only when two or more are gathered together that they can make such an application. So the noble Lord is quite right. The amendment is seeking assurance that there will be public consultation and consultation with patients. We are told this is all about patients. Can patients therefore be consulted before GPs commit themselves to forming a clinical commissioning group? Or are we just to be told at some stage, “That’s it, you are in that clinical commissioning group because you are in that practice and you have no choice”. It is remarkably high-handed for it all to be done with no public involvement whatever. It is remarkable how many changes are already being made without any statutory authority given by this legislation.
I want to continue the theme of consultation, because I have a number of amendments in this group which come back to the same point: Amendment 164A in relation to the board’s determination of applications; Amendment 166 in relation to variations in the constitution of clinical commissioning groups; Amendment 166B in respect of variations made in the area covered by a clinical commissioning group, as specified in the constitution; Amendment 167A in respect of mergers, and Amendment 167B as regards the dissolution of clinical commissioning groups.
If I as a patient am part of the clinical commissioning group, one would have thought that I would have a role in deciding whether it is appropriate for that clinical commissioning group to be dissolved, or is that again just for the GPs to decide? What about Amendment 216ZZA as regards commissioning plans? Perhaps I have misread the Bill and there are crucial points which would envisage members of the public and patients within a CCG area being consulted on all these matters.
Baroness Williams of Crosby
My Lords, I congratulate the noble Lord, Lord Hunt, particularly on Amendment 160A. The idea that patients whose GPs are serving on the Commissioning Board, or are part of a commissioning group which represents that board, should be consulted and we should hear what their own experiences have been, is innovative and interesting. He should be congratulated on putting it forward. It means involving patients as individuals in their own assessment of the service that they have had. Time and again the Bill reflects the demand that that should happen—no decision without me, and so on. This actually makes that real. It gives the words flesh, and I congratulate him on that. It is quite an exciting idea and I hope that it is one that will commend itself to the Government, given the Government’s wish to involve patients.
I am not so happy about Amendment 163B. I fear that the opposition Front Bench has not taken on board as much as I hoped that it might the idea that regulations should not go straight to Parliament, even if they are affirmative, but should go by way of the Health Select Committee. The noble Lord will be familiar with the argument—that the Health Select Committee has a huge range of expertise and knowledge. As a former Minister he will know—as well as I or the noble Baroness, Lady Thornton, knows—that the regime of regulatory scrutiny is not very effective. If there is an individual Member of Parliament in another place who knows a great deal about it and is concerned about it, you can have a real debate and that real debate can affect the outcome with regard to regulation. However, nine times out of 10, there is no great debate. In the case of the negative resolution procedure, there is often no debate at all.
I fear that this is a very weak safeguard for the huge amount of regulation that is built into the Bill. I therefore hope that I might commend to the House, and not least to the opposition Front Bench, the idea of looking again at the proposal, which is also radical and new. It is an idea that really ought to commend itself to those of us who believe strongly in accountability to Parliament and in the need to strengthen Parliament’s power vis-à-vis the Executive across the whole world.
Lord Hunt of Kings Heath
My Lords, perhaps I can come back to that. On Amendment 160A, I am grateful to the noble Baroness for her support. I am not even sure that I got it right. I am also trying to get at the fact that so much is happening now without any consultation. The CCGs are essentially being decided by the system and then at some stage there will be a formal application process. I am long enough in the tooth in the health service to know about NHS consultation. Frankly, we all know that the traditional NHS consultations make the decision and then consult. I fear that, with CCGs, this is what is happening. While I welcome the support for the involvement of the public in a formal application, I find it perplexing that so much is now being decided and that the public are not involved at all.
I listened to the noble Earl before supper talking about this being bottom up. That is not what is happening. I do not think that he understands quite how much this is being driven by the centre. It is quite extraordinary. You can call it guidance, but putative CCGs are being given such clear steers about what will be acceptable. I feel that we will reach a situation where, at some point, it will all be a done deal and the consultation will simply not be realistic.
On the noble Baroness’s comments about making the regulations affirmative, I accept that, even if they are affirmative, there is a limit to what parliamentary scrutiny can provide—although that does provide some safeguards. I would be interested in debating the idea of giving the Health Select Committee a role, although excluding your Lordships’ House from it would be a problem. I say to the noble Baroness that I think it a pity that the House did not adopt my suggestion about a mandate for a kind of national policy statement approach. There is an argument for having a more interactive debate, if you like, about some of these matters. I very much take to heart her constructive comments on this and the Select Committee role. It could be a very useful debate for the future.
Lord Alderdice
My Lords, lest it be thought that we were all wholly of one mind on these Benches in regard to some of these proposals, let me say that I am much more cautious about the propositions. My noble friend Lady Williams of Crosby has described the propositions for consultation with patients as novel. She is quite right. When the noble Lord, Lord Hunt, says that he recognises NHS consultations from the past as decisions first and consultation afterwards, he recognises how the previous Government carried out their business. As somebody who was in the health service at the time, I was very familiar with it.
We must be realistic about some of the propositions that come forward for consultation. Think through what is actually involved in doctors coming forward with proposals to fulfil the requirements set down in legislation in all its various aspects passed by Parliament, and then being asked to consult with the patients as to what exactly they think. Think through what exactly that might look like for general practitioners and their patients—those patients who would choose to back the general practitioner in his application to go along with the proposals, or would start to run a campaign against their GP. Is there really a thought that this will be something that serves the interests of helping general practitioners and their patients to move forward together? It is an interesting and novel proposal from the point of view of debate in your Lordships’ House. However, I am not at all convinced that it has been thought through in terms of how one might actually implement such a thing, and in terms of working with patients and patients working with their general practitioners.
In psychiatry, for example, I think of how much discussion and consultation there has been with patients about who their sector psychiatrist might be, never mind all sorts of other important decisions about them. The fact is that it is not a way in which one can possibly run these things. It is important to have consultation with the public in general, but to try to divide it up so that patients are consulted on whether their GP should follow decisions taken in line with decisions that Parliament set down is wholly another matter. My noble friend was right to describe it as “novel”, but I am much more cautious about the proposal than she is.
Lord Hunt of Kings Heath
I thought that what the noble Lord said about the last Government was a cheap shot. I was talking about the NHS consultation in my experience over 40 years. It has not been a wholly satisfactory situation. It is quite remarkable what the noble Lord seems to be saying. The health service has strong corporate governance and strong processes for consultation, but suddenly we are bunging £80 million to GPs and they do not have to consult. Are they in such a mystical position that they do not need strong corporate governance; that we can trust them, even though some of that money will be spent with the GPs instead of on other parts of the health service? Suddenly we think that they are jolly good chaps and we can trust them. We can trust them simply to form these clinical commissioning groups, in which in theory they will have great power, and there is no consultation whatever. It is quite remarkable what the noble Lord is saying.
Lord Alderdice
My Lords, let us be clear. It was no cheap shot. It was a comment on how the previous Government carried through their policies. He will know very well that I sat on those Benches and asked the questions of him. I am very much aware of it. What I said had nothing to do with corporate governance. It was the specific proposal that GPs’ patients should be asked to express a view on the proposition that their general practitioner be part of a clinical commissioning group. As though there was some serious alternative to it, and that it was something that could be carried through willy-nilly without any potential disadvantage in the GPs’ conduct of the practice.
What I pointed out was that this is not something that has any kind of precedent; it was, as my noble friend said, “novel”. What I said about it was quite clear. It has not been tried and I am not persuaded that it is something that has been well thought through. It could be very divisive within a practice. That is not at all to say that other elements of corporate governance are not appropriate. I wholly support them and the proposal. I was addressing a specific issue and I notice that it was the one issue that the noble Lord did not respond to.
Lord Hunt of Kings Heath
So I as a patient have no right to say or comment on which clinical commissioning group my GP wants to join? It is nothing to do with me and just up to the GPs to decide? That is what he said. On the question of general consultation, let me remind him of the NHS plan. If this Government had done this properly, they would have published a Green Paper. They would have gone through a process of working with the health service, they might have spent six to nine months doing it and they would have got much greater buy-in. It shows that they have dealt with these reforms in a high-handed manner. The result is that there is no buy-in whatever and that is why the Government are in the trouble they are. I pray in aid the way that the NHS plan was dealt with and the fact that 500 people came together on a number of bases to work on the plan. That is why it had so much greater ownership.
Health and Social Care Bill
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Baroness Murphy
My Lords, I have added my name to the amendments, many of which are from the noble Lord, Lord Patel, because I, too, am worried that the Secretary of State may feel obliged to include in the mandate every last possible objective and priority that the department can think of. Let us remember that it will probably be the department’s civil servants that write the mandate.
For decades, the NHS has prescribed objective-setting as a sort of all-purpose remedy for NHS motivation. Rather than dispensing objectives as a benign, over-the-counter treatment for the NHS Commissioning Board, the Secretary of State needs to conceptualise his objectives in the mandate as prescription-strength medication that requires careful dosing, consideration of harmful side-effects and close supervision.
Given the impact that objective-setting has on activity in management, I should like to ask for a more self-critical and self-denying approach to the creation of the mandate than has hitherto been the case in NHS priority-setting—hence the rather arbitrary notion that we might have five “musts” and five “maybes”. I would like the Secretary of State to restrict his mandate to one side of A4, but I can see a departmental machine creating a mandate which reflects all the recent ministerial enthusiasms—for example, a waiting list here and a choice or two there—and which during its creation becomes a sizeable novel of the unattainable but desirable, or, alternatively, the attainable but unimportant, which were the characteristics of NHS priority lists in the past.
The mandate should answer the question: where do we want the NHS to go in the next five years, and specifically in the next year, and what resources are we going to dedicate to get there? We should then translate that into something specific that is measurable, achievable and realistic, with time for things that one wants to see for all objectives. If one has more than just a handful of objectives, I suspect that only two or three will ever get done. I therefore wonder how we can be reassured that the Secretary of State will produce a working document of realistic goals.
Lord Hunt of Kings Heath
My Lords, this is one of the most important groups of amendments that we are going to discuss, because, in a sense, it sets the whole relationship between the Secretary of State and the NHS Commissioning Board.
I have considerable sympathy with my noble friend Lord Warner’s Amendment 96, which seeks to avoid the Secretary of State essentially putting in a huge shopping list of demands by limiting the mandate to a maximum of five obligatory and five desirable functions.
I come back to the recent interventions by the Government in the affairs of the National Health Service. The most recent have been around waiting times, both in terms of what happens to patients who have passed the 18-week target and of the activities of some primary care trusts, which, in order to contain their expenditure, have set arbitrary waits for patients even though they are ultimately treated within the 18-week limit. I have said to the Minister that I have no complaint about the intervention of Secretary of State, which I thought was quite proper, but it is very difficult to see how this will happen under the new system. We have yet to receive a satisfactory answer to it. What in the new system will suddenly obviate the need for the Secretary of State to make such interventions?
The question then comes to the mandate. Is it, as my noble friend Lord Warner hopes, a high-level document which will focus on a very limited number of objectives, or will it be a shopping list? The noble Baroness, Lady Murphy, expressed it very well as in a sense legitimising “recent ministerial enthusiasms”. We were rather given the lie to this when we debated this matter last week, because the Minister suggested that if there was an issue such as primary care trusts lengthening waiting in order to meet the budget, the mandate could be used to prevent it. Indeed, that is the risk—that the Secretary of State will, quite properly, come under pressure to intervene in the health service. The Bill weakens the legal powers of the Secretary of State to do so. The risk is clearly that the mandate will be used instead, and it would be used retrospectively if it does not satisfy the intervention power. I believe that there is great reservation among noble Lords as to whether the intervention power is sufficient, because there has basically to be a failure by the NHS Commissioning Board to carry out the objective. If it is not sufficient for an intervention to take place during the year, my goodness me the shopping list will grow when the new mandate is written. So, there are some very important issues on which we have yet to receive any answer from the Minister.
There are, however, a number of other important amendments in this group. Perhaps I may ask the Minister to clarify three points. The first point is how long the mandate will last. My assumption, from what Ministers have said and what is in the Bill, is that it will last for a year. The Minister will be aware that the chairman of the NHS Commissioning Board expressed a wish to the Health Select Committee, which was vetting his appointment, that the mandate should last for three years. I wonder if the Minister could clear up that matter for your Lordships.
Will the Minister also clarify the intention behind the provision in proposed new Section 223D(7)(b), on page 27, which allows changes to total capital and revenue resource use after parliamentary general election takes place? I take it that this is simply to allow for a change of Government but I would be grateful if he could spell that out.
However, my substantive amendment, Amendment 100A, is concerned with parliamentary scrutiny. In Clause 20, proposed new Section 13A states:
“Before the start of each financial year, the Secretary of State must publish and lay before Parliament a document to be known as ‘the mandate’”.
Surely Parliament is entitled to a little more involvement than merely receiving the mandate as a fait accompli. My noble friend Lord Warner has already pushed the Government in their amendment to give Parliament information about any reservations the board may have expressed about meeting the mandate. I would certainly support that in the interests of transparency. There is also, in Amendment 100, reference to the requirement on the Secretary of State to consult the board, HealthWatch England and other persons, with the results of any consultation on the mandate to be published. That too seems reasonable.
However, I wonder if we ought not to go further in terms of parliamentary scrutiny. If we take Ministers at face value—and the Secretary of State has expressed a wish to step back from day-to-day involvement in the National Health Service—it is clear that the mandate assumes special importance. Why is Parliament not being given a proper opportunity to scrutinise the mandate before the Secretary of State finally sets it for the NHS Commissioning Board? If the Secretary of State is really going to tell Members of Parliament in particular that he is not going to intervene in a particular question because he considers that now to be the responsibility of the NHS Commissioning Board, in accordance with the mandate that the Secretary of State has set, then I think that Parliament should be entitled to some involvement in scrutiny of that mandate. My Amendment 100A suggests how that might be done. It is built on the system of scrutiny for national policy statements.
The House will be aware that the Planning Act 2008 introduced a new planning system for applications to build nationally significant infrastructure projects. They cover applications for major energy generation, railways, ports, roads, airports, water and hazardous waste infrastructure. Under this system, national policy on national infrastructure is set out in a series of national policy statements. Under Section 92 of the Planning Act 2008, each proposal for a national policy statement must be laid before Parliament. In so doing, the Secretary of State specifies a relevant period for parliamentary scrutiny.
If during that scrutiny period either House passes a resolution with regard to the proposal, or if a committee of either House makes recommendations regarding the proposal, the Secretary of State must lay before Parliament a Statement setting out his response to the resolution or recommendations. Following completion of parliamentary scrutiny, the Secretary of State may formally designate the proposal as a national policy statement. The final national policy statement is also laid before Parliament.
In the House of Lords, national policy statements are normally debated in Grand Committee, but that does not restrict the freedom of committees of the House or individual Members to make use of the statutory procedures. In the event of a Motion for resolution being tabled, the usual channels have undertaken to provide time for a debate in the Chamber within the scrutiny period.
When I was energy Minister, I had to bring through four energy policy statements. We had three four-hour debates in Grand Committee. They were very thorough. The Government took note of what took place in those debates. In the end, it is up to the Government to make the statement because it is a matter for the Executive. I do not challenge that the mandate, which I regard as important as a national policy statement, is ultimately for Ministers to make. It is rightfully an Executive responsibility. However, the process that I am suggesting in my Amendment 100A would allow Parliament to have much more involvement in the scrutiny. It would allow Ministers to take account of that and then make their minds up in relation to the mandate.
If the Government are determined to hand over such responsibility to a quango—and I remind the House that in this Bill the National Health Service Commissioning Board is given concurrent powers with the Secretary of State in relation to the crucial responsibility in Clause 1—there has to be a great parliamentary scrutiny of that mandate.
Lord Patel
My Lords, I added my name to the amendments tabled by the noble Lord, Lord Warner. They were prompted by the lack of clarity in the nature of the mandate that the Secretary of State will issue to the Commissioning Board. There is also a lack of clarity in how he will consult the public, although the provision does say that the Secretary of State will consult HealthWatch England prior to issuing a mandate. Who else will be able to scrutinise the mandate?
On the basis that the Secretary of State will use the mandate to performance-manage the Commissioning Board, what will be the nature of the mandate that will allow him to do that? Will it have measurable outcomes against which the Secretary of State can performance-manage the Commissioning Board? What happens if the Commissioning Board does not agree with the mandate? How is that dispute settled? Will the financial aspects be a major part of it or will it be better outcomes for patients?
Earl Howe
Of course, Parliament is the sovereign body and can do whatever it chooses. Nothing will prevent it commenting on the mandate once it has been published. No doubt the Health Select Committee will wish to do this. My point is that to expect the process to feed into a regurgitation or reformulation of the mandate would be unfair on the NHS. The opportunity for Parliament to have its say should surely be during the normal consultation period. Parliament will be able to see the extent to which the Secretary of State has responded to whatever comments it has made.
Lord Hunt of Kings Heath
I take up the point that any debate in Parliament should be after consultation has taken place so that Parliament will know what the Secretary of State has decided. The Minister said that this would be debated by a sovereign Parliament. However, he will know that translating that into real time for debates in which noble Lords can question Ministers is problematic. The beauty of the Planning Act 2008 was that it laid down a requirement that was then turned into procedure. Perhaps the Minister will reflect on this. As he rightly said, this mandate is a very important indication to the health service of the Secretary of State’s wishes. If the department gave some further thought to this matter, it might come to the conclusion that it would be right to allow parliamentarians to have a go at the mandate—to question Ministers—before it is finally signed off.
Earl Howe
I am surprised that the noble Lord, Lord Owen, thinks that the health service should be run in that way; that is, Parliament in effect mandating requirements to the health service whenever it chooses. I do not think that is a helpful idea. I think it is helpful for the Secretary of State, as now, to take responsibility for the health service but in the future to take direct responsibility for what lies in the mandate. Should events during a given year raise questions about the performance of the board, the Secretary of State would be answerable to Parliament for whatever the event was, and he would indeed have to take the necessary advice from the board. What he would not be saying is, “This is not my concern, guv”. He is answerable to Parliament in the ways that I have indicated. There is obviously a need for the board to take responsibility for the day-to-day management of the health service. However, we are seeking to achieve a balance between the Secretary of State taking responsibility in Parliament for what is in the mandate and the outcomes that he has set for the health service.
This is a shift of responsibility, it is not an abdication of responsibility—that is the distinction. Power is a zero sum game. If you shift power from the Secretary of State down to the health service, you cannot at the same time expect the Secretary of State to retain the same degree of power. We are transferring power in two directions; from the Secretary of State downwards, and from the Secretary of State upwards to Parliament. That is the picture that I hope noble Lords will keep in their minds.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, but there are some extra points here. What we have seen from the Secretary of State recently is no desire to desist from day-to-day involvement in the National Health Service. We have seen a number of interventions—which, as the noble Earl knows, I welcome; I believe that is the duty of the Secretary of State. I am still completely mystified as to how the Secretary of State will do this in the future. I can see that you have the NHS constitution; I can see that in the objectives set in the mandate the Secretary of State will say to the NHS Commissioning Board, “You will do the right thing on waiting times”. However, what happens if, because of resource constraints, clinical commissioning groups put in artificial devices to extend waiting while still meeting the 18-week targets? They will be okay under the constitution, but that action is found to be unacceptable in PCTs now. Where does the intervention come? The Secretary of State will be required by Parliament to intervene. There will be no getting away from that.
The second point is about accountability upwards. I say again to the noble Earl that I do not know why he will not take this point away. We have the Planning Act 2008; we have had a highly successful process of examining national policy statements, which must be of the same degree of importance as the mandate. It has been clearly set out how Parliament will scrutinise those: it allows in your Lordships’ House a process in Grand Committee and then in your Lordships’ Chamber if a Motion is moved. However, at the end of the day the Secretary of State can ignore what Parliament says because it is the Secretary of State’s responsibility to set the national policy statement as he would the mandate. If the Government are claiming that this is an appreciable shift of power, I am puzzled as to why on earth Parliament is not allowed more involvement in scrutinising the mandate.
Earl Howe
Because it would get Parliament into the territory of micromanaging the health service, if it so chose. That is not the territory we would want to be in, any more than we wish the Secretary of State to micromanage the health service. That is the problem. The Secretary of State has to take responsibility for the objectives set for the health service. I think there is a general acceptance among those in the health service and indeed the public at large that the health service has to be judged on a different set of measures than it has been in the past—namely, on its outcomes and the cost effectiveness with which it approaches the use of the budget given to it.
We believe that undue political influence is undesirable. Parliament is capable of exercising that kind of interference every bit as much as a Secretary of State. We are saying, however, that Parliament has every right to scrutinise the Secretary of State’s proposals, to feed into those proposals, to be listened to and to be responded to. However, in our contention, it is undesirable for us to go beyond that because in the end, the health service has to know where it stands. If this is an endless process of Parliament second guessing the mandate and coming forward all the time with suggested changes, we will not have a workable system.
“( ) If, within 60 parliamentary days of the mandate having been laid—
(a) either House of Parliament makes a recommendation with regard to the proposal, or(b) a committee of either House of Parliament makes recommendations with regard to the proposal,the Secretary of State must lay before Parliament a statement setting out the Secretary of State’s response to the resolution or recommendations.”
Lord Hunt of Kings Heath
My Lords, the debate on the first group was instructive on the relationship between Parliament, the Secretary of State and the mandate that the Secretary of State sets for the NHS Commissioning Board. In our final exchange the noble Earl said that he was fearful of Parliament micromanaging the National Health Service. My fear is that that is shorthand for saying that Parliament may be told that it will no longer be able to ask detailed questions about the NHS because it is covered in the mandate. Whatever it may be, the mandate assumes critical importance since it lays out the objectives set for the NHS Commissioning Board by the Secretary of State. My amendment is not about micromanagement, it is about proper parliamentary scrutiny of what the Secretary of State has decided, and it sets out a well tried procedure. The final decision on the mandate will remain with the Secretary of State, but it will allow Parliament to undertake proper scrutiny. I beg to move.
Baroness Morgan of Drefelin
My Lords, I am not sure whether my intervention will complicate the debate further but I very much support the sentiments behind the amendment of the noble Lord, Lord Warner. The idea of standardised management accounts could be very helpful. One of the questions I invite the Minister to address is connected to my concerns about how we ensure that the NHS as an environment for research and innovation and as an engine for our economy is properly promoted and understood. Can the Minister comment on what the role of the Office for Budget Responsibility might be in looking at the NHS spend—the billions of pounds that go into the NHS—and whether there is a role for the Office for Budget Responsibility in looking at how the economy is benefiting from the investment that we make as a country in the NHS.
Lord Hunt of Kings Heath
My Lords, I am grateful to my noble friend for moving the amendment. I should like to start with the question about the scale of the financial challenge. As my noble friend suggested, the amount of money that has got to be taken out of the NHS through efficiency in the next four years is considerable. The indications are that while in the current financial year there will be some parts of the NHS that really struggle, by and large the service is going to get through. However, years two, three and four are going to be much more fundamental challenges. The need for the NHS to use its assets as effectively as possible, to get on with reconfiguration of services, and for all groups involved in the NHS to buy into that kind of change, is going to be essential. The more comparative information that can be provided the better, which is where I hope the Minister will be responsive to my noble friend.
The noble Lord Lord, Lord Owen, mentioned procurement. I should wear a hat as president of the Health Care Supply Association, and say that he is right to identify procurement as a potential area of much greater efficiency in the future. However, the Minister will know that two recent reports from the Public Accounts Committee have raised concerns about procurement and really are inviting the Minister in particular and the department specifically to take on a much greater leadership role in ensuring—it is rather like the Green report suggested—that the NHS makes the most of its potential buying power. I ask the Minister how, in the devolved structure that the Government are enunciating, we can ensure that on issues such as the use of our assets and procurement we still act as one national service making the most of our buying power? Unless we do that, there are going to be continuous PAC reports looking at the problem of national direction.
Finally, I endorse the comments made by the noble Baroness, Lady Williams. What about clinical commissioning groups? The Bill is silent on how CCGs are to be accountable. One way would be the publication of comparative performance of how they use their resources—the more comparative performance, the better. I should also like to ask the Minister about primary medical services. As we know, this has always been a difficult area. We have had various efforts through the GP contract to have much more of a performance culture. I cannot say that has been uniformly successful. However, in these days of stringency, I do not think we can get away with that any longer. It would be good to hear how we can extend the whole concept of efficiency performance measurement into an area of the health service, such as GPs themselves, where I am sure there is much more efficiency to be gained.
Earl Howe
My Lords, this has been a useful debate. I should probably say straight away to the noble Lord, Lord Warner, that I am not convinced by the amendment. That is not because I do not believe that the issues that he has raised are important—I certainly do. Good governance is absolutely dependent on having good data and on the financial control that that data enable the board of directors to exercise. It is very much about ensuring throughout the health service that the QIPP agenda is pursued effectively. The QIPP agenda is all about ensuring the more efficient and effective use of money. This could not be a more salient topic at the moment.
However, Amendment 102, which the noble Lord has proposed, would in my view introduce a new layer of bureaucracy. I hope to show that it is not required. My main reason for saying that is that accounting and disclosure requirements for the Department of Health and all NHS bodies are ultimately set by the Treasury. These are already based on independent advice.
I am conscious that that is rather a condensed answer, so, if I may, I should like to go into a little detail as to how this will work. Paragraph 15 of the new Schedule A1 to the NHS Act, inserted by Schedule 1 to the Bill, enables the Secretary of State, with the agreement of the Treasury, to specify the form and content of the board’s accounts and the methods and principles to be applied in their preparation. The Bill places an obligation on the board to produce annual accounts, as well as in-year accounts covering shorter periods if necessary.
In addition, the Bill provides powers for the Secretary of State to require such other information as is considered necessary for the purpose of exercising his functions in relation to the health service. This is what one might term management information—data required by those controlling funding or setting policy alongside the financial returns in order to provide an accurate picture of issues such as staffing levels.
For clinical commissioning groups, it is the NHS Commissioning Board that sets the accounting and reporting requirements. It will do so in a way that is consistent with requirements set by the Secretary of State, and approved by the Treasury for the purposes of consolidation.
My noble friend Lady Williams expressed the fear that CCGs may not be well equipped to handle that kind of reporting. The board will set the accounting and reporting requirements for CCGs, as I indicated. Paragraph 16 of Schedule 1A to the NHS Act 2006, inserted by Schedule 2 to the Bill, allows the board, with the approval of the Secretary of State, to give directions to CCGs as to the methods and principles of accounting which they must use and the form and content of their accounts. That will provide a means whereby much greater control can be had over the form, content and consistency of those accounts.
These provisions are mirrored in relation to NHS foundation trusts, with Monitor or the Secretary of State specifying the form and content of the trusts' accounts, again with Treasury agreement.
Earl Howe
My Lords, I would be delighted to have that conversation. I did not in the least mean to suggest that the ideas the noble Lord has put forward are in any way irrelevant. Indeed, quite the opposite, I am aware that there is a lot of work going on at the moment in the very areas that he has highlighted. I would be happy to write to him about that, if that would help as a precursor to a meeting.
I will just cover a couple of the questions that have been asked. The noble Baroness, Lady Morgan, asked to what extent the Office for Budget Responsibility would be involved. The OBR has a very specific role in terms of producing economic information. We would not see a role for the OBR itself in analysing the impact of NHS spending, but this is an area that is always under close scrutiny across the Government, in the Department of Health and beyond. I am leaving the possibility slightly open, if I may.
The noble Lord, Lord Walton, asked whether Sir David Nicholson would have sufficient financial expertise alongside him on the board. Sir David Nicholson has said in Developing the NHS Commissioning Board, published earlier this year, that the board will have a finance director as part of its leadership team. That is all I can tell him at the moment. However, it is clear that the board will have a major task in ensuring that sufficient financial control is maintained over the health service as a whole. If it fails to do so—as the noble Lord, Lord Warner, rightly reminded us—we are all in trouble.
The noble Lord, Lord Hunt, asked how we can achieve comparable performance measurement of CCGs. The board will be required to publish an assessment of CCG performance annually, including their financial functions. It must also publish a summary report of the performance of all CCGs.
The amendment is well intended; I have no difficulty with that. However, in practice, as framed, it would be onerous and cut across established government responsibilities. I know the noble Lord, Lord Warner, thinks I am just defending the status quo, but I am trying to say that I am not sure his formula would add much value, particularly as the underlying purpose of the amendment is already achieved under existing arrangements. For those reasons, I hope he will feel comfortable—for the time being—in withdrawing it.
Lord Hunt of Kings Heath
My Lords, I am grateful for the Minister’s response on clinical commissioning groups, but I come back to the question of GPs. Along with the noble Baroness, Lady Finlay, I do not think I was seeking to look at their business arrangements, but I am seeking to find out how their performance as primary medical providers is going to be measured in the future. When the Secretary of State announced his reforms, shortly after coming into government, he emphasised that he wanted to put responsibility for budgets alongside responsibility for expenditure, on the basis that GPs, either through referral or through prescribing, were responsible for most expenditure in the NHS. I assume the intention was, essentially, to encourage GPs to be much more effective in what they did in primary medicine, as it would impact on their budgetary situation; but, given that, how do we get to a situation where we can start to measure the performance of GPs? I do not pretend that it is easy—as I said earlier, I think our own experience with the GP contract shows some of the challenges. However, I would have thought that for the future, some comparative information about GP performance, in addition to the prescribing information that is now available, would help. For instance, one issue would be how good they are at demand management. How good are they at preventing their patients from inappropriately going to hospital? I would have thought this was a rich gold seam.
Earl Howe
I could not agree more with the noble Lord. We want to get closer to the question of what represents value for money in primary care. There are perhaps two principal ingredients of that equation. The first is the money we put into primary care, which we will know through the resource allocation formula, with which the noble Lord is familiar; the second is through highlighting the results achieved through primary care. Primary care clinicians will be accountable as never before by reference to the outcomes that they achieve for their patients. The other ingredient, overarching all that, is transparency. The more measures of performance that we can devise and place into the public domain the better in my view, and in the next few weeks, we will be announcing measures that I hope will be welcome in that regard. However, we are starting from a low base—not much information is currently published. We want to change that, and ensure not only that clinical commissioning groups and the NHS board are aware of all this but that patients and the public are aware of how well or badly a practice is performing. All these things such as prescribing rates and referral rates are key measures of performance, which we have to get closer to. If we can ensure that practices themselves are more able to compare their own performance with those of their peers, that too will be an advance. I am sure that this is a rich seam, as the noble Lord put it, and we very much hope to advance on that front over the coming months.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Lord Warner
My Lords, this is probably not the best time of night to be concentrating on this set of amendments, because it brings us to the difficult and controversial issue of service reconfigurations. Let me start with why I think that we need to move upstream from the full-scale failure regimes which are provided for in this Bill, and with why I do not consider that one can rely totally on local commissioners and elected Health Secretaries to undertake the scale of service reconfiguration that the NHS requires, or as quickly as it requires. In making that statement I start from a position that the best predictor of future behaviour is past behaviour. In the field of service reconfigurations past behaviour has not been a speedy or easy process to start, let alone finish.
I do not want to spend long on why it is urgent, but the essence of this is the Nicholson challenge, which is £20 billion of productive improvements in the NHS in the four years to 2015-16. As the Health Select Committee has pointed out, no health system in the developed world has ever delivered this level of productivity. To say that it is a big ask is a masterpiece of understatement. The NHS’s track record on productivity improvement is, putting it at its best, modest, so we are dealing with a difficult set of issues, on top of which there are constant pressures from demography, advances in science and rising public expectations in the UK healthcare system and, indeed, in virtually every advanced healthcare system. That is what confronts the NHS.
It is crystal clear that the public and politicians are beginning to recognise more openly that the historic patterns of service provision built around district general hospitals do not meet current or future healthcare needs. They certainly have a capacity to gobble up resources without necessarily delivering the type of services that many patients of the NHS need and which could be delivered more cost-effectively but probably not using the present pattern of hospital configuration. What that means is that we are facing a situation where in many parts of the country we have to change those hospital services very rapidly indeed, and we have to make some painful decisions on those service configurations, which can often mean closing some services, doing some services in a different place, redeploying and retraining staff and, in some cases, in all probability making some staff redundant. That is why this is contentious territory and why it has proven difficult to do. We are now moving towards a financial situation where we cannot put off the job of reconfiguring these services much longer.
The difficult problem we have in the way this Bill is structured and in the way we are approaching this is that we are expecting this painful stuff to be done in a situation where we are saying that local clinicians and local people have got to face up to these difficult decisions. They have got to start the process, unless it gets so bad that Monitor is required to trigger a failure regime. In many cases, the problem manifests itself in an acute hospital, but often you cannot solve the problems of that acute hospital without looking at the wider health economy within which it is situated, so we have a situation which is asking quite a lot of local clinicians, certainly based on experience, to start the process of reshaping those services however right it is in principle to expect local people to take the initiative in these areas.
Historically, we have faced a situation where elected politicians in the form of MPs have found this extremely difficult territory—whether they are going to be Kidderminstered, or whether they are going to find themselves having a very small majority and feeling honour bound to carry a placard around outside the local hospital without making a change. That is not a criticism of them; that is a fact of life. Asking local elected politicians and local people to, in effect, fall on their sword to some extent in relation to changing these hospital services is a big ask. This amendment tries to face up to some of those realities. It suggests that waiting for things to fail, to get so bad that they trigger the failure regime, is putting Monitor in a pretty tough situation.
This amendment tries to move upstream from that and to advance the argument that Monitor, with the support of the national Commissioning Board, should be able to look upstream and see the hospital services that are heading towards failure—in this case, I have taken a period of 12 months before failure—and start to do something about it. In co-operation with the national Commissioning Board, Monitor could trigger an independent panel to work with local people to come up with a set of proposals for reconfiguring services within a reasonable timescale set by Monitor that would make those services sustainable financially and clinically for the future. That is not to say that local people should be excluded but we should have a trigger that brings in some facilitation to help them get there.
Fast-forward, then, to the end of that process. We have often talked about the Chase Farm example. Seventeen years is a bit of a long time to sort out an A&E department, but that is what it has taken. My noble friend Lady Wall is still struggling with what comes next. We have to have something better than that. Elected Ministers are also constituency MPs. They understand the problems that some of their colleagues face. Sometimes they even understand the problems that their opposition colleagues face in these situations. It is not surprising that they find it difficult to take decisions quickly, even armed with the current independent review panel. No stone is left unturned in trying to give local people an endless chance to stop progress. We call it public consultation but it is in fact a stopping of progression of the reconfiguration.
What my amendment also does is to say, at the end of that process, that the Secretary of State cannot be taken out of the loop, but if he is going to turn down this independent panel’s set of proposals for making services sustainable clinically and financially in a given area, he has got to give his reasons to Parliament for doing that and has to come up with an alternative proposal for making those services sustainable. That is why I think we badly need a process of this kind where there is a trigger, some independent facilitation and some lock on the ability of the Secretary of State to endlessly procrastinate or avoid taking a decision coming out of an independent panel.
I am the first to recognise that this may not be enthusiastically received by the elected political class. It is probably a bit much to stomach appointed Peers proposing this idea. However, I am putting this forward on a non-partisan basis in the hope that we can move forward in this area on a basis similar to the one that I am proposing. At the end of the day what I am doing is pinching something. This is not a totally original thought. I am pinching it from Canada’s experience, where in the 1990s the healthcare system in Ontario was literally going broke and they had to find a way of not bypassing the elected political class but facilitating a set of changes that made it easier for elected politicians to take difficult decisions. That is the purpose of this amendment and I move it in that spirit, as a constructive attempt to deal with what I acknowledge is an extremely difficult and complex problem. I beg to move.
Lord Hunt of Kings Heath
My Lords, we are indebted to my noble friend for raising what I think is one of the most difficult issues the health service is going to face. There is no doubt that if the efficiency challenge is to be met, there has to be a major reconfiguration of services. Yet, as my noble friend has said, we know that this is often very difficult to undertake and get local sign-off. Both my noble friend and I enjoyed—if that is the word—experience as Minister for the health services in London, and both of us have been involved in some of the agonised discussions with the outer-lying hospitals and boroughs. The whole London area is littered with proposals that have been made for many years and which have not been put into effect. There are other examples up and down the country. The problem is that the health service no longer has the luxury of being able to rely on the uncertainties that are caused by the current system. Reconfiguration needs to take place, and rapidly, over the next two or three years.
I am enormously sympathetic to my noble friend’s amendment. It is interesting that in our previous debates the view has been expressed that ministerial intervention has often caused the problem. My noble friend would still push this substantive decision back to the Secretary of State. That is probably right, because in the end, however much the Government might wish to push this back onto the health service or onto the NHS Commissioning Board, I should have thought that the interest of MPs in reconfiguration issues would have sucked the decision back to the Secretary of State one way or another. We have to assume, therefore, that any process that is put forward does involve the Secretary of State.
I have no doubt that the noble Earl will say that we do not need to go down this route and that he is confident that clinical commissioning groups will be able to embrace reconfiguration of acute services and get sign-off from the appropriate or relevant local authority. I am sure that there may be some areas where that might happen, but of course, one has first of all to recognise that if a major reconfiguration is proposed, it will involve a number of clinical commissioning groups. The first test will be whether a number of CCGs will be able to come together to achieve a strategic outcome. Secondly, even if that happens, those clinical commissioning groups have yet to feel the heat of battle. They may well theoretically sign up to a reconfiguration, but they are inexperienced, I would suggest, in the kind of pressure that they will come under from politicians and the public. I suspect that one or two will find it very difficult to hold the line.
The other problem with the current proposals of the Government is that clearly they wish the NHS Commissioning Board to have a leadership role. However, the Commissioning Board will have much less legitimacy than Ministers when it comes to controversial decisions such as closures of accident and emergency departments. It is easy to see how these may come, in the end, to little fruition.
I certainly support my noble friend. The only question I put to him is whether his process is really tough enough. I wonder whether what really needs to happen is that every area of the country should be reviewed by some kind of independent body as to whether the configuration of services is safe and appropriate. It no doubt could have examinations in public, similar to the old strategic planning process that we have had in the planning system. I would favour a much stronger statutory approach to this, which forces each health economy to come to the table, to put their viewpoint, but then to have an outside group of experts who would then make strong recommendations to the Secretary of State. I fear that without such external views we will find it very difficult to make progress. I suggest to my noble friend that he should consider whether he might need something stronger to make this bite.
Earl Howe
My Lords, this group of amendments usefully focuses us on reconfiguration and the sustainability of NHS services. The sustainability of services will be centre stage for commissioners and providers alike. I should like to set out some key features of the Government’s reforms, which I hope will reassure noble Lords that the system we have put in place will deliver sustainable NHS services. The first key feature is that local clinical commissioners will be responsible for securing continued access to healthcare that meets the needs of local communities in consultation with health and well-being boards. Any proposals for service change will be locally led by clinicians in consultation with patients and the wider community.
The second key feature is that the continuity of services regime requires Monitor to support commissioners to secure continued access to NHS services. Monitor will do this by undertaking an ongoing assessment of risk and intervening to support recovery and to prevent failure where possible. Therefore, the onus is on commissioners and providers to address any problems with the sustainability of NHS services. Only as a last resort where commissioners and providers have failed will Monitor step in to appoint an administrator to take control of the provider in order to secure continued access to NHS services.
The noble Lord, Lord Warner, suggested that there would be nothing between a locally led process leading to an agreed reconfiguration and Monitor triggering the failure regime. That really is not so. It may be helpful to the Committee if I explain. There are various levers available to Monitor before failure is even thought of. First, regulatory interventions are available to Monitor through the licence in order to protect patients’ access to essential services where Monitor considers that a foundation trust is at risk of becoming clinically or financially unsustainable. I agree that there should be a way for the system to respond when, as the noble Lord put it, trouble is seen to be coming down the railway track.
Where it is appropriate, Monitor would be able to direct a provider to appoint turnaround specialists that would provide additional capacity and expertise to support a provider’s management in turning an organisation around. Monitor would also be able to appoint a pre-failure planning team to work with commissioners to develop plans for securing continued access to services in the unlikely event that turnaround was unsuccessful. That process may identify reasons why service reconfiguration would be needed to secure sustainability, but it would remain a commissioner-led process. I hope that I have made it clear that it is appropriate for local clinical commissioners and not Monitor to lead this process with support from the NHS Commissioning Board. The board will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes, and Monitor will support commissioners in protecting patients’ access to essential services through the licensing regime.
The noble Lord, Lord Hunt, suggested that the board should play a leadership role. The Bill allows for that to happen in a number of ways, using commissioning guidance to set expectations on how CCGs should deal with reconfigurations that span CCG boundaries. It would also provide access to advice in the form of senates to help them develop their proposals. Ultimately, where a local authority challenges a proposal, the board will be able to direct the CCGs on their plans, so there is an interest in making sure that those plans are robust to start with.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for giving way. I understand that, but is not the problem as my noble friend said? If you look back over the past 20 to 30 years, the NHS has found reconfiguration decisions very difficult indeed. The new system potentially has weaker bodies, in the form of the clinical commissioning groups, covering smaller areas, such that taking a bold decision on matters such as closing an accident and emergency department would be very difficult. In one way or another, what is being suggested is some kind of external mechanism that essentially forces the local health economy, both commissioners and providers, to come to terms with the latest knowledge in relation to safety and quality. They would actually have to face up to the challenge.
This happens in a way with the various inspections of the colleges and the deaneries, and we know of a number of hospitals where the viability suddenly goes because of an inspection and they are not approved for training. This has a devastating domino effect on the rest of their services. But surely the time has come for a much more proactive external review of each local health economy area. It would be of assistance to those who wish to move and modernise services because they would be able to turn to the mechanism, whatever it is, and say, “We have to change”. If the Government are simply relying in this legislation on local forces, my fear is that that simply will not happen quickly enough.
Earl Howe
I understand the noble Lord’s point; it is one that we have thought carefully about, as he might imagine we would. The trigger for local service reconfiguration is often a joint decision by commissioners and providers that the current configuration of services does not offer the highest quality care or that it does not meet current and modern clinical practice. It is usually a dialogue between commissioners and providers which identifies services as being, in some way, not optimal for patients, and that a reconfiguration is the most appropriate way to improve and modernise services, rather than smaller scale operational change.
We are proposing that commissioners should engage and consult on these changes in the normal way, working closely with providers and engaging with patients, the public and local authorities in developing their proposals. However, I agree that there are clear roles for the board, and for Monitor, in ensuring that this process is given a fair wind. They have an interest in ensuring that services are of high quality and sustainable and they will wish to add value to the process.
We talk as if all reconfigurations were long and drawn out—we all know of some that are like that—but the successful reconfigurations tend to be those that have involved more, rather than fewer, local stakeholders. That is why we are strengthening the powers provided by the Bill, so that reconfigurations can take place in a genuine spirit of local engagement and partnership.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 3 months ago)
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“(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.
(4) 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, we come to a very important matter—the role and function of the national Commissioning Board. It is almost as important as the previous debate on the responsibilities of the Secretary of State.
In a telling intervention last week, the noble Lord, Lord Marks, spoke of the tension in the Bill between the proposed duty to promote autonomy on the one hand and the fulfilment of the Secretary of State’s overall responsibility for securing the provision of services on the other. I suspect there is a similar tension built into the Bill in terms of the relationship between the Secretary of State and the national Commissioning Board.
At the heart of this debate have been concerns about the alleged micromanagement by the Secretary of State into the affairs of the National Health Service and specifically with regard to reconfiguration decisions. I sympathise with those in the NHS who can feel frustrated if hard-worked-through proposals are held up or rejected by Ministers or the service is constrained by too many interventions and targets from the centre. To think that this can simply be waved away in the new structure may prove to be optimistic. I suspect that a confusion of responsibilities between the Secretary of State and the national Commissioning Board and the plethora of organisations the Government have established or proposed to set up may well add to the burdens of the NHS.
Why is there political intervention in the health service? Surely there is political intervention because the NHS is one of the most important services that the Government are called upon to deliver to the public. Surely there is political intervention because, in the end, the public require it. In our debate last Wednesday the noble Lord, Lord Mawhinney, said that the public, for whom the NHS exist and who pay the NHS bill, expect politicians to intervene on their behalf. Indeed, democracy may be a messy process but I prefer a messy process to rule by quango or even an unaccountable group of clinicians.
Even if you succeed in removing the Secretary of State from the picture, is it likely that local NHS organisations will simply be left to get on with life without external interference? The public will certainly not go away and nor will their representatives, Members of Parliament. They will still encourage the Secretary of State to intervene in the health service. Even if the Secretary of State courageously resists that pressure, it will then fall on the national Commissioning Board. I doubt that the regulators, the CQC and Monitor, will be immune. Nor, I suspect will clinical senates, the health and well-being boards that will be established or the commissioning support units that are apparently to emerge up and down the country. Certainly, clinical commissioning groups themselves will not be immune.
The idea that if you remove the Secretary of State from reconfiguration proposals all will be sweetness and light, with rational bodies making rational decisions and a grateful public acquiescing to those decisions, does not seem to be in the real world. Is it really suggested that £120 billion of public money does not require full accountability of Ministers to Parliament? By full accountability I mean sole accountability, rather than the construct of this Bill, which quite remarkably gives the Secretary of State and a quango—the national Commissioning Board—concurrent powers in relation to the crucial duty in Clause 1. It is so important that the Secretary of State is solely accountable because that is probably the best protection of the overriding mission of the health service to provide comprehensive services to all.
I recently read the transcript of the evidence that the chairman of the national Commissioning Board, Professor Grant, gave to the Health Select Committee, which is very interesting. Professor Grant disarmingly described the Bill as “unintelligible” but we know that all Bills, on the face of it, look rather unintelligible. He went on to make much of the Secretary of State’s responsibility for delivering, as he put it, a comprehensive NHS. He then laid great stress on the mandate set for the board by the Secretary of State. He suggested that it should be for three years, rather than an annual mandate as laid down by the Bill. He made it clear that if,
“the matter is within the mandate of the Board, it is not within the jurisdiction of the Secretary of State, except that he has power to revise the mandate with the consent of the Board or ... in exceptional circumstances”,
he can intervene. The professor concluded that,
“ultimate political accountability … remains secure, but it requires a Secretary of State to define upfront what he or she wants the Board to be accountable for and to hold the Board accountable for it”.
I found that, from the chair of the NCB, eminently sensible and I have no criticism to make of the points that he put forward. However, does that reflect the real world? Things happen, reports are published and crises occur. The Secretary of State cannot simply wash his hands of responsibility. There will be occasions when, mandate or no mandate, he will want to intervene.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for his response. I am, of course, very happy for this to be considered in the light of the debate in relation to the other clauses around the Secretary of State’s powers. I may not have convinced the noble Earl but he has convinced me that a “train crash” will inevitably occur given the ambiguity and confusion built into the Bill on the role of the Secretary of State and the national Commissioning Board. The more the noble Earl spoke about that, the more evident the ambiguity became. As regards the mandate, my noble friend’s amendment suggests that only five functions should be given to the national Commissioning Board with five other objectives. I think that he is supported in that by other noble Lords. He has probably forgotten about the innate ability of the wonderful civil servants at the Department of Health to write very long functions which could probably embrace the world. However, I understand where he is coming from.
Lord Warner
I well understand the Civil Service’s ability to use the semicolon to extend a sentence for a very long period.
Lord Hunt of Kings Heath
My Lords, my noble friend should refine his amendment by limiting the number of grammatical devices that can be used.
I raised this matter because of what the noble Earl said. I raised the reported intervention by the Secretary of State in relation to primary care trusts and the concern that because of their financial issues they are essentially putting in some artificial barriers in relation to patient treatment such as having a rule that on non-urgent treatment you have to wait a certain length of time before you can be treated, and other such mechanisms. When I asked the noble Earl how this would work in the future, he told me that it would be put in the mandate. Clearly, what will happen—
Earl Howe
I am grateful to the noble Lord for giving way. If the board was not delivering the mandate, it is surely right that the Secretary of State should intervene. He has powers in the Bill to do that. Equally, if it is delivering the mandate, it is also right that it should be allowed to get on without interference from the centre. All we are saying is that the Secretary of State should be clearer about the reasons for his intervention in future. That is in everybody’s interests.
Lord Hunt of Kings Heath
Either the mandate is so detailed that you will have reams of paper telling the board what to do or the Secretary of State will rightly become concerned at issues that arise during the year. Those issues will not be covered by the mandate as they will not have been anticipated. The Secretary of State will wonder what to do and how to intervene. He will wonder whether he will be told by the national Commissioning Board, “Back off. It is nothing to do with you”, as nationalised industries used to do. This is no different from a nationalised industry. I am concerned because I believe that giving concurrent powers to the national Commissioning Board as well as to the Secretary of State will lead to a great deal of confusion, tension and ambiguity. At the end of the day I would prefer one person to be accountable—the Secretary of State. However, I am encouraged by what the noble Earl said about agreeing to look at this in the context of the other questions about the duty of the Secretary of State. I beg leave to withdraw the amendment.
Baroness Jolly
Apparently there was a Persian poet who got there even before him, but whether Donald Rumsfeld was a reader of Persian poetry, I know not. The point is that you do not know what you do not know. Both those voices would bring to the board serious added value.
I have another four or five amendments in this group which relate not to the composition of the board but to its work. Every year, the board is tasked with producing a three-year business plan on how it is going to discharge its functions. We have a Secretary of State who produces a mandate for the board. We are all in total agreement that the board has huge powers to shape the NHS. New Section 13S of the 1996 Act indicates that there should be an ability to revise the plan. It talks about a “revised plan” but says nothing about the process of revision. The Bill is silent also on the operational plans of the board. I am slightly curious as to which comes first—the mandate or the plan.
How might a conversation with patients and other stakeholders be managed to revise the draft plan? Clearly, we have to start with a draft and then it will be revised. To what extent does the Minister envisage the plan being amended? Might the details on board membership and business plan consultation be included in guidance to the board? One half of my amendments is about board composition; the others are about business planning. It will be interesting to hear the Minister’s response to the latter because it will give us some indication of the way that the board plans to work or it is planned that it should work.
Lord Hunt of Kings Heath
My Lords, I have a series of amendments in this group concerning membership of the national Commissioning Board and its cost. There is common consent that getting the board’s membership right is important.
My Amendment 52A would ensure that the chair could be appointed only with the consent of the Health Select Committee. I fully acknowledge that Professor Grant, the chair of the NCB, went before the Health Select Committee; I have already referred to the transcript. It is clear that the process ensured proper and effective scrutiny. However, I should just like to put the matter beyond doubt and make sure that the procedure will always be followed in future, and I hope that the Minister will agree to my amendment. I should say that I followed the legislation which established the Office for Budget Responsibility, so we have a precedent for ensuring that a Select Committee of the other place has an important role to play in such appointments in the future.
My Amendment 52B is simply a matter of good governance to ensure that a lay vice-chair is appointed, which I am sure I am right to assume is the Government’s intention.
On the composition of the board, my Amendments 54 and 56 are intended partly to probe and partly to make a point. It would be helpful if the Minister could give some indication of the likely make-up of the board, both executive and non-executive, and perhaps some details about how non-executives are to be appointed. My specific point is to encourage the Minister to ensure that, on the executive side, a medical director, a nursing director and a finance director are always appointed. To be frank, my main focus is in relation to a nursing director. I have no doubt that there will always be a finance director and a medical director; I want to ensure, and I want the Minister to give an absolute assurance, that there will always be a nursing director on the national Commissioning Board. I go back to 1991, when NHS trusts were first appointed. Some noble Lords here will recall that some rather foolish chairs of those trusts did not want to appoint a nurse to their board. They were forced to do so, I am glad to say, through the intervention of a Secretary of State at the time. I have no doubt that it is the intention of the Government to ensure that there is a director of nursing on the board, but I should like to make sure that it always happens.
I understand that getting a range of expertise on the non-executive side will always be difficult. As the noble Baroness, Lady Jolly, said, the risk is that Parliament will always seek to legislate for a list of backgrounds, which we know is not a practical way to ensure that a fairly small board is appointed. My amendments seek to ensure that there are at least some non-executives on the NCB who have some experience of the National Health Service. While the temptation will always be to appoint people from other sectors because of the experience that they can bring, there is something unique about the National Health Service. I think that non-executives find it helpful if, among their number, they have people who know the business and help them to challenge the executives. One of the risks of the fashion—my own Government were as guilty of it as any other—of thinking that what the health service most needs is outside business expertise is that, when it comes to issues of safety and quality, you do not have anyone on the non-executive side who can effectively challenge the executives. I urge the Government to ensure that there are non-executives on the board who have real experience of the National Health Service and how it works in order to enable a proper challenge to be put to the executive directors.
Amendments 52D and 54A are probing amendments, designed to tease out the place of public health on the national Commissioning Board. I support the comments already made by noble Lords. On my proposal that the Chief Medical Officer be a member of the board, the Minister may say that he thinks it more appropriate for the Government’s chief medical adviser to be seen purely as part of the department than to be on the national Commissioning Board. I sympathise with that point. I suspect that the answer to the question of the noble Baroness, Lady Jolly, in relation to HealthWatch is that there is always a problem if people are appointed because of their other positions. The problem is that they then have to take responsibility for the corporate decision-making of the NCB. I can therefore assure the Minister that my amendment to place the CMO on the NCB is probing, designed to enable us to hear how the public health function will be given sufficient prominence within the national Commissioning Board.
My Amendment 55 would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I have no problem with paragraph 3(4) of Schedule 1, which provides for the first chief executive to be appointed by the Secretary of State. This is normal practice and is entirely sensible in view of the need to get the national Commissioning Board up and running. However, my question is why the Secretary of State needs those powers in relation to subsequent appointments. After all, the Minister has waxed lyrical about the need for there to be distance and for the Secretary of State no longer to intervene, so why on earth does he have to approve the appointment of a chief executive? Surely that is for the board to do. Surely it is for the Secretary of State to nominate the chairman of the board to go through the necessary parliamentary scrutiny. For the Secretary of State to actually have to approve the appointment of the chief executive is ambiguous. The department has not sorted out the real relationship between the Secretary of State and the national Commissioning Board. On the one hand, there is the desire to give the NCB as much freedom as possible; on the other hand, one knows that in these clauses there is a desire to control it. I should have thought that the fact that the Secretary of State has a veto over the chief executive appointment is an example of that. I hope that we can see that go between now and the conclusion of our proceedings on the Bill.
Lord Hunt of Kings Heath
Can I say how much I welcome the noble Lord, Lord Greaves, to our Committee? We have missed him. Now we have turned our attention to detail, his particular expertise comes to the fore.
On bureaucracy, I have tabled this amendment because I have genuinely been a passionate fighter of bureaucracy. That is why sometimes as Ministers we have to intervene in the bureaucratic affairs of the health service. The noble Earl may find that he himself has to do so. My concern is that, partly because of the listening pause, there is now a plethora of organisations to be established. Apart from clinical commissioning groups, we have commissioning support units—about which we have heard very little but apparently will be there—as well as the senates, the health and well-being boards, the clinical pathways and the national Commissioning Board. The regulators are likely to be given more power in the future: Monitor is being given more powers and, post Francis, there will probably be changes to the CQC and other regulatory matters. The risk is that, far from this being a streamlined process, it will be a very complex and bureaucratic one. I seek here merely to help the Government deliver their aims by encouraging them to restrain the cost of the whole exercise.
Lord Greaves
I was of course teasing the noble Lord in as pleasant a way that I could. This is another instance where Hansard ought to have a few smileys liberally littered round the text. The noble Lord made the same point, at slightly greater length, that I made when I referred to the kaleidoscope of bodies that we now have. An important job of this Committee is to sort out the relationship between all these different bodies before they are finally set up. We have got to do that absolutely vital job.
Subsection (2) of the noble Lord’s proposed new section “Duty to reduce bureaucracy” says,
“For that purpose the Board must exercise its functions … so as to ensure that at no time there exists more clinical commissioning groups than there were primary care trusts on 1 April 2011”.
That is a slightly different point, hitched on to his bureaucracy point. This is a vital question. Again, this will not appear in the Bill—it will not say that there will be X number of clinical commissioning groups—but, in general terms, we need to have clear in our minds when the Bill leaves the House how many clinical commissioning groups there will be and of what sort of size. This has evolved with discussion over the legislation. When the first proposals came out—when they were called GP commissioning groups because that is what they were—there was a feeling among many people throughout the country, the health service and among politicians that they might be quite small, or even that large GP practices might try and do it on their own. A lot of people were alarmed by this because they thought it would not be very efficient and it would not work. How on earth do you commission the kind of facilities which have to be provided, whether it is a local health centre or specialist clinical services, on a sufficient scale? The more people thought about it, the more it seemed that these groups had to be larger than just a large GP practice or group of GP practices in a smallish town.
The Government then encouraged GPs in particular areas to get together and co-operate to set up early-stage shadow commissioning groups. This happened and the Government issued a statement saying that a high proportion of the country—I forget what, but perhaps 70 or 80 per cent—was covered by these voluntary, shadow groups. These GPs quite rightly wanted to make things work in their area, whatever they thought of the legislation and changes. In my part of the world, it tended to come down to one commissioning group per second-tier or lower-tier district council area, in places like Burnley, Hyndburn and Pendle. Now, apparently because of pressure from above, people are talking very strongly about having—or having to have—a commissioning group on the same boundaries as the existing primary care trust. This would not be the cluster of trusts that is at the county level but at a sub-county level.
So in effect people are looking at the groups and saying, “What will be the difference?” What will be different will be the functions and the direct control of community services, which effectively has gone already to the hospital trusts. As for commissioning, it will be effectively the same body, probably in the same premises, controlled by different people. We need to understand this regardless of whether it is necessary to reduce bureaucracy or whatever, which is secondary, in a sense. Before we leave the question of the commissioning groups, which we will be talking about in great detail, we in this House need to understand the Government’s thinking about the future likely site of these groups.
Lord Hunt of Kings Heath
I am grateful to the noble Lord for giving way again. I think it is a very interesting point about the size of clinical commissioning groups. My amendment was simply a probe to get a debate on this. Is there not a tension here? In order to get CCGs dealing with strategic issues, they have to be pretty large and cover a large population, but, in order to get the interest of GPs, they need to be smaller because the GPs need to feel involved. In essence, there is a tension there. The approach of the previous Government of taking primary care trusts and encouraging more practice-based commissioning may well have proved to be a better approach. The risk with CCGs at the moment is that, when they emerge with a board, they will be so removed from the individual GP that the very purpose of setting them up in the first place, which of course was about controlling demand through GPs, will lose that essential aim.
Lord Greaves
There is a great deal of truth in what the noble Lord says. Looking at this from afar, I think that the Government have had to struggle with this tension. In order for the bodies to be serious commissioning bodies, commissioning not just for their patients individually or collectively but for the health needs of their area, they have to be sufficiently large. What will happen is that the GPs who sit on these new commissioning groups almost certainly will represent the GPs in the whole of that area, and they will have to be appointed by some democratic process representing the whole area—perhaps one from each area. I do not know how they will do it but that will have to happen at a local, practical level.
In my view, one thing that has bedevilled this debate is that the word “commissioning” has been used in two quite separate senses. One has been the idea of a GP commissioning services for his particular—
Lord Hunt of Kings Heath
From what the noble Lord said, why on earth did we not continue with PCTs and give them a kick up the backside to allow GP surgeries to commission more locally as well? Why have we gone through this?
Lord Greaves
I am not quite sure why the noble Lord is asking me that question. He is tempting me to make provocative statements in relation to the coalition Government of which my party is a member. I think that it is an open question and the answer can remain open. I am not in the mood to make provocative statements today. I might be tomorrow, and the noble Lord can come back to me then.
The point that I am trying to make before I finish, if the Labour Benches will not interrupt me just one more time—
Earl Howe
My Lords, this has been an excellent debate on a set of important issues, and I am glad to count my noble friend Lord Greaves as one of my staunchest supporters.
The NHS Commissioning Board is one of the key elements of our vision of a modernised NHS—a highly professional organisation, focused on quality and able to support clinical commissioning groups in delivering the best care possible to patients. I completely accept that these amendments were proposed with the best of intentions, to strengthen the way in which care is commissioned. However, in setting out why the Bill is drafted as it is, I hope that I can explain to your Lordships why I cannot accept them.
It will be key to the effectiveness of the board to ensure that it obtains sufficient advice and input from clinicians, public health experts, other professionals and those with relevant experience of the NHS—patients and the public—and that it has effective working relationships and arrangements with local authority government. We have stated our intention that there should be clinical and professional leadership on the board, but in terms of the legislative framework for the board it is an important principle to maintain that it 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. This would include, for example, whether it has a vice-chair or a senior independent director, as Amendment 52B suggests.
One thing is absolutely clear. Members of the board will, in practice, need to have a range of skills, knowledge and experience appropriate to the issues faced by the board. Ensuring the right balance of non-executive members from a variety of backgrounds is key to achieving a successful board. But if the majority of non-executives were required to have a particular background, such as NHS experience, as suggested in Amendment 54, that might create an unbalanced board and effectively disqualify potential candidates from the private and voluntary sectors. I agreed with the most reverend Primate in what he said here. It is worth remembering that the board and its members will be expected to follow the seven principles of public life—the Nolan principles—one of which will mean that it must appoint a,
“well-informed choice of individuals who through their abilities, experience and qualities match the need of the public body in question”.
That sums it up very well.
A number of noble Lords made the point that if we require the inclusion of doctors and nurses or a public health specialist as put forward in Amendments 50, 52D, 54B and 56, what about representation on the board of dentists, pharmacists and allied health professionals? The list could go on. It would simply not be possible to accommodate all interests in the board’s membership adequately, and we would surely invite valid criticisms that one group is being prioritised over another. Nor would this be desirable from a Government’s point of view, given that the primary purpose of the members of the board is to hold the organisation to account. Nor, in my very firm view, would it be appropriate for a senior member of another organisation with a different purpose or remit, such as the chair of HealthWatch England, or indeed the Chief Medical Officer, to have a seat on the board, as suggested in Amendments 52C and 54A respectively. That could lead to a potential conflict of interest and confuse accountability. I agreed with the noble Lord, Lord Harris, on that point—although he is not in his place.
Of course, in practice, the board must have the freedom to determine how these varied and legitimate interests are best involved and represented in its work. The noble Baroness, Lady Murphy, was quite right—the board will want advice and expertise readily available to it—but that is a different issue from board membership. It is worth bearing in mind that the board will have the freedom to appoint committees and sub-committees as it considers appropriate, and this may prove useful to the board to bring in interested parties on specific issues.
A number of noble Lords asked about public health expertise. We are coming on to debate clinical senates, but one main reason for establishing them is to bring in this wider range of expertise in a way that would provide practical benefit. This would absolutely include public health expertise. We amended the duty to obtain advice to make this explicit. New Section 13J inserted by Clause 20 makes it absolutely clear that the board must obtain advice from those with professional expertise in,
“the protection or improvement of public health”.
There will be an interrelationship between the board and HealthWatch. The board must inform the body in writing of its response, or proposed response, to its advice; it must also have regard to the views, reports and recommendations of local HealthWatch.
My noble friend Lady Cumberlege asked about the size and membership of the board. The requirements in the Bill are that there is a minimum of seven members; the Secretary of State must appoint a chair and at least five other non-executives, so that is a minimum of six non-executive members. The non-executives must appoint a chief executive, who must be a member of the board. That is to say, there must be at least one executive member. Beyond that, they may appoint other executive members as long as the total of non-executives is always more than the total number of executives. The final decision on the number of other executive posts and the nature of their roles will need to be agreed with the chair and non-executive members, but it is envisaged that the other executive members besides the chief executive will include a nursing and a medical director, a director of finance, of performance and operations and of commissioning development.
All departments are required to ensure that appointments are open, transparent and made on merit. The Commissioner for Public Appointments regulates the processes by which Ministers make appointments to the boards of certain public bodies in England and Wales, and this will continue to be the case. It is not government policy to offer confirmation or affirmation hearings for public appointments, as Amendment 52A, tabled by the noble Lord, Lord Hunt, would require. These are ministerial appointments to make. The Cabinet Office maintains a list of posts that are subject to pre-appointment hearings by a House Select Committee. Ministers would consider the committee’s views, but such hearings are not binding and do not represent a power of veto. Your Lordships will be aware that we followed this process in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board.
Lord Hunt of Kings Heath
I am grateful to the noble Earl for what he said, but did he pick up my point that the Government set the precedent in relation to legislation with regard to the Office for Budget Responsibility? The Government have moved on, and I am sure that they did it because of the importance of that body. My argument is that the National Commissioning Board will be such a responsible body that there might well be an advantage in giving the Health Select Committee rather more leverage on it.
Earl Howe
My understanding is that we are following the normal procedure. There is a list of appointments that are subject to Select Committee scrutiny. Departments are consulted over the list. It is our intention that the role of the chair will be included in that—and that is exactly the same situation that applied under the previous Government. The Office for Budget Responsibility is an exceptional body in this respect, given its role in providing both government and Parliament with essential, impartial information, necessary for both bodies to be able to fulfil their responsibilities. Although I will reflect on the noble Lord’s comments, I do not know that there is the parallel that he seeks to make there.
Amendment 55 would remove the requirement from the Secretary of State to approve the appointment of a chief executive of the board. This requirement is included for the important reason that the chief executive of the board will be the accounting officer for the commissioning budget, so it is entirely appropriate that the Secretary of State should approve his or her appointment.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 3 months ago)
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Lord Patel
My Lords, in the absence of the noble Lord, Lord Walton of Detchant, I am very pleased to move the amendment on his behalf. I wish I had a better idea of what his purpose might have been in tabling the amendment. None the less, it is a good opportunity to explore the Government’s thinking in establishing the clinical senate.
It is easier to understand the purpose of the professional networks, which I have spoken about before. I think they are a good idea, and there should be more clinical and professional networks embedded in the health system. The cancer and cardiac networks are two good examples. However, when it comes to the senate, I am less clear about the Government’s intentions. I know that the NHS Future Forum: Clinical Advice and Leadership report said that commissioning consortia—now called commissioning groups—and the NHS Commissioning Board,
“should establish multi-specialty clinical senates to provide ongoing advice and support for their respective commissioning functions”.
It also said that independent advice from public health professionals should be available at every level of the system, but that is by the way.
Therefore, we have a situation where the Future Forum suggested that clinical senates should be a way of getting advice to all the different new structures. In response to the Future Forum, the Government said that clinical senates will give advice to CCGs which they must follow in each area of the country. At the same time, Dr Kathy McLean, who led on the project, is leading another project and has issued a consultation letter to develop the role of clinical senates and clinical networks. Obviously the Government do not have a clear idea of what the clinical senates are for, otherwise why is Dr Kathy McLean leading the project and issuing a consultation letter?
It is proposed that 15 senates will be housed by the NHS Commissioning Board. They will feed their advice back to the NHS Commissioning Board, although about what is not clear. In his two amendments my noble friend Lord Walton of Detchant wonders whether they might be useful in feeding the Commissioning Board and the commissioners advice about specialist commissioning. The senates will have a major say in advising CCGs on their commissioning plans, but their advice will be exactly that—advisory. Membership will consist of doctors, nurses and other health professionals, so it will be a large group. The senates are to be involved in quality aspects of clinical commissioning and an annual assessment of CCGs, and they will report on their annual reports and performance. They have serious work to do in monitoring CCGs, yet they are only advisory for CCGs.
Future Forum suggested that clinical senates should provide advice and support for a range of bodies, including CCGs, the NHS Commissioning Board, health and well-being boards and others. Are senates not likely to end up as just another layer of bureaucracy? Therefore, what is the real role of all 15 clinical senates? Will they be involved in advising the NHS Commissioning Board in its commissioning role? Are they to be advisory for CCGs and check on the quality of their commissioning? Why are the professionals on the senate going to be from outside the commissioning groups’ area of commissioning? The amendments are tabled to explore whether they will really have a role in commissioning specialist services.
Lord Hunt of Kings Heath
My Lords, I also have an amendment in this group. I say to the noble Lord, Lord Patel, that he anticipated the remarks of his noble friend Lord Walton remarkably well.
Having argued against bureaucracy in the previous group of amendments, I am now about to argue in favour of putting senates on a statutory basis. I shall explain why. First, this was a very good outcome of the listening exercise. I think that because I am concerned at the Government’s decision to abolish the strategic health authorities. It is what I call the Hagley Road issue. In 1948, the Birmingham Regional Hospital Board was established; its offices were in Hagley Road and throughout 60 years there has always been something there. It may have been a regional health authority, a regional hospital board, a strategic health authority—call it what you will—but there has always been a regional outpost of the department acting essentially as a leader, with a positive role in looking at the region as a whole, ensuring that its services were cohesive and had proper direction and that, by and large, it was self-sufficient. That is to be removed and we are going to get large SHA clusters which will cover a much larger part of the country. Although we do not know the size of the clinical commissioning groups, they will clearly cover much smaller population areas.
I believe that there is still a need for a mechanism whereby strategic leadership can be given over a region, and I see the clinical senates as being the best approach to that. Noble Lords have spent at least two days debating reconfiguration and are concerned that these difficult decisions often have intervention from the centre. Clinical commissioning groups will be too small to take on the kind of strategic leadership that is required. When you are trying to establish in a region where the super specialty and tertiary services should be and trying to come to a view about how many A&E and emergency departments you need, you require a body that can take a strategic overview. The clinical commissioning groups are too small to do that. They could, of course, possibly come together in a kind of federated meeting to try to resolve those kinds of issues, but that could prove to be very difficult. Therefore, the senates could have an important role in setting some of the parameters and giving strategic leadership to a region.
However, as the Government intend them at the moment, these will be informal groups of people who could easily be ignored by the clinical commissioning groups, by the health and well-being boards, by the deaneries and by all the organisations that have an influence on the way in which the health service is going. My amendment is designed to set out a more structured approach to ensure that clinical senates are created as bodies corporate, that they are properly accountable to the national Commissioning Board and that they have the ability to give strategic leadership and have some oversight of the work of clinical commissioning groups.
I suspect that my amendment will not find favour with the noble Earl but the point about the need for strategic leadership in a region is important. I fear that the super SHA clusters will be too large to do that and the clinical commissioning groups will be too small.
Baroness Jolly
My Lords, I would like to speak to Amendments 51 and 84, but before I do, I have an interest to declare. I am chair of the Specialised Healthcare Alliance, an organisation campaigning for those with rare and complex conditions. The move to commissioned services for this particular group of patients by the NHS board is really welcome. It is the first time that there will be a common standard across England under the auspices of the board. However, we are not totally clear about the composition of the senates or their roles. I am not sure that the amendment of the noble Lord, Lord Walton—who is not in his place at the moment—actually gets to the meat of this. There is concern that specialised services within senates might get lost. If a specialised senate with expertise and integration were set up, that might be useful to this group of patients, but more often than not networks are where the specialised services go to for the expertise. We welcome the commitment to ensure that networks stay as they are and possibly expand. Maybe a network could set up a task and finish group to look at the problems around specific conditions. I would be grateful if the Minister would make the role of the senates clear. Would they have a role in specialised commissioning? Similarly, I would be grateful if he would shed some light on the ways in which the board will commission specialised services in general.
Baroness Williams of Crosby
My Lords, if I may, I will pursue what has been raised by the noble Lord, Lord Kakkar, and also, in some ways, by the point made by the most reverend Primate the Archbishop of York. I could not help thinking that perhaps protesters count among the networks and the people responsible for running St Paul’s count as part of the commissioning group. With that in mind, I will pursue also what was said by the noble Lord, Lord Hunt. If you look at his Amendment 224A(6), he helpfully refers to the clinical senate having,
“the function of establishing and maintaining a system of clinical networks”,
in the area. I think that should be applauded. I am very impressed by the way in which networks at their best not only extend information very widely among patients with a chronic condition but bring the patients into the discussions about what should be done in their situation. It becomes a huge educational and, indeed, morale-boosting process. So on subsection (6) I think that the noble Lord, Lord Hunt, has put his finger on something that could be very important and where the clinical senate would give clinical backbone to the deliberations and thoughts of the clinical network. That is almost, I suppose, what we are all trying to achieve.
I am not so clear about subsection (8) of Amendment 224A, where the noble Lord, Lord Hunt, has effectively given the clinical senate something of a veto over the commissioning group. I am not sure that that is wise, as that plays right into what the noble Lords, Lord Patel and Lord Kakkar, were saying about creating yet another layer of bureaucracy. I think that would be unhelpful and might indeed feed into a certain self-importance on the part of people who call themselves senators, whether clinical or merely political.
I would like to ask the Minister, bouncing off the amendment from the noble Lord, Lord Hunt, whether, looking through that amendment, he does not find parts of it that are helpful, useful and constructive. It would make a clinical senator a significant part of the whole structure of the relationship between patients and clinicians. Whether he needs to press ahead with provisions that would bring in the senate as a requirement of the decision-making process of the commission is much more questionable. I am playing a kind of ping-pong, in which the ping of the noble Lord, Lord Hunt, has to go to the pong of the noble Earl, Lord Howe.
Lord Hunt of Kings Heath
Can I accept the invitation to come back on this? The reason why I am interested in the other bit of my amendment is that it is essentially about the strategic leadership that needs to be given to reconfiguration issues. When we debated the powers of the Secretary of State, a number of noble Lords complained that Ministers intervened in reconfiguration, which usually means the closure of services, perhaps emergency services, and their concentration around specialist hospitals. They are very contentious. As noble Lords have observed, MPs seek ministerial intervention, which is perfectly normal and democratic. In the new structure, there is no one to really lead this at a semi-national or regional level. The CCGs are far too small; they will not be able to come together to sort out how regional services should be operated, or the number of A&E departments you need within a region. The national Commissioning Board is far too big; it is national. That is why I think that there is room for some regional mechanism. The clinical senates seem the nearest that we can get to that. I do not see them as being like the old-style regional medical advisory committees; I see it as being a rather more dynamic process than that.
Baroness Williams of Crosby
I thank the noble Lord for his typically articulate and thoughtful response. The idea of clusters coming together in what one might call semi-regional groupings is a better way forward than bringing regional senates in as a way to resolve the problem that he rightly talks about of bodies being too small or too large.
Earl Howe
As I have mentioned, the senates will come under the wing, so to speak, of the NHS Commissioning Board. They will effectively be part of the board. While we have yet to receive details of how the board will configure itself sub-nationally, it will clearly have to do so in ways that make sense of the local commissioning and provider architecture in an area so, where you have a university, it might well be that medical experts from that university will be part of the senate. It is too early to say, but I look forward to updating my noble friend as and when I have further particulars.
Lord Hunt of Kings Heath
I stand as a supporter of the noble Earl on the concept of senates. He is not getting much support but I agree with the point that he made that if clinical commissioning groups feel that there needs to be a wider strategic view, say on reconfiguration, the clinical senate could provide useful support. The problem is that some clinical commissioning groups may not think that there is a need for a wider strategic view because they will simply seek to defend existing provision. My argument is that you may need a mechanism which is somewhat more proactive, and which can intervene in the way that the noble Baroness's wonderful South West Thames Regional Health Authority used to do.
Earl Howe
The noble Lord could be proved right. As I have said, we will see how the functions of senates are defined. That work is ongoing. The initial proposals for the design and implementation of senates are currently being developed and initial straw-man proposals are being tested with the intention of presenting a clear set of recommendations to the top team of the special health authority later this year, so—
Lord Hunt of Kings Heath
My Lords, clinical commissioning groups are, of course, one of the main building blocks of the Government’s proposed changes to the National Health Service and I support my noble friend Lord Whitty when he argues for the need for population-based bodies at that essential local level. However, I will follow the noble Lord, Lord Kakkar, in looking at issues to do with corporate governance in clinical commissioning groups. I am concerned whether the corporate governance structure will be sufficiently robust. Will clinical commissioning groups be sufficiently accountable to the public? What safeguards will be put in place to ensure that clinical commissioning groups operate in the public interest?
Schedule 2 sets out the details of the governance structure. Clinical commissioning groups will be bodies corporate with a constitution and a procedure for decision-making; an accountable officer and audit and remuneration committees are to be appointed. That is fine as far as it goes but I hope the noble Earl will use this opportunity to clarify what effective corporate governance structure is to operate. My Amendments 175CA and 175CB seek to do just that.
On Amendment 175CB, I seek guidance and reassurance about the composition of the boards of clinical commissioning groups. On every other board in the NHS the non-executives are in a majority. Will the noble Earl confirm that that will be the case with clinical commissioning groups? If not, why not? I follow what the noble Lord, Lord Kakkar said: surely, by any definition, GPs are the least experienced in any form of corporate governance in the health service? Therefore, given that they are the least experienced, is it right that they should be subject to so much less scrutiny and challenge than those other organisations in the National Health Service which are hugely well versed in corporate governance? At the very least the chair and vice-chair of the clinical commissioning groups should surely be lay people to ensure that the public interest is represented.
There would be considerable merit in ensuring an external appointments process. I have suggested here the NHS Commissioning Board but there may be other suggestions. All experience with public bodies shows that if boards are responsible for deciding on their membership you will often run into trouble. We have seen this in the education sector, with corporations of colleges simply deciding themselves who should be appointed and who should replace those who retire. Simply leaving clinical commissioning groups to decide on their membership is a recipe for deep trouble, particularly when the temptation for CCGs will be to spend resources on themselves, on their constituent GPs. The issue around public interest and conflict of interest will become a keen problem and, without strong, effective corporate governance, we may well run into great difficulty in the future.
There are probing amendments around membership but, in relation to Amendment 175CA, I would like to know whether the noble Earl feels it is appropriate that local authorities should have some kind of representation on the boards of clinical commissioning groups. Amendment 175CA in particular draws attention to the role of district councils in two-tier areas. That is because clearly the principal local authority will be the host of the health and well-being boards. There will be concern, particularly in rural areas, if the non-metropolitan district councils do not have some involvement. I at least pose the question as to whether they may have some involvement at the clinical commissioning group level.
My principal amendment is Amendment 175D which concerns the accountability of clinical commissioning groups. I do not understand how those groups will account to their patients. As a patient, what do I do if I do not agree with the decisions of the clinical commissioning group? What if I think the decisions made by my clinical commissioning group put me at a disadvantage compared to the decisions made by a clinical commissioning group in a nearby area? What if I think my clinical commissioning group, by its decisions, might affect the viability of my local general hospital? What if I think it is putting too many contracts with itself, bringing up this issue of conflict of interest? There is real concern about the conflict of interest issues around placing contracts with the GPs who form the constituent members of the clinical commissioning groups.
How do members of the public hold the clinical commissioning groups to account? As far as I can see, the Bill is completely silent on that. The noble Earl may say that it is contained in the doctor-patient relationship, but I do not think that is true at all. My relationship with the GP is not about commissioning: it is about essential care. Frankly, there is already a risk that, because GPs are collectively going to commission, the doctor-patient relationship might be undermined in any case. That is because the moment we place commissioning decisions with GPs, there will always be a suspicion among patients that decisions they are making clinically will be governed by the needs of the clinical commissioning group and the need to ration resources. Clearly, the Secretary of State has said, and has been saying consistently, that the reason the budget has been put with GPs is to give control over the budget overall.
I have put forward a model essentially based on the foundation trust model, which says that the members of clinical commissioning groups should be the patients who are on the lists of the GPs within that group. The membership should then vote for a governing body and the governing body should then appoint the non-executives on a clinical commissioning group. I am not completely wedded to that model: I just lifted a model that is currently in operation in the health service. My main point is that I do not believe that it is right and proper that a public body should simply be composed of one profession that is given enormous power—if you are lucky, there may be one or two non-execs on the board as well—accountable to nobody at all at the local level. There is no mechanism at all whereby I as an individual patient have any way of challenging the commissioning decisions of those clinical commissioning groups. This is a very important issue to which I am sure we will return. We have to make CCGs properly accountable.
Lord Patel
My Lords, I will be brief in supporting the amendment of my noble friend Lord Kakkar. I also support the comments just made by the noble Lord, Lord Hunt. I think it vital that local commissioning groups are accountable and conduct themselves according to the highest principles of public life. CCGs are legally responsible for the quality of their decision-making processes. Therefore, they need to be able to stand up to judicial review. The individuals making those decisions should be required to adhere to the highest standards of conduct for public officials.
I know that, to a degree, the Government recognise this by raising the structures of CCGs—namely, the inclusion of lay and other professional members on governing bodies, the requirement for compliance, the principles of good governance and the pledges about public access to documents and meetings. While this work is being carried out, however, we need clarification about the methods of identifying and selecting lay and professional members of governing boards.
The Bill also states that CCGs may pay members of the governing body such remuneration and allowances as it considers appropriate. Full autonomy may not be appropriate as it might undermine public confidence in the ability of members of CCG governing bodies to act in the public interest. Some degree of national guidance about fee scales might also be valuable.
Earl Howe
My Lords, I take that point on board. It is my understanding that the NHS Commissioning Board will wish to set common standards for CCGs to follow. However, I will follow up that point with the noble Lord. As I said, the Bill requires each CCG to prepare annual accounts, independently audited. The board may, with the approval of the Secretary of State, direct CCGs as to the methods and principles according to which their accounts must be prepared, and the form and content of such accounts. Therefore, there will be scope for the board to drive consistency in the area the noble Lord mentions.
I turn now to Amendments 169, 175BA, 175C and 101A, which concern membership of, and appointments to, CCG governing bodies. In response to amendment 169, as the Bill stands, under new Section 14N, regulations may already provide that members of governing bodies must include the accountable officer of the CCG. Paragraph 11 of Schedule 1A also specifies that the accountable officer may be one of the following: a member of the CCG, or an employee of the CCG or any member of the group. Restricting the accountable officer to being the “most suitable senior employee” of the group, as Amendment 169 also proposes, would narrow who the officer could be and ignore other able candidates, so I am not attracted to that amendment.
Amendment 175BA, and Amendments 175A and 175B, which we will be discussing in more detail in a future group, clearly intend to ensure CCGs have access to professional or other expertise to advise on all areas of their work. This is undoubtedly important, but the governing body is not the route to achieve this. As the Future Forum advised, a clear distinction should be made between governance of CCGs and clinical involvement in designing care pathways and shaping local services.
Clinical involvement in designing pathways or shaping services is exactly what a CCG will need to ensure in exercising its duty in new Section 14V, which requires a CCG to obtain advice appropriate for enabling it effectively to discharge its functions from individuals, who, taken together, have a broad range of professional expertise.
Clinical senates and networks will, of course, be crucial to effectively meeting this duty and to ensuring that CCGs can access specialised advice, as will the local knowledge and public health knowledge held by health and well-being boards. We believe there is a case for ensuring that governing bodies include the voices of some other professionals—at least one registered nurse and a secondary care specialist—but it would be unhelpful, as the Future Forum also acknowledged, for governing bodies to be representative of each group. That could lead to bodies that are too large and slow to do their job well. CCGs should have the flexibility to determine the professional input into their governance arrangements.
Amendment 175C would provide for regulations to be made setting out how lay members are recruited and remunerated. Subsection (3) of new Section 14N already makes provisions as to the appointment of members, including lay members, to the governing body. Paragraph 12 of Schedule 1A allows the CCG to pay members of its governing body such remuneration and other expenses as it considers appropriate. These existing provisions cover the intent of Amendment 175C.
Lord Hunt of Kings Heath
My Lords, can the noble Earl assure me that the appointments will be made by independent bodies, and that it will not be a case of the board of the CCG making the appointments to itself? In terms of corporate governance, can he also assure me that non-executives will be in a majority as they are on every public body which the Government have recently enacted?
Earl Howe
If the noble Lord will allow me, I will answer those questions in a moment. Amendment 101A would similarly duplicate existing provision by placing a duty on the NHS Commissioning Board to ensure that all CCG governing bodies meet the requirements for clinical and non-clinical representation. The board already has to do this; under proposed new Section 14C, the board can grant an application only if it is satisfied that the applicant CCG has made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under the Act. That would include regulations made under proposed new Section 14N providing for minimum levels of clinical and lay representation.
Amendments 170A, 175D, 175CA and 175CB seek to introduce alternative governance arrangements for CCGs. These amendments would remove the existing functions of the CCG governing body and, through the proposed new schedule, replace the governing body with both a board of directors and a board of governors. I was grateful to the noble Lord for explaining where this idea originated. However, the amendments do not propose functions for these boards to exercise. They concentrate almost solely on the form of CCG governance; they neglect the function. As to that form, there is much here which is already provided for in the Bill and in relation to a governing body. I should perhaps explain that our preferred approach is to set through regulations the key requirements in relation to the composition of the CCG governing body and the logistics of their qualification, appointment, tenure and so on. This will, most importantly, allow flexibility for the approach to evolve over time and in the light of experience.
Turning to Amendment 59A on the subject of the area covered by CCGs, in the light of our lengthy debate on this last week, a letter will shortly reach your Lordships to provide further information on the arrangements for geographic areas of CCGs. It includes some analysis of the key issues which I hope will be useful and reassuring. We accepted the Future Forum recommendation that the boundaries of CCGs should not normally cross those of local authorities. If a CCG wishes to be established on the basis of boundaries that will cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients; for example, to reflect local patient flows and to secure a better service for patients. The board will also be required to seek the views of emerging health and well-being boards. In addition, CCGs will have the flexibility to enter into lead or joint commissioning arrangements with other CCGs; for example, for commissioning of lower volume or more specialist services. I hope that this reassurance will satisfy the noble Lord’s concerns.
Finally, Amendment 92ZZA seeks to mandate the Secretary of State to make regulations imposing a ban on shareholders and employees of commissioning support organisations being given a seat on a CCG committee or governing body of a CCG—I assume that it is the governing body that the amendment refers to rather than the NHS Commissioning Board. We agree that there should be no conflicts of interest between a CCG and any commissioning support organisation that it uses. The support offered by such organisations should inform decisions made by CCGs, but we have always been clear that CCGs cannot delegate their duties or responsibilities. However, such an absolute ban would not take into account situations, for example, where a CCG may wish to invite individual employees from commissioning support organisations to provide expertise on a committee. The Bill already requires CCGs to have robust provision for managing conflicts of interest in how they discharge their functions.
It is clear from the debate that these amendments were proposed with the best of intentions, but I hope that noble Lords will feel that the points that I have made are sufficiently compelling to encourage them not to press the amendments.
I have a few questions that I would like to answer briefly. The noble Lord, Lord Hunt, suggested that the chair and deputy chairs of CCGs should be lay members. Each CCG must have at least two lay members. We are specifying that, and we have committed that one of the lay members of CCGs will be either the chair or the deputy chair of the governing body.
The noble Lord, Lord Rea, asked me how a CCG’s geographic area would be determined. The primary factor in establishing the CCG’s boundaries or geographic area would be the practices that made up the membership of the CCG. The NHS Commissioning Board must satisfy itself that the proposed area for a CCG is appropriate and that the CCG can commission effectively for that area. That is a very condensed explanation of what the Commissioning Board will be looking for.
The noble Lord, Lord Hunt, suggested that he could not understand how CCGs would be accountable. Accountability is a key area. There is no doubt about that and I share the noble Lord’s desire to get this right. We listened to the Future Forum when it said that there is a balance to be struck between the need for good governance and the need to avoid overprescription. Perhaps that is a generally accepted principle—I certainly agree with that. I think the amendment of the noble Lord, Lord Hunt, goes too far. However, we are absolutely clear that CCGs will be materially accountable in a number of ways. I could recite a number of ways that I have in front of me, but at this hour it might be appropriate for the noble Lord to receive that in writing from me. I would be happy to do that and to copy it round.
On the subject of conflicts of interest, we will be having a very full debate in the context of Clause 20 on conflicts of interest. I have a lot of material here, but essentially there are principally three safeguards in the Bill to prevent conflicts of interest: statutory requirements on clinical commissioning groups to have in place arrangements to manage those conflicts of interest—those have got to be set out in the group constitution; secondly, strengthened governance arrangements as regards the governing body, and I briefly outlined those; and specific provision for regulations to require that the board and the clinical commissioning groups adhere to good practice in relation to procurement and in commissioning healthcare services.
My noble friend Lady Jolly asked who will appoint members of the clinical commissioning group boards. We will work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. As I have indicated, the Government will issue regulations in due course, setting out in more detail the requirements for appointing non-GP members to the governing body.
The noble Lord, Lord Hunt, asked whether non-executives would be in the majority on boards. I am not currently able to give that assurance. We are still working with a wide range of stakeholders on the regulations for governing bodies. We are well aware of concerns in this area. I will take the noble Lord’s points very firmly on board.
Very briefly in this group, I would also like to speak to government Amendments 172, 173 and 175, which are minor and technical in nature. Amendment 172 clarifies that the remuneration committee of the CCG governing body has the function of making recommendations to the governing body on its determination of allowances payable under a pension scheme established by the CCG for its employees under paragraph 10(4) of Schedule 1A. Government Amendment 172 allows regulations made under new Section 14L(6) to make provision requiring CCGs to publish prescribed information relating to determinations of the allowances payable under a pension scheme. Government Amendment 173 makes provision for the board to publish guidance for governing bodies on the exercise of this function. I trust the Committee will join me in supporting these minor and technical amendments.