Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Marks of Henley-on-Thames

Tuesday 6th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I do indeed recall the debates that we had during one of the many health and social care Bills that have gone through your Lordships’ House in the past few years. It was indeed Lord Weatherill who raised the issue with me. Essentially, it was about standards in nursing homes where there was some concern that an insensitive regulator would take action against a home that was actually respecting the wishes of a member of the Christian Science religion. We were able to reach a satisfactory solution. An appropriate amendment was put forward and I think the noble Earl, Lord Howe, was also part of what I like to think of as the “second Weatherill agreement”. We may need another one in a couple of years’ time—who knows? I ask the Government for an assurance that the position that we then agreed will continue under the new Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I will speak briefly, in addition to what my noble friend Lady Williams of Crosby said, to the amendments in our names concerning the Secretary of State giving guidance to Monitor: Amendments 163C, 166B, 173A, 173B and 173C.

These are further amendments concerning the role of the Secretary of State and are intended to ensure that the Secretary of State has a practical and effective influence over Monitor’s overall approach to the work it does. The Secretary of State would exercise that influence by issuing statutory guidance to Monitor that will have to be published and laid before Parliament. The guidance in each case could be revised but the revised guidance would also have to be published and laid before Parliament.

The heart of the scheme is Amendment 166B. The duty referred to in that amendment under Clause 61(9) is the duty on Monitor to exercise its functions consistently with the Secretary of State’s duty to promote a comprehensive health service. The amendment allows the Secretary of State to publish guidance to Monitor on the objectives specified in his mandate to the board and to set out guidance on how those objectives are relevant to the separate work carried out by Monitor. Monitor is, of course, required to have regard to such guidance.

Amendments 173A to 173C empower the Secretary of State to give guidance to Monitor in line with any guidance that he has published under new Section 13E of the 2006 Act. That is the so-called outcomes document issued by the Secretary of State to the board in connection with securing continuing improvement in the quality of services and outcomes achieved by the health service. These amendments make it incumbent on Monitor to have regard to that guidance, which must also be published and laid before Parliament. Amendment 163C concerns reporting by Monitor so that in its annual report Monitor would be required to state what it did to comply with the guidance, envisaged by these amendments, given by the Secretary of State in relation to the exercise of its functions.

These are modest but important amendments. They seek to weave into the fabric of the Bill a clear role for the Secretary of State to give strategic guidance to Monitor in line with the Secretary of State’s overarching duties, in particular with the objectives set out by the Secretary of State in his annual mandate to the board, and in line with the outcomes document that he publishes that is designed to ensure the board’s performance of its duty to secure improvement in the quality of services.

These amendments are part of creating a coherent and consistent framework within the new structures established by the Bill, to ensure a single and purposive approach by all the bodies within the NHS, with the Secretary of State remaining in charge of setting the strategic objectives for the service. In those circumstances I suggest that they are very welcome.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Marks of Henley-on-Thames

Wednesday 29th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, as this is a government-supported amendment, perhaps I may seek clarification from the noble Lord. In the past three months the Secretary of State has intervened in the health service any number of times: for example, on issues arising from primary care trusts massaging figures on waiting times and on the way in which A&E departments work. If an issue was raised in Parliament, would the Secretary of State be able to intervene without any question or worry about whether it meets the terms for failure set out in the amendment? It is important to clear that up.

[Lord Marks of Henley-on-Thames]

It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State’s powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.

A similar test applies in the case of the board’s powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board’s view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.

As my answer to the noble Lord’s intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.

I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.

Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State’s prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.

Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate—and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.

The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.

The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.

[Baroness Murphy]

My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My noble friend the Minister has certainly persuaded me not to press those amendments. I never had any intention that they should go to the vote. However, I still express some concern about the point made by the noble Lord, Lord Hunt, as to whether the stop power can actually involve the Secretary of State in having the power to knock heads together in the way that he describes. Of course, I entirely accept that the intervention powers under the other amendments go a great deal of the way to improving the position, but if he would like to give it further thought that would be very helpful.

[Lord Hunt of Kings Heath]

I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Marks of Henley-on-Thames

Wednesday 30th November 2011 Lords Chamber

[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.