Personal Protective Equipment: Accounting

Lord Kamall Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Lord Wood of Anfield (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice. I remind the House of my interests as a director of the Good Law Project.

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

Throughout the pandemic, our absolute priority has been saving lives; £8.7 billion of the personal protective equipment inventory has been written down, not written off. This does not mean that it is unusable. The accounts make it clear that only 3% of the items purchased were not fit for any use. The majority of the impairment reflects the fact that the Government bought in a globally inflated market. It was better to do that than risk running out of PPE and risk lives.

[Lord Wood of Anfield (Lab)]

My Lords, I thank the Minister for that Answer. Global inflation was clearly part of this, but of the extraordinary 72% of PPE spend that has now been written down, £670 million was on defective equipment, £750 million was on PPE that was past its expiry date and £2.6 billion was on unsuitable supplies—if you add it all up, that is enough to build more than a dozen new hospitals. Apparently, Ministers now cannot locate a further £3.6 billion in supplies, and a further £1.2 billion is again being written down on advance orders for this year. Can the Minister pledge today to have a full investigation into PPE procurement processes, particularly into how it became possible for some suppliers, funnelled through the VIP lane, to make so much money from the tax- payer for equipment that was not used or unusable?

[Lord Kamall (Con)]

The noble Lord asks a detailed question, so I hope noble Lords will forgive me if I try to respond in some detail. If you look at the breakdown of the writedown, you will see that, first, about £4.6 billion was attributable to changes in global prices following the point of purchase in a highly inflated market—noble Lords will remember that even toilet rolls went up at one time. As the noble Lord rightly says, the £673 million was for stuff that had failed the quality testing or technical insurance. The £2.6 billion was for stock that will not be used for its intended purposes but can be repurposed. We are also looking at stock in excess of the current forecast requirements, which can be stockpiled, and we are also introducing a tender for testing to see whether the life of some of that stock can be extended.

[Baroness McIntosh of Pickering (Con)]

My Lords, can I press my noble friend a little more closely on one issue? I speak as president of the UK Warehousing Association. I am grateful to my noble friend for his explanation. What timetable do the Government have to remove this redundant PPE equipment from the warehouses in which it is currently situated to enable stock to be stored in those warehouses which really needs to be at this time?

[Lord Kamall (Con)]

There are different ways; some of it is about stockpiling stuff that is still useful and which we would use in future anyway. We are looking at research into testing whether the life of some of our stock can be extended—we are working with some of the best scientists on that. We are also looking at where we can give stock away or sell it on, as all the stock we are passing on meets WHO standards. To give noble Lords one example, we bought lots of latex gloves; usually we do not buy latex gloves in this country because of allergies and, now that we no longer need them, we can give them to a country such as Syria.

[Baroness Walmsley (LD)]

My Lords, those in the VIP lane were 10 times more likely to be awarded a contract, although there was no evidence that they had more expertise than any other company. Of the £8.7 billion-worth of material which could not be used by the NHS, how much went through the VIP channel? What efforts are the Government making to recover public money for material that was unusable for the NHS?

[Lord Kamall (Con)]

If I could correct the noble Baroness, the £8.7 billion does not refer to material that can no longer be used. As I said earlier, some of it can be repurposed or reused. On the so-called priority lanes, a number of government officials, Ministers’ offices, MPs, Member of the House of Lords, senior NHS staff, departmental staff and others were contacted. They then passed on these emails—I still get emails from people and pass them on to my department. All offers underwent a rigorous financial, commercial, legal and policy assessment. This was led by officials from various government departments as part of the PPE sale. The final decision on whether to enter into contracts sat with the appropriate accounting officer at the Department of Health and Social Care.

[Baroness Thornton (Lab)]

My Lords, I think it would be best if the Minister does not try to justify the VIP list, since he was not there. Consider the answer given by the former Minister for PPE procurement matters, the noble Lord, Lord Bethell, to a Parliamentary Question on 1 September 2021:

“As of 27 July 2021, the Department was engaged in commercial discussions (potentially leading to litigation) in respect to 40 PPE contracts with a combined value of £1.2 billion”.


Could the Minister please update the House on the situation with respect to that potential litigation and any attempt to recoup public money in the six months since the date of those official figures? If the Minister cannot provide the information today, could he write to me urgently, and ensure the information is placed in the Library?

[Lord Kamall (Con)]

The Department of Health and Social Care’s anti-fraud unit has acted quickly to investigate allegations of fraud. Indeed, this question came up when I was on a call with the unit earlier today; I was told that it saved £157 million in prevention and recovery by identifying and preventing high-risk contracts in the early days of the pandemic. There is a single company that is a potential source of loss, where we paid it and then terminated the contract as a preventive measure. I commit to write to the noble Baroness with a fuller answer.

[Lord Alton of Liverpool (CB)]

My Lords, on Monday, at col. 650 in Hansard, the noble Earl, Lord Howe, promised to write to me and answer my specific questions about the origins of and deficiencies in PPE, some of which originated at the hands of slave labour in the genocide state of Xinjiang—where the Foreign Secretary herself has said a genocide is taking place. Can the Minister confirm that the reply will be with us before Report stage of the Health and Care Bill, and will he ensure that a copy is placed in the Library of the House? Will the Minister reconsider his statement made to me in reply to a Parliamentary Question that no organisation or individuals will be censured—especially bearing in mind what he has just told the House about the continuing inquiry by the fraud squad into allegations of fraud? If such allegations were found to be true, how can that rule out the possibility that anyone will be censured?

[Lord Kamall (Con)]

I thank the noble Lord, Lord Alton, for his persistence in asking a number of questions. I think all noble Lords appreciate that we want to recognise the huge suffering of the Uighurs in China, and that we should not do anything that can be seen to support it. I would also like to correct the noble Lord, Lord Alton: it was not the fraud squad; it was the Department of Health and Social Care’s anti-fraud unit, which has been investigating these contracts throughout the pandemic. But I will speak to my noble friend Earl Howe and check when the answer will be available. The normal process is to make sure it is available before the next session of Committee.

[Lord Hannan of Kingsclere (Con)]

My Lords, what lessons are to be drawn from the difference between the fiasco of PPE procurement and the world-beating success of vaccine procurement? The first was left in the hands of the usual administrative state, that of PHE and NHS procurement; the second was deliberately lifted out of the hands of bureaucracy and placed in those of an individual from the private sector. Would the Minister like to extrapolate or infer from that distinction?

[Lord Kamall (Con)]

It is important to recognise that, throughout the pandemic, people were in a state of panic and there were people dying every day. What we saw was the coming together of the state and the private sector, working in partnership in the best possible way. The vaccines started in university research but were then commercialised and exported by the private sector. People who stayed at home during lockdown were served by Uber and Deliveroo—hard-working people were serving us. This was the best of the public and private sectors, working together for the best of the British.

[Baroness Bull (CB)]

My Lords, across the Suffolk countryside, vast piles of shipping containers—some up to 60 feet high—full of this PPE are now lodged. Can the Minister say how long people in those areas are going to have to live with these monstrosities, which do not have planning permission? How much are the Government paying for this ad hoc storage on unsuitable sites?

[Lord Kamall (Con)]

The noble Baroness raises a very important point about storage costs, and we are looking at how we can reduce them. We have managed to reduce weekly storage costs at the moment, but one of the things we are looking at is how we can pass on, donate or sell some of the equipment that is in storage. We have certain standards, other countries have other standards, and we are making sure that we are selling stuff that meets WHO standards.

[Baroness Barker (LD)]

My Lords, in December 2021, Edward Argar reported that the Government were paying £4.5 million a week for storage costs for PPE. Are those storage costs for stuff which is now unusable?

[Lord Kamall (Con)]

As I said earlier, a very small percentage was unusable, but we are looking at some of the things that are supposedly past their use-by and sell-by dates—rather similar to food; people know about the debate around food wastage. We have put out a tender for scientists to look at the equipment to see whether its life can be extended or it can be used in a useful way.

[Baroness Altmann (Con)]

My Lords, it is understandable that in an emergency, huge amounts of taxpayers’ money may need to be written off for contracts that were not viable. I commend the Government on all they have done for the pandemic, but would my noble friend agree with me that, given that this was an emergency, and given where we are on the cost-of-living crisis, it would perhaps benefit the Government to rethink the national insurance increase that is coming in April, as the cost-of-living crisis itself is an emergency?

[Lord Kamall (Con)]

If you consider how quickly the Government, and all of us, had to act during the early days of the pandemic, it was clearly an emergency. Lives were being lost. This is a stab in the dark, but maybe some noble Lords read a newspaper called the Guardian. One of its headlines from April 2020 read:

“Hospital leaders hit out at government as PPE shortage row escalates”.


Everyone knew that it was essential to get hold of as much PPE as you could in an incredibly challenging market.

[Baroness Wheatcroft (CB)]

My Lords, the Minister explained that the ultimate decision on what PPE contracts to issue came from the department, but I think the House would still be interested to know what proportion of the unusable PPE, or PPE that was unfit for purpose, came through the VIP trail.

[Lord Kamall (Con)]

That seems a reasonable question, but I hope the noble Baroness will understand that I do not have the answer at the moment. This is very much a dynamic situation. Some of the equipment we have may be deemed to be out of date but may be reclassified as usable after scientific analysis.

[Baroness Blower (Lab)]

My Lords, on page 201 of the Annual Report and Accounts of the Department of Health and Social Care, the Comptroller and Auditor-General says that

“I have been unable to obtain sufficient, appropriate audit evidence to support the valuation of the Core Department & Agencies’ and Group’s onerous contract provisions of £1.2 billion”.

Why is the DHSC unable to provide relevant and reliable evidence, and which Minister takes responsibility for this shambolic state of affairs?

[Lord Kamall (Con)]

Interestingly enough, when I had the briefing with the team from the Department of Health and Social Care, I asked a very similar question about the qualification received from the Comptroller and Auditor-General—the C&AG—on limitation of scope. What it meant was that there was not enough audit evidence available for the C&AG to conclude. This stems principally from the fact that we were unable to perform a full stock-take on all items. So many millions of items were bought at the time, there was so much stock that the department could not yet do a full stock-take. The department does have a robust assessment of the risks, but it was important that we got as much stuff as possible, and it was unable to do a full stock-take of the millions of pieces of equipment.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend not recognise that some people have very short memories? If we look back, there was huge demand globally for PPE. The press and the public were screaming for supplies to be provided. People worked round the clock, and of course they ended up paying over the odds in such a situation. Politics is fine, but to try to score points against people who did their best in the interests of public health and who were not bean-counters is really unworthy.

[Lord Kamall (Con)]

My noble friend makes a very important point. We should completely pay tribute to all those who worked as hard as they could during a time of panic. I remember that the leader of the British Medical Association said:

“This really is a matter of life and death. In what is an incredibly challenging time, doctors and healthcare staff should feel as equipped and supported as they need to be able to deliver care for patients.”


You cannot put a price on that. We had to buy equipment from wherever we could to help make sure that we kept our staff safe.

NHS Dentistry

Lord Kamall Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government, further to Healthwatch England’s report What people have told us about NHS dentistry, published on 20 December 2021, what steps they are taking to address the issues faced by those attempting to access NHS dental care.

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

Practices are currently prioritising patients based on clinical need, and a new activity threshold has been set at 85% to safely increase access. A one-off additional £50 million, recently secured for NHS dental services this financial year, will urgently give more people, including children and others who are vulnerable, access to vital dental care. We are working with the NHS, Health Education England and the British Dental Association to improve access through dental system reform.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the £50 million one-off payment for 350,000 appointments is a drop in the ocean compared to the 38 million appointments that have been lost during Covid. The Healthwatch report shows that parents are having great difficulty accessing NHS dentistry for their children, who may be suffering pain and unable to eat, and we know about adults who are indulging in self-care because they cannot find an NHS dentist. When will the Government get to grips with this problem and develop a proper strategy for dealing with it?

[Lord Kamall (Con)]

As the noble Lord will know, anyone can have access to an NHS dentist—they do not have to be registered with the practice in question—and when they are unable to find a practice, they can ring 111 to get information. In addition, over 700 urgent dental care centres remain open across the country.

[Baroness Benjamin (LD)]

My Lords, dentistry is facing an unprecedented challenge. We will not overcome the enormous backlog of treatment and the rising wave of dental staff leaving the NHS unless dentists have a seat at the table and a voice when commissioning decisions are made which affect them and the millions of patients they treat, especially children, for whom tooth decay is the number one reason they are admitted to hospital. Will the Minister tell us whether and how dentists will be represented in the new integrated care systems?

[Lord Kamall (Con)]

I thank the noble Baroness for that question. Following the Bill there has been a debate about the integrated care system—both the integrated care boards, and who should be there as a right, and the integrated care partnership, which works with local authorities and others, including place-based organisations and primary care organisations. We hope that they will all have a voice via the ICP.

[Baroness Gardner of Parkes (Con)]

My Lords, is the Minister aware that so many of the major hospitals are now closing their dental facilities after hours? These facilities were for parents of children who suddenly develop pain—many children hide problems with their teeth until it is so painful that they cannot stand it anymore. It is not good enough: the hours that dentists are able to work and the fact that, on the whole, there is only one dentist per surgery, mean that, every time, they must wait at least six minutes after they have finished with a patient before they can even consider seeing the next one. If more of them could work together, something could be done about this limit on vacancy time—I have brought this up before. The dental people brought forward the idea that, if a certain type of oxygenator were provided, the other would not be needed. Can something more be done?

[Lord Kamall (Con)]

My noble friend raises a very important point. I am sure many people understand that, when we first became aware of Covid, one issue was that, by its very nature, dental care can generate aerosols from the mouth, which presented a specific risk for dental activity. Once more was understood about Covid and its airborne spread, practices reopened in 2020 and were asked to provide urgent dental care. In addition, we have opened 700 urgent dental care centres to help patients in urgent need. You can also call 111. We are also looking at the longer-term reform of dental practice, and are in conversation with the BDA and others.

[Baroness Thornton (Lab)]

My Lords, the target-based NHS system was already unfit for purpose before Covid-19 and is completely incompatible with providing safe and sustainable services to patients as we emerge from the pandemic. Does the Minister agree that dentistry and the state of people’s mouths is becoming a serious issue which shows health inequalities? We are heading towards people who cannot afford dentistry, and their children, having rotten teeth. This is what the Minister must acknowledge and build into the health Bill that is before the House now.

[Lord Kamall (Con)]

We are very concerned about the potential inequalities. NHS England and NHS Improvement are very mindful of the risks of widening health inequalities. That is why, in their guidance, they specifically ask dentists to focus on providing urgent treatment for vulnerable groups and children and to delay planned care. NHS England has provided a flexible commissioning toolkit to local commissioners to help focus the available capacity on those who need it most and to reduce oral health inequalities.

[Lord Flight (Con)]

My Lords, an important point arising today is the absence of dental care for children. This problem has worsened. What specific measures have the Government got in mind to accelerate dental care for children?

--- Later in debate ---

[Lord Kamall (Con)]

My noble friend raises a very important point. We have asked NHS dental practices to meet as many prioritised cases as is safely possible. They are currently prioritising urgent care for vulnerable groups, including children. We hope that the £15 million of additional funding that was recently announced will be targeted at those most in need, including children. If they cannot get access to urgent dental treatment, they can call 111 for assistance and look at the NHS website to identify an NHS dentist.

[The Lord Bishop of Exeter]

My Lords, the report of Healthwatch England states that, of all the areas in the country with lack of access to NHS dentistry,

“the worst affected is Devon, as there are currently no practices showing as taking on adult or child patients.”

Can the Minister assure the House that, as part of the Government’s levelling-up policy, rural communities in Devon and elsewhere will not be further disadvantaged and will have access to NHS dental services?

[Lord Kamall (Con)]

I am sure the right reverend Prelate will acknowledge that one of the things we have learned from Covid, the lockdown and its subsequent impact has been about the health inequalities that exist across the country. Both my right honourable friend the Secretary of State for Health and I believe strongly in tackling inequalities; that is one of the reasons why we are keen that this comes to the forefront of the forthcoming Health and Care Bill. But we acknowledge the inequalities and are working with the NHS and the BDA to address them.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, is the Minister aware that, as a child of a working-class family in the 1940s, I was given a periodic free check on my teeth, as were all children alongside me at my school? Is it not a shame now, when we talk about inequalities and levelling up, that such a facility is not available for working-class children in this country? When will the Government, with their policy of levelling up, set out a programme that ensures an annual check on the teeth of all schoolchildren, regardless of their background?

[Lord Kamall (Con)]

I thank the noble Lord for that suggestion, which I will take back. The BDA, the NHS and the Department of Health and Social Care are well aware that we need to tackle a raft of health inequalities in this country, including in dental care. The Covid pandemic has highlighted some of those inequalities, and so we can focus on them.

[Baroness Redfern (Con)]

My Lords, I welcome the Government’s much-needed boost and the extra £50 million. I particularly welcome the allocation to my area, the north-east and Yorkshire, of over £9 million. One of the six aims of the national contract reform is regarding dentists. With the current contract, how will the Government set a date for the end of the UDA framework? When might it be rolled out to help with recruitment and retention of NHS dentists, as there is urgent need for reform?

--- Later in debate ---

[Lord Kamall (Con)]

We are looking at long-term reform and are in conversations with the BDA, especially around looking at the current UDA system and understanding its complexities. We have a number of different plans for dentistry, looking not only looking at its contracts but at recruitment and retention of people locally and from overseas, where it is ethical to do so.

[Baroness Jolly (LD)]

My Lords, at present, very few dentists in Cornwall take NHS patients at all. There is very poor public transport and travel distances to access a dentist are invariably more than 20 miles. When does the Minister anticipate patients in Cornwall—and in Devon, as we heard—being able to access NHS dentistry?

[Lord Kamall (Con)]

The briefing I have is that, if you are unable to access an NHS dentist, you should be able to access one at one of the 700 urgent dental care centres or ring 111 for advice. If that is not happening, I hope noble Lords will write to me, so I can look into it.

Covid-19: Antiviral Pills

Lord Kamall Excerpts

Monday 31st January 2022 Lords Chamber

[Baroness Rawlings]

To ask Her Majesty’s Government which, if any, antiviral pills for the treatment of COVID-19 they plan on making available for distribution in the United Kingdom.

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

Me again. The UK Government have agreed deals to secure a total of nearly 500 million patient courses of the oral antiviral treatments molnupiravir and Paxlovid in our efforts to reduce the impact of Covid-19 across the UK. We were the first country in the world to begin rolling out oral antivirals in the community, which we are doing through a new national study called PANORAMIC and through Covid medicine delivery units for those at the highest risk of Covid-19.

[Baroness Rawlings (Con)]

My Lords, I thank the Minister for his useful Answer, as always. We are grateful to Kate Bingham and the Prime Minister for making the anti-Covid vaccinations available to all of us on the National Health Service. However, the Covid tests to travel abroad were only available privately. In answer to previous Questions and now, the Minister told us that HMG have bought the new antiviral pills, molnupiravir and Paxlovid. I just want to make sure, by asking the Minister, whether these pills will be available only on the National Health Service or privately.

[Lord Kamall (Con)]

At the moment, they are available to anyone in an at-risk group and unable to have a vaccine. In addition, we have started a new trial to get more data—called the PANORMIC trial—including anyone over 50 who has tested positive through a PCR test and anyone in an at-risk group between 18 and 49 who catches Covid. The difference between vaccinations and antivirals is that vaccinations are there to stop someone getting Covid, or to make sure that they do not suffer the worst symptoms, whereas antivirals are given to anyone who has tested positive.

[Baroness Wheeler (Lab)]

My Lords, we welcome the news over the weekend about high-risk patients getting the Paxlovid antiviral drug from 10 February through the NHS if they test positive. There are also very positive results about the Molnupiravir drug, which has already been rolled out to high-risk patients through the Oxford University study. The British Liver Trust, Kidney Care UK and Cystic Fibrosis Trust are leading urgent calls for people suffering with these very vulnerable conditions to sign up to take part in the on-going clinical trials, which are essential in gathering further evidence and information. What action are the Government taking to ensure that doctors and patients have the latest information about the drug and the trials and to combat the ill-informed and dangerous antiviral scepticism that we know will be forthcoming?

[Lord Kamall (Con)]

I thank the noble Baroness for her question and for making people aware of the PANORAMIC study. One of the things that we are trying to do is look at the communication programme. If we look at the antiviral taskforce, we are looking at a number of different communication channels. For example, tomorrow morning, I believe, I will be co-chairing a webinar with many black and minority ethnic groups and activists to see how we can roll out and get their support in rolling out to those communities. We are looking at a number of different channels and particularly working with a lot of the charities which specialise in things such as chronic kidney disease, liver disease—I have a long list of conditions, which I will not read out now.

[Lord Scriven (LD)]

Priority test kits are meant to have been sent to people with immune conditions, so that they get the antivirals within five days of having Covid symptoms. Tens of thousands of people have not got these priority tests and, as Leukaemia Care has said, patients have been sent round in circles having to make up to 20 phone calls to get the test kits. Why has this mess arisen and what are the Government doing to solve it as a matter of urgency?

[Lord Kamall (Con)]

I thank the noble Lord for making me aware of this. I was not aware of this. I was told test kits were available to anyone who was considered immunosuppressed or vulnerable in advance. Given what the noble Lord has said, it is important that I investigate and write to him.

[Baroness Meacher (CB)]

My Lords, I am not aware of any medication at all for the treatment of chronic fatigue as a result of Covid. What is the relevance of the recent research into the microscopic damage to the lungs caused by Covid? Are the Government funding any research into finding medications that could cure chronic fatigue?

[Lord Kamall (Con)]

One of the interesting things about having this role is the number of different stakeholders I speak to and all the wonderful research into vaccines and antivirals for different conditions. I am not aware of any current research into the condition that the noble Baroness refers to. However, just because I am not aware, does not mean it is not happening. I will find out and write to the noble Baroness.

[Lord Bethell (Con)]

My Lords—

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[Lord Boateng (Lab)]

My Lords, the Government have long said that the problem with vaccines globally has been not supply but distribution. What proposals will the Government bring forward to illustrate how the antivirals will be distributed and supplied globally?

[Lord Kamall (Con)]

That is a very good question. Clearly the focus up until now has been on making sure that vaccines are distributed worldwide working with G7 and G20 partners. When we talk about health partnerships, one of the issues that many other countries raise with us is the supply of vaccines and local manufacture. To date, I am not aware of conversations about antivirals, but I will certainly look into that.

[Lord Geddes (Con)]

My Lords, I am not quite certain whether my noble friend answered my noble friend Lady Rawlings’s question as to whether these antiviral pills can be purchased. He mentioned that they would be available for the vulnerable, but what about the purchase element?

[Lord Kamall (Con)]

I am afraid I do not know the answer to that, but I will write to both my noble friends.

[Lord Bethell (Con)]

My Lords, antivirals have shown their efficacy against HIV, hepatitis C, influenza, and now, thanks to the Eddie Gray Antivirals Taskforce, against Covid—but they work only if they attack the disease at the very earliest stage, often before symptoms even manifest themselves. We are going to see a great investment in antivirals, so what steps is the NHS taking to adapt to this new form of medicine distribution and to get antivirals into the hands of patients at the earliest possible stage? Five days simply is not early enough.

[Lord Kamall (Con)]

I thank my noble friend for all the work that he put in during his time as the relevant Minister in pushing the Antiviral Taskforce and ensuring the rollout of these antivirals. Since December, patients who are eligible and receive a positive PCR result are referred for treatment into a Covid medicines delivery unit. In addition, the UK Health Security Agency has sent PCR tests to around 1.3 million patients who are eligible for antivirals—bearing in mind what the noble Lord, Lord Scriven, said, which I need to look into. We are also working with the devolved Administrations to look at whether the NHS could deploy antivirals to a wider group of patients, with an emphasis on rapid identification and treatment, and assuming that we see positive results from the Panoramic trial.

[The Earl of Clancarty (CB)]

My Lords, following on from my noble friend Lady Meacher’s question, what help is to be given to the estimated one million-plus people in the UK with long Covid, in terms of both rehabilitation and financial support? This is a major concern.

[Lord Kamall (Con)]

The noble Earl will be aware, given all the news stories around it, that many people will be concerned about the effects of long Covid. I know there have been studies and interesting stories in the press about the long-term impact. As I said to the noble Baroness, I will find out what is being done in detail and write to her.

[Lord Young of Norwood Green (Lab)]

My Lords, for the Minister’s information, a trial is currently going on using xenon gas and MRI scans, which is looking particularly at the damage to lungs as a result of long Covid. It might be useful for him to get his officials to advise him on this.

[Lord Kamall (Con)]

I thank the noble Lord. Maybe next time I get a question like that I will ask the Lord Speaker whether I could delegate the answer to him.

Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, if the noble Baroness, Lady Pitkeathley, is the general, we are all her foot soldiers. There have been some excellent speeches. In particular, the noble Baroness outlined for us what are, I hope, the unintended consequences of what the Government are doing in their proposals about discharge to assess. It does not seem right that it is up to this House to put back the rights and abilities of carers to do their caring without too much impact on themselves. I hope the Minister heard what the noble Baroness, Lady Pitkeathley, and others, such as the noble Lord, Lord Warner, said about that. We heard from the noble Baroness, Lady Hollins, how much worse the situation has been for so many carers—in particular those who care for people with learning disabilities or mental health problems—during the pandemic, when, unfortunately, it was necessary to withdraw certain services that they normally rely upon. I hope that, when we have heard the Minister’s response, we can come back to Clause 80 on Report if we are not satisfied with the Government’s response, because the situation is not good, even now.

I am grateful to Carers UK and Barnardo’s, which have given us some dreadful horror stories about the situation of carers when the person they care for is being discharged from hospital. One of the worst that I read about was when the carer was only told when the person being discharged was actually in the ambulance on the way home. They had to run around trying to get a commode, which that person would certainly need when they got home. The situation is so much worse for a young carer who does not necessarily know their way around the system in the same way that an adult carer might. Although I support all the amendments in this group, that is why I added my name to Amendment 269 in the name of the noble Lord, Lord Young of Cookham. It is all about the need to identify and ensure appropriate support for young carers before a patient leaves hospital. I really take on board my noble friend Lord Scriven’s view that you should not do it at the end of the stay in hospital: you should start thinking about it when the person goes into hospital.

Caring for a sick or disabled person, no matter how strong the bonds of love, is a difficult and exhausting challenge. It is hard enough for adults, the majority of whom, as we have heard from my noble friend Lady Tyler, are women; we have heard about the effects on their finances and pensions. Many adults do not feel equipped to do it adequately, and it is even harder for children. How can a child be expected to have the knowledge and skills needed to care adequately for an adult and, at the same time, benefit from education and prepare for their own future life?

We know that circumstances sometimes put children in this position, but it is essential that public services provide as much support as possible. However, we know that, although it is estimated that there might be around 800,000 young carers in the whole of the UK, sometimes even their school does not know who they are. In some cases, the young carers themselves prefer it that way, because they see it as a stigma or something that their friends might not quite understand; but it does mean, of course, that they do not get the help that they need, and neither does the person being cared for.

I agree with the noble Baroness, Lady Wheeler, that a proper assessment must be done either before the patient leaves hospital or very promptly post discharge. I hear all the problems about that; yet, carers, according to an ONS report in 2017, save the state more than £60 billion every year, which is more than is spent on formal caring—although it is not clear how much of that is saved by young carers. On the other hand, it has been assessed that a family with a young carer has an income, on average, £5,000 a year lower than other families—so these families are often poor too.

Local authorities already have considerable duties relating to identifying, assessing and supporting young carers, and we have heard of at least two very good schemes. Many of them do it very well, despite the fact that some of these young people are hard to find. However, it is essential that some duties also apply to the NHS, and they must not be lost in the move to integrated care systems. Adequate focus must be placed on these duties by the ICB having a rigorous system or framework to ensure a process for assessment. As my noble friend Lord Scriven pointed out, this is step one in ensuring that needs are subsequently met.

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

My Lords, I thank all noble Lords for their contributions to this debate. We are looking to move towards a more integrated care system for precisely some of the reasons that noble Lords have laid out: that a patient is discharged by a hospital but it is not done in an integrated way. As the noble Baroness, Lady Wheeler, said, during the pandemic local authorities and the NHS developed innovative ways to support better discharge from hospital to community care, and what we want to see is discharge to assess as one model. In some cases, it might be the best model: for example, where people are over the age of 80, the longer they stay in hospital, the more you see muscular deterioration. That is one of the reasons given for why, in some cases, discharge to assess might be the most appropriate.

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[Lord Warner (CB)]

I am sorry to interrupt the Minister’s flow. I have been listening very carefully to this. What I do not understand is what happens if there is not enough resource in the local authority. Local authorities have had pretty poor treatment over the last decade compared with the NHS. If there is not enough resource to either do an assessment or meet the needs of that assessment, does it then fall to the NHS to plug the gap if it wants to get the person out of hospital? We would like a little more clarity on that particular aspect.

[Lord Kamall (Con)]

I thank the noble Lord for his question. The goal is to make sure that the NHS and local authorities work better together. The noble Lord talks about resources. One of the reasons for the levy—whatever one thinks of it—is to help plug that gap and to make sure that there is more money going into social care as well.

Turning to the points made about the term “carer”, we believe that the term is used to capture the whole spectrum of carers, including children and adults who care, unpaid, for a friend or family member. By not imposing a statutory definition, we avoid inadvertently excluding groups, and ensure that ICBs and NHS England promote the involvement of all types of carers and representatives.

Turning to the last amendment in this group, existing legislation already requires local authorities to carry out an assessment of need for all young carers upon request or on the appearance of need. This assessment must consider whether it is appropriate or excessive for the young carer to provide care, in the light of the young carer’s needs and wishes. Indeed, as some noble Lords have said, sometimes what happens is that the hospital may decide it is appropriate but those who are supposed to be doing the caring at home do not feel they have the ability.

We hope that under this, as part of the discharge planning, the current discharge guidance can set out any considerations that should be given to young people in the household who have caring responsibilities. We want to strengthen current processes in respect of young carers too. We are also working with the Department for Education to ensure that protections for young carers are reflected in the new guidance, including setting out where young carers should have a needs assessment arranged before a patient for whom they provide care is discharged, or as soon as possible afterwards.

Given the comments from noble Lords, especially the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Warner—sorry, I should say, General Pitkeathley and Major Warner—clearly there are still some concerns over how this will work. It would be worthwhile having some more conversations on this issue to better understand how we see integrated care working, where there may well be gaps in our understanding and whether we can help to close the gaps between the two sides.

[Baroness Wheeler (Lab)]

My Lords, it has been an excellent debate and I thank all noble Lords for their contributions, all strongly supporting this important group of amendments, which would ensure that the needs of both patients and carers were fully taken into account in the discharge process and that Clause 80 does not just wipe away carers’ rights—legal rights that have been hard-fought for. Although I am pleased that the Minister talked about further guidance being developed and co-produced, I cannot see how that will address the problem of replacing carers’ rights, which are being taken out of this Bill and need to be included in it.

I am also a bit disappointed that the Minister did not respond to my noble friend Lady Pitkeathley or give her the reassurances that she was seeking over the deep concerns about the expectation in the current guidance that unpaid carers will need to take on even more unpaid work. She made her views quite clear on this: it is paid work that unpaid carers need, not to be forced on to or to stay on benefits. They can take up jobs only if they get the care and support that is needed in the home or from the services that they need.

Noble Lords have made it clear that the discharge to assess model has to be matched with proper funding and community and healthcare services. The noble Baroness, Lady Hollins, reminded us of the importance of this in respect of the carers of people with learning difficulties, who face particular problems in caring. It is also overwhelmingly clear that noble Lords strongly support the establishment and the carrying forward into the Bill of existing carers’ rights.

I hope the Minister will meet urgently with my noble friend Lady Pitkeathley, Carers UK and others involved in these amendments, both to address the fundamentally wrong assumptions in the guidance about the role of unpaid carers and to ensure that their existing hard-won legal rights that have been taken away will be included. He also needs to provide the evidence called for by my noble friend on the overall assumption the Government are making that the discharge to assess process is better for carers than the existing rights that they have; it is not. This is a key issue that we will return to on Report, so I hope some action will be forthcoming from the government discussions between now and then.

On my own amendment, I would like to have heard a lot more reassurances about the timescales and timelines involved in the discharge process. I thank the noble Baroness, Lady Altmann, and in particular the noble Lord, Lord Scriven, for his support, and for explaining why this issue is important and how, practically, it would work with local authorities. On young carers, I particularly thank the noble Lord, Lord Young, and everybody who has participated in that.

I remind the Minister of the point from the noble Baroness, Lady Meacher: in the discharge process and in the assessments of carers it is really important that the question be asked whether they are able to care and whether they want to care. I would like the Minister to take up that issue. I know that carers feel strongly about this, but quite often, even if they are asked, no notice is taken and they just have to get on with it and nothing else happens. I would particularly like to see a response to that.

On those few points, I beg leave to withdraw my amendment. I hope the Minister acts quickly to meet carers and their representatives.

Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

Moved by

[Lord Kamall]

225A: Clause 4, page 2, line 35, leave out from “objectives” to “, and” in line 38 and insert “specified by the Secretary of State under subsection (2)(a) for NHS England must include objectives relating to outcomes for cancer patients”
Member’s explanatory statement
This amendment changes the focus of the cancer outcomes objectives so that they cover matters other than treatment (e.g. early diagnosis).

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

My Lords, I will also be moving Amendments 225B and 225C in due course. Clause 4 sets a requirement for the Secretary of State to include objectives relating to cancer outcomes in the mandate to NHS England, and for these objectives to have priority over other objectives relating specifically to cancer.

I first thank John Baron MP in the other place, who introduced this clause, and noble Lords for their support in ensuring that the Bill best delivers on our shared intention of improving outcomes for cancer patients. I also thank the cancer charities that have contacted me to express their views, and the noble Baroness, Lady Morgan of Drefelin, for her engagement. The Government have worked with Mr Baron, NHS England and stakeholders to ensure that we deliver the greatest benefits for cancer patients while minimising the risk of unintended consequences. Amendments 225A, 225B and 225C, tabled in my name, have the full support of Mr Baron, and I strongly encourage your Lordships to support them.

In recognition of the range of services offered to cancer patients, Amendment 225A will ensure that the scope of possible outcomes-driven objectives is broad enough to capture all cancer interventions, such as screening programmes or targeted lung health checks, not just those relating specifically to treatment. Connected to this, Amendment 225C will ensure that these objectives have priority over any other objectives relating to cancer, not just those relating to cancer treatment.

Amendment 225B, meanwhile, makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer. When it comes to setting priorities for NHS England, including on cancer, it is vital to consider the outcomes that they should be directing the NHS to achieve. Improving outcomes means boosting survival rates—that remains our overriding aim. But the outcomes that matter to cancer patients are not limited to survival. They also include improving the quality of life for those living with cancer and the patient experience of those being treated.

We want to make sure the objectives we set benefit the outcomes of all cancer patients, whether the objectives relate to screening, early diagnosis or treatment. This is crucial as screening and early diagnosis interventions are one of the most effective ways of improving outcomes and chances of survival. I hope your Lordships can support these amendments.

[Lord Moylan (Con)]

My Lords, I greatly welcome the amendments proposed by my noble friend. In fact, I put my name to the equivalent amendments earlier, proposed by my noble friend Lady Morgan of Cotes. I rise to speak to my Amendment 294, the purpose of which is to draw attention to the dire state of the services and treatment offered to people suffering from cancer of the pancreas—although I could also say that there are other, equally forgotten and equally deadly cancers, such as bile duct cancer, that deserve a debate as well. I am grateful to my noble friend Lord Vaizey of Didcot and to the noble Lords, Lord Patel and Lord Aberdare, for their support of the amendment.

Many of us have seen family members and friends fall prey to this disease. Pancreatic cancer is the deadliest common cancer. It affects 10,000 people a year across the UK, and more than half will die within three months. Three in four will die within a year. Vague symptoms, lack of a simple early test, and low symptom awareness among both the public and primary care professionals result in three in five people with pancreatic cancer being diagnosed at a late stage, when curative treatment and life-saving surgery are no longer possible.

Research into pancreatic cancer has been underfunded for decades: it receives only 3% of the UK cancer research budget, despite being the deadliest common cancer. The result is that pancreatic cancer has the lowest survival rate of all common cancers, with five-year survival rates less than 7%. Five-year survival in the UK lags behind the rest of the world, with the UK ranking 29th out of 33 countries with comparable data. These survival statistics have barely improved in decades.

In addition, there is an unacceptable variability of services for pancreatic cancer sufferers, depending in part on geography, with those living near the few specialist centres able to access some services barely available elsewhere.

I wrote last year to my noble friend Lord Bethell with a particular suggestion being promoted by the small but excellent charity Pancreatic Cancer UK. In due course, on 1 December, I received a reply from my honourable friend Maria Caulfield, who said that NHS England and NHS Improvement had launched an audit of pancreatic cancer services with a view to reducing variations in treatment and improving outcomes. That is wholly welcome. The information we have nationally on pancreatic cancer treatment in the NHS is woefully poor. An audit is a good place to start. But she went on to say that the first data were expected in 2023—not the report, not the action plan that we need, and not the funding allocation, merely the first data.

My amendment seeks to impose certain reporting obligations on the Secretary of State, but its real purpose, and the real purpose of this debate, is to inject some urgency into the Government and the NHS. We cannot afford to wait years just to begin to understand the state of pancreatic cancer treatment and care, let alone to take action to improve outcomes. Pursuing the audit with urgency and dispatch should be a top government priority.

There is one thing the Government could do right away that would at least alleviate the suffering of pancreatic cancer patients—and this indeed is the subject I wrote to my noble friend Lord Bethell about at the urging of Pancreatic Cancer UK. The symptoms caused by pancreatic cancer have a very distressing impact. In particular, people are often unable to digest their food, ultimately starving the body of nutrients and calories, leading to rapid weight loss, malnutrition and loss of muscle mass.

The solution to these symptoms is pancreatic enzyme replacement therapy—PERT. PERT comes in tablet form; you take it with your food. It replaces the digestive enzymes that many people with pancreatic cancer can no longer produce. Taking the tablet helps food to be digested and absorbed by the body, and can vastly improve people’s quality of life. It can also, crucially, help them to gain the strength needed to undergo treatment. If people have lost weight and are too weak, they are sometimes not able to have surgery for that reason. NICE guidelines clearly recommend PERT for people with pancreatic cancer, whether the cancer is operable or inoperable, and there is widespread clinical consensus on its effectiveness. It is widely available and is cost-effective: it costs the NHS just £7 per day per patient.

However, a recent study has shown that only half the people with pancreatic cancer across the UK are prescribed PERT. The May 2021 RICOCHET study, undertaken by the West Midlands Research Collaborative, found that 50% of pancreatic cancer patients were not being prescribed the tablet they needed to digest food. The key reason people are not being prescribed PERT currently is a lack of dissemination of specialist knowledge about pancreatic cancer and the benefits of PERT to general healthcare settings. PERT is more likely to be prescribed in specialist surgical centres than in general hospitals, meaning that people whose cancer is operable are more likely to be prescribed PERT than those whose cancer is inoperable, because people whose cancer is operable are more likely to be moved to a specialist setting.

However, three in five people with pancreatic cancer are not diagnosed until their cancer is at an advanced stage and no longer operable, so they will tend to be treated with palliative care in a non-specialist setting. This means they will be far less likely to be prescribed PERT than if they had been diagnosed early.

What I would hope to hear my noble friend the Minister say this evening is that without waiting for the results of the audit, he will immediately set a national priority that PERT should be routinely prescribed as a feature of pancreatic cancer care. Without setting this focus and without corresponding leadership from national and local health bodies, knowledge and expertise will continue to spread far too slowly for the people with the quickest-killing cancer.

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[Baroness Merron (Lab)]

My Lords, we are very pleased to support the government amendments that we have heard outlined. Crucially, they focus on cancer outcomes. As the noble Baroness, Lady Morgan, underlined, that includes survival, quality of life, experience of treatment, end-of-life care as well as diagnosis—in other words, the whole experience in treating somebody as a whole person on a journey that they may have to face. I congratulate the Minister on bringing the amendments forward. I also thank the noble Lord, Lord Moylan, supported by the noble Lords, Lord Aberdare and Lord Vaizey, and others, for highlighting the fact that pancreatic cancer has such an aggressive nature, and yet the symptoms are so silent and often misunderstood that it presents a particular challenge in the context of the care that we are speaking of today.

A focus on outcomes that covers matters other than treatment will be particularly crucial following the backlogs that the pandemic has inevitably led to, with delays in people seeking check-ups and treatment. Macmillan has let us know that more than 31,000 people in England are still waiting for their first cancer treatment, and it has also said of the Bill that for those living with cancer

“not a lot will look different.”

It is therefore crucial that the Minister assures noble Lords that stakeholders are supportive of the changes outlined in this group.

On the point about survival rates lagging behind those of other countries, that is not because the National Health Service is worse than other healthcare systems at treating cancer once it is detected but because it may not be as good at catching cancers in the crucial early stages. In other words, late diagnosis lies behind our comparatively poor survival rates. A key advantage of focusing on outcome measures is that it will give healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of this new focus is that it will better align NHS priorities with patient needs, which, after all, are core to our discussions on the Bill today.

I have a final and gentle word for the Minister to back up the introductory comment of the noble Baroness, Lady Walmsley. It is of course usual to consult the Opposition and others in advance to ensure that amendments are acceptable and do what is required—in other words, to strengthen the case. I know that this did not happen until very late in this case, and I am sure the Minister will not wish to repeat that practice. In summary, however, we very much welcome these amendments.

[Lord Kamall (Con)]

I thank the Opposition Front Benches for being so gracious given the fact that we notified them late and did not use the correct procedure. I apologise for that once again and I know that the Bill team also apologises for it. We are all on a steep learning curve, as I am sure all noble Lords acknowledge. I thank both noble Baronesses. I hope the lesson has been learned, and we will not have an excuse next time.

I will address Amendment 294 before I come to our amendments. I thank my noble friend Lord Moylan for tabling it. To reassure him, the pancreatic cancer audit is included in the national cancer audit collaborating centre tender, which is currently live. Some reporting timelines are included in the specification for this audit, developed in partnership with NHS England and NHS Improvement, but I am told that during a live tender the document is commercially sensitive and cannot be shared beyond the commissioning team, as this could risk jeopardising the procurement process. The future contract is anticipated to start in autumn of this year. However, it is not possible to confirm the timelines for a new national audit topic for pancreatic cancer until the procurement completes and the contractual deliverables are signed. Unfortunately, therefore, this cannot be aligned with the passing of the Act.

My noble friend will be aware that NICE clinical guideline NG85 recommends that pancreatic enzyme replacement therapy, or PERT, should be offered to patients with inoperable pancreatic cancer and that consideration should be given to offering PERT before and after tumour removal. NICE acknowledges that this is a priority area for improving the quality of health and social care and has included PERT in its quality standard on pancreatic cancer.

We have taken and will continue to take steps to support Pancreatic Cancer UK’s campaign to encourage greater uptake of PERT by doctors treating pancreatic cancer patients, in line with NICE guidance. We are in the process of commissioning a PC audit and, while the scope of this is not confirmed, we will certainly include this in the scoping of the topic. As I said, NICE acknowledges this as a priority area and, while its guidelines are not mandatory for healthcare professionals, the NHS is expected to take them fully into account in ensuring that services meet the needs of patients.

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[Lord Moylan (Con)]

My Lords, before my noble friend sits down, on behalf of people who are currently suffering from pancreatic cancer or who might be diagnosed with it in the next few months, is anything going to happen faster in relation to dissemination of knowledge and prescription of PERT as a result of this debate than would have been the case had we not raised this with him?

[Lord Kamall (Con)]

I am afraid that I am not entirely sure of the answer to that, but I hope that we have raised awareness. I am very happy to have a conversation with my noble friend to see what more can be done, if anything.

Amendment 225A agreed.

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Moved by

[Lord Kamall]

225B: Clause 4, page 2, line 39, after “relating” insert “specifically”
Member’s explanatory statement
This amendment makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer.

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Moved by

[Lord Kamall]

232: Clause 136, page 112, line 10, leave out “an Act of” and insert “a Bill in”
Member’s explanatory statement
This amendment makes a drafting change to reflect the fact that consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 is given in relation to an Assembly Bill rather than an Assembly Act.

[Lord Kamall (Con)]

My Lords, I will speak to two minor technical amendments, Amendments 232 and 312. These amendments, which are made to Clause 111, in relation to HSSIB, and Clause 136, in relation to international healthcare agreements, do not impact the policy of either clause. They simply amend the drafting so that references are made to an Assembly Bill rather than an Assembly Act in relation to Northern Ireland. I beg to move the first of these minor technical amendments, Amendment 232.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I think now would be a convenient moment for her to speak.

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[Baroness Thornton (Lab)]

My Lords, I am extremely grateful to the noble Lord, Lord Sharkey. Several months ago, some of his staff came to talk to me about the international healthcare part of the Bill. I said pretty much what the House decided two and a half years ago, which the noble Baroness, Lady Brinton, described. I said that we would be very sceptical of it, because we had to cut a Bill in half all those years ago to take out the international bit and leave in the European and Swiss bit because of the powers that it gave the then Secretary of State to make agreements with persons—without specifying who they might be. I remember it very clearly. So when I saw that the noble Lord had put down clause stand part, I regretted that I had not put my name to it at that time, because I realised that we would have to address this aspect of the legislation. I will not object at all to the two minor amendments, as I realise that they are simply drafting amendments, but unless we can resolve this in some way which deals with the powers, I fear that we will return to this on Report, and we will certainly support a move to remove this clause from the Bill.

[Lord Kamall (Con)]

My Lords, I am grateful to the noble Lord, Lord Sharkey, and others for their comments and for their engagement with the Bill team on this issue. We currently have only limited healthcare agreements with countries outside Europe. They support people from the UK to access medically necessary healthcare but do not always provide comprehensive cover for those who need it. The powers included in this clause will enable the Government to implement comprehensive reciprocal healthcare agreements with countries around the world, not just with the EEA and Switzerland. This will allow the reimbursement of healthcare costs and the exchange of data to facilitate a reimbursement process. By implementing such agreements, we hope that we can better support people when they are abroad. We have listened to concerns previously expressed in the House, so the Bill will also remove Section 1 of the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which provided a freestanding payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland. This is no longer needed, following EU exit.

We are replacing this power with regulation-making powers which can provide for payments to be made in two circumstances: one, to implement healthcare agreements, and two, in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of that agreement and the Secretary of State determines exceptional circumstances exist to justify payment. These are not the same powers that were originally drafted in the 2019 Bill. We have listened to Parliament and limited the scope of the powers to those necessary to deliver the policy intention. We have, for example, revoked the unilateral payment powers, which would enable the Secretary of State to make wide-ranging payments for healthcare outside healthcare agreements. The UK recently successfully concluded a trade and co-operation agreement with the EU, which includes comprehensive reciprocal arrangements. Therefore we see this as an appropriate time to tailor existing powers so they allow us best to support the healthcare needs of UK nationals across the world.

We hope that these legislative measures will allow us to strengthen existing agreements with non-EU countries or form other healthcare partnerships should we wish to in future. This includes looking to improve our healthcare co-operation with key international partners, the Crown dependencies and our overseas territories. We also want to offer more healthcare cover to UK residents travelling abroad for tourism or short-term business purposes, similar to the arrangements available to them when they visit EU countries.

I take this opportunity to confirm that there are no Henry VIII powers in this clause; they were removed during the passage of the Bill in 2019 and have not been put back. In response to the question of the noble Baroness, Lady Finlay, the Bill requires consultation with the devolved Administrations over the drafting of regulations made under the powers in this clause, and we are pleased that the devolved Administrations have all agreed to recommend that legislative consent is granted for these provisions.

In addition, the negotiation of international health agreements is reserved, and the devolved Administrations have a role to play in implementing those agreements. That is why we laid amendments in the House of Commons on Report of the Health and Care Bill. These amendments give the devolved Administrations power to make regulations in the areas of devolved competence within reciprocal healthcare.

As we are all too aware, healthcare co-operation between countries is a vital aspect of the global society we are a part of. Reciprocal healthcare provides safeguards and support for our most vulnerable as well as greater opportunities to travel, for work or leisure. I thank the noble Lord, Lord Sharkey, for his suggestion that we have a meeting before Report for further conversation.

Amendment 232 agreed.

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Moved by

[Lord Kamall]

232A: Clause 140, page 116, line 41, leave out from beginning to end of line 9 on page 117 and insert—
“(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;(b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”Member’s explanatory statement
This amendment de-couples the costs that accrue towards the care cap from the costs specified in the budgets and simplifies the drafting for determining those costs that accrue.

[Lord Kamall (Con)]

My Lords, I will speak to Amendments 232A, 232B, and 234A to 234L in my name, made in relation to Clause 140. In the course of the detailed work on the operational guidance on charging reform in partnership with local authority representatives, it has become apparent that the existing legislative framework leads to unfair treatment of local authority-supported individuals in some areas and proffers incentives for self-funders in others. The intention of these amendments is to remove this. This applies even before this Bill, or whatever charging scheme we come up with, comes into effect.

Noble Lords may be aware that everyone who wants to meter towards a cap on personal care costs must have a needs assessment to ensure they have eligible needs. If there is a delay in the needs assessment through no fault of the person requiring care, they may wish or need to begin to pay for care before the local authority is able to intervene. At present, Clause 140 would enable self-funders to start metering from the point they request an independent personal budget, but the clause does not contain an equivalent provision for those whose needs are expected to be met by the local authority. These amendments will make the position the same for those whose needs are met by a local authority as for a self-funder, as well as clarifying that metering for those whose needs are being met by a local authority will be at the amount the local authority charges.

The amendments will also decouple how a local authority decides what meters towards a cap from the personal budget and independent personal budget. There are several practical benefits of this. Among the most important is ensuring that, having had an independent personal budget set by a local authority, nobody has a perverse incentive not to meet their needs. Without the amendments, somebody would meter the amount they are expected to spend set out in their independent personal budget even if they then purchased less care in order to save money.

The amendments also mean that any spending to meet agreed eligible care needs would meter towards a cap at the amount it would cost the local authority to meet those needs, where they are met by the local authority at the amount charged by it. This would happen even if it was omitted from the personal budget or independent personal budget for some reason.

Finally, there is an amendment to make a minor clarification of the circumstances in which an independent personal budget must be provided by a local authority and what the personal budget and independent personal budget must include.

I look forward to this debate and I am grateful to many noble Lords who, I am sure, wish to speak on this important matter.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baronesses, Lady Brinton and Lady Campbell of Surbiton, will be speaking remotely. I invite the noble Baroness, Lady Brinton, to speak now.

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[Lord Davies of Brixton (Lab)]

My Lords, I just want to contribute to this debate. I fully support the remarks of my noble friend Lady Thornton. I was particularly struck by her dissection of this Government’s totally preposterous claim to have a plan for social care. They do not have a plan. All they have is a regressive tax and a broken promise.

I am tempted by the remarks of my noble friend Lord Lipsey to enter into a broader debate on these issues. Clearly, this issue is not going to go away. This is not the end and the issues that were raised will come back again and again until we move towards something fairer and more comprehensive. I cannot resist saying that I am unconvinced that deferred annuities will have any part in any sort of mass market provision of care. As a product, they are fatally flawed, in my view.

My noble friend’s remarks also made me think of the extent to which this debate is taking place while ignoring the key factor in these issues, which is housing or, rather, property management. That is really what we are talking about, but we do not mention it in the context of these debates, which is unfortunate. I am glad my noble friend raised these issues. However, I think the substantive point this evening is the imperative of sending this clause back to the Commons where they can reassess it with greater time than they were allowed initially.

Finally, I just want to highlight the revealing and outrageous statement by the Minister in the Commons, Mr Argar. He said the Government

“have always intended for the cap to apply to what people personally contribute, rather than on the combination of their personal contribution and that of the state.”—[Official Report, Commons, 22/11/21; col. 110.]

I do not believe that means-tested benefits are any more money being given by the state than my pension that I get from the national insurance scheme. It is outrageous to cast people as, in a sense, recipients of charity. It is their rights as citizens to have this money, and it is their money; it is not the state’s money. It reveals the Poor Law mindset of this Government.

[Lord Kamall (Con)]

My Lords, I understand the concerns about the lack of debate in the other place on this issue. The Government are putting in place a package of reforms to be implemented in 2023. The introduction of the £86,000 cap on costs is part of a package through which we hope that no one will lose out when compared to the current system. I will get the source that the noble Baroness, Lady Thornton, asked me for. I think that is a reasonable question.

The Government believe that having the cap in place allows people to balance their personal responsibility of planning for later years and puts in place a system where we hope that no one faces unpredictable care costs. Without Clause 140, two people with the same level of wealth, contributing the same amount towards the cost of their care, could reach the cap at very different times, driven not by how much they are spending on their care but how much the local authority is. We wanted to address that perceived unfairness.

Instead, the Government made the decision to offer the same cap for everyone. However, the cost for people with more modest means will be reduced in two important ways: first, through means-tested support, including for those living in their home. This kicks in as soon as someone’s assets fall below £100,000, potentially right from the start of their care journey. We chose to offer the same threshold for means-tested support, no matter where somebody draws on care, because we want to support and encourage people to be able to stay in their own homes whenever they can. That was an ambition set out in our White Paper, People at the Heart of Care.

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[Lord Warner (CB)]

The proposition in relation to the age of 40 was in the report; it has been around for 10 years. It is a bit late in the day to be coming forward with the suggestion that it was an inadequate proposition from the Dilnot commission. Ten years is a long time to discover truth.

[Lord Kamall (Con)]

Perhaps I may move on to Amendment 235, on setting the cap based on the recommendations of the Commission on Funding of Care and Support and moving the implementation date by a year. For local authorities to make a change of this magnitude this year is undeliverable. They have told us that the original plan to implement for October 2023 is already an ambitious target.

Setting the level of the cap has been a fine balance. The Government have had to consider the longer-term cost of reform and what proportion of the future levy revenues to earmark for this purpose and other purposes. Retrospectively to impose a cap on care costs for everyone in the care system and to include their care costs during their lifetimes in the cap calculation is unfeasible.

I would like to have some further conversations with the noble Lord on Amendment 236A, if that is possible. I thank him for some of his suggestions to date. There is a real debate about how feasible a private solution is. I remember in an earlier debate the noble Lord rightly chastising me and saying that it was rather embarrassing for a Labour Peer to propose to a Conservative Peer a private sector solution. That hurt—but I completely understand. If it is possible, I personally would have been open to it, but the Government maintain that it is not feasible. We will probably need some more discussions.

This clause clearly needs a lot more discussion between now and Report. I could go into more arguments but, given that there was a lack of debate in the other place, I think that it needs more debate and more consideration overall. I am very happy to have more round tables with the Bill team, the charging team and noble Lords to explain the case, and for noble Lords to decide whether it is an acceptable case or still to disagree with it. With that in mind, I hope that noble Lords feel sufficiently reassured not to press their amendments at this stage and to allow the clause to stand part of the Bill. I beg leave to withdraw my amendment.

Amendment 232A withdrawn.

NHS: Nurse Recruitment

Lord Kamall Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord Clark of Windermere]

To ask Her Majesty’s Government what plans they have to increase the number of nurses working in the NHS.

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

The Government are committed to increasing nurse numbers in the National Health Service in England. We are on target to deliver this commitment by the end of the Parliament. We are increasing domestic recruitment, expanding nursing apprenticeships, increasing ethical international recruitment and taking action to improve retention across the NHS. Nurses employed by NHS trusts and clinical commissioning groups have increased by over 10,900 since October 2020, to almost 310,100 as of October 2021.

[Lord Clark of Windermere (Lab)]

My Lords, I very much welcome that increase in the number of nurses in the NHS but it is not enough, as the Minister knows. If we are to meet the needs of the NHS, we shall have to look at our dedicated and committed workforce to see if we can increase the level of retention among them. I know that the Minister talks to nurses and I am sure he hears the same as I do: almost every one will say that every day they are on the wards, they face abuse from patients. Can the Minister look at the best practice, which some hospital authorities may be pursuing, to see whether that can be applied more widely across the NHS?

[Lord Kamall (Con)]

I thank the noble Lord for giving us the opportunity to thank the nurses, and indeed all medical staff, for the incredible work that they do for us, day in, day out. On retaining staff, since 2017 NHS England and NHS Improvement have supported trusts with an intensive retention and support programme. There is also emotional, psychological and practical support for NHS and care staff. It is really important that we not only recruit new staff but retain the great staff that we have.

[Baroness Watkins of Tavistock (CB)]

My Lords, would the Government consider repaying student nurses’ and other healthcare workers’ course fees to retain new, young graduates in the NHS who work, for example, for two or three years?

[Lord Kamall (Con)]

As the noble Baroness will be aware, there is a bursary available to encourage people into nursing but we are looking at completely different training pathways. It is not the old-fashioned way of being trained as you leave school and that being your one chance. We now have a number of different ways in, including degrees and apprenticeships. I could read all the different pathways out but I am happy to write to the noble Baroness with these details.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, it is the turn of the Liberal Democrats and the noble Lord, Lord Jones of Cheltenham, wishes to speak virtually. This is a convenient point to call him.

[Lord Jones of Cheltenham (LD) [V]]

My Lords, the Government signed up to the 2010 World Health Organization code of practice committing to a self-sustaining supply of doctors and nurses in the UK. Yet Patrick Cockburn and Professor Rachel Jenkins point out that the UK still trains proportionally fewer medical staff than other OECD countries. When does the Minister expect us to reach the WHO target, rather than recruiting medical staff trained by countries in much worse situations than ourselves?

[Lord Kamall (Con)]

We do not think we should just have a protectionist view on staff. It is important that we recruit British staff from the UK, but we should not have a policy of British jobs for British workers. There are very good staff across the world. Indeed, in some countries they train more staff than they have places for in their health system so that they become a foreign revenue earner. Many people who have looked at the statistics say that remittances quite often are more effective than foreign aid.

[Lord Hamilton of Epsom (Con)]

Could the Minister say how many agency nurses are being employed by the NHS? Is he not concerned that so many are being employed when they are so much more expensive?

[Lord Kamall (Con)]

My noble friend makes a valuable point about the cost of agency nurses, which is why we have the goal of recruiting 50,000 nurses. We are looking at completely different pathways to ensure that we can encourage people into nursing. I do not have the statistics with me, but I will write to my noble friend.

[Lord Grocott (Lab)]

The Minister referred to ethical recruitment of health service professionals from overseas. Can he explain to us precisely what he means by ethical recruitment from overseas?

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Lord for giving me the opportunity to explain that. It is really important that we do not suck out the best talent from countries, especially those with a shortage of medical staff. We are very clear that we talk to countries that train more staff than they need for their domestic service so that they can come here as foreign revenue earners. We have also published updated guidelines.

[Lord Walney (CB)]

Is it not a real problem that the Treasury has not yet set the budget for Health Education England, given that there are fewer than three months before the new financial year and it has the responsibility for the number of new nurses that are going to be trained in this country?

[Lord Kamall (Con)]

I am afraid I disagree with the noble Lord, because we are on track to reach our 50,000 target, particularly because we are not just using one route in. We are using a number of different routes; people can retrain from other courses, and we have apprenticeships. We are looking at completely different, innovative pathways into nursing.

[Baroness Merron (Lab)]

My Lords, the Government’s own impact assessment suggests that mandatory vaccination against Covid could lead to the loss of some 73,000 NHS staff in England. When designing their policies, did the Government take into account how many nurses might be among this number? Will the Minister take the opportunity of the Health and Care Bill to bring forward a long-term workforce plan to address the shortages of nurses and other staff?

[Lord Kamall (Con)]

I congratulate the noble Baroness on bringing up an issue for the Health and Care Bill. In terms of VCOD—vaccination as a condition of deployment—most NHS staff are vaccinated, and those who are reluctant to be vaccinated are being offered one-to-one conversations with management to see whether they can be persuaded to take the vaccine or be redeployed elsewhere.

[The Lord Bishop of London]

My Lords, over the last two years I have been encouraged by the way in which the NHS has creatively met the mental health needs of nurses and other healthcare workers, encouraging their well-being and recognising what contributes to that. Can the Minister reassure us that the funding that has gone in over the last two years will continue to be put into the NHS, ensuring that we look after the well-being of our staff?

[Lord Kamall (Con)]

That is an incredibly important point, which relates to an earlier point put by the noble Lord about retention. It is important that we look after our staff. We know that the last two years have been incredibly stressful, even more than usual, and that is why we have a number of different ways to help the health and well-being of the staff.

[Baroness Hussein-Ece (LD)]

My Lords, is it not the case that the NHS should never have got into a situation where we are so dependent on international staff from developing countries? Can he confirm whether it is true that the NHS trusts are being paid by NHS England up to £7,000 for each vacant post to try to fill those posts from overseas countries, including India and the Philippines?

[Lord Kamall (Con)]

I cannot comment on the exact numbers, but I will find the answer and write to the noble Baroness. I might add that I am the son of people who came from outside the UK or European Union, and I get slightly concerned with the tone when people say, “Let’s not have foreign nurses in our NHS.” It is important. Immigration plays a brilliant role in this country and always has. If you look at the post-war public services of this country, it was people from the Commonwealth who came and saved our public services.

[Lord Rooker (Lab)]

Can I say to the Minister that more nurses means more uniforms and more garments? The NHS boasts about being the largest employer in Europe, so what action does the National Health Service take to ensure that the cotton in any of the garments used for NHS nurses’ uniforms is not grown in Xinjiang in China? The technology is available to do that; paperwork is not required, and people tell lies. The use of technology would guarantee that we could play our part in making sure that slave labour is not part of the production of our nurses’ uniforms.

[Lord Kamall (Con)]

I hope the noble Lord will forgive me if I tell him that I have not examined nurses’ garments in detail. In terms of provenance, it is important at the moment—and we are doing this on lots of equipment that comes to the UK—to ensure that it is not from regions where there is slave labour, or where the Muslim Uighurs are being persecuted by the Chinese Government. We need to do more; indeed, I have had conversations in the department to find out how we can trace the sources of the products and equipment that we buy to make sure that they are ethically sourced.

[Lord Patel (CB)]

My Lords, the Minister has now said on several occasions that the Government will meet the target of 50,000 nurses. Can he tell us, if the Government do meet that target, what will the remaining deficit be?

[Lord Kamall (Con)]

I am afraid I do not have the answer to that question, but I can certainly look into it. I am not sure what the deficit will be but, as I said, we are on course to recruit 50,000, not just from the UK and from different pathways—not only degrees and apprenticeships—but also from all over the world and not just Europe.

Social Care Sector: Private Equity

Lord Kamall Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord Sikka (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my interests in the register, which states that I am an unpaid adviser to Tax Justice Network.

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

Under the Care Act 2014, it is the responsibility of local authorities to shape their local markets, which are largely made up of privately owned and third sector services. No assessment of the impact of private equity on the sector has been made, but, as of December 2021, 84% of care providers are rated “Good” or “Outstanding”. The market oversight scheme mitigates the risk of a sudden failure of potentially difficult to replace care providers.

[Lord Sikka (Lab)]

My Lords, I thank the Minister for that reply, which is really unsatisfactory because private equity is a disaster for the care home sector. To take one example, HC-One, which is the largest care home operator, is siphoning off 20% of its revenues to offshore affiliates through intra-group transactions, leaving very little for front-line services. Since 2011, it has declared a loss every year except one and paid no corporation tax but paid dividends of £48.5 million. Can the Minister explain why the Government tolerate such abuses? When will there be an independent inquiry?

[Lord Kamall (Con)]

We value the role of independent and third sector care homes. It is important that we have that right mix. Some private companies will include private equity, and it is important not to tar all private equity with the same brush. Private equity plays a role in many companies in turning them around and retaining jobs. The important thing for us is that, if any companies are potentially in financial trouble, we have the market oversight scheme to ensure that, if they go bust, there is an ability to transfer patients elsewhere.

[Baroness Chakrabarti (Lab)]

My Lords, front-line carers often get paid around £9 or £10 an hour, and it is hard to survive on that. Yet last year, Barchester Healthcare’s CEO collected 120 times more than his care staff. What proposals does the Minister have to ensure that public moneys paid to private care homes are used to improve care and staff welfare and not siphoned off to fat cat executives?

[Lord Kamall (Con)]

The CQC has a role in making sure that the care provided to care home residents is of satisfactory quality. As I said, 84% of care providers are rated good or outstanding. The market oversight scheme examines companies that could potentially be in trouble and keeps a close eye on them. There are six stages in the market oversight scheme to make sure that we manage that.

[Lord Flight (Con)]

My Lords, I am sure that the noble Lord, Lord Sikka, is aware of the major benefits to our economy and the provision of social care contributed by the UK’s successful private equity sector. Private capital is driving the development of the UK’s world-leading technology sector and powers the growth of the UK’s dynamic new businesses. I have been chairman of the EIS Association for some 10 years. EIS has been a significant source of risk finance for new and small businesses. Is the noble Lord, Lord Sikka, aware that 32,965 companies have received £24 billion of EIS funds since EIS was introduced?

[Lord Kamall (Con)]

I correct my noble friend: his question should be directed towards me. I am not sure whether the procedure allows me to delegate the noble Lord, Lord Sikka, to answer the question—I will have to find out.

The private sector, the third sector and private equity play an important role. The most important thing is the quality of care that patients get and making sure that we have a market oversight scheme, so that if any companies are potentially in trouble, we can manage that, if they go under.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, the noble Baroness, Lady Brinton, wishes to speak virtually, and I think that this is a convenient point to call her.

[Baroness Brinton (LD) [V]]

My Lords, typically, private equity-backed providers spend about 16% of the bed fee on complex buy-out debt obligations. The accounts of Care UK show that it paid £4.1 million in rent in 2019 to Silver Sea Holdings—a company registered in low-tax Luxembourg—which is also owned by Care UK’s parent company, Bridgepoint. Given that the ONS says that 63% of care home residents are paid for from the public purse, does the Minister not think that private equity providers should be subject to a financial code of conduct?

[Lord Kamall (Con)]

What is important is to make sure that we have continuous and high-quality care for patients. Therefore, where there are concerns about the financial stability of any company, whether it is funded by private equity or otherwise privately owned, it is important that we have a system to make sure that we manage that. If a company goes under, there is the ability to transfer patients to high-quality care. The important thing for us is the quality of care for patients—it is important that we put patients first.

[Lord Browne of Ladyton (Lab)]

My Lords, last year, during the pandemic, the business that my noble friend has referred to, HC-One, paid 10%—nearly £5 million, tax free—of those dividends to its financial controllers, who are holed up in the Cayman Islands. At the same time, it was given almost £20 million from the Government’s infection control fund to help it through the pandemic. Clearly, people’s pockets are getting picked here. If ever anything called for an independent inquiry, it is this behaviour by private equity businesses. Such behaviour is concerning the Bank of England: the Financial Stability Report shows that the level of leveraged debt that these businesses have is a threat to our economy.

[Lord Kamall (Con)]

The noble Lord makes an important point about the level of debt, but I am sure he is aware that a number of private companies operate with levels of debt. As we saw in the financial crisis, the issue is whether that debt is sustainable. The noble Lord, Lord Sikka, who is an accounting standards expert, understands all of the issues around IFRS 9 and all of the downsides to that when sufficient provision is not made for debt.

[Baroness Wheeler (Lab)]

My Lords, the Minister’s predecessor in this role repeatedly told the House that there was nothing wrong with the business model for the care home sector, despite record numbers of closures—particularly of small, independent homes, which are the backbone of residential care—and the dire financial problems that they face, with councils unable to pay going rates for staff pay and residents’ fees. This is all compounded by the pandemic. The Centre for Health and the Public Interest estimates that around £1.5 billion leaks out of the health system each year, listed as

“dividend payments, net interest payments out, directors’ fees, and profits”.

Should this not all be going to front-line patient care?

[Lord Kamall (Con)]

We believe that the quality of care that patients receive is really important—

[Noble Lords]

Oh!

[Lord Kamall (Con)]

I am sorry if people do not agree with that, but the quality of care that patients receive is the most important thing. As of November 2021, 84% of all social care settings were rated good or outstanding by the CQC. For most people, the experience of adult social care has been positive, but, clearly, the pandemic came. To mitigate the risk posed by debt and other financial pressures in the sector, the Care Quality Commission operates the market oversight scheme, which monitors the financial stability and sustainability of the largest and potentially most difficult to replace providers in the adult social care sector.

[Baroness Blower (Lab)]

My Lords, of course the quality of care is very important, but, at the moment, it is being provided at the expense of the exploitation of workers, who are paid £9 to £10 an hour. How many noble Lords in this House would have been happy to live on that for the whole of their lives?

[Lord Kamall (Con)]

The noble Baroness raises an important point about the pay of staff. One of the things that we are looking to do with social care staff is to make sure that it is an attractive career and to persuade all providers to try to pay their staff a more sustainable wage. That is why we invested money into social care. We also must make sure that we get away from the situation where some private providers effectively subsidise state-funded providers, and make sure that they receive a suitable return.

[Baroness Bennett of Manor Castle (GP)]

My Lords, on a number of occasions, the Minister has referred to the fact that, if these complex financial arrangements go wrong, we have the ability to transfer patients. Would he acknowledge that, when patients are forced to be transferred, the shock is too much for some of them and they die or suffer significant health damage?

--- Later in debate ---

[Lord Kamall (Con)]

I will look into that. I thank the noble Baroness for raising that important point. As I have said a number of times—noble Lords are probably bored of hearing me say it—we take the quality of care seriously. We know that the social care sector has been, frankly, abandoned for far too long, which is one of the reasons that we have brought forward the Health and Care Bill, to make sure that we have integration across the whole of people’s life path and that they are not just forgotten towards the end of their lives.

[Lord Wallace of Saltaire (LD)]

My Lords, is the social care sector not one in which mutuals and charities are more appropriate providers than private equity companies? My family has benefited enormously from an excellent charity running a number of care homes, but I am conscious that some charities have moved out of the sector. Would the Government not like actively to encourage non-profits to be involved more widely in this sector?

[Lord Kamall (Con)]

The noble Lord makes a very important point about mutuals: they play an incredible role. Indeed, at the founding of the NHS, one of the sad things was that the state pushed out many mutuals. The number of friendly societies and mutuals went down. It is important that we make sure that we have enough mutuals in the economy.

Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Lord, Lord Sharkey, for opening this important group and moving Amendment 106, to which my noble friend Lady Thornton added her name. As he explained, the substance of this amendment was singled out by the Constitution Committee and highlighted by the Delegated Powers and Regulatory Reform Committee. I reinforce the Constitution Committee’s endorsement of the DPRRC’s recommending the removal from Clause 20 of the imposition of legal liability merely by publishing a document. We agree with the two committees that this is a necessary amendment, and I look forward to hearing from the Minister how these concerns will be addressed.

Somewhat paradoxically, Amendments 143 and 144 strengthen the powers of NHS England in its quest for top-down management and imposition. However, they sit within the wider context of describing how NHS England would be able to give directions to integrated care boards under Clause 20 and improve these provisions, so we support them.

The remaining amendments on NHS Continuing Healthcare underline how vital it is to address this urgent issue, although it is not central to the intentions of the Bill. I thank the noble Baroness, Lady Greengross, for ensuring this focus in the debate and for Amendments 133 and 139, which ensure that this crucial issue is specified under the ICB’s duties and included in its annual report and performance review accountabilities.

Today, we heard in detail about the widespread concern about and scale of the problems with the way in which the NHS Continuing Healthcare scheme works and is funded, and the arguments it leads to about who pays for what, as a shared responsibility between the NHS and local government. Patients and their carers feel they are the sideshow, not the central focus of concern, and are deeply traumatised and upset by the whole experience.

As a carer of a disabled adult myself, like my noble friend Lady Pitkeathley, I know, from meeting many other carers and their loved ones, their deep concern about this. The three things that cause most concern and upset, which one hears time and again, are, first, the huge problems with inadequately funded social care packages—or their absence—to meet basic care needs, and deep worries and anxieties about how the care cap will operate; secondly, the trauma of the discharge-from-hospital process for carers and their loved ones, which we will discuss later; and thirdly, NHS Continuing Healthcare, the postcode lottery of whether your loved one receives it or not, the huge bureaucracy around the application and allocation process, the long wait for a response and being stuck in the middle of an NHS local authority fight over funding. As the noble Baroness, Lady Finlay, stressed, there is an urgent need to tackle the accountability gap in this process.

NHS Continuing Healthcare is the absolute manifestation of what our Economic Affairs Committee report on the “national scandal” of social care funding called the “condition lottery”—in other words, the wide disparity between health conditions for which people receive healthcare that is free at the point of use and those for which users usually have to make a substantial contribution with “catastrophic costs”, in the committee’s words. As we heard today, dementia is the condition most cited in this regard, but many of us know of cases where people with motor neurone, Parkinson’s and other degenerative diseases have struggled to get NHS Continuing Healthcare funding, either for home care or support in residential homes.

We support Amendment 161, which ensures that the Care Quality Commission reviews must include this issue. However, I am unclear—and may well learn in a minute from the Minister—what role the CQC currently has in looking into all continuing care matters which traverse NHS and local authority boundaries. However, we support its involvement.

The amendment would also ensure that the CQC reviews include looking in depth at how NHS Continuing Healthcare is working under each ICB. That will mean that at last we can begin to develop the much needed strategic overview of this crucial area for thousands of people in desperate need of care and support.

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

My Lords, I thank the noble Lord, Lord Sharkey, and the noble Baronesses, Lady Finlay and Lady Greengross, for bringing this group of amendments.

I understand the intention behind Amendment 106, on payment to providers, which is to remove new Section 14Z48 in its entirety, but the section will allow NHS England to specify the circumstances in which an ICB is liable to make payments to a provider for services commissioned by another ICB.

The Government are committed to ensuring that delegated powers in the Bill use the most appropriate procedure, so that Parliament has due oversight of their use. We recognise that the Bill contains a significant number of guidance-making powers and powers to publish documents. However, we believe that they are appropriate because, as the noble Baroness, Lady Walmsley, said, they reflect the often complex operational details and the importance of ensuring that the guidance keeps up with best practice, especially as the system flexes and evolves. I understand the noble Baroness’s point about Parliament, but the issue here is whether, every time the system flexes, Parliament has to have another debate. The ICBs will be reading the guidance, not Hansard, and the guidance should reflect that.

Nor is it our intention to interfere unduly in the financial affairs of ICBs. Instead, the intention is to resolve specific circumstances, such as emergency services. The legislation makes it clear that each ICB has to arrange for urgent care services to be available for all people physically present in the area, not just for the people who are its core responsibility by virtue of their GP registration. I am sure noble Lords will agree that it would be neither fair nor in the best interests of promoting an efficient health service for the ICB to both arrange and cover the cost of all additional emergency treatment brought by visitors to the area, particularly in areas with high visitor numbers. A number of noble Lords referred to that principle in debates last week.

Instead, this provision allows NHS England to mandate a different payment rule for those services, ensuring that, where necessary, the ICB where a patient is registered will pay, rather than the ICB where they receive treatment. This ensures that the financial impact is felt in the right commissioning organisation and eliminates the risk of some ICBs having unreasonable financial demands placed on them—for example, during the holiday season.

The wording of this provision replicates almost exactly the National Health Service Act 2006 as amended in 2012, but it is updated to reflect the new ICB structure. As my noble friend Lord Howe mentioned to me, we had a massive debate about this 10 years ago, but the provision seems to have worked effectively in the CCGs, and we wish to continue that with the ICBs.

Amendments 143 and 144, in the name of the noble Baroness, Lady Finlay, are about NHS England directing ICBs. I understand the interest in ensuring that NHS England has the necessary tools to intervene in ICBs where necessary. However, we believe that NHS England already has sufficient powers to direct ICBs. NHS England already has certain powers to direct an ICB under Section 14Z59(2), and powers to intervene over ICBs in order to prevent failure and to ensure that the lines of accountability from ICBs through NHS England to Parliament are strong.

However, this power has a threshold in that it can be used only if NHS England deems an ICB to be failing to discharge a function or at risk of failing to do so. The threshold removes the possibility of NHS England overdirecting the system while retaining the power for use if necessary. This balances the need to prevent failure and to support accountability with allowing ICBs the autonomy they need to operate effectively.

Amendments 133, 139 and 161 expressly require that ICB annual reports and NHS England performance assessments of ICBs include specific consideration of commissioned services, including NHS Continuing Healthcare, which noble Lords have spoken about, and that the CQC reviews of ICSs include specific consideration of that. We agree with the principle, but we believe that it is already covered in the Bill. NHS England already has a key role in overseeing ICBs. For example, the Bill requires NHS England to assess the performance of each ICB every year, and ICBs are required to provide NHS England with their annual report. These reports will include an assessment of ICB commissioning duties, which would encompass any arrangements for NHS Continuing Healthcare.

In addition, as noble Lords are aware, Clause 26 gives the CQC a duty to assess integrated care systems, including the provision of relevant healthcare and adult social care within the area of each ICB. This would include the provision of NHS Continuing Healthcare. We intend the CQC to pilot and develop its approach to these reviews in collaboration with NHS England, but also with other partners in the system. This should ensure that the methodology does not duplicate or conflict with any existing system oversight roles.

With this in mind, we believe that these amendments are not necessary, because commissioned services, which we would expect to encompass NHS Continuing Healthcare, are already included in these clauses. I hope that I have been able to somewhat reassure your Lordships. For these reasons, I ask noble Lords not to press their amendments.

[Lord Sharkey (LD)]

My Lords, it is clear that new Section 14Z48 is an unambiguous abuse of delegated powers. It provides for a law to be created by the simple issuing of a paper. There is no real possibility of a coherent defence of this procedure and the Minister did not provide one, relying as he did on special pleading and the extraordinary notion that Parliament cannot handle complexity.

As the Bill stands, Parliament is bypassed and scrutiny is avoided. I remind the Committee that the DPRRC and the Constitution Committee have recommended the removal of this section. I again suggest to the Minister that if he wants to retain the powers set out in Section 14Z48, he should rework them between now and Report at least to involve scrutiny by Parliament via the affirmative procedure. If he does not, we will return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton (Lab)]

I certainly cannot help my noble friend, but I live in hope that the Minister can. It smacks of a fix. The Minister might not be prepared to say on the Floor of the House what exactly the fix was between the various bits of NHS England and various bits and other parts of the machinery. I suspect that the noble Lord, Lord Lansley, might know better than the rest of us what that fix was.

I will comment on my noble friend Lord Davies’s amendment. The problem with it is that, as the ICPs are proposed in the Bill at the moment, they will not be spending any money or commissioning services. It is also important that they include the various important parts of our local health delivery systems, including pharmacists, dentists, GPs, social enterprises and the voluntary sector. As I read it, this amendment would exclude hospices, for example—which would be a ridiculous thing to do. So my noble friend might want to rethink that amendment, because it does not necessarily serve the intended interests of the ICPs.

[Lord Kamall (Con)]

I thank all noble Lords, especially the noble Lord, Lord Hunt, for the points they have raised. ICPs will play an important role in co-ordinating services, planning in a way that improves population health and reduces inequalities between different groups. It is right that we consider the best conditions for their success. I was asked where the idea for ICPs came from. It originated from the Local Government Association. We have had extensive consultation with both the LGA and NHS England. To be clear, councillors can sit on ICPs.

[Baroness Thornton (Lab)]

Is that the fix: that councillors are not allowed to sit on the ICBs, where the money is spent, but they are allowed to sit on the ICPs? That is not acceptable to me.

[Lord Kamall (Con)]

I do not see it as a fix. The consultation was much wider than just NHS England. In November 2020, NHS England ran a public consultation on the structure of ICSs, including NHS staff, patients and members of the public.

[Baroness Walmsley (LD)]

May I ask the Minister whether councillors were consulted?

[Lord Kamall (Con)]

I do not know for certain, but I am sure their views would have been heard via the Local Government Association.

[Baroness Chisholm of Owlpen (Con)]

They were.

[Lord Kamall (Con)]

They were. Good. I got the answer just in time.

I will turn to Amendment 147, which would mandate a role for a member drawn from each area of primary care. With all amendments relating to the ICP membership, we want to be careful to give space for local areas to find a model of membership that works best for them. As the noble Lord, Lord Stevens of Birmingham, raised at Second Reading, it is right that in a country as large and diverse as ours, one size will not fit all. Therefore, it is right that local areas should be able to determine the model and membership that best represent their area.

We fully expect primary care professionals to be involved in the work of ICPs. Each partnership will need to involve a wide range of organisations and representatives from across the system, including professionals from primary medical, dental, pharmaceutical and optical backgrounds as they prepare their strategy. The department has published a draft list of representatives for ICPs to consider involving, which includes clinical and professional experts, including those from medical, dental, pharmaceutical and ophthalmic settings. The mechanism of how this is done will be down to local discretion. For example, one ICP may wish to formally appoint certain members, whereas a neighbouring ICP may wish to have an extensive range of consultees, and a third may decide to invite primary care representatives to join a subcommittee instead. We believe it is right that local areas are able to determine the model of partnership that best works for them, and this amendment would prevent that from happening.

A similar argument applies to Amendment 148. While we welcome the contribution of directors of public health and the voluntary, charity and social enterprise sector, I do think that we risk limiting the flexibility of ICPs. We expect public health experts to play a significant role, especially given their role in developing the joint strategic needs assessments that are crucial to guiding all planning, and their role in supporting, informing and guiding approaches to population health management.

Similarly, we expect appropriate representation from the voluntary, charity and social enterprise sectors, which will be able to contribute in respect of a number of different interests and perspectives. A number of noble Lords have spoken very eloquently about the reasons we should involve these sectors. We believe it would not be prudent, for example, to suggest that it may be appropriate for only one person to represent the local voluntary sector on a partnership, given the diversity of their involvement in health and social care.

I turn to Amendment 150, tabled by the noble Lord, Lord Davies of Brixton, and I also thank the noble Baroness, Lady Thornton, for her advice on that. I appreciate that the noble Lord might want to prevent anyone who works for, represents, or has a financial interest in a private health and care company, from being a member of an ICP. However, I would draw the noble Lord’s attention specifically to the recent experience of coronavirus, which showed that independent and voluntary providers were a vital part of the health and care picture. This amendment could exclude a significant part of the health and care sector, as the noble Baroness, Lady Thornton, rightly said. Given their scale and the central role they play, adult social care providers in particular would be potentially useful members of an ICP. It also risks leaving out, for example, dentists, pharmacists, opticians and many others working in primary care, and doctors other than GPs who work both in the NHS and privately.

We expect every ICP to have robust measures to ensure that formal conflicts of interest are managed carefully and transparently. It is also important to note that ICPs, as the noble Baroness, Lady Thornton, says, are not commissioners, and so will not be making decisions on the allocation of funds. Fundamentally, the ICP is working solely for the interests of people in the area. The experience of the health and well-being boards is helpful here, as they have similar flexibility in membership, and there have not been significant issues with conflicts of interest as they have developed their plans. We really expect the ICP strategy to be rooted in the people and communities they serve, and to be directly informed by the health and well-being boards and the joint strategic needs assessments. We are refreshing the health and well-being boards’ guidance to ensure that there are strong foundations in place at neighbourhood levels that the ICP can consult and build on.

Having said this, I thank noble Lords for their contributions on this important matter. However, as I have explained, we believe that these amendments run contrary to the principles of flexibility and subsidiarity that the Bill is based on, and therefore I hope that noble Lords will not press them.

[Lord Hunt of Kings Heath (Lab)]

I am grateful to the Minister. First, I thank my noble friend Lord Davies for his amendment. I think, notwithstanding what the Minister said about some of the technical details, the principle that he put forward is absolutely right: clearly, the consistency with ICBs that he mentioned is really important. I am also very sympathetic with the noble Baroness, Lady Walmsley, and her amendment on the importance of public health and voluntary organisations.

We come here to the principle that some of us continue to be puzzled by the architecture we see before us. The Minister says that this was consulted on and the Local Government Association is fine and dandy about it but, with respect, that is not sufficient in terms of your Lordships and the rigour and scrutiny that we need to put into this legislation. Frankly, as my noble friend Lady Thornton suggests, it looks much more like a fix between representative institutions to preserve the current arrangements as much as possible.

I remain somewhat confused about the structure. The Minister said that health and well-being boards will feed into ICPs, but why? Think about what he said about the role of integrated care partnerships; it sounded to me like the role of the health and well-being boards. I just do not understand the differences. I understand that, in some parts of the country where the ICP will cover a lot of local authorities, there is an argument that you should continue with health and well-being boards at the local level, but I do not see why they cannot be sub-committees of the integrated care partnerships; the Minister referred to that. Why on earth do we in Birmingham need a health and well-being board as well as an ICP? I simply do not understand it.

If the Minister believes that this should all be set out at the local level, why can people decide locally not to have a health and well-being board? He may say, “Ah no, you need a framework”. Our argument is that you need a framework in relation to membership as well. The compromise here might be to set out in legislation, as we will want to do, certain conditions around local governance and then leave it up to the local level. In relation to ICPs, however, we cannot leave it as it is. Having said that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lord, Lord Farmer, for introducing this important debate and to other noble Lords who have supported the amendments before us and spoken about how we can improve the support that families will receive through this Bill. As the Family Hubs Network rightly observes,

“prevention is simply listed in the Bill as one of several commissioning requirements of ICBs with no broad mention of children’s health”.

This group of amendments gives us the opportunity to sharpen this.

As we have heard, the issues that families face, in whatever form or shape, do not exist in isolation. In addition to the impact of financial, housing, social and other pressures, the physical and mental health of a child or young person affects the physical and mental health of not just their parents, but their wider family, and vice versa. It makes common sense to facilitate a healthcare system that is designed and resourced to actively take a holistic approach to the many issues that face children and those who care for them.

I cannot help but feel that the points raised today are not new. We have the experience of Sure Start to show us how effective properly integrated family services can be. As the Institute for Fiscal Studies confirmed:

“By bringing together a wide range of early years services for children under 5, Sure Start centres dramatically improved children’s health even through their teenage years.”


Early investment is crucial.

I hope the Minister will be keen to embed change in this Bill to replicate the success that we saw through Sure Start. The first step towards doing this is to make sure that integrated care partnerships are properly required to consider how family help services can be thoroughly integrated into our health and care system, so that family members—no matter what form those families take—are seen as both individuals and groups who have an effect on each other.

[Lord Kamall (Con)]

I thank my noble friend Lord Farmer and all noble Lords who spoke about their experiences. The creation of integrated care boards represents a huge opportunity to support and improve the planning and provision of services to make sure that they are more joined up and better meet the needs of infants, children and young people.

Before I go into the specific amendments, I make it quite clear, as my noble friend said, that the Government set out in their manifesto a commitment to championing family hubs. We want to see them across the country, but at the same time we must give democratically elected councils the choice to shape how services are delivered, bearing in mind some of the points made by the noble Lords, Lord Mawson and Lord Warner, whom I thank for their experience on this.

The Government agree that it is vital to ensure that ICPs work closely with a range of organisations and services to consider the whole needs of a family when providing health and care support. In preparing the integrated care strategy, the integrated care partnership must involve local Healthwatch and the people who live or work in the area. We are working with NHS England and NHS Improvement on bespoke draft guidance, which will set out the measures that ICBs and ICPs should take to ensure they deliver for babies, children and young people. This will cover services that my noble friend considers part of family help.

In addition, the independent review of children’s social care is still considering its definition of “family help”, and the definition published in The Case for Change may well be further refined as a result of ongoing consultation. It would be inappropriate to define the term in legislation at this stage, pre-empting the full findings of the review and the Government’s response to it. Also, it is important that there should be a degree of local determination as to what should be included in the strategies of ICBs and ICPs. In order for them to deliver for their local populations, a permissive approach is critical.

On Amendment 167, we agree that family hubs are a wonderful innovation in service organisation and delivery for families. The great thing about them is how they emerged organically from local councils over the last decade. I pay tribute to my noble friend for the key role he has played in advocating family hubs and bringing this innovation to the heart of government. The Government strongly support and champion the move but we are clear that they have to be effective and successful—they need to be able to adapt to local needs and circumstances. They also need to be able to operate affordably, making use of a diverse range of local and central funding streams.

In both these regards, local democratically elected councils should hold the ultimate decision-making power over whether to adopt a family hub model and how it should function. As such, I regret that we cannot support the amendment, which would place too much prescription on the decisions and actions of local authorities and risk imposing significant new financial burdens. For this reason, I ask my noble friend to consider withdrawing his amendment.

[Lord Farmer (Con)]

My Lords, I thank the Minister for his rather disappointing reply and those who supported these amendments, particularly the noble Baroness, Lady Tyler, and my noble friend Lady Wyld, for giving such clear definition to the services and the advantages of family hubs. I take to heart the advice from the noble Lord, Lord Mawson, about unintended consequences. I would quite happily talk to him about this. I also take the point from the noble Lord, Lord Warner, that it is nought to 19, not nought to five. Families have so many problems with teenagers, as we see on the streets today, and family hubs can be a non-stigmatising place where help can be got.

I agree with the noble Baroness, Lady Merron, about Sure Start. In a way, I have always said that family hubs are building on Labour’s Sure Start centres. However, it is not nought to five but nought to 19—in fact, nought to 25 for children who come out of the care system, et cetera, with special needs.

There might be concern that my amendments attempt inappropriately to set in concrete the policy of family hubs when it is constantly progressing. However, the changes I have described are not just about bringing the latest policy idea into the Bill. Absent of these references to places where families know that they can access help and be connected to the full gamut of local services and support, the Bill will not reflect the overarching direction of travel. Their inclusion requires health to be fully on board, which has not happened in the past, to the detriment of the success of previous policies.

Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Thornton (Lab)]

I think the Minister is probably getting the message by now. I shall speak to my Clause 40 stand part debate and the amendment in the name of my noble friend Lady Merron. Somebody said earlier that we can be sure that the proposals to allow greater powers for the Secretary of State to intervene in reconfigurations is not something that the NHS asked for. That is almost certainly true.

I congratulate the noble Baroness, Lady Cumberlege, on her great coalition- building; she is very good at building coalitions in support of the things that she cares about, and she has definitely managed to do that with this group of amendments.

Noble Lords have pointed out that, at the moment, we have a system which works. It may be slow, and it is absolutely true that it has processes which take too long, but there are elements of public and patient involvement through consultations. The changes made in 2012 under the noble Lord, Lord Lansley, brought in four tests and some rigour of external independent evaluation. The core of that process still exists. As a non-executive member of the board of the Whittington, I can say that this is exactly the kind of thing that we have been involved in in our own hospital.

The consultations might be improved, but they will not be improved at all by this proposal. In fact, I think that this clause is very odd indeed. It is a bad idea, and it adds nothing to the core of this Bill and its central aim, which is to grow place-based independent and innovative healthcare, and it probably needs to go.

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

I thank all noble Lords and noble Baronesses for their contributions. I would be pretty blind or deaf not to understand the level of concern across the Committee. However, if noble Lords will bear with me, I shall try to set out some justifications. I preface my remarks once again by saying that I strongly hear the views of the Committee, and I welcome the fact that previous Ministers and Secretaries of State are warning us not to fall victim to this, as it were.

I start by explaining some of the justifications. It may be helpful to start with some of the observations. The public expect Ministers to be accountable for the health service, which includes service change. We see the new intervention powers enabling the Secretary of State to act as a scrutineer and decision-maker for reconfigurations, to intervene when, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is a significant cause for public concern. Having said that, we accept that public concern could well be a political one, so we understand the concerns expressed by noble Lords.

We expect this power to be used infrequently and, when it is used, it will be done proportionately and transparently. All decisions made using the new reconfiguration call-in power in the Bill must be published, which will ensure transparency and proper scrutiny. The new call-in power for reconfigurations will allow the Secretary of State better to support effective change and respond to stakeholder concerns, including from the public health oversight and scrutiny committees and parliamentarians in a more timely way.

I turn to Amendment 183. Given the role of the Secretary of State, it is proportionate to ask him or her to ask local commissioners to consider service change where there is concern. Once again, we do not expect this power to be used frequently, and all service changes, regardless of whether a Secretary of State has been a catalyst, will still be required to go through due process and where appropriate local consultation. Before any proposal was agreed, the planning and assurance for a proposal would still have to include strong public and patient engagement, consistency with a current and prospective need for patient choice, a clear clinical evidence base and support from commissioners.

I turn to a couple of points from my noble friend Lady Cumberlege and the noble Lord, Lord Stevens, who said that the powers were unnecessary, undesirable and unworkable. To look at the necessity of the power, the current system can lead to referrals coming very late to the Secretary of State, and the power will allow the Secretary of State to intervene earlier to avoid that. For example, my noble friend Lady Cumberlege referred to the Kent and Medway stroke services reconfiguration proposal. One reason why it was lengthy was the need to review the right options for the system. We are hoping that it goes something like this—that you could either knock heads together or, as someone put it more starkly, have a sword of Damocles over them to come to a decision more quickly. But once again we understand the concerns.

I turn to Amendment 180. It is vital that all local views, including that of the health overview and scrutiny committees, are represented in the reconfiguration. The new power in the Bill will not replace the important local scrutiny and engagement that plays such an important role in service change decisions, and a duty for those locally responsible for service change proposals to consult local authorities will remain. It is right that for commissioners and providers who are responsible for planning, assuring and delivering reconfigurations the duty to consult HOSCs and other local stakeholders continues. We are also introducing a duty for NHS England, integrated care boards, NHS trusts and foundation trusts to provide information and other assistance required for the Secretary of State to carry out functions. That will allow the Secretary of State to take into account local views. We expect the Independent Reconfiguration Panel to consider the views and carry on the way it works.

On Amendment 181, we recognise the importance of timely decision-making—

[Baroness Thornton (Lab)]

Is the Minister saying that the Government and his department do not trust NHS England to fulfil this function any longer?

[Lord Kamall (Con)]

No, we are saying that, where there is an issue and it is taking a long time, this measure allows the Secretary of State to come in in a more timely manner rather than waiting for a late referral.

[Baroness Thornton (Lab)]

Does the Minister think that will save time?

[Lord Kamall (Con)]

Yes.

[Baroness Cumberlege (Con)]

My Lords, before the Minister goes on—just so I do not lose the thread here— could he tell us why the Independent Reconfiguration Panel has to go? What are the problems with it? Why do we have to move it off in order to bring in a politicised system with the Secretary of State making the decisions?

[Lord Kamall (Con)]

I must clarify here. I have said that we expect the Independent Reconfiguration Panel to continue to consider views. We are not getting rid of it.

[Baroness Cumberlege (Con)]

So that presents a problem. What does the Secretary of State do, and what does the independent panel do? Is it a question of the scale of the change that is being proposed? Where are the boundaries?

[Lord Kamall (Con)]

The Secretary of State will be advised by the Independent Reconfiguration Panel, especially where there is a difficult decision that takes time, just as in the case of the Medway.

On Amendment 182, the Secretary of State’s decision-making process must already take into account the public law decision-making principles, all relevant information and his legal duties, including the public sector equality duty. The Secretary of State is also under several duties in the National Health Service Act 2006, including to promote a comprehensive health service and to support continuous improvement in services.

[Lord Hunt of Kings Heath (Lab)]

There are a lot of marginal seats, and there is going to be a general election in two and a half years—maximum. A lot of the reconfiguration proposals usually relate to smaller places with smaller hospital or DGHs because their viability is often in doubt. So it is quite clear to me that any MP, particularly government MPs, will immediately take any threat of that sort to their local services to the Secretary of State. That will not speed up the process; it will guarantee the opposite. The signal that I would get from the health service as a result of this is: “Forget reconfiguration proposals until after the next election because you ain’t going to get any through.” That is why we think this is a disastrous move.

When the Minister says there will not be many interventions, that is just nonsense. The moment that MPs know the Secretary of State has the power to intervene at any stage, they will be knocking at the door of the Government, who will wilt under that pressure, because that is what happens. Then they will go back and say, “We need to have an independent review of that before you start the process.” There are so many dodges available to a Minister, if you want to dodge making a hard decision in this area, that it will completely paralyse the health service. That is why this debate is so important because it is related to the last one; the result of Ministers gaining direct control will be to delay and reverse, and I am afraid that the hopes that Ministers have for a dynamic, forward-looking health service will come to nothing.

[Lord Warner (CB)]

My Lords, following on from the noble Lord, Lord Hunt, I ask the Minister to consider the point that I was trying to make about Amendment 183. The Minister and the Government have got this the wrong way round: if he is actually concerned about levels of efficiency, the supply of services and the issue of scale—and the issue of scale is a very real one—then he needs to be at the front of the process, not the end of it. It is a bit late in the day to be having these ideas about scale in a particular set of services when you have gone through the agony of the local consideration of reconfigurations. As a Minister, it would be better, if I may say so, to set out your views at the beginning with the clinical arguments for why this makes sense. Doing it at the end is bound to lead to suspicions. That is why I was asking the noble Baroness, Lady Cumberlege, to look at the wording of Amendment 183. I say to the Minister that he is putting his involvement at the wrong part of the process.

[Lord Kamall (Con)]

We agree with the noble Lord. We do not want to waste time by being able to come in only late in the process. To avoid egregious uses of power, all uses are subject to public law principles and challengeable by judicial review.

We agree with the intention behind Amendment 216 but we do not feel it is necessary. Commissioners, NHS England, NHS trusts, NHS foundation trusts and a range of other bodies are required to have regard to the NHS constitution in performing their functions, as set out in Section 2 of the Health Act 2009, which goes wider than this proposed duty that would apply to the Secretary of State.

In addition, the NHS pledges that all staff will be empowered to put forward ways to deliver better and safer services for patients and their families. If a service change is material, the commissioner has a duty to consult with all impacted parties to understand their views and these existing engagement duties can encompass NHS staff. Anyone can respond to a public consultation and there is well-established process and precedent for taking these views into account. Beyond the pledge itself, it is the responsibility of an employer to ensure that staff are appropriately engaged and involved in service change decisions. The need to engage and consult is contained within organisational policies and relevant employment legislation.

I have heard what a number of noble Lords have said, especially former Ministers, Secretaries of State and others involved in the system, and it is quite clear that I need to go back and consult further. In that spirit, I ask that noble Lords do not move their amendments, and hope that I have explained the reasons why.

Clause 40 agreed.

--- Later in debate ---

[Baroness Thornton (Lab)]

My Lords, it is very gratifying that so many noble Lords have decided to come in to take part in a debate about NHS finances tonight; I am very grateful for that.

I shall speak briefly to Amendments 199, 200 and 202A in my name. Amendment 199 provides that the Secretary of State must set out rules for determining the price to be paid for NHS services. Amendment 200 ensures that the key policy documents covering NHS services are approved by the Secretary of State. Amendment 202A provides that the rules must be subject to parliamentary scrutiny.

I am very pleased that the complexity of NHS funding was not mentioned in great detail tonight, but there has been speculation about how funding may work and how the various financial responsibilities in and across ICSs may develop. What we think we know is that complex funding approaches, such as payment by results, will become less important. In Clause 70 and the associated Schedule 10, however, the Bill is wonderfully uninformative. It just says, “Out with the old”—the national tariff—“and in with the new”, the NHS payment scheme. I am again with the noble Lord, Lord Lansley, in saying that these questions need to be answered, because they will affect the regulations, procurement rules and so on.

The payment scheme—actually, I am not going to talk about the history of the NHS payment scheme at this time of night, but, unless the Minister can justify it and answer the questions posed by the noble Lord, Lord Lansley, this part of the Bill should be quietly dropped. We seem to have something that works, so why replace it with something that we do not know very much about?

[Lord Kamall (Con)]

I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.

Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.

However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.

I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.

I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.

I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum, NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.

On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.

On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.

I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.

On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.

The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.

If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.

[Lord Lansley (Con)]

My Lords, I am most grateful for the Minister’s response to that short debate and for the other contributions. I shall certainly look at the Court of Appeal judgment—was it the Court of Appeal? —and try to work through precisely where the problems are. There are two ways of dealings with this issue. One is to scrap the national tariff and put in a new payment scheme. The other is to start with the national tariff and ask what the problems are and how we are going to deal with them, and I would quite like to work that through.

We may come back to this because there is an issue about how far the payment scheme is a national payment scheme and how far it becomes a local and varied one. That is a very interesting question, as is the way in which discrimination between providers may be implemented and for what purposes.

For the moment, though, I am very grateful to my noble friend for his response and for his promise to follow up on issues.

--- Later in debate ---

[Lord Kamall (Con)]

My Lords, this has been a fascinating discussion and debate. I recall watching the debate on the Private Member’s Bill of the noble Baroness, Lady Meacher, a few weeks ago; I remember thinking that that was Parliament at its best. The arguments on both sides are fascinating—thank goodness I was not the Minister responding.

I thank my noble friend Lord Forsyth for assuring me today that we were not going to re-open the whole issue but talk only about the merits of the noble Lord’s amendment. Before I turn to his amendment, I will start with Amendment 203 tabled by the noble Baroness, Lady Meacher.

It is incredibly important that everyone at the end of their life, whether or not they have been diagnosed with a terminal illness, has the opportunity to discuss their needs, wishes and preferences for future care, so that these can be taken fully into account. There is ongoing work across the health and care system, as the noble Baroness, Lady Finlay, alluded to, to support this aim, including a commitment within the NHS Long Term Plan to provide more personalised care at end of life, and a recently updated quality statement from NICE on advanced care planning. In addition, we have established the ministerial oversight group on Do Not Attempt Cardiopulmonary Resuscitation, following the CQC’s review of this during the Covid-19 pandemic. This group is developing a set of universal principles for advance care planning to further support health and care professionals in having appropriate and timely discussions with individuals at the end of life. We believe that patient choice is a powerful tool for improving patients’ experience of care, and we intend to ensure that effective provisions to promote patient choice remain. However, I do not feel it is appropriate to specify the level of detail included in Amendment 203 in the Bill, and I hope the noble Baroness, Lady Meacher, will consider withdrawing her amendment.

Let us now turn to the amendment that has been much discussed. As many noble Lords have rightly said, it is a long-standing position that any change to the law on assisted dying is a matter for Parliament to decide, rather than one for government policy. Assisted dying remains a matter of individual conscience, on which there are deeply held and very sincere views on all sides. Sometimes these are informed by one’s own experience of family members; other times, these are informed by one’s faith. You can rationalise it, or argue, but people have very strong feelings on both sides.

Noble Lords are aware of the Private Member’s Bill of the noble Baroness, Lady Meacher, on this subject, and we look forward to further debate in Committee when parliamentary time allows. I will commit to discussing this with the Chief Whip, given the request that was made. But as this matter is so important and is a matter of conscience, we cannot take a partisan position. If the will of Parliament is that the law on assisted suicide should change, the Government would not stand in the way of such change but would seek to ensure that the law could be enforced in the way that Parliament intended.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend. Could he just clarify what he said? Did he say that there was a possibility that time would be made available for the Bill of the noble Baroness, Lady Meacher?

[Lord Kamall (Con)]

I am afraid that I cannot give that guarantee. I will commit to speak to the Chief Whip about whether time could be made available.

[Noble Lords]

Oh!

[Lord Kamall (Con)]

I was not expecting that reaction.

On Amendment 297, it would not be appropriate to include a commitment to bring forward new primary legislation in the Bill. Future Bills and the use of parliamentary time are decisions that are rightly made via other avenues. As I said, I will commit to speak to the Chief Whip—he is not very far from me at the moment.

A number of noble Lords spoke about definitions. It seems that tonight we have challenged the definition of “neutral”. I was told that if I did not support this amendment, it would not be a neutral position. Given that those who spoke in favour of the amendment tend on the whole to be in favour of assisted dying, would it be a neutral position if I supported it? Therefore, have we now got a subjective understanding of neutrality or, as I said in my PhD viva, a subjective view of objectivity?

For all these reasons, I ask the noble Lord to consider not moving his amendment, but I fully expect him to come back to it in future.

[Baroness Meacher (CB)]

My Lords, I thank the noble Lord, Lord Forsyth, for tabling his amendment. I was asked by other noble Lords to make it absolutely clear, and I have no problem with this, that I fully and strongly support his amendment. I did not speak to it because of time.

I thank a lot of noble Lords for being very good this evening about not addressing the great issue of assisted dying, because that would have been entirely inappropriate. Many noble Lords have been careful not to do that, so I am grateful to them. I am also grateful to the many noble Lords who have made clear their support in particular for Amendment 297. I was very clear about my own amendment; it is a probing amendment. I thank the Minister for his response and the Chief Whip for placing this at the very end of the day so that we did not spend 12 hours on it—I think we can all be grateful for that. I thank all noble Lords here tonight. I beg leave to withdraw the amendment.

Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) (Amendment) Regulations 2021

Lord Kamall Excerpts

Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Kamall]

That the Regulations laid before the House on 15 December 2021 be approved.

Relevant documents: 21st Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument). 25th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 19 January.

Motion agreed.