Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 27th February 2012 Lords Chamber

[Baroness Williams of Crosby]

My Lords, owing to the need to make progress I shall speak briefly, but my noble friend Lord Marks of Henley-on-Thames will be speaking in greater detail about the amendment.

It is short, perhaps deceptively short, but it has real significance and is related in this group specifically to Amendment 94A. The government amendments respond to aspects of these amendments, too. Amendments 49A and 94A set at the very centre of the Bill, which has the full support of all of us who want to see the NHS thrive, that the interests of patients should be paramount. The importance of that phrase is that in every single aspect of what we try to do, it shall always be the case that this is the way in which we think—whether it is how CCGs operate or how foundation trust hospitals operate. This has emerged in our debates increasingly as the central concept—the one to which we should always refer back. That will give us the guiding light that we need for the Bill.

It is significant because, in many cases, patients can be very vulnerable. They can be vulnerable through lack of information and in some cases by not being consulted. They can be vulnerable, as the noble Baroness, Lady Hollins, has mentioned, through the lack of advocacy by people who understand the basis of the choices they have to make. This phrase about the significance and the importance of patients’ interests being paramount therefore also affects a recognition that where patients are vulnerable they need the help of counsellors, advisers and in some cases advocates, so the concept behind this covers those areas as well.

I want also to point out briefly that government Amendment 56 is helpful in spelling out the matters on which patients should be particularly consulted. I will not repeat them but the amendment is helpful in setting out very clearly issues of treatment and the way in which patients should be offered different forms of treatment and then to make choices among them.

I do not intend to keep the House. I shall conclude my remarks. Whatever side of the House we may be on, I hope very much that the concept of the paramountcy of patient interest will be something that all of us can support, understand and advocate with respect to the future of health services. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the reasons for Amendments 49A and 94A have been briefly—as she explained—and eloquently expressed by my noble friend Lady Williams of Crosby. One of the fundamental principles which the Government have assured us runs right through this Bill is that the NHS, as reformed by this legislation, will be committed to putting patients first. That is a critical matter for most of us in this House and the public at large. Why do I believe that this principle needs stating in the Bill? It is because the Bill introduces an entirely new structure for commissioning services, with commissioning by clinical commissioning groups within a framework established by the board to requirements and objectives set by the Secretary of State. However well understood here, this proposed structure is widely mistrusted outside this place.

I believe that a legislative statement that the commissioning process will put patients first is very important, both because it will enshrine in law this fundamental principle and because it will give the public an assurance that this is indeed the aim and purpose of the new commissioning process. My noble friend the Minister was kind enough to write to me in relation to this amendment to say that while he completely agrees that we must always put patients first, the Bill already provides for that and that there are “technical reasons” why our amendments should not be accepted.

The Minister is entirely right to point to the commitment to the comprehensive health service in the Bill and to the duties of the board and the clinical commissioning groups, now enshrined in the Bill, to promote the NHS constitution. I agree that those are powerful provisions. The NHS constitution is an important and extremely valuable document. It does indeed contain a commitment to putting patients first. At the back of the document in the expression of NHS values it says:

“Working together for patients. We put patients first in everything we do, by reaching out to staff, patients, carers, families, communities, and professionals outside the NHS. We put the needs of patients and communities before organisational boundaries”.

No one could fail to regard that expression of values as admirable, but it covers the whole sweep of NHS functions and is very general. The provisions that we seek by way of these two amendments are specific to the commissioning process. They will impose a binding obligation on the board and the CCGs of which they will at all times be aware. Moreover, our amendments are directed particularly at responding to what is probably the principal concern that members of the public have about these reforms: that the new commissioning process may lead to the marketisation of the NHS and that patients’ interests may be lost in that process. I do not believe that, but I do believe that these amendments would help make it crystal clear that this concern is unfounded.

The other problem we face is this: all the evidence, even that emanating from within the NHS, suggests that there is widespread unawareness of the very existence of the NHS constitution, let alone of the detail of its provisions. At the very least, therefore, given the emphasis that we are putting on the NHS constitution, it is crucial for the Government to make it quite clear that a great deal is expected of the board and of CCGs in the exercise of their respective duties under the Bill to promote awareness of the NHS constitution. In addition, the department should commit itself to an even wider, more effective campaign to publicise both the existence and the content of that constitution.

As to my noble friend’s second point, I regret that I do not understand the technical reasons which are said to require the rejection of these amendments. It is perfectly true that the NHS will always have to face resource constraints which may necessarily determine many, even most, commissioning decisions, but our amendments accept entirely that the paramountcy of patients is always subject to resource constraints. The board or a CCG must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount. Nor do our amendments, either expressly or impliedly, reduce the ability of commissioning groups or the board to prioritise the treatment of particular groups of patients where they think appropriate. They simply make the interests of patients in general paramount or, to use my noble friend the Minister’s phrase, make sure that commissioners put patients first.

The use of that word “paramount” in these amendments was modelled on the Children Act 1989 and the principle which runs like a golden thread through that legislation that the interests of children are paramount. That legislation has been widely applauded for embodying that principle, which firmly governs its interpretation and its implementation. It is precisely because it is embodied in the legislation itself that that Act is so well respected.

I still hope that my noble friend the Minister might reconsider whether he is not prepared to accept in this Bill the expression of the principle which he has so often expressed: that, throughout the commissioning process, the interests of patients must be paramount.

[Baroness Cumberlege]

My Lords, my Amendment 142 has been grouped with this amendment. I have brought it forward because I am anxious that when we talk about “patient and public involvement” we should be clear as to exactly what we mean by it. I am grateful to my noble friend Lady Jolly, who has also put her name to the amendment.

I am also anxious that we embed what I will call PPI for shortness—patient and public involvement throughout healthcare in all its forms. I say so in the knowledge that few people understand what this means. However, no one understands it better than my noble friend Lord Howe. He was a doughty fighter for community health councils, those much beloved organisations that knew how to campaign and influence the delivery of services. The culprit sits before me on the opposition Benches.

When I was chair of the Brighton Health Authority I had a huge respect for my CHC. Indeed, we even commissioned it to carry out surveys within the NHS. The effect was electric: no punches were pulled and the pressure on us was irresistible. It really knew what was being delivered, where the glitches were and where services were inadequate and needed improving, and it was not shy in making our shortcomings very public indeed. The CHCs had power and could refer proposed changes in services directly to the Secretary of State. The subsequent inheritors of their responsibilities—patients’ forums and LINks—have been systematically neutralised to ensure that they do not have the power to be really effective; that they are not inconvenient bedfellows; and that, despite the undoubted commitment of individuals, they can be largely ignored.

At last we have an opportunity to put matters right and to show that we have genuine credentials in making patient and public involvement a force for good, ensuring that patients and the public are the heart of their NHS. I was encouraged when in one of our earlier debates my noble friend, in answering an amendment, mentioned that the Secretary of State required four tests for the reconfiguration of services, one of which was robust PPI.

I had an interesting letter from my noble friend dated 2 February which again showed his clear commitment to effective PPI. However, the Bill does not seem to match up to that commitment. Different wording is used for PPI in different parts of the Bill—a court of law would surely assume different intentions—and the wording is weak in places. There are three types of involvement. The first is shared decision-making with individual patients on their care, to which the remainder of these amendments relate. The second is the HealthWatch England and local healthwatch structures through which patients and the public feed in their views—the way in which people start a conversation with the NHS. The third is PPI by the service in its decision-making—the way in which the service starts a conversation with local people and the subject of this amendment.

No business would attempt to plan its products or its services without doing market research. If it did, it would fail. We expect the same for the NHS. However, PPI is more important than just market research: it imports the values that we as a society expect from the NHS, making sure that it thinks as we think. PPI must be in the DNA of the service so that those who plan and run it feel as if they are planning and running it for their own families and looking after their own mothers in that hospital bed.

The PPI requirement was introduced in the Health and Social Care Act 2001 in response to the Bristol Royal Infirmary public inquiry. At Bristol, between 1991 and 1995,

“one-third of all the children who underwent open-heart surgery received less than adequate care”,

and up to 35 children under one died as a result. As Bristol concluded,

“vulnerable children were not a priority, either in Bristol or throughout the NHS”.

What an indictment. These are catastrophic failures and we must not forget them. Sadly, evidence shows that we have not yet succeeded in making the NHS as a whole think as we think. We need look no further than Mid Staffordshire.