Health and Social Care Bill
Lord Mawhinney Excerpts(12 years, 11 months ago)
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Lord Mawhinney
I am most grateful to the noble Lord. I think he knows that I listen carefully to him when he is on his feet. The essence of a democracy is that people are elected to represent their community. I can see an argument for having some professionally trained people adding their expertise, because it might be a stretch to expect locally elected people to command the technicalities of a professional view, but given that commitment of democracy, why does the noble Lord think it necessary to have so many other people representing—in the best possible spirit, I hasten to add—specialist vocations or vested interests?
Lord Beecham
In the first place, I am grateful to the noble Lord, Lord Mawhinney, for recognising when I am on my feet, given that there is not much of me to be seen. In relation to his question, I am not suggesting that they should be voting members. That is the point. There is a difference. The voting members—I do not mean executive members—should be confined to elected councillors and those representing the other partners, the clinical commissioning groups and the trusts. It is a partnership arrangement. You have this sort of arrangement in care trusts and the like. It is an acceptable one, but at the very least there should be equality of arms between the elected members and those from other organisations.
Health and Social Care Bill
Lord Mawhinney Excerpts(12 years, 11 months ago)
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Baroness Finlay of Llandaff
My Lords, I have amendments in this group to which I shall speak briefly. The noble Baroness, Lady Williams, introduced her amendments clearly and concisely. Some figures from the latest Health Service Journal underpin the reason why these amendments are so important. It has reported that foundation trusts are planning to cut at least 30,500 staff over the coming two years and that at least five acute foundation trusts have forecast a wage-bill cut of 10 per cent or more over the coming two years. According to the Health Service Journal’s analysis, patients in the poorest areas are 63 per cent more likely to find it difficult to see a GP than are patients in the richest locations, and 53 per cent more likely to attend accident and emergency.
I put those figures into the debate now because they demonstrate the pressure there will be on trusts. Changing to foundation trust status will put additional pressure on them. Amendment 304C in my name is a probing amendment. I tabled it to seek reassurance from the Government that the timetable for repealing NHS trust legislation will not revert to the originally proposed date—1 April 2014. I hope that the deadline will be extended to April 2020. I was going to say more but I await the Minister’s reply.
Lord Mawhinney
My Lords, I should like briefly to comment on the amendments proposed by my noble friend Lady Williams of Crosby. In one respect, I was sorry that she spoke so briefly because I should have liked to have heard more of her reasoning for Amendment 296. I am not at all clear about what the advantage is to either the Commissioning Board or the hospital if one serves on the board of the other. Is it because that is the only conduit of information? Frankly, I do not think that anyone believes that. If that is actually the argument then the whole NHS is in a much greater state of peril than any of us thought was the case until now. I honestly do not see the importance of or justification for the amendment. It may be a probing amendment, but it would have been helpful if the noble Baroness had given us a bit more of the thinking behind it. As of this moment, pending her winding up, I am not at all convinced that the amendment is either important or necessary.
However, I turn to the noble Baroness’s Amendments 300 to 303, which are also in the name of our noble friend Lord Marks of Henley-on-Thames, who I am sorry to hear is unwell. I very much support what she said about those amendments, even though—to use the word of the noble Baroness, Lady Finlay—she explained them concisely. They take us back to one of the main issues of this legislation: where is the Secretary of State in this brave new world? The Minister knows that a number of us think that the Government are thus far underplaying the role of the Secretary of State.
As my noble friend Lady Williams of Crosby was speaking, I thought of the condition of a number of foundation hospitals that have been the product of a PFI system. That was triggered in my mind by her comment that if there was a coming together of hospitals, or if some element of service was not provided, it may be of a sufficient scale for the Secretary of State to want to take a significant interest. The truth, to the best of my probing, is that a number of hospitals out there—the products of PFI—are in very difficult and probably, without help, unsustainable positions.
I know that the Minister understands that and that it is a matter of concern to the department, so I do not make any comment prejudging the outcome, but my noble friend brought the Secretary of State into this precisely because there could be serious, significant or catastrophic effects on the provision of healthcare in the hospital sector which, by definition, would include the importance of ministerial—that is, Secretary of State—involvement and consideration.
I welcome Amendments 300 to 303, but I say to my noble friend Lady Williams of Crosby and the Minister that I think they are part of the bigger picture of where the Secretary of State will be when the Bill finally reaches the statute book. The Minister has kindly and, I think, genuinely agreed to reconsider all those issues and bring them back for our consideration at Report. Subject to him saying the same about the issues raised by our noble friend Lady Williams, I hope that she in turn, hearing his response, will not feel it necessary to push the amendments to a vote today, although that might become an issue, depending on where we are at, on Report.
Baroness Williams of Crosby
Perhaps I may respond briefly to the points raised by the noble Lord, Lord Mawhinney. I apologise if I spoke too briefly, but I am conscious that there are an awful lot of amendments to get through and I do not want to steal the time of other people on other crucial amendments.
On the group of four amendments that the noble Lord is in accord with me about, as he will be well aware, consideration has been given to the material put before us by my noble friend Earl Howe, the Minister of State, about an attempt to bring together discussion within the House and among lawyers about the issue which the noble Lord, Lord Mawhinney, rightly identifies as being central to the Bill: the responsibility and powers of the Secretary of State. Because we are in Committee and the Committee will, we hope, be ending in a few days’ time, the only opportunity we have to table amendments that would bear on the issue of the Secretary of State’s powers is on the Bill as it stands—prior to any changes that may be made. It is in the light of that that we tabled this group of amendments to highlight the areas where, in our view, the responsibility of the Secretary of State is central. That is true of this group of amendments, and I am delighted that the noble Lord, Lord Mawhinney, takes the view that they should be seriously considered by the Minister.
The point of Amendment 296 is to recognise that, in many cases, CCGs have to take account of the services given by foundation trusts—not least in respect of, for example, pathways and networks for people with chronic conditions. We thought, therefore, that it was important that there be not just sharing of information between the two but, rather, a process of interactive education, where the foundation trusts become increasingly aware of the responsibility that CCGs bear, particularly for those clinical conditions that lie beyond the capacity of a single CCG. That is why we suggested that a governor should be named by the national board to set up that communication—which, as the noble Lord, Lord Mawhinney, knows far better than I do, because he is an expert on the subject, sometimes, sadly, does not exist.
Earl Howe
My understanding is that the emphasis that we are placing on continuation of services rather than receivership and failure regimes has been welcomed. There are ways around what some might see as an inevitable conveyor belt to receivership. That should be only a last-ditch resort. We are putting mechanisms in place to ensure that the essential services on which patients depend should continue. That is a better way of looking at things.
Lord Mawhinney
I have been thinking about something that my noble friend the Minister said a moment ago. The amendment would require the Secretary of State’s approval, in addition to that of more than half of the members of the council of governors, for an application made under this section. He did not welcome the amendment of the noble Baroness, Lady Williams, on the grounds that the approval of the Secretary of State amounted to an added layer of bureaucracy. It would be helpful to the Committee if we were to know whether the Secretary of State is always considered to be an added layer of bureaucracy and, if not, can he give us a couple of examples of when the Secretary of State is a net plus?
Lord Newton of Braintree
My Lords, since my question to the Minister, before he rises, is in similar territory, I might as well leave him sitting down for the moment and get my question in. As I indicated the other day, I have been involved in what is legalistically an acquisition, although we have always talked of it as a merger, of a foundation trust by its neighbour, due to come to fruition at the turn of the year. The last hurdle that we had to overcome, though it was not much of hurdle, was the need for the Secretary of State to sign off dissolution orders for the existing trust, and at least one other order, to allow this to happen. Is my noble friend saying that, under this Bill, such things could proceed untouched by the Secretary of State? I do not have a strong view one way or the other, but it is quite an important change if that kind of reconfiguration can occur without the Secretary of State even having to agree.
Baroness Cumberlege
My Lords, I have a number of amendments in this grouping concerning local healthwatch. As has already been said this afternoon, local healthwatch is the source of intelligence from the people who are actually using the services. This intelligence is gathered through their enter and view monitoring visits to both health and social care services—we should not forget that it is social care as well—and through their local involvement work.
However, neither commissioners nor overview and scrutiny committees have the same binding arrangements to enter and view health and social care facilities. Local healthwatch has the opportunity to interview people at the time they are actually using the service. The local healthwatch has the independent messenger status with local people that neither commissioners nor overview and scrutiny committees have. Local healthwatch has the right to enter and view, to talk and listen, to the most vulnerable of all people, those with dementia or other mental illness, those lying on trolleys in A&E, or on mental health in-patient wards. “No decision about me without me” can be tried and tested when most fresh in the minds of patients and users. It is only here that the reality of the services that results from the theory of commissioning is to be found. To fail to take due account of this perspective in commissioning services is commissioning wearing a blindfold. The purpose of Amendment 318E is to ensure that commissioning is evidence based.
New Sections 14Z and 14Z11(2) require clinical commissioning groups to involve and consult on their commissioning plans. We know that this is a somewhat bureaucratic exercise, and it is often simply for the cognoscenti. Although these clauses are to be welcomed, they do not go far enough—hence the insertion of my new clause. Frail elderly patients lying in hospital wards who are not being fed will not be responding to consultations any more than will patients who have been sectioned under the Mental Health Act. The local healthwatch must talk to those patients and its findings must be an indispensable component of the evidence on which commissioning is based.
New subsection (3A), inserted by Clause 180(6), also requires commissioners and others to have regard to reports and recommendations from local healthwatch. This replicates the current arrangements for reports and recommendations from LINks, which has failed to bring the patient experience into the heart of commissioning. Compared to the status given to the views of health and well-being boards on commissioning plans—the strategic beginnings of commissioning—this is weak. What is needed is equal attention to the evidence on the outcomes of that commissioning, which local healthwatch is uniquely well placed to provide.
My new clause requires local healthwatch to hold the clinical commissioning group to account for incorporating the evidence that the local healthwatch has produced at the very start of the commissioning period. It should then heavily influence the commissioning plan for that period in taking the reality and applying it to commissioning theory. Binding the patient experience into commissioning is a much more specific requirement than merely “having regard to” local healthwatch reports and recommendations. The conjoint benefit of this new clause is that it increases the accountability of local healthwatch for producing robust evidence of the patients’ experience. Providers must also satisfy the local healthwatch if they are to secure further contracts.
Lord Mawhinney
My Lords, I think that my noble friend said that providers must satisfy the local healthwatch before they can proceed with their commissioning. Is this another barrier to the commissioning process, or does she anticipate a collaborative conversation? I am not clear on whether this is another hurdle in the commissioning process or a lesser effect. It would be helpful, at least to me, if she would expand a little on that thought.
Baroness Cumberlege
My Lords, there is no intention that this should be a further hurdle, but if commissioners are going to commission services that are really relevant to local people then they need to take account of what the local healthwatch is saying. This is a huge resource that could improve services enormously and make contracts much more relevant than some of them have been in the past. I hope that that answers my noble friend.
I shall take three quick examples to illustrate my point. The first is a patient in an older persons ward who leant forward confidentially to the CHC visitor, saying, “They don’t feed them in here, you know. They just put the food at the end of the bed, then they take it away again. Please don’t tell them it was me who told you”. The second one is the mental health in-patient in a unit with an outside garden, who explained that he could not go out even though the summer was really hot. There were not enough staff to accompany the patients outside so he “had to stay in all the time”—his words. What quality of life is that? The third is from another patient in an older persons ward who expressed concern about a patient whose hearing aid battery was flat: “They could just have gone to the audiology department to get another battery, but they wouldn’t”. The staff just spoke more loudly to the profoundly deaf patient, increasing his distress and isolation.
To some people these examples may seem quite trivial, but to the people concerned they are not—they are very important. I took those three examples because the first is over 10 years old, yet we know from the CQC’s recent dignity and nutrition inspection programme, and from the evidence from Mid Staffordshire, that patients are still not always adequately fed in hospital. That makes the point of the amendment perhaps more powerfully than anything else. What we are doing now is not working; it is not effective, and does not bring about the radical changes that are necessary. We have to do things differently, and the suggested new clause gives us the opportunity to do just that. I feel strongly about this issue and I hope that the Minister will give it serious consideration. Otherwise, I may have to bring it back at Report.
Health and Social Care Bill
Lord Mawhinney Excerpts(12 years, 12 months ago)
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Lord Beecham
The noble Baroness encapsulates in about two minutes the thrust of what I said in five; she is precisely right. There are clearly going to be costs—redundancy costs, relocation costs and property costs—which we have not yet seen clarified in the case of the Audit Commission which I mentioned despite the fact that the proposal has been around for 18 months. It would be enlightening if the Minister responded to my question and that of the noble Baroness.
Lord Mawhinney
I share the view expressed by the noble Lord, Lord Beecham, of extending appreciation to the noble Lord, Lord Warner, for raising this issue because it seems to me to be one of some significance. Those of us who strongly support my noble friend and what the Government are doing in establishing commissioning-led services do so because, first, we think patients are likely to get a better deal out of it than they get under the present bureaucratic system and, secondly, because we have concerns about the efficiencies of SHAs and PCTs; in my case, that relates particularly to the activities of the East of England Strategic Health Authority.
I hope my noble friend will not deem a probing amendment about cost to be antagonistic or inappropriate. My reaction to the amendment of the noble Lord, Lord Warner, in its present form is much the same as the reaction of the noble Lord, Lord Beecham. I like the idea, I think it is helpful to this Committee to have more information although I am not sure that this form is actually the way in which that should be done. I hope my noble friend will be as generous as he instinctively and normally is in giving us as much information about costs as he can. If 30 per cent seems very high to him, as it does to me given the realities of setting up a new system, perhaps he would indicate what savings he thinks might be achievable if there was a sufficiently stringent regime in place to control costs.
Earl Howe
My Lords, I recognise from everything the noble Lord, Lord Warner, said that these amendments have been proposed with the best of intentions. I start by making it clear that an independent, accountable, transparent and efficient NHS Commissioning Board is a key component of our proposals, so I hope I can reassure the Committee on these issues. In doing so, I hope my Lords will forgive me if I touch on similar ground to that covered during the debate on Schedule 1.
Let me first assure the Committee that we want to reduce the amount of NHS funding spent on back-office bureaucracy. Indeed, as we stated in last year’s White Paper, the NHS simply cannot continue to afford to support the costs of the existing administrative structure. Management costs in PCTs and SHAs more than doubled in the decade up to 2009-10, to £1.85 billion, increasing by more than £220 million in 2009-10 alone.
The noble Lord, Lord Warner, posed the question: what is different this time? Well, I believe a great deal will be different, and that is exactly why Clause 21 provides the Secretary of State with the power to set a limit on the use of resources by the board itself and by the board and CCGs together in relation to administrative matters. The meaning of what is to be considered as administrative matters will be defined through parliamentary regulations for the first time. The board has the power to set similar limits for individual CCGs. The changes that we are making will cut the overall cost of administration by one-third, and Clause 21 gives us the legislative basis to do that.
The Bill includes clear procedures around the publication of the board’s annual accounts, annual reports and performance assessments of CCGs; and I hope that I can provide reassurance in this area as well. The requirement to publish an annual report applies to all of the board’s functions, including its commissioning and financial functions and its performance assessments of clinical commissioning groups. The board is also under a separate duty to publish a report each year containing a summary of the results of each performance assessment. So I do think that the provisions in the Bill already address the concerns embodied in Amendments 146, 148 and 149.
On Amendment 151, which is grouped here, the board’s power in new Section 13X(b),
“to acquire and dispose of property”,
is necessary for the board to acquire any premises that it needs to accommodate itself for the purpose of carrying out its functions. Likewise, should it find itself with property surplus to its requirements, it would need to be able to divest itself of that property. The power simply replicates the power that PCTs currently have.
My noble friend Lady Tonge asked about the costs of transition. The modernisation programme will have one-off costs of between £1.2 billion and £1.3 billion, spread over the lifetime of this Parliament. It will reduce expenditure on administration by £1.5 billion a year from 2014-15 onwards. That is reducing the administrative spending across the system by one-third, and over this Parliament the modernisation will save £4.5 billion gross, or £3.2 billion to £3.3 billion net. So the up-front costs are expected to be more than recouped by the end of 2012-13. With those explanations, I hope that the noble Lord, Lord Warner, will be somewhat reassured. I am sure that I have not completely reassured him, but I hope that I have done so sufficiently for him to withdraw his amendment.
Lord Hunt of Kings Heath
Perhaps I could try to answer my noble friend. There are two reasons why this is important. First, there is a real risk that the mandate will become so large and extensive to cover the Secretary of State—who wishes to transfer responsibility to the national Commissioning Board—that we will end up with a real fudge about who is actually responsible. Secondly, there are circumstances. Until last week, I do not think that many people knew that once a trust had allowed its waiting times to go beyond 18 weeks, there was a problem with some of them taking their eye off the ball. If a patient missed the target, often he might have to wait for weeks. It is quite possible that even if the mandate is as extensive as I suggest it might be, there will be circumstances in which the Secretary of State may need to intervene. It is not the case of having time to rewrite or edit the mandate, or look at the standing rules. The Secretary of State may need to intervene on the day that an issue arises. All that I want to do—and I suspect the noble Lord, Lord Marks, also wants this—is to make sure that the Secretary of State is able to intervene in circumstances that we cannot necessarily anticipate but, knowing the health service, we suspect will arise from time to time.
Lord Mawhinney
My Lords, the contributions of the noble Lords, Lord Marks and Lord Owen, demonstrate again why this Chamber is frequently held in the highest regard for the strength, clarity and coherence of the arguments that are advanced within it. I am not going to repeat what they said because I agreed with both of them. My noble friend Lord Newton and I are in danger of becoming Tweedledum and Tweedledee when it comes to trying to persuade the Government that there is a real world out there with around £130 billion worth of responsibility. Lots and lots of people are doing their best, but human beings have the inescapable ability of getting things wrong from time to time, no matter how good their intentions.
I have to say to the noble Lord, Lord Warner, that one of the interesting things about this Bill is that it talks about a mandate. I think of my time in Richmond House when something had gone seriously wrong and civil servants came in to say, “Well, there’s a mandate, Minister,” and I would say, “Isn’t that fantastic?”.
Let us get down to the reality of what we are going to do about this latest mishap. That is not an argument for not having a mandate, it is an argument for not putting all your eggs in one basket, even if this particular basket is as widely constructed as the noble Lord, Lord Warner, thinks. I have not resiled from what I have previously said in this Committee in that the Secretary of State is responsible. He has to be responsible to Parliament, he has to be responsible in law, and in reality he has to be responsible in the health service. I am relaxed about the Government putting in place arrangements which they believe—it will all have to be tested over the next few years—will provide a more coherent way of delivering a better and more efficient service than we currently enjoy. I do not resile from the fact that when push comes to shove—and it will, because that is one of the characteristics of the Department of Health, more than any other single department in Her Majesty’s Government in my 30-odd years in this building, one end or the other—it must be clear that the Secretary of State can act, and in a way where the people of this country believe he is acting for them and on their behalf.
Lord Marks of Henley-on-Thames
My Lords, if the noble Lords, Lord Mawhinney and Lord Newton, are Tweedledum and Tweedledee, they make a splendid double act in this Chamber. It has been heartening to hear the support for these amendments from all sides of the House. Adding to what the noble Lord, Lord Hunt, said about the observation made by the noble Lord, Lord Warner, the simple distinction is that the mandate and the regulations are intended to be and should be—if they are not to be entirely unwieldy and inappropriately used—prospective. They should set objectives and requirements as to how the strategy of the health service is to be implemented. The intervention powers are intended to be, and must be, reactive. It is the power to react effectively that is important, and as the noble Lord, Lord Hunt, pointed out, it has been used on a number of recent occasions.
May I make one observation to explain our position on Amendment 152, and the difference as we see it? It is not over what is included so much as in what is left out. What is left out is effectively the whole of the intervention regime and what is substituted is a general power to give directions which would take us back to Section 8 of the 2006 Act, which I know that the Government believe is undesirable. I also suggest it is undesirable because it reverts to an unacceptable kind of micromanagement, even though I quite accept the point made by the noble Lord, Lord Owen, about that term being difficult to use in legislation.
Finally, the noble Lord, Lord Hunt, suggested that I might explain why we used the words,
“in the best interest of the National Health Service”.
It is right, I suggest, that there should be a criterion for the intervention by the Secretary of State. The criterion that we have chosen is the interest of the health service. It is, of course, what the Secretary of State considers to be in the interest of the health service. That phrase finds repetition in the Bill, so amendments are consonant with the wording of the Bill elsewhere. I am bound to say that if I was called upon in a court of law to challenge the Secretary of State on what he or she considers the interest of the health service to be, on judicial review I would be very cautious about advising my clients of any prospect of success.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group. At first sight the group might seem loosely hung together but there is a common theme running through all this, and that is: how much is all this going to cost? The back-office functions for commissioning are not inconsiderable, and the more that clinical commissioning groups come together, the more some of those back-office functions can be merged and cost-savings made—or at least the more that expenditure can be decreased, because it is not really cost-saving. The document Developing Commissioning Support is quite interesting because it reveals the complexity of many of the back-office support functions that clinical commissioning groups will certainly need. Indeed, GPs themselves are independent contractors to the NHS. In many ways, that is why the amendment in the name of the noble Lord, Lord Hunt, is so sensible. Many of the other people working in the community are actually salaried, so they do not get any financial gain from contributing to a clinical commissioning group, whereas there are financial incentives for general practitioners in different ways of commissioning. For example, they often run out-of-hours services and may effectively be commissioning those from themselves within a particular area.
I want to draw the Committee’s attention to the need for collaboration in commissioning for those patients and groups of patients who have relatively rare but not terribly rare conditions. I shall take motor neurone disease as an example. In Nottingham, there is a properly commissioned neurological network that works across different PCTs with a lead PCT and the patients with motor neurone disease are able to access a pathway of care—a complete package of care—that is consistent with the Motor Neurone Disease Association’s own Year of Care pathway, which it developed to inform commissioning some time ago.
In another area, Southampton, no end-of-life care has been commissioned for motor neurone disease patients over the past five years. That means that patients even have to move to other areas, such as Gloucester, simply to access specialist palliative care when they are aware that they are going to need it at the end of life. That cannot be right. We know perfectly well that when you provide good integrated care, the quality of patients’ lives as their disease progresses can be improved by appropriate interventions. However, without it, it is a council of despair. The PCTs in that area have refused to fund end-of-life care for motor neurone disease patients, and it is an ongoing problem. Recently, two of the commissioners in the PCT were so concerned that they made a business case, but it was not backed by the PCT on financial grounds, because it is short of funding.
There is another problem, and another reason that clinical commissioning groups need to come together and collaborate. Quite a few seem to be looking at using the map of medicine as a basis to inform their commissioning decisions, but the map of medicine was not devised and written to guide commissioning. It was meant to guide clinical decision-making, and it is not complete in any one sector. You need to put the different parts of it together. For example, if you take chronic obstructive pulmonary disease, it does not have end-of-life care within its module. So if you use that module, you will not get the complete package that patients need. You also have to go to the end-of-life care module. Some of us who have looked at it in detail do not think that it is an appropriate template to use for comprehensive commissioning of services integrating processes early in the disease and right on through.
The commissioning groups are going to be on a very steep learning curve. They are going to find things very difficult, and with many small groups, the cost of them trying to do the commissioning will go up, and that is before they have used their funding to actually commission the services for patients that they have responsibility for.
These are very important amendments. This group and the next one get right into the heart of some of the problems that are beginning to emerge over the way that clinical commissioning groups are defined in the Bill.
Lord Mawhinney
My Lords, the noble Baroness, Lady Finlay, was right when she said that these are important amendments because they get to the heart of one of the big issues of the Bill. They pose a problem that only the Government can help us to understand and resolve. The noble Lord, Lord Warner, introduced us to the concept of clusters. Although I am deeply tempted—for I agree with what my noble friend Lord Newton of Braintree said about them—as we are supposed to be brief, I shall resist expressing my views on clusters until we get to the amendments that I have put down to Schedule 6, which deals with these issues, save to say that, at that point, the House is unlikely to be confused about what I think.
The noble Lord, Lord Warner, pinpointed the issue. From my Second Reading speech and also from conversations which he and I have had, my noble friend will know that I am enthusiastic about this Bill because it introduces GP commissioning. I have strong memories of the great advantage that GP fundholding presented to those patients who were the patients of GP fundholders. So I was drawn to be supportive, because I understood that the groups were going to be relatively small. They would benefit from the inter-reaction of GPs and patients, and nobody in the health service knows better than GPs what is in the best interest of their patients.
On the other hand, I recognise the point made by the noble Lord, Lord Warner, that if you have too many of them—as the noble Baroness, Lady Finlay, has pointed out—you run into other difficulties. Were we to wind up with a smaller number of large bodies, then clinical commissioning starts to mean something entirely different from what those of us who were supportive of the Bill believed to be the case initially. The noble Lord, Lord Warner, said there was a danger in all of this and a number of GPs would wind up being very disappointed. I have to say to my noble friend that if we get in to big organisations, there will be more than a few GPs who will be disappointed at the direction of government-policy travel.
Earl Howe
My Lords, the principle behind clinical commissioning is that decisions about local services should be made as close to patients as possible by those who best understand their health needs. This is why the membership of CCGs should comprise GP providers, rather than other primary care providers, such as dentists, opticians and pharmacists who do not have the same relationship with patients or responsibility for a registered list. I hope this answers the question posed by the noble Lord, Lord Hunt, in his Amendment 154. However, of course effective commissioning will require the full range of clinical and professional input.
Although the members of clinical commissioning groups will be GP practices, the groups will be required to obtain advice appropriate for enabling them to effectively discharge their functions from a broad range of healthcare professionals. So this is not a matter of other professions being shut out; quite the opposite. Other professionals may also be invited by the CCG to be members of the CCG governing body and, as regards nurses, regulations may require that governing bodies include certain healthcare professionals, such as a nurse and hospital doctor. Also, other clinicians could be directly involved in influencing the decision-making of the CCG through, for example, membership of a committee of the CCG, without needing to be members. The basic point is that the function of clinical commissioning is directly linked to the function of the general practitioner and we should not risk diluting the effectiveness of the proposed approach.
The noble Lord, Lord Hunt, suggested that CCGs will not be led by clinicians. I am surprised to hear the noble Lord say that, especially as he has been paying tribute to the work of the NHS Alliance and Dr Mike Dixon for whom I, too, have a high regard. I understand that when Dr Dixon spoke at the NHS Alliance Conference this morning he said that we stand close to liberation of clinicians on a grand scale. That indicates to me that he believes that this is a huge opportunity for primary care clinicians.
My noble friend Lady Tonge asked what this is all about. The philosophy behind these new organisations is different from what we currently have. Clinical commissioning is about placing the financial power to change health services into the hands of those NHS professionals whom the public trust most and giving GPs the flexibility within the legislative framework to The Bill sets out high-level requirements for working together, including at new Section 14Z1 in Clause 23 provision for CCGs to enter into arrangements with other CCGs to exercise their commissioning functions. That addresses the point that was made earlier about commissioning for groups of patients who are smaller in number in a small area. One has to commission at the right level. These can include both joint and lead commissioning arrangements and this may be a topic which the board chooses to cover in its commissioning guidance.
The process of the local development of commissioning organisations is well under way, with pathfinders—emerging CCGs—coming together to begin to explore approaches to commissioning and building up their organisations, supported by the PCT clusters, about which I will talk in a moment. The board will be responsible for undertaking a rigorous assessment of all prospective CCGs, prior to authorisation, to ensure, for instance, that they are of an appropriate size, that they cover an appropriate area and have put the appropriate arrangements in place to be effective commissioners. I would say to my noble friend Lady Jolly that there will be a presumption in favour of coterminosity with local authority boundaries. But as we have previously discussed, and as advised by the Future Forum, local flexibility must include, in exceptional circumstances, the flexibility to cross a local authority boundary where that is appropriate to patient flows.
I am afraid that I do not agree that we should place arbitrary constraints on the number of CCGs or on their budgets as Amendment 157 would do. I appreciate the keenness of noble Lord, Lord Warner to ensure that the maximum resources available are devoted to patient care. The Government share that concern, but the way to do this is to ensure appropriate controls over administration costs and ensure good governance on how that money is spent and the outcomes that it delivers.
Lord Mawhinney
My noble friend said that they would have to decide on the appropriate size. Does he know what that size is approximately likely to be, and if so could he share it with us? Or is that something that is still to be determined?
Earl Howe
I am grateful to my noble friend and I was coming on to that very point, which was a question posed by the noble Lord, Lord Warner and others—my noble friend Lord Greaves expatiated on that theme. Our starting point is this: we do not wish to be unduly prescriptive about the size of clinical commissioning groups. There have been widespread variations in the size and population coverage of PCTs and there is no evidence to suggest that there is a single right size. If one looks at the history of the National Health Service over the last 20 years it has been an attempt by successive Governments to find a right size and we never quite succeeded. It is important that solutions develop from the bottom up and are not imposed from above.
Health and Social Care Bill
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Lord Mawhinney
My Lords, I do not intend to detain your Lordships very long. However, I very much hope that my noble friend the Minister will consider, as I do, that these amendments and this debate are premature. I do not think that we should be focusing on the substance of these debates other than to point out to my noble friend, as was pointed out when we did this a few sittings ago, that there is a broad sense of the importance of putting on the face of this Bill the responsibility of the Secretary of State for education and training. In that sense I agree with the most right noble Prelate—with the Archbishop of York.
Lord Mawhinney
I am a just a simple Belfast boy. Archbishop of York seems pretty good to me; most of the clergy I know can only fantasise.
The timing of this debate is important in that it reinforces the message that my noble friend got the last time this was debated in this Chamber. I hope that he will tell those who tabled the amendments that they are premature. If he does, he will need to tell them that he will take away the contents of this debate and the previous one and bring back, in whatever way the Government think is appropriate, a means to attach the principle of education and training to this Bill. He knows that I hope that he will do that, but I hope that he is encouraged that I share the views expressed that this is not yet the time.
The noble Lord, Lord Owen, has addressed particularly well the element of perplexity and perhaps confusion in the NHS about the Government’s intention. My noble friend and his colleagues keep going on about the Future Forum. I am sure that it is doing a fine job, and no word of criticism about it will cross my lips—except to say, as a simple Belfast boy, that in a democracy it seems to me that the role of this House is to try to persuade Ministers; it is not its role to try to persuade those who are going to try to persuade Ministers. The Future Forum may have an important role, but I would like us to discharge our role quite clearly. The noble Lord, Lord Owen, has the experience of having served in Cabinet, and I have been extremely fortunate and blessed to have had a similar experience. If my noble friend or the Secretary of State can go to the Dispatch Box and say, “I undertake that there will be legislation”, and specify the Session, we will all believe him. However, if that is not possible, it adds to the importance of bringing forward at least the principle to get this issue into this Bill.
Those of us who are in favour of education and training but want to support the Government are not entirely clear whether we should be tempted by Amendments 47A, 47B or 133, and I have to say to the noble Baroness, Lady Finlay, that I am not tempted by her Amendment 199A. But at some point this House has to make a decision, so I hope that my noble friend will stand up, look the noble Lords who tabled these amendments in the eye and say, “Thank you, it’s been very helpful and I’ve heard what you’ve said. I’ll take it away and I’ll bring something back on Report, which I hope will satisfy the whole House”. In the mean time, I hope that noble Lords will not press their amendments.
Baroness Finlay of Llandaff
I hope that the noble Lord, Lord Mawhinney, will be tempted by this comment. If commissioning groups do not have a duty towards education and training, there is a real danger that they will commission services that are equal in quality but undertake no education and training and are therefore of a lower price as they do not incur the expenditure of having to have facilities, and so on, to provide education and training as well. In that case, we will deny the developing workforce expertise of quality placements in many parts of Britain as local commissioning will not take account of it.
Lord Mawhinney
My Lords, I too want to focus on line 27 of Clause 6:
“The Board is subject to the duty under section 1(1) concurrently with the Secretary of State”.
This raises all the issues that we have debated at length. I know that the Minister has taken away Clauses 1, 4 and 10, but, as the noble Lord, Lord Hunt, said, it would be extremely helpful to the Committee if he agreed to take away Clause 6 as part of the package on which to consult. Otherwise, those words in the Bill continue to provide a fault line that at some point will need to be addressed. I hope that my noble friend feels that it would be more productive to address this point in the spirit of co-operation and cross-party support that he has engendered for Clauses 1, 4 and 10 and include Clause 6 as well.
Lord Warner
My Lords, I rise to speak on this amendment, mainly because of my puzzlement over why the Government want to give the national Commissioning Board a concurrent duty with the Secretary of State under new Section 1(1), given all the other provisions in the Bill which try to shape—if I may put it that way—the relationship of the Secretary of State with the national Commissioning Board. This is especially the case with Clause 20, the mandation clause. One interpretation of this concurrency is that the Secretary of State can pick and choose how he interprets his responsibility.
My noble friend Lord Hunt has mentioned, as delicately as he could, what has happened in the Home Office recently about the sometimes rather strange boundary between policy responsibility and management responsibility and the confusions that could arise. This is not the first time that the Home Office has got into this kind of territory. Your Lordships will remember the difficulties that Michael Howard, when he was Home Secretary, had with the chief executive of the Prison Service, Derek Lewis. It boiled down to this problem of uncertainty about where the remit of Ministers ended and where responsibility began, in this case with the Prison Service, an executive agency. Equally, though, I suggest it could have been a non-departmental public body.
There is a lot of history in this area where one should be extremely wary about passing legislation in particularly high-profile areas and giving concurrency of responsibility to a Secretary of State and to a powerful arm’s-length body, in this case a non-departmental public body, the national Commissioning Board. It is fraught with difficulties. I thought that the Government were trying to clarify this with Clause 20. I think the clause has been misunderstood a little bit by the new chairman of the national Commissioning Board, but the wording as it stands gives the Secretary of State the right, before the beginning of each financial year, to set out a mandate for the board.
There are a lot of safeguards in Clause 20, on both sides of that discussion and agreement. The national Commissioning Board has a lot of safeguards. The Secretary of State cannot keep coming back and adding bits and pieces as the year progresses. The Secretary of State also has quite a lot of safeguards. He or she can expect the national Commissioning Board to stick to what has been agreed in that mandate. There is no doubt about the Secretary of State’s ability to give instruction to the board and there is no doubt about his ability to change those instructions on an annual basis after proper discussion and consultation. That is very clear. One of the strengths of Clause 20 is that it does make the relationship clear between the Secretary of State and the national Commissioning Board.
I have tabled an amendment that tries to restrict the number of requirements that the Secretary of State can place on the national Commissioning Board. I can well remember the time when the noble Lord, Lord Mawhinney, was a Minister with responsibilities for health, along with his colleague the noble Baroness, Lady Bottomley, who is not now in her place. We had somewhere in excess of 50 priorities in the NHS that we were required to deliver each year. In practice, we had no priorities, because no one could hold 50 priorities in their head, so there is an issue about how far you go on mandation. Nevertheless, the structure of Clause 20 clearly states what that relationship is, on an annual basis, between the Secretary of State and the national Commissioning Board.
We would do well to stick with that kind of relationship rather than muddy the waters with a concurrency of responsibility. I will be interested to hear what the Minister has to say on this issue.
Health and Social Care Bill
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Lord Warner
My Lords, in the absence of the noble Lord, Lord Patel, I should like to speak to Amendment 37 as my name has been added to it.
Before getting down to the precise wording of the amendment, I want to give some context to my remarks by talking about what I regard as the total incoherence of Clause 4. I note from the letter of 7 November from the noble Earl, Lord Howe, to my noble friend Lady Thornton that the Government now seem to want to treat Clause 4 in the same way as Clause 1. I have to say that that is hardly a ringing endorsement of the drafting of Clause 4. I wonder, privately, how many other clauses we will have this problem with as we progress through the Bill. In effect, the Government are seeking to take these clauses out of the normal consideration of a Bill in Committee. We are getting into rather strange territory where, as we wander through the Bill, we find that, when the Government find themselves under pressure with regard to bits of the Bill, they sweep those bits aside to have another go in some procedure, which is less than clear to the House, and promise to come back later. Before I go any further on the amendment, as I am already unclear as to how the Government are going to handle Clause 1—and, it now seems, Clause 4—procedurally, I would welcome any light that the Minister can shed on how we are going to deal with these clauses and have a proper discussion of them in Committee.
I turn now to Amendment 37. I am completely supportive of reducing or even stopping ministerial and Department of Health micromanagement of the NHS.
Lord Mawhinney
I am extremely grateful to the noble Lord. Is he aware that the concern which he has just expressed is held by other noble Lords as well?
Lord Warner
I am grateful to the noble Lord for that intervention. The more the merrier, I say, on this theme and I hope that noble Lords will speak out about this issue in our debate today.
As I was saying, I am completely supportive of reducing or stopping ministerial and Department of Health micromanagement of the NHS, which, as I understand it, is the Government’s purpose in framing Clause 4. However, I struggle with reconciling the clause in its present form with the other duties and powers that the Secretary of State has taken unto himself in the Bill. I do not mean just the relationship between Clauses 1 and 4, which itself seems to have produced a hefty dose of confusion and uncertainty, not to mention, in the case of Clause 1, many attempts at drafting alternatives. How will Clause 4, for example, fit with Clause 3, which most of us in the previous session in Committee—except, perhaps the Minister—seemed to favour strengthening in terms of the duty on inequalities? How will it fit with Clauses 16 and 17, with their very extensive regulation-making powers for the Secretary of State, or indeed Clause 18 or Clause 20, which gives the Secretary of State extensive mandating powers, which seem to me to be rather stronger than the new chairman of the NHS Commissioning Board seems to think?
Many people who have looked at the Bill do not understand what the Secretary of State is trying to do in relation to the issue of central control, central powers and autonomy and delegation. Is he trying to let go or to tighten his grip? I do not see, at present, how the Government can retain in the Bill a clause as loosely drafted as Clause 4 and, at the same time, retain all the other powers of the Secretary of State that we will be discussing later. Apart from anything else, this is a recipe for confusion in the minds of many local decision-makers.
Are people to take Clause 4 as drafted at face value? If they do, will they not be wondering whether the Secretary of State or his henchmen and henchwomen in the Department of Health or the NHS Commissioning Board will come down on them like a ton of bricks using other powers in the Bill if they think that they are not acting in the interests of the NHS? What will the courts make of all this? If people do not like a decision taken higher up the line, as the Royal Brompton and Harefield NHS Foundation Trust is demonstrating now over paediatric surgery changes, do they seek judicial review of the central decisions, praying in aid Clause 4 as drafted? Will not Clause 4 in its present form simply encourage legal challenge and create local uncertainty?
I turn to the wording of the clause and why Amendment 37 is at least an improvement. It is an attempt to improve what is a highly defective clause. As I read Clause 4, it seems to place little inhibition on local decision-makers,
“exercising functions … or providing services”,
in any manner that they consider appropriate. If that means what it says in the dictionary, if people want, for example, to provide a wide range of alternative therapies for which there is no scientific evidence of clinical benefit, they can do so, praying in aid the powers under Clause 4. If they want to remove tattoos or do a bit of cosmetic surgery, I cannot see that there is very much to stop them. Under the clause as drafted, the Secretary of State can intervene only after the event. If he finds out what has been going on, he can, in effect, try to stop it happening again, but that is ex post facto. He cannot intervene earlier, as I understand the drafting of the clause. I am happy to be corrected by the noble Earl, but I am not the only one who thinks that these powers will have that effect.
Amendment 37 is an attempt to require those behaving autonomously locally to apply the test that their actions are in the interests of the NHS before they take their decisions rather than relying on the Secretary of State deciding that they were not in the interests of the NHS after the event. I see that my colleague, the noble Lord, Lord Patel, is now with us. I suspect that we both agree that it is a far from perfect solution, but it is better than the way that the clause is currently drafted. I know that some noble Lords are very attached to the clause—like me, they are attached to the idea of autonomy—but I hope that they will consider whether in its present form it is really in the best interests of the NHS. I suggest that the Government rethink the form of Clause 4 if they want to proceed with it. As I see it, what would get nearer to their intentions but not create some of the loopholes that I have identified is a kind of drafting that gives a commitment that the Secretary of State would not exceed the powers provided elsewhere in the Bill, would impose only burdens that are totally consistent with those powers and would maximise operational freedoms for those delivering NHS services consistent with public accountability. That seems to me to be the direction in which the Government are trying to go, but the way the clause is drafted does not do that.
I would prefer the Minister to accept that the clause is seriously deficient and either abandon it altogether or take it away for a serious makeover. In the mean time, on behalf of the noble Lord, Lord Patel, and myself, I move Amendment 37, which goes a modest way to improve the shape and drafting of the clause. I beg to move.
Lord Marks of Henley-on-Thames
My Lords, as my noble friend the Minister points out, the autonomy clauses are to form part of the Government’s discussions with other noble Lords about the Secretary of State’s duties. These clauses are of considerable significance. In my judgment, Clause 4, relating to the Secretary of State’s duty, and the new Section 13F, relating to the Commissioning Board, threaten the Secretary of State’s primary duty to secure provision of services, however that is ultimately worded after discussions are concluded.
In principle, promoting autonomy is to be welcomed; so is avoiding micromanagement within the NHS, as my noble friend Lady Cumberlege so eloquently pointed out in her speech. One of the best features of this Bill is that it establishes a well-defined decentralised structure in which decisions about arranging and commissioning services are made at a local level in accordance with local needs and conditions. However, as the Government have recognised, it is also essential that final responsibility, both for the quality of the health service and for the very large sums of taxpayers' money spent in providing it, should rest with the Secretary of State, and that he or she should be accountable not only to Parliament for the exercise of that responsibility but answerable in the courts for failure to exercise it in accordance with the law.
I will say a few words now about how the difficulty arises in drafting provisions that strike the right balance between decentralisation and the Secretary of State’s ultimate responsibility. As we all know, under Section 1(2) of the National Health Act 2006, the Secretary of State had a primary duty to,
“provide or secure the provision of services”.
That was underpinned by a direct duty under Section 3 to provide a list of specific services such as hospital accommodation. That duty was in turn supplemented and buttressed by powers under Sections 7 and 8 to delegate and give directions to other NHS bodies. So there was under the 2006 legislation a simple linear structure down from the Secretary of State. Under the Bill, the position is more complex, because under Clause 10 the Section 3 duty to provide the specific services is devolved to the clinical commissioning groups, and the general powers to delegate and give directions are removed. That is why it is challenging to provide for an overarching duty on the Secretary of State to secure the provision of services under Clause 1, and to provide for the exercise of all his other functions to that end. It is that challenge that is principally to be the subject of discussions.
If the Secretary of State is bound by a duty to promote autonomy, as proposed in Clause 4, the force of his duty to secure provision of services is weakened, because his failure to intervene in any given case would be very difficult to challenge on judicial review, except in an extreme case. Generally, the Secretary of State could respond to any challenge regarding a failure to act on his part by claiming in his defence that he was declining to act pursuant to his duty to promote autonomy. It does not help that the Secretary of State would only be bound to promote autonomy,
“so far as is consistent with the interests of the health service”,
in the context of any such challenge. That is because the arbiter of what those interests were would be the Secretary of State himself. A court would not substitute its own view of the interests of the health service for his unless it was satisfied that his view was irrational; and that is too high a bar. It follows, in my view, that there is an inconsistency between the proposed duties to promote autonomy and fulfilment of the Secretary of State's overall responsibility, however it is to be expressed.
The problem with proposed new Section 13F is that it is proposed that the board, with regard to its autonomy provision, be similarly bound to promote the autonomy of the commissioning bodies and others. So the board can argue that it should decline to intervene with the commissioning bodies in accordance with its duty to promote autonomy. That could be relevant if the board were challenged by judicial review on its failure to exercise its intervention powers or, alternatively, relevant if the Secretary of State wished to exercise his powers in respect of the board on the board's failure to intervene where the Secretary of State thought that the board ought to intervene. Thus, while it is desirable— and I entirely agree that it is—for the chain of responsibility to allow plenty of slack as a general rule, when the chain needs to be tightened in the event of failure or threatened failure, the danger is that the chain will be found to be weak in two important links.
I look forward to the discussions to be held with my noble friend the Minister and pay tribute to his and his department’s willingness to hold those discussions on a cross-party basis. I hope that we will see some way as to how this conundrum may be resolved, to retain a strong legal chain of responsibility without encouraging or permitting micromanagement of the bodies in the NHS, to which powers are rightly to be devolved. If we find a solution, that in itself will do a great deal to assist in the confidence that my noble friend Lady Cumberlege rightly points out is lacking among the public and the NHS in the political process.
I add only this. In my view, these two clauses could simply be deleted without doing any violence to the purposes of the Bill. That is because the principles of decentralisation and autonomy and the avoidance of micromanagement are defined and limited by the Secretary of State’s powers woven into the very structure of the Bill and into the way in which the bodies relate to each other under the provisions of the Bill. I suggest that these clauses merely serve to muddy the waters.
Lord Mawhinney
I noticed that the noble Lord, Lord Davies of Stamford, pointed to me when he talked about making a theological point about a besetting sin. Because I was going to compliment him and say how pleased I was that he did so, I will happily share that endorsement with the right reverend Prelate.
The noble Lord also made an extremely important point, and around that point I want to speak for a few minutes, with the House’s indulgence. His second point was right; the problem with the health service is bureaucracy—it is not anti-liberation or shackles, but systems and procedures and a pressure coming from all sides that nobody should rock the boat. I listened to my noble friend Lady Cumberlege, and I shall come back in more detail in a moment on what she said, but I suspect that I cannot be the only one in this House to think that, for every case where outsiders did not like some political intervention, outsiders, including patients, did not like the lack of intervention from inside the health service.
On the whole, my experience of over 30 years at both ends of this Corridor has not been that patients come to me and say that the problem with the health service is the politicians. They more frequently say that the problem with the health service is the management or, as we discussed the other day, the doctors who will not admit when they have got something wrong, or the nurses who simply do not provide even the most basic care for the elderly in today’s health service. So the noble Lord, Lord Davies of Stamford, did us a favour when he pointed out that bureaucratic point.
I remain extremely grateful to the Minister for the willingness that he expressed the other day to take away Clauses 1 and 4. Those in the House for that debate will know that it was a widely held view across all the Chamber—and the Minister not only agreed to do it but did it with a tone and spirit that was widely admired. I thank the noble Baroness, Lady Williams, for her contribution in support of that. I would not want anything that I or others say to make my noble friend feel as though the House was reneging on the request made to him to take Clauses 1 and 4 away, which he showed a willingness to do. My contribution to this particular debate is to suggest a few of the things that he might like to think about when he does so which may need to be clarified, resolved or excised, so that when we get back to this on Report he will have a much smoother run—one which I and I suspect other noble Lords hope that he will be able to enjoy.
When the noble Lord, Lord Warner, made his comments, I intervened to say that he is not the only one in the House who thought what he thought. I was referring to a very pertinent phrase which he used. He said that he was not clear whether the purpose of Clause 4 was for the Secretary of State to be engaging or disengaging. I think that is part of the problem of the drafting of this clause. Those of us with some knowledge of the health service are still unclear whether this is meant to help the Secretary of State engage or disengage.
That takes me to my noble friend Lady Cumberlege. She and I served happily together in the department. We conspired for the common good on many an occasion, both in public and over a cup of coffee in our offices. She knows it to be true that there are few people in the health service who I hold in higher regard for a lifetime of work. But I am going to add a “but”. On this occasion, while I admired the tenacious adherence to what she read as the spirit of this clause, most of the rest of what she said left me wondering exactly where she was trying to go. Nobody is claiming that democracy is a clean and simple process. It can be messy. Part of my noble friend’s argument was that Ministers were not to be trusted and that it would be much better to hand it over to the professionals. I respect my noble friend for that view but I do not think it carries a lot of weight. I, too, read the NHS Confederation’s paper. In fact, I have it with me. Every time I read what it said on Clause 4, I thought to myself, “There is just the chance, Brian, that you are giving these people more credit than they deserve”. Perhaps this is a politically incorrect thing to say, but I was reminded just a smidgen of Mandy Rice–Davies in the sense of, “Well, they would say that, wouldn’t they?”.
The problem with this debate is that you have the masses of the health service with their procedures and bureaucracy intermingled with outstanding professionals who, I know from my experience, feel as frustrated with their colleagues as sometimes Ministers feel with the bureaucrats. On the other hand, you have this messy democratic process that occasionally shifts Ministers. Listening to my noble friend, you would be amazed by the claim that the NHS is the envy of the world. I think it is only the envy of the world in certain aspects and that there are other aspects where the world thinks it can do a better job than the NHS. The health service is right up there competitively but given the history of the past 40 years, in which Ministers have played a leading role, it is hard to envisage the outcome that my noble friend talked about. Therefore, I have to say to her that I had a real problem with what she was trying to convey to the Committee. If you do not have democracy, you do not have any public accountability.
Baroness Cumberlege
Does my noble friend agree, however, that when I was putting forward the case, I said that we would not negate democracy but that this was a method whereby we could give the Secretary of State more discretion when he wished to interfere—or, rather, not to interfere but to let local people run the service? As a manager, I know that if you are going to achieve things you have to win the hearts as well as the minds of the people who are running the service. I sense that my noble friend is trying to ensure that I will be isolated in these arguments. When I proposed this, I said to your Lordships that I knew that the line I was taking would be unpopular in the Palace of Westminster. Of course it is, because the House is full of politicians. However, I would like to explain to my noble friend that it is not just my view.
Kevin Barron, the Labour MP for Rother Valley, who is a previous chairman of the Health Select Committee, told his colleagues—this was at the Labour Party conference, which understandably I was not at but I read the report—that he recalled looking at statistics for the east of England, some years ago, which were worse than for the rest of the country. The region had retained more local units, which corresponded with marginal constituencies and he said that it was his belief that health experts’ advice, rather than party politics, should determine how and where facilities were provided.
In addition, Paul Corrigan, adviser to No. 10 when Tony Blair was Prime Minister, said that “the public want accountability”—we agree with that—“but are not very keen on the fact that the responsibility lies with elected politicians, who they do not altogether trust”. I serve on a lot of committees, have been on a lot of platforms and have talked to a lot of people over the years in the National Health Service. The question that is often put to me is, “Can you not depoliticise the NHS?”, because it is seen as a very real problem. I accept that we cannot, with this democratic process that we are in, but, as I was saying, there is a balance to be struck. At the moment, unless we have something similar to Clause 4, I cannot see that balance being achieved.
Lord Mawhinney
I am grateful to my noble friend. The answer to her question is no. No, I was not trying to isolate or misrepresent her and no, you cannot run a publicly accountable health service without politicians—and without politicians being in charge. In her first speech, my noble friend prayed in aid the tendency of politicians to micromanage. There is one noble Lord in this House—who I will not name, for reasons that will become obvious very soon—who came to me when I was party chairman. He wanted to micromanage politically the hospital in his constituency. He was shown the door pretty quickly by me, precisely because that is not the sort of micromanagement that even politicians want to buy into, much less the medical profession, the nursing profession and all those who work in the health service. That is not micromanagement; that is pure political interference for self-interest.
I am not at all clear what micromanagement really is. Occasionally, as my noble friend pointed out, decisions are so difficult and tricky that they take quite a lot of time. I invite her to cast her mind back to those heady days when we shared Richmond House.
The Lord Bishop of Chester
My Lords, perhaps the noble Lord, Lord Davies, was right to refer to besetting sins behind me.
Lord Mawhinney
Moving on, I remind my noble friend of the times we sat with a cup of coffee and a private secretary or two—just to make her feel better—and we wrestled over some fairly difficult and complex issues. Either she or I would say, “We need a bit more information about that”, the civil servant would say, “Yes, Minister”, and in due course, when diaries permitted, we would sit down again with a bit more information. That can be said to be good ministerial governance—or it could be said to be politically motivated delay when others in the health service knew better, and if only we had got out of the way they would have done what they wanted, but they would do what those in power at the time happened to want, ignoring the contrary views of those who did not happen to hold the management positions at that moment.
I want my noble friend to accept that I still hold her in as high regard as I did before this debate started, but we part company fairly fundamentally on the issue of the accountability on a spend of £128 billion a year. As I said in an earlier debate—I have expressed this privately to the Minister, and my noble friend had the grace to say that he understood—my difficulty is that if you are spending £128 billion of public money, the public whose money are spending are simply not going to say when big problems arise, “Well, that’s okay, we’ll listen to him or her because he or she is chairman of a quango”—even a quango as highly thought of as my noble friend no doubt hopes the national Commissioning Board will be.
There is no debate in this House about the fact that the Secretary of State must be held accountable by Parliament. My noble friend Lord Marks of Henley-on-Thames made the point, which has to be right, that the Secretary of State must also be held accountable by the courts. However, the Secretary of State also needs to be held accountable by the public and the patients, who have not had a huge showing in our debates thus far. I have concerns about this clause because I am not at all clear how the Secretary of State is going to satisfy X billion people by putting in £128 billion that he is accountable to them for if they are absolutely determined that they want him to be accountable to them.
To help the Minister when he takes this clause away and thinks about it, I say to the noble Lord, Lord Warner, that I was not convinced by the amendment. I am happy that he has made that part of his contribution to the review that my noble friend will conduct, but I hope that he does not press it to a vote because I for one would not be able to support it.
There are parts of the clause that the Minister really needs to look at, such as the phrasing in new Section 1C(a):
“any … person exercising functions … or providing services … is free to exercise those functions or provide those services in the manner that it considers most appropriate”.
From that, I am not clear—I do not necessarily want the Minister to tell me this today, but I ask him to think about this—at what point these actions start to become health service policy in their own right. We quote precedent in here. If someone takes an action because they think it is right in the circumstances, does that become a policy or a guideline? Where does the Secretary of State play any role in developing a policy for the NHS?
New Section 1C(b) goes on to say,
“unnecessary burdens are not imposed”.
I have to say to my noble friend that I do not understand what that means. Who decides whether it is a burden? Who decides whether the burden is unnecessary, and where can you challenge the decision whether a burden is a burden and when it becomes unnecessary? It is okay if you consider your action to be the most appropriate in the circumstances. My party occasionally gets criticised for being inclined to being a bit too individualistic, but you cannot run a health service in which everybody can make the decision that they think is most appropriate in the circumstances without a well defined political framework within which they would be expected to act.
I will tell my noble friend something that I have said to him in private but do not mind sharing in public. I spent 26 years at the other end of the Corridor. In all that time I never once voted against my party. Some in this House will see that as wimpish and craven, and some will see it as a fine expression of loyalty. Frankly, I do not mind how you see it. It is how I see it that is important to me.
I have not done a Committee stage of a Bill since I left the Cabinet in 1997, so I want Members of your Lordships’ House to understand that I am not having much fun in these Committee sittings. This is not something that comes naturally to me, and I have tried to reassure my noble friend that my participation in these debates is because of my commitment to the health service and my desire that it should be as excellent as possible. This is for the sake of my former constituents, who are patients. In that spirit, I hope my noble friend will take away Clauses 1 and 4 and think about them again.
Lord Warner
My Lords, I compliment the noble Lord on his speech and say that we hope to see him every day of this Committee.
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Lord Harris of Haringey
My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint—for example, the death of a loved one—but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.
Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative’s case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.
In a case reported only three weeks ago—the most recent case that I have come across, but I am sure there are many others—a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.
I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.
Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:
“To err is human, to cover up is unforgiveable”.
That is precisely the concern that motivates this amendment.
In the White Paper Equity and excellence: Liberating the NHS, the Government said that they will require hospitals to be “open and honest” when things go wrong. That stems directly, I think, from the Liberal Democrats’ manifesto commitment, but, unfortunately, their manifesto referred only to hospitals rather than to the wider health service. I think that the Liberal Democrats intended that such a duty should be statutory, but my understanding is that the Department of Health is looking at this as something that could be written into contracts. As the noble Baroness, Lady Masham, has pointed out, having a lesser status than a requirement to inform a central agency that something has gone wrong would mean a lesser status in terms of informing the family. It is really important that we look at this issue and take it seriously, so I hope that the noble Earl will accept the amendment.
In 2005, a National Audit Office report revealed that only 24 per cent of NHS trusts routinely informed patients of a patient safety incident—that implies that more than three-quarters of NHS trusts do not do so routinely—and 6 per cent admitted that they never informed patients of a patient safety incident. Quite clearly, there is a “culture of denial”. Noble Lords may think that that is rather an alarmist statement, but I am simply quoting from a Department of Health document from 2006.
Lord Mawhinney
My Lords, I am extremely grateful to the noble Lord for giving way. I do not want him to interpret my question as opposition to the general point that he is making, but before he finishes will he say a word about the role of lawyers of health service bodies in these circumstances? I am not a lawyer, as I have told the House before, but in both cases that he has cited I could see legal advisers saying, “Say nothing”. If we are to take this amendment seriously, we need to have some idea of what part the law might play if the Bill were to be so amended. As the noble Lord has experience, I would be grateful if he would reflect on that.
Lord Harris of Haringey
My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.
An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.
My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.
Lord Winston
My Lords, I congratulate the movers of the amendment on the sincerity with which they and the people who supported it spoke. I think that I am going to make myself deeply unpopular both inside and outside this House by saying that I am implacably opposed to the amendment. It is a profound mistake and its wording is quite inadequate and actually very dangerous for patients.
I say this because I have spent some 25 or 30 years of my practice in a secondary referral centre, where I have seen patients from all over the United Kingdom and outside it being referred because they had surgery and other treatments that were botched, mistaken or not properly done and that caused problems. From my serious experience of occasions when I was much younger, telling patients that the thing had not been properly done was often a profound error. It caused immense distress and continued to cause problems afterwards when there was no legal redress possible in any case, as there often is not. By presenting patients to a court, you often add to the distress that might be caused to them and the tensions that they have to go through. The problem with this amendment, good though its intentions are, is that it will increase that risk in the health service.
I do not wish to be anecdotal because I do not think it is appropriate. I could tell numerous anecdotes, rather than just one or two, from a surgeon's perspective to show why I am highly suspicious of this amendment. I will say one thing about why I feel so strongly about this. When you as a doctor give a second opinion on somebody who you believe has been badly treated, there is invariably a degree of subjectivity in your assessment because you are not in the situation that the previous person was in. The amendment refers to,
“any incident or omission in or affecting their care which may have caused harm”.
This is highly dangerous. I believe that it would cause massive problems to a large number of patients and I hope that the noble Lords who tabled it will think seriously before pressing it this evening.
Lord Mawhinney
My Lords, I join the noble Lord, Lord Campbell-Savours, as a former Member of Parliament. I am guessing that anyone who was a Member of Parliament for any length of time could, through their constituency casework, repeat the sort of story to which he referred; so I will not burden the Committee by adding similar types of anecdote, other than to say that we cannot all be wrong. Up and down the country, people are going to see their Members of Parliament and saying, “We have a problem that we can’t get past”. There has to be something in the system that is not working right. Like other ex-Members of Parliament, I have from time to time tried to intervene, but the fact that I was a Member of Parliament made virtually no difference whatever to the health authorities. Maybe you would argue that Members of Parliament were the last people they would tell, but they were not going to tell anybody.
Having said that, I also agree with one thing that the noble Lord, Lord Winston, has just said. I hope that the noble Baroness, Lady Masham, will not take this amiss—I will come to my view in a minute—but I do not think that this amendment is the right amendment. Perhaps I may read to her just a few words:
“full information to patients, their carers or representative about any incident or omission”,
that may affect their care. That has been taken to refer to a major problem—a life-threatening problem, a permanent disability or disfigurement problem—but, actually, it could also refer to the numerous stories that appear in our national newspapers, week in and week out, about the absence or inadequacy of nursing care for the elderly. Those are incidents and omissions that affect their care. An amendment that is that wide in its potential scope seems to me to require further thought. It might be described, to use my example, as inadequate nursing care—and, incidentally, I speak as the husband of a qualified nurse—but the nurses do not appear to think that it is inadequate, because it keeps on happening. The management does not think that it is inadequate, because it keeps on happening. The boards of the hospitals do not seem to think that it is inadequate, because it keeps on happening. So, identifying at that level what this amendment might mean seems very difficult.
Health and Social Care Bill
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Baroness Andrews
My Lords, I think I can add the support of these Benches to the extraordinary way in which this matter has been resolved. It is a great tribute to my noble friend Lady Thornton, who has led so many of the debates across this House, during which many aspirations have been drawn out, problems identified and voices collected. The Minister responded clearly to what the noble Baroness, Lady Williams, expressed so well: the peculiar trust and confidence that is held in the National Health Service in this country and how careful we must be in our processes to honour that expectation and trust, so that clarity on the legal responsibilities and the future of the NHS is absolutely secure.
Lord Mawhinney
My Lords, I would not presume to speak for my noble colleagues on these Benches, but it seems to me right that someone who would be openly classified as a supporter of this Government should rise to say thank you to my noble friend for his statement, which finds support not only on the Benches opposite or on the Lib Dem Benches but, I presume, on these Benches also. I say that as someone who has actively taken part in the proceedings thus far.
My personal view is that this House owes a debt to the Minister. I would guess that it was not necessarily the case that all of his colleagues immediately jumped to the same conclusion as him, but he jumped to it having listened to the debate last week. We should express our appreciation not only for the fact that he jumped to that conclusion but for the tone that he has set in delivering it. If that tone prevails during the rest of Committee we will all be the better for it and, much more importantly, the country and the National Health Service will be the better for it.
I have one substantive comment to make to my noble friend. None of us will want to question in any way the professional expertise of the legal profession. I am sure that it is to the benefit of the House that legal minds apply themselves to trying to find a way forward that would be broadly acceptable. I say gently to my noble friend that this is also about medicine and the delivery of medical care and, if he would permit me to use a not very fashionable word, it must also be seen in a political context. Those are aspects of the deliberations which I hope that he will bear in mind, and not simply adhere to the consensus legal opinion, no matter how good or persuasive it may be, before that is tested in both the medical and the political world.
Baroness Jay of Paddington
My Lords, as one who has been involved peripherally in the discussions over the past few days with the Minister, I follow the noble Lord, Lord Mawhinney, in paying tribute to the Minister for his great patience and courtesy in the number of times and the way in which he has sought to talk to everyone involved in this.
Further to the question of my noble friend Lady Thornton and the noble Baroness, Lady Williams, in exactly what form would the Minister see further discussions taking place? Several Members of the House have referred to the possibility of the Constitution Committee—which, as the House knows, I have the privilege of chairing—taking this up again. There have already been informal discussions in private sessions of the committee about ways in which we might take this forward. It would be helpful if we could have some indication of how the Minister sees that happening and how it may develop. I very much take on board the points made all around the House about the way in which the Bill as a whole, not simply this clause, has been discussed and how helpful that has been.
Baroness Thornton
My Lords, I will also speak to Amendments 10 and 14. The purpose of these amendments is to strengthen the responsibilities of the Secretary of State for improving quality by changing the requirement to act with a view to reducing inequalities to providing services or making arrangements for others to provide services that ensure an improvement in quality. Furthermore, in the light of Clause 1 removing the Secretary of State’s role in providing services—although we still have that matter to resolve—it probes the extent to which the Secretary of State might be able to effect an improvement in the quality of services.
In general, we would welcome and support an explicit duty being placed on the Secretary of State to improve quality—of course we would. The grouping of these amendments has two components. First, it makes the point that quality and inequality affect communities as well as individuals, so planning must be on a geographically defined basis. Secondly, there are amendments designed to make the Secretary of State more directly rather than indirectly accountable—that goes back to the Clause 1 argument again. Amendments 9 and 10 tighten up the Secretary of State’s duties. As amended, the provision would state that the Secretary of State must exercise the functions of the Secretary of State in relation to the health service by providing services or making arrangements for others to provide services to secure continuous improvement in the quality of services provided. This mirrors the changes that we have argued for in relation to Clause 1, to make the Secretary of State more directly responsible rather having responsibility at one stage removed.
As I am sure the noble Baroness, Lady Finlay, will explain to the House, the amendments in her name are also important. This is the first time—but certainly not the last—that the idea is introduced of responsibility for an area-based population. The amendments acknowledge that quality and inequality affect communities as well as individuals. We support this idea of area-based responsibility and will later seek clarification on how basing some commissioning on GPs can be reconciled with the need to plan for geographical populations. Indeed, Amendment 14 is on the same theme, making the Secretary of State directly responsible and going back to that formulation of provision as opposed to being one step removed. As amended, the provision would say that in discharging the duty under subsection (1) of the proposed new Section 1A of the 2006 Act, the Secretary of State must either provide services that ensure, or make arrangements to ensure continuous improvement in the outcomes that are achieved. Actually, the amendment is defective because the word “must” has to be left in.
Lord Mawhinney
I am extremely grateful to the noble Baroness, but she skated over what an area-based population is. Presumably, if the Secretary of State has responsibility for individuals he has responsibility for a lot of individuals who happen to live cheek by jowl to each other. I am sure that it would be helpful to the Committee—and it would certainly be helpful to me—if she told us what an area-based population is or might be.
Baroness Thornton
The amendments that open the debate are in the name of the noble Baroness, Lady Finlay, so I suspect that she will also take the opportunity to explain that to the Committee. However, I think that we will have several debates as we move through the Bill that are about the concerns that some of us have if the commissioning of services is based on GP lists and not on a population in an area. What this probing amendment seeks to do is to help to open up that discussion about how you make sure that there are not people in an area who may not be on a GP list and who fall through the cracks in terms of health provision in that area.
This series of amendments seeks to do two things. One is to raise the point about equality and inequality as it affects communities as well as individuals. For example, the provision of family planning services in an area affects an area as well as the individuals who make use of the services, and you would indeed plan those services. That may not be a good example because of course that is public health, but I think that the Minister will see that you have to look at how you plan services in terms of not only the individuals but the needs of an area.
Baroness Finlay of Llandaff
My Lords, I shall speak especially to Amendments 10A, 10B and 11A, and address my remarks principally to Amendment 10A, whose aim is to avoid fragmentation and inequity through a loss of contiguous, coterminous and comprehensive area-based structures for healthcare resource allocation planning, commissioning and service co-ordination. The amendment would ensure that the sensible changes that were just agreed today over GP contracts for this year are carried forward into GP consortia arrangements. The Secretary of State, Andrew Lansley, himself discussed issues around area-based practice at the congress for the Royal College of General Practitioners last month, and had a fairly extensive and open discussion with the GPs there on this topic.
I move to the Bill as it stands. I hope that with some of the background discussions that have been happening, my amendment will not just be dismissed and will be quite seriously considered, because it might solve a problem.
In the Bill, the new commissioning consortia’s duty—
Lord Mawhinney
I am sorry, I may be the only person in the Committee who is thick enough not to understand what is going on, but I have to say that I do not. I asked the noble Baroness, Lady Thornton, to define something that she said she was in favour of, which was area-based entities, but she palmed that off on to the noble Baroness, Lady Finlay. I would be grateful if she would define what an area is. Is it a county, a city, a town or a village? Is it the north-east or the south-west? Who in the context of this Bill does she see as having responsibility for defining the area and addressing the issue in the area?
Health and Social Care Bill
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The Earl of Listowel
My Lords, I am most grateful to the noble Baroness for this debate on the primacy of patient care. It is very important. All noble Lords may well agree that this is fundamental, so I hope they will forgive me if I raise one concern with the Minister, which has been raised by people who practise in the NHS. The constant changes to the National Health Service over many years, particularly in England, have undermined, to some degree, our efforts to deliver the best to our patients. It is something I am familiar with from speaking to child mental health professionals in the past. They have complained that constant change undermines their ability to make relationships with other professionals work effectively around the child. Also, they get to know a commissioner who then changes. It is a different area, but social workers have also raised with me the issue of local authority changes. I remember speaking to a local authority social worker on a Friday evening who was despairing at yet another structural change to social service provision within the local authority.
In its briefing to Members of your Lordships’ House on the Bill, the Nuffield Foundation also expressed concern at the constant changes to the NHS and the short horizons. One Secretary of State may make changes but then a new Government arrive and there is another upheaval. I recognise what the noble Baroness, Lady Williams, says: flexibility and changes are needed, but my sense from speaking to the professionals and expert think tanks is that there has been too much change over a continual period. This was reinforced in the briefing that the presidents of the royal colleges gave to Members of your Lordships’ House this week, in which the president of the Royal College of General Practitioners finished with a very powerful plea: “Please, give us some stability; please stop changing the NHS”. She particularly alluded to the experience in Scotland. If I remember correctly, she said that for about the same investment Scotland has better productivity. She lays this at the door of the fact that over several years there has been some stability within the health service there. I take this opportunity to ask the Minister whether, in future, he will keep in mind the need to allow important changes to bed down. Perhaps we could build a bit more of a consensus on what needs to be done, recruit and retain the best professionals on the ground and allow them to evolve the best practices. Then we will see better outcomes for our patients, with a similar input.
Lord Mawhinney
My Lords, the noble Lord, Lord Hennessey, started by reminding us that preambles have somewhat gone out of fashion. Personally, that does not bother me one way or the other: if there is value in a preamble, we ought to get serious about that value, whether or not it is a common occurrence. However, I want very gently to take issue with the noble Baronesses, Lady Williams and Lady Jolly. I do not think we should be rushing on; this amendment requires serious consideration, not least because it is headed:
“Principles of the Health Service in England”.
I have been in this place, at both ends, for long enough to know that if we nod this preamble through so that we can get on to the meat of the Bill, for 10 or 20 days in Committee, or whatever it takes, noble Members will keep reverting to the fact that we have already established the principles in the preamble and that will determine how we should proceed. That is not helpful, certainly not if we have nodded this through as a “God, motherhood and apple pie” type of procedure.
I was struck by the introductory comments of the noble Baroness, Lady Thornton. I liked her phrase “borrowed and blue”—that was very imaginative. Whether it was meant to detract or distract from the substance of the words we will never know, because she did not spend much time talking about the substance of the words. However, I put it to her: how can you have a principle when the person who is moving it says, “I am a bit worried about the words ‘not the market’ but, hey, we all know what it means”? The truth is that we do not know what it means and I hope that the noble Baroness, Lady Williams, will not take it amiss if I say that if this is borrowed from a motion to a Lib Dem conference, we are probably even less likely to understand what it means. We cannot have a principle when nobody knows what its words are actually saying, including the noble Baroness who moved them.
Proposed new subsection (3) talks about:
“The primacy of patient care”.
I am an extremely privileged individual: I have served in this building for 32 years, as a Health Minister for a few of those years. No matter who is in government and who is in opposition, I have never heard anybody promote a proposal on the health service that is not predicated on the words “the primacy of patient care”. It is one of those phrases that we all use to reassure everybody, particularly those who do not agree with us, that actually, deep down, we are all right when it comes to the NHS. I have done it; I see others in this Chamber who have done it in my hearing, and I say to the noble Baroness, Lady Thornton, that I do not know what it means as a principle. It has to have some meat attached to it to have any substance, which it does not.
Since I have taken issue with the noble Baroness, Lady Williams, let me now agree with her comment about the reference to structure. I can hear us nodding this through and then saying, when we get into the meat of the Bill, “Of course, we have already dealt with the principle that the structure must not be changed, so we cannot have this particular amendment and we cannot pursue this particular idea. Let us move on”. Therefore, I have serious reservations about this; not the principle of a preamble, but the substance of what it is we are being asked to accept and the lack of clarity in the amendment. My concern is that this lack of clarity will then be used, unhelpfully, to shape our detailed consideration of the Bill when we get to the principles and the meat—to which I look forward.
Lord Mawhinney
My Lords, it is hard to think of any group of people in this country who have had the opportunity to listen to six such distinguished medics talking about what is in the best interests of patients and the common good. It has been a privilege to listen to them all. I am conscious that I am not remotely on the same level as they are, although in a previous life I spent three years teaching medical students at the University of Iowa, 19 years teaching medical students at the Royal Free Hospital School of Medicine, and did a bit of radiography student teaching on the side. So I have some sense of the importance of the issue that we are discussing. I have a personal sense of its importance because, since I stopped teaching, at least two of those who I taught have subsequently offered me healthcare.
I am pleased that the Government have recognised the importance of education and training, and have tabled their own amendment. If there was any doubt about it, the six speeches that we have had thus far would have removed it. We spent some time in the debate on the previous amendment talking about the primacy of patient care. It does not make a lot of sense to talk about the primacy of patient care unless you have an education and training system that gives substance across the many activities that constitute our health service. Education and training are the sustainers of the importance of the primary care ethos.
My noble friend is in a slightly difficult position. If I understand the circumstances correctly, there will be more difficulties coming on education and training. The Government set out to produce an almost comprehensive re-evaluation of the health service. That was always a big ask. Here we are on day 1, and we have already discovered that that big ask is probably not going to be delivered in quite the way to which the Government aspired. I hope that my noble friend will not take the view that we will agree his amendment unadorned and wait for the next Bill that might come along. It is important that there should be some more substance to the Government’s amendment than that which presently exists; welcome though that is.
My noble friend has the privilege of having not only the Department of Health to advise him, but, as we have heard, international experts in this House, who I am sure will also be willing to give their expertise and experience to him to help draft what might also be helpful in a government amendment.
I finish with two very practical points. First, I absolutely agree with the noble Lord, Lord Winston, about the importance of communication. It is great that the medical profession know what to do to the best of their ability, but if they cannot convey that to the patient, that in itself constitutes a problem. I hope that my noble friend will think about that. The second point is something that I have raised in this House previously. I cannot be the only one who is concerned at the number of newspapers stories about patients going to see their GPs, to be told “You’ve got the flu”, or “You’ve got indigestion”, and within days they are dead because they had cancer, and nobody even identified it. That is a very good example of why training and education is so crucial. I give the Government high marks for their amendment, but I hope that my noble friend will be able to assure us that he can go a bit further.
Earl Howe
I know that is the noble Lord’s concern and of course I understand it. However, it is the policy of the Government to confer functions where they best sit. If the Secretary of State were to intervene at any whiff of trouble, it would run counter to that vision. I believe that there will be ample scope in the next set of amendments to talk about this very subject; but it is very important to understand that we have quite deliberately taken the view that functions, duties and responsibilities should sit with individual bodies and that the Secretary of State should be there to ensure, to the public and Parliament, that those bodies fulfil their duties and functions correctly.
I suggest that we defer the particular issue raised by the noble Lord, Lord Owen—about the degree of system failure that has to occur before the Secretary of State intervenes—to the next set of amendments. The amendment we are dealing with now has to do with the ultimate accountability of the Secretary of State for the education and training system—which I am saying to the Committee is there in our amendment.
Lord Mawhinney
I understand why the Minister wants to take this issue in the next set of amendments. A number of us will contribute to that debate, because it is crucial. A moment ago, he said that the Secretary of State would have national co-ordination responsibilities for education and training, which I think was broadly welcomed. My question is simple: is my noble friend willing to put that phrase or convey that aspect in the Bill by amending government Amendment 43?
Earl Howe
The trouble with that is that we are straying into the mechanics and the detail of the education and training system, and we are still consulting on how it will work. That is the difficulty I have in answering some of the detailed questions that are being put to me. I can answer many of them, but once we move into particular questions on how the system for education and training will all fit together, it would be imprudent of me to put anything on to the record at this stage.
Lord Mawhinney
I want to go back to what my noble friend said about the Government committing themselves to a national co-ordinating role for education and training. He specified that it was something that the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, would welcome, because they had been asking for it. He said that and we are all pleased that he said it. When I asked him if he would put that in Amendment 43, he said that he could not do it because they were still consulting and thinking and that that was a commitment that he did not feel able to make at the moment. But he has already made the commitment. It is on record that the Government will have a national co-ordinating role. I am not trying to put words in my noble friend’s mouth; those are the words that came out of his mouth. My question was simply, what is there to stop the Government putting those words, that commitment, in Amendment 43?
Earl Howe
I am grateful to my noble friend and, naturally, I will give full consideration to his suggestion. The government amendment represents the fulfilment of our undertaking, made in another place and more publicly, to put clearly in the Bill the Secretary of State’s accountability for an education and training system. That is what we have done. It may be that we can go further in the Bill; I will certainly consider that. Our intentions, as I have enunciated them, are clear, but I come back to saying that we do not want to pre-empt the findings of the Future Forum and the wider consultation that we are engaged in.
Lord Newton of Braintree
My Lords, before the noble Lord sits down, to use the classic formula, perhaps I may take the opportunity to say that in a series of debates in which he and I have not always seen eye to eye, I agree with pretty much every word he has just said. In particular, I do not think that we should return to this until we have been through the rest of the Bill and seen where we are on things such as the powers of the Secretary of State, the wording of those powers and the like. The noble Lord has made a very sensible point by saying that we can then form a better judgment about what is required in this area.
Lord Mawhinney
My Lords, I want to associate my initial remarks entirely with what my noble friend Lord Newton has just said. The noble Lord, Lord Owen, has given the Committee good advice. I have sat through the whole of today’s debate, as have most of us, and it has been interesting to note how much we have learnt about this Bill simply by talking to and listening to each other. I share the view of the noble Lord, Lord Owen, that the learning process has only just begun and is not nearly complete, so it would be foolish to rush to judgments.
I would say to my noble and learned friend Lord Mackay that he knows there is no one I hold in higher regard than him. The formulation in his amendment is extremely helpful because it encapsulates the legal realities. So if I had to judge on the basis of the legal realities, I think I would favour my noble and learned friend’s amendment.
On the other hand, I should say to the noble Baroness, Lady Williams, that the strength of her amendment lies in the fact that it has 60 to 70 years of continuity. If we are looking for the constitutionally more helpful amendment, it may be that of the noble Baroness. I say that also conscious of the fact that out there, as we keep telling each other, there is a degree of nervousness about this Bill. Some of it is well founded and some of it is scaremongering, a word I have used before. But there is a sense of unease. The continuity of 70 years of using the same language might help to address the issue. That is why I say that constitutionally I lean towards the noble Baroness, Lady Williams, while legally I lean towards my noble and learned friend, and I do not want to make a choice at the moment.
Maybe it is partially because the noble Lord, Lord Newton, and I spent so many years in the other place but, as he said, I too believe that the reality is that out there £128 billion is really rather a lot of money. The idea that when somebody threatens to close the Peterborough Hospital my former constituents are going to settle for the chairman of a quango, no matter how illustrious, experienced or wonderful he is—I do not know the gentleman but I am sure that he is all of those and a whole lot more—is just not in the real world. I tell you that as somebody who can still fairly clearly remember what it was like to be a Member of Parliament. Indeed, I can remember fairly clearly what it was like to be the Health Minister and it is still not in the real world.
The noble Lord, Lord Warner—I promise not to keep doing this—was very helpful to this Committee because he pointed out the Secretary of State’s powers. Unusually, I am not sure my noble friend Lord Newton was quite right when he used Monitor as an example. He was right in the technical sense that the previous legislation set up Monitor apparently free. As my noble friend said that I thought about all the newspaper stories I have read recently about how PFI is falling apart and the mounting debt Monitor is having to deal with because the PFI arrangements for foundation trust hospitals were simply not in the real world. The idea that the Secretary of State for Health is not finding some way to intervene with Monitor—he would have to if Monitor wants more money to offset that debt—shows that the reality of what happens on the ground is extremely important.
I say to my noble friend the Minister that there is one other aspect of this on which, as a simple Belfast boy, I am confused. The NHS Commissioning Board has legal status. As the noble Lord, Lord Warner, reminded us, the Secretary of State gives it a mandate and then it has a legal status. Does that mean that the Secretary of State’s lawyers have to relate to the NHS Commissioning Board’s lawyers if the Secretary of State wants to have some involvement during the course of the year—even if it is only in the context that the noble Lord, Lord Owen, does not like of emergency or failure? We need to have a much clearer grasp of the practical realities of the consequences of this Bill. Whatever the intellectual framework and the ideas that coherently come together to provide esoteric new arrangements, this Bill has to work in the real world. This Committee needs to be encouraged by my noble friend to believe that the Secretary of State is going to be at the heart of making this Bill work in practice.
Baroness Warwick of Undercliffe
My Lords, I had not intended to speak but I feel quite anxious that we are contemplating the prospect of not producing an amendment of the kind the Minister suggested he would be willing to accept. I understand the points made by other Peers. I am really conscious of the anxiety that has been expressed in the huge amount of representations, letters, e-mails and so on that we have had.
A point about which I felt strongly at Second Reading is that our own Constitution Committee has indicated anxieties that I think are shared by a large number of people. We need to indicate we are going to take seriously the views of that committee.
Many of the anxieties expressed may either have been caused by scaremongering or become totemic, but they none the less exist. Some of them seem not to be so ill founded. Other speakers have already referred to the fact that, as the Explanatory Notes state, the commissioning and provision of services will no longer be delegated by the Secretary of State, but will be directly conferred on the organisations responsible. As the Select Committee indicates, the Secretary of State must secure that,
“any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate”.
There seem to be at least grounds there for anxiety that the Secretary of State may be seeking to offload responsibility.
I hope that, however long it takes us during these discussions—after some of the discussion on the previous amendment, I became even more anxious about the role of the Secretary of State—we will be able to find a form of words that satisfies the anxieties expressed. I do not know whether that wording should take the form of the amendment of the noble Baroness, Lady Williams, or that of the noble and learned Lord, Lord Mackay, but we should endeavour to allay that anxiety, because it is undermining an awful lot of interest in and support for other parts of the Bill.
NHS: Clinical Excellence Awards
Lord Mawhinney Excerpts(13 years, 5 months ago)
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Earl Howe
The noble Baroness is absolutely right. We do need to incentivise all staff, both clinical and non-clinical in the NHS, to innovate. We can do that in a variety of ways. She will know that the noble Lord, Lord Darzi, proposed a number of ways of doing this, including innovation prizes and innovation funds, which are extremely popular. We also can incentivise through the tariff. As she will know, we have protected the research budget, which in the long term will serve us well in driving through innovation in the NHS.
Lord Mawhinney
My Lords, can I encourage my noble friend, when he considers the 2012 awards, to talk to his colleagues about introducing some more transparency into the awards? Part of the difficulty referred to by the noble Lord, Lord Walton, is that no one knows who, or why, or how much. Transparency would be a strengthening as well as a salutary experience for many in the health service.
Earl Howe
I agree with my noble friend. We have identified a number of anomalous features in the current scheme which need to be looked at. He is absolutely right to point out that the current scheme is far from transparent. It enables rewards to continue that are based on historic performance rather than anything more up to date.
Health: Cancer
Lord Mawhinney Excerpts(13 years, 8 months ago)
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Earl Howe
My Lords, the Government are not introducing price competition, it has never been our intention to do so, and the Bill that will come before the House will make it absolutely and abundantly clear that price competition is out of range. As regards the cancer networks, the noble Baroness is absolutely right. Over the past 10 years, these have played a crucial role in improving the quality of cancer treatment and the patient experience of care. The outcomes strategy that we have published explicitly states that next year there will be funding for cancer networks to support commissioning.
Lord Alderdice
My noble friend introduced the question of diagnosis, which is increasingly a multi-professional matter, involving pathologists, surgeons, radiologists and so on. This seems self-evidently a good thing. However, is the department accumulating evidence to show that it is actually improving the outcomes? It is of course an expensive procedure to involve so many senior professionals together.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, there has been no question from the Conservative Benches so perhaps on this occasion we can hear from my noble friend.
Lord Mawhinney
My noble friend, in his original Answer, talked about the importance of early diagnosis. Is he not concerned at the cascade of cases reported in the media of GPs sending patients home with flu symptoms and indigestion and not detecting the cancer until it is too late? What does my noble friend intend to do to improve GP training to assist the earlier diagnosis on which he rightly lays so much emphasis?
Earl Howe
My Lords, of course those reports are a matter for concern, which is why we are clear that GP consortia should be supported as much as possible in terms of commissioning guidelines and information. One of the tasks of the NHS commissioning board will be to provide that support and information based on quality standards produced by the National Institute for Health and Clinical Excellence.