Health and Social Care Bill

Lord Newton of Braintree Excerpts

Tuesday 13th December 2011 Lords Chamber

At one stage, people did not even know which year it was. It was thought to be about 2007. Now we have at least established that the year was 2006, which is one of the reasons that I had to put in another submission. I do not think that the Government will be taken seriously when we go on to Report if we have not had that document published in time for us to examine it fully and to get other legal advice. Certainly I, for one, would consider it to be an utter disgrace if we go on to Report and vote on this whole issue of competition if the document has not been published.

[Lord Newton of Braintree]

My Lords, I rise first to express my regrets to the House that, ironically for reasons connected to an NHS commitment, I shall not be able to be present for a lot of our proceedings later on.

Secondly, and related to that commitment, I should declare my interest as chair of the Suffolk Mental Health Partnership NHS Trust Board.

Thirdly, I do not seek, nor am I qualified, to follow the three speeches that have preceded mine: I refer to the detail into which the noble Baroness, Lady Thornton, went, the important legal points of my noble friend Lord Clement-Jones, and the many of the points which the noble Lord, Lord Owen, discussed. I have a good deal of sympathy with many but not all of the points that each of them made and I hope that they will be carefully addressed by the Minister when he comes to wind up. My purpose, however, is rather more limited and pragmatic.

I say to my noble friend the Minister that I would not reject out of hand the interpretation and explanation of context that he gave in the early part of this debate. I think that there are questions that still need to be answered, as has been made clear, but I am prone to give him the benefit of the doubt on the general approach that he outlined.

I particularly welcome—it is very important, given the uncertainties that we all face about the import of this Bill, underlined by the noble Lord, Lord Owen—that my noble friend gave some clear indications of areas where he thought clarification was possible and where he would give serious consideration to some of these amendments. In the light of that, I would be disinclined to try to shoot him down today, but I would not be disinclined to shoot him down—or try to shoot him down, at any rate— if we do not see some changes and improvements related to these concerns before the Report stage.

I would like to make a few pragmatic points. First, we ought to acknowledge that what is in this Bill about Monitor is a lot better than what was the previous legal situation about Monitor, where the Secretary of State had no power to intervene at all. I will come back in a different way in a moment to what Monitor took into account, but we should recognise that there are already some signs—and this relates to my experience—that Monitor has got some of the message that is emerging from this debate. I refer back to my own personal interests and experience. I have been chair of two trusts, which have been through the Monitor process. The first of them—the Royal Brompton and Harefield—did happily become a foundation trust after I had become time expired as its chair. The second one—the one I chair at the moment—was in the process of trying to become a foundation trust at the time. Indeed, I was told when I was recruited for it that my task was to get it to be a foundation trust. For reasons I will not go into, that did not prove possible and we went down a different route. My observation—it is related to my comment just now about Monitor—is that in the intervening period there had been a sharp shift in Monitor’s attitude. When I first embarked on this, there was a clear feeling—Bill Moyes, the previous chairman would not thank me for saying this—that all that mattered was the money. Bill Moyes would have denied that, but I can only tell you that that is what it felt like. Then came Mid-Staffs and the whole situation changed, as I judge it, for the better. Patient safety and quality and all those issues began to be as important, if not more important, than the financial ones—not that the financial ones are unimportant.

At any rate, I come back to the story and the plus point for Monitor. Once we had decided at SMHP that foundation trust status of our own did not look likely, we decided that the best bet was merger with the neighbouring trust, Norfolk and Waveney, because East Anglia is a coherent whole, with all sorts of synergy and the rest of it—I will not go into the arguments. So we set about getting together with them as a joint venture. The rhetoric was merger: the legality was acquisition. They were an FT and we were not— I will come back to that point in a moment as well. I have no way of describing to the House just how difficult that proved and how many obstacles were planted in the way by the process.

We were advised that acquisition was simpler than merger, which is one of the reasons we went for it. I can only say that if the Minister wants to get the many remaining trusts that are not FTs into FT status through mergers, he is going to need to make sure that it can be done more easily than was the case in the one of which I have experience. If acquisitions are easy, mergers must be a nightmare.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I added my name to these amendments, so eloquently introduced, with the evidence behind them informed by my noble friend Lady Emerton. It is important to state that these amendments may not be perfectly worded, as the noble Lord, Lord Alderdice, has pointed out, but the principle behind them has a lot of evidence to it. This is not about protection of a certain number of jobs; this is about the fact that you cannot substitute without having skills, competencies and attitudinal evaluation within a particular area.

There may be staff at different grades who will work in a complementary way and there is complementarity, but you cannot substitute. Physio assistants cannot be used to do what physiotherapists do. The same applies right across the piece. It is not just baseline qualifications, however; it is all the other layers as well. You do not want to be in an intensive care unit nursed by trained nurses who are not fully trained in those ventilators that are in use on that unit, who do not have all the additional skills as well and cannot communicate with patients in that situation and with their families.

As the noble Baroness, Lady Murphy, said, the evidence is overwhelming when you look at intensive care units but it goes right across the piece. I would like to cite briefly what we tried to do in Wales in my own discipline. We set minimum levels for the level of staff and the competencies for palliative care across the whole of Wales. It was not easy to do but it has worked and it has been a lever to drive up standards and drive up quality and to get some people to increase their training and go back to doing more training, without it incurring additional cost.

I recommend to the Minister that the Government look carefully at this amendment and think about some way of ensuring that patients across the whole of the UK will know that they will be looked after by people with the appropriate competencies and that, in times of financial stringency, we do not find that people revert to substitution as a misguided way of saving money which will be at the expense of quality if not at the expense of more than that.

[Lord Newton of Braintree]

My Lords, I wonder if I might come in on the side of the “sympathy but” brigade, which makes me a member of the same club as all those who have spoken before me. I have a lot of sympathy with the purpose of the amendment of the noble Baroness, Lady Emerton, but I worry about the rigidity of their terms in relation to specifying ratios and a maximum number of people that any nurse can deal with. It seems to me that this is a prescription for a degree of inflexibility that could end up closing wards for reasons that would not be sensible.

I am scarred by something that happened at Birmingham Children’s Hospital in my period as Minister for Health; it arose from a shortage of paediatric intensive care nurses. I do not know whether they are still in short supply but that is the kind of problem that would be exaggerated by this kind of rigidity. Nevertheless, the basic thrust of the amendment must be right.

There is only one other point I really want to make. As I understand it, my noble friend is likely to say that this is not something for the health Commissioning Board, but for the Care Quality Commission. I do not accept that. The Care Quality Commission will be doing snapshots, perhaps a bit more vigorously than it has done in the past, sometimes unannounced and so forth, but nevertheless more often than not there will be a snapshot of the situation at a particular time. I cannot see that the Commissioning Board can commission services without specifying something about the standard at which it expects that service to be provided, and that is relevant to this question of staffing levels in a general sense. So while I believe that it would be wrong to say this is all a matter for the Care Quality Commission, equally I do not believe it would be right to be as rigid as some parts of the amendments are at present.

[Lord Patel]

My Lords, I have my name to this amendment and I support it. I agree with all the comments that the noble Baroness, Lady Emerton, has made. I have only two brief comments. One is based on the evidence and the strength of that evidence. The noble Baroness, Lady Murphy, mentioned California, which passed a law based on the evidence. So what is the strength of this evidence? I have looked at the literature, particularly at meta-analysis of all the literature that is produced relating to staffing levels and patient outcomes, including mortality. Meta-analysis involves looking at all the published literature and its methodology, and only those publications with a methodology that is felt to be good are included in the meta-analysis. The meta-analysis clearly shows that if you look at mortality, infection rates, response to arrest and serious episodes, the staffing ratios of registered, trained nurses to patients—I agree with the noble Lord, Lord Alderdice, that training is important—are important in delivering good outcomes.

The second issue is related to whose responsibility it might be to produce the guidance. If it is not the national Commissioning Board, then it ought to be the commissioners of services—the commissioning groups—that should be asked to consider the staffing ratios of each and every department in the provider’s unit before making contracts with them.

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Overall, however, I would say to the noble Baroness, Lady Williams, that I do not think that there is any real disagreement of substance. What is clear is that the Secretary of State is, in the end, the boss and accountable to Parliament. He or she must have intervention powers. They should not be qualified.

[Lord Newton of Braintree]

My Lords, I wonder whether I could chip in, starting with an apology. As a result of the apparent abandonment of the previous set of amendments, I did not realise that this one had started and, therefore, have not followed everything that has been said. My remarks will be correspondingly brief. However, I have heard enough to know that I want to declare my general broad sympathy with the thrust of what the noble Baroness, Lady Williams, proposes and to link myself with the remarks that have just been made by the noble Lord, Lord Hunt, and not least those that were made while I was in the Chamber by the noble Lord, Lord Owen. They all echo something that I, and my noble friend Lord Mawhinney, have tried to say on a number of previous occasions—that there is beginning to be an absence of realism in the Government’s attitude to some of these matters. As I have said several times—and as has been said in other ways by other Peers during this debate—at the end of the day the House of Commons will not accept a Secretary of State who says, “Nothing to do with me, guv”, when something has clearly gone seriously wrong.

If the Secretary of State judges that something is happening that is not in the best interests of the health service, I do not see how he can fail to do something about it; and if he does not have a clear power to do something, I can tell you what will happen. The Government will scratch around in every corner of the Act until they find something that enables them to do something, because the Secretary of State will not be able to tell the House of Commons that he can do nothing. There is a real danger that the Government will immolate themselves, in this House at least, on the basis of an absurd proposition that the Secretary of State can somehow stand back and wash his hands of things when they are going wrong. I hope that this amendment will not be pressed to a Division tonight, because I do not think it would be sensible. We need to reflect on what the Minister says, but he needs to reflect on what is being said to him and to be prepared to come back with something different on Report.

[Lord Warner]

My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State’s mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.

The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.

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That is a pretty wide range and it could have significant budgetary implications. How would those range figures compare with current PCT costs and when will we have firmer figures and a clear global sum for the running costs of CCGs? I hope the Government will not simply brush aside amendments of this kind. It will give me no pleasure to say “I told you so” in a few years’ time.

[Lord Newton of Braintree]

My Lords, perhaps I may chip in once again in seeking that my noble friend should at least listen very carefully to what has been said by the noble Lord, Lord Warner. I probably ought to declare a sort of interest in that my wife is currently a member of a PCT board. I would like some clarity about just what the situation is in this respect. As the noble Lord, Lord Warner, indicated towards the end of his remarks, the contrast between what is being put in place at the moment and what is prospectively going to be put in place is even greater than the actual number of PCTs at present because of what has been done about clustering. At the moment—I do not know the exact figure on clusters—there is an even bigger contrast between, as I say, the number of clusters and the potential number of clinical commissioning groups, with all the costs, potential fragmentation and the rest of it that that might entail.

There is another issue and I just want to find out exactly how the Minister sees the position. Clustering has been achieved not by abolishing or merging PCTs but by appointing the same people to the boards of several PCTs. I think that the House should be clear about that. I want to know from the Minister exactly what is the number of PCTs at the moment; whether that number has in any way been affected by clustering; and whether the PCTs, which still exist as legal entities alongside the clusters which are not legal entities, continue to have all the responsibilities and duties that are assigned to them under the statutory basis on which they were set up in the first instance. PCTs remain the statutory entities. The clusters have no statutory basis at all, and we need to be absolutely clear what the situation is, how many PCTs we have and what their responsibilities are.

[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.

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[Baroness Tonge]

My Lords, before the Minister gets up, I would like to ask him a very simple question. Noble Lords will have all realised by now that I have no faith in this Bill whatever, and never have had. I think it is totally unnecessary in the current economic circumstances, let alone other circumstances. Will the Minister tell us honestly what the reason was for clinical commissioning groups? Why could we not have kept the PCTs in whatever clusters they have formed together, and put clinicians, GPs, dentists and nurses into those groups to lead the commissioning process? Why did we have to have this massive upheaval to achieve what, according to what most of the speakers here tonight think, is not going to be achieved anyway, as the GPs will not have much input? Perhaps he could explain.

[Lord Newton of Braintree]

My Lords, I apologise for intervening a second time. I want to link with things I raised the first time, because I have been left in some confusion by the noble Baroness, Lady Wall—which is not her fault—said about what has been happening in London. My understanding is that at the beginning of the year the department issued a document suggesting four possible ways of doing clustering. One was along the lines that the noble Baroness spoke about. I forget what all four were, but one was that PCTs should informally group in clusters, create an informal board, and have one of the chairs, perhaps a rotating chair in some cases, who would oversee the informal cluster board. The legally existing boards would continue.

At the back end of September, the department, at least as interpreted in the east of England, issued an edict saying that there were no longer four options. There was to be one, and it would be clustering, based on appointing the same people to more than one PCT board. That raises a number of issues, as my noble friend Lord Mawhinney has indicated with unmistakeable clarity, to which he and possibly I might wish to return later. Meanwhile, how many legally separate PCT boards exist at the moment, who is on them, and were different policies pursued by the department in different parts of the country? What the noble Baroness—my noble friend—Lady Wall said suggested that a different policy had been pursued in London—not for the first time, I may say—than was being pursued in the east of England at least, and possibly everywhere else. We need some clarity, not just on what the future is going to be, but what the present is.

[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.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Monday 28th November 2011 Lords Chamber

[Lord Butler of Brockwell]

My Lords, with the agreement of the noble Lord, Lord Newton, I move Amendment 109A, which stands in my name and his. I can do so briefly, although the amendment is important and, I hope, helpful. I declare an interest as the chair of King's Health Partners, an academic health science centre. Part of the centre's mission is to accelerate the translation of research into patient care—getting a faster process from bench to bedside. It is in that capacity that I move the amendment.

The focus in the Bill on outcomes for patients is very welcome. It is also welcome that Clause 20 gives the Commissioning Board a duty to promote compliance with the quality standards prepared by NICE, as well as guidance published by the Secretary of State. There may be circumstances in which there are good local reasons why NHS providers should not comply with NICE guidelines. One such circumstance may be where there are innovative treatments that have been approved but with which NICE guidance has not yet caught up. We do not want the clause to stifle the introduction of such initiatives, which the creation of AHSCs is designed to promote and which are greatly in the interests of both British industry and patients. For this reason, Amendment 109A introduces an element of flexibility through a comply-or-explain regime. It will give providers the opportunity, in cases where there are good reasons why they should not comply with the NICE guidelines, to depart from them provided they can explain their non-compliance satisfactorily. That is all I need to say about the amendment. I beg to move.

[Lord Newton of Braintree]

My Lords, I chip in briefly in support of the amendment. I hasten to assure my noble friends on the Front Bench that this is a probing amendment and that I have no intention of pushing my luck. I have been so open and transparent as to share with the Minister every word of the briefing that I received and that led to the amendment. He knows what it is about. Therefore, I am looking for a measured, constructive and well informed response. I have no interests to declare except the public interest. The healthcare industry—the interests of which underlie the amendment—is important. It contains a lot of small and medium-sized enterprises of a potentially and actually very successful kind. We ought to encourage them, and I hope that the Minister will do his best.

[Baroness Royall of Blaisdon]

My Lords, I speak to Amendment 110ZA. In tabling the amendment and Amendment 343A, I was mindful of information from the Prostate Cancer Charity, which I strongly support, and from members of the Epilepsy Society. Of course I am aware that many other people with different chronic diseases, and those who care for them, are concerned about these issues.

As noble Lords are aware, prostate cancer is the most common cancer in men in the UK. In England, 30,000 men are diagnosed with it every year, and there are 215,000 men living with and beyond the disease. Ten thousand men die from prostate cancer every year. Currently, clinical nurse specialists for men with prostate cancer have to care for a worryingly high number of new patients compared to nurses for people with other common cancers. I am therefore worried that the financial pressures on the NHS and the cost of reform will threaten those already overstretched specialist nurses, who are so vital in driving up the quality of care for people with cancer.

Access to a clinical nurse specialist improves the experience of people with cancer at every stage of their journey and ensures that they have access to the vital support and information they need. This has been evidenced by the results of the 2010 National Cancer Patient Experience Survey. If patients are to have more control over decisions related to their care and report a good experience of care, they need the clinical and emotional support, information and expertise that a clinical nurse specialist can provide.

As the noble Earl will be aware from his association with the epilepsy organisations, NICE guidelines state that epilepsy specialist nurses should be an integral part of the medical team providing care to people with epilepsy. Even with investment made under my Government, 60 per cent of acute trusts and 64 per cent of primary care trusts did not have an epilepsy specialist nurse in 2009. SIGN guideline 70 states that,

“all epilepsy care teams should include an epilepsy specialist nurse”.

There are around 150 epilepsy specialist nurse posts, with a further 250 to 300 nurses who have undertaken training but are not in a role due to the shortage of posts.

As all noble Lords will be aware, specialist nurses save the NHS money by releasing consultants’ time, reducing A&E admissions, enhancing patients’ adherence to treatment and reducing the use of hospital beds. Therefore, I am proposing two amendments that would place duties on the NHS Commissioning Board to have regard to the continued access of patients to clinical specialist nurses. The first would support the board’s existing duty as to the improvement in quality of services and the second would create a new standalone duty. I trust the Minister will be able to accept my amendments.

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[Baroness Finlay of Llandaff]

My Lords, I have put my name to several of the amendments in this group—namely, Amendments 112, 113, 115, 186, 187 and 189—all of which are aimed at reducing inequalities. The noble Baroness, Lady Williams, has spoken about this. I will not repeat her arguments, other than simply to say that my reason for adding my name to these amendments was that it struck me that the words “act with a view to reducing inequalities” were not strong enough. Unless commissioning must have regard to the need to reduce inequalities, we will not improve the health of the nation.

Perhaps I may make a comment on Amendment 109A, which is a probing amendment and refers to NICE. I just want to place on record other areas of standard-establishment, such as the National Prescribing Centre and the audits and independent service reviews that are undertaken by the medical royal colleges. These are available and can be very informative. The service accreditation standards that they have produced are aimed at driving the equality improvement agenda and draw to the attention of the Commissioning Board and clinical commissioning groups the role of audits and the information that they can receive from audits, which are intended to drive up equality and reduce inequalities in service provision.

I also have in my name Amendment 299C, which seems to be almost an orphan amendment in this group but is there. It relates to private work. My reason for tabling it is that for a long time there has been confusion over what is private and what is NHS. The Bill also highlights a complexity about what is private and what is third-sector provision. Until now, third-sector services outside the NHS have generally tended to be lumped together in regulation. We will be facing different models in the non-NHS sector ranging from for-profit, through not-for-profit, to the voluntary sector as we know it today. One of the difficulties is making sure that patients are not recruited into the private practice of an individual who sees them during an NHS consultation. The fine balance between information-giving and recruiting should be clarified in guidance. Patients may ask what the waiting time is and whether they could have their intervention, investigation or whatever done more quickly if they went privately. I am concerned that the way the information is given may skew the patient’s perception of it and the patient can then feel they actually ought to go privately. This may be for the profit of that individual practitioner but not necessarily make a great deal of difference to the clinical outcome of the patient.

It is, therefore, a very difficult and fine line, but unless we begin to address it now, we will run into the same problems as we have had, for example, with top-up payments, where we had a lot of debates leading to the establishment of the Cancer Drugs Fund across the UK. We will be facing the same situation, but more so, with many other drugs that come along for non-cancer diseases. The new biologics are very powerful drugs which can be extremely effective but are extremely expensive. I am concerned that a commissioning group might decide that one of these new biologic drugs, even though it goes through all the benchmarking standards required, is something they are just not going to pay for locally. Private sector provision will, therefore, be driving patients who cannot afford to access these treatments, who are not privately insured, and whose quality of life is so severely undermined by their illness—because it is only for severe disease that these drugs are indicated—that they will not be able to work or earn without accessing them. They could therefore find themselves in a double bind.

My amendment is, of course, a probing amendment and I would not intend it to be anything more. If the Minister does not want to respond to these points today, I would nevertheless urge him at least to consider them in the guidance produced for the Commissioning Board and providers on the interface between the public and private sectors.

[Lord Newton of Braintree]

As this is Committee stage, I hope my noble friends will forgive me if I play Oliver Twist and seek a small second bite. I promise to be brief and make only three points. The first picks up on maternity and the remarks of the noble Lord, Lord Mawson, about consultants versus patients, if I may put it that way. I remember, in the far-off days when I used to sign 18th birthday cards to prospective or actual constituents, noticing a remarkable bunching. If you checked back 18 years you would find a correlation with Fridays and particularly the period in the run-up to a bank holiday. Secondly, nobody else has followed up the amendment of the noble Baroness, Lady Royall, about specialist nurses. I have an interest to declare here as—there are probably other things as well—president of the Braintree Parkinson’s Disease Society and the Braintree Multiple Sclerosis Society. The importance of specialist nurses in some of these areas is both extremely great and underestimated. I hope that we will therefore not lose sight of the point made by the noble Baroness, Lady Royall, in her amendment, supported by the noble Baroness, Lady Thornton.

Thirdly, to assure the noble Lord, Lord Walton—who I thought was at one stage going to accuse me of being a wimp for not pressing this to a vote—I do not rule out returning to the matter on Report, unless the Minister is really nice to me.

[Lord Patel]

My Lords, I shall speak to several amendments to which I have put my name, but I shall start with the amendment of the noble Baroness, Lady Cumberlege, to which I have also put my name. The noble Baroness is well placed to talk about maternity services. She has championed their cause, particularly regarding choice, for nearly two decades. It is she who should be credited for getting us to where we are now, whereby choice of where to have their babies is available to all would-be mothers.

The noble Baroness covered most points, and I support them all. The one on which I should like to expand relates to maternity networks. It appears that both the Prime Minister and the Department of Health have accepted that maternity networks are the way to improve maternity services, and I agree. Maternity networks have the potential to increase clinician involvement and service-user engagement in the planning, delivery and, where necessary, reorganisation of services. They also have the advantage of being able to scrutinise the performance and outcomes of all maternity providers within the network, thereby helping to drive up standards and reduce unwarranted variations in outcomes. This will help to develop shared services across the network. Thus a home birth service provided by a modern maternity unit could be made available to maternity units in areas where the home birth rate is very low.

I know that a current review of clinical networks is being undertaken for the Commissioning Board, and is due to report soon. Perhaps the noble Earl can tell us more about it. I hope that the review recommends that maternity networks be established to cover all maternity services in England. The concern is that if providers are expected to self-fund networks, there is a risk that some providers, especially foundation trusts, will not engage in networks, thereby reducing their effectiveness. For this reason, I hope that the Government will accept the case for providing some funding and support for maternity networks in the same way as neonatal networks and cancer networks have been able to access central funding and support.

One other issue that will improve the quality of maternity services, no matter where that care is delivered, is the establishment of maternity dashboards. They are a good way of auditing the outcomes on a daily basis and establishing whether the clinical guidelines have been achieved. I therefore strongly support the noble Baroness’s amendment.

The amendment in the name of the noble Lords, Lord Newton of Braintree and Lord Butler of Brockwell, is saying “comply or explain”, whereby if you do not comply with NICE guidelines you must explain why. I agree. Not all standards should be complied with, because there may be reasons why they are not. If you do not comply, you have to explain why. However, you also have to explain why the outcome for patients will be the same or better, because if the outcomes through not complying are not the same or better, you should not be allowed to fail to comply.

I understand that there might be good reasons why certain NHS bodies do not comply. Another way could be the establishment of an alternative compliance system in which organisations and clinicians are required to justify why they have not complied with the standards or, for that matter, innovations that will aid delivery of the best clinical practice. The Commissioning Board, in conjunction with senates and by way of patient pathways, could develop a compliance regime that measures, monitors and incentivises the use of innovation or compliance where these will improve standards of care. So I support the proposal, and I know that we might return later to the issue that my noble friend Lord Walton raised about innovation, tariffs and the innovation tariff. That is the other side of the coin regarding non-compliance and going beyond the standard of care laid down by NICE.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Wednesday 9th November 2011 Lords Chamber

[Baroness Murphy]

I am sorry but I think it is the direct result of Clause 4. I shall continue my theme, if I may.

It is vital that we do not get lost in the impact of what the setting of targets does to the management structure. If the Government set goals and we have key performance targets, at the moment hospitals, services and local commissioners have no responsibility for their strategic direction or goals. I talk as someone who has been a strategic health authority chairman and I know exactly what micromanagement of health authorities and trusts means. I will come on to foundation trusts and why it has not worked entirely with them.

The targets are passed down through commissioning organisations without any understanding of the capacity to deliver. No sooner has one directive been issued than another set of politically interesting goals arrives as an additional directive—without removing the first. All this has no connection to how healthcare is delivered at the front line to patients and it creates a sort of parallel universe of management that never really touches operational patient care.

In mental health services, the care programme approach was an absolutely classic example of something that was implemented without any thought being given to how the service was really delivered and it therefore took 10 years to put in place. In successful businesses, managers focus their time and attention on operational realities—on how to help staff solve problems and improve day-to-day operational performance. This is the front-line machine that implements management decisions. However, in the NHS, managers are not interested in the front line. At every level, they focus upwards to the next level and, as a health authority chairman, I was pretty horrified to find that at least 25 per cent to 30 per cent of my CEO’s time was taken up at meetings and other activities, to which we referred as “feeding the beast” of the Department of Health or of Ministers. I understand that in many trusts some 50 per cent of this time is taken up with managing the centre.

The preoccupation with satisfying the centre leaves front-line staff—unsupported and often demoralised—to cope with broken systems, unless they have a substitute in a charismatic clinician who leads them instead. That is why high-flying specialist units work exceptionally well and why everyday bog-standard services are often a disgrace. That is why meeting targets is often a game. Data are manipulated and money is diverted from one front line to another to achieve a target temporarily until the Minister’s attention is diverted to the next enthusiasm.

The four-hour waiting time target at A&E is a very good example. This was an admirable target—some would say it was not tough enough—but it was achieved only with horrendous diversion of funds from other front-line areas and a reordering of clinical priorities, but with no real change in hospital behaviours or any understanding by staff as to why they were doing it. Metrics for the purpose of compliance are almost always different from those that one would wish to collect to understand and improve patient care pathways. A&E services targets were achieved at the cost of diverting increasing numbers of patients into medical assessment units and we have ended up with an 11.8 per cent increase in emergency admissions and vast numbers of patents being admitted from A&E who would not previously have been admitted—all in the interests of reducing a particular target, but without any fundamental change in the way that hospitals are run.

That is what this autonomy clause is meant to assist—we seem to me to be forgetting that. We must have organisations within the health service which set their own objectives, manage them properly and start concentrating on the front line of patient care. There is ample accountability in the Bill to ensure this along with the proper regulatory system. I know that autonomy can lead to machismo behaviour and that it can go wrong. We do need tough regulation, but we need tough light-touch regulation, with a mandate that has been agreed beforehand. With that, we will see that this autonomy clause is utterly vital to the way that we should be developing the health service.

[Lord Newton of Braintree]

My Lords, I wonder whether I may contribute. It is perhaps rather rash of me as it will be obvious that I have not been here all of the time, partly because I had not anticipated that we would have such a lengthy debate after the agreement that I thought we had reached on Clauses 1 and 4.

It is perhaps appropriate that I should intervene, not least because I am the third former Conservative Health Minister to speak in the debate. I ought to make it clear to my noble friend Lady Cumberlege that it is 2:1 to my noble friend Lord Mawhinney, as indeed I made clear to her in a more private conversation yesterday. Nevertheless, I am unhappy to find myself disagreeing with her, and also, for the second time in two days, disagreeing with the noble Baroness, Lady Murphy. However, the fact is that I do disagree with them.

I cannot claim the record of my noble friend Lord Mawhinney of not having spoken against the Government since 1997. My record is much more sinful. I agree with every word that he said. I shall say that, rather than repeat it all. The problem with micromanagement is that what it means is to some extent dependent on the perception of the trouble that it is causing. Picking up the report published today, is it micromanagement for the Secretary of State to say that it is unacceptable to be leaving patients screaming all night, not to give them water, not to make sure that they are getting a proper diet and not to look after them or clean up for them? That could all be micromanagement, but the public will not regard it as micromanagement. They will say, “This is the NHS. You are responsible for the NHS. Get something done about it”.

At the core of this is a point that my noble friend made and I made in different terms much earlier in our discussions. The notion that the Secretary of State can wash his hands of certain things is for the birds. Two of us here have been Ministers for Health and others in the Chamber have also had that position. If things went badly enough wrong, the Secretary of State could not go to the Dispatch Box and say, “Nothing to do with me, guv. Go and ask the Commissioning Board. Go and ask Monitor”. It is nonsense, and we need to recognise that.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Monday 7th November 2011 Lords Chamber

[Baroness Hollins]

My Lords, I support the amendments of my noble friend Lord Rix. He made reference to people with learning disabilities and in particular expressed concern about people with complex needs. I should like to say a little more about people with learning disabilities who have challenging behaviour. It is estimated that as many as 40 per cent of people with learning disabilities may present behaviours that are challenging to family and other carers. These behaviours can be so intense and frequent as to have a major impact on the quality of life of the individual and their families.

People who present severe behavioural challenges are among the most disadvantaged and marginalised individuals in our society and are at much greater risk of exclusion, institutionalisation, deprivation, physical harm, abuse, misdiagnosis and exposure to ineffective interventions. Their carers are subject to physical harm, psychological ill-health, physical ill-health and to an increased burden of care and financial consequences. It can also have an impact on their employment prospects and quality of life.

Commissioners, policymakers and providers all face escalating costs and risk undermining national policy. Providers face high staff sickness and turnover, service breakdown, scandals and exposés such as the recent “Panorama” programme about Winterbourne View in Bristol and previous scandals in recent years in Cornwall and Merton and Sutton.

Back in 1993, Professor Jim Mansell emphasised the need for commissioners of health and social care to work together to provide good support and services for this group of individuals. He recommended locally based, individualised packages of care. He suggested that the environments where people are cared for should be skilled and capable of maintaining support for the long term. He revised his report in 2007 for the Department of Health and made the same points because insufficient progress had been made. He and others, such as the Challenging Behaviour Foundation, have made it very clear that large institutional provision is not the answer, yet many people with learning disabilities have care packages commissioned within such institutional care, mainly in the independent sector, funded by the NHS and by social services. These placements are often far from home. They have little guarantee of high-quality, skilled care and are vulnerable to the kind of restrictive practices that have been revealed time and again in a variety of high profile exposés. This care is often very high cost, as well as not delivering good outcomes for people.

A recent publication entitled There Is an Alternative, published by the Association for Supported Living, makes a strong argument for local, community-based support, saying that it is more successful and cheaper than specialist in-patient provision. However, for that to happen requires vision, commitment and a will to make it happen. It cannot be achieved without the will of effective local commissioners, a will that must be expressed in decisions to invest in local community-based services, rather than to farm out problem cases to expensive out-of-area placements—what in the world of learning disability we know as the “crisis Friday afternoon very expensive mistaken placement”. Most successful supported living services have their roots in commissioners' decisions to invest in that service model, acting on sound demographic knowledge of the communities they serve and the needs and wishes of the people with learning disabilities who live within them.

I am sure that health and well-being boards will have an important role in thinking about the needs of their population with learning disabilities in that way. However, it is clear that there need to be good lines of accountability in future. There is a worry that local clinical commissioning groups will not be able to commission adequately when specialist services are needed. They will have to be able to address a comprehensive local strategy that can deliver early intervention, timely and skilled professional expertise and support, competent and high-quality providers of individualised support and services, flexible crisis intervention services, such as psychological therapies, which are very underdeveloped for that group of people, and psychiatry, which can build the support required for each individual—real individualised care. The numbers of individuals are relatively small but they can be very high cost if the services are not planned well.

It is essential that the needs of this group of individuals are specifically considered within the new commissioning arrangements. I always say that if we can get it right for people with learning disabilities and complex needs, we can get it right for everybody else. There may be an argument for looking to the National Commissioning Board to take this overall responsibility without compromising the need to find ways to ensure local responsibility—the delivery of creative, flexible and local solutions to meet the needs of individuals and families within their own communities. This is quite a challenge, which is why I have gone to such lengths to explain the problem faced by this complex group of people. I ask the Minister to comment on how such services might be commissioned in the future.

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly in support of the general thrust of the amendments without necessarily saying that I agree with every dot and comma. I also agree, not least, with the remarks of the noble Baroness, Lady Hollins. The noble Lord, Lord Rix, and I have known each other for quite a long while in the field of learning disabilities and, indeed, through my role many years ago as Minister with responsibility for disabled people, so I am happy to lend a sympathetic word on this point.

I ought to declare an interest in that several times I have told the House that I am the chair of a mental health trust. Of course, mental health trusts often deal with learning disabilities as well, as indeed does the health trust that I chair, although happily last year it transferred most of its residents on old-style campuses to Suffolk County Council for a more complete version of genuine living in the community and community care, and I am rather pleased that we did that.

We need to recognise that, although there are overlaps—the word “co-morbidities” is used in one of the amendments—between mental illness and learning disability, they are not the same, and we need to make sure that we take particular and appropriate account of the needs of learning disabilities in all this. I hope that the Minister will be able to assure us that that will be the case.

[Lord Beecham]

My Lords, I begin by congratulating the noble Lord, Lord Rix, who has been such an outstanding champion of people with disabilities, alongside my noble friend Lord Morris of Manchester. The two of them have been in the vanguard of public policy-making and of informing and involving people in this crucial issue.

The noble Lords, Lord Rix and Lord Newton, both implied that learning disability is something of an overlooked condition. The noble Lord, Lord Rix, referred to the degree of prejudice and ignorance surrounding learning disability, which sometimes leads to the rather disgraceful treatment of individuals who suffer from that complaint, as we read from time to time. It is therefore right that they should be included in this broad request for the Secretary of State to have a duty to promote the equality of and improvement in treatment for people with all kinds of disability.

The noble Lord, Lord Rix, and to a degree the noble Baroness, Lady Hollins, questioned whether this might be rather too much of an issue for local commissioning groups to undertake. I am not so sure about that, and think that this area needs exploring. After all, the general practitioners, who will be a significant part of clinical commissioning groups locally, are the first line of service providers for people with a disability, and I am not clear that a commissioning body operating nationally would be the appropriate mechanism to promote such commissioning. Something like the shortly-to-disappear SHAs might have been, and it is not clear—at any rate, to me—the extent to which the national Commissioning Board will be operating at that sub-national level in the future. However, at all events, somebody has to assume an overarching responsibility, and local authority health scrutiny committees should certainly be ensuring that this group is not neglected in their statutory responsibility of reviewing the efficacy of local arrangements and local provision.

The noble Lord referred to the important issue of data collection in Amendments 117 and 143 and of drawing on the experience of people with the condition. I think that he would probably accept my suggestion that both of the amendments would be slightly improved by reference to carers, as their experiences should also be shared and brought into the picture. The amendments suffer a slight defect which I believe the noble Baroness, Lady Hollins, implicitly touched on. The amendments relate very much to the clinical and medical side of the conditions with which the amendments are concerned, but, of course, there are other agencies and other services that are important and must play a part in improving life for people with any of the range of conditions covered by the amendments.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Baroness Tonge]

My Lords, I am sorry to create just a small ripple in the sea of calm and tranquillity that represents this Chamber this afternoon, but I follow on from what the noble Baroness just said and ask: is there no procedure that we could adopt which would bring the decision of the House on this matter of the duty of the Secretary of State to provide health services back before Report? Report will not be for two months, perhaps, by which time we will have been discussing all the other issues in the health service in a sort of vacuum. How can we discuss all the things that we want a health service to do if we do not know whether the Secretary of State is going to have a duty to provide them? It seems rather odd that we are putting the cart before the horse, or whatever the correct analogy is. This is an important matter. I feel very strongly that we should know as soon as possible whether the Secretary of State will have a duty to provide health services in this country. If we do not have that reassurance, we will have not a National Health Service but a national health shambles.

[Lord Newton of Braintree]

My Lords, I say gently to the noble Baroness that I had understood that the whole purpose of the proposal made this afternoon by the noble Baroness, Lady Williams, was to give us a chance to look at all the practical issues in the Bill before returning to this umbrella of principles. I can see that one could argue it either way. I have no more right to speak on behalf of my Benches than my noble friend but I share his views entirely and, indeed, I expressed them last week. What is being proposed must be the right way to proceed. It has consensus support around the Committee and I think that we should get on with it and let the Minister explain how he will conduct the discussions. Let us just leave it there.

[Lord Warner]

My Lords, perhaps I may intervene briefly not in any way to damage this positive outbreak of peace but to make a practical suggestion. Much of the Constitution Committee’s report turned on the judgment of the noble and learned Lord, Lord Woolf, in the Coughlan case.

--- Later in debate ---

In any event, it would clearly be wrong to make a provision that would restrict the service to any particular list of functions laid down at this time. It would need to be possible to extend that list to meet changes in circumstance, and that would clearly be a necessary condition of any move to create a more visible account of what the service should be about. We on this side of your Lordships' House are certainly looking to see the National Health Service as a comprehensive national service that is comprehensive in the sense of being accessible to all citizens but not necessarily providing every conceivable medical treatment for every conceivable medical condition.

[Lord Newton of Braintree]

Will the noble Lord explain what he actually wants, because I am now thoroughly confused? First, he seeks the reincarnation of a section of the 2006 Act, which, if I remember rightly, was a consolidation Act—in other words, merely a record of what had already happened in history. He then goes on to say that he does not want to ossify—although he did not use that word—the service; he wants flexibility but accepts that it is not possible at any one time to define everything that the service provides. I simply do not know what he is saying.

[Lord Beecham]

My Lords, I am saying that the Bill should lay down at this stage a range of services that will be part of a national health service but that that should not be limited by reference to a particular moment. There will have to be flexibility, but the Bill should clearly indicate, as the 2006 Act did, areas that, taken together, constitute a national health service. It is a simple enough proposition. The content would have to be debated as we go forward, but this is a probing amendment that is designed to ventilate the issue in the hope that some consideration might be given in the course of proceedings on the Bill to the changes that are required.

Ultimately, some decisions will have to be taken about what services are to be provided, not least about the services in Clause 1(3) that must be provided free of charge. People are entitled to know what services they will get free of charge at any given time. As I have said, at some point these matters should be elaborated. There is also an issue about how public health services are to be regarded in the light of the Bill’s current proposals; for example, in relation to the role of Monitor, competition issues and the like.

Amendment 7 seeks to establish a method of taking this discussion forward so that all of us may be clearer about what we are entitled to expect of a National Health Service and, for the purposes particularly of new Section 1(3) of the National Health Service Act 2006, what services would be provided free of charge. I hope that we can look at that matter and perhaps return to it on Report. In that light, I beg to move.

--- Later in debate ---

[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.

[Lord Newton of Braintree]

I am sorry to interrupt, and this may be another question for the noble Baroness, Lady Finlay, but what is a primary care trust if it is not concerned with the population of the area as that primary care trust is defined? This all seems to me like gobbledegook.

[Baroness Thornton]

My Lords, it is about the people in the area—but of course primary care trusts are going to be abolished by this Bill.

[Lord Newton of Braintree]

The noble Baroness said that this was the first time that we had had area-based planning, but a primary care trust is an area-based entity, planning for the population of an area.

[Baroness Thornton]

I think that the noble Lord misheard me. I said that it was the first time that we had discussed this in the process of this Bill. I beg to move.

--- Later in debate ---

[Baroness Hussein-Ece]

I should like to ask a couple of questions to clarify where the debate is going. As my noble friend Lady Tonge said, for a number of years some groups have found it almost impossible to get a GP. It is almost a case of GPs selecting the people they want on their lists; it is an unwritten code. That is why asylum-seeking families, refugee families and others with very high needs will always find it difficult to get a GP, and I want to ask the noble Baroness, Lady Finlay, how her amendment will assist that.

Equally, as has already been mentioned, areas of high need have in my experience always been in inner cities, where it has been difficult for some people to register with a GP. We know that attendance at A&E departments has become extremely high in some areas—almost unsustainably so—and I want to ask how the amendment will address that too.

There are also families who are placed by local authorities in temporary accommodation in other areas. Currently, a local authority is responsible for such a family—for example, social services or family support may be involved with the children. However, if that family is placed in another borough way out of the catchment area, I am not sure who their GP will be. Perhaps the Minister can respond to that as well and say how that would work with a local authority having responsibility for a family placed well outside the area. Would that family still be able to get support by going on to a GP list in the new area? Would that connection be made? Over the years we have worked very hard to make sure that social care, healthcare and local authorities all work together in partnership. Perhaps we could have an explanation of how it is going to work when families with very high needs are spread around.

[Lord Newton of Braintree]

My Lords, your Lordships will have realised by now that I am basically a simple-minded soul. I am struggling to discover what this issue is but it seems to come down to one specific point: do clinical commissioning groups have the same responsibilities as primary care trusts for planning services for all the people that they think live in their area? That is the core question. Do they have an area base—I dare to risk upsetting my noble friend—for their activities? I understand that it has been decreed that no practice can be part of two clinical commissioning groups; they cannot overlap and have to be distinct and separate. In a sense they are the same as primary care trusts. Do they have a responsibility to plan and provide services for all the people known to be in that area? The rest of this is all peripheral. I require services from the NHS both in London and at home in Essex, and I normally get them. But people in Westminster, where my flat is, know perfectly well that there are lots of second homes in Westminster, and presumably the health authorities and primary care trusts know that as well and plan on that basis. It is a simple question: does somebody have a responsibility to plan and provide services for all the people in their area? Yes or no?

[Noble Lords]

No.

--- Later in debate ---

[Earl Howe]

I will cover that point in a second. I should perhaps clarify that the area covered by an individual clinical commissioning group will be agreed with the NHS Commissioning Board and, as I will explain in a minute, that area should not without good reason cross local authority boundaries. That is a different issue from the issue raised by the noble Lord, Lord Rea, of GP practice boundaries, and we need to distinguish the two in our minds.

The right reverend Prelate asked why we could not remove the words “provided to individuals”. The duty on the Secretary of State to act,

“with a view to securing continuous improvement in the quality of services”

is worded to refer to the “services provided to individuals”. This is because the NHS treats patients on an individual basis. Overall improvement in the quality of the treatment service will improve the health of the population as a whole, but we must not forget that there is a separate, complementary duty to improve the health of the population as a whole using public health mechanisms. Improvement is necessary in both prevention and treatment, and the Bill sets out separate duties in relation to other population-based activity; for example, population-based public health research.

In answer to the noble Baroness, Lady Finlay, the Government accepted the NHS Future Forum’s recommendation that the boundaries of local clinical commissioning groups should not normally cross those of local authorities, and this is now reflected in the proposed authorisation framework for CCGs, subject to the agreement of the process with the NHS Commissioning Board. However, we do not believe it would be in patients’ interests to make this an absolute rule. One of the key roles for clinical commissioning groups will be to manage relationships with local hospital providers and in some areas patient flows into acute hospitals do not match local authority boundaries. The proposed authorisation framework makes clear that CCG areas may cross local authority boundaries only where, for reasons like these, it is demonstrably in the interests of patients.

In answer to my noble friend Lady Cumberlege, whose comments I very much welcomed, all relevant clinical commissioning groups will be required to appoint a representative to the health and well-being board if part or all of their area falls within or coincides with the local authority area. That will provide a vehicle for NHS and local authority commissioners to work together on the health and well-being of the population. There is nothing to prevent health and well-being boards from inviting other clinical commissioning groups that have large numbers of registered patients within the local authority area to attend and be represented. I hope that goes some way towards addressing the concerns that the noble Baroness raised. She expressed a general fear about lack of coterminosity between local authorities and CCGs, leading to fragmentation. As I have said, there is going to be a presumption against CCGs crossing local authority boundaries, but there is an important point in this connection in Clause 20, which will impose a duty on the board in new Section 13M in relation to promoting integration; in particular, new Section 13M(3) will impose a duty on the board to,

“encourage clinical commissioning groups to enter into arrangements with local authorities”

where this would assist with integration of health and social care.

The noble Baroness also referred to GP practice boundaries. She will know that the previous Government, as well as the present Government, were keen to ask patients about the choice of GP practice. It is our aim, which we expressed in the White Paper, to give every patient a clear right to register with any GP practice they want from an open list without being restricted by where they live. Many, if not most, patients are quite content with their local GP practice, but a significant minority have problems registering with a GP practice of their choice or with securing access to the high quality and range of care services that they deserve.

I can inform the Committee that agreement was reached with the BMA today. NHS employers have been discussing our proposals with the General Practitioners Committee of the BMA as part of the annual GP contract negotiations, and the agreement that we have reached with that committee is that from April 2012 GP practices will agree with their primary care trust an outer practice boundary whereby they will retain, where clinically appropriate, existing patients who have moved house in the outer boundary area.

There will also be a choice pilot in two or three cities, or possibly parts of cities, whereby patients will be able to visit a practice either as a non-registered out of area patient, for which the practice will receive a fee, or as a registered out of area patient. Practices will join the pilot on a voluntary basis. I think that that represents a very satisfactory way forward. We can look at which model works, if either of them does, and see what the problems are with each.

The noble Baroness asked about the risk of cherry picking patients. We do not see that as a danger. Under their contracts, GPs have a measure of discretion in accepting applications to join their patient lists. However, they can refuse to register a patient only on reasonable and non-discriminatory grounds. They cannot turn patients away simply on the grounds of their medical condition, or for that matter on the grounds of their race, gender, social class, age, religion, sexual orientation, appearance or disability. In future, we want to make it easier for people to choose the best GP practice for themselves and their families. The pilot arrangements that we have agreed will be invaluable to understanding more fully the issues of GP choice.

I hope I have covered most of the points that have been raised. I hope that my answer to the question posed by the noble Lord, Lord Warner, satisfied him, but I just reiterate that CCGs’ responsibility for planning for homeless people and all the groups that he mentioned is a core part of the CCGs’ functions.

[Lord Newton of Braintree]

My Lords, I take it that the answer to my question is that CCGs do have a duty to plan for everyone in their area. However, along the way, the Minister indicated that some of the information that will enable them to do this will come from health and well-being boards and their assessment of the needs of the population. The fact is that the health and well-being boards do not cover the same areas. They might cover the area of a number of CCGs, but they do not relate to the specific area of any specific CCG. The question is therefore: do the health and well-being boards have a duty to translate their information into the areas covered by CCGs?

[Earl Howe]

I am grateful to my noble friend. The point I was seeking to make was that health and well-being boards will be in a very good position to assess and have a sense of the unregistered and, if I can express it this way, the more dispossessed elements of society. I think CCGs will find that an invaluable source of information in planning the commissioning of services.

My noble friend asked me a yes or no question: are CCGs just like PCTs? In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities, as I pointed out, linked to their unique geographic coverage. It is possible for individuals within that area to be registered with a GP practice which is a member of a different CCG. They would therefore be the responsibility of that other CCG. So that is a slight complication. However, it is important to remember the critical role of health and well-being boards in planning in a holistic way across an area covering not just the NHS but public health, social care and other services.

[Lord Newton of Braintree]

I am sorry to press the Minister further. I want to ask one further question and then I will shut up—I promise. Health and well-being boards, and possibly CCGs, will cover widely differing kinds of area: urban populations where there may be many more homes and people, asylum seekers and the like; conurbations of one kind or another; and a rural periphery. Let us make this oversimple. Do the CCGs in the conurbations know what their situation is in respect of homelessness, asylum seekers and all the other things that the noble Lord, Lord Warner, talked about?

[Earl Howe]

My Lords, there are perhaps several issues bound up in my noble friend’s question. It is entirely possible that a CCG will cover two local authority areas. In that event, it will have a clear duty to work in partnership with both local authorities to improve health and well-being and to secure more integrated services. Do health and well-being boards need to translate their assessments for each clinical commissioning group area? The CCG will need to use the joint strategy of the health and well-being board to inform its commissioning plan according to the needs of its local population. It is in its interests to ensure that the information is translatable.

I would be happy to write to my noble friend because there is a clear narrative here, although I may not be expressing it entirely clearly. Obviously, there will be instances where boundaries do not coincide. As I have said, we are aiming for that not to happen but it will in some cases and it has to be dealt with in terms of the duties that we set out.

--- Later in debate ---

[Lord Ribeiro]

My Lords, I am very pleased to—I am sorry; I know how difficult it is for my noble friend. Would he like to go ahead?

[Lord Newton of Braintree]

I am sorry but I am really quite slow in standing up, as noble Lords will observe.

I do not want to take a huge amount of time. I am not a member of the Alderdice-Patel-Hollins club and I will therefore not attempt to go down their professional path. I am, however, for the moment at least, a member of another club in that I chair a mental health trust—the Suffolk Mental Health Partnership NHS Trust—so I have an interest to declare. I want to express my strong general support for the basic thrust of these amendments, whatever the wording: to emphasise, in the words of the Government’s White Paper, “No health without mental health”. We need to ensure that mental illness is treated with parity in these matters, so far as we can.

I will make only another couple of observations. First, it is worth remembering that one of the notorious pressures on A&E departments at the moment is people turning up with mental illness problems, in effect, and needing the attention of mental illness specialists. This spills over and crosses the boundaries. I still think it right that there should be separate mental health trusts, but we need to recognise these linkages. Secondly, we need to recognise that this is an area in which integration with social services is particularly important. Integration is key because of the extent to which mental illness services are provided not in hospital but in the community and on a combined operation. As an aside which we will return to, the CQC needs to improve its act in terms of assessing community services for the mentally ill, which in my view it is not at present sufficiently equipped to do. That is a point we shall come back to. My main point is strong support for the principal thrust of these amendments, which I hope my noble friend will feel able to accede to.

[Lord Williamson of Horton]

My Lords, briefly but warmly, I support Amendment 11, which seems to me to be desirably explicit and logical in the structure of the opening clauses of the Bill. It is desirably explicit because, while I am sure that the Minister actually wants continuous improvement in the quality of service in connection with the prevention, diagnosis or treatment of physical and mental health, those words do not appear in Clause 2. There remains in the wider public some feeling that mental health has a lower priority than physical health. I believe that there has been a huge improvement in the priority given to mental health—I have a lot of experience of that because of my family circumstances—but the feeling I have referred to exists. Therefore, to be explicit on mental health in this clause is good.

The amendment is logical in the Bill because under subsection (1) of the new clause in Clause 1:

“The Secretary of State must continue”,

to promote,

“a comprehensive health service designed to secure improvement … in the physical and mental health of the people of England”,

yet we do not have that phrase in Clause 2, where we come on to,

“improvement in the quality of services … in connection with … the prevention, diagnosis or treatment of illness”.

That directly contributes to what is expressed in Clause 1, so we need to carry over that phrase and avoid its omission in Clause 2. That is why I support this amendment.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Tuesday 25th October 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I shall not detain you long. I cannot resist—given that the noble Lord, Lord Owen, was in reminiscing mood—recollecting that my Welsh father was personally appointed by Aneurin Bevan to be responsible for the inauguration of the health service in what was then the county of West Suffolk. My infancy was taken up with traipsing around hospitals and surgeries in his wake. I am as totally committed to the National Health Service as any man or woman on earth. Indeed, one of my daughters was admitted last night as an emergency patient to an NHS hospital.

Perhaps I may echo the words of the noble and learned Lord, Lord Mackay of Clashfern, because I think that he spoke from great experience and with great wisdom. I am sorry that that flies in the face of what the noble Baroness, Lady Thornton, said, in what was one of the most radical charm offensives towards these Benches in the history of charm offensives. However, as others have said, the notion of incorporating resolutions of party political conferences into legislation is a short road to legislative anarchy. I want to make two points in relation to that.

First, I absolutely concede that an upfront statement of principles makes legislation more comprehensible and more friendly to the layperson. I do not deny that for a second, and that very much draws me to such a statement. But then one comes to the hard, unaccommodating realities of construing statutes. We already have here a Bill of 445 pages, with at least that number of pages to come in secondary legislation, with—as I counted the other night—DHS documentation in support of the Bill in excess of 1,000 pages. I put it to the noble Baroness that principles, however well drafted, may give even more room for manoeuvre and obfuscation to my profession. There is room enough already in this Bill.

If noble Lords do not know what I am talking about, I offer an example. There is no reference in the amendment as drafted to an absolutely fundamental principle of this Bill, which is the subject of an amendment in the name of the noble Baroness, Lady Finlay, the noble Lord, Lord Kakkar, and myself—namely equality of clinical treatment and care for NHS patients with private patients. That is but one example of an omission in the present statement of principles. I am sure that many Lords in other parts of the House could say, “What about this?” or “What about that?”. We could argue until the cows come home. All the while, as the noble and learned Lord, Lord Mackay of Clashfern, reminded us, we have that historic, catholic and satisfactory statement in the 1946 Act of what it is all about. Therefore, I add my voice, with a degree of reluctance, to the voices of those who feel that the amendment, although good in intention, might not achieve its purpose but sow inadvertent mischief.

[Lord Newton of Braintree]

My Lords, I begin a very brief set of remarks by apologising to the House, and especially to my noble friend Lady Williams and to the noble Lord, Lord Hennessy, for not having been here at the beginning of the debate. The reason is perhaps apposite and might help to calm down the noble Lord, Lord Peston; I was at an NHS clinic in Braintree at lunchtime.

On the basis of this debate and looking at the amendment, I am with my noble friend Lord Mawhinney and a number of other noble Lords who have no objection to a preamble or general statement of principle. I will come back to that in a minute. However, if we need one, this amendment is not it, as the noble Lord, Lord Bichard, said. There is a case for the Government looking at a possible preamble or broad statement of principle, partly because, in my judgment at least, the views that the noble Lords, Lord Peston and Lord Owen, expressed—which would lead me, if I believed that they were true, to refuse to support the Bill—have raised fears and concerns among a significant number of members of the public. If we can reassure them by a preamble or statement of principle at a proper time, we should do it.

My noble and learned friend Lord Mackay of Clashfern did us a service by going back to the founding statement in the 1946 Act. I say to the Labour Front Bench that it may need a bit of tweaking—I have not studied it in the way that my noble and learned friend has—but going back to the statement of principles on which the NHS was founded would give people that reassurance. For me as a Conservative, and no doubt for the Liberal Democrats as well, it would do a real service by assuring people that we are not about destroying the NHS but about making it better and more fully equipped to fulfil its initial objectives. I hope that my noble friend will look at what my noble and learned friend suggested.

[Lord Alderdice]

My Lords, I agree considerably with the suggestion of the noble Baroness, Lady Thornton, that some of us might have a sense of déjà vu about the setting down of a list of principles pre-Clause 1. She is right that it is what opposition parties tend to do—and the response, as the noble Baroness, Lady Morgan, pointed out, is that Governments tend to resist them. Her Government were no different from how I suspect the Minister will be in this respect. However, I hope that when Liberal Democrats and Conservatives in the past put down such amendments, they were a little more careful about the wording.

As a number of noble Lords who are susceptible to the notion of a statement of principles pointed out, the statements before us are not very well put. The first states that the health service,

“must have regard to the principles and values outlined in the NHS Constitution”.

I have no doubt that if this had come forward as a government proposal rather than an opposition amendment, the Opposition’s place would have been to say, “Only having regard to the principles and values? What about all the other aspects of the NHS constitution? Will they not be set aside now that we have a subsequent piece of legislation?”. Legally, that would be a perfectly legitimate point. The second one identifies a number of principles—quality, equity, integration and accountability —and then speaks of the market, which is not a principle at all. It is a mechanism, as my noble friend Lord Ribeiro rightly said. Indeed, the noble Baroness then pointed out that actually a little care was lacking in the setting down of the original words.

--- Later in debate ---

[Lord Warner]

My Lords, I am a bit confused as to whether we are making speeches or asking questions of the noble and learned Lord, Lord Mackay, who seems to have volunteered to conduct seminars for us on many of these issues. In making some points I shall, in a way, be trying to be helpful to the noble and learned Lord. In a sense, the criticism he is receiving is unfair because his amendments bring the legislation up to date in terms of provision, which has been a fiction for many years. However, his proposal has to be read in conjunction with all the other provisions in the Bill, which continue to puzzle me. The Government have sworn that they want to be extremely hands-off, and they have their beautifully drafted Clause 4, which I think has incurred the wrath of the noble Baroness, Lady Williams, and others. Nevertheless, the Bill as a whole gives the Secretary of State quite a lot of powers to intervene, and I shall go through just a few of them.

Clause 12 confers a power to control services commissioned by the Commissioning Board or clinical commissioning groups; Clause 13, the ability to give direction on secure psychiatric services; Clause 14, the power to make arrangements for the supply of blood and human tissue; and Clause 16, regulations to require clinical commissioning groups to exercise EU health functions. Under Clause 17—even better—the Secretary of State can make regulations that impose standing rules on the Commissioning Board and clinical commissioning groups to arrange for specified treatments and a raft of other things. Clause 20 is the mandation clause, where the Secretary of State can mandate the board before the start of each financial year to specify objectives and the requirements for achieving those objections.

That set of measures looks very un-hands-offish to simple souls such as me. I think that we are getting ourselves into a bit of a state about this, because the Secretary of State seems to have very extensive powers. I admit that some of the public discourse may have been a bit confused by the explanation that the Government’s candidate for the chairmanship of the NHS Commissioning Board gave in his interview. He seemed to have a very hands-off picture of what the Secretary of State should do, and I suspect that he may not have read the Bill quite as carefully as your Lordships will have done. We have to look at the amendment of the noble and learned Lord, Lord Mackay, in the context of making the legislation honest but with the Secretary of State retaining huge powers in the Bill to intervene and direct operations.

[Lord Newton of Braintree]

My Lords, I am once again tempted, in this case by the noble Lord, Lord Warner, with whose views I almost entirely agree. Indeed, I find myself on an alarming number of occasions having quite a lot of fellow feeling with him. I will return to one or two of those points briefly. Being a singularly modest character, these debates are beginning to induce in me a feeling of considerable intellectual inadequacy—which I suspect is not the case with the noble Lord. I constantly feel that I am in the presence of angels dancing on the heads of pins. I hear the noble Baroness, Lady Jay—I hope she will not mind my saying this—saying, “We might as well retain this, because it has always been there”, even though we know it has never been the reality. At that point, we stop being angels dancing on the heads of pins, and we start dancing round a totem pole. On the whole, if we are going to dance round a totem pole, I would like a totem pole that reflects what we want to happen, not what was written into a Bill 60 years ago. The noble Baroness thinks I am being unfair.

[Baroness Jay of Paddington]

I certainly do not think that the noble Lord is being unfair. I suggest to the noble Lord, Lord Newton, that he reflects on what the noble and learned Lord, Lord Mackay of Clashfern, said on Amendment 1, which was precisely to invoke the Act of 60 years ago, and to pray it in aid, as reflecting what could be a useful addition to the principles of this Bill. That is precisely what I am seeking to address.

[Lord Newton of Braintree]

I strongly supported and continue to support that, which is very reflective in ensuring that we do rest on the original foundations. I never thought I would be a natural Bevanite, but it appears that I have become one, together with a number of others.

That was not quite the point—we were then talking about a preamble. We are now talking about a slightly different provision. I would be entirely happy to see the preamble of the 1946 Act incorporated into this, with—as I said in my speech earlier—perhaps a little tweaking. However, we are now talking about the best way of ensuring and establishing the responsibilities, in the real world, of the Secretary of State. I have another sense of unreality in all of this, born of many years in the Commons. The idea that, whatever this Bill says and however precisely it is worded, the British political system—the House of Commons in particular—would allow the Secretary of State to dispense £120 billion per year of public money without being answerable and accountable to Parliament, is inherently ludicrous. The system would not allow it to happen. I am all in favour of writing that into the Bill if we can find appropriate terms, but in reality that will be the case whatever we have in this Bill.

I agree—and not for the first time—with everything my noble friend Lady Williams said about the importance of making this clear beyond a peradventure. I am quite happy with that.

[Baroness Thornton]

My Lords, I hesitate to intervene, but the problem we face is that this Bill does precisely what the noble Lord is saying he does not want to happen, which is that the Secretary of State will be properly accountable for £120 billion of taxpayers’ money. The Bill puts into statute the ability for the Secretary of State to be challenged, when and if he faces those issues. That is the problem we have.

[Lord Newton of Braintree]

I hope that noble Lords will forgive me for not sitting down, but it may be obvious to the House that one of my more strenuous activities is moving from the sedentary position to a standing one. I prefer not to do it unnecessarily frequently.

I do not agree with that, but I have also made it clear that I have no objection to this being made a little clearer than it is thought to be in the drafting, which is what the noble Baroness, Lady Williams, is looking for. If I might just go on, I will not do so at great length. The noble Baroness was also very sensible and right to acknowledge that the way forward suggested by my noble and learned friend Lord Mackay was better. At the moment, on balance, it probably is. I am agnostic on that; I am naturally supportive of my noble and learned friend, but these are different ways of achieving an objective that we all share.

I will not say much more except for one point on the autonomy clause and issues that have more recently been raised by the noble Lord, Lord Warner. I have some sympathy with my noble friend Lady Williams on the autonomy clause, which we have yet to get to. I hope the noble Lord, Lord Davies of Stamford, was listening to what the noble Lord, Lord Warner, said: a lot of people who have commented on the apparent or alleged withdrawal of Secretary of State powers in this Bill have not actually read what is in the Bill.

I will give one example. Under the arrangements made by the previous Government for Monitor to be the controller and regulator of foundation trusts, I think I am right in saying that the Secretary of State had no power to intervene. In this Bill, he does. If Monitor fails to do the right things, the Secretary of State can intervene. That was not the case before.

One thing that I was very iffy about—I do not know how Hansard will deal with “iffy”; perhaps I should say “uncertain”—in the previous Government’s record was their setting up of foundation trusts. The rhetoric was that the Secretary of State was abandoning responsibility to foundation trusts and Monitor without any power to control what happened. That situation was introduced by the Labour Government and is corrected by the Bill. We have heard a lot of distortion about what the Bill is intended to do and what it actually does. My concern is to reassure the public about what in my view are unfounded fears. The noble Lord, Lord Warner, has materially helped us in that.

[Lord Davies of Stamford]

I listened with great attention to the noble Lord and took on board what he said. Of course, the position of Monitor is not entirely comparable because under the Bill it has vastly more powers.

[Lord Newton of Braintree]

I am sorry, I was distracted.

[Lord Davies of Stamford]

Monitor under the Bill will have vastly more powers than it had. As a result, the situation is not entirely comparable. That is my point.

[Lord Newton of Braintree]

Monitor has extended responsibilities—and, importantly, a much clearer remit to be concerned with the quality of patient services—beyond what it had when its overwhelming focus was on financial matters. I regard that as an improvement. The Secretary of State under the Bill has more powers over Monitor than it had under the original proposals introduced and passed by the Labour Government. I see that the noble Lord, Lord Warner, is nodding his head.

This is a difficult and complex area. We could argue for ever about the best way to deal with it. I say to my noble friend on the Front Bench that I hope that we can find a way forward. I also hope that many noble Lords will recognise that some things said about the Bill are simply not true.

[Baroness Hollins]

My Lords, I seek clarification. I am very sympathetic to the amendment tabled by the noble Baroness, Lady Williams. To remove a key word without good reason causes anxiety and I am not convinced by the reason given for removing it. Perhaps I could ask the noble and learned Lord, Lord Mackay, to clarify whether his amendment would ensure that the obligations required as a result of the Coughlan case would still be protected.

--- Later in debate ---

[Lord Owen]

When we look at what has been said, we will have a better idea. As the Bill unfolds in all its complexity, we are all part of the education process. We saw that in the earlier debate about education. It is not satisfactory for Parliament to rest powers against the wording of the legislation; that is why we worry about words. Words matter here; we cannot get away from that. That is why I come back to the provisions in the admitted interventions—“failure”, “emergency”—which are extreme words, and are deliberately designed to be. We have to look at that.

We will not come to a view on the Secretary of State’s powers until we have finished Committee, looked at the whole Bill and have a feeling for what is to be changed by the Government. We will then come back to it. Personally, I hope that the Select Committee on the Constitution itself comes back to have a look at this. The committee has some very distinguished members. I would like to reserve judgment. The noble and learned Lord, Lord Mackay, who was one of our most distinguished Lord Chancellors, has made a very valuable contribution. Some of his explanations may even be of use in future law courts. I certainly stand by the amendment produced by the noble Baroness, Lady Williams, because it is tried and trusted, but I have made it clear that I would not object to wording put into this Bill at an appropriate stage which states that the Secretary of State is not micromanaging the National Health Service. Unfortunately, there is a public perception that comes to the Secretary of State for every damn thing under—I think I have made myself clear. We do not want that to happen and we know that it should not happen. We mouth the words of a decentralised health service without being willing to admit that there are limits to what people can be held accountable for. However, I do not think that failure and emergency are the parameters. They have to be lowered if we are going to make sense of this.

[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.

Health: Cardiology

Lord Newton of Braintree Excerpts

Monday 24th October 2011 Lords Chamber

[Earl Howe]

I hope to persuade the noble Baroness in our debates on the Health and Social Care Bill that her fears on the Bill and its provisions in regard to integration are not well founded. However, I agree with her remarks in the first part of her question. It is very important that surgeons have sufficient clinical work to maintain and develop their skills and to train the next generation of surgeons. The need for change in this area is widely supported, and it is only by taking a national perspective that the optimum configuration of services can be effectively assessed.

[Lord Newton of Braintree]

Am I not right in thinking that this process of review is currently the subject of judicial review initiated by the Royal Brompton? What will the Minister do if the process is found to be flawed?

[Earl Howe]

My Lords, my noble friend is quite right. A judicial review has been launched by the Royal Brompton into the fairness of the process being followed. I am not in a position to comment on that. We expect a decision well before the end of the year and if that decision is not one that allows the process to continue, then clearly those in charge of it will have to look again at how to set about it.

Health and Social Care Bill

Lord Newton of Braintree Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, somewhat unexpectedly, I find myself seeking the leave of the House to speak in the gap. I have a string of interests to declare including being chair of a health trust and a long history of being chair of health trusts and in other ways for something like 25 years.

Am I a supporter of the Bill? Yes, in general. Can it be improved? Yes, for certain. That is what we should be thinking about doing. There are three substantive points that I want to make briefly. Change in the NHS, as my noble friend and others know quite well, is a process not an event. These changes are already well down the track. In my view, it would be too late to stop them without causing total and complete chaos. If they are delayed, by whatever route, that will do more damage to the NHS, which we all much love, than if we get on with it.

In relation to the desire to refer part of the Bill to some kind of committee, I do not know about other noble Lords but I have been deluged with representations from professional bodies, every kind of association and a lot of individuals. There is ample evidence of people's views to be taken into account by this House in the ordinary way in its deliberations in Committee. That is what we are good at. That is what we have shown we are good at on the Localism Bill, the Public Bodies Bill and no doubt soon on the Welfare Reform Bill. Let us get on and do our job.

Reform of Social Care

Lord Newton of Braintree Excerpts

Monday 4th July 2011 Lords Chamber

[Earl Howe]

I am grateful to the noble Lord, Lord Myners. I shall address his questions in the opposite order. We have been clear about the situation at Southern Cross: we hope that a resolution will emerge as a result of the current discussions between Southern Cross, its lenders and its landlords. However, we have been equally clear that the residents of the care homes are our prime concern. It is not possible for me to give an absolute assurance that no resident will be required to move, but I can say that we will ensure that if a resident is required to move, there will, in accordance with best practice, be plenty of time to ensure that suitable alternative accommodation is available. It is a fact of life that care home residents sometimes do have to move, but it is our ambition that no care home resident of Southern Cross should move. I do not intend to sound in the least complacent about this because we have set a clear sense of direction to the parties involved that we hope to see this settlement reached.

The noble Lord, Lord Myners, is right about financial products. I have noted over the past 10 years with some disappointment the dearth of suitable financial products to enable people to save for long-term care. The commission has analysed extremely ably the barriers that currently prevent the establishment of an effective market for financial products and we want to consider how best to promote a more effective market for such products. We will consider the commission’s recommendations carefully, of course. An effective market in this area would be extremely helpful. It may help people to become more aware of the costs that they may face in later life, which in itself would be useful, and to take steps to prepare for these. I will bring the noble Lord’s remarks to the attention of my colleagues in the Treasury in the sense that he indicated.

[Lord Newton of Braintree]

My Lords, I declare an interest as chairman of the Suffolk Mental Health Partnership NHS Trust and the immediate past chairman of Help the Hospices. I agree with my noble friend Lady Oppenheim-Barnes. Indeed, this has been a running sore throughout my entire political lifetime since I was first elected as an MP in 1974. The right metaphor now might be a ticking time bomb in one of those James Bond films getting quite close to where it actually goes off, or does not quite. This is potentially seriously, socially divisive and difficult, so I hugely welcome both the report and the tone that has been adopted by those on the two Front Benches. It is essential that we should seek political consensus, otherwise there will be big trouble for all of us.

Lastly, and more specifically, I come to my question: does my noble friend accept that there are also health implications in the demographics as well as social care implications? A growing number of people are presenting with mental illness problems—dementia, in particular—at mental health trusts, and indeed in acute trusts in the A&E departments, with a knock-on effect on requests for assistance from mental health trusts and their clinicians. There is a serious need for health resources to be directed towards some aspects of this problem as well as to a solution to social care problems. I hope that my noble friend will take that on board.

[Earl Howe]

I am grateful to my noble friend and agree with all that he said. The early part of the Statement demonstrates very graphically the demographic aspects of this matter. He is of course right that there are clear health implications in all of this, which is precisely why the work that we are doing in the department lays such emphasis on the need to integrate health and social care commissioning and provision and on the need to place a greater emphasis on prevention both in health and social care. That is also why we have channelled substantial additional funds from the health budget to support social care over the next four years. There is a clear interest for the health service in wishing to see a stable and fair system of social care provision, so I identify absolutely with everything that my noble friend has said.