Health and Social Care Bill

Lord Patel of Bradford Excerpts

Tuesday 11th October 2011 Lords Chamber

[Lord Patel of Bradford]

My Lords, we are faced with only two options in the debate. We can seek to dramatically improve the Bill—and make no mistake, it needs dramatic improvement—or we can reject it out of hand. Neither option is without consequences. However, if the Bill passes through the House without significant amendment, the consequences will be even more severe. Noble Lords who have already spoken have covered many aspects of the Bill which cause all of us concern. I also have serious reservations about the impact of the Bill in a number of areas: on commissioning, public health, integration with social care, service-user engagement and quality and safety. As time is limited, I will focus my contribution today on the implications for mental health services. I declare that I was the former chairman of the Mental Health Act Commission.

We are told that commissioning will improve by being led by doctors and nurses. On the surface it is a reasonable assumption that relies on the simple idea that a doctor or nurse knows best what an individual patient needs. However, there is a problem; commissioning is not done for the individual, but is about the whole community. Commissioning is a process by which decisions are made on the most appropriate level and quality of services for a population. This is not an easy thing to do, as we see very clearly with respect to secondary mental health services and, particularly, specialist mental health services. It is widely acknowledged that this has been one of the weaker aspects of PCT commissioning over the past few years. However, the Bill as it stands can only make matters worse.

What is really worrying is the potential for confusion about roles and responsibilities for disputes in funding decisions. Oversight of service providers and commissioning will lie with the newly created NHS Commissioning Board, but local commissioning of many mental health services will be done by clinical commissioning groups. Will this make services better? I think not—especially not when care is provided upon the basis of a generalised tariff established by Monitor for what a care episode can cost. This is a system that seems designed to fail the most complex and difficult cases.

I am in agreement with the Law Society, which states that:

“The separation of commissioning responsibilities for mental health services could lead to divergence in strategy and commissioning intent, and increase commissioning disputes to the detriment of service users”.

But it is not just the confusion in commissioning that makes me concerned. I am also worried about the implications for continuity of care planning. One of the most important things that we could get right in psychiatric services is care planning. You can see this from almost any inquiry report into the deaths of psychiatric services users, or into a homicide involving a service user. But to plan care in a holistic way, you need to have a holistic service and the Bill appears to create conditions where such joined-up services will be ever more difficult to achieve.

That is especially so with respect to aftercare and I have grave concerns about the amendments proposed to Section 117 of the Mental Health Act 1983, which concerns the provision of aftercare once a detained patient is discharged from hospital. I cannot see how patient care will be improved by the amendment that either the health or social care partner in the provision of aftercare can unilaterally decide to withdraw from the provision of services. But most worrying, the amendments seem to be designed to enable the charging for services provided to patients who have been detained under the Act.

The Law Society has quite correctly called for this to be prevented through an explicit statement in the Bill. It is nearly a decade since the Appellate Committee of this House, in the Stennett case, recognised some sort of reciprocal aftercare duty towards those whom the state has detained for healthcare reasons. In many cases, continued engagement with aftercare services is a de facto condition for discharged patients—are we to support patients being charged for services that are imposed on them?

What about the voice of service users, their carers and the public? I have spent many years developing and managing service user and community engagement programmes at local, regional and national level that have produced significant change for services and commissioning.

Last week we saw the publication of the guidance on authorisation for clinical commissioning groups which includes:

“Meaningful engagement with patients, carers and their communities”.

So far so good, but meaningful engagement takes time, expertise, understanding and above all the willingness to act on what people say. It is not a cheap option. The guidance goes on to state that:

“Plans are in place to ensure that the emerging CCGs can effectively engage with and gather insight from patients and the public, including disadvantaged groups”.

Perhaps the noble Earl can tell us what these plans consist of? Three questions spring to mind. How is this to be accomplished? What resources are the Government providing to make this happen and, most importantly, where is the expertise? While I agree that those who use services should be at the forefront of driving up standards of care, there must also be adequate safeguards of independent monitoring and inspection. I am concerned that the Bill threatens to weaken such safeguards.

At the end of my tenure as chair of the Mental Health Act Commission, I was responsible for seeing it merge into what is now the Care Quality Commission. I continue to watch the CQC closely. The merger was designed to simplify the regulatory landscape, but the Bill seems to create yet more complication. Under the Bill, Monitor and the Care Quality Commission have oversight over service providers, but responsibility for overseeing commissioning will lie with the newly created NHS Commissioning Board. So we are back to having different bodies monitoring different aspects of health and social care.

In the case of the CQC, the Bill further reduces its independence: Clause 287 requires the Secretary of State's permission for the CQC to conduct special reviews. The Health Service Journal reported, on 6 October, that according to the CQC's own internal review, doubts have been expressed that it can sustain its current workload.

The CQC has a third less funding than those bodies it replaced and has had to cut generic inspections by around 70 per cent last year because of pressures in registering services. It is currently being asked to cover 18,000 care homes and 400 NHS trusts and will now be asked to take on responsibility for GP practices and the yet-to-be-determined number of “any qualified providers” who may be pressing for registration, all of which will once again distract the CQC from its vital inspection role.

I am pleased to see that, so far, the CQC has not reduced its visits to detained patients. It must be congratulated on that, but I question how that can be sustained, given the immense additional pressures to be produced under the current proposals in the Bill. I would like to be assured, if the Minister can, that the gains envisaged in the merger of the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection will be realised. We do not want any more horrors like Winterbourne View in mental health services. I hope that noble Lords will recognise the immense amount of work that is still to be done, and that the Government will concede that we must take the appropriate time to do that. Failure to take that time will risk lasting and, most importantly, irreversible damage to one of our greatest post-war achievements: a National Health Service that works in the interests of patients and the public, not in the interests of ideology.