NHS: Definition of Exceptional Case

Lord Ribeiro Excerpts

Monday 2nd July 2012 Lords Chamber

[Earl Howe]

My Lords, I hasten to reassure the noble Baroness that I have every sympathy with the individual in question, and I was aware of this particular case. The chief executive of the NHS will shortly be writing to her clinical tutor to suggest a possible way forward. However, I should put on record my view that the commissioner is acting reasonably in insisting that its decision on exceptionality should depend solely on the clinical need of the patient, and not on any broader social factors. If there is now good clinical evidence to support the use of this particular treatment, commissioners should be considering whether to make it available to all patients with similar clinical needs, and not just to a few individuals.

[Lord Ribeiro]

Is my noble friend aware that the pancreatic unit at Leicester is not able to do any islet cell transplantation operations because the PCT refuses to fund them? The excuses used to justify not funding these operations are that these may be “procedures of limited value” and “experimental surgery”. There are, in fact, four clinical units throughout the UK doing islet cell transplantation, with good records and good outcomes. I want to know whether the PCTs are not funding these operations in order to present a clean sheet to the incoming CCGs in April 2013, or whether there is another reason.

[Earl Howe]

My Lords, no, that is not the reason. My noble friend is quite right that this treatment has been around for a little while. However, it is not yet in mainstream practice. It is expensive, it is not routinely available in the NHS, and indeed NICE has published interventional procedure guidance which concludes that it,

“shows some short term efficacy, although most patients require insulin therapy in the long term”.

That does not seem to me to be a resounding endorsement of this treatment.

Tobacco: Control

Lord Ribeiro Excerpts

Tuesday 19th June 2012 Lords Chamber

[Earl Howe]

My Lords, if we are successful in our strategy to reduce smoking rates significantly, an inevitable consequence will be that, over time, less and less tobacco will be sold. It is smoking that we aim to reduce, which will have consequences for the sale of tobacco products. For the good of public health we are trying to arrive at a point where there is no smoking in this country, and that would mean no retail sales of smoking tobacco. Hence I fully support the remarks of my right honourable friend the Secretary of State.

[Lord Ribeiro]

My Lords, I am grateful to my noble friend for acknowledging the harm and damage that smoking does. Can he assure the House that the Government are equally determined to ensure that smoking will not have an adverse effect on children and children’s health in the future?

[Earl Howe]

The need to reduce and, we hope, eliminate the uptake of smoking by young people is one of our top priorities. I would like to thank my noble friend for his Private Member’s Bill, which will certainly enable this issue to benefit from a wide airing. We would all like to see smoking in cars with children eradicated—the health of people can be harmed by second-hand smoke. The key question for us at the moment is what is the most appropriate and workable way of protecting children from second-hand smoking. No doubt we will debate that matter when we come to my noble friend’s Bill.

Health: Pancreatic Cancer

Lord Ribeiro Excerpts

Monday 23rd April 2012 Grand Committee

[Lord Ribeiro]

My Lords, I declare an interest as a retired general surgeon who previously operated on patients with pancreatic cancer but was wise enough to give way to more specialised surgeons of this condition.

I support the development of pancreatic cancer centres, as suggested by the noble Baroness, Lady Morgan of Drefelin, because these 28 specialist centres in the British Isles are endeavouring to improve the standard of care for patients with pancreatic cancer. However, there are marked variations between the centres, and their outcomes should be the subject of a national audit.

I join others in thanking the noble Lord, Lord Aberdare, for bringing this debate, in this short time, to highlight some of the problems that exist. The cardiothoracic surgeons have shown the way by their national survey, over many years, of cardiac surgery outcomes. For the second year they have published the National Thoracic Surgery Activity and Outcomes report. It is important that all specialist associations take part in an audit so that it is possible to compare the outcomes between different centres and, frankly, highlight the ones that are good enough and those that are not good enough, so that at least those who know that they fall outside a 95 per cent confidence limit will improve their practice, find out how to do it better, or perhaps desist, as I did.

The argument for centres undertaking large-volume surgery is now accepted, but this needs to be underpinned by proven expertise, and I would say it takes years to actually develop that, within teams, to come up to the standards. It also needs to be underpinned by good research. Resection rates as high as 20 per cent, with 2 per cent mortality, are achievable in some centres, while others report mortality of 14 per cent.

A German study found that cancer cells in the liver and bone marrow appear in some 36 per cent to 76 per cent of patients. Undetected, these patients may well be subject to surgery, only to develop recurrent disease later. Does my noble friend the Minister acknowledge that we need greater investment in research beyond the current 1 per cent of overall cancer research funding, as suggested by the noble Lord, Lord Aberdare?

Exciting new modalities involving genomics, gene therapy and immunotherapy to complement neoadjuvant therapy are in development and need support. Let us be clear: pancreatic cancer is a difficult and complex cancer. Unlike the one-stop-shop diagnosis that can be achieved for breast cancer—which, by the way, is a very visible and obvious cancer—it can take up to six weeks to investigate and diagnose pancreatic cancer in patients prior to surgery.

Commissioners of health need to understand that this is not a cheap cancer, and they need to negotiate with the providers of healthcare and make sure that the complexity and cost are taken into account when managing pancreatic cancer.

I hope that my noble friend the Minister will use the current anti-smoking campaign to draw attention to the 70 per cent increased risk of developing pancreatic cancer among smokers as compared to non-smokers.

Health and Social Care Bill

Lord Ribeiro Excerpts

Tuesday 13th March 2012 Lords Chamber

Moved by

[Lord Ribeiro]

256: Clause 236, page 236, line 29, at end insert—
“( ) But provision made under subsection (8) may impose a requirement on a local authority, or a description of local authorities, only if the requirement relates to—
(a) the exercise by an authority of any of its functions under section 2B or 111 of, or paragraphs 1 to 7B or 13 of Schedule 1 to, the National Health Service Act 2006;(b) the exercise by an authority of any of its functions by virtue of section 6C(1) or (3) of that Act;(c) anything done by an authority in pursuance of arrangements under section 7A of that Act.”

[Lord Ribeiro]

My Lords, I shall speak also to Amendment 257. I have tabled the two amendments for the following reasons. The Bill makes provision for local authorities to fund public health drugs and treatments. It also enables provision to be made for the replication of the funding direction to require the NHS to make available funding for NICE-recommended drugs and treatments. However, as currently drafted, the provisions in Clause 236 to enable replication of the funding direction for NICE-recommended drugs and treatments currently exclude their application to local authorities. Subsections (8) and (9) make provision to enable replication in regulations of the effect of the funding direction that currently requires PCTs to make funding normally available for drugs and treatments that have been recommended by NICE technology appraisal guidance. The amendment would permit other bodies that fund public health services to finance these suggestions as PCTs are phased out of the system, creating a more uniform and streamlined system for patients to manoeuvre through the different health services offered.

As the Bill currently stands, it is impossible for regulations to require local authorities—which take on health functions under new paragraphs (a), (b) and (c) in my Amendment 256—to comply with NICE recommendations to fund such proposals. While these local authorities are likely to be responsible for the funding of such treatments under their public health functions, without codification of their ability to do so in the Bill, there will be no authority to take over the funding of such recommendations to which PCTs remain currently obligated, thus creating a gap in care as health functions are transferred between PCTs and local authorities.

Furthermore, as enshrined in the NHS constitution and its accompanying handbook, NHS organisations are also required by a direction from the Secretary of State to finance drugs and treatments suggested by NICE which are based on sound research evidence. Although the funding direction concerns mainly high-cost drugs or treatments used in NHS secondary care, there have been two or three NICE appraisals that concern public health drugs and treatments. For example, NICE has appraised and recommended a smoking cessation drug, Champix—noble Lords will know of my interest in smoking—which is currently covered by the funding direction. To ensure that this gap in funding does not occur, my amendments would extend the scope of the regulation-making power, enabling requirements to be placed on local authorities exercising their public health functions so that the effect of the funding direction which currently applies to NHS organisations could apply also to them. It is important to note that, while local authorities will have the ability to fund NICE recommendations, this extension relates only to matters dealing with public health. Moreover, regulations will be unable to place a requirement on local authorities to comply with or have regard to NICE recommendations relating to social care, putting limitations on the funding capabilities of local authorities.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful to my noble friend Lord Ribeiro for tabling these amendments, which address the important issue of ensuring that patients have consistent access to appropriate and cost-effective drugs, whether a service is commissioned by the NHS or by local authorities.

As the House will know, NICE’s technology appraisals provide important recommendations on the clinical and cost-effective use of medicines and other technologies in the NHS. The funding direction that applies to recommendations in NICE technology appraisals has helped to ensure equity of access to NICE-recommended drugs and treatments wherever patients live in England.

While technology appraisals are perhaps most commonly associated with specialist drugs or interventions used or initiated in NHS secondary care, they also make important recommendations about drugs and interventions for use in other care settings, including preventive interventions. In future, these are likely to fall within the scope of local authority commissioning responsibilities for public health. My noble friend mentioned the example of Champix. He is right: technology appraisals could address drugs to aid smoking cessation and treatments to tackle substance misuse.

I agree with my noble friend that extending a funding mandate to NICE-appraised drugs or treatments commissioned by local authorities would bring important benefits. It would guarantee patients access to appropriate and cost-effective drugs, whether a service was commissioned by the NHS or by local authorities. In doing so, it would protect patients’ existing rights as set out in the handbook to the NHS constitution, to which he rightly made reference. I am very pleased that I am able to support these amendments and I hope that your Lordships will feel able to support them as well.

[Lord Ribeiro]

My Lords, I thank my noble friend the Minister for accepting the amendments. I thank also the noble Lord, Lord Beecham, for his kind words.

Amendment 256 agreed.

Health and Social Care Bill

Lord Ribeiro Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Murphy]

The noble Lord may be right. If the change in wording applies to how the management behaves but makes no change in clinical priorities—the noble Lord, Lord Kakkar, said that it would not interfere with clinical priorities—I would support it. It is necessary to ensure that management acts like that, as long as it does not cut across the clinical priority that the sickest person comes first, whether private or NHS.

[Lord Ribeiro]

I have one question for the noble Lord, Lord Phillips of Sudbury. I agree with the comments made about management. When I worked as a surgeon, during a period when we were desperate to get patients into hospitals because we had already completed our NHS quota of work by January and had from January to April to make money, pressure was often placed on us as consultants by management to bring private patients into the NHS so that we could make the income. I hear “Oh!” from the other side. However, one problem that came from separating and withdrawing private beds from the NHS was that most consultants have established private practice in private hospitals outwith the NHS. The point that the noble Baroness, Lady Finlay, made was that part of the reason for removing or adjusting the cap and why she supported earlier amendments was to try to get integration of care to allow consultants to be on the spot.

The amendment refers to NHS foundations trusts. As we know, there are trusts that are not foundation but ordinary. What would apply to them? Would they therefore be free to undertake private work in a way that has been described here? This refers only to NHS foundation trusts.

[Lord Campbell-Savours]

I want to intervene briefly because we want to vote on these matters today. The amendment subtly gets to the problem at the heart of the Bill, which totally underestimates the new pressures that will build up within foundation trusts on management to change the nature of the patient body that comes into the trust for financial reasons. The noble Lord who has just spoken in many ways let the cat out of the bag. Pressures are exerted on clinicians by management to take actions that they do not necessarily want to take. If a trust is building up a substantial body of patients referred to it by insurance companies, it will want to be sure that within that trust’s operation some element of priority is given to its patients if only to minimise the liability that the insurance company has to the patient to pay their bills. In 10 years’ time, when the Government review the Bill, they will find that the pressure on management to change what happens in hospitals will lead to the beginning of the destruction of the National Health Service as we know it.

Health and Social Care Bill

Lord Ribeiro Excerpts

Tuesday 6th March 2012 Lords Chamber

[Baroness Meacher]

My Lords, I rise with some trepidation, not having been involved in Committee on this Bill but having been upstairs in Grand Committee on another Bill. I therefore have not done the learning that I know noble Lords around the House have done during that process.

Many noble Lords have referred to the term “competition” without distinguishing between competition within the NHS between public sector organisations and competition between public sector and private sector organisations. It is perhaps relevant for me to quote recent research by Zack Cooper and colleagues at the London School of Economics. It came out in February, since Committee, which is my justification for introducing research at this late stage of the Bill. That research looked at competition between public service NHS organisations on the one hand, starting in 2006, and between the different forms of organisation, the private and the public, on the other hand, starting in 2008.

This considerable research looked at 1.8 million patients, 161 public sector hospitals and 162 private sector hospitals and should be taken seriously. It showed that the result of public sector competition was a reduction in lengths of stay both pre-surgery and post-surgery. Those results were significant. As the Minister knows, I support strongly competition in the public sector. I really believe that human beings thrive on competition. Therefore, if the research showed that public and private sector competition worked, I would support it because I believe in the best possible service for patients.

This research also shows that when you look at the competition between the private and public sector organisations, you will find an increase in the length of stay in the public services, albeit that there perhaps is a marginal improvement financially. If you look at the whole policing and monitoring apparatus that you need in far greater proportions once you have all this competition, I am not sure that you would even achieve a financial benefit. However, you find a reduction in quality, most particularly for people with long-term conditions. That is why I needed to speak in this debate.

I hope that whatever happens on these amendments, great care will be taken to protect public service provision. If we do not prevent the cherry picking, which happened in the provisions studied by this research and has occurred in other settings examined by research, without any question we will achieve a two-tier service with the private sector cherry picking the easier and healthier patients and the public sector having the complex care. I know that this issue will have been rehearsed at length in Committee. I do not want to go on further but it is important that we do not just use the word “competition” without clearly differentiating the competition that we are talking about.

[Lord Ribeiro]

For clarification, perhaps the noble Baroness would say whether we are dealing with apples and pears here. She made reference to the private sector and chronic care whereas she said specifically that the earlier 2006 report related to surgery. My understanding is that quite a lot of the competitive work done in the NHS involved ISTCs. These contracts were held by private practitioners and private companies. I have not read this report but we need clarification as to whether we are dealing with a level playing field of NHS provision or whether this is NHS provision against private provision.

[Baroness Meacher]

I am grateful to the noble Lord for his intervention. I was trying to conflate a number of points. The research that came out in February has to do with surgery but the point is that those findings support earlier studies which looked at a mixed public-private market by Allen and Gertler in 1991 and Ellis and McGuire in 1986 and others. Their research also showed that if you have private and public services competing with each other, you will see the cherry picking and the detriment to the long-term conditions to which I have referred. I am sorry that I slightly skipped a few things and compounded them into one. The findings are absolutely consistent whether they are concerned with surgery or other settings.

Health and Social Care Bill

Lord Ribeiro Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Ribeiro]

My Lords, my name is on this amendment, and I wish to say a few words about it. First, I welcome the amendments moved by the Government in Committee which give the Secretary of State a duty to secure medical education and training. A comprehensive health service cannot be achieved without a properly trained and educated workforce. Health Education England, as a Special Health Authority, not only must be given the authority to influence the function of local education and training boards in the short term, as it is established this year, but must influence local providers of all sorts—private, NHS or any other type—and other organisations responsible for the education and training of their workforce.

The influence of Medical Education England and the Medical Programme Board, of which I was a founder member after the MMC/MTAS débâcle, will provide HEE with invaluable information about the oversight of doctors and dentists. For that reason, I believe there should be a medical director of MEE within HEE. While I welcome funding for education resting with Health Education England, as mentioned by the noble Lord, Lord Patel, I remain concerned that the education levy will be raised from providers who may not have the same objectives and consider that their obligation to patient care trumps their obligation to provide training.

I have concerns about who should be responsible for quality assurance and through that for quality improvements. I believe it would be best to have this done at national level. The LETBs and providers cannot be judge and jury in relation to quality assurance and the principle of independent assessment and assurance must be maintained. Quality control and quality management are local functions, currently performed by the deaneries. Quality assurance and quality improvement, which imply that after the assessment lessons can be learnt and good practice passed on, must be at national level. They must have input from the profession to provide the appropriate oversight. In this regard, royal colleges, as national bodies, are ideally placed to assist deaneries in providing independent quality assurance and quality improvement. I hope the Minister will give assurances that this will be the case.

More specific functions of HEE as a Special Health Authority are outlined in Amendment 16. It may present more of a problem for the Government as the role and function of the LETBs are not defined in the Bill. If they are to take responsibility for funding, then the lessons of the strategic health authorities’ 2006 raid on the education budget to balance the NHS budget must be learnt and the education and training budget must be ring-fenced to prevent this happening. I hope the Minister can give the House assurances on this point.

[Lord Turnberg]

My Lords, my name is also attached to Amendment 13. The case has been very well made by the noble Lord, Lord Patel, so I have very little to add, except that it is obvious that education and training are a key part of any service provision. For a service under pressure, looking after the patients always comes first, and it is very difficult in some circumstances to provide the time that education and training need. It takes a bit longer in an outpatient clinic to teach a young medical graduate; it takes longer in the operating theatre, I suspect, to show how it should be done. It takes time to allow junior trainees to go on education courses and rotations. The pressure on a service is always to concentrate on caring for the patients, and education and training can easily be given a back seat. This amendment helps straighten that balance.

--- Later in debate ---

[Lord Ribeiro]

My Lords, I would like to comment on the good medical practice to which the noble Baroness, Lady Finlay, referred. It was introduced some time ago to ensure that medical practitioners would know how to communicate with their patients and were always honest and truthful when things went wrong. In surgery, we produce good surgical practice to complement that exercise. In relation to patient communication, we require surgeons to keep patients fully informed both during and after their treatment. We require them to act immediately when patients suffer harm and to apologise.

As for anecdotes, I had one patient on whom I operated for varicose veins. I pulled up something in the back of her leg that looked like a vein, but in fact it was a nerve. The net result was that the next day she had a foot drop. I went to see her and explained that I had made a mistake—I thought that it was a vein but it was a nerve. I said that we would get a plastic surgeon to see her and we would re-explore the nerve to see if it was all right. The operation was done, and, fortunately, the nerve was not torn. The period required for regeneration was likely to be six months. Every time she came to my out-patients’ clinic—although she was a private patient—I used to get a terrible feeling in the pit of my stomach, because I could hear her coming down the corridor as her foot drop made a flopping sound on the floor. She would sit down opposite me and say, “You know, I really ought to sue you”. She never did, however, because she had been told straight away the whole truth of what had gone on.

Therefore, I have tremendous sympathy for this duty of candour. What worries me is that we could end up with a contractual mechanism in legislation that leads to nothing more than a tick-box exercise. The problem with such exercises is that people will fill them in to try to avoid the legal implications that we have heard of. They will try to avoid litigation. The quality of any genuine explanation may well be lost in such a mechanistic approach. Although it has taken five or six years since the CMO first introduced this concept, we need to do very much more to change the culture. I hope that with the creation of new organisations such as local healthwatch there will be opportunities to raise the profile of the issue and to achieve the sort of explanations that patients rightly deserve.

[The Countess of Mar]

My Lords, when my daughter was a little girl I brought her up to tell me immediately if she had done something that she should not do or if she had had an accident, and to say sorry, and she would be forgiven immediately. It has been my experience with the OP sufferers from sheep dip, Gulf War veterans and ME sufferers that, if a mistake has been made, all they want is an apology and an explanation and to be able to say, “Please do not do it again”. That has happened over and over again. I have a drawer full of letters from people saying that.

I suspect that it is not necessarily the doctors and nurses—the medical practitioners—who are covering things up when there is a cover-up. It might be what we euphemistically call the pen-pushers—the people behind the doctors and behind the organisation who are afraid that the organisation will come into disrepute. That is where much of the problem lies. Many doctors would like to be able to say, “I’m sorry—I made a mistake”, but they are held back, which is what the noble Lord, Lord Harris of Haringey, said. If we are going to change the culture, we must start with leadership. We have heard about leadership in nursing. A nurse leader or a doctors’ leader can say to the whole of his team, “If you make a mistake please come and tell me immediately and we will go and tell the patient”. That would wipe out a whole lot of anxiety.

The noble Lord, Lord Faulks, talked about litigation. People go to law because they are angry. They have not had an explanation and they are worried that something has gone wrong with a relative or themselves. That is when they go to law. That is what happened with the sheep-dip farmers, and it certainly happened with the Gulf War veterans when Mr Soames, the MP with responsibility for the Gulf War veterans at the time, said, “See you in court”. They rise to that. If people have an explanation, they will accept it. Everybody makes mistakes, and they will understand it. So I support the noble Baroness, Lady Masham, in her cause.

Health and Social Care Bill

Lord Ribeiro Excerpts

Wednesday 8th February 2012 Lords Chamber

[Lord Ribeiro]

My Lords, I follow the noble Baroness in saying that I am speaking not because I see this as an amendment that should be pushed to a vote, but rather because I see it as a probing amendment that would allow the Government and the Minister to listen to the arguments being put today.

The whole thrust of the reforms is to provide care right across the community—secondary care, primary care and, let us not forget, social care. The mental health institutions started to be closed some 30-odd years ago, and care moved into the community. The ability to identify, diagnose and treat patients admitted into accident and emergency departments, often with psychotic diseases, is a major challenge. It certainly is for surgeons—for me in particular. As more psychiatrists are diverted to care in the community, the diagnosis and treatment of patients who appear in A&E departments is a challenge. It is quite difficult for those of us who have not had psychiatric experience. I was very fortunate that my house officer rotated through a psychiatric firm, so I had the benefit of somebody who was able to identify patients with psychotic illnesses and could advise me how best to deal with them.

It is important to identify the difference between physical and mental illnesses. I feel that this amendment would make a difference by clearly stating that there is physical illness and mental illness in this section. I very much hope that the Minister will listen to the strength of the debate and come back with some answers.

[Baroness Finlay of Llandaff]

My Lords, I hope that the Minister will be able to break away from his brief and accept this amendment, because it is critical. As my noble friend Lord Walton has pointed out, the first part of the amendment talks about physical and mental health, but the second part implies that prevention, diagnosis and treatment are of illness, and there is a real danger of reading that as physical illness. The most tragic situation is where physical illness is misdiagnosed as mental illness or mental illness is misdiagnosed as physical illness. The consequences of that for patients can be disastrous.

In primary care, patients present with a completely undifferentiated picture. The general practitioner has to start from scratch, sort out the different parts and then refer to or consult other parts of the service, as appropriate, if he needs to. My noble friend Lady Meacher suggested that those services are in imbalance, and I agree with her that there is a danger when funding is short that you will lose the mental health component of services and that the culture change that this Bill is meant to bring about will not happen. A culture change is needed. Stigmatising labels have been attached to people with mental illness for many years. People with learning difficulties do particularly poorly in services overall. If we are going to take the opportunities of this Bill, we have one with this amendment: to flag up that there are mental and physical components to illness that need and deserve accurate diagnosis, the one as much as the other, that they are interrelated, that one affects the other and that we cannot provide a comprehensive health service without due regard to the totality—to the holistic person who is the patient in front of us.

Tobacco

Lord Ribeiro Excerpts

Monday 6th February 2012 Lords Chamber

[Earl Howe]

My Lords, yes, the vested interests of the tobacco companies are well recognised. The Department of Health is careful to ensure that the Government’s obligations under the framework convention are met, including the treaty obligation to protect public health policies from the vested interests that he referred to. For example, I hasten to reassure him that the tobacco industry was not involved in the development of the Government’s tobacco control plan, which was published last year.

[Lord Ribeiro]

Can my noble friend outline what steps the Government are taking to reduce the promotional impact of tobacco packaging, particularly that which is targeted at vulnerable young girls?

[Earl Howe]

My Lords, we shall shortly be announcing a consultation on the subject of plain packaging for tobacco. We wish to hear views from all interested parties on that subject.

Health and Social Care Bill

Lord Ribeiro Excerpts

Tuesday 13th December 2011 Lords Chamber

[Lord Whitty]

My Lords, I will intervene only briefly because most of the points on competition were made very eloquently, in particular by the noble Lords, Lord Clement-Jones and Lord Owen. My amendments would rather more crudely delete references to anti-competitive behaviour. One thing I will draw to the Committee's attention is that the terminology maximises the chances of this going wrong. The earlier version of the Bill referred to “promoting competition”—in other words, encouraging more providers—which was a relatively benign intervention if one believes that that is the way to go. By referring to “preventing anti-competitive behaviour” we are turning Monitor from being an accreditor and promoter of more providers to being the policeman of the nascent market. That will put it in a very vulnerable position.

All competition and sector regulators that have this duty are inevitably faced with appeals, complaints and other interventions by unsuccessful providers or potential providers, which go through a quasi-legal process with the regulator. The Bill provides that if that is not acceptable, the issue may go to the competition authorities, which rely on the general principles of competition and also—as the noble Lord, Lord Owen, eloquently underlined—of procurement law. Therefore, in almost every case of commissioning the allocation of the contract will be opened to appeal on the grounds that it overrides competition. However, as noble Lords said, there are hundreds of thousands of situations where collaboration and integration, vertically and horizontally, and even mergers between providers, would be in the interests of patients. The Minister said that clearly in all cases the interests of patients were the most important issue. Indeed, the very useful document describing Monitor’s role states that the regulations would help ensure that competition is not applied inappropriately, and only ever in the interests of patients. Well, that is what we would all wish to see. I certainly would not wish to deny Monitor the ability to encourage competition, but if there is an appeal against a particular award by a particular commissioning body, Monitor and the higher courts have to be in a position of judging whether or not the award was in the interests of patients. That seems a severe restriction on the ability of Monitor to provide its general services because it will be engaged in all these cases of complaint and appeal.

There are things that would fit in with the Government’s overall philosophy— which in this area I do not happen to share—but that would not open the door to such a multitude of appeals and to the wider application, referred to by other noble Lords, of both general EU and UK competition and procurement law, which would tie large parts of the National Health Service up in knots.

[Lord Ribeiro]

My Lords, Amendment 278BA in my name will appear later this afternoon under Clause 71. In view of the discussion so far, however, I think it appropriate that I make my comments now.

This is a probing amendment on which I hope the Minister will be able to provide some clarification. The amendment seeks to address the maintenance of quality standards across all qualified providers, be they NHS, private or the voluntary sector, in three key areas. We have heard mention already today about “any qualified provider” and this is the area on I wish to spend some time. One of the current issues with private sector contracts is that when serious complications arise, requiring intensive care facilities, the patients invariably end up in the NHS. Continuation of care is essential in all areas but it is particularly important in the area of surgery. The experience of the independent sector treatment centres in the NHS, mentioned by the noble Lord, Lord Rea, and others, has not always been a happy one for the medical profession. If the noble Lord, Lord Warner, who has championed their introduction, was here he would have taken some comfort from the recent report that the noble Lord, Lord Rea, referred to.

When I was president of the Royal College of Surgeons I actually instituted a national audit to compare outcomes of care between the NHS treatment centres and the NHS. The Patient Outcomes in Surgery audit was launched in 2007 by the Royal College of Surgeons and the London School of Hygiene and Tropical Medicine. I said at the time:

“This Audit will provide solid evidence as to whether patient outcomes differ between the ISTCs and the NHS. It is imperative that patients receive a sustained, safe and quality service, which is consistent”—

and that is the point, consistent—

“across surgical providers”.

The outcome of the audit, published this October, analysed four operations: hip and knee replacements, hernia and varicose vein surgery across both provider types. It found that the outcomes from the ISTCs were equal to or generally better than the NHS where both elective and emergency patients were treated. Again, the noble Lord, Lord Rea, made the point that the NHS deals with emergency patients as well. The report highlighted the fact that the patients treated in these centres were younger, fitter, healthier and less likely to have co-morbidities than their NHS counterparts, making them a lower risk for complications.

Jan vanderMeulen, professor of clinical epidemiology at the London School of Hygiene and Tropical Medicine, points out:

“Independent sector treatment centres treat only non-emergency cases. The separation of elective surgical care from emergency services is likely to have a positive impact on the quality of care, irrespective of whether the elective surgery is carried out by a private company or the NHS”.

This is something that I believe passionately: the exercise of the ISTCs has demonstrated that if we separate functionally elective from emergency care, we will improve the quality of care for patients, irrespective of whether that is done in the private sector or within the NHS.

There is a downside, however, and this was pointed out by Professor Norman Williams, current president of the Royal College of Surgeons, when he warned,

“we need to guard against any drift that could destabilise hospitals. Sicker patients have needs that only a comprehensive hospital can provide”.

There is a danger that if you move a lot of care over to ISTCs and so on you may destabilise the acute services in the NHS.

--- Later in debate ---

[Baroness Armstrong of Hill Top]

My Lords, I want to ask the Minister questions, although the debate tempts me into other things. I will start with the other things.

I found the debate fascinating. I have also found some of the re-writing of history fascinating. The previous Government introduced competition, and I am very proud of what the previous Government did in rescuing the health service, as my noble friend on the Front Bench said. The reality is that when we introduced ISTCs there was no pricing in the National Health Service. There were no tariffs. Nobody knew what it cost. The amount of money that the private sector charged was substantially reduced because we put a charge on it, but we had to do something to create the market. I have been extremely frustrated by the Minister saying, again and again, that we introduced preference for the private sector. We were taking the very first steps to introduce architecture which could allow the comparison that he now makes in order to get to a level playing field. However, there was nothing there that would have allowed the previous Government to introduce the architecture of a level playing field from the beginning. I remember discussions at the time with organisations such as Bupa which were really concerned that we were bringing down the amount that the NHS would pay them per patient once we introduced tariffs and pricing.

That was a significant development. It then allowed other developments to take place. Yes, it has allowed the Government to take a comprehensive look at all of this, although, as we have been reminded on occasion, the Government did not need ideologically to say that they had to completely open things up. The Government have admitted that 90 per cent of what they wanted to do could have been done without this legislation. I now suspect that the Government wish that they had never embarked on this in the way that they have done. It has actually meant that most people out there think that, following the pause, there will be no competition. Some of them will be surprised by the debate that we have been having today and, indeed, the debate that we had a couple of weeks ago.

The introduction of foundation trusts was very significant and a real revolution. It said that you had to take control in your own area and be responsible for how you were organising hospital services. That principle is very important. Given the changes that the Government are making in allowing the Secretary of State to intervene in the way that the noble Lord, Lord Newton, described earlier, can the Minister assure me that that will not mean that the Government will be tempted to, for example, raid the successful FTs to ensure that they cover up with sticking plaster those which are not succeeding and therefore not take the difficult decisions?

We are having the debate while, outside, there have been significant reports from the King’s Fund and comments from my noble friend Lord Darzi about the challenges in London. Those challenges will demand that the Government recognise that you cannot have comprehensive healthcare that works effectively, let alone efficiently, on every street corner. There will have to be places that specialise in hips and knees. The noble Lord, Lord Ribeiro, talked of the efficiency of ISTCs. Although it is within an NHS hospital, there is what is essentially an ISTC in Epsom. The hospital, from what I read, may be having problems generally, but its unit that just does hips and knees is now the most efficient in Europe, if not the world. It has done incredible things to make it so, such as buying a taxi firm so that it can ensure that it gets people there and so does not lose any slots. That, of course, helps with efficiency.

We are going to face very different challenges and the Government have to be careful that they do not introduce architecture that institutionalises the superiority of hospitals. One of my concerns about our discussion is that sometimes we reinforce the centrality of hospitals in the modern healthcare system when we should not. We ought to be embedding the centrality of the patient pathway, which is much more about the patient’s experience before they go to hospital and after they leave hospital than the period—I hope it will be shorter and shorter—that they are actually in hospital. That is where competition will play an increasingly important part. There has to be some sort of regulation of other providers but it has to be done in a way that does not reinforce hospitals. This has been the experience of Monitor to date, so is it going to be most effective to have it regulating other bits of the architecture? There needs to be regulation of the private sector and of the voluntary sector that are providing pieces of patient care. How do we do that in a way that does not reinforce hospital care?

I have been fascinated by today’s discussion of the European Union and whether the NHS will be subject to the competition law. I remember very well, as Housing and Regeneration Minister, trying to negotiate with Mario Monti, who simply did not understand that we would frequently want to give support from the public sector, but to have that matched from the private sector. That was seen as anti-competitive and a real problem. I do not want the NHS to get involved in that architecture. I would love the Minister to comment on what his colleague Simon Burns said in the Commons. Mr Burns agreed that the application of EU competition law was inevitable but also desirable. Does the noble Earl concur with his friend in the Commons?

I have also been fascinated by the discussion around how competition is to be measured and the fact that we are now going to measure competition on quality as well as price. Ideologically I support that absolutely, but I am not sure how you do it, and I want to know how the Minister intends that to happen. What is it that will be measured so that, at a local level, proper decisions that are not contestable in court are made around the wording currently in the Bill? We all want to get there but the reality is that it is very difficult to find an objective measure that will be clear about the quality of patient care. We have a long way to go in terms of getting an architecture that will deliver the health service that the majority of people want to see where the patient is at the centre of every decision. I have been impressed with the foundation trust board that I have joined in Durham and Darlington. The businessmen on the board are saying that if you get patient care right, the financial decisions will become much easier and more straightforward. I believe that but we have to be able to get there. The real problem is that the Government have got so many things confused that people out there do not see it as simple. They see it as a confused and muddled agenda that has objectives which do not look for a patient pathway that is clear and open to the patient, with the patient getting a hold of how they can be more in control of that pathway. That is where we all want to get to. I am just not sure that the Government have got us there.

[Lord Ribeiro]

Does the noble Baroness agree with me about the pricing of ISTCs? As a surgeon I had a perfectly good idea of the cost of operations in the private sector because I did private work. I also had a reasonable idea of how much it cost in the NHS. One of the principal reasons why the Labour Government introduced ISTCs was to act as the grit in the oyster to challenge the NHS to reduce its costs and to improve the quality of its care. The issue was not just that the Government did not know what the actual price was going to be.

[Baroness Armstrong of Hill Top]

It certainly was not. I do not believe that the previous Government ever acted just on price, despite what the Minister keeps alleging. The noble Lord might have known what the price was but the price in his hospital was very different from the price in another hospital. One of the problems was that there was massive inconsistency across the health service, and that was being addressed. The Government were also challenging everyone involved in healthcare to be honest about what they were doing and to put patients at the centre, making sure that they got treated more quickly—a very important issue for us and our commitment to the public—and as fairly and as well as possible. We were able to get more consistency by driving through a price mechanism.