Health and Social Care Bill

Lord Walton of Detchant Excerpts

Tuesday 13th December 2011 Lords Chamber

[Earl Howe]

My Lords, I hear what my noble friend says, but the fact is that the amendments he refers to would reduce Monitor’s independence from political interference. We are clear that we do not want political interference in Monitor’s activities. The intent of the amendment is clearly to give the Secretary of State increased accountability for the decisions around Monitor's functions. We believe that Monitor will be an effective regulator and able to deal with conflicts of interest. Clause 63 requires Monitor to resolve conflicts between its functions. If a failure to resolve conflicts between functions was significant, then the Secretary of State already has the power to intervene under Clause 67. Therefore, there is an intervention mechanism but we suggest that it should be triggered only in the circumstances to which I have referred.

[Lord Walton of Detchant]

Will the Minister say whether, if Monitor is to meet in public, it will have reserve powers to allow it to go in camera if for any reason it may be required to consider highly sensitive personal information, which ought to preserve confidentiality in respect to the individuals concerned? It is crucial that such a power should be available to it.

[Earl Howe]

The answer is yes, although we do not expect that Monitor would ever have occasion to see named patient records.

--- Later in debate ---

[Lord Whitty]

My Lords, I apologise for not being here at the beginning of the consideration of this group because for once the Committee is making faster progress than I thought, but I have tabled two amendments that relate back to the issue of anti-competitive behaviour, so I will be following on from my remarks about the first of the amendments today. I seek greater clarity from the Minister. Given that Monitor has responsibility for preventing anti-competitive behaviour—in other words, not just the encouragement of competition but also the policing of it—what happens when someone complains to Monitor? In effect, Monitor has been given the same powers as the OFT and other economic regulators in other sectors and, as my noble friend Lord Beecham has just said, is subject to some oversight by the Competition Commission, which has duties in this respect.

Let me give two examples of what in other sectors would be seen as anti-competitive behaviour. One is where two providers in an area get together to divvy up what they know the commissioning body wants and provide a package that is acceptable to the commissioning group. A third provider would like to get in on the action. It is probably qualified, so that is not a hurdle. If that provider then complains to Monitor, is Monitor able to say, “This may appear to be a bit anti-competitive, but actually it is in the interests of patients”? I assume, from all the Minister has said and from what is set out in the document about the role of Monitor, that it means it can say that. But is that the end of the story? Can there be an appeal against Monitor to the courts or, if it is systematic, to the Competition Commission review role?

There is also the opposite scenario: competition laws relate to monopsony and oligopsony as well as to monopoly and oligopoly, so if a number of commissioning groups get together and decide that they will buy collectively from particular providing groups but not from others, is that also grounds for appeal to Monitor? If Monitor nevertheless decides that that is in the interests of patients, is there a further recourse? I was worried earlier today that there might be further recourse and that, despite all the assurances that have been given, Monitor is not actually the final regulator on what is in the patients’ interests, because it is supposed to act in accordance with or reflect the general rules, including EU rules, on competition and procurement.

This situation is going to arise because, with the Government’s encouragement, there will be more providers than those which get commissioned. A failed or disappointed provider must know how the system is supposed to work so that Monitor can look at it and be judged on it. With other economic regulators there is a form of appeal in this respect, to the Competition Commission. It is not used very frequently, but when we are trying to bed in a new system it may well be used more frequently by disappointed and failed competitors. If that is not to happen, it has to be clear in this Bill—and if not in this Bill then by ministerial decree and in regulations—that once Monitor decides something is in the interest of patients that is the end of the story. Otherwise, I cannot see the system working without constant appeals and second guessing.

[Lord Walton of Detchant]

My Lords, I shall be brief in speaking to these amendments. I wholly agree with the principle outlined by the noble Lord, Lord Warner. There are many circumstances in which competition, properly controlled, will benefit the National Health Service and will benefit our community. But, like the noble Baroness, Lady Williams, I too, having worked in the United States, would be deeply concerned if competition were allowed to run riot. Years ago, I saw the affect of this. For instance, in the Massachusetts General Hospital, where I worked many years ago, the president of the hospital told me that they were required to debate and negotiate with no fewer than 47 different insurance companies in order to obtain coverage for the patients whom they treated.

Yet in the United States you still find, in certain communities, perfectly acceptable patterns of community care which are in many ways excellent, not least the Kaiser Permanente plan in California. I also visited an excellent clinic and associated hospital providing a substantial range of primary, secondary and tertiary care to a very wide community in Marshfield, Wisconsin. The Marshfield clinic serves a very large community in that state. All the people in the community pay an annual subscription in return for which they get a full range of primary, secondary and tertiary care of a very high standard. There are islands of excellence.

So far as competition in this country is concerned, I have always believed that the cap imposed upon foundation trusts in relation to private patients was unfair. It was imposed at a particular moment in time and based upon income derived by those individual trusts in a preceding period, and was grossly uneven. I have always favoured a partnership between the public and private sectors. In such hospitals and foundation trusts I believe there is a great advantage to allowing them to have more income from private patient beds: it not only generates income for the National Health Service, it also persuades many consultants to become geographically whole-time, looking after their public and private patients in the same hospital and not having to spend time, as many have in the past, travelling to private hospitals.

I believe in competition and in the public-private mix. But in pursuing that type of programme, it is absolutely crucial that Monitor has the authority to prevent any foundation trust from overstepping the mark and increasing its private provision to the extent that it will harm the services that it gives to NHS patients. I would love to have an assurance from the Minister that Monitor will be able to fulfil the function of controlling excesses which could damage the National Health Service if private provision went too far.

[Lord Patel]

My Lords, briefly, we are getting a bit confused between the amendment of the noble Lord, Lord Warner, which I support and is about anti-competitive behaviour, and people talking against competition. The amendment is quite clear. It asks Monitor, within a year, to identify barriers to quality care that are anti-competitive. The noble Baroness, Lady Murphy, gave one example and there are others, such as optometry services, which can, if given the opportunity to expand, not only provide good diagnostic services but also treat some minor ailments that do not need referral to hospital. Our amendment is about anti-competitive behaviour. It is not about competition.

--- Later in debate ---

[Lord Warner]

My Lords, I apologise that my enthusiasm for Amendment 274ZZB caused me to speak to it partially in an earlier group. The amendment in my name and that of the noble Baroness, Lady Pitkeathley, was put down because we regard it as a probing amendment to the end of Clause 62 that relates to matters that Monitor must have regard to in the exercise of its functions. Its purpose is to raise the issue of the financial stability and governance of adult social care providers in the light of the Southern Cross experience, and to seek the views of the Government on how they propose to use the new regulatory system in the Bill to protect the vulnerable users of adult social care services from providers whose financial structures are fundamentally unstable.

Let me say at the outset that I thought that the Department of Health managed quite well the difficult situation that Southern Cross presented. Few, if any, elderly people had their care seriously disrupted. 20/20 hindsight is a wonderful thing in public policy post-mortems. The truth is that across the political spectrum few were alert to the dangers of overleveraged providers of adult social care. However, we are now alert to the dangers of creative financing arrangements in this area, particularly those instituted by boards of management that do not hang around to face the consequences of their action but simply take the money and run.

It is clear that the way in which care providers are financed and their governance wraparound are matters for rigorous inquiry before they are allowed to contract for the provision of services to vulnerable people. In the case of adult social care, this relates not simply to elderly people whose adult social care is funded by the state but to self-payers. Most of these service providers have a mix of state and self-funders in their homes, with many of the self-funders in effect subsidising the state-funded residents in today’s inadequately funded, state-financed, adult social care. That inadequate funding is itself going to cause some providers to withdraw from the market, and others to merge. It will also distort future investment decisions by those who wish to enter this market, because they will favour investments that concentrate on self-funders.

We face a period of turbulence and uncertainty in the adult social care provider market that makes the detailed working of the regulatory system even more important. That is particularly the case with the positive flood of findings of unsatisfactory care of elderly people in the NHS and adult social care environments. The question of how providers are financed and governed is an integral part of ensuring stable and quality care environments for vulnerable groups. A bright light needs to be shone on these areas in a new regulatory system. Can the Minister say how the Government are going to proceed on this issue and what role Monitor should play? Do the Government intend to move quickly to bring adult social care into Monitor’s remit, or do they see some other approach being pursued? I recognise the heavy burden that is already being placed on Monitor and the range of things that it now has to do. However, I think that the Committee needs to know whether and when this will be transferred to Monitor or whether other mechanisms will be used. The purpose of this amendment is to find out the Government’s intentions.

[Lord Walton of Detchant]

My Lords, I support the amendment proposed by my noble friend Lady Finlay because this is an extremely important matter. When I was a consultant working as a neurologist in the NHS, if I had a patient who, for instance, had a peripheral neuropathy and turned out to be diabetic, I had no problem in referring him to a colleague within the same hospital for the care of his diabetes or to a colleague in the ophthalmology department for the care of his eyes. I am horrified to discover that in the recent past such individuals have been told to go back to their GP for yet another referral to a different consultant. This is an extraordinary situation. Can the Minister assure us that something in the Bill will stop this kind of nonsense occurring?

[Baroness Pitkeathley]

My Lords, I speak in support of Amendment 274ZZB in my name and that of the noble Lord, Lord Warner. In the debate on Wednesday last, the noble Lord, Lord Warner, referred to health and social care as being in a symbiotic relationship. That is supposed to be recognised in the title of the Bill, but in fact we have had very few debates about that relationship, other than the fact that everybody says that integration is important and that patients do not understand why such integration has always proved so difficult. We agree that, as patients’ needs are comprehensive—especially patients with long-term conditions—we need comprehensiveness in addressing those needs.

The other thing that we always agree about is that, to meet the Nicholson challenge, services have to be reconfigured so that more services are provided in the home and in the community, instead of in expensive hospitals. Today’s King’s Fund report reminds us of the difficulties that many London hospitals are currently facing, yet reconfiguration is still resisted, not least sometimes by MPs, who should know better.

Another thing on which there is usually agreement is that as social care is just as important to patients and their families as healthcare, it should be given the same status as healthcare. We may agree about that, yet social care plainly does not have that status, despite the commitment to care services of the Minister, his officials at the Department of Health and indeed the noble Earl himself. This amendment seeks to ensure that, no matter who the provider is, the provision of adult social care services is on a sound financial footing and with corporate governance that ensures proper oversight. That is surely necessary beyond question, given the recent Southern Cross debacle to which my noble friend has referred, with the prospect of more such disasters.

As we know, health and social care have always been organised and funded by different groups—one centrally and the other by local authorities. However, as my noble friend reminded the Committee in a debate last week, the majority of the money spent on adult social care by local authorities is in fact funded centrally and passed to local authorities, which commission the services. This amount of money is not sufficient, especially in view of the fact that rising demand has been well established, most recently by the Dilnot commission. It seems that the only way to get more money into the system in these hard times is, first, by showing that money spent on social care will save money in the long term and, secondly, by ensuring that the money is effectively, efficiently and safely spent. Involving Monitor in the way suggested in this probing amendment would go a long way to enabling us to do this better. I can do no better than quote from the noble Baroness, Lady Barker, when she said in our debate last Wednesday:

“The biggest single thing that will make the Bill work or not work is whether everyone in the NHS sees it as their responsibility to understand and work with social care”.—[Official Report, 7/12/11; col. 759.]

Placing this responsibility on Monitor or otherwise advising the Committee how that responsibility will be exercised would be very important in helping us to achieve that aim.