National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Lord Walton of Detchant Excerpts

Wednesday 24th April 2013 Lords Chamber

[Lord Howard of Lympne]

My Lords, I declare my interest as chair of Help the Hospices, and in a moment or two I shall put the remarks of the noble Lord, Lord Owen, in context. However, I shall begin by correcting a report that appeared in the Financial Times last week, which said that Help the Hospices and other charities regard these regulations as a fresh attempt to privatise the National Health Service. I cannot speak for the other organisations, but that is not the way that we at Help the Hospices look upon these regulations.

The original regulations gave rise to considerable concerns, and I pay tribute to the Government for being prepared to listen, to think again and to revise the regulations. The revised regulations go some considerable way towards allaying those concerns. They do not go the whole way, and the noble Lord, Lord Owen, identified some of the concerns that remain, but we believe that those concerns can be met not by annulling these regulations as the noble Lord, Lord Hunt, seeks to do this evening, but by ensuring that the guidance which the Government intend to provide removes any ambiguity and removes the dangers to which the noble Lord, Lord Owen, referred.

The noble Lord and I have long experience in different contexts of the difficulty of covering every contingency in the wording of regulations, of getting the wording of regulations absolutely right and avoiding any degree of ambiguity. The previous speaker, the noble Lord, Lord Turnberg, recognised that the Government’s legal advice was such that the fears that have been expressed simply would not arise if these regulations were properly interpreted. Monitor, which is to give the guidance that we await on the way in which these regulations are to be interpreted and implemented, has a very important role in that respect and will consult before issuing that guidance. We at Help the Hospices intend to take full advantage of the opportunity which that consultation affords to ensure that Monitor gets the guidance right, removes any ambiguity and ensures that any lingering concerns that we may have do not turn into reality.

It is true that the changes that are taking place in the National Health Service in the way in which we provide health services in this country pose a certain danger to voluntary organisations such as the hospice movement, but not because the Government intend to do any damage to the hospice movement, as was made clear to me and some of my colleagues from Help the Hospices when we had a meeting with the Secretary of State very recently. The danger lies in the law of unintended consequences, so it is right that we should be vigilant to ensure that those unintended consequences do not damage hospices that do such wonderful work and provide such remarkable care to those who are near the end of their life and benefit from the care that hospices provide. I am satisfied that that danger in this context can be averted by sensible and proper guidance from Monitor, and I hope that at the end of this debate the Minister will give the House some assurances about the nature of that guidance which will put to rest any lingering concerns that might exist.

[Lord Walton of Detchant]

My Lords, I shall speak briefly because I am faced with a major dilemma, not least because of the high regard in which I hold the two principal protagonists speaking on opposite sides of this debate. In this bout of unarmed combat, we have in the red corner the noble Lord, Lord Hunt of King’s Heath, a former chief executive of the National Association of Health Authorities and more recently director of a foundation trust, whose contributions to health matters in this House have been in every way outstanding. In the other corner we have the noble Earl, Lord Howe, who, without a scientific background or training, has demonstrated in opposition and in government a most extraordinary breadth of knowledge, interest and capability, invariably tackling issues relevant to health with courtesy, knowledge and authority.

I have received a veritable torrent of correspondence from organisations and individuals, many of whom I respect and know personally. These organisations include at least three royal colleges and the BMA, of which I have the honour to be a past president. Almost all of these letters have suggested that these regulations would result in compelling commissioners to put all health service activity out to tender—in other words, they would result, as has been suggested, in the ultimate privatisation of the entire National Health Service. Having studied these regulations with great care, I find it exceptionally difficult to see how they could conceivably come to that conclusion.

I am a firm believer in and supporter of the NHS, in which I am proud to have spent the greater part of my professional life. If I felt that that case had been made and if I felt that the regulations would result in privatisation of the NHS, I would unhesitatingly vote for their annulment. But having studied the regulations, I do not believe that that is the case. I have never made any secret of the fact that I believe that a component of contribution by the private sector in the NHS, properly considered, controlled and approved by Monitor, can make a very important contribution to healthcare if it is in the interest of patients. I am satisfied from the debates we had during the passage of the Health and Social Care Act that there is an obligation on any private provider contributing to NHS services to maintain, approve and provide all the facilities that the NHS already provides for education and training of healthcare professionals and contributing to research. I am satisfied that that remains the case. Paragraph 7.5 of the Explanatory Memorandum to these regulations says:

“Regulation 5 provides for commissioners to award a new contract without a competition where there is only one capable provider. There has been no change in policy from the requirements of the Principles and Rules for Cooperation and Competition and the supporting procurement guidance”,

guidance which was established under the previous Labour Government. I find that immensely reassuring. Paragraph 7.6 says:

“The 2012 Act has established Monitor as an independent regulator … with a duty to protect and promote the interests of people who use health care services. Part 3 of the Regulations provides for Monitor to investigate potential breaches of the requirements and to take action to ensure that patients’ interests are protected”.

I could say very much more but I am satisfied, after the most earnest and careful consideration, that these regulations do not produce the prospect of privatisation of the NHS.

I am involved with many medical charities and I learn also that the role of charities can be enhanced. They can under these regulations make more contributions than they already do to the work of the NHS. For these reasons I strongly support the regulations.

[Baroness Williams of Crosby]

My Lords, it is for me a great privilege to follow the noble Lord, Lord Walton of Detchant He made an astonishingly wise and helpful contribution to debates in this House on the Health and Social Care Act. I found myself in exactly the same position as he was in. I have a total commitment to the National Health Service. That has not changed in any way. In my whole life none of my family has ever used any other medical service. But I cannot find in the most careful reading of the regulations and our long debate on these two sets of regulations anything that bears out the widely spread view—extensively spread by the social networks—that this is all about bringing to an end the National Health Service as a public service and introducing overall privatisation.

I will quickly say three things. First, the Liberal Democrats intervened immediately when we saw the first set of regulations, laid on 11 February and promulgated in the House on 13 February. We did not like them at all. The day that the House came back, my noble friends Lady Jolly and Lord Clement-Jones were at the Minister’s door, asking him to see us that same day. Although there were widespread press discussions about how the campaigners and the Opposition had essentially stopped the regulations, it was not true. At the end of that discussion on 25 February, the day that the House came back, the Minister had listened closely to everything that we had to say and agreed at the end that the regulations could be misunderstood, and that there was therefore a strong case for looking again at making them clearer.

Mid Staffordshire Foundation Trust Inquiry

Lord Walton of Detchant Excerpts

Tuesday 26th March 2013 Lords Chamber

[Earl Howe]

I undertake to look at the latter point made by the noble Baroness. The 10 disciplines were selected as ones that could reasonably and readily be subject to the kind of assessment process that we are looking to achieve. I will come back to her on that.

As regards the duty of candour, individuals should certainly take responsibility for their actions and be encouraged to do so. We fear, however, that criminalising individuals’ behaviour within an NHS organisation could risk doing the opposite of what we all want to see: a much more open culture, one that has made the NPSA and its work so successful; a no-blame culture, where people take responsibility for when things go wrong but do not feel that the heavy hand of authority is going to descend upon them at the merest mistake. However, it is important that people are held to account if they are dishonest or deliberately withhold information, and that is a different set of issues.

[Lord Walton of Detchant]

The appalling failings highlighted in the Francis report clearly demonstrated that the managerial virus—an obsession with meeting targets—infected many of the medical and nursing staff in Mid Staffs and diverted them from their primary standards of providing a high quality of patient care. Many of the proposals set out in the Statement are essentially welcome.

I learnt only last week of the new assessment method, PLACE, and I would love to hear where that fits in to the programme. Having said that, will the Government take note of the fact that there is a danger in creating a superfluity of regulatory authorities that would divert doctors and nurses from their primary bedside responsibilities? Is it not better to make certain that regulatory authorities function much more efficiently and effectively in controlling standards?

[Earl Howe]

I wholeheartedly agree with the noble Lord. One of the concerns at the back of our minds as we have considered Robert Francis’s report is the need to ensure that we do not create oppressive additional regulation to cure the problems that Francis has identified. Indeed, we need to look at doing the opposite: how can we lift regulatory burdens and ensure that the culture Francis spoke about can thrive? The NHS Confederation is advising us on this. It is looking specifically at burdens placed on NHS providers and organisations, and we shall take its recommendations to heart.

Homeopathy

Lord Walton of Detchant Excerpts

Tuesday 19th March 2013 Lords Chamber

[Earl Howe]

My Lords, I shall certainly look into the particular matter raised by my noble friend. The change in the way the information was presented on NHS Choices was as a result of a formal review, which happens automatically to all NHS Choices pages every 24 months. The page on homeopathy reached the formal 24-month review point in January 2011. The policy of NHS Choices is to provide objective and trustworthy information and guidance on all aspects of health and healthcare, and the page on homeopathy does exactly that.

[Lord Walton of Detchant]

My Lords, more than 10 years ago I chaired an inquiry conducted by your Lordships’ Select Committee on Science and Technology into the field of complementary and alternative medicine. We examined the evidence in favour of homeopathy, accepting that certain well qualified doctors believed in its use. However, at the time we did not discover any convincing research evidence to suggest that it was better than placebos. Over the centuries, many medicines have been used that have been shown to be no better than placebos. Therefore, has the time not come when it is appropriate for the Government to recognise that, in the light of recent research, there is no evidence whatever to support the continued use of homeopathy in the NHS?

[Earl Howe]

My Lords, we have been consistently clear that no treatments should be arbitrarily rationed on cost grounds. The NHS constitution sets out that patients have a right to expect local decisions on the funding of drugs and treatments to be made rationally following a proper consideration of the evidence. More importantly in this context, it is the responsibility of the NHS to make decisions about commissioning and funding of healthcare treatments and not for Ministers to second-guess that process.

NHS: Mid Staffordshire NHS Foundation Trust

Lord Walton of Detchant Excerpts

Monday 11th March 2013 Lords Chamber

[Lord Walton of Detchant]

My Lords, my noble friend Lord Patel opened this debate with a characteristically thoughtful and compelling contribution highlighting many of the recommendations of the Francis report.

In the early days of the NHS, the administrative responsibilities in major hospitals were often undertaken by the hospital secretary, with a small but dedicated staff, reaching decisions based on the advice of senior medical, clinical and nursing staff, including matron. Do any of your Lordships remember when matrons, respected and admired, visited each ward in the hospital at least weekly?

Plainly, massive technological developments in medical and nursing care, the problems of an ageing population and the escalating cost of new effective drugs and procedures have imposed heavy financial, administrative and clinical burdens on hospitals, so that costs have risen exponentially. Hence, consecutive Governments have introduced increasing numbers of managers to the service in the hope of promoting efficiency and financial control but, sadly, some of them have treated the NHS as if it were a business, which it is not.

I have worked with some very able NHS managers. Many in the higher echelons have been individuals of vision, merit and exceptional capability, but at lower tiers, I have met with some unfortunate management-speak, leading to circumlocution, obfuscation and confusion, with failure to identify and promote clinical priorities. The Francis report plainly showed that managerial pressures, in efforts to obtain foundation status and to meet targets, gravely diluted standards of care.

Clearly, some clinical staff failed to fulfil their primary professional responsibilities, and their standards must have been gravely eroded. Who knows, perhaps the obsessional managerial virus pervading at higher levels infected some of the doctors and nurses. The accumulated evidence of much unacceptable—indeed, disgraceful—performance is compelling. A critical message to emerge from this inquiry is that the safety of patients and the maintenance of fundamental standards of care are obligations that must transcend particular policies and must permeate all activities within the system.

Would things have been different with a powerful, respected and authoritative chairman of medical staff and a matron able to bring the managers into line? Clearly, too, the public were never adequately consulted. Community health councils, widely respected, were abolished for obscure reasons, to be replaced by failed local patient and public health forums, and then by LINks, which were even less effective.

Will Healthwatch be any better? Would Healthwatch have prevented the horrors that we learnt about through the Francis inquiry? Somehow, in Staffordshire, obsessional managerial attention on artificially generated governmental targets betrayed patients and, perhaps, clinical staff, confounding the hallowed founding principles of the NHS.

How I agree with other noble Lords who have said how crucial it is to have the authoritative role of the nursing sister and well qualified nurses, but also how necessary it is to have qualified and properly trained supporting staff carrying out nursing services under the supervision of nurses.

Does the Minister agree that the overriding principle of the service must be to provide high-quality, medical investigation, treatment and care, delivered with skill, competence, compassion and full personal support, with competent management, even when in times of financial constraint, insistence upon such fundamental principles leads to a failure to achieve targets? Whenever, for pressing financial reasons, services need to be reduced or withdrawn, such changes must be achieved with the informed consent of healthcare professionals, so that the overriding principle of providing high-quality healthcare is maintained. This is the most important recommendation at the core of the splendid Francis report. Our patients, their families and the nation deserve nothing less.

Medical Research: International Rare Diseases Research Consortium

Lord Walton of Detchant Excerpts

Thursday 28th February 2013 Lords Chamber

[Earl Howe]

My Lords, we have just announced the establishment of a rare diseases stakeholder forum. As my noble friend rightly mentions, it will be established shortly to bring together a wide range of stakeholders, including organisations representing those with rare diseases, to ensure that the patient voice is part of the discussion that we must have leading up the publication of the UK plan for rare diseases. The 100,000 genomes initiative, which my Department is funding, is about pump-priming—the sequencing of the genomes of 100,000 NHS patients—with the purpose of translating genomics into the NHS. This capacity will be allocated specifically to cancer, rare diseases and infectious diseases. The service design work will be completed by June and we aim to put contracts in place by April next year.

[Lord Walton of Detchant]

My Lords, does the Minister accept that recent research in genomic medicine has led to the progressive introduction of orphan and ultra-orphan drugs, some of which are capable of reversing partially or completely the genetic effect of many such rare diseases—not least, for example, muscular dystrophy? However, these drugs are extremely expensive and are therefore likely to be commercially unsuccessful because they help only a relatively small number of patients. Now that the Government have abolished the Advisory Group for National Specialised Services, can the Minister assure the House that, when responsibility for providing those drugs on the NHS falls to the national Commissioning Board on the advice of NICE from April this year, those rare diseases and their drugs will be given appropriate priority?

[Earl Howe]

My Lords, yes I can give that assurance. As the noble Lord will know, we laid regulations specifying those specialised and highly specialised conditions which the NHS Commissioning Board will be responsible for commissioning. I can also reassure him that the focus on research into rare conditions will not be lost. Indeed, I am sure that he will be aware that the National Institute for Health Research has recently specifically invited submission of research proposals into interventions for very rare diseases. The call encouraged multidisciplinary research proposals as well as study designs and approaches to recruitment of patients.

NHS: Healthcare UK

Lord Walton of Detchant Excerpts

Thursday 14th February 2013 Lords Chamber

[Earl Howe]

My Lords, the noble Lord raises a pertinent issue in the context of medical trainees. We are addressing it. In particular, we are looking at a request from Saudi Arabia to send postgraduate medical trainees to this country. We believe that we have found a way through that, and will continue to work on that issue for the benefit of other countries as well.

[Lord Walton of Detchant]

My Lords, when the NHS began in 1948, most major hospitals had private wards and private consulting rooms. The great advantage of this was that they generated income which supported the care of NHS patients. The other advantage was that the consultants who were entitled to undertake private practice were geographically whole time. When the late Lady Castle was the Secretary of State, the Labour Government removed the private beds from NHS hospitals, resulting in a massive development of private wards outside the NHS. Are the Government now embarking on a programme to improve the facilities for private care in the NHS, thus generating more income for the support of NHS patients?

[Earl Howe]

I am sure the noble Lord will know that a number of our flagship hospitals already have private facilities which treat domestic and international private patients, including Great Ormond Street and the Royal Marsden. All such treatment of course takes place outside NHS provision. However, it is important to emphasise that Healthcare UK is about much more than private patients. In fact, that will not be its primary focus. It is about sharing this country’s expertise, technology and knowledge to support healthcare systems and infrastructure with international partners. Healthcare UK will provide support if there are NHS organisations wanting to bring patients in from overseas but that will not be its principal focus.

NHS: Liverpool Care Pathway

Lord Walton of Detchant Excerpts

Tuesday 15th January 2013 Lords Chamber

[Earl Howe]

My Lords, I am grateful to my noble friend for her endorsement of the appointment of the noble Baroness, Lady Neuberger, whom the whole House greatly respects. She is right that after seeing recent criticisms in the media and having received a great many letters in the department, the Minister of State for Care and Support, my honourable friend Norman Lamb, held a meeting at the end of November with patients, families and professionals, both supporters and opponents of the Liverpool care pathway. At that meeting, he announced his decision that there would be an independent chair to oversee a review of the experience of the pathway. However, it is important to emphasise that the pathway itself has not been called into question but, rather, how it is being used. My noble friend is right to draw attention to the concerns around the lack of engagement with patients and their families, which is often a feature of the complaints received.

[Lord Walton of Detchant]

My Lords, does the Minister accept that the principles of the Liverpool care pathway, when precisely defined and carefully applied at the right time and in the right circumstances, make an invaluable contribution to the care and passing of individuals with terminal illness? In light of the circumstances referred to by the noble Baroness, does he further accept that the unfortunate recent publicity has been the result of circumstances in which those principles have been misinterpreted and misapplied?

[Earl Howe]

Yes, my Lords. The LCP, if I may use the abbreviation, is internationally recognised good practice as a framework for managing care for people in their last few days or hours of life. It was created as a way of bringing hospice-style care into hospitals and helping staff who may not be palliative care specialists to provide appropriate care to allow people to die in comfort and with dignity. However, we have consistently made clear in guidance for implementation that the pathway cannot replace clinical judgment and it should not be treated as a simple tick-box exercise. I am afraid that, from the complaints that have been received, that sometimes appears to be what has happened.

World Sepsis Declaration

Lord Walton of Detchant Excerpts

Wednesday 19th December 2012 Lords Chamber

[Earl Howe]

Yes, my Lords. The NHS Outcomes Framework is, as the noble Baroness will know, a high-level document intended to drive improvements in the service generally. A condition such as sepsis would be covered in three separate domains of the framework, depending on which aspect of the condition was being considered—for example, safety, most obviously, or quality, or indeed the patient experience. The patient safety aspects are reiterated under Section 5 of the mandate as well, and under this general direction it will be for clinicians to take responsibility for delivering the clinical outcomes.

[Lord Walton of Detchant]

My Lords, can the Minister tell the House what research the Government are supporting for the development of new and effective antibiotics for the treatment of sepsis? Can he also comment on a recent report from Southampton, which is based on a huge controlled trial of treatment where antibiotics were prescribed for patients with minor respiratory tract infections, and showed that such treatment was of no particular value but inevitably leads to increased bacterial resistance to current antibiotics? What is the Government reaction to that report?

[Earl Howe]

My Lords, on the research on antibiotics, the noble Lord alights on a real problem. There is a dearth of such research; I am aware of at least one company engaging in it but in view of the increasing prevalence of antibiotic resistance it is a real issue. As the noble Lord will know, there are extensive guidelines to ensure that there is responsible prescribing of antibiotics. I am not aware of the Southampton example which he quotes, although I shall look into it and write to him as appropriate. He may like to know that the department has been developing a five-year antimicrobial resistance strategy—an action plan. It has an integrated approach and builds on a range of initiatives, such as the 2000 UK strategy and the 2011 EU strategic action plan.

NHS: Hospital Services

Lord Walton of Detchant Excerpts

Thursday 6th December 2012 Lords Chamber

[Earl Howe]

My Lords, I think it is common ground between the noble Lord and the Government that we need to see care delivered more in the community and less in acute settings; that was a policy that his Government espoused. I agree with the noble Lord and with Terence Stephenson that we need to deploy clinical leadership, evidence and insight as a driving force behind service change. Service change is not new; it has happened all the time throughout the NHS’s history. Clinical commissioning groups on the ground will be the driving force for this, but the NHS Commissioning Board will be there in support and the wisdom of the royal colleges will clearly need to be tapped to provide the board with expert clinical advice. Indeed, that is the theme behind the board’s aim to establish clinical networks and senates to help build the clinical evidence for change.

[Lord Walton of Detchant]

My Lords, is the Minister aware that too many patients are still being admitted to hospital solely to undergo investigations and tests that could perfectly well be carried out on an out-patient basis? Is it not therefore time to reconfigure out-patient services so that individuals will be in a position to attend hospital in order to have a clinical consultation and all the relevant tests on a single visit? That would avoid a great number of unnecessary hospital admissions.

[Earl Howe]

My Lords, I agree with the noble Lord. He is right to say that many hospital admissions prove to be unnecessary, wasteful and expensive and we need to ensure that those who do not need to go to hospital can be appropriately looked after in the community. We also need to reduce the level of unplanned, emergency admissions to hospital. There is huge scope to do this. Many trusts are already succeeding in bringing more services into the community, but we need to accelerate the process.

NHS Commissioning Board: Mandate

Lord Walton of Detchant Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Walton of Detchant]

My Lords, I shall speak briefly, not least because before I knew about this Statement, I made an appointment to meet some major professional visitors at four o’clock this afternoon. I make my apologies to the noble Earl.

The general terms of this mandate are to be greatly welcomed. Its structure is attractive and its relationship to the future of the outcomes framework is very welcome indeed. I welcome the concentration on long-term conditions and their management, although it is important to mention that, whereas diabetes, hypertension and mental health are highlighted in the document, there are many other long-term conditions that need special attention, many of them neurological, such as Parkinson’s disease, multiple sclerosis, neuro-muscular diseases, and so on. I also welcome the emphasis on innovation.

My one major question relates to the very paragraph to which the noble Lord referred. Paragraph 9.2 states:

“The NHS Commissioning Board will be directly commissioning NHS services provided by GPs, dentists, community pharmacists and community opticians; specialised care; health services for people in custody; and military health”.

There are the two words, “specialised care”. We have had discussions about this before and my understanding is that the NHS Commissioning Board will commission directly highly specialised services but more general specialised services will be commissioned by the clinical commissioning groups. Indeed, paragraph 9.3 states:

“The Department will hold the Board to account for the quality of its direct commissioning, and how well it is working with clinical commissioners … An objective is to ensure that, whether NHS care is commissioned nationally by the Board or locally by clinical commissioning groups, the results—the quality and value of the services—should be measured”.

Therefore, is there not an incompatibility between these two paragraphs, one saying that all care will be commissioned by the NHS Commissioning Board, and the next paragraph modifying and qualifying that? I think that is a matter for clarification as the mandate goes forward.

[Earl Howe]

My Lords, I am grateful to the noble Lord for his welcome to the overall structure of the mandate and its content. I do not believe that there is an inconsistency between those two paragraphs. We have had a number of debates about specialised healthcare. I can confirm to him what I have said in the past: it will be the responsibility of the NHS Commissioning Board to commission services in relation to highly specialised conditions and, on top of that, those specialised conditions that are currently commissioned by the regional specialised commissioning groups. It is services for not only very rare conditions but slightly less rare conditions that the board will commission. That is a positive step that has been welcomed by the specialised healthcare community. We will spell out in regulations exactly what conditions are specialised conditions.

Paragraph 9.3 states that the way in which the board is held to account should be directly analogous to the way in which other commissioners in the health service are held to account. In other words, the board cannot expect not to be held to account by the department in a similar fashion. I hope that with that clarification, the noble Lord will be reassured.