Care Bill [HL]

Debate between Lord Walton of Detchant and Lord Warner

Wednesday 12th June 2013 Lords Chamber

[Lord Walton of Detchant]

I intended to say, but did not, that the two different bodies’ areas of authority collide when you deal with stem cells, because they are derived from embryo research but then become cells that are used for tissue research and transplantation and so on. That is where they collide. That does not necessarily mean that it is crucial to merge the two authorities.

[Lord Warner]

My Lords, at the risk of lowering the tone even further, perhaps I may just take us back and slightly challenge the noble Lord, Lord Walton, which I do not normally do. I also took the Human Tissue Act through this House. I am well seized of the circumstances that we faced then. At the time, I was bombarded by the research community with their concerns about setting up that body and whether it would be another obstacle to research. They recognised that this country had to do something in legislation in terms of the EU directive on human tissue. We were caught between a rock and a hard place. We had to do something about the EU directive; we had all the concerns about what had happened in Liverpool; but we were also conscious that we needed to ensure that we did not put another set of barriers in the way of medical research.

When we were considering the merger of the Human Tissue Authority and the HFEA we were very strongly of the view—which is very similar to what the noble Lord, Lord Patel, has said—that there was not a great deal of difference between the nature, if I may put it that way, of the matter being used for research under the aegis of those two regulatory bodies. In some cases, human tissues were themselves living cells being used for research, and we did not regard that as fundamentally a different type of matter from the one that is regulated for research purposes by the HFEA. I cannot even brag of an O-level in science—“Shame on you, Warner”, says Michael Gove. But in my lay view we had a situation where the advice we got from the scientists was that having two bodies was likely to be a greater impediment. There was a case on savings grounds—back-office services etc; the kind of issues that the noble Lord, Lord Willis, mentioned in his letter to the Times—but there was also a science argument for putting the two bodies together.

Health and Social Care Bill

Debate between Lord Walton of Detchant and Lord Warner

Monday 27th February 2012 Lords Chamber

[Lord Walton of Detchant]

My Lords, this is an exceptionally complex issue and I believe it is absolutely crucial that in some way and in some form the issue of a conflict of interests is covered in the Bill. The membership of clinical commissioning groups will consist very largely of general practitioners, but it is important to remember that GPs are not employed by the National Health Service but are independent contractors. As such, it is therefore inevitable that they will have a pecuniary interest in the activity of the clinical commissioning group. I am aware of a number of general practitioners from large practices who have shares in or part-ownership of care homes for elderly patients. I am also aware of some who have shares in private hospitals and in many other organisations. If we were too rigid about declarations of interest, we could end up excluding virtually every GP from membership of clinical commissioning groups, meaning that CCGs could not really exist. Therefore, the provisions must not be too draconian, but at the same time, it is desperately important that they should protect the public interest and that some mechanism be found to ensure that matters of financial and other public interest are not in any way detrimental to the work of the clinical commissioning groups.

I am therefore very attracted by Amendment 79A, which I believe goes a long way towards covering the major issues concerned with conflicts of interest. The amendment so ably proposed by the noble Lord, Lord Hunt has many attractive features, but it is immensely lengthy and complex. I appreciate entirely the point that he made about sanctions, but to go back for a moment, the Minister misunderstood me when I was talking about the duty of candour. I fully appreciate that doctors working for clinical commissioning groups, foundation trusts, and so on, have the same duty of candour as defined by the regulations of the GMC as any other doctor. I intended to ask the Minister whether the actual clinical commissioning groups and foundation trusts, as corporate bodies—not the individual employees of those organisations—had the same responsibility of a duty of candour in relation to patients.

Here, of course, the same problem arises in relation to the whole issue of conflict of interest. How is it defined? It is necessary to recognise, as the noble Lord, Lord Hunt, said, that there has to be a sanction. But the same sanctions apply to individual doctors and other healthcare professionals working for clinical commissioning groups. If they were seen to breach the rules laid down in such an amendment on conflicts of interest, they could be called to account by their regulatory authority. The GMC would no doubt take a serious view of anyone who breached that duty under conflicts of interest. It is crucial that the Government should put something about conflicts of interest in the Bill based, I hope largely, on Amendment 79A, which I strongly support. That is an excellent basis on which to go ahead, and I shall be fascinated to hear what the Minister has to say.

[Lord Warner]

My Lords, I had not intended to speak for very long on this set of amendments but some issues have cropped up which are worth reflecting on, particularly by those of us who have sat in Richmond House and have had to deal with them. It is easy to assume from listening to the debate that we have a wonderful set of arrangements in place to deal with conflicts of interest. That is very far from the case. The noble Lord, Lord Walton, made the point very well that many doctors already do a range of activities—rightly, appropriately and well within their competence—that potentially involve conflicts of interest. One of the great dangers in this area is that we tie ourselves up in a labyrinth of controls that actually work against innovation in an area where science is driving change rapidly. We want people to use their creativity and to change the way they work. We want them to take on new roles. We should not always assume that in doing that they are just seeking to line their pockets. There is a danger that we might do a very British thing and create a large number of rules that will prevent innovation. We had that debate over research and we are in danger of going down the same track in this area.

The other point raised by the noble Lord, Lord Walton, which is very important, is in relation to the role of professional bodies. We had a case—I will not mention the name—of an eminent businessman doctor who was the chief executive of a large chain of nursing homes. He was taken to the GMC because of something that went wrong in one of the nursing homes for which he had no direct responsibility whatever. Although the governing bodies of the professions have an important role, their role was constructed in relation to the actions of a doctor towards individual patients, not in relation to a doctor who was performing other business and organisational functions. It is very important that we do not rely on professional bodies to deal with what is organisational malfeasance rather than lack of professional integrity in dealing with individual patients.

My noble friend Lord Hunt made a very important point. It is very strange that at this stage we are still arguing the toss around corporate governance of some of the bodies in the Bill, particularly the clinical commissioning groups. That is a bit of an indictment of the Government for not getting some of this material thought through at an earlier stage rather than well into Report stage in the House of Lords after having gone through the Commons. However, we are where we are and I think we should not tie ourselves up in knots and prevent incumbents.

Lastly, a very important point that has come out in a number of speeches today is that two issues are critical. First, it should be clear legally to all people participating in these new sets of arrangements that declarations of interest are essential. Secondly, it should also be clear in the Bill exactly what the consequences are of not declaring those interests and pursuing deliberately a conflict of interest for your own advancement, financially and otherwise. Those are the two issues about which we need to be clear in the Bill and I rather agree with the noble Baroness, Lady Barker, that much of the rest of it should be for regulation, provided that the Bill has sufficiently powerful regulation-making powers.

Health and Social Care Bill

Debate between Lord Walton of Detchant and Lord Warner

Tuesday 13th December 2011 Lords Chamber

[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?

Health and Social Care Bill

Debate between Lord Walton of Detchant and Lord Warner

Tuesday 22nd November 2011 Lords Chamber

[Lord Warner]

My Lords, I should like to respond briefly to the noble Baroness. There is nothing in the amendment that would stop this information being given to Monitor. If people want to amend the amendment in terms of Monitor as the customer for it, I do not feel strongly about that. I have put it under the national Commissioning Board because one of the things it will be doing is, I suspect, giving guidance to clinical commissioning groups on the nature of contracts. One of the requirements that can be used to drive change in this area is contractual requirements on people in terms of the standardisation of accounts. I saw the national Commissioning Board as likely to be able to deliver through this independent panel—which can be as short lived as one wants—the kind of changes that we need.

I want to emphasise to the House that the financial situation in the NHS is serious and will get really serious over the next few years. We need to improve very rapidly the quality of the financial management accounting systems in the NHS. That is a separate issue from the assets and procurement issue, to which the noble Lord, Lord Owen, has very ably drawn attention, because it is another long-standing problem. The standardisation of management accounts is an urgent issue for the NHS in the brave new world that it is going into, particularly with the large increase in the number of new organisations that are going to start for the first time to handle big sums of money without much clarity about how they are supposed to account for it.

[Lord Walton of Detchant]

My Lords, I believe it would be helpful to the Committee, even if one leaves aside the crucial role of Monitor with its new, major responsibilities, if the Minister could let us know what kind of administrative support, and in particular what kind of financial management support, Sir David Nicholson and his staff in the national Commissioning Board will have. Can he give us any information about that?

Health and Social Care Bill

Debate between Lord Walton of Detchant and Lord Warner

Wednesday 2nd November 2011 Lords Chamber

[Lord Walton of Detchant]

My Lords, my noble friend has, as always, been extraordinarily persuasive in her detailed argument in support of her Amendment 10A. I apologise to her and to the Committee for not having discussed it in detail with her beforehand. The intention underlying the amendment is in every way admirable. Amendment 10B, to which she spoke more briefly, deserves a great deal of attention and would greatly improve Clause 2 of the Bill. My only concern with her remarks about area-based populations relates to the definition that would be attached to the clause. New Section 1A(1), as inserted by Clause 2, is defective in my opinion in that it refers to,

“securing continuous improvement in the quality of services provided to individuals”.

The provision of services in the National Health Service does not relate simply to the treatment and improvement of the health of individuals. As the term “public health” implies, it deals also with the improvement of the health of communities. After all, public health doctors were called community physicians until quite recently. In many ways I would have preferred to see the clause include, after the word “individuals”, “and/or communities” to make that position entirely clear. I warmly support the principles underlying my noble friend’s amendment but the wording requires a little attention as throughout my professional career I have been very familiar with the hazards that arise in attempting to draft and redraft documents in committees, large and small. I do believe that this matter needs to be given attention by the Minister.

[Lord Warner]

My Lords, I am not altogether sure whether I rise to support these amendments or not. I promise the noble Lord, Lord Mawhinney, that the phrase “area-based populations” will not pass my lips after this utterance. There is a question which it is apposite that I raise with the Minister under this group of amendments as it has puzzled me for some time. Under the present arrangements, we have a public body called a primary care trust which can cope with a set of circumstances in which people are thrown off a GP’s list, have not got onto a GP’s list or have a lifestyle which means that they are disinclined to join a GP’s list. There is a mixed bag of people. This group of people live in a particular area, however that is defined. It is an area for which, somewhere in the country, a primary care trust is responsible. In the world of clinical group commissioning which is based on practice lists, I am not altogether clear how this group of people are safeguarded.

I am sure that the brilliant minds of the officials in the Department of Health have thought of this and have a cunning plan that, no doubt, the noble Earl will divulge to us. However, it is an issue that has caused concern, and I do not feel equipped to answer that concern because I am not clear as to how the Government will cope with that group of people.