Health and Social Care Bill

Lord Warner Excerpts

Tuesday 22nd November 2011 Lords Chamber

Moved by

[Lord Warner]

104: Clause 20, page 17, line 14, at end insert—
“( ) In discharging its duty under this section the Board shall, after consultation with Monitor under subsection 171(4) and the appropriate clinical commissioning group, advise the Secretary of State whether or not the NHS service configuration in a particular area is financially or clinically unsustainable within the mandate issued or proposed to be issued by the Secretary of State.”

[Lord Warner]

My Lords, this is probably not the best time of night to be concentrating on this set of amendments, because it brings us to the difficult and controversial issue of service reconfigurations. Let me start with why I think that we need to move upstream from the full-scale failure regimes which are provided for in this Bill, and with why I do not consider that one can rely totally on local commissioners and elected Health Secretaries to undertake the scale of service reconfiguration that the NHS requires, or as quickly as it requires. In making that statement I start from a position that the best predictor of future behaviour is past behaviour. In the field of service reconfigurations past behaviour has not been a speedy or easy process to start, let alone finish.

I do not want to spend long on why it is urgent, but the essence of this is the Nicholson challenge, which is £20 billion of productive improvements in the NHS in the four years to 2015-16. As the Health Select Committee has pointed out, no health system in the developed world has ever delivered this level of productivity. To say that it is a big ask is a masterpiece of understatement. The NHS’s track record on productivity improvement is, putting it at its best, modest, so we are dealing with a difficult set of issues, on top of which there are constant pressures from demography, advances in science and rising public expectations in the UK healthcare system and, indeed, in virtually every advanced healthcare system. That is what confronts the NHS.

It is crystal clear that the public and politicians are beginning to recognise more openly that the historic patterns of service provision built around district general hospitals do not meet current or future healthcare needs. They certainly have a capacity to gobble up resources without necessarily delivering the type of services that many patients of the NHS need and which could be delivered more cost-effectively but probably not using the present pattern of hospital configuration. What that means is that we are facing a situation where in many parts of the country we have to change those hospital services very rapidly indeed, and we have to make some painful decisions on those service configurations, which can often mean closing some services, doing some services in a different place, redeploying and retraining staff and, in some cases, in all probability making some staff redundant. That is why this is contentious territory and why it has proven difficult to do. We are now moving towards a financial situation where we cannot put off the job of reconfiguring these services much longer.

The difficult problem we have in the way this Bill is structured and in the way we are approaching this is that we are expecting this painful stuff to be done in a situation where we are saying that local clinicians and local people have got to face up to these difficult decisions. They have got to start the process, unless it gets so bad that Monitor is required to trigger a failure regime. In many cases, the problem manifests itself in an acute hospital, but often you cannot solve the problems of that acute hospital without looking at the wider health economy within which it is situated, so we have a situation which is asking quite a lot of local clinicians, certainly based on experience, to start the process of reshaping those services however right it is in principle to expect local people to take the initiative in these areas.

Historically, we have faced a situation where elected politicians in the form of MPs have found this extremely difficult territory—whether they are going to be Kidderminstered, or whether they are going to find themselves having a very small majority and feeling honour bound to carry a placard around outside the local hospital without making a change. That is not a criticism of them; that is a fact of life. Asking local elected politicians and local people to, in effect, fall on their sword to some extent in relation to changing these hospital services is a big ask. This amendment tries to face up to some of those realities. It suggests that waiting for things to fail, to get so bad that they trigger the failure regime, is putting Monitor in a pretty tough situation.

This amendment tries to move upstream from that and to advance the argument that Monitor, with the support of the national Commissioning Board, should be able to look upstream and see the hospital services that are heading towards failure—in this case, I have taken a period of 12 months before failure—and start to do something about it. In co-operation with the national Commissioning Board, Monitor could trigger an independent panel to work with local people to come up with a set of proposals for reconfiguring services within a reasonable timescale set by Monitor that would make those services sustainable financially and clinically for the future. That is not to say that local people should be excluded but we should have a trigger that brings in some facilitation to help them get there.

Fast-forward, then, to the end of that process. We have often talked about the Chase Farm example. Seventeen years is a bit of a long time to sort out an A&E department, but that is what it has taken. My noble friend Lady Wall is still struggling with what comes next. We have to have something better than that. Elected Ministers are also constituency MPs. They understand the problems that some of their colleagues face. Sometimes they even understand the problems that their opposition colleagues face in these situations. It is not surprising that they find it difficult to take decisions quickly, even armed with the current independent review panel. No stone is left unturned in trying to give local people an endless chance to stop progress. We call it public consultation but it is in fact a stopping of progression of the reconfiguration.

What my amendment also does is to say, at the end of that process, that the Secretary of State cannot be taken out of the loop, but if he is going to turn down this independent panel’s set of proposals for making services sustainable clinically and financially in a given area, he has got to give his reasons to Parliament for doing that and has to come up with an alternative proposal for making those services sustainable. That is why I think we badly need a process of this kind where there is a trigger, some independent facilitation and some lock on the ability of the Secretary of State to endlessly procrastinate or avoid taking a decision coming out of an independent panel.

I am the first to recognise that this may not be enthusiastically received by the elected political class. It is probably a bit much to stomach appointed Peers proposing this idea. However, I am putting this forward on a non-partisan basis in the hope that we can move forward in this area on a basis similar to the one that I am proposing. At the end of the day what I am doing is pinching something. This is not a totally original thought. I am pinching it from Canada’s experience, where in the 1990s the healthcare system in Ontario was literally going broke and they had to find a way of not bypassing the elected political class but facilitating a set of changes that made it easier for elected politicians to take difficult decisions. That is the purpose of this amendment and I move it in that spirit, as a constructive attempt to deal with what I acknowledge is an extremely difficult and complex problem. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, we are indebted to my noble friend for raising what I think is one of the most difficult issues the health service is going to face. There is no doubt that if the efficiency challenge is to be met, there has to be a major reconfiguration of services. Yet, as my noble friend has said, we know that this is often very difficult to undertake and get local sign-off. Both my noble friend and I enjoyed—if that is the word—experience as Minister for the health services in London, and both of us have been involved in some of the agonised discussions with the outer-lying hospitals and boroughs. The whole London area is littered with proposals that have been made for many years and which have not been put into effect. There are other examples up and down the country. The problem is that the health service no longer has the luxury of being able to rely on the uncertainties that are caused by the current system. Reconfiguration needs to take place, and rapidly, over the next two or three years.

I am enormously sympathetic to my noble friend’s amendment. It is interesting that in our previous debates the view has been expressed that ministerial intervention has often caused the problem. My noble friend would still push this substantive decision back to the Secretary of State. That is probably right, because in the end, however much the Government might wish to push this back onto the health service or onto the NHS Commissioning Board, I should have thought that the interest of MPs in reconfiguration issues would have sucked the decision back to the Secretary of State one way or another. We have to assume, therefore, that any process that is put forward does involve the Secretary of State.

I have no doubt that the noble Earl will say that we do not need to go down this route and that he is confident that clinical commissioning groups will be able to embrace reconfiguration of acute services and get sign-off from the appropriate or relevant local authority. I am sure that there may be some areas where that might happen, but of course, one has first of all to recognise that if a major reconfiguration is proposed, it will involve a number of clinical commissioning groups. The first test will be whether a number of CCGs will be able to come together to achieve a strategic outcome. Secondly, even if that happens, those clinical commissioning groups have yet to feel the heat of battle. They may well theoretically sign up to a reconfiguration, but they are inexperienced, I would suggest, in the kind of pressure that they will come under from politicians and the public. I suspect that one or two will find it very difficult to hold the line.

The other problem with the current proposals of the Government is that clearly they wish the NHS Commissioning Board to have a leadership role. However, the Commissioning Board will have much less legitimacy than Ministers when it comes to controversial decisions such as closures of accident and emergency departments. It is easy to see how these may come, in the end, to little fruition.

I certainly support my noble friend. The only question I put to him is whether his process is really tough enough. I wonder whether what really needs to happen is that every area of the country should be reviewed by some kind of independent body as to whether the configuration of services is safe and appropriate. It no doubt could have examinations in public, similar to the old strategic planning process that we have had in the planning system. I would favour a much stronger statutory approach to this, which forces each health economy to come to the table, to put their viewpoint, but then to have an outside group of experts who would then make strong recommendations to the Secretary of State. I fear that without such external views we will find it very difficult to make progress. I suggest to my noble friend that he should consider whether he might need something stronger to make this bite.

[Lord Warner]

I never thought that I would be outflanked on the Stalinist wing of the Labour Party by any Member of your Lordships’ House, but clearly I have that all wrong. I would be happy to strengthen these proposals because I rather share my noble friend’s view that I may be being a little wimpish here, but I was deferring to the elected politicians on this, probably unwisely. I am producing this rather wimpish proposal, but somewhere along the way we certainly have to have a trigger that is independent of the political process. We need some outside facilitation of change with the local people and we have to restrict, to some extent, the ability of elected Ministers to totally undo or avoid taking decisions in this area, possibly as much as my noble friend is saying.

[Baroness Cumberlege]

Those words are so warm to my heart, I cannot tell the noble Lord how much. One of the things that really concerns me is delay. I am worried that if we get this outside group it will delay matters, because some of this is very urgent at the moment. What is the relationship between this and the independent review panel—I am not sure what it is called—which deals with hospitals at the moment?

[Baroness Cumberlege]

I am indebted to my noble friend for that. Does the Independent Reconfiguration Panel play a part in this? Is it something different? Do we have to go through that as well, in which case it will take even longer?

[Lord Warner]

Something equivalent to the Independent Reconfiguration Panel was used earlier in the system. It was put in to bat with the local area by Monitor when it saw trouble coming down the railway track in the form of failure. I envisage that a standing group of people would be approved to work in this area, which Monitor would be able to assemble very quickly. My amendment proposes that a timescale is set for this panel to work with local people and to come back with a solution to the problem, but I think that more people than are currently approved for the reconfiguration panel will be needed because of the points made by my noble friend. In many parts of the country we are likely to have to intervene quite quickly because we have spent a lot of time over the past 10 or 20 years putting off decisions about some of these places. A lot of these places will come to Ministers, the national Commissioning Board and Monitor over the next few years, so we will need quite a few different panels.

[Earl Howe]

My Lords, this group of amendments usefully focuses us on reconfiguration and the sustainability of NHS services. The sustainability of services will be centre stage for commissioners and providers alike. I should like to set out some key features of the Government’s reforms, which I hope will reassure noble Lords that the system we have put in place will deliver sustainable NHS services. The first key feature is that local clinical commissioners will be responsible for securing continued access to healthcare that meets the needs of local communities in consultation with health and well-being boards. Any proposals for service change will be locally led by clinicians in consultation with patients and the wider community.

The second key feature is that the continuity of services regime requires Monitor to support commissioners to secure continued access to NHS services. Monitor will do this by undertaking an ongoing assessment of risk and intervening to support recovery and to prevent failure where possible. Therefore, the onus is on commissioners and providers to address any problems with the sustainability of NHS services. Only as a last resort where commissioners and providers have failed will Monitor step in to appoint an administrator to take control of the provider in order to secure continued access to NHS services.

The noble Lord, Lord Warner, suggested that there would be nothing between a locally led process leading to an agreed reconfiguration and Monitor triggering the failure regime. That really is not so. It may be helpful to the Committee if I explain. There are various levers available to Monitor before failure is even thought of. First, regulatory interventions are available to Monitor through the licence in order to protect patients’ access to essential services where Monitor considers that a foundation trust is at risk of becoming clinically or financially unsustainable. I agree that there should be a way for the system to respond when, as the noble Lord put it, trouble is seen to be coming down the railway track.

Where it is appropriate, Monitor would be able to direct a provider to appoint turnaround specialists that would provide additional capacity and expertise to support a provider’s management in turning an organisation around. Monitor would also be able to appoint a pre-failure planning team to work with commissioners to develop plans for securing continued access to services in the unlikely event that turnaround was unsuccessful. That process may identify reasons why service reconfiguration would be needed to secure sustainability, but it would remain a commissioner-led process. I hope that I have made it clear that it is appropriate for local clinical commissioners and not Monitor to lead this process with support from the NHS Commissioning Board. The board will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes, and Monitor will support commissioners in protecting patients’ access to essential services through the licensing regime.

The noble Lord, Lord Hunt, suggested that the board should play a leadership role. The Bill allows for that to happen in a number of ways, using commissioning guidance to set expectations on how CCGs should deal with reconfigurations that span CCG boundaries. It would also provide access to advice in the form of senates to help them develop their proposals. Ultimately, where a local authority challenges a proposal, the board will be able to direct the CCGs on their plans, so there is an interest in making sure that those plans are robust to start with.

--- Later in debate ---

[Earl Howe]

The noble Lord is absolutely right. In that kind of situation the process would inevitably become more complex. I do not know whether the noble Lord noted the comments of Dr Jennifer Dixon of the Nuffield Trust when she gave evidence to the Commons committee, but she said:

“If you look at some of the more successful attempts at reconfiguration, more involvement of local groups was necessary in order to get change. Some of the unsuccessful ones have been those where they have communicated less and involved fewer people”.

So paradoxically, she said, having more local organisations involved,

“could have the opposite effect”.

I think that that was a very perceptive comment. We think that the Bill should strengthen and encourage these relationships, either within a local area, or within a larger one, where services are commissioned over a larger area, as very often they will be, and you will get a broader dialogue taking place. The main object for all of us is to ensure that the mechanisms for this kind of partnership-working and local engagement are in place.

I take the point of the noble Lord, Lord Warner, about the length of time that some reconfigurations have taken in the past. We are very conscious of that. Under our plans, local authority scrutiny functions will be required to publish a timescale for when they will make a decision on whether to refer proposals for substantial service reconfiguration. We intend to change the existing regulations so that, where scrutiny functions are delegated to joint committees of two or more councils, councils could not step in and exercise those functions. This should prevent proposals which have taken time to develop and agree through a joint overview and scrutiny committee from falling apart at the end of the process by one local authority choosing to refer.

I understand the noble Lord’s concerns and will of course reflect on his proposal. However, I think that we are creating what could be an effective framework that would allow commissioners and providers to work together to reconfigure services where that is needed to protect patients’ interests. To support that, the Bill sets out a commissioner-led framework. We think that it is right for patients that it should be framed in that way. With the prospect of continuing dialogue on this subject, which I think will rear its head on more than one occasion as we go through these Committee proceedings, I hope that the noble Lord will feel content for now to withdraw his amendment.

[Lord Warner]

My Lords, this has been a useful piece of—if I may put it this way—foreplay on this subject before we get down to real business. I want to say a couple of things to the Minister as he goes into reflective mode.

We tried turnaround teams with individual trusts in 2005-06 in the aftermath of financial failure. The trouble was that they tried to solve the problems of a particular hospital within that hospital and not within the health economy. I listened carefully to a lot of what the Minister said. Many long-standing problem trusts cannot solve their problems. You can keep coshing them into insensibility, but they cannot solve them on their own. They need to be solved within a much wider context. I would pray in aid north London, which in my judgment has something like three district general hospitals too many for the income that is likely to be available. Those hospitals cannot be saved on their own. There is a massive reconfiguration exercise to be done in a wider health economy. I give turnaround teams three out of 10; we need something better than that.

I wish the Minister and the Government well in trying to tackle this subject. It may be that all Governments have to go through the difficult process of learning by disaster, which is what may happen here. We are dealing with a deep cultural problem in the NHS. It believes that, somewhere along the line, a cheque will come through the post to bail it out at the local level. Unless that culture is changed dramatically, I do not believe that the Minister’s well intentioned approach is likely to deliver the change that we need.

I, too, shall reflect, but I think that we shall come back to this matter and look for something which may not be as draconian as my noble friend would be satisfied with but which moves in the same direction if we are to see the changes that the NHS needs made in the timescale that is needed. I beg leave to withdraw the amendment.

Amendment 104 withdrawn.