Health and Social Care Bill

Lord Warner Excerpts

Wednesday 30th November 2011 Lords Chamber

[Lord Warner]

My Lords, I just wanted to make a couple of observations and ask the Minister a question on this group of amendments. First, this is a not a new area that we are getting into. The same issues arose with GP fundholding and with practice-based commissioning. We have managed, as I recall, to sail through those two areas where we have involved GPs in the commissioning of services where there was potential for conflicts of interest without any great scandals. Has the department looked at the experience on this issue of conflicts of interest with practice-based commissioning and GP fundholding and seen whether there was a major issue? My recollection of all this from the research on GP fundholding was that there was not an issue and it was handled perfectly sensibly.

Secondly, if we actually have bigger clinical commissioning groups—and I promise the Minister I am not going to reopen the debate we have already had, no doubt to much relief in your Lordships’ House—the smaller the risk, I would suggest, of conflicts of interest. There is a different set of considerations if you have got a clinical commissioning group for a population of 18,000, where inevitably there is going to be much greater potential for a conflict of interest, to one in which you are commissioning for 400,000. There is a different order of magnitude and I wonder whether that is an issue that the Government have looked at.

Thirdly, if there is concern about sanctions, the thing which really counts with doctors is the prospect of being reported to their professional bodies. It is the GMC and professional misconduct which is the big issue. We should not invent a system which is based too much on local government. It should be bedded into the professional body and the misconduct issues, because that is likely to be the way that it will have most effect with doctors involved in commissioning.

[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to Amendments 175E, 176AA to AD, 213C and 220A, all in the names of my noble friend Lady Williams, the noble Lord, Lord Patel and myself, and in the case of 220A in the additional name of my noble friend Lord Clement-Jones. The purposes of these amendments are first to secure on the face of the Bill a thoroughly robust regime to avoid conflicts of interest sullying the commissioning process, and secondly to ensure transparency in the commissioning process to the greatest extent that is commercially possible. Taking the point made by the noble Lord, Lord Warner, a moment ago, that this is not an entirely new area, I suggest that the arrangements for commissioning proposed in this Bill risk raising the threat level from conflicts of interest in the commissioning process from “moderate” to “severe”, if I may use the intelligence services’ scale. That is because of the greater involvement of practitioners in the commissioning process, which is of course to be welcomed for many reasons, and the increased likelihood that many practitioners may also be providers of other healthcare services or have interests in such providers.

Our task is to reduce the threat at least to “substantial”, and then to manage the threat in such a way as to avoid commissioning decisions ever being skewed by the private interests of those making the decisions. Much of what we propose ought to be uncontroversial, and merely represents good practice, but we suggest, and in this I agree with my noble friend Lord Greaves, that it is important that our commitment to best practice is made clear on the face of the Bill. Amendment 220A would impose on any provider of medical services who is also a member of a CCG a duty to declare any financial interest in a commissioning decision—a bare minimum proposal, I suggest. Amendment 213C would impose on the NHS Commissioning Board a duty to refer a member of a CCG to his or her relevant professional body for material breach of the provisions or of the guidelines we propose. I entirely agree with the further point made by the noble Lord, Lord Warner, that this is an appropriate way of dealing with offending by practitioners. It should not be for the board to act as, or to set up, a disciplinary tribunal, but it is sensible and a greater deterrent, I suggest, for the professional bodies to do so.

However, the meat of our proposals is in Amendments 176AA to 176AD. We propose a thoroughly transparent regime as the best and most effective way of protecting commissioning from the insidious effects of conflicts of interest. I say insidious—and this is a point in which I pick up on what was said by the noble Baroness, Lady Finlay—because it is not only when a public decision-maker acts deliberately to favour his private personal interests that conflicts arise and threaten the system. It is also when the decision-maker at least persuades himself that his interests and the public’s interests coincide. It is only public scrutiny of the process that can properly test that.

The provisions in the Bill permitting some public access to the meetings of governing bodies of commissioning groups are, I suggest, over-cautious and too limited. The system should be made more open. The public should not be excluded from governing body meetings during the all-important discussions involving a choice between potential providers. I entirely accept that that would involve a new openness about commercial transactions and decision-making. However, these decisions are about choices between providers at public expense; I question the need for meetings to be held behind closed doors in relation to them.

Secondly, in the case of other decisions where the public are excluded from governing body meetings in the public interest, then a record of decisions made should at least be published, and quickly. That is the subject of Amendment 176A.

Our amendments set out a code for dealing with conflicts of interest in new paragraphs to go into the schedule. There would be a requirement for a register of interests of all CCG members. That register should be kept up to date. It should be kept available for public inspection. Then there would be a provision to exclude from the governing body of any CCG a director of a healthcare organisation or anyone with a significant financial interest in such an organisation if there is a contract in existence between that CCG and that organisation.

Thirdly, there would be a provision to ensure that a member of such a governing body who would be excluded if such a contract came into existence would have to stand down from the governing body while any negotiations for such a contract were in progress.

Finally, our amendments import the admirable guidelines produced by the General Medical Council, entitled Good Medical Practice. Those are the guidelines to which the noble Baroness, Lady Finlay, referred. I am grateful to the GMC for producing a document of such clarity and for welcoming our use of it in these amendments. The emphasis of the guidelines is on honesty and openness; that is what we are trying to achieve in this Bill. I believe it is what the Government are trying to achieve in this Bill. These are probing amendments, intended to give the Government an opportunity to consider how they might import such guidelines into the Bill at Report stage. However, our central point is this: we believe that the present provisions of the Bill do not display the seriousness, the clarity or the robustness that are required to meet the risks posed by the new arrangements. I suggest that the Bill cries out for a code in this area such as the one we have proposed.

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Moved by

[Lord Warner]

159: Clause 22, page 29, line 33, at end insert “providing that it can demonstrate that it can meet the requirements of commissioning competence specified by the Board”

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[Lord Warner]

In moving Amendment 159 I shall also speak to Amendments 160 and 164 in my name. I start by emphasising that this is a package of amendments that relates to many concerns that have been expressed to me and others—namely, that we need to make very sure that we ensure the assessment of competence of CCGs is sound and open before they undertake the commissioning of services that this Bill will enable them to do.

My earlier Amendment 157 enabled us to debate the number and population size of clinical commissioning groups, both of which considerations have a considerable bearing on the issue of competence of CCGs. I will not rehearse those arguments again except to emphasise that if the Government go ahead with such a large number of clinical commissioning groups, as it seems may well happen, then it is even more necessary to tighten up the Bill’s provisions on proof of competence and the ability of the National Commissioning Board to reject applications where competence is in doubt. It is for those applicants to take on the role of a clinical commissioning group to prove that they are competent to take on this task and to safeguard the public money that will be entrusted to them.

Amendment 159 makes it clear that in submitting an application to the board, the clinical commissioning group applicant must demonstrate that it can meet the requirements of commissioning competence specified by the board. If its application does not do so then the board should be able to reject it out of hand. The onus is on that group to show that it is competent to undertake the commissioning. It seems to me that clinical commissioning groups will have had plenty of time to assemble their case and to prepare for their application. The Bill should make it absolutely clear that a demonstration of competence should be mandatory in submitting an application. If I can put it crudely, we do not want to see people taking a punt. They have to be able to demonstrate that they can actually do the job, otherwise public money and safety will be put at risk.

Amendment 160 is linked to Amendment 159. It requires that when the board publishes information for applicants, that information document must specify the competencies required to commission health services. This problem of specifying competencies in commissioning has bedevilled the whole movement towards commissioning over several decades. Mark Britnell’s attempts at world-class commissioning ran into the same problem—we were not sufficiently clear about what competencies would deliver good quality health services from commissioners. So this competency issue is at the heart of making clinical commissioning groups work. It is vital that the board is left in no doubt of its responsibility for doing this and that applicants are in no doubt that the competency hurdle that they have to clear is put very clearly to them before their application can be accepted. What we do not want to see, if I may put it this way, is a load of well meaning waffle coming out of the board about commissioning. We want to have articulated the competencies that have to be met before applicants can be successful. Amendment 164 rounds the whole process off in terms of applicants showing that they can discharge clinical commissioning group functions “competently”, which is the word which it adds to the Bill.

These amendments make it clear that Parliament regards competence in commissioning as the yardstick by which the success or failure of applications to become clinical commissioning groups will be judged. This issue should be uppermost in the mind of the board when it makes decisions, and wording that makes this clear should be on the face of the Bill. Competence in commissioning has been missing in the past and we are in danger of repeating the mistakes of the past by not making it absolutely clear in this Bill what is required of the applicants to be clinical commissioning groups. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group. I will start with Amendment 159A which questions why, on page 9, line 36, it is possible for non-providers of primary medical services to be eligible to apply to establish a clinical commissioning group. Particularly in the light of my noble friend’s comments on Amendment 159, one would surely only want applicants who had experience of providing GP services to be able to apply to form a clinical commissioning group.

Amendment 160A requires the board, before considering an application to form a clinical commissioning group, to consult with the general public, the relevant local authority, the relevant health and wellbeing board, and patients receiving primary medical services from providers within the clinical commissioning group. The noble Lord, Lord Greaves, raised some pertinent questions about transparency in the formation of clinical commissioning groups. It is extraordinary that there seems to be no process by which putative CCGs consult with their patients before they make an application. The decision is, essentially, being made by bureaucrats within the National Health Service system—who put constraints on CCGs,—and the GPs themselves. Where on earth are the public in all of this?

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[Earl Howe]

My Lords, these amendments are all concerned with the process of the establishment of CCGs or changes to the established organisation. The Bill lays the groundwork for the NHS Commissioning Board to establish CCGs. Ensuring the competence of an applicant group to exercise the functions of a CCG is a key part of that process.

In the first instance, the board may publish guidance on the making of applications and this may include details of how it will assess the fitness of CCGs for establishment and therefore their suitability to assume responsibility for exercising their commissioning functions. That is really what Amendment 159 is trying to get at. The whole process is intended to ensure that the CCG has made appropriate arrangements to discharge its functions competently. If the board is not satisfied about that, it will not grant the CCG’s application, or else it will grant it subject to conditions under the transitional arrangements.

I can confirm that we intend to make provision in regulations to require the NHS Commissioning Board to take the views of the shadow health and well-being board into account when they consider the establishment of a CCG. Health and well-being boards will be able to provide insight into the willingness and ability of a prospective CCG to be involved in partnership working and engaging with the local population. That is the theme of Amendments 160A and 162.

However, in my view, wider mandatory consultation with the public, either by a prospective CCG or by the board on receipt of an application to be established, would be completely disproportionate and add unwarranted delay to the establishment of new arrangements. We already have intelligence that early implementer health and well-being boards are engaging in constructive dialogue with CCG pathfinders about the right size, area and configuration to best meet local patient needs. That is fine, but problems arise when you start to mandate it. I am very uncomfortable about that. Consultation with the public has its rightful place but I was completely unconvinced by the argument of the noble Lord, Lord Hunt. For my money he simply has not made the case.

We also need to ensure that we do not have a cumbersome process for agreeing changes to CCGs, which may evolve over time as organisations and may choose to merge formally or to adapt their constitutions, which of course would need to be agreed with the board. A number of amendments in this group seek to require consultation, with the public, the relevant local authority, the relevant health and well-being board and patients receiving primary medical services from providers within the CCG, for different processes: establishment, variation, merger or dissolution of CCGs. The Bill as it stands would set clear duties for patient and public engagement in new Section 14Z. CCGs would have to engage the public in their planning of the commissioning arrangements; in the development and consideration of commissioning proposals, which would have an impact on the manner in which the services are delivered to the individuals; and in the range of health services available. They would also have to engage on decisions of the CCG affecting the operation of the commissioning arrangements where implementation of the arrangements would impact on individuals or the range of services available. The CCG would also have to consult the patients it is responsible for on its commissioning plan. That is quite right and proper and I hope that, in that area at least, there will be some agreement across the House.

As regards local authorities and health and well-being boards, these boards will include representation from the local authority and CCGs. I suggest that is the ideal forum for CCGs to discuss proposals such as mergers with their fellow members. However, it would not be appropriate to impose an explicit requirement for CCGs to consult the board on such matters.

Turning to Amendments 164B, 166A, 166C and 167C, tabled by the noble Lord, Lord Hunt of Kings Heath, I commend the report of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House. These amendments would make the resolution procedure for certain regulation-making powers relating to applications between CCGs and the board affirmative. This approach was rejected by the DPRRC, which found that the negative resolution procedure would give noble Lords ample opportunity to consider regulations laid before the House covering determination of applications for establishment of a CCG, for variation of CCG constitutions and on dissolution of CCGs.

The noble Lord, Lord Patel, asked me about competencies. In September the department published Developing Clinical Commissioning Groups: Towards Authorisation, which sets out our current thinking on the domains that the Commissioning Board may wish to use as indicators to judge the competencies of prospective CCG commissions.

While I know that there will not be a meeting of minds over this, I hope that I have at least fleshed out what the Government’s intentions are. There will, obviously, be opportunity for further reflection on these matters.

[Lord Warner]

My Lords, I was not convinced by the noble Earl’s views on the number of clinical commissioning groups in our earlier debate. I was even less convinced by what he had to say about competencies. There was a lot of talk about, “The board may wish to do this”, and, “The board may wish to do that”, on competencies. The problem of healthcare commissioning in this country has actually been the lack of competency. That has been the problem for 10 to 20 years, under successive Governments. If we miss the boat again on this issue, we are making a great blunder.

I do not want to go over the ground about consultation with the public at all. I am interested in having in the Bill that the critical requirement of becoming a clinical commissioning group is competency to do the job, and that the board is required to specify what those competencies are, before people make an application. My noble friend Lord Hunt has made the perfectly sensible observation that while we are sitting, chatting about this Bill, people out there are doing the business about who will be clinical commissioning groups. That is what is actually happening. We need to make sure that they are under no illusions that competency is the yardstick by which they will be judged. I am not satisfied with the Government’s response and wish to test the opinion of the House.