Health and Care Bill

Lord Warner Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I am delighted to support Amendment 297L from the noble Baroness, Lady Hollins, which proposes mandatory training on learning disability and autism and how to care for people in the health sector. The amendment is also signed by the noble Baronesses, Lady Bull and Lady Merron.

People with learning disabilities and autism need to be cared for by those who really understand their condition so that they can carry out their roles effectively. This amendment formalises that in terms of the plan, what needs to be covered and what the code itself needs to cover. Those of us who have family members with learning disabilities or who have worked closely with them know that this specialist understanding is vital, and for a broader range of people working with them than is usually understood.

The noble Baroness, Lady Hollins, highlighted the need to ensure good understanding of health issues and how they are managed. Oliver McGowan’s story is shocking and we need to ensure that it is not repeated at a strategic level. During the pandemic we heard of far too many “do not attempt resuscitation” orders for people with learning disabilities. Indeed, it took some considerable time to get access to Covid vaccines for people with Down’s syndrome and other learning disabilities, even though they were more susceptible. It took too long to get that changed. My Down’s nephew in Spain is still not entitled to a vaccine.

In an earlier amendment we discussed abuse in institutional settings. Last year, there were some appalling undercover videos of staff physically abusing autistic students at a residential school. One of the comments was that it was evident that some staff had not been trained to understand and manage autism. Training is not needed just to prevent bad behaviour; well-trained staff in health and education settings are a joy to watch when they are working with those they are supporting, and it can truly enrich their lives.

[Lord Warner (CB)]

My Lords, I rise briefly to speak in support of this amendment. I declare my interest as a vice-chairman of the All-Party Group on Autism and the grandfather of a child with very serious autism. In particular, I want to emphasise a point which I think I have made before in this Chamber about the problems of achieving a diagnosis. You achieve a diagnosis when people start to recognise the problems that a young person is suffering from. Carers do not get any kind of services until there is a recognition of the condition by people in the different agencies.

I thoroughly support this amendment, because it would put on a statutory basis the need to improve training for a range of people who are likely to come in contact with the family from time to time, so that they are on the lookout for this condition, which, I can tell the Committee, can be very disruptive to family life and very difficult to deal with. The people who are carers of young people with autism have a terribly difficult job and a tremendously difficult road to travel. So the more help we can give clinicians and professionals in recognising the condition and bringing help to these families, the better.

[Baroness Watkins of Tavistock (CB)]

My Lords, I too support this amendment, which is absolutely in tune with reducing health inequalities for a particular section of our population and should be warmly supported across the House.

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[Baroness Tyler of Enfield (LD)]

My Lords, I rise to speak to Amendment 307 in my name. I am very grateful to the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner, for adding their names to it. I am also grateful for the support already received from my noble friend Lady Brinton.

As I have argued in earlier debates on this Bill, it is a real problem that measures under Part 2 that aim to improve the sharing of information and data apply only to adults. This is despite the clear need to improve how children’s data is shared between health and social care and also between other agencies, including education and wider local services. The current absence of a single unique identifier makes identification of children who are in touch with multiple services very difficult and is a real barrier to joined-up support. My amendment seeks to address this glaring gap by requiring the Secretary of State to publish plans to use the NHS number as a single unique identifier for children.

Everyone in England and Wales is assigned a unique NHS number at birth or after the first time they interact with NHS services and that number is valid for life. Currently, the NHS number is used to store information on patients within healthcare records. However, we know that children and young people are frequently in contact with other agencies and services which are, more often than not, all using different identifiers. It is no wonder that too many children, including the most vulnerable, fall through the cracks, leading to the tragic and absolutely horrendous examples of extreme child cruelty and death that we have heard about recently.

The 2021 annual report on local children’s safeguarding practice reviews, previously known as serious case reviews, states:

“Much has been written about the continuing barriers to sharing information between safeguarding partners and we found that those issues remain and were highlighted in almost half of all reviews”—


I repeat: some 50% of the reviews.

Using the NHS number as a unique identifier would have the following benefits. It would reduce the risk of incorrect identification, improve multiagency working and improve care pathways. It would certainly ease the transition into adulthood, because the NHS number is for life. That NHS number stays with patients wherever they move within the country or between England and Wales. These are really important points.

A key finding of the House of Lords Public Services Committee report on child vulnerability was that

“in most local areas, services working with children are unable to match unique pupil identifiers on the national pupil database with children’s NHS numbers. This limits the ability of early intervention services to reach the most vulnerable children”.

Simon Kenny, the NHS England national clinical director for children and young people, added to these calls, stating that we “definitely” need a unique identifier, and that there needs to be

“a legal framework to enable it.”

This Bill provides just that opportunity.

Both the Children’s Commissioners—Anne Longfield, the previous Children’s Commissioner, and Dame Rachel de Souza—have supported the call for a single unique identifier number for children. I spoke with Anne Longfield about this only yesterday, and she described this approach as a force for good.

I finish by referring to a briefing from the Royal College of Paediatrics and Child Health, for which I am very grateful. It strongly supports a single unique identifier for children using the NHS number and says that it would be utterly transformative in how services address the needs of children and young people, particularly the most vulnerable.

[Lord Warner (CB)]

My Lords, I have added my name to Amendment 307, introduced so ably by the noble Baroness, Lady Tyler. I have raised this issue from time to time over the past decade or so, including in a spirited correspondence with the noble Earl, Lord Howe, when he was a Health Minister—which shows how long this issue has been kicked around Whitehall. The one number every child has is the NHS number, as the noble Baroness, Lady Tyler, mentioned, but to adopt it means education, social services and possibly police would have to accept it, and—terribly, of course—they would have to modify their IT systems. In short, what we have here is a good, old-fashioned, Whitehall bureaucratic struggle.

However, now the Children’s Commissioner Rachel de Souza has joined in rather powerfully because of all the children missing from schools, many more than before the pandemic. There has been a problem with children missing from schools from well before the pandemic—some going to illegal schools, others being home-schooled, often without much evidence of being taught curriculum subjects. There is now to be a home-schooling register. The Children’s Commissioner has made it crystal clear that she wants all children to have a unique identifying number across the NHS, school and social services. That is the only way these kinds of changes can be made to work. What we have is a situation now where children at risk are put at unnecessary risk because there is no unique identifier across the different services.

Personally, I would not bet on the Children’s Commissioner getting her well-deserved wish. Last week, the Department for Education trotted out its traditional line—that it will introduce the home-schooling register at the “earliest possible legislative opportunity.” But the department was totally silent on the unique identifier issue, which was so important to making this work.

We have had this issue sculling around Whitehall for many, many years. There is now a chance for a decisive Minister, like the noble Lord, Lord Kamall, to do something about it, bang a few bureaucratic heads together and put the NHS number to work protecting children at risk across a range of services. At the very least, it would be helpful if he could consider protecting children through the Government having a pilot scheme to take this idea forward.

[Lord Davies of Brixton (Lab)]

My Lords, I apologise to the House and the noble Lord, Lord Clement-Jones, in particular; but having sat through nine days of this Committee, I was keen to get stuck in. I wanted to speak on group 10, particularly in support of the amendments of my noble friend Lord Hunt of Kings Heath.

The issue of data is clearly crucial. It is a shame, as was said on the previous group, that there is not a Bill on it in itself; it is worthy of that level of discussion. It is such a shame that we are discussing it now late at night under pressure of time.

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[Lord Warner (CB)]

I am sorry to interrupt the Minister at this time of night, but I think he has no idea how many Ministers have stood in this place over the last 10 to 15 years making very similar speeches to this. We now have “deep dives”, but the idea of Whitehall co-operating on this issue is always dead in the water after these deep dives, if I may mix my metaphors. What we really need is at least an assurance that some kind of pilot scheme will actually emerge from this deep diving and be put in place so that something actually happens, with all the agencies co-operating.

[Lord Kamall (Con)]

I thank the noble Lord, first for his earlier confidence in my abilities and now for questioning my abilities, as it were, and rightly so. I am very interested in this, and noble Lords will remember that, in the meeting, I discussed what I saw as technical solutions to this. If there are different primary keys, it does not take a complicated bit of code to give equivalence or, in fact, restricted views, as it were, as appropriate. However, once again, those views would have to be agreed across government: while it might seem appropriate for the Department of Health number or the NHS number to be used, that could give access that is not considered appropriate, and we have to get the right balance. I ask the noble Lord, Lord Warner, to revert back to his earlier confidence in my abilities to do something —assuming I am here for some time.

In the coming months, the Department for Education will be providing an update to the existing information-sharing guidance. We believe that provides a real opportunity. One thing I have been quite clear about—for example, in the life sciences vision—is that I want to work with my counterparts and have been working with my counterparts in other departments; in BEIS, in DIT but also with the adviser in No. 10. I fully recognise the Committee’s interest in promoting data protection, ensuring that patients’ data is used appropriately. We have all been on a learning curve over the years as people share their data on such things as Facebook and now realise what happens to that data, how it is used and sold. I alhso refer to the ownership of data: at the end of the day, the data has to be the patient’s data. They have to be quite clear about that ownership and what happens to it.

All processing and sharing of information under Clauses 81 to 87 will meet the requirements of data protection law, including the UK GDPR. An individual’s personal information will be shared only in specific circumstances: where the individual consents to the use of the data, where there is a legal requirement to share or where sharing such data is necessary. I recognise as well that noble Lords, if we get through this, will be having a meeting tomorrow on confidential data and I hope that we can have some more, deeper conversations, not only tomorrow but in future. I have committed previously to meetings: there is a particular issue with one of the meetings and I will explain that to the noble Lords I spoke to previously about it, but I hope that for now, noble Lords will have some reassurance, although perhaps not complete reassurance, and will feel able to withdraw their amendments at this stage.

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[Lord Patel (CB)]

My Lords, I shall speak to my Amendments 229 and 230. I thank the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Walmsley, for adding their names to them. The House of Lords Constitution Committee report on the Bill raises serious concerns about the range of Secretary of State powers in the Bill and concludes that these new powers, coupled with new powers for the Secretary of State of oversight, delegation and transfer of function,

“could alter the balance between the Government’s constitutional responsibility for the provision of health care and providers’ ability to function in a manner that can respond effectively to local needs. It also risks undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”

That is a claim that we must take seriously.

All the amendments in the group are important but, as has already been said, the hour is late and we need to rush so we cannot discuss them fully.

As the Bill is drafted, the Secretary of State would have the power to confer, abolish or change the function of a list of bodies that includes NHS England, Health Education England and the Human Fertilisation and Embryology Authority, to name but a few. One safeguard included in the Bill in relation to NHS England is that the Secretary of State would stop short of changes that would make NHS England redundant—but “redundant” is not defined. However, nothing on the face of the Bill sets out how high or low that bar would be set.

I recognise the logic of the Secretary of State having powers to confer responsibilities on arm’s-length bodies via secondary legislation. However, these new powers are far more extensive than that, and there is a real danger that their application could threaten the operational independence of key parts of the NHS. The Secretary of State should not have the power to abolish a body such as the Human Fertilisation and Embryology Authority, or to transfer the majority of its powers. Health Education England and the Health Research Authority were established through the Care Act 2014. If the Secretary of State believes that any of these bodies should be abolished or have functions removed, Parliament should have the opportunity to debate and understand why he desires to take that action, hence my amendment to reduce the scope of these powers and remove the Secretary of State’s powers.

[Lord Warner (CB)]

My Lords, after consultation with the clerks and for the convenience of the Committee, I have moved my Amendment 318 into this group. Before I speak to it, I say that, as a person who has culled a few quangos in his time, I think that the amendments in the names of the noble Lords, Lord Hunt, Lord Clement-Jones and Lord Patel, are important. Even I never had the nerve to actually abolish bodies set up by Parliament just because I thought that it would be a good idea. That seems to be the approach taken in some parts of this legislation. It is worth bearing in mind a point made already: that attracting skilled professional staff to many of these bodies would be much more difficult if they were in an omnibus body such as NHS England. Many high-quality professionals would not want to work in that environment.

The purpose of Amendment 318 is simple: to delay implementation of Parts 1 and 3 of the Bill until the Government have reduced substantially the huge backlog of patients awaiting NHS diagnosis and treatment. The amendment is based on the proposition that, however meritorious the NHS reorganisation that the Government propose is, implementing it when they have told the NHS that their top priority is reducing the backlog seems a considerable risk. As a former Health Minister, I regard this as highly ill-advised and not in the best interests of patients. Let me briefly set out the arguments.

In its report of 1 December, the NAO made clear the unprecedented scale of the backlog that the Government have finally faced up to. It has taken over two months for the Government to come to Parliament, which they did yesterday, to acknowledge the true scale of the backlog. Some 6 million patients are now known to be on the NHS waiting list; 300,000 of those have waited for over a year, and 18,000 for over two years. But the NHS data tells only part of the backlog story, as the NAO pointed out over two months ago. We know that 10 million patients have not come forward during the pandemic. The Health Secretary has acknowledged that it is unclear

“whether it will be 30% or 80%”

of this 10 million who come forward. We do not know how many of these people will request treatment. The Health Secretary said:

“Even if half of these people come forward, this is going to place huge demand on the NHS”.— [Official Report, 8/2/22; col. 805.]


The Institute for Fiscal Studies forecast

“a likely peak of between 8 and 11 million”

people on NHS waiting lists.

What will the new NHS plan do to deal with this? It says that the waiting lists should start to fall “around March 2024”. But that assurance is without knowing the true size of the waiting list, as the Secretary of State acknowledges. The Treasury—the good guys in all of this—wanted more ambitious NHS targets. Instead, the NHS has been allowed to retain a March 2025 deadline for dealing with the 300,000 patients waiting more than a year for treatment. This is the situation in which the Government are trying to introduce a major reorganisation of the NHS, and that is why I have put forward this amendment, which would defer implementation of Parts 1 to 3 of the Bill.

The Government, approved by Parliament, will be asking NHS staff to be pre-occupied with implementing the changes made in this Bill, while often changing jobs as new integrated care bodies and partnerships are established and made to work. The Government are asking them to do this at the same time as they are working to reduce this huge, unprecedented backlog of patients needing diagnosis and treatment.

When he took office, the current Health Secretary’s instinct was to scrap the Bill, and when it began its passage through Parliament the actual scale of the backlog was not known. The Health Secretary needs to return to his initial instinct, which was very sound, and postpone its passage. If he does not, he will be putting many NHS patients at unnecessary risk. I suspect the Minister will tell us that in many areas the boards and partnerships are ready to go. If he does, I would be interested to have a list of those areas, to save a parliamentary Question. If that is the Government’s position, I would be interested to know why the NHS has been allowed to do this before the Bill has been approved by Parliament and the expenditure authorised. Despite the dubious legality of implementing before Royal Assent the changes made in this Bill, Amendment 318 avoids unscrambling what I might call illicit reorganisations.

It is the job of this House to get the Commons to think again. That is what this amendment does. It does not wreck the Bill; it simply defers implementation until the NHS has the huge backlog of treatment under better control. I beg to move.