NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Lord Warner Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Warner]

My Lords, I support the points made by my two noble friends in their eloquent speeches. I speak as someone who was given assurances about campaigning on Report by the noble Baroness, Lady Northover. My filing system is not up to discovering whether she sent me a letter, but I have no recollection that she withdrew her assurances in any way. The set of regulations in Regulation 36(1) and (2) of Part 6, taken together, totally neuter the ability of local Healthwatch organisations to campaign effectively.

As my noble friend said, the extraordinary thing is that the Government have chosen, with absolutely brilliant timing, to bring this before the House on the day before publication of the Francis report. My noble friend was wise. He did not know when the Francis report was coming out, but the Government had an opportunity to offer the chance to defer these regulations. It is very odd that we are having this debate when no doubt tomorrow there will be an unleashing—a positive avalanche—of rhetoric about the need to put the patient at the centre of the NHS. There was a warm-up on “Newsnight” yesterday. We can see it coming. Now we have a set of regulations that will set up local Healthwatch alongside Healthwatch England. The organisations will be totally unable to campaign against policies that they regard as not in patients’ interests.

I will spend a few moments on the text of the regulations. The Explanatory Note on page 38 of the regulations states:

“Regulation 36 sets out certain political activities which are not to be treated as carried out for the benefit of the community”.

This is an extraordinary statement, but Regulation 36(1) and (2) go rather wider than that. The Explanatory Note does not accurately reflect what is in the regulations. Consideration needs to be given to the quality of the drafting of either the Explanatory Note or of Regulation 36(1)(a) and (b), interrelated with Regulation 36(2). Regulation 36(1)(a) and (b) prevents a local Healthwatch organisation promoting or opposing changes in the policy adopted by any governmental or public body in relation to any matter, including the promotion of changes to the policy, unless under Regulation 36(2)(a) they can reasonably be regarded as incidental to other activities which are acceptable. So it is left to a multitude of small local social enterprises around the country to make a judgment, day by day, about whether what they are doing offends the provisions in Regulation 36(1)(a) and (b), as modified by Regulation 36(2)(a).

Even if we assume that there is some scope under that wording for them to campaign—which I very much doubt on any reasonable interpretation of the words—they will be in a state of uncertainty, and they will be expected to resolve that uncertainty with the minuscule amounts of money they have to carry out their operations. So if the Government want them to be effective with the small amounts of money there is likely to be, why do they want them to be tied-up by and concerned about obscure regulations which call into question their right to do the sane and sensible thing on behalf of patients in their area?

This House operates on the basis that one can accept assurances from government spokesmen while legislation is going through and we do not pursue matters when we are given them. However, as an individual Member of this House, I take umbrage about the assurances we were given on our ability to campaign. And not only me—the point about campaigning was repeated by my noble friend Lady Pitkeathley and again we were given assurances. We did not press this point further at Third Reading but, had we not been given those assurances, I am sure we would have come back to this issue at that stage. The Government have some explaining to do about why those assurances were not reflected in the wording of these regulations.

I support the point made by my noble friend Lord Collins about the extraordinary definition of a lay person. As other interests said to the Secondary Legislation Scrutiny Committee, this definition of lay person and lay involvement creates a situation in which it is possible to have people in local Healthwatch organisations who could be said to be in a position to manipulate discussion and debate on behalf of the very people that a local Healthwatch organisation is supposed to be monitoring and looking into.

Finally, I draw attention to the requirement provisions in Regulations 40 to 43. If one looks at these as a normal human being, they again pose a bureaucratic nightmare that will be excessively burdensome for the small organisations which will have to understand what it all means. I do not think it is beyond the wit of the Department of Health, Ministers and civil servants to produce proportionate regulations in relation to small bodies which spend relatively small amounts of public money.

These regulations are totally disproportionate to what they are trying to regulate in the interests of patients. The best thing the Government can do is graciously to withdraw the regulations, think about what is going to happen tomorrow, reflect on this and, after further consultation with stakeholders, come back with regulations which live up to the promises that the Government made and are more appropriate for the organisations being regulated.

[Baroness Jolly]

My Lords, just under a year ago on 8 March 2012 we were asked, during the passage of the Health and Social Care Act, to accept a last-minute change of structure of local Healthwatch because, as the Minister put it at the time, on reflection the Government realised that greater flexibility was needed over the organisational form of local Healthwatch. It was not entirely clear what lay behind this sudden realisation, which happened after the Bill had been through the Commons. The House was given only five working days within which to make sense of 50-plus government amendments that were put down at the time to achieve this change.

This was a very unusual action for the Government to have taken and very little explanation was given. Stakeholders in patient and public engagement were not consulted; we were asked, effectively, to give the Government the benefit of the doubt. We continued to put our faith in the Government’s intention as stated in the White Paper, Equity and Excellence, which aimed to strengthen the collective voice of patients through a new independent consumer champion within the Care Quality Commission, manifested at a local level as local Healthwatch with a strong local infrastructure.

During the debate on Report, the Minister described Healthwatch as, indeed, the voice of the people. At that time, we were dealing with the third reform of the way in which local communities influenced their NHS in three years, and there was a general view that, for their sake, we needed to get on with it. To avoid switching off the power for local communities to have a say in local services for too long, we felt the turbulence of further reform needed to be kept to a minimum. We hoped that secondary legislation would give the system its real shape and we would have an opportunity to ensure that the essentials were in place, changes in structure notwithstanding. This secondary legislation, which is among the most difficult to fathom, really fails to reassure.

My noble friend Lady Cumberlege will deal with freedom of speech and action. I would like to ask my noble friend the Minister about two issues relating to who will make local Healthwatch’s decisions on what it does and how it does it, and what type of involvement lay people or volunteers will have in those decisions.

Local Healthwatch must be a social enterprise contracted by a local authority and may have many subcontracts with other organisations—which may or may not be local or social enterprises—to support or carry out its statutory functions. To try to cut through this structural tangle and preserve the essence of local Healthwatch as the Minister intended it to be—the “collective voice of patients” operating through a “strong local infrastructure”—in March 2012 we focused on who would be involved. We debated the independence of local Healthwatch from the local authority that contracts it, and similarly the independence of Healthwatch England from the CQC, of which it is a committee.

We felt that if local people wholly outside the health and social care system were leading this new structure, they would make it work properly, despite any inherent inadequacies which we were not afforded the time to correct. Therefore, we were pleased when on Report the Minister gave a clear and unambiguous undertaking on behalf of the Secretary of State. She said:

“I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords”.—[Official Report, 8/3/12; col. 1990.]

Despite the evident good intentions behind this undertaking, something seems to have gone wrong with its execution. There is a serious legal contortion in the regulations around the definition of “lay persons and volunteers”. Suffice to say, it can include staff of health and social care commissioners or providers, as long as they are not clinicians.

This brings me to the role of the Secondary Legislation Scrutiny Committee of your Lordships’ House. It considered this SI on 15 January and its 23rd report draws these regulations to the specific attention of the House,

“on the grounds they give rise to issues of public policy likely to be of interest to the House and that they may imperfectly achieve their policy objective”.

The committee noted that staff could be decision-makers in local Healthwatch. The department did not dispute this in its response to the committee, which therefore concluded that,

“the current wording may leave Local Healthwatch vulnerable to manipulation”.

The committee has been unequivocal in highlighting the errors it perceives in the secondary legislation, saying:

“The Department has offered a legal and policy response, but that may not be enough: the Department needs to address urgently the points raised to the satisfaction of the public because without trust in the basic structure the Department simply may not get the volunteers it wants”.

These regulations do not deliver on the undertaking we were given. There is no assurance of independence, credibility or a strong collective voice for patients. Local Healthwatch could be a mere proxy voice spoken by others—indeed, those others are the very people against whom that voice may wish to speak.

To help reassure both this House and the committee, perhaps the Minister could help me with two scenarios. First, could the manager of a care home sit on its local Healthwatch? If he or she did so, how confident would local people be in the conclusions of that local Healthwatch about the quality of services both at that care home and others? Secondly, could a local profit-making provider of primary care be a local Healthwatch contractor? If so, could its manager sit on the local Healthwatch decision-making group? How confident would local people be in the information they obtained from local Healthwatch in helping them choose a GP?

Moving on, what exactly constitutes “involvement”? The regulations require,

“a procedure for involving lay persons or volunteers”,

although the distinction is unclear. As the Secondary Legislation Scrutiny Committee points out, “involvement” is not defined. The main problem is that in paragraph 38 the regulations deliver,

“the involvement of lay persons and volunteers in the governance”,

but not participation in decision-making, which one would have expected to see in Regulation 40(4).

We know from Sections 23 and 26 of the Health and Social Care Act, which relate to the national Commissioning Board and CCGs, that involvement in the context of patient and public involvement may simply mean giving information. There are no criteria for when more is required.

--- Later in debate ---

[Lord Warner]

I am sorry to interrupt the Minister, but I must follow up my noble friend’s comments. The noble Earl seems to be saying that if the local authority takes agin what a particular Healthwatch is doing locally, the local authority can say, “Hey guys, your contract’s up and we’re going to retender”.

[Earl Howe]

That is not what I am saying. As I said earlier, it will be important for a local Healthwatch in any campaigning or public statements to assure itself that it is truly representing local people and patients, and has the evidence to back that up. If it does, and if it can show that what it is saying is genuinely supported by local people, it has nothing to fear. It is only where the Healthwatch may latch on to one or other political party without reference to local people that it may be vulnerable.

Social Care: Funding

Lord Warner Excerpts

Monday 21st January 2013 Lords Chamber

Asked By

[Lord Warner]

To ask Her Majesty’s Government when they will announce their decision on the Dilnot Commission’s recommendations on capping the cost of adult social care for individuals.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Prime Minister and Deputy Prime Minister have committed to announcing further details before the Budget on capping the potentially huge costs of long-term care, giving people the certainty that they need to plan for their long-term care needs. The Government have agreed the principles set out by the Dilnot commission. We expect further details shortly.

[Lord Warner]

My Lords, I am grateful to the Minister for that reply. Progress is being made, albeit a little slower than many of us would like. Will the Government prepare draft clauses on a capping system for consideration alongside the draft Care and Support Bill? Does he agree that, to work effectively and fairly, national capping of individual liability will require the draft Bill to provide for portable national eligibility criteria?

[Earl Howe]

My Lords, as the noble Lord is aware, the draft Care and Support Bill is currently going through pre-legislative scrutiny. Our proposals can be amended to support the cap in law and we would include the appropriate provisions when legislation is introduced. I can tell the noble Lord that work is going on drafting such clauses. We have said that we will build national eligibility criteria into the Bill.

NHS: South London Healthcare Trust

Lord Warner Excerpts

Tuesday 8th January 2013 Lords Chamber

[Earl Howe]

My Lords, I am grateful to the noble Baroness and I understand the concerns that she has raised.

The first question she asked me was whether I considered the trust special administrator to have overstepped his remit. The clear advice that we have received is that no part of the NHS can exist in a vacuum. The independent trust special administrator is responsible for developing recommendations to deal with the severe failings at South London Healthcare Trust based on local discussions and consultation. I hope that the statement I read out gave the House a flavour of how extensive those consultations have been. His recommendations must secure high-quality care for local people in a financially sustainable way.

However, as I have mentioned, each NHS trust is part of a complex, wider health system, and it is quite clearly the view of the administrator in this case that it is not possible to find a solution without considering the possible impact on other hospitals in the areas. That conclusion is one that my right honourable friend will have to consider very carefully, but Ministers have received clear advice that it is within the powers of the administrator to make recommendations about necessary changes to other local providers if they are a necessary and consequential part of finding a long-term solution to securing high-quality services for patients at that trust. I emphasise that I do not in any way wish to pre-empt the decision that my right honourable friend has to take within 20 working days. However, he will have to consider advice on the clinical, legal and financial aspects of the administrator’s recommendations and I have no doubt that concerns raised by the noble Baroness will be central to his consideration.

[Lord Warner]

My Lords, I declare an interest as the former chairman of the provider agency in the London SHA area who grappled with some of these problems in south-east London which, to the best of my knowledge, have been around for at least 20 years. I congratulate the TSA on the work that he has done in trying to resolve this. Could the Minister explain a little more about the involvement of Guy’s and St Thomas’s Hospital and King’s College Hospital? The TSA is to be congratulated on involving them much more than has been the case in the past in finding solutions in this area because the failure of those two powerful hospitals to get involved in sorting out the mess in south-east London has bedevilled earlier solutions.

[Earl Howe]

My Lords, I am grateful to the noble Lord, who I know well appreciates the scale of the problem with which the administrator was grappling. This trust was losing more than £1 million a week. That is not a sustainable position in the current NHS, or even when times were rosier as regards the financial settlement. It is important for me not to say anything that will pre-empt my right honourable friend’s conclusion, but I am aware, from the press release issued today by the trust special administrator, that, as the noble Lord rightly says, the wider health economy has been taken into consideration, including the role of Guy’s and King’s College Hospital, in a number of areas, including, in particular, in emergency care and in obstetrician-led maternity care. I would commend to the noble Lord a summary of the recommendations, which is on the department’s website today. I hope he will find that helpful in giving him a sense of the breadth of the administrator’s purview.

Department of Health: Budget

Lord Warner Excerpts

Thursday 6th December 2012 Lords Chamber

[Earl Howe]

My noble friend raises a very important issue. The analysis that we have done on hospitals financed by private finance initiative has indicated that there are seven trusts that are basically unsustainable as a result of their PFI commitments. The Department of Health has therefore undertaken to support those trusts to enable them to make up the shortfall which is beyond their control. It would be wrong to suggest that PFI was a solution that did not deliver benefits. Clearly it did, but I am afraid that some of the sums that were done initially were sadly wanting.

[Lord Warner]

My Lords, what consideration was given by the Government before they repatriated, as my noble friend said, £3 billion to the Treasury? What consideration was given to using some of that money to buttress social care, which makes great demands on the NHS and which has suffered on average a 7% cut in each of the past two years?

NHS: Hospital Services

Lord Warner Excerpts

Thursday 6th December 2012 Lords Chamber

Asked By

[Lord Warner]

To ask Her Majesty’s Government what progress they are making with the reconfiguration of NHS hospital services.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Government’s policy is that front-line NHS reconfigurations should be locally led and clinically driven. Changes to services should be led by those who know their patients’ needs best. That is why we are empowering clinical commissioners to design the services that will make the greatest difference to improving healthcare and improving people’s lives.

[Lord Warner]

I am grateful to the Minister for that reply so far as it goes. In the light of yesterday’s Autumn Statement, will the Minister and his colleagues study carefully the recent Nuffield Trust report, which cogently suggested that we are facing a decade of austerity within the NHS with the need to secure 4% efficiency savings on a yearly basis, not just to 2015 but up to 2021-22? Will Health Ministers engage in a serious dialogue with the Academy of Medical Royal Colleges whose new chairman, Professor Terence Stephenson, suggested in July that we had far too many acute centres trying to provide 24/7 services across too wide a range of medical specialities? Will he accept, particularly in the light of the Answer that he gave to the previous Question, that we should be doing more to take money out of acute hospitals that are performing indifferently and putting it into community-based services?

[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.

Social Care

Lord Warner Excerpts

Thursday 29th November 2012 Lords Chamber

[Lord Warner]

My Lords, I congratulate my noble friend on securing this debate and opening it in her customarily clear, knowledgeable and wise way. I shall not repeat her analysis. I want to talk about the funding crisis. It is pretty clear from the contributions so far that there is a funding crisis in social care in a wider context. I shall touch on Dilnot—here, I declare my interest as a member of the Dilnot commission—but we cannot solve the problems of stabilising social care funding by Dilnot alone.

We are seeing local government in many areas having to concentrate virtually all its discretionary spending on adult social care and child protection, a situation to which the right reverend Prelate drew our attention. This will mean that big cities in particular lose those civic services around arts, leisure and other things which make for a civilised society as their authorities concentrate on social care and child protection. Yet these sacrifices may be insufficient to preserve good-quality, publicly funded social care services. Eligibility criteria will be tightened even further. Quality of care will deteriorate in a labour-intensive sector where the people providing the services have less money to ensure the quality and training of staff. These things are happening now on a considerable scale and the situation will only get worse. Local authorities will continue to chop their payments for publicly funded care.

We will see, and it has already started, private payers taking more of the services because the providers of those services, which are largely no longer public bodies, will have to concentrate their investment and activities on people who pay the true cost of care. Increasingly, that is not those who are in receipt of publicly funded social care.

Nothing stops the remorseless arithmetic of demography. The ageing and longevity of the population base of adult social care inexorably increase demand for care. With more than a third of the adult population having long-term conditions, and often with multiple morbidities, the demands on health and social care services will rise year by year for at least the next two decades. Yet we still pretend that the core business of the NHS is acute hospital treatment, when it is now community-based care involving care pathways that embrace health and social care and often housing and financial support. Yet our funding is in separate silos, with strong incentives to cost-shunt and to protect hospital budgets.

We have to begin treating the Department of Health budget as a single budget to be spent in the most cost-effective way for people’s care needs. We need to reimagine the whole system as a care system with a medical treatment adjunct rather than as a hospital treatment system with a care adjunct. We need money flows and payment systems that reinforce that new approach, rather than one that incentivises and reinforces episodes of care in acute hospitals and diverts money from overstretched community-based care. This means radically changing political and public attitudes to hospitals so that we can reduce the excessive number of 24/7 acute hospitals trying to provide a full range of medical specialties and concentrate specialist services on fewer sites. Not only would that be more cost-effective but it would be safer in many areas, such as maternity, for the public who receive those services. Money is now locked up and being spent in inappropriate ways in acute hospitals. That money should be extracted and used to boost community health and social care services.

We cannot expect local commissioners to produce these changes without national leadership. I am all in favour of localism, but to expect local commissioners to engineer these big-scale changes is frankly fantasy politics. I would like to see set up an independent, medical-specialty review of 24/7 acute services, led by specialist doctors and possibly under the aegis of the Academy of Medical Royal Colleges. I would ask them to see how these specialist services could be reconfigured on fewer sites, with the objective of safer specialist services that released—let us say—£l0 billion over five years to create a new time-limited care development fund. The fund’s mission would be the joint development by local authorities, clinical commissioning groups and health and well-being boards of more community-based care services. It is not a fantasy idea. In the US, Medicare is setting up a $10 billion fund to develop these kinds of community-based services.

Even with such changes, we still need major reform of the funding of social care to make it sustainable in the long term. This is because people have to save more for their old age and use more of their own assets to pay for their care, especially by equity release from housing assets. To do this we have to find a way of implementing some version of the Dilnot recommendations instead of sheltering behind the current fiscal difficulties to not do so.

As my noble friend said, there are ways of funding the relatively modest cost of starting on Dilnot. If we set the Dilnot cap at £50,000 or £60,000 and implemented the commission’s other recommendations, it would cost barely £1 billion a year or less to make that start. We could do this for three years by using underspends on NHS capital rather than repatriating them to the Treasury, and then if necessary find other funding sources including subsidies from the care development fund that I am proposing. There is a lot of money knocking around in government that could actually get Dilnot going in a reasonable way.

We cannot ask the social care world to adapt and find new ways of working without demanding much more from its wealthy relative, the NHS. Without more radical funding reform involving more use of NHS resources for social care, the good intentions of the draft Care and Support Bill will simply remain a wish list with no Santa Claus to deliver it. I hope the Minister—and my own Front Bench both here and in another place—will see these as constructive suggestions for further consideration.

NHS Commissioning Board: Mandate

Lord Warner Excerpts

Tuesday 13th November 2012 Lords Chamber

[Earl Howe]

I am grateful to my noble friend. The board will have to publish its progress against the objectives in the mandate. The Government will publish an annual assessment of its progress. We have set an objective for the board to demonstrate progress against all the indicators in the NHS outcomes framework. We will use a range of evidence to assess the board’s performance, including asking CCGs and other stakeholders for their feedback. This will be important, because it will provide the board and everybody else with a much more rounded view of how the health service is doing. The information will be publicly available, so everyone will be able to judge for themselves whether the NHS has achieved these stretching goals. In year, Ministers will hold the board to account. In particular, the Secretary of State will hold formal accountability meetings with the chair of the board every two months. Minutes of those meetings will be published. The meetings will be an opportunity to review performance and discuss issues as they arise, and as is right and proper.

[Lord Warner]

My Lords, there is much to welcome in this mandate, especially the points that the Minister made about mental health. Perhaps I may gently remind him that he and his Government will be able to send this patient information whizzing round the system and the country only as a result of the much maligned national spine that the previous Government put in place, along with a central contract. It is worth bearing in mind a little history.

The Minister said that this had been a masterly and costed exercise and that the NHS Commissioning Board had said that it could deliver the mandate within the finances available. Will he confirm that this means that the NHS Commissioning Board’s chief executive has accepted that he will have to deliver, through his new role, £20 billion in savings over four years—the so-called Nicholson challenge? We would like to know whether the Nicholson challenge includes that money.

Finally, I will follow up the point about specialist and specialised services made by the noble Lord, Lord Walton. The Minister may recall that in July the new president of the Academy of Medical Royal Colleges make the powerful point that we have far too many 24/7 acute centres. Will it be part of the Commissioning Board’s responsibility, with the money it uses to directly commission specialist and specialised services, to start to make progress on Professor Terence Stephenson’s suggestions that we need fewer specialised centres of a larger size?

[Earl Howe]

My Lords, I pay tribute to the noble Lord’s role in the NHS IT programme. He is right: we have a great deal to be thankful for in much of the IT that was rolled out under the previous Administration. It failed at a local level rather than a national level—it perhaps failed for honourable reasons—but that is history now and we need to move forward and find other ways of delivering the benefits which his Government identified and we are determined should be delivered at provider and commissioning levels. That is why there is emphasis in the mandate, in chapter 2.6, around technology because it is important that we have inter-operative systems at every level.

The noble Lord asked about the costing of the mandate and, in particular, the quality, innovation, productivity and prevention programme—or the Nicholson challenge as it is sometimes known. We refer to that on at least two occasions in the mandate, at chapter 6.4 and chapter 8.1. The NHS Commissioning Board has confirmed that it will continue to implement the Nicholson challenge and we will work with it to ensure that that happens.

As regards service configuration, the noble Lord will note that in chapter 3.4 we draw attention to that issue and, in particular, to the four tests that need to be met before service configuration can be considered acceptable. Those four tests must be determined locally and there must be a clinical buy-in to any reconfiguration of services. That is one of the most important features of the framework surrounding that area. We may well see fewer centres for a number of conditions but, if we do, it will not be through a top-down edict but because doctors and other health professionals think that it is the right thing to do for patients.

NHS: Death at Home

Lord Warner Excerpts

Thursday 8th November 2012 Lords Chamber

Asked by

[Lord Warner]

To ask Her Majesty’s Government what progress is being made to enable more NHS patients to die at home and whether they have plans to strengthen the NHS Constitution in this area.

[Lord Warner]

My Lords, I am glad to have this opportunity today to focus our attention on patient choice at the end of life. I would, of course, have preferred not to have it at the end of the parliamentary week.

Although I continue to be a staunch supporter of legislation on assisted dying, and will certainly support a Bill along the lines proposed by the commission chaired so ably by my noble and learned friend Lord Falconer, that is not my main purpose today. However, the right to assisted dying in this country should be part of the choice agenda for that minority of people who want it, are terminally ill and have mental capacity. We all like to exercise as much control and choice as possible over the way we lead our lives. As citizens, I believe we should be allowed also to exercise the maximum choice on the way we leave our lives. That is the issue I want to explore today.

Around half-a-million people die each year in England, two-thirds of them over 75. A century ago, most of us would have died in our own homes; today, most of us will die in hospital. Despite the findings of the Gomez report published in January this year showing an increase between 2004 and 2010 in the proportion of people dying at home, only 20.8 per cent of deaths took place at home. This is a lower proportion than the US, Canada and parts of Europe, such as the Netherlands. We also face the prospect of increasing numbers of people dying with more complex medical conditions which could, if we are not careful, push our healthcare system towards more people dying in institutions.

This Government, like the previous Government, deserve great credit for recognising the importance of patient involvement in decisions about their health and social care. I congratulate the Government on their commitment to the principle of “no decision about me without me” and on continuing the end-of-life strategy published by Labour in 2008. That document was a major political initiative in the sense of opening up the issue of death and dying for public debate. Today I wish to explore, in a non-partisan way, the progress made since 2008. In doing so, I will draw on the extensive, 73-page 4th annual report on the end-of-life strategy published by the Department of Health last month, together with the excellent briefings that many of us have received from Marie Curie, the Alzheimer’s Society, Sue Ryder, Dignity in Dying and others.

It is clear that considerable progress has been made on many of the issues identified for attention in the 2008 end-of-life strategy. There have been many local initiatives, some of which are described in last month’s annual report. I do not have time to go into detail on these developments but they increase our understanding of how we can improve the prospects of a good death, with dignity, respect, relief of pain, a preference for familiar surroundings and the company of close family and friends, when we want it. These considerations are being better addressed as a result of the 2008 strategy and all the work that has been done since then. However, we still have a long way to go.

There remains the difficult issue of with health professionals over striving to keep alive people who simply want to let go of life, without pain, in a place of safety and familiarity and at a time of their choosing. That can sometimes produce a difference of view between the patient and the relatives, as well as with professionals. In these situations, I regard the wishes of the individual person dying as paramount. It is their views that should take precedence over whatever professionals and families think. That informs the rest of what I have to say.

I have an uneasy feeling that this issue has some bearing on the current strife over the Liverpool care pathway. I will be clear: I am a strong supporter of the pathway. Properly applied by trained personnel, it does not hasten death but ensures that the right type of care is available in the last days or hours of life. It does not preclude the use of clinically assisted nutrition or hydration. Frankly, if 22 highly respected patient and professional organisations, including three colleges, can publicly sign a strong endorsement of the pathway, I know which side of the argument I am on; and it is not that of the Daily Mail.

Turning to the place of death, I have an opportunity to pay tribute to my favourite medical tsar, Professor Sir Mike Richards, who, as national clinical director for cancer and end-of-life care, has done so much to take forward the end-of-life strategy. In his excellent farewell letter, in the fourth annual report, Professor Richards identifies:

“Deaths in usual place of residence”,

as,

“the main marker of progress for the Strategy”.

He also says that:

“While this does not necessarily capture individual patient choice it is nonetheless a good proxy”.

He reported that, nationally, by April 2012, 42.4% of people are now dying at home or in a care home. This is an improvement from about 38% four years ago, which is an improvement of about 1% a year. On present trends, it will take until at least the end of the decade before half of deaths occur in the place of usual residence.

This improvement and this national figure conceal considerable regional variations. If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than in London, where only 35% of deaths take place there. The Marie Curie briefing cites the Office for National Statistics data for 2008 to 2010, which across the UK show 55% of people dying in hospital. However, there is a huge variation from 39% to 70% between local authority areas for the number of people dying in hospital. That is a huge range. This kind of regional and local variation is totally unacceptable and strongly suggests that there is considerable variation in professional and organisational practice and attitudes to allowing people to die in their place of choice.

Ministers and officials are to be congratulated on securing better measurement in this area, but they now have to confront the fruits of their labours—after all we have a National Health Service. It is not just a matter of fairness and patient choice. There is also a matter of cost, which, as Sir Humphrey Appleby would have said, is, “Not an inconsiderable consideration, Minister”. Again, Marie Curie has performed a public service with its publication on understanding the cost of end-of-life care in different settings, which suggests that a week of palliative care in the community at the end of life costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000. I am not suggesting that costs should be the only consideration, but we need to reflect on these figures because they suggest that we could offer more choice on dying at home and also save the public purse.

What is to be done? I have three suggestions to help speed up people’s right to have their preferences on where they die implemented, although I make it clear that I am not trying to dragoon people into dying at home and recognise some of the concerns that Marie Curie has expressed about people’s views changing. My first suggestion is to bring end-of-life choice into the Secretary of State’s mandate to the NHS Commissioning Board, as many parliamentarians have suggested.

Secondly, it is no good just rewriting the NHS constitution to give people more rights. The Government need to be bolder. The right should be written into the constitution clearly, in order to deal with the postcode lottery in patient experience and professional practice around the country. Thirdly, we should consider going further and provide citizens with a statutory right to exercise such a right, either in government legislation or in a Private Member’s Bill—an option I would certainly contemplate bringing forward. I look forward to hearing other peoples’ views in this debate, including the Minister’s, and I hope I have given him something to chew on.

National Health Service (Clinical Commissioning Groups) Regulations 2012

Lord Warner Excerpts

Tuesday 16th October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to the Register of Lords’ Interests and specifically to my chairmanship of the Heart of England NHS Foundation Trust. At the core of the Government’s changes to the National Health Service are the clinical commissioning groups to which a significant part of the NHS budget is to be allocated from the next financial year.

Those clinical commissioning groups face formidable challenges. They need to be authorised and established. They take office at a time when the NHS is attempting to cope with the £20 billion Nicholson challenge. They will face major reconfiguration challenges as the health service seeks to become more efficient in the use of its services. They also will come under great pressure to encourage integration across health and social care but will face also the almost conflicting pressure of increasing the marketisation of the NHS and coping with the bringing in of competition law to a much greater extent. Whatever one’s views about the changes to the National Health Service—I am one who does not take a particularly positive view, as the noble Earl will know—what is not in doubt is that clinical commissioning groups are at the heart of those changes and that the challenge that CCGs face, as we have come to know and love them, is formidable.

These clinical commissioning groups are a curious body. They ostensibly are public bodies to be given £60 billion of public money. They also can be seen as a federation of primary care providers which are given huge financial and commissioning muscle and from which members of the primary care federation can gain considerably. Given that, and given the obvious potential conflict of interest that surrounds clinical commissioning groups, it is clear that they should have the strongest possible corporate governance and effective boards. The regulations before us are therefore of considerable importance.

As the Explanatory Memorandum points out, the regulations set out,

“requirements on CCGs in terms of their establishment and governance”,

requirements in relation to the make-up of the board and requirements in relation to,

“the initial procedure for establishing CCGs and any changes to CCG membership and geographic area thereafter”.

The statutory instrument sets out that membership must include a registered nurse, a secondary care specialist and two lay people.

As I said during our endless debates on the Health and Social Care Bill, I find the very limited lay representation to be very disappointing. It is surely contrary to all good practice in public body appointments that lay people are in such a minority on public bodies to which so much resource has been expended. I doubt that it would pass the Nolan test. I well recall the failures that we have seen in boards over the past two or three decades where it has become clear that the non-executives have failed to discharge their challenge duty. After all, that surely is one of the main lessons of mid-Staffordshire. To have only two lay people who could represent the public interest on those boards seems to me to be a vital error.

I also say to the noble Earl that he failed to respond effectively to our debates on conflict of interest. I am sure that when he seeks to defend the drafting of this statutory instrument, he will talk about conflict of interest. However, the biggest conflict of interest is the fact that GPs will be in a majority on those boards, and GPs can gain financially from the decisions of clinical commissioning groups. That is why this whole structure is flawed.

My concern about the statutory instrument—one of the most peculiarly drafted that I have ever come across—is that people with local expertise are excluded from the clinical commissioning board. Because a registered nurse or a secondary care specialist have intimate local knowledge and provide services to patients in the area of a CCG, they are not to be welcomed; they are to be excluded. That is quite a remarkable decision. For a registered nurse or a secondary care specialist to become a member of a CCG they either have to be retired and therefore completely out of date or they have to live miles away and know nothing of the local area. What a remarkably stupid decision that is. It is compounded by Schedule 4 of the regulations, which excludes a local authority member from being appointed as a lay member of a clinical commissioning group. Why? What on earth is the justification for that?

Given the issue of accountability of clinical commissioning groups, surely having an elected member of a local authority on the board of each CCG would be to the advantage of that CCG. I have yet to hear any convincing explanation as to why they are excluded. Indeed, it is so ridiculous that if you are a GP who happens to be a local councillor, you are excluded from serving on the CCG board. I have had brought to my attention the case of one GP who has been a leading light in the development of his own clinical commissioning group only to be told that he is now ineligible to become a member of the CCG board. Today I met a local authority councillor from east Cheshire who has just been appointed a lay member of a CCG, but she has now been told that because she is a local authority member she can no longer serve on the board.

There are some inconsistencies in the statutory instrument. It looks as though Members of your Lordships’ House can serve on the clinical commissioning group governing bodies, as opposed to MPs and members of local authorities. From my reading it would seem that an elected police commissioner may also serve. That seems to me a trifle inconsistent, and I would be grateful if the noble Earl could clarify that for me.

In the Explanatory Memorandum, when it comes to consultation, we are told that the proposed framework for the established governance and authorisation of clinical commissioning groups was tested with a wide range of stakeholders. Can the noble Earl say a little more about that? Who, in fact, were consulted? I had not realised until I received a briefing that the Foundation Trust Network was not consulted on the details of the regulations. We all read with great interest in Pulse magazine of 24 July that Sir David Nicholson, chief executive of the NHS, said that he was open to relaxing the restrictions that I have mentioned. Was he consulted?

Why did the department not listen to the concerns of the Royal College of Physicians, which believes that the CCG boards should always include specialist doctors who work within the area covered by a CCG in order to help the integration of services across primary and secondary care? Indeed, why did it not listen to the BMA, which feels that the regulations are restrictive and are hampering effective secondary care clinician recruitment to CCG boards? Why did it not listen to the Royal College of Nursing, which says that the guidance makes an assumption that GPs from practices in a CCG should be allowed to sit on the CCG governing body, but automatically excludes any nurses employed by any significant local provider or member in general practice? The college says that that will make it difficult to appoint nurses with the necessary skills and expertise who have sufficient knowledge of the local challenges. The Royal College of Surgeons is also concerned.

I have another concern. Again, when I read the regulations, I had not noticed that, as the Foundation Trust Network has pointed out, if you are a member of a foundation trust you are ineligible to serve on the board of a clinical commissioning group. I believe that the total membership of foundation trusts is more than 2 million. My own trust has 100,000 members in its patch, and they are all excluded from serving on the board of a clinical commissioning group. That is a bizarre decision. I really do not understand how the department could have allowed that to creep into this statutory instrument.

I believe that the regulations are badly thought out and badly constructed. Essentially they will ensure that the board of a clinical commissioning group will be bereft of members coming from the local authority, hospitals or the nursing profession who have any intimate knowledge of the patch in which they serve. I urge the noble Earl to reflect on this. It would be much better if these regulations were withdrawn and new ones brought before your Lordships’ House. I beg to move.

[Lord Warner]

My Lords, I begin by congratulating the Minister on surviving the ministerial defenestration at Richmond House over the summer. I recall that some years ago a younger Bruce Willis played the title role in the film “Last Man Standing”. I welcome the Minister to his new role as an action hero. However, today’s regulations do not live up to this star billing.

My noble friend’s Motion of Regret contains many important reservations and I wholly endorse his remarks but there are other concerns as well. I will not repeat my noble friend’s remarks on the inconsistency of the CCG membership provisions but I would like to supplement them briefly. It seems bizarre to me to allow GPs with acknowledged conflicts of interest in a CCG area to serve on the CCG, though with appropriate safeguards and sanctions for failing to acknowledge those conflicts—sanctions which we discussed extensively during the Bill’s passage through this House—but not to allow specialist doctors to do exactly the same. This seems to me not to be in the best interests of patients because it appears to be punishing expertise of a specialist nature in terms of the development of services by commissioners in a particular local area.

My second point, which I want to dwell on a little longer, concerns the issues relating to accountable officers, which to a great extent, to my reasonably tutored eye, look remarkably similar to the roles of chief executives in PCTs. Has the Minister seen the information about CCG accountable officers in the Health Service Journal of 11 October? This reveals that 72% of the emerging 211 CCGs have chosen managers and not GPs as their accountable officers. Only 22% of the accountable officers are GPs—a drop in the 38% expected as recently as March 2012. This is because the job of the accountable officer looks remarkably like the job of a PCT chief executive and simply does not appeal to GPs. As I recall, the Government, when pushing for this legislation and these reforms, made much of the fact that they wanted to see GPs in a leadership role driving clinical commissioning in a reformed NHS. We seem to have ended up with a situation in which GPs as a whole are walking away from a leadership role in commissioning. That leaves the Government’s strategy of increasing clinical involvement in commissioning services, which I wholly support, in a very weakened state. It suggests that after all the upheaval of the poorly constructed Bill, which we spent months discussing, we will end up with more than 200 CCGs replacing 150 PCTs, but still with about 150 PCT chief executive equivalents running the show within CCGs. This is a bizarre outcome from the time we spent on the Bill. Did we really labour through the Bill for many months to achieve that outcome? Can the Minister confirm that the Health Service Journal data are correct? What proportion of the £60 billion a year going to clinical commissioning groups will come under accountable officers who are not GPs or doctors?

I have a few questions about service integration and CCG mergers. The new Health Secretary seems very enthusiastic about integration of health and social care and that is a jolly good thing. Can the Minister explain how excluding local authority personnel—both members and officers, such as a director of adult services—from a CCG board can facilitate joint commissioning of health and social care and the pooling of health and social care budgets, which seems to be attracting increasing support? How will such an arrangement incentivise CCG accountable officers to use resources for adult social care from the national Commissioning Board in such a way as to save the NHS money and provide a better service to patients? Indeed, can the Minister confirm that CCG accountable officers will not be criticised if they use NHS resources wisely to purchase social care that better serves the needs of patients when appropriate?

As the Minister knows, I am deeply sceptical about the need for and viability of having more than 200 CCGs, particularly given the likely service reconfigurations needed over the rest of this decade. I am therefore pleased that there is some provision in the regulations for mergers to take place. However—there is always a “however”—the list of factors to be taken into account before a merger can proceed, in paragraph 2 of Schedule 1, is extraordinarily daunting. There is a page and a bit of factors that have to be taken into account before a CCG—which may find pretty quickly that it is unviable—can move towards merger. They do not encourage CCGs to face up to financial realities and speedily reduce their number when needs must. Should the Government not be cutting this list of factors substantially rather than providing for a slow CCG death, as Schedule 1 seems to do?

I understand that the Minister may not want to answer all these questions tonight but perhaps he could write to me on some of these issues. I certainly support my noble friend’s suggestion that these regulations should be taken back, rethought through and re-presented to Parliament.

Social Care: Sustainable Funding

Lord Warner Excerpts

Tuesday 17th July 2012 Lords Chamber

Asked By

[Lord Warner]

To ask Her Majesty’s Government when they will announce their plans for sustainably funding adult social care.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Government set out their plans for the funding of adult social care at spending reviews. The date of the next spending review has yet to be announced. At the last spending review the Government prioritised money for adult social care, announcing an additional £7.2 billion over four years. When combined with an ambitious efficiency programme, this will provide enough funding to enable local authorities to maintain current service provision.

[Lord Warner]

I thank the Minister for that Answer. However, is he aware that publishing a White Paper about adult social care without a funding plan is as much a work of fantasy as Fifty Shades of Grey, but without the fun of sex? Do the Government recognise that the longer they delay implementation of the Dilnot commission’s proposals—and here I declare my interest as a member of that commission—the greater will be the social care cost that shifts to the NHS, which has its own funding problems? Starting that implementation will cost around one-thousandth of annual public expenditure, as Andrew Dilnot has repeatedly said. Is it not time that the Prime Minister and the Chancellor engaged with this issue within cross-party talks to try to sort out the funding problems of adult social care?

[Earl Howe]

My Lords, we look forward to a continuation of the constructive cross-party talks that have taken place. We have been clear that we accept the principles of the Dilnot recommendations, including financial protection through capped costs and an extended means test. They are the right basis for any new funding model. That sets out, if you like, our high-level view on what a new funding system should look like, but there will be many questions to answer—such as on the level of the cap and whether the funding system should be voluntary, universal or opt-in—before we can make any firm decisions. It is right that we take time to work through this, including engaging with stakeholders to make sure that any reform is the right one. That means that the next spending review is the appropriate time to take those decisions.