NHS: Private Finance Initiative Costs
Lord Warner Excerpts(12 years, 4 months ago)
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Earl Howe
My Lords, I am not aware that we are doing that particular thing, although I understand my noble friend’s concern. There are contracts in place which are legally binding. Nevertheless, within the framework of those contracts there is often scope for looking creatively and flexibly at their provisions. We are endeavouring to do this in order to help the trusts work their way through their problems.
Lord Warner
My Lords, what role is the Treasury playing in trying to mitigate the effects of some of those PFI contracts, given the part that it played in particular at its official level in agreeing and signing them off under the previous Administration? Indeed, many are still in place in the Treasury today.
Earl Howe
My Lords, the Treasury has been very helpful in advising my department on the kinds of flexibility that we may have in these difficult situations. It has also been helpful in refining the current PFI model so that, as and when we use PFI again, we have a tighter structure which strikes a better balance between risk and reward to the private sector.
Care and Support
Lord Warner Excerpts(12 years, 4 months ago)
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Earl Howe
The noble Lord is quite right; there is huge concern about the sometimes tick-box attitude to domiciliary care, very often resulting in nugatory time spent by care workers with those they look after, which one is tempted to say is hardly worth while in some cases. We are very aware of this. Part of the answer lies in our plans for personal budgets, which should give service users much greater scope to define what they want and what their needs are. The service should then work around those needs and requirements. However, we are also talking about the workforce here.
We are clear that the minimum standards for health support workers and adult social care workers in England that are being developed by Skills for Care and Skills for Health will set a clear national benchmark for the training of support workers and their conduct when delivering care. We expect that the standards produced will inform proposals for a voluntary register for adult social care workers in England, which could be in place by next year. This will allow unregulated workers to demonstrate that they meet a set of minimum standards and are committed to a code of conduct.
All those things combined should move us away from the kind of culture that in some places, although not in all, is degrading the quality of care that is delivered.
Lord Warner
My Lords, I congratulate the Minister, and pass these congratulations on to his right honourable friend, on making progress on the Dilnot commission recommendations, as well as on the other measures in the White Paper. I declare my interest as a member of the Dilnot commission.
I also congratulate the Minister and his right honourable friend on extracting his documents from the dead hand of the Treasury. In that connection, I ask him to confirm two things. First, it will, I believe, be impossible to deliver a deferred payment scheme by April 2015 without a clear decision on the cap that will be required to underpin it, and the extended means test. Can he confirm that decisions will have to be taken on these two issues in order for a deferred payment scheme to go ahead?
Secondly, his right honourable friend rightly said that he was in the market for open cross-party discussions on the way forward. Does this mean that the Treasury will participate in these and will not blackball politically contentious proposals that may be found for funding and sustaining the implementation of Dilnot, even where those proposals may recoup some money from the very population groups that are going to benefit from a better adult social care system?
Earl Howe
First, I thank the noble Lord for all that he did as a member of the triumvirate of the Dilnot commission. There is no doubt that we owe him and his fellow commissioners an enormous debt. I am grateful to him for his kind remarks about this set of announcements. We propose to introduce deferred payment without the cap necessarily being in place. We believe that that can be done. I understand the direction from which the noble Lord comes, but a system that obliges local authorities to offer deferred payment where certain eligibility criteria—yet to be defined, admittedly—are met is deliverable in the absence of a cap. That is not to say that we do not wish to work hard to define what that cap should be.
On the noble Lord’s second question about the dead hand of the Treasury, I would not characterise my esteemed colleagues in that venerable department as dead hands. However, I acknowledge his central point about affordability. That is why we have felt it necessary to defer final decisions on how the funding of the Dilnot principles will be worked through until the next spending review. That inevitably means that my colleagues in the Treasury will have a direct interest in the result; it would be strange were it otherwise. Nevertheless, that does not preclude creative and constructive discussions between our two parties.
National Health Service Trust Development Authority (Establishment and Constitution) Order 2012
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Warner
My Lords, I speak on this Motion and the regulations as a former Health Minister with responsibility for the foundation trust pipeline when FTs were started. I took the foundation trust legislation through this House back in the heady days of 2003, when we sat until about five o’clock in the morning dealing with this legislation, so I have some background in this. After I ceased to be a Minister, I was chairman of a provider development agency in London for a couple of years. We grappled with the issue of trying to get people through the pipeline to FT status without lowering the regulatory bar for the standards that they had to achieve to do that. I make it clear that I am not auditioning for a position on the Trust Development Authority.
I saw the decision to set up the new authority with considerable puzzlement verging on disbelief. We know, as my noble friend has said—I am grateful to him for putting down this Motion and giving us the chance to debate it—that 50% of FT applications fail to satisfy Monitor that they should be accorded FT status. It is worth bearing in mind that to have got to Monitor, they must have been through the department as well and the SHAs. They would not have got to Monitor without going through some vetting process beforehand. So even after that process, 50% of them are failing when they get to Monitor. That is a pretty high failure rate, given that we already have a vetting system.
We need to think a bit about what causes them to fail. The Explanatory Memorandum was rather kind about some of these reasons. The main reasons why they fail, wrapped up in terms like “governance”, is that they do not have a credible business plan in the circumstances that the new foundation trusts will face to be an organisation that is viable and sustainable clinically and financially. Their business plans are often simply not credible. That has been a longstanding problem for many of those that have failed at the stage of going to Monitor. At the root of that problem is the fact that they have tried to put in place a set of service configurations that are not economically or financially sustainable and, in some cases, are not clinically sustainable either.
In those circumstances, what is the magic dust that the new authority will bring to this set of circumstances that will resolve these problems—and not just over the long term? I will come to the timetable in a minute, which my noble friend eloquently outlined. What is the new ingredient that this authority will bring to the party which is lacking in the present arrangements, which have a 50% failure rate when the trusts reach Monitor? Why and how is a new body going to do things differently? I would like to hear from the Minister what the new ingredients are that we will get from this body that will produce a real improvement in the number of FTs going through the foundation trust application process.
In particular, will it have the authority to push local people on reshaping and reconfiguring services? Many trusts in the 108 that have not made it through the Monitor hoops will fail because they are not going concerns in commercial terms, either clinically or financially. Will the body actually provide the leadership to shift and change the configuration of services at local level to produce more viable applications? Or will it just be a body that pushes for mergers and hopes for the best? The track record on mergers in the NHS is not a good one on reshaping services. They tend to be expensive, difficult to do and time consuming. We need more explanation from the Minister than is in the Explanatory Memorandum about what the new approaches will be from this body that justify setting it up and that will produce change.
I want to say a few words about London in particular. Among the 100 or so trusts that have not made it to FT status are some powerful players with international reputations, such as Imperial College, Barts and the Royal London. These are international bodies that have still not made it through the foundation trust application process. Will the new development trust have the authority to look around in London and answer some questions about why these powerful trusts have not been able to get through the process and satisfy Monitor that they can become foundation trusts?
Turning to a slightly different part of these regulations, I notice that the Government are now required to set up a replacement, in effect, for the NHS Appointments Commission. It is extraordinary that we should have spent time in this House getting rid of the Appointments Commission and then find that we have to set up another health authority to do its job. Why have the Government changed their mind on this? I understood the argument to be that the Health Secretary wanted to ensure that the right and appropriate people were appointed. What has caused the change of heart since the Public Bodies Bill and the department’s own arm’s-length body review to cause them to require these old functions on appointments to be put into this new body, which is a considerably different set of functions from strengthening the FT pipeline?
A couple of areas in the Explanatory Memorandum are very difficult to understand. This issue impinges on the timescales that my noble friend outlined. Paragraph 31 quotes the recent NAO report, which identified 139 foundation trusts established since the 2003 enabling legislation was passed and 108 trusts that have not made it yet. But if we compare that with paragraph 19 of the impact assessment, we find that,
“only by exceptional agreement made after close scrutiny of financial and clinical feasibility will they be allowed to continue in existence past this date”.
That date is April 2014. If we discount the 20 or so trusts that have been accepted by the Government as non-viable as foundation trusts, we are left with 88 trusts that are somehow going either to become foundation trusts by April 2014 or, in the wording of paragraph 19, they will not be allowed to continue in their current existence.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Lord Newby
My Lords, I strongly support the noble Lords, Lord Patel and Lord Noon, in seeking to promote the role of the not-for-profit sector within the NHS, as indeed I do across the whole of the public sector. They have given reasons why within the NHS, particularly at this point, the not-for profit sector can play a valuable role. As the noble Lord, Lord Patel, pointed out, there are a number of serious technical problems facing the sector in successfully bidding for contracts, and he has dealt with some of them.
I remind the House that least week Royal Assent was received for the Public Services (Social Value) Bill which requires all procurers, including those in the NHS, to consider the social value of a tender as well as its financial value, in such explicit terms, for the first time. This is one of the pieces of the jigsaw which I hope will mean that the not-for-profit sector finds it easier to successfully bid for business. The Bill lays a requirement on the public sector, but the problem is whether the public sector will implement the Bill and take the provision seriously. It would be relatively easy for it not to.
Therefore, I and other noble Lords, including the noble Baroness, Lady Thornton, who have been supportive of this principle and the Bill, seek to ensure that the Government put in place specific measures to ensure that procurers take account of the Bill rather than it simply lying idle on the statute book. When we debated this issue at an earlier stage in your Lordships’ House, the Minister suggested that it might be possible to refer to this in the draft commission of procurement regulations, and I hope that he will be able to confirm today that that is the Government’s intention.
Lord Warner
My Lords, I commend the Government on making a move in the right direction with these amendments. At earlier stages in the Bill, I tried to raise the whole issue of barriers to entry for new providers of services. This amendment helps in some respects but the noble Lord, Lord Newby, made an extremely important point. How will we know whether the culture has changed not just in relation to not-for-profits and social enterprises but for new providers, sometimes from inside the NHS? There is a deep conservatism—with a small “c”—about how the NHS goes about allowing new players to come into the game. We need the Government to give assurances that they will keep a close eye on this. As I put forward in a previous amendment, they must get Monitor to keep a close eye on the extent to which anti-competitive behaviour by the existing NHS stops new providers from whatever source—not-for-profit, social enterprise, charities, the private sector and from within the NHS—being able, when they offer a better solution to patients’ problems, to make their pitch for an alternative way of doing business.
Baroness Cumberlege
My Lords, Amendment 56 is simpler than the amendment I tabled on Report but it is necessary because I need some undertakings. I know that other noble Lords also seek those. The amendment concerns Public Health England. Both amendments found favour across the House in the previous debate, as I hope Amendment 14 will in this one. I thank noble Lords who have put their names to the amendment. I know that the noble Lord, Lord Turnberg also wished to put his name to it, but there was no room on the Marshalled List.
As I said, the amendment concerns Public Health England, the new body that is destined to take on the duties of the Health Protection Agency, the cancer registries, the National Treatment Agency, the Public Health Observatories and some of the functions of the regional directors of public health and their teams. The staff of Public Health England will number around 4,500 people, so it is an important and considerable agency. The original proposal was that the organisation should be governed by a civil servant acting as the chief executive, without a board to whom he or she would be accountable. It was a model that many of us found very strange and thought unworkable.
At the meeting we had with him and later in correspondence, my right honourable friend the Secretary of State made it clear that he values an unobstructed line of accountability between the individual charged with the day-to-day running of Public Health England and him. However, he agreed in his letter, which I received on 15 March, that Public Health England,
“needs an appropriate level of operational independence for it to be most effective”,
and that,
“it will be essential for it and the Government as a whole to work together seamlessly and to share a common agenda”.
He went on to say:
“I do accept that, if PHE is to achieve our ambitions for it, the chief executive and the Secretary of State should be seen to be subject to frank and expert challenge. To help deliver that challenge I propose to appoint a chair for PHE, through an open and fair competition under the public appointments process, and I will ensure that the PHE board has a majority of non-executives members”.
Later, he refers to them as non-executive members, rather than directors, so I seek an assurance from my noble friend Lord Howe that we are talking about directors and not members. Perhaps he will confirm this.
The board will advise on the running and development of Public Health England but my right honourable friend states that he has not yet had time to consider details of this aspect of the chairman’s role. Once the chief executive post has been filled, he will discuss the overall governance structure of PHE. He will want to make sure that the expertise and experience of the chair will complement those of the chief executive and other senior PHE staff. He goes on to say:
“The essential point is, that we need to design a role for the chair that is significant enough to attract a high quality, respected candidate without diluting the responsibility of either the chief executive or the Secretary of State”.
It is very much my wish that he should involve me further in these proposals. He says that he will write to me, but I should very much like him not only to write but perhaps to seek my views on this aspect of the organisation.
In his letter the Secretary of State writes:
“The chair and non-executive directors will have direct access to Ministers through regular, and if necessary ad hoc meetings”.
I very much welcome that. He goes on:
“They will also have editorial control over a section of PHE’s annual report”.
Could my noble friend tell me what “section” means in this context, as he will know that the annual report will be a crucial document and should be honest and unfettered in its analysis of the nation’s health? He continues:
“The annual report will reflect feedback from external agencies and individuals who have significant dealings with PHE … and PHE data will be subject to the code of practice on official statistics, which severely restricts access to certain material by officials or Ministers before release”.
Although I very much welcome this, I wonder whether my noble friend could give me an assurance that Public Health England staff will be able to give professional advice freely to the public. Since they are employed by an executive agency, they will be civil servants—subject to Civil Service contracts and bound by the Civil Service Code. They will be able speak out only if what they plan to say is departmental policy and has been approved by Ministers.
If PHE is to be the voice of public health, as we hope it will be, it will need to be able to advise the public and other professional bodies. The experts and specialists working in the executive agency will on occasions need to give professional advice that has the confidence of the public without its necessarily having been approved by the department.
Public health specialists employed by the NHS Commissioning Board or a local authority will have the freedom to speak out—of course within their professional code of conduct. I am not seeking for the amendment to be placed in the Bill but an assurance that this difficult tension will be addressed.
In earlier debates, the noble Lords, Lord Warner, Lord Patel, and Lord Turnberg, voiced their strong concerns about the commissioning and conduct of research by PHE—in particular, its ability as regards research funding for external organisations. I am sure that those noble Lords will seek assurances on this.
My right honourable friend the Secretary of State writes that he accepts the importance of the issue and will publish a more detailed description of PHE’s role in research, including its relationship with academic institutions and other agencies. I am delighted that he is happy to involve me and, I hope, other noble Lords with the Chief Medical Officer in further discussions on this issue.
We have come a long way since Committee in designing a much more robust and satisfactory national board to undertake responsibilities for public health. Public health is sometimes seen as a side show in the maelstrom of issues that dominate the provision of NHS services but it contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life, and nothing can be more important than that.
The Secretary of State has throughout sought to make public health centre stage, and I pay tribute to him for his commitment and determination, and thank him for listening to and acting on our suggestions. My noble friends Earl Howe and Lady Northover have been equally diligent and generous with their time in meeting our concerns. I know that the noble Lord, Lord Beecham, and others would have preferred there to be a special health authority. I can understand their wish, but the flexibility that an executive agency gives us might be useful in the future. The Secretary of State has promised post-legislative scrutiny of the Bill, specifically to consider whether PHE would be better served by a different arrangement or a better organisational form. I welcome that.
I have quoted fully and, I suspect, rather boringly from the letter sent by my right honourable friend the Secretary of State because it is very unlikely that my amendment will be in the Bill. I therefore need a record of the changes that have been promised. I do not doubt for a moment that there is any intention to renege on these undertakings, but I know how easy it is for things to go astray. I am therefore anxious to get as much as I can into the pages of Hansard as a reference for the future. I very much look forward to hearing the views of other noble Lords and my noble friend’s reply. I beg to move.
Lord Warner
My Lords, I have put my name to the amendment and pay tribute to the hard work put in by the noble Baroness, Lady Cumberlege, on making progress in this area. It has occasionally seemed a little like trudging through the Somme mud, but we have made some progress. I share her view that we want to hear at length from the noble Earl about the assurances promised by the Secretary of State, particularly on the governance issue.
I want to raise in a little more detail the issues in paragraphs (b) and (c) of the amendment, regarding the ability of Public Health England to undertake and publish independent research and to bid for research funding from any source. This remains an unresolved issue. The dialogue is continuing in the Department of Health because in November a joint working party was set up between the Health Protection Agency, which is being abolished, and the department about the research activities of the new Public Health England. I remind noble Lords that this is particularly significant because at stake is the large sum of money that the HPA, as a non-departmental public body, raised for research, its own funding of research, as well as the scientific independence and excellence of its staff. There has been a great deal of concern that creating an executive agency with civil servants would make it difficult for that research quality and volume to be maintained in the new world.
Despite the Health Secretary’s assurances, concerns emanating from within the current agency remain around whether things have really been sewn up in terms of the ability of PHA, within the resources available to it, to control its destiny in the future and to go out to seek the research contracts that will enable it to meet the threats and concerns about public health that may have to be faced.
The nub of this issue comes down to a simple matter that I should like to leave with the noble Lord and on which I ask him to provide assurances. My understanding is that the problem at the moment is that the department has taken funds from the Health Protection Agency and Public Health England and made them available only for academic partnership research projects. The concern is that this might lead to Public Health England being prevented from carrying out research if that was not flavour of the month in academic institutions. There could be conflict between the concerns of academics to pursue partnership research and the real needs that the scientists within Public Health England consider to be in the public interest in terms of the research agenda to be followed. That is the main unresolved issue causing concern to the scientists within the Health Protection Agency staff who are soon-to-be-transmogrified into Public Health England.
The more assurances that the noble Earl can give the more they will satisfy not only the signatories to the amendment but the future employees of Public Health England who are to transfer as scientists to the new organisation.
Lord Warner
I am sorry to interrupt the noble Earl. I waited patiently until he had been through the research arguments but I am still not clear. He said earlier that Public Health England would be master of its own destiny in terms of research. The point that I and, I think, my noble friend Lord Turnberg were making was that, if it comes to a tussle between PHE and the National Institute for Health Research over doing research which PHE considers to be in the public interest but there is no academic partner to undertake that research, will PHE’s mastery of its own research destiny trump the attempt by the National Institute for Health Research to impose partnership working on the research agenda? That is the issue that I was trying to talk about and which I think my noble friend was also talking about.
Earl Howe
My Lords, although I understand the noble Lord’s question, I do not think that I can answer it at the moment, and I am sorry to disappoint him. My advice is that we do not think that partnerships will be necessary in all or every case for Public Health England. Whether the NIHR can insist on trumping the operational independence of Public Health England is not a question that I can answer very readily. The main point is that research would not have to be jointly conducted. The Secretary of State has the power to carry it out on his own. That means that, if there were a tussle between two priorities, the Secretary of State could insist that a certain programme should be prioritised. I think that that is probably as far as I can go in answering the noble Lord at the moment.
My noble friend Lady Jolly asked me some general questions about lines of accountability. I hope that she will have gathered from my remarks today that Public Health England will be accountable directly to the Secretary of State in the first instance. Directors of public health will be joint appointments between local authorities and the Secretary of State, although they will be local authority employees and directly accountable to the authority chief executive. It goes without saying that close joint working between PHE and local authorities will be crucial.
My noble friend’s amendment and the powerful way that she has argued for its objectives are a tribute to her and to the noble Lords who have supported her. I believe that I have responded positively to each point that the amendment seeks to establish and that that response can be made comprehensively without amending the Bill. That remains our strong preference. I hope very much that my noble friend is sufficiently reassured by the commitments that I have made today to withdraw her amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Lord Warner
My Lords, I support my noble friend’s amendment. As a Minister, I, too, had responsibility for the NPSA and I was responsible when we introduced the reporting system. It is easy to forget how difficult it was to secure agreement across the NHS to that reporting system. There was a great deal of nervousness about it and it has certainly taken time to build up the confidence, across the country, that ensures that most service providers are now engaged with reporting these incidents. If we put that reporting system under a powerful body that is responsible for commissioning, there is a real danger about maintaining the support for the level of reporting that we have achieved. There is a risk that, without a few more safeguards in the arrangements, we may see a dropping off in the reporting of those incidents. Providers will be nervous about how commissioners will interpret the reporting of those incidents. That is the nub of the issue. I think we have a real problem about how we can carry on building on the good work done by the NPSA on that reporting system and ensuring that we continue to give confidence to the NHS to report these incidents in the service of the greater good. I am interested to hear what the Minister has to say about protecting the gains that we have made so far in this area.
Baroness Finlay of Llandaff
My Lords, I speak in support of what has been said by the noble Lord, Lord Warner. There is real anxiety that people will be frightened to admit to and report errors, if they feel that that could threaten, in any way, the contracting of the service that they are working in. Who in the new system will be responsible for rolling out training that has come from the cataloguing and analysis of problems, and how will the lessons learnt in devolved nations be fed into the system for the UK as a whole. Indeed, how will lessons learnt in England be fed out to the devolved nations?
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Lord Warner
My Lords, I have been puzzling about the practical effect of this particular amendment. I will pose a number of questions to the Minister but also to the movers of the amendment. In the real world, which some of us occupy, it has always been the case that, as we live in a democracy, people can use some of their disposable income to get diagnosis of a condition as quickly as possible. Sometimes, in some parts of the country, the NHS is unable to provide that diagnostic service as quickly as some people might want it. They are entitled as citizens to use their disposable income to, for example, get an MRI scan after a sports injury or where they suspect that elective surgery may be needed.
In those circumstances, they may be under the jurisdiction—if I may put it that way—of a consultant who works in the NHS and also has a private practice. Again, there is nothing evil about private practice. It was enshrined in the 1948 legislation by a Labour Government. This kind of conundrum has been around for some time. However, the technology has moved on with things such as MRI scans. You can often accelerate the diagnosis of a person’s condition. I welcome being corrected on this and seek the Minister’s guidance, but, as I understand it, if I as a citizen get my MRI scan from the guy near Waterloo station, that is usually at a unit price a bit lower than the cost to the NHS.
I would like to finish my line of argument. I can see that the noble Lord, Lord Phillips of Sudbury, is ready to pounce on me for daring to challenge this, but I listened patiently to his line of argument and would like him to listen patiently to mine before he bursts in. I am happy to take an intervention in a minute, but let me first deploy the argument.
Let us say that I get my MRI scan and am aware of a consultant in an NHS hospital who can respond to my sports injury—a fanciful thing, given my age—and this consultant is practising in a foundation trust but also has facilities to practise in a private hospital. I may be quite badly injured, with a cruciate ligament injury. What happens under this amendment? Does it mean that the only safe thing for the consultant to do, in case he gets called up before the GMC, is to treat me, however urgent my case is, in the private hospital? Or does he, despite his clinical judgment, have to seek the approval of the foundation trust management and compare me against all the other people who may be on the waiting list? Let us be real—waiting lists will be rising as we move through the kind of financial circumstances that the NHS faces. If we make this amendment to the Bill, those consultants will be put into a rather difficult position in those kinds of circumstances, which are not fanciful. That is a question for the noble Lord, Lord Phillips of Sudbury, but I would welcome the Minister’s view as well.
Baroness Pitkeathley
My Lords, I wish to speak in support of the powerful case made for the independence of HealthWatch England by the noble Lord, Lord Patel, and by noble friends on these Benches. It is a mystery to me why, in the face of a genuine commitment by successive Governments to public and patient involvement, we have made such a mess of it thus far. I am not one who looks back on the work of community health councils as some kind of nirvana. As someone who was briefly a chief officer of a CHC, I know that they were very patchy and variable in quality. However, they had a strong national voice, and I pay tribute to my noble friend Lord Harris of Haringey in that regard.
Since then, we have struggled. I think that the failure of the Commission for Patient and Public Involvement in Health has made successive Governments frightened of setting up one of these national organisations. It has put them off having a national body to support local groups, to help them to develop successfully and to help them when they are in difficulties, as well as provide a national, challenging voice for patients. Will HealthWatch England, as currently envisaged, be this missing national body? I am afraid that at present the answer is certainly no. As a committee of the CQC—an organisation for which I have the highest regard—it will not be independent or accountable to the patients and public it represents, and its links with local healthwatch organisations, which we will discuss later, will be very variable and often not sufficiently robust for them to be in full receipt of the amount and range of information that they need. We simply must have a proper governance structure with an independent, publicly appointed chair. Surely the independence of the whole organisation is essential to how it will provide the strong voice for patients that everyone involved say they want.
Lord Warner
My Lords, it gives me great pleasure to follow that sterling contribution by my noble friend Lady Pitkeathley. The real problem with the Government’s approach is that they really have not properly defined the functions of this body. One of the great strengths of this amendment is that it sets out what the functions of a truly independent body should be in this area. I make no defence of the previous Government’s attempts to wrestle with this idea, but I think that we have continued to go backwards in this area since the days of community health councils, despite their patchiness.
I was very optimistic when the Government made their first announcements about healthwatch, and I was a great supporter of the brand name that they had created, which I thought was very powerful. Unfortunately, the functions that they have given it and the way they have set it within the CQC do not enable it to live up to the strength of that brand.
I was full of admiration for the creative way in which the noble Baronesses, Lady Cumberlege and Lady Jolly, loyally tried to make the sow’s ear a bit more of a silk purse. However, it really does not cut the mustard. I think that we need to pay attention to the points made by my noble friend Lord Whitty, who emphasised very well the extent to which the model that the Government are pursuing has failed in a number of other areas of public policy. The Government should learn from that evidence and rethink this matter before we get to Third Reading.
I have one other point which concerns the rather spirited exchange that we had in Committee with the noble Baroness over the issue of campaigning. I shall return to that for a few moments. The whole point of having a body like healthwatch is to enable it to join forces with other people when there is a serious challenge to the public interest and to patients’ interests in this area and allow it to campaign. I cannot see how it can be very easy for a committee of the CQC to join in that campaign. I asked the noble Baroness whether it would be able to campaign and, to her great credit, she said that yes, it would. Most of us who have knocked around the public sector for any length of time would find it very difficult to believe that a committee of the CQC would be able, despite what the noble Baroness says, to join in a campaign that was highly critical of the CQC. We need to be clear on whether it can campaign; and if it can, I would like, as the noble Baroness said, a very convincing explanation of how it will be able to when it is sitting within the structure of the regulator and it is the regulator's deficiencies that it is campaigning against.
Baroness Murphy
My Lords, I hope I shall be allowed to put a contrary point of view to that of the noble Lord, Lord Warner, and those who have tabled Amendment 223. First, I apologise for not contributing in Committee on this area; I happened to be away during the debates on this, but I read the reports with much interest.
This area of patient and public involvement is one that, as many noble Lords have said, we have struggled with for many years. I hark back to the CHCs with some nostalgia. They were a very mixed bag of organisations, but those that were good worked very effectively. I too pay tribute to the noble Lord, Lord Harris of Haringey, for the work that he did in supporting CHCs around London, which made my life an utter misery, as they were intended to do. I am very grateful for that.
Unfortunately, the arrangements that were put in place after their abolition have not worked. I say to the noble Lord, Lord Whitty, who is very persuasive in his arguments, that we have been there, done that and it did not work. As the noble Baroness, Lady Pitkeathley, said, the Commission for Patient and Public Involvement in Health was a total disaster. It was an extremely expensive quango—it was bureaucratic, totally isolated from other health bodies, the Department of Health did not know what it was up to and I do not think it knew what it was up to itself. It fell out with all the local patient and public forums. It was a disaster. It did not have any symbiotic relationships with those who make the health and social care services work; it was not in any way linked in with local authorities, which is a huge difference from these arrangements; and it seemed to me then that you had to have a structure in which all the core patient and public involvement organisations locally were crucially interlinked with what makes things work.
Baroness Northover
No, I am going to continue, and if there are things that need to be dealt with at the end, I shall deal with them. It is also important that local healthwatch is able not only to provide information to HealthWatch England but to influence HealthWatch England’s actions on matters raised locally that may have national importance. Various noble Lords made that point and they were quite right. We therefore welcome, and will support, the amendments of my noble friend Lady Tyler.
Lord Warner
Are we allowed under the Standing Orders to hear the question of the noble Lord, Lord Harris? I would very much like to know what his point is.
Baroness Northover
If I wish to continue with the thrust of my argument—as the noble Lord, Lord Warner, said in the previous debate—I can do so. At the moment it is better if I lay out my argument. If there are points of clarification that noble Lords want an answer on, I will be very happy to give way when I have completed my argument.
We welcome and support—
Baroness Northover
The noble Lord, Lord Warner, wished to continue his argument against my noble friend Lord Phillips, and he did continue his argument.
Government Amendment 226ZG will enable HealthWatch England—
Lord Warner
May I just correct the noble Baroness? I actually anticipated that the noble Lord, Lord Phillips, was going to jump up. I did not stop him jumping up. He chose to withdraw.
Baroness Rawlings
May I just remind the noble Lord that the Companion sets out that a Member shall not speak twice on an amendment on Report.
Baroness Masham of Ilton
My Lords, I also have my name to the two amendments in this group. Children need protection and the support that my noble friend Lady Finlay has just talked about. So much more should be done for children, but the big problem is that they fall under so many different departments which are far too isolated. I am thinking now of the young people who are at risk from drugs and alcohol. I went to a presentation last week where there were photographs up of young children who had died from a combination of drugs and alcohol. So much should be done.
I hope that the Minister will answer my question from the previous debate about children and the risks that they face, taking Baby P as an example. Again, many departments came in and he fell through the net: health, the police, child protection and local authorities. They should be working together for children. We really need to protect them.
Lord Warner
My Lords, I speak from a background of having been a director of social services and being involved in reforming youth justice. Collectively, the adult world is very bad at representing the needs of children to service providers. It would be a modest but important change in this legislation if we brought out that the term “people” does include adults and children. A lot of people in the adult world simply assume that “people” means “adults” and does not mean “children”. We see in the NHS, for example, particularly for the teenage years, that services are often provided in a way which is almost bound to deter engagement and involvement by young people in receiving those services and in dealing with some of the problems that they have.
We need to change the culture. We must ensure that in the new healthwatch system—whether it is the one that some of us would have liked or the one that there will actually be—people are sensitive to the needs of children, particularly at the local healthwatch level, and that those needs are not overlooked. It is not just a matter of making children feel better and that they are being listened to. It is actually about how we can get the services shaped to head off at a much earlier stage some of the trouble that is looming for many of these children, in terms of obesity, drugs, sexual health and unwanted pregnancy. I hope that the Government will listen sympathetically to this and move the kind of amendment that my noble friend Lady Massey has moved so ably.
Lord Low of Dalston
My Lords, I cannot speak with anything like the authority of the noble Baroness, Lady Finlay. Few of us can. The noble Baroness, Lady Massey, has obviously been working off the same brief that I have been looking at, so there is little that I can add to what she said. However, I was struck by the research findings that she told us about, which make clear the lack of attention that is paid to the involvement of children. I note also that there were concerns expressed around the involvement of children in patient and public voice mechanisms in the NHS. These concerns were reflected in the report of the Future Forum. Therefore, I think there is every reason to make the involvement of children explicit on the face of the Bill.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Lord Warner
“PART 2AStandards of adult social careSecretary of State duty as to the standards of adult social care
(1) The Secretary of State shall have a duty to secure the improvement in the quality of adult social care services through local social services authorities and qualified service providers registered with the Care Quality Commission.
(2) In discharging this duty, the Secretary of State must ensure—
(a) the establishment of a fair and resilient partnership between individuals and the state for funding adult social care that—(i) secures adequate funding to deliver safe and sustainable services,(ii) provides access to these services for those of limited means,(iii) caps the financial liability to pay for services for those with unusually high lifetime care costs,(iv) minimises the impact on the demand for health services,(b) that the assessment of the needs of individuals and their carers for services is undertaken on the basis of published criteria for eligibility to and charging for services that applies consistently throughout England,(c) that continuing efforts are made to reduce barriers to the delivery of integrated health and adult social care to individuals and through the conduct of commissioners and providers of both health and social care services.(3) The Secretary of State may, after appropriate consultations, make regulations governing the discharge of his duties under subsections (1) and (2), subject to affirmative resolutions in both Houses of Parliament.”
Lord Warner
My Lords, we return to the issue of adult social care, which is a good occasion for seeing a massive emptying of the Chamber. In very simple terms, the amendment is an attempt to get the Bill to live up to its title and become a genuine health and social care Bill.
Subsection (1) of the proposed new clause would place a clear duty on the Secretary of State to secure improvement in the quality of adult social care through the offices of local government and qualified service providers. It would make the Health Secretary pay proper attention to adult social care in a similar way to the way in which he is under a duty to ensure a comprehensive health service under other provisions in the legislation.
Subsection (2) of the proposed new clause identifies the key elements that the Secretary of State must pay attention to in discharging the duty in subsection (1). These are: adequate funding for safe and sustainable services; access to services for those of limited means; a cap on the financial liability of those with high lifetime care costs; and minimising the impact on the demand for health services. It also introduces national eligibility criteria for services across England and standard charging policies. That was argued for overwhelmingly in the evidence to the Dilnot commission, of which I was a member. In subsection (2)(c), a further push is given to the integration of health and social care in line with the recent report on social care by the Health Select Committee in the Commons.
What is to argue against in these provisions? Today, we see a lobby of Parliament by the Care and Support Alliance to secure action on delivering a more sustainable adult social care system instead of the underfunded and unsustainable system that we have now. This alliance is overwhelmingly in favour of implementing the framework in the Dilnot commission report in order to deliver a resilient and sustainable financial framework for adult social care. There is legitimate room for debate on the precise details of that framework, especially the level of the cap proposed by Dilnot. I for one would accept that we should start with a higher cap than the commission’s preferred option of £35,000, but there is nothing in this amendment that limits the Government’s freedom of manoeuvre on these details or on the speed of implementation. Nor does it frustrate the achievement of cross-party agreement in the cross-party talks now taking place. However, I see little evidence of those talks progressing very fast, with an isolated and politically wounded Health Secretary lacking any Whitehall-wide support, especially from the Chancellor, for doing a deal with the Opposition.
The amendment would get the Government out of a jam. They can implement Dilnot and anything else that they want to propose in their forthcoming White Paper without a new Bill next Session. Subsection (3) of the amendment would give broad powers to use affirmative regulations after appropriate consultation. I can see that after the failure of the Government to provide a convincing political narrative on this current Bill, the Prime Minister might not want to launch another Bill from Richmond House in the next Session. Therefore, ever sensitive to these political considerations, I offer him an exit strategy without neglecting the serious needs of adult social care and the people who need those services.
We all agree that the funding of adult social care is in a parlous state; there is broad stakeholder support for the Dilnot-proposed framework. We all recognise the dependence of the NHS on a robust adult social care system, without which the NHS will surely fail to deliver the efficiency gains required of it. We all want to see improved integration of health and social care, although the Government’s opposition to my amendment on integration last week was disappointing, especially the conduct of 17 Liberal Democrats who voted against it. However, I say to Lib Dem colleagues that today is your chance to make amends. If you want to go to your spring conference trumpeting your success in saving the NHS, you will support the amendment. You had the courage to insert in the coalition agreement the establishment of an independent commission. I pay great tribute to you for doing that. Now have the courage to put into this Health and Social Care Bill the means to implement the adult social care changes that are so badly needed.
I have low expectations of the Minister being willing to accept the amendment because I suspect that his hands are tied by those in a higher pay grade. However, if he is willing to take this amendment away and come back at Third Reading with something equivalent, I will not press matters today. If he is not, we owe it to the outside world, especially the stakeholders lobbying Parliament today, to show where people stand on tackling the crisis in adult social care and protecting the many vulnerable people affected by that crisis. I beg to move.
Earl Howe
The noble Baroness may not have been following all our debates as closely as some, given that we have extensively debated integrating health and social care and how the Bill will improve the prospects of that. I therefore do not agree that social care is such a poor relation in the Bill. She is quite right; of course its prime focus is health, but we have not completely neglected the subject that is so close to her heart.
Specific legislation on social care will be the most appropriate vehicle for debating these critical matters and achieving lasting reform. Of course I understand the desire of the noble Lord, Lord Warner, to keep social care at the top of the political agenda. That is greatly to his credit. I can assure him that the Government have not lost sight of this. We share the same aims for a high-quality service, but it would be wrong to legislate now in such a selective way. The noble Lord may suppose that this is just another instance of a Minister following the standard line that says “resist”, but I hope he will accept that that is not so. There are genuine reasons why the amendment is a bad idea, and I hope that he will feel able to withdraw it.
Having said that, I look forward to debating these issues with him further in due course, and to benefiting from the insight that he and others bring to this topic.
Lord Warner
My Lords, this is an interesting debate. Let me say to the noble Baroness, Lady Murphy, that I am not having the House on. I am deadly serious about this because when the Dilnot commission was set up we were asked to do a job extremely rapidly, and we did so well within the 12 months we were set. We were asked to do that so that the Government could crack on with change, which is absolutely vital. This service—adult social care—is in a parlous state that will also do enormous damage to the NHS. Unless you do something quickly about adult social care, you will cause the most terrible financial crisis in the NHS. That is what the demography tells us. That is the reality for urgent admissions to acute hospitals and people staying there much longer than they need to.
If you are interested in improving and safeguarding the NHS, you should be interested in rapidly moving on with the reform of adult social care. The Government are already behind time on this reform. I do not blame the noble Earl, but we were expecting faster action, as was the Dilnot commission. Spring could come quite late this year in terms of the White Paper appearing, and we have no guarantee that there will be legislation in the next Session. The noble Earl has stuck to the normal line, for which I do not criticise him, that one can give no assurances about the next Session’s legislation, but one has to be an extreme optimist to believe that a collective Government will want to have another go at this territory in the next parliamentary Session. I do not doubt his good will—I am grateful for the kind words he said about me—nor his real confidence that the Government will press on with that, but there are a lot of people out there, not just in front of Parliament today, who think that the Government need to go faster on this issue.
I have listened very carefully. The amendment does not prevent the Government from bringing forward new legislation in the next Session. If they want to do that, I shall be deeply delighted and they will have my support. I see nothing in the amendment that prevents the Government from making a start on making changes and protects them to go further if they want to include such provision in the next legislative programme.
I think we should make sure that adult social care is properly represented and recognised in the Bill. Therefore, I wish to test the opinion of the House.
Lord Warner
I speak to Amendment 164 in my name, which is in this group. It returns to the issue I raised in Committee: the need for Monitor to produce an early report on the barriers to entry for new providers of services to the NHS. Although he had sympathy with what I was trying to do, the Minister did not like my previous amendment, which would have required Monitor to produce a report within 12 months of Royal Assent on barriers to NHS entry to new providers. I think that he accepts that there are barriers to entry for new providers which we need to tackle. In this amendment, I have added the words “identifying and” to the requirement in Clause 61(3) for Monitor to prevent anti-competitive behaviour.
I recognise that many people in this House and in the Commons do not share my view on the virtues of competition when used selectively for patient benefit. I will not go over all the ground again, but I think there is good evidence—the noble Earl cited some of it in an earlier discussion—that that has proved beneficial to patients. Moreover, the UK is almost unique in large advanced healthcare systems in enshrining monopoly public providers of hospital services, with little challenge to their efficiency or effectiveness. These NHS monopolies have been very good at erecting barriers to entry for newcomers and ensuring—if I may put it as unkindly as this—a quiet life for monopoly incumbents.
We should be concerned about this. Only last week there were some startling statistics in the Health Service Journal about non-foundation trusts’ poor performance in achieving savings requirements in line with the Government’s targets. I have no problems with the Government setting those targets for non-foundation trusts to improve their efficiency. None the less, however we frame the competition provisions in this legislation, we have to face the fact that it is extremely difficult for new entrants to dislodge incumbents in many of these services where the performance is poor. That is why in my view Monitor should, after the Bill receives Royal Assent, quickly identify clearly existing barriers to entry so that they can be dismantled in the public interest. The Co-operation and Competition Panel has already identified some of the barriers for new entrants to the NHS market—and, again, I make no apology for talking about an NHS market. It is important that we see healthcare, in part, as a market where new providers can provide better services and different types of services more effectively.
I hope that the Government will look sympathetically at this modest amendment to try to get Monitor on the case of identifying barriers to entry.
Baroness Williams of Crosby
My Lords, I have two amendments in this group, Amendments 163C and 166B, which also stand in the name of my noble friend Lord Marks. However, before I address those relatively short amendments, I should like to say a word or two about the broader issues that we have been discussing. I begin by perhaps giving a little comfort to the noble Baroness, Lady Thornton, by saying that my understanding is that we will be discussing the whole issue of the relationship of Monitor to foundation trusts later in the proceedings. Our amendment on this matter, which is not far removed from hers, addresses an amendment to the government amendment on this issue, which itself comprises a considerable advance in the position that we have had up till now. I shall not try to get into that debate because it is complicated and I think that it would be better conducted a little later in the light of the various proposals.
I want to say a word about competition, and it is appropriate to do so given that the noble Lord, Lord Warner, has just been speaking. He has always spoken with some courage on this issue, which I recognise is not exactly popular with his party. However, I say quite directly that I feel very strongly that we have allowed the issue of competition to become quite different from the reality that we have encountered in the Bill, in this House and from the argument that is going on outside. That is because we have tried to treat competition as an absolute—either we have a competitive market for the National Health Service or we have no competition at all—and we all know that to be false.
We all know that there is a role for competition but the argument is about how limited it should be, what it should be addressed to and whether it is then balanced by, for example, equally strong duties in relation to co-operation, integration and the bringing together of services. I think we all recognise that competition can make a significant contribution in innovation and bringing in new ideas. For example, we have only to look at the recent developments in the treatment of stroke victims and victims of heart conditions to see that there has often been an innovatory role for the private sector. However, many of us also believe, as I certainly do, that the National Health Service should continue to be primarily a public service, that it should be available free of charge and that it should be accessible to all. Therefore, competition must exist but essentially it must be balanced by other considerations which, in the case of what we have been discussing recently, are clearly of great significance—particularly the role of the integration of services and the role of co-operation, which in terms of our main priorities, including the care of the elderly, are absolutely central and crucial.
Baroness Cumberlege
My Lords, I support this amendment, which is in my name and those of the noble Lords, Lord Patel and Lord Warner. The noble Lord, Lord Patel, has introduced it with his customary elegance and clarity. I can see no reason why these amendments should not be made. Bearing in mind that the noble Earl was so generous to me earlier when we included HealthWatch in another amendment, I live in great hope.
Lord Warner
My Lords, I, too, support this amendment. Since the noble Earl was so beastly to me over social care, I hope he will actually support this amendment.
Baroness Finlay of Llandaff
My Lords, the government amendments are indeed welcome because they reflect concerns that have been expressed. I am sure that all those who expressed those concerns are grateful.
The amendments in my name in this group relate to education and training. I know that we have somewhat threaded education and training through the Bill at all stages. Amendment 192 relates to considering education and training when setting licence conditions, and I put “education and training” because in addition to education, staff training at every level is essential.
I hope that the Government will support the view that no organisation should be fit to provide services if it does not ensure that its staff are being kept up to date and if it is not providing an environment from which people can learn. This does not mean that they all have to be recognised educational providers.
Amendment 196 in this group relates to indemnity. This amendment has been tabled again because, despite the response that we were given in Committee, concerns continue over indemnity for patients. Should a patient develop a problem subsequent to a provider going out of business, they should be covered by indemnity. It is interesting that we have the Legal Aid, Sentencing and Punishment of Offenders Bill in parallel with this Bill. We have concerns over legal aid for medical negligence. I have attached my name to amendments to that Bill concerning legal aid for the victims of clinical negligence.
I hope that the Government will see that there is a need to have indemnity within services, whoever the licensed provider is. There should be a read across to the protection of patients in the event of something going wrong or being done wrong that has harmed them, particularly if they have been harmed in such a way as to incur ongoing costs for healthcare and social care as a result of the problem that arose with the provider, whether it be a voluntary sector provider or a private provider.
Lord Warner
“Notification of commissioners where continuation of services at risk
(1) This section applies where Monitor—
(a) takes action in the case of a licence holder in reliance on a condition in the licence under section 98(1)(i), (j) or (k), and(b) does so because it is satisfied that the continued provision for the purposes of the NHS of health care services to which that condition applies is being put at significant risk by the configuration of certain health care services provided for those purposes. (2) In subsection (1), a reference to the provision of services is a reference to their provision by the licence holder or any other provider.
(3) Monitor must as soon as reasonably practicable notify the National Health Service Commissioning Board and such clinical commissioning groups as Monitor considers appropriate—
(a) of the action it has taken, and(b) of its reasons for being satisfied as mentioned in subsection (1)(b).(4) Monitor must publish for each financial year a list of the notifications under this section that it has given during that year; and the list must include for each notification a summary of Monitor’s reasons for being satisfied as mentioned in subsection (1)(b).
(5) The Board and clinical commissioning groups, having received a notification under this section, must have regard to it in arranging for the provision of healthcare services for the purposes of the NHS.”
Lord Warner
My Lords, I shall speak also to Amendment 214G which stands in my name. The amendments arise from our debate in Committee about what we then described as a “pre-failure regime”. The argument that I was trying to sustain, with helpful support from different parts of the Committee, was that it would be better for Monitor to get engaged when it could see failure coming at it down the track rather than waiting for the train crash to occur and use the health special administration procedures that were provided for in the Bill.
My amendment then was probably technically defective but it served the purpose of raising the issue. The Minister was not so off-putting that I thought that I would not have another go at this, so, with the help of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams of Crosby, I put down Amendment 217, which is in this group. Following that, the Minister engaged with me in some rather helpful and fruitful discussions and the results of those discussions were Amendments 196ZA and 214G. In my enthusiasm for tabling these amendments I completely forgot to remove Amendment 217, which is why it is still on the Marshalled List. I assure the Minister that I have no intention whatever of moving Amendment 217.
The nub of what is in Amendment 196ZA is that it provides for Monitor when it can see that a licence holder’s conditions are likely to be imperilled by a current configuration of health services in the wider health economy—not just within that licence holder’s own individual trust. It can draw the attention of commissioners—the national Commissioning Board and clinical commissioning groups—to those risks which it can foresee and it has to give its reasons for doing so. But rightly in my view and, I believe, that of the Government, it puts the onus on the commissioners to do something about it. It does not require a top-down intervention, but it flags up very seriously to the commissioners that a problem is looming and they need to do something about it. Just to give more force to that, each financial year Monitor will publish a list of the notifications that it has issued in that financial year, putting commissioners on notice that they have a problem, that they need to do something about the reconfiguration of services and that they need to take some action to ensure that there are sustainable NHS services in that part of the country.
I pay tribute to the civil servants at the Department of Health because they have done something rather ingenious that I never even thought of in Amendment 214G, which is to take an application by a service provider to Monitor to secure some adjustment in the price paid for particular services to make Monitor think about whether there is anything more significant behind that application and whether there is a risk to the sustainability of services in a particular area. If it does consider that that is necessary, it can again notify the commissioners of its concerns about the need to consider service reconfiguration in that area.
These two amendments, which have been given a lot of technical help by the Department of Health and a lot of support from the Minister, meet my concerns and, having talked briefly to the noble Baroness, Lady Williams of Crosby, I believe that they also meet hers. There is an adequate set of arrangements to put commissioners on notice that failure may be looming so that they can take action under their responsibilities. Just to make sure that they do, each year there will be a list of the notifications that Monitor has issued so that it is on the public record that Monitor has spotted that there is something of concern and has required commissioners to take action.
That meets my concerns and I think that it meets the concerns of the noble Baroness, Lady Williams of Crosby and the noble Lord, Lord Patel. In order to table the amendment in time for today’s debate, I did not have time to collect the signatures of my partners in crime on Amendment 217, but I have every reason to believe that they would be satisfied with the Government’s response to our concerns.
With regard to subsection (5) of Amendment 217, which I have mentioned to the Minister, I think it would be a good idea if the Government were to consider assembling a group with expertise to help local people to reconfigure their services. It is often difficult for people at the local level to think through how they might reconfigure services to make them sustainable. I do not suggest a top-down approach but some sort of panel that could help local people and facilitate the reshaping and redesign of services. That would be a helpful way of proceeding. It might help a lot of people to get through the difficult task of reshaping services when the need arises. Without further ado, I beg to move.
Baroness Williams of Crosby
My Lords, my intervention will be extremely short. I am delighted that the noble Lords, Lord Warner and Lord Patel, put down this proposal for what one might describe as precautionary failure. We were very concerned that there might be no regime that would enable services to continue because one had seen in advance the possibility of a particular place getting into a great deal of trouble. This is a very satisfactory proposal to put before the Government to deal with the continuation of health services for an area, even when those services get into difficulties.
I also strongly commend the proposal of the noble Lord, Lord Warner, about the small group of local people. That has one great advantage: that small group will then become part of what one might describe as a lobby for a sensible outcome, for a proper reconfiguration or change in the structure of services. That is very important. Otherwise, you almost invariably get very powerful local opposition to any substantial change and no natural constituency of people who support it. This is an imaginative idea. I am pleased to be associated with the amendment of the noble Lords, Lord Warner and Lord Patel.
Lord Warner
My Lords, I support my noble friend’s Amendment 201D and I do so for a few simple reasons. I am afraid that I am a bit of a heretic on price competition. It has always seemed to me that, if you want to have competition, simply excluding all aspects of price will not necessarily be in the best interests of any public service, health or otherwise. Therefore, I do not start from the position where I think that a blanket refusal to have any competition on price is a sensible way forward. However, that is not what my noble friend’s amendment does. It is, if I may say so, uncharacteristically modest in its approach.
Although I shall not name the person or the circumstances, I should like to share with the House a recent discussion that I had with an innovative GP running a big group practice in something which looks remarkably like an Ara Darzi polyclinic. This practice is innovating the way that it responds to its patients’ needs and it is doing so by providing services without reference to an acute hospital. However, it is caught in a bind. It is making substantial surpluses, about which it is almost embarrassed, simply because it is required by its commissioners to accept the tariff payments. That is a nonsense in the circumstances in which the NHS finds itself, and I am certainly prepared to talk to the Minister privately about some of those circumstances. I am not fabricating this; it is a real case happening day in and day out. I suspect that, on the basis of what I was told, it is not alone in the country in being in that position.
If one thinks about it, this is bound to happen. If we are really serious about driving services outside hospitals and providing them in a facility where a lot of the things that would be done in hospitals can be done on a more out-patient basis but without reference to any in-patient costs, it is likely that we will get ourselves into difficulty with a tariff which at the moment is very hospital-driven. It is a tariff which is set on a basis of acute hospital costs. For a few years, we are likely to throw money at innovators who do not necessarily want that volume of money simply because we have ruled out the ability to pay below tariff, so that people can provide perfectly adequate, perfectly good services for their patients, protecting their interests, but they will actually be paid more than they need to be paid for providing those good quality services. I think that the Government have to look again at this issue. My noble friend has produced a way forward with many safeguards.
Perhaps I could also say a few words about the Secretary of State setting prices. I do so from my experience as the Minister who was involved in the first sets of price setting, when we introduced them across the country back in 2005 and 2006. In those circumstances, one of the places where we looked for experience was Germany. Germany has a separate organisation which sets the prices and collects and analyses the data. That happened because it was thought that there was a lack of trust in Ministers setting the prices. We got a fair amount of criticism in the beginning from the NHS about the price setting not being transparent. At that point, once we had established the tariff system—the payment-by-result system—we were inclined to move the setting of the price away from the Department of Health so that there would be more confidence in the process of setting prices.
In so far as there is a case for the Secretary of State to be involved, it seems to me that the case is stronger, not in relation to Monitor’s pricing, but in terms of the Secretary of State driving the change in the definition of currencies, which is the function that has been given to the national Commissioning Board. Making changes in the currencies is probably the most significant way in which we can improve the way that the tariff operates. I do not have any particular problem with that being with the national Commissioning Board now, but it is certainly an area where I think the Secretary of State will need to keep a close eye on the national Commissioning Board to see that it addresses the need to move away from episodes of care to patient pathways in the way in which the tariff is set.
I am not so sure that I agree with my noble friend on the Front Bench that we want the Secretary of State to set a price, but I think that the Secretary of State should take a healthy interest in the way in which the currencies are set with the tariff.
Baroness Murphy
My Lords, the noble Lord, Lord Warner, has said more or less what I was going to say. It seems to me that if you remove price setting from the regulator of healthcare, you do not have an economic regulator. From my experience of watching prices and types of funding formula go up and down over the past 20 or 30 years, it is crucial and admirable to remove it into a system that can be independent and transparent.
As the noble Lord, Lord Warner, says, after the Future Forum amendments, we have a system now whereby the shape of the tariff and the bundling systems, if you like, which will enable the sort of integration and co-ordinated care to be effective, will be firmly with the national Commissioning Board, and Monitor will respond to those design structures. I think that working together will be very healthy indeed. I do not underestimate the difficulties of getting it right; it is an ongoing developmental programme. Nevertheless, I think it is a good way forward. I do not like the idea of removing the price setting from Monitor.
I will briefly say that I am quite attracted to the amendment of the noble Lord, Lord Davies. One cannot not be if one wants value for money. I remember seeing the noble Lord’s face when he first realised that there was going to be no competition on price, and having a good deal of sympathy for where he was coming from. However, the matter is one of transition, and of when the public will feel confident that the way that the Bill intends to introduce competition on the basis of competitive tender will improve quality.
I worry about the response that the media could make to a significant change of this kind, even though I agree with the noble Lord that some services—as the noble Lord, Lord Warner, said—are overpriced and that there are opportunities for driving down these prices. That may come through the way that the national Commissioning Board and the regulator together set prices. After all, the price of a tariff will be a moving thing; it will be negotiated; it will change over time; and we will be able to address areas where there is obvious overpricing. I am attracted to the amendment of the noble Lord, Lord Davies, and it may be that eventually we will need to introduce something of the sort. However, I would be nervous of doing it at the moment in this form, even though it seems quite sensible.
Lord Warner
“Applications under section 125: notification of commissioners
(1) This section applies where Monitor—
(a) receives an application under section 125, and(b) is satisfied that the continued provision for the purposes of the NHS of health care services to which a condition in the applicant’s licence under section 98(1)(i), (j) or (k) applies is being put at significant risk by the configuration of certain health care services provided for those purposes.(2) In subsection (1), a reference to the provision of services is a reference to their provision by the applicant or any other provider.
(3) Monitor must as soon as reasonably practicable notify the National Health Service Commissioning Board and such clinical commissioning groups as Monitor considers appropriate—
(a) of its receipt of the application, and(b) of its reasons for being satisfied as mentioned in subsection (1)(b).(4) Monitor must publish for each financial year a list of the notifications under this section that it has given during that year; and the list must include for each notification a summary of Monitor’s reasons for being satisfied as mentioned in subsection (1)(b).
(5) The Board and clinical commissioning groups, having received a notification under this section, must have regard to it in arranging for the provision of healthcare services for the purposes of the NHS.”
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Baroness Masham of Ilton
My Lords, in supporting these amendments, I want just to say that many demands are made on local authorities. If the Bill becomes law, they will have added responsibilities for public health. The control of infectious diseases is vital. We have increasing levels of drug resistance in conditions such as tuberculosis and sexually transmitted infections. We have the problems of alcohol and drug abuse. Food poisoning is always a risk. One never knows what new infection is around the corner—one has only to look at the recent very worrying virus in lambs. We need senior officers of public health because they are the important link between health and local authorities. They need to be in senior positions and to have a clear voice.
Lord Warner
My Lords, I have added my name to Amendment 125, and I had intended to add my name to Amendment 123, but somehow that did not work out. I speak in support of the excellent presentation by the noble Lord, Lord Patel. I am still concerned about whether we will end up in a situation where, in pay and in terms and conditions of service, public health staff at senior levels start to lag behind their counterparts in the NHS. It is a real risk and I am not completely convinced that the way the Government have gone about this is adequate to tackle it.
I also share the view expressed very well by the noble Lord, Lord Patel, that the Secretary of State should give his consent to the dismissal of any director of public health. These posts are exposed when the temperature rises in a particular area over a serious incident, so these directors deserve a bit more in the way of safeguards than are provided in the Government’s proposals.
I accept that the Government have moved on this, but I am a little concerned about how government Amendment 128 has been framed. I always get a bit wobbly when I see “may” used in guidance, and I wonder whether that could not be strengthened a little. I accept that Amendment 124 goes a long way towards giving an assurance that local authorities will be required to pay attention to the guidance but, as I read it, there is no guarantee that it will necessarily cover all the areas in the kind of detail that noble Lords have expressed their concerns about in this debate. A bit of strengthening of Amendment 128 would not go amiss unless the Minister can assure us that “may” really does mean that all these topics will be covered in the guidance.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Lord Patel
My Lords, I wish to speak to the amendment in the name of the noble Baroness, Lady Cumberlege. Of course, the amendment of the noble Lord, Lord Beecham, is attractive. It would give Public Health England independence as a special health authority. However, the Government are obviously not ready to accept that, otherwise why would they have abolished the HPA? We would be recreating the HPA if it were a special health authority.
However, I commend the Government on giving public health a high profile, indicating that they want Public Health England to be closely associated with, and be accountable to, the Secretary of State. Public Health England needs to be a body that is nationally and internationally recognised for the authoritative work that it does, as the HPA does now, for the advice that it can give and for attracting high-profile public health specialists. For that, it needs high-calibre leadership. An executive agency that does not have an independent chair or non-executives who will support a high-calibre chief executive will not be recognised or gain people’s confidence.
I have wondered where the model comes from and I think that I now know. I wonder whether the Secretary of State has made a trip to Atlanta, because the model is exactly like that of the CDC. The Centers for Disease Control is a federal executive agency. It has a board but it does not call itself that; it calls itself a committee of advisers. It has a high-profile chairman, and the other non-executives are also high profile. However, it is an independent body. It is able to give policy advice and is not restricted in doing so. However, that model does not quite fit in for England because, apart from being different, our system is different when it comes to having an independent chair with non-executives. Its function is advisory because it belongs to an executive agency and not a special health authority; otherwise its function would be different. That does not preclude Public Health England from having an independent chair, and I should like to hear why the department thinks that it does. I do not see that the accountability changes at all. Public Health England, being an executive agency, will still be accountable to the Secretary of State. In fact, that would strengthen it.
I agree with the noble Lord, Lord Beecham, that executive agencies are constitutionally part of their parent body, and those employed within them are governed by the Civil Service code of conduct. This includes rules and restrictions on what they may say in public, including before Select Committees, about government policy. I think that an independent chair helps to mitigate this. Because of the critical role that Public Health England will have, this will be important. If it is to be an executive agency, it is vital, for the sake of public trust and confidence, that the Government ensure that the arrangements for the new body provide it with a sufficient guarantee of its independence. Only through being perceived to be independent of government will Public Health England establish a reputation for independent, evidence-based and, above all, trusted expertise.
The model of a single independent organisation employing a large number of public health specialists is an attractive one—one which has worked to great effect, as in the case of the Health Protection Agency. We have an agency that is partly independent: the MHRA. The MHRA has an independent chair, it is accountable to the Secretary of State and it gives policy advice. Perhaps the mechanisms for delivering that policy are different, so that it can be managed without breaking any rules. I do not agree that there are EU rules that forbid it to bid for external funds. I would like to hear which EU rules those are. There are mechanisms for getting external funds through a different arrangement, but that does not forbid it to access external funds.
The HPA has built up an international reputation. Its expertise in carrying out contract research is such that it attracts half its current budget from external funding. Are we going to allow a system based on somebody’s whim to end all that? If we are, we will have to ask ourselves a question. Do we want a structure that seems closer to the Civil Service and to politicians but that weakens an internationally recognised body which is powerful and able to deliver the high-profile agenda which the Government have set for Public Health England? We need to examine that. I feel that there is room for discussion so we can arrive at a compromise solution that will achieve all this.
The amendment addresses other issues to which the noble Baroness has already referred, including independent research, published researched findings et cetera, all of which should be possible for Public Health England, as an agency of the department, to accomplish. I hope that the Ministers and the noble Baroness will consider these suggestions. Let us give this serious thought. Let us not reject it out of hand simply because, at half past 10 at night, we do not have time.
Lord Warner
My Lords, I rise because I have added my name to the amendment of the noble Baroness, Lady Cumberlege. I did so because there is a part of me which actually wants to save the Health Secretary from himself. He is going down a path—for good reasons, in some ways—by which he wants to be accountable, through the department, for public health in this country. I understand that, and I understand some of the arguments that the Government have put forward about ministerial responsibility and accountability which were at the heart of some of the thinking behind the Public Bodies Bill. I can understand why that will happen. However, this is an area where science is of the essence. The Secretary of State and the Department of Health’s management and credibility in public health would be seriously damaged if the scientific underpinning of it were not sound.
The CDC in America—and I have been to the CDC in my visits to America—is an executive agency but it is a very special executive agency. It has a route into Congress to secure its funding. That makes it very different from executive agencies in this country. It has that route into Congress because it has a very strong scientific reputation. It is the credibility of its scientific reputation that enables it to be both independent and a part of the federal Government.
We cannot create that quite as easily with an executive agency here. I believe that the Government made a mistake, almost in a casual way, by abolishing the Health Protection Agency without being sure that they had another model to put in its place that would preserve that scientific independence and the kind of funding that the HPA was able to raise. We do not live in such splendid financial circumstances that we can casually toss away £150 million a year—which is the danger that we are in. I have not yet heard assurances from the Government about how they will protect access to that funding, and how they will protect the ability of people working in Public Health England to undertake independent research and be sure that their findings will be published without being censored in any way. We need absolute guarantees on that, and they should be in the Bill. That is why the amendment of the noble Baroness, Lady Cumberlege, is so convincing. I would prefer to have a special health authority, if we thought we could get one. We have compromised by going for an executive agency. However, the agency must have the kind of dimensions that are set out in Amendment 162.
I will say a few words about the issue of the chair. I heard the story that the noble Baroness, Lady Cumberlege, mentioned—namely, that the Secretary of State would be interested in the Chief Medical Officer being the chair of the committee overseeing the work of Public Health England. I am a member of the Science and Technology Committee. In two inquiries we came up against the issue that in the Department of Health, uniquely across Whitehall, we have a Chief Medical Officer who is also the Chief Scientific Adviser to the Government. Both jobs seem capable of keeping someone gainfully and happily occupied full-time for most weeks of most years. Adding the chairmanship of Public Health England would be an incredible proposition. There are already concerns in the Science and Technology Committee about combining the posts of CMO and Chief Scientific Adviser. There is an unresolved issue about how we will proceed on that. However talented Dame Sally Davies is, we do not want to muddy the waters further by asking her to take on the chairmanship of Public Health England.
We need to get to the bottom of the guarantees that are required to preserve the integrity, scientific independence and public credibility of Public Health England. If we are to have an executive agency, we need something very like what is proposed in the amendment of the noble Baroness, Lady Cumberlege. I hope that the Government will accept it and give us some certainty that the money that the HPA has raised in the past will be guaranteed as something that the new executive agency, Public Health England, will also be able to secure.
Baroness Jolly
My Lords, I will speak very briefly, because a lot has been said on this amendment, to which I was happy to add my name. I welcomed the amendment and the structure that it laid out. I am sure that my noble friend Lady Cumberlege will address the amendments to the amendment.
The issue is one of culture. The culture proposed by the Government does not achieve the desired vision for Public Health England. An executive agency is proposed that will be independent, able to speak out without check and research as it thinks necessary, with an independent chair and non-executive directors. At the beginning of Committee, I met the president of the Faculty of Public Health. In advance of this debate, I rang her this week and we spoke again. She expressed her anxiety about the structure proposed by the Bill.
The role of Public Health England should be to implement the policy made by the department. It should also have the opportunity to influence that policy. Clearly, the Government’s structure does not allow for that. I would really welcome an explanation from my noble friend about the rationale for favouring an organisation that is lacking in independence and that therefore will also lack in public and professional trust.
Baroness Northover
As I have outlined, there is independence. It is key to the changes that we hope to put in place in terms of public health that it moves to the centre stage and that the Secretary of State has a much more direct line of sight in terms of promoting public health and the protection of the public. The Secretary of State will lead and have direct accountability for public health, which many people have welcomed.
Inserting an independent chair and board between him and the individual charge for the day-to-day running of Public Health England could blur those clear lines of accountability and undermine the chief executive without enhancing the agency’s flexibility, responsiveness and effectiveness in dealing with threats. This is not to say that the chief executive should not face independent challenge from the board. On the contrary, the board will include at least four independent—
Baroness Northover
This is the Report stage so I hope that the noble Lord has a simple question for clarification.
Lord Warner
My query is a point of fact. The Minister is putting great emphasis on the role of the chief executive. Could she tell the House whether the chief executive has a scientific background which is relevant to public health?
Baroness Northover
Since the chief executive has not been appointed yet, I cannot give the noble Lord an answer. Perhaps I might be able to continue, especially as it is almost 10.30.
As I have said, the board will include at least four independent non-executive members of the highest calibre, bringing experience of public health, local government, the voluntary sector and business. The challenge they provide will be real and impossible to ignore. Public Health England will also have scientific committees set up to provide rigorous and impartial advice. Executive agencies are normally established administratively, without legislation, and that remains our intention in this case. I realise that my noble friend Lady Cumberlege may want to fix Public Health England’s status in legislation to protect it from undue interference. Of course this is a valid objective, but I hope she will accept that the openness with which Public Health England will operate, and the nature of the Secretary of State’s duty to protect health, would deter him from clipping Public Health England’s wings. He would simply be limiting his own ability to fulfil his statutory duties. I also hope that my noble friend will consider whether the model that her amendment suggests is really in the best interests of public health. A significant advantage of the agency option is its flexibility, allowing Public Health England to adapt and stay fit for purpose without amending primary legislation.
The second part of the amendment focuses on research, to which a number of noble Lords have referred. We recognise the value of the research that the Health Protection Agency undertakes now, and the importance of it continuing. The Bill as drafted provides for the Secretary of State to conduct and commission research and Public Health England will exercise those powers. Noble Lords have expressed concern over Public Health England’s ability to secure health protection research funding. We are satisfied that there is no point of principle preventing Public Health England applying for health protection research funding from external national and international partners, including charities and income generation from commercial contracts. I hope that I can reassure the noble Lord, Lord Patel, that Public Health England can also bid for EU funding, subject to Treasury rules. I hope also that I can reassure other noble Lords that there is no reason why these changes should jeopardise the outstanding reputation that the HPA has had in research.
More specifically, I am happy to be able to confirm that funding from the National Institute for Health Research for research into health protection will continue at its current level and that this autumn we will launch a NIHR research call to be awarded to Public Health England and academic institutions in partnership. Publishing public health research will be not only possible under the Bill as drafted but critical, as noble Lords have indicated, in ensuring that the public health community as a whole learns and progresses. It is also worth mentioning that we expect Public Health England’s published data to be subject to the relevant code of practice on official statistics, which imposes strict limits on Ministers’ access to certain information before it is released.
I am afraid that the amendments tabled by the noble Lord, Lord Beecham, while seeking to enhance Public Health England’s independence, would blur the lines of accountability still further. Executive agency status, we believe, provides by far the most appropriate blend of operational independence and clear accountability. When we debated the special health authority model during the Committee stage, I did indeed, as the noble Lord said, refer to its impracticality. Special health authorities are established to exercise functions in relation to the health service in England, whereas Public Health England needs to exercise functions, such as radiological protection functions, in respect of Scotland, Wales and Northern Ireland. I should also point out that the NHS Commissioning Board will not, in the future, be a special health authority.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 8 months ago)
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Lord Walton of Detchant
My Lords, this is an exceptionally complex issue and I believe it is absolutely crucial that in some way and in some form the issue of a conflict of interests is covered in the Bill. The membership of clinical commissioning groups will consist very largely of general practitioners, but it is important to remember that GPs are not employed by the National Health Service but are independent contractors. As such, it is therefore inevitable that they will have a pecuniary interest in the activity of the clinical commissioning group. I am aware of a number of general practitioners from large practices who have shares in or part-ownership of care homes for elderly patients. I am also aware of some who have shares in private hospitals and in many other organisations. If we were too rigid about declarations of interest, we could end up excluding virtually every GP from membership of clinical commissioning groups, meaning that CCGs could not really exist. Therefore, the provisions must not be too draconian, but at the same time, it is desperately important that they should protect the public interest and that some mechanism be found to ensure that matters of financial and other public interest are not in any way detrimental to the work of the clinical commissioning groups.
I am therefore very attracted by Amendment 79A, which I believe goes a long way towards covering the major issues concerned with conflicts of interest. The amendment so ably proposed by the noble Lord, Lord Hunt has many attractive features, but it is immensely lengthy and complex. I appreciate entirely the point that he made about sanctions, but to go back for a moment, the Minister misunderstood me when I was talking about the duty of candour. I fully appreciate that doctors working for clinical commissioning groups, foundation trusts, and so on, have the same duty of candour as defined by the regulations of the GMC as any other doctor. I intended to ask the Minister whether the actual clinical commissioning groups and foundation trusts, as corporate bodies—not the individual employees of those organisations—had the same responsibility of a duty of candour in relation to patients.
Here, of course, the same problem arises in relation to the whole issue of conflict of interest. How is it defined? It is necessary to recognise, as the noble Lord, Lord Hunt, said, that there has to be a sanction. But the same sanctions apply to individual doctors and other healthcare professionals working for clinical commissioning groups. If they were seen to breach the rules laid down in such an amendment on conflicts of interest, they could be called to account by their regulatory authority. The GMC would no doubt take a serious view of anyone who breached that duty under conflicts of interest. It is crucial that the Government should put something about conflicts of interest in the Bill based, I hope largely, on Amendment 79A, which I strongly support. That is an excellent basis on which to go ahead, and I shall be fascinated to hear what the Minister has to say.
Lord Warner
My Lords, I had not intended to speak for very long on this set of amendments but some issues have cropped up which are worth reflecting on, particularly by those of us who have sat in Richmond House and have had to deal with them. It is easy to assume from listening to the debate that we have a wonderful set of arrangements in place to deal with conflicts of interest. That is very far from the case. The noble Lord, Lord Walton, made the point very well that many doctors already do a range of activities—rightly, appropriately and well within their competence—that potentially involve conflicts of interest. One of the great dangers in this area is that we tie ourselves up in a labyrinth of controls that actually work against innovation in an area where science is driving change rapidly. We want people to use their creativity and to change the way they work. We want them to take on new roles. We should not always assume that in doing that they are just seeking to line their pockets. There is a danger that we might do a very British thing and create a large number of rules that will prevent innovation. We had that debate over research and we are in danger of going down the same track in this area.
The other point raised by the noble Lord, Lord Walton, which is very important, is in relation to the role of professional bodies. We had a case—I will not mention the name—of an eminent businessman doctor who was the chief executive of a large chain of nursing homes. He was taken to the GMC because of something that went wrong in one of the nursing homes for which he had no direct responsibility whatever. Although the governing bodies of the professions have an important role, their role was constructed in relation to the actions of a doctor towards individual patients, not in relation to a doctor who was performing other business and organisational functions. It is very important that we do not rely on professional bodies to deal with what is organisational malfeasance rather than lack of professional integrity in dealing with individual patients.
My noble friend Lord Hunt made a very important point. It is very strange that at this stage we are still arguing the toss around corporate governance of some of the bodies in the Bill, particularly the clinical commissioning groups. That is a bit of an indictment of the Government for not getting some of this material thought through at an earlier stage rather than well into Report stage in the House of Lords after having gone through the Commons. However, we are where we are and I think we should not tie ourselves up in knots and prevent incumbents.
Lastly, a very important point that has come out in a number of speeches today is that two issues are critical. First, it should be clear legally to all people participating in these new sets of arrangements that declarations of interest are essential. Secondly, it should also be clear in the Bill exactly what the consequences are of not declaring those interests and pursuing deliberately a conflict of interest for your own advancement, financially and otherwise. Those are the two issues about which we need to be clear in the Bill and I rather agree with the noble Baroness, Lady Barker, that much of the rest of it should be for regulation, provided that the Bill has sufficiently powerful regulation-making powers.
Lord Kakkar
My Lords, I too have my name to one of the amendments in this group and would like to reiterate much of what has been said in this very helpful discussion. There is no doubt that there remains considerable anxiety about potential conflict of interest. If, early after enactment of the Bill, the new structures that come into place with regard specifically to clinical commissioning groups were to be attended by serious conflict of interest failings, very rapidly confidence in these new structures would be eroded. That is of very considerable concern.
In Committee, I proposed an amendment suggesting that the Nolan principles be included in this Bill. The Nolan principles are well accepted in public life and play an important role in the conduct of acute and foundation trusts. They have served those organisations well in providing a framework and drawing the attention of those involved in the discharge and governance of those organisations to their obligations with regard to potential conflicts of interest and their conduct more broadly with regard to execution of public responsibility.
In Committee, the Minister felt that adoption specifically of the Nolan principles was not an appropriate course of action and may have a rather unhelpful limiting effect on more broadly ensuring that conflict was dealt with appropriately. Having listened to debate in your Lordships’ House today, it is very clear that considerable anxiety continues. It is important that something is done to ensure that in having taken this Bill forward the Government well recognise the potential for conflict of interest and provide the specific obligations for those who for the first time are going to be directly involved in commissioning and therefore the spending of large amounts of taxpayers’ money. Those obligations are in many ways different from acting as a private individual and it will help those discharging these new responsibilities to understand the high standards to which they will inevitably be held and ensure that they discharge those responsibilities for the benefit of the general public and patients.
Lord Warner
“Integration of services
(1) In discharging any duties under this Act, or any related regulations or guidance, “integration” means the integration of health and social care commissioning, assessment, service provision or payment arrangements with the primary purpose of improving the delivery of integrated care and treatment to individual patients or service users or groups of such individuals.
(2) Annual reports produced in accordance with this Act by the National Commissioning Board; and a clinical commissioning group shall report progress made by that body on improving the delivery of integrated care and treatment in accordance with this definition.
(3) The National Commissioning Board’s annual business plan must explain how it proposes to improve integration of services in accordance with this definition.
(4) In developing tariffs, both the National Commissioning Board and Monitor shall have regard to improving integrated care and treatment in accordance with this definition.”
Lord Warner
Better late than never, my Lords. This brings us back to the issue of integration that we discussed in Committee. Since those discussions, which themselves followed the report of the Future Forum, we have had two important and relevant reports from the Commons Health Select Committee, one on public expenditure and one on social care. There was also a robust report in January by the King’s Fund and the Nuffield Trust for the Department of Health and the Future Forum on the case for moving forward with greater pace on integrated care. It is clear to me and my fellow signatories to these amendments that it would be a mistake not to use this Bill to provide some stronger requirements and make it more likely that integration of services to benefit patients will actually happen. None of us believes that legislation on its own will deliver integration, but providing a stronger legislative framework is more likely to make it happen. That is the purpose of these amendments.
Let me remind the House what the three reports that I have mentioned actually said. The King’s Fund and the Nuffield Trust said that the Department of Health and the NHS Commissioning Board should,
“develop a consistent and compelling narrative that puts well-co-ordinated care for people with complex needs at the heart of what is required of local NHS and social care organisations”.
The report went on to say that they should set,
“a clear, ambitious and measurable goal linked to the individual’s experiences of integrated care that must be delivered by a defined date”.
In its January report on public expenditure, the all-party Health Select Committee, with a Conservative chair, said on page 32, at paragraph 13, that it,
“found precious little evidence of the urgency which it believes this issue”—
that is, integration—
“demands—on both quality and efficiency grounds”.
The committee called on,
“the Government and local authorities to set out how they intend to translate this aspiration for greater service integration into the reality of patient experience”.
In its further report on 6 February on social care, the Health Select Committee made clear that the key to joined-up services is joint commissioning. It recommended that the Government should place a duty on clinical commissioning groups and local councils to create a single commissioning process. Its main focus is on integrating services for older people, but much of what it says applies to a wider group of people. It also draws attention to the difficulty of defining the boundary between the NHS and local authority services.
This is the context in which I believe that we need to strengthen this Bill while it is still before us. It would be a missed opportunity not to do so. We must tackle this issue of the definition of integration, but make sure that it is not limited to particular groups of patients and service users, and that it is not simply restricted to those who straddle the NHS and social care boundary. Those depending solely on NHS services need improved integration, as I have discovered from some of my family episodes and circumstances. We also need not just integration of commissioning, important though that is and on which I fully support the Select Committee’s recommendation. Organisational integration is not sufficient, as history has shown us. The definition of integration has to make clear that the primary purpose of the organisational and process changes for integration is to bring benefit to patients and service users through the delivery of integrated care and treatment. As the Oxford English Dictionary makes clear, “integration” is:
“The making up or composition of the whole by adding together or combining the separate parts or elements”.
If we are to progress service integration for individuals, we need to put a clear definition of integration and its purpose in this Bill. That is what proposed new subsection (1) in Amendment 38C does, in a way that supports the conclusions of the Health Select Committee. The three other subsections ensure that there is no escape for any of the actors in this drama from taking seriously the issue of service integration. Subsection (2) requires that annual reports provided by the Commissioning Board and clinical commissioning groups, under the terms of this Bill, should report progress on improving the delivery of integrated care and treatment in accordance with the definition in proposed new subsection (1). The NHS Commissioning Board is required by the Bill to produce an annual business plan. Proposed new subsection (3) requires that plan to explain how the board,
“proposes to improve integration of services in accordance with”,
the definition in proposed new subsection (1).
Lord Newton of Braintree
My Lords, I support—with some trepidation—what my noble friend Lord Mawhinney has said, and I pick up the point about it taking two to tango. I yield to nobody in my support for integrated services. I heard what the noble Baroness, Lady Young—a person with whom I go back a long way—said about diabetes, and I do not disagree with it. I do not disagree with what the noble Baroness, Lady Pitkeathley—with whom I go back even further I think—said, presumably arising from her experience as part of Age Concern. The question is whether this amendment does it, or whether in fact it contains things which will make it more difficult. As the noble Lord, Lord Turnberg, said, it takes two to tango. As I read it, every responsibility here is laid on health service bodies, not local authority or social service bodies. If we are to go down this sort of path, we need to lay equal obligations on both.
However, the issue goes beyond that. It should be recognised that one of the most difficult or most needy areas in this field is mental health, which I know something about even though I no longer have a direct interest. With mental health there is a need for co-operation not just between the various statutory authorities—indeed, many mental health trusts are partnership trusts with the local social services department and have made significant progress, as was true of the one with which I was involved until January—but with voluntary organisations. Where are they covered in all this? I had a difficult case in a mental health trust that I chaired 10 or 15 years ago. Nobody in any statutory service, whether local authority or health, had known that the patient in question was undergoing anger management courses paid for privately, and that caused problems. Last weekend, I was talking to someone in Braintree who is interested in the Rethink Mental Illness charity and is trying to build up the local Rethink art therapy classes, for which he thinks he has acquired a building. That, too, ought to be integrated with the services provided by the mainstream.
I do not believe that this amendment, however valuable it is and however worthy its objective, will achieve that objective without a great deal more sophistication. Personally I would rather leave it to the Minister and his department to issue guidance and apply pressure in rather different ways to produce the integration that we all want. At any rate, I look forward to what the Minister has to say. He may draw more encouragement than usual from some of my remarks and I might even vote with him if it comes to that.
Lord Warner
Before the noble Lord sits down, perhaps I may ask him and his noble friend behind him whether they have seen Amendment 161A, which would introduce a new clause on standards of adult social care.
Baroness Northover
My Lords, perhaps I may remind noble Lords that we are at Report stage. According to my note, only the mover of an amendment or the Lord in charge of the Bill can interrupt with short questions.
Lord Warner
I am the mover of the amendment and I was interrupting with a short question to the noble Lords, who seem to be unaware of a part of the Bill which addresses their concern. Before I was interrupted, I was going to ask them whether they had seen Amendment 161A, which says that the duty would enable the Secretary of State to address the issue of reducing,
“barriers to the delivery of integrated health and adult social care”,
and give him powers to produce regulations to deal with that. Therefore, we will be coming to an amendment which, if agreed, will enable their concerns to be addressed.
Earl Howe
It is a very interesting question from the noble Lord. When I visited Oldham a few weeks ago, I saw for myself how they were getting around that problem in the context of musculoskeletal services. Instead of patients being shunted from pillar to post, they had a system whereby the patient could move seamlessly and immediately from one specialist to another. They did not have to be referred; they could ring up the centre and ask to see a particular person. That is the kind of integrated model that we need to see rolled out more generally in other services. I recognise the issue that the noble Lord raises, but it is one that we are seeing inventive solutions arising to address. I hope that the work being done will do that.
Lord Warner
My Lords, there have been some extremely powerful speeches of support for this amendment for which I am extremely grateful. I am grateful in particular to my co-signatories and I noted the powerful speeches of the noble Lords, Lord Owen and Lord Sutherland, and the noble Baroness, Lady Young. They have made the case for an amendment of this kind to the Bill.
I was disappointed by the Minister’s response. That was not just because I got only a B- for my definition—I expected to have my homework marked by officials in the Department of Health and was not expecting to get a high score—but because I think that the definition meets the needs that we have. I find it very difficult to see how the Minister can stand up and say, “Well, we’re going hold people to account; we’re going to monitor their performance”, if we do not have a definition against which we are going to monitor their performance.
The definition proposed by the amendment moves us away from a preoccupation with integration as organisation and process change to delivery of services to the individual. I do not see how the Minister can say, “We’re concerned about outcomes for individuals”, if we do not integrate delivery. You are highly unlikely, I would say as a jobbing ex-public sector manager, to get good outcomes if you have not orchestrated the delivery of the services to the individual that meets their needs.
Earl Howe
I would not want the noble Lord to believe that I was dismissive of the point that he has just made. I recognise that it is important that we somehow give the meaning of integration a clearer explanation, whether that is through the guidance issued by the board or, indeed, the Explanatory Notes to the Bill. I am just wary of putting something in the Bill. That is all.
Lord Warner
I guess I am more of a risk taker than the noble Earl and I believe that we could put a definition of this kind in the Bill. It would cause no confusion—indeed, it would remove it—in the minds of many people working day in, day out in the NHS. As to those who have asked, “What is the purpose of some of the other changes?”, the noble Lord, Lord Owen, powerfully made the point that we need to give strong signals to these new players in the game. We want them to start off knowing that they will be held to account in their annual reports for monitoring their progress on integration. We want that: it is deliberate. We want them to know that Parliament put that in the Bill for a purpose. I am not satisfied with the Government’s response and I beg leave to test the opinion of the House.
Lord Warner
“( ) the priority and scope for commissioning service redesign and reconfiguration in the light of the best clinical advice available,( ) the priority and scope for transferring resources to adult social services to improve service integration and achieve best value for health services,”
Lord Warner
My Lords, so near, yet so far. Amendment 42 is very simple. It requires the Secretary of State to include in his mandate to the national Commissioning Board the requirement to set out two things. First,
“the priority and scope for … service redesign and reconfiguration”,
in the NHS,
“in the light of the best clinical advice available”,
and secondly,
“the priority and scope for transferring resources to adult social services to improve service integration and achieve best value for health services”.
These are two big issues for the NHS and how it meets the Nicholson challenge of £20 billion of savings by 2015 and how it improves service integration. The proposals in this amendment are very much in line with the recommendations of the Health Select Committee in its two recent reports on public expenditure and social care, which were mentioned on the last group of amendments. As the Public Expenditure report said on page 30:
“The Nicholson Challenge can only be achieved through a wide process of service redesign on both a small and large scale”.
It went on to say,
“we are concerned that savings are being made through ‘salami-slicing’ existing processes instead of rethinking and redesigning the way services are delivered”.
Since I put this amendment down, I am pleased to say that the Minister has responded in a most constructive way. On the first part of the amendment, regarding service reconfiguration, he has entered into most constructive discussions on this issue and the related Amendment 217 in my name and the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams, regarding a pre-failure regime. The Minister has undertaken to have an alternative to that amendment prepared before Third Reading. I would be glad to hear more today on how that work is progressing.
On the second prong of the amendment, the Minister has had prepared an alternative approach for transferring money from the NHS to adult social care by amending Schedule 4. This gives the Secretary of State power to direct the board to make payments for community services, which, I understand, include adult social care. This is Amendment 148B, in the name of the noble Baroness, Lady Murphy. It would have been in my name as well if I had not been dallying in India when the noble Earl wanted to discuss it with me. I am very supportive of that amendment on the assumption that, as drafted, it is wide enough to cover adult social care, because that term is not mentioned specifically, and on the assumption that there are no vires issues with the Treasury on the matter of using NHS money for social care. Perhaps the Minister could provide some assurances on this when he responds.
These issues are important for the NHS and for patients in the particular financial and demographic challenges that services face. I am pleased with the Government’s constructive response. In the mean time, in order that we may debate these issues, I beg to move Amendment 42.
Baroness Murphy
My Lords, I will interject here with regard to my amendment to Schedule 4, tabled as Amendment 148B in the supplementary hymn sheet. First of all, I thank the Minister very much for the discussions that I had with him and the Bill team last week. As a result, I tabled this amendment. Unfortunately, I omitted to let the Whips’ Office know that it was to be discussed with Amendment 42, otherwise they could have been tabled together.
As I understand it, the important thing about this amendment is that it addresses the issues that we have just spent another hour discussing of how in practice you get money flowing from health to social care, and how you promote integration of services through some practical mechanisms on the ground. Over the last 60 years, there has been too much money held in the NHS—I say this as a health service person—when it should have been better transferred in to social care services to support people with long-term conditions. It has been extremely difficult to get mechanisms that work well. The importance of this is that we do not have to have it repeated in the mandate, which was in the amendment tabled by the noble Lord, Lord Warner. I was very supportive of that, but it is much more flexible to have it as the Secretary of State’s direction. It also covers wider organisations than adult social care, although we expect that to be the main route to which the Secretary of State would wish to ask for moneys to be transferred. My amendment is slightly superior in that respect to the amendment proposed by the noble Lord, Lord Warner. However, it does not address the most important issue that the noble Lord brought up in the first part of our amendment—that of the reconfiguration of services and how you can prepare and work towards dealing with issues around failing organisations and services. I know that, as the noble Lord said, the Minister has been looking at that issue and may be able to come back to us with some mechanisms for that—but on this one I wish to speak in support of my Amendment 148B, which addresses the Secretary of State’s direction in Schedule 4.
Earl Howe
My Lords, we have had several lively debates on the importance of redesigning services if the NHS is to become more personalised and productive, and the noble Lord, Lord Warner, speaks with great insight and passion on this issue. He has tabled further amendments on this topic, which we will have an opportunity to debate in detail at a later stage.
The Government are clear that, as a basic principle, the reconfiguration of services is a matter for the local NHS and that decisions about service change should be driven by local assessment of need. The reconfiguration of services works best when there is a partnership approach between the NHS, local government and the public. What matters is that strategic decisions are taken at the right level. We believe that our reforms will enable commissioners to make the changes that will deliver real improvements in outcomes for patients and the public. The Bill places clear duties on the Commissioning Board and clinical commissioning groups, which will underpin a locally driven approach to service redesign, clinically based and framed around the needs of patients. That includes duties to promote the NHS constitution and the involvement of patients as well as duties to secure continuous improvement in the quality of services and to reduce inequalities. These duties set important guiding principles against which the commissioning system will develop and oversee service redesign and reconfiguration. In addition, the NHS will continue to assure reconfiguration proposals against the four clear tests set by the Secretary of State, which are that proposals should have support from clinical commissioners; should be based on robust patient and public engagement; should be underpinned by a clear evidence base; and should be consistent with current and prospective plans for patient choice. The Bill and the four tests will ensure that any proposals for service change are based on a thorough assessment of local need, underpinned by clinical insight and developed through dialogue between commissioners, providers, local authorities, patients and the public. Of course, the board will have an important role in providing support and assurance to local commissioners, but we will not be replicating layers of top-down management.
With the clear legal duties set out in the Bill, the four tests and the support and assurance that will be available, there should be no need for the Secretary of State to prescribe through the mandate how the commissioning system should prioritise and determine the design of services. To do so would cut right across the clinically led local commissioning, which is at the heart of the Bill. Nevertheless, I recognise the importance of getting these arrangements right, and between now and Third Reading I commit to working with the noble Lord with a view to finding a formula designed to address the concerns that he has articulated. We are looking at a range of options. I hope to be able to say more about this when we reach his later amendment on the subject. I hope that for now he will find this rather broad assurance sufficiently strong to enable him to withdraw that part of the amendment.
I hope that the noble Lord will be able to withdraw the rest of Amendment 42 as well, because it also raises another issue. It is vital, especially in the current economic climate, for the NHS to provide financial support for adult social services where possible in relation to those services at the interface between health and social care. Here, I pay tribute to the noble Lord, Lord Warner, who has been a tireless advocate of social care at numerous stages of our proceedings, to ensure that this element of the equation—and that part of the Bill’s title—is not overlooked.
The noble Baroness, Lady Murphy, has tabled Amendment 148B with a similar aim in mind. We are all, I think, aware of the impact that such services can have in helping people to live independently in their own homes and in reducing unnecessary hospital admissions—which is, of course, better for the individuals involved and relieves pressures on the NHS. The last spending review included a commitment to provide £648 million in 2011-12, rising to £700 million by 2014-15, for these purposes. Early indications are that this funding has helped to promote integrated working between social care and health commissioners. We want this to continue. I can reassure the noble Lord and the noble Baroness that by virtue of paragraph 130 of Schedule 4 to the Bill the NHS Commissioning Board and CCGs will inherit the powers that primary care trusts currently have under existing legislation to make payments to local authorities towards expenditure on community services.
Generally speaking, our approach in this Bill has been to give NHS commissioners maximum autonomy in how the NHS budget is used. However, I have sympathy for the argument that it is legitimate that the Secretary of State should be able to determine the proportion of NHS funding that is to be transferred to local authority community services in order to secure closer working between the NHS and social services. I am not sure that the mandate is the right vehicle for this. However, I can see very considerable merit in the approach that the noble Baroness has taken with Amendment 148B. This amendment would give the Secretary of State additional powers to direct the board on the minimum amount that it should transfer to local authorities in a given financial year. The Secretary of State would be able to specify in the directions the bodies to which those payments should be made, the amount that should be paid to each body and the functions in respect of which the payments must be made, and to amend these instructions if necessary. It would essentially enable the current arrangements to continue.
The noble Lord, Lord Warner, asked whether the amendment was wide enough to cover adult social care; whether it was within vires; and whether the Treasury is content. The answer to all those questions is yes. Indeed, I am advised that the amendment would enable funding to be transferred to other community services, such as housing, if necessary.
The approach taken is in line with current practice, which is approved by and agreed with the Treasury. Importantly, this would represent only a minimum. The board would retain the power to make additional payments over and above those required by the Secretary of State if it chose. The CCGs would also retain their powers to make such payments. Although I think it makes sense for it to be the NHS Commissioning Board that makes these payments, it would also be vital that there is a dialogue between local authorities and clinical commissioning groups as to how the funding could be best used. Of course, both will be involved, as members of health and well-being boards, in setting the strategic framework for health and social care commissioning through the joint health and well-being strategy. In addition, the existing powers in Section 256 for the Secretary of State to give directions on the conditions that should apply to such payments would apply. This is helpful because it would provide a mechanism for ensuring that the agreement of the health and well-being board is obtained as to how funds are spent.
The noble Lord, Lord Warner, has spoken with great conviction about the Bill’s importance, including the tangible duties to act to ensure that integration moves from being just an aim to being a reality—as, indeed, the Future Forum has emphasised that it must. I think that Amendment 148B meets all the criteria to ensure that that will be the case. I shall therefore be happy to support it if the noble Baroness should decide to move it. I hope that my noble friends will join me in supporting the amendment; I would urge them to do so. Given that commitment, I hope that the noble Lord, Lord Warner, will be prepared to withdraw Amendment 42.
Lord Warner
My Lords, I am grateful to the Minister for his explanations and reassurances. I certainly think that Amendment 148B is a better amendment than my provision on social care in Amendment 42. I am very happy also to accept his broad assurances that we will have a discussion and dialogue to see whether we can move forward on, in effect, a version of a pre-failure regime, while recognising the Government’s commitment to local decision-making on redesigning and reconfiguring services. On that basis, I am happy to withdraw the amendment.