Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Baroness Scotland of Asthal
My Lords, I think we need to be clear that my noble friend Lady Thornton’s Motion is simply for this House to express its regret. It is not a fatal Motion but an opportunity to express a view.
I have to say, and this is rare, that I disagree with the noble Baroness, Lady Williams; indeed, this may be one of the first times I have done so when not sitting where the noble Earl, Lord Howe, now sits. The whole purpose of the Information Commissioner is that he is charged with looking at the most delicate and difficult issues and seeking to come to a balanced view on whether the public interest points in one direction or another. It is clear that both parties have an opportunity to appeal if they disagree with him, but I hope that Members of this House, if they have had an opportunity to read the commissioner’s decision, will have found it sound, well argued and balanced. So we have a well argued, balanced view from the Information Commissioner that he believes, having had the advantage of looking at the documents, that the risk register would enable this House to better scrutinise the Bill to the effect of helping us to make a better Bill for the people of our country.
I agree with those who say that this opportunity has to be sparingly used, and it is clear that the commissioner agrees. This will not open the floodgates, which it sounded as if the noble Lord, Lord Turnbull, was suggesting would happen if we agreed to this Motion of Regret. It is clear that the National Health Service is dearer to the people of our country than almost any other institution, so this touches every single citizen. Be they a baby or a person in their third age, it is of equal importance. If we compare it to the importance of the third runway at Heathrow, I hope that the House will think the NHS is a tad more important. Notwithstanding the difference in importance and, as my noble friend Lady Thornton made clear, the great reluctance from my own Government—it took over a year—we gave way, because it was right and proper to do so and there appeared to be an overwhelming public interest. If there was an overwhelming public interest in that case, how much more is there an overwhelming interest in this?
I suggest to the House that the noble Lord, Lord Pannick, is right that this goes to our power and ability to properly scrutinise the Bill. I therefore invite your Lordships to join my noble friend in gently saying to the much beloved noble Earl, Lord Howe, that this is may be a moment when he has to take a message back to his department and say, “Can this not be released?”. If it is as cogent, sound and well placed as the Government believe it is, surely that will only persuade those of us who have anxieties and assist in our scrutiny.
Lord Warner
My Lords, I hesitate to intervene but it is a Motion of Regret, and one element of the regret the House would express would be regret for the position the noble Earl has been put in. Much of our debate so far on this Bill has been on the basis of how it would work in practice and how things would happen on the ground. I suspect there is a lot of information about how things would work in practice in the risk register. My concern is that the noble Earl is being put in a very difficult position and at risk of misleading the House—I am not saying he has; I am not saying he has not—as he has been put in a position where, because he is unable to use that information, he may be forced to hedge his bets to reassure the House on some of the practical issues. I hope that is not the case and he has not been put in that position, but we need to be sure and I hope he can give us some reassurances.
Lord Mackay of Clashfern
My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.
The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.
Lord Warner
Lord Warner
My Lords, in moving Amendment 240, I shall also speak to Amendment 242 in this group in my name and that of the noble Lord, Lord Patel.
Amendment 240 inserts the words “cost and” before “effectiveness” regarding the exercise of functions by various bodies that the Secretary of State must keep under review. The NHS faces an unprecedentedly long period of having to survive on short financial rations. This is now likely to extend at least two years after the 2015 election, if we are to believe the Chancellor’s utterances last week on the public finances and deficit reduction. The NHS has never delivered in any one year of its history the productivity and cost-saving requirements set by the £20 billion Nicholson challenge, which is to be produced at least four years on the trot. Most informed commentators expect a financial crisis of some kind in the NHS in the next few years, so the reality is that the Health Secretary will have to keep under close review the expenditure and costs of all the bodies listed in Clause 49. The Government should face up to this reality, in my view, as the Chancellor seems to want us to, by adding the words in Amendment 240 to the Bill.
Amendment 242 is another part of that reality checking of the NHS in the Bill. On earlier amendments I raised my concern about keeping in check the overheads and management costs of the national Commissioning Board and clinical commissioning groups, and was duly told that these were not necessary. I acknowledged then that my amendments were probably not framed as they should be. However, I am returning to this issue with Amendment 242, which requires the Secretary of State to report annually to Parliament the administrative costs of the bodies listed in Clause 49, together with the percentage of the NHS budget they represent and their percentage increase over the previous year. If the Secretary of State is doing his or her job properly, they should have this information available to them and be monitoring it closely, especially in the financial climate the NHS faces over the coming years.
We know from history how, left to their own devices, bureaucracies can expand their remits and resource consumption. Ministers never like to own up to this happening on their watch. To improve the prospects of keeping Ministers and, if I may put it this way, these big NHS beasts on the financial straight and narrow, it would be extremely helpful if the Bill required the reporting of administrative costs and their movement over time to Parliament once a year. I hope the Minister can be constructive about accepting such an amendment as it in no way challenges the Government’s reforms. I beg to move.
Baroness Cumberlege
My Lords, I have two amendments in this grouping and, lest I be drummed out of the Brownies, I would like to explain that there is a typo in the Marshalled List. It should read not “detailed merits” but “detailed remits”. As noble Lords will appreciate, there is a great difference, and I do not need any persuasion as to the merits of this Bill.
The purpose of my two amendments is to be probing; I am really just seeking clarification. The Future Forum was very widely welcomed by most people, but it further complicated the new proposals in the Bill regarding how we are to organise and manage the NHS. After years of being dictated to and micromanaged, there is a real risk of paralysis, and this at a time when commissioners need to reach decisions and be truly radical.
As I understand the proposed structure, the national Commissioning Board and clinical commissioning groups will be supported by clinical networks, clinical senates, commissioning support organisations and health and well-being boards, which will work in partnership with them. In addition, we have a new public health system, which we debated last Monday, with the creation of Public Health England and the establishment of HealthWatch England and Local HealthWatch to try to improve patient and public involvement. This has the potential to cause confusion and duplication if the Government are not clear about the accountabilities, roles and responsibilities of these different organisations. I would like to take a very serious example: it is still unclear who will take the lead on the commissioning of specialist doctors and nurses responsible for safeguarding children within the NHS.
At a national level, the movement from a single department of state to a more dispersed range of organisations, including the national Commissioning Board, Public Health England, HealthWatch England, Monitor and the Care Quality Commission, could have a similar effect. The danger is that the NHS could find itself in paralysis at just the moment that it needs to make key decisions that are crucial for the sustainability of parts of the service. In particular, some of the important decisions on potential service reconfigurations are urgent if the NHS is to meet the Nicholson challenge and at the same time fulfil its commitment to high quality and safe services to patients.
It is still unclear to me, and I know that it is to some others, how the respective responsibilities and accountabilities of commissioners, providers and regulators for quality are intended to work together. We also need to ensure that additional complexity does not result in an increased administrative burden or financial cost, as the noble Lord, Lord Warner, has said, falling on healthcare organisations. I think that my noble friend gave an undertaking on that on Monday but further clarification would be welcome.
Because of these concerns about the complexity of the new structure, I am asking the Minister if he could look seriously at this issue; go beyond the organograms and design detailed remits and powers for all those in the system to minimise confusion, gaps and duplication; and be as clear as possible at the outset as the reforms are implemented, while at the same time keep under review and address any confusion, gaps and duplication between the components in the system. Change is always a challenge. The more we can reduce muddle and confusion from the outset, the more successful these reforms will be.
Earl Howe
My Lords, as I have observed on earlier occasions, I believe that this Bill increases Ministers’ accountability for the health service through a range of mechanisms. However, perhaps I may begin by saying to the noble Lord, Lord Hunt, that I agree that the Secretary of State’s annual report is an important mechanism through which he will account for the system. I am sympathetic to the objective behind Amendments 243 and 243A, which seek to specify areas for inclusion in the Secretary of State’s annual report, but I can reassure noble Lords that I expect to see mention of areas such as the reduction of inequalities set out in the report, as these issues are the foundation of a high-performing health service.
The Bill also sets out extensive powers of intervention in the case of failure, which are essential if Ministers are to be able to retain ultimate accountability for the health service. The intervention powers in the Bill are specific to the organisations to which they apply, which is the issue covered by Amendments 245B and 245C. With that point in mind, I believe that the powers set out by the Bill strike the right balance, enabling appropriate freedom for NHS bodies while ensuring that the Secretary of State can intervene in the event of their failure.
The Secretary of State’s duty of keeping performance under review only applies to national arm’s-length bodies. It does not refer to CCGs. The noble Lord, Lord Hunt, questioned why that was. We think that is right; however, the CCGs will very definitely be kept under review. The Bill sets out a robust process for the board to hold CCGs to account and sets out extensive powers for the board to keep the performance of CCGs under review and to step in where they are not performing.
The noble Lord also queried why there was no mention of a range of other bodies, such as senates and field forces. The answer is that they are part of the NHS Commissioning Board, which is specifically mentioned. As regards health and well-being boards, as the noble Lord will know, we intend them to be part of local government. I do not think local authorities would take very kindly to the Secretary of State for Health keeping them under review.
There are also a number of amendments in this group that are concerned with the transparency and accountability of arm’s-length bodies, such as the amendments of the noble Lord, Lord Warner. Much like the Secretary of State’s annual report, each arm’s-length body’s annual report and accounts must be laid before Parliament. I simply remind the Committee that all ALBs are under a duty to exercise their functions effectively, efficiently and economically, and the Secretary of State is required to keep under review how effectively they are exercising their duties and functions.
Finally, I turn to co-operation between the bodies in the system. The Bill sets out a formal duty on each organisation to co-operate, and the department will hold organisations to account for the way they work with each other, not just how they perform their own functions. As regards Amendments 240A, 243ZA, 350 and 351, I hope I can reassure noble Lords that, through these two routes, the department will work to ensure that duplication is prevented and gaps do not emerge. If the Secretary of State believes that the duties of co-operation are being breached or are at significant risk of being breached, he will be able to write formally and publicly to the organisations. If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself.
Amendment 245ZA looks to reinstate a power at Section 2 of the National Health Service Act 2006, which would enable the Secretary of State to provide services. We believe that the role of the Secretary of State should be one of oversight, direction-setting and intervention when organisations are failing. We have had many hours of valuable discussion on this topic; so while I fully understand the various concerns raised by noble Lords, I remind the Committee that all sides of this House have agreed to a process of engagement and discussion on this subject. The noble Lord, Lord Hunt, asked specifically in relation to this amendment whether this issue was covered by that process. The Clauses 1 and 4 process, as I call it, is considering the issue of the Secretary of State’s accountability for the NHS in the round rather than specific clauses in the Bill; so, yes, this would be covered by that process.
I hope that I have provided enough detail on these clauses to enable the noble Lord to withdraw this amendment.
Lord Warner
I wonder if the noble Earl could enlighten me, and indeed the House, on the story that is trailed in the Times today that the Secretary of State is going to have 60 benchmarks or indicators—which some of us would think looked like 60 targets. Are they going to be a key part of his process of keeping performance under review? Will he give the House a little more flavour of what that is going to mean?
Earl Howe
My Lords, that story in the press was about the outcomes that the Secretary of State is proposing should form the basis on which the health service is held to account. It is likely that the outcomes framework will form part of the annual mandate. These are proposals which we are hoping for comment upon. Therefore the answer to the question of the noble Lord is that the health service—I am not talking about the ALBs other than the board, but the National Health Service Commissioning Board—will be held to account against those outcome measures.
Lord Warner
My Lords, I have listened very carefully to the Minister. I am disappointed that he cannot agree to put something more specific in the Bill about administrative costs. I am concerned about those getting out of control, when the NHS faces a very difficult set of financial challenges. However, I hear what he says. We may want to come back to this at a later stage, but in the mean time I withdraw the amendment.
Lord Warner
As I said in our recent debate on the Dilnot commission report, secured by my noble friend Lady Pitkeathley, we need to consider whether this Bill is a suitable vehicle for progressing implementation of that report. Here I should declare my interest as a member of the Dilnot commission. First, I shall make some remarks on the growing crisis, if I may put it that way, in social care and the implications of that crisis for the NHS and patients, particularly as, despite the extra money the Government have provided for social care in the spending review—I commend the Government on that—we still face a £1.2 billion shortfall by 2014, according to the King’s Fund.
The NHS and social care are in a symbiotic relationship with each other, in that what happens in one sector can have a profound effect on the other. That is what is happening now. The current problems have their roots in the past. Both sectors face the challenge of a service response to an ageing population. The fact that we live longer is, of course, something to celebrate, but it does have consequences for health and social care. By 2030 there are expected to be £2.5 million more people aged 75 or over. The current 1.5 million over 85 will double in the same period. The number living with dementia in the UK is expected to reach 1.4 million by 2040. We have nearly 18 million people living with long-term conditions that require treatment and care, but not necessarily in hospital. Getting the balance right in the resourcing, co-operation and delivery of services between the NHS and social care is critical to the quality of care and quality of life for this ageing population and for the cost to the taxpayer of those two services.
What is clear is that doing nothing and letting the current system carry on is not really an option. For example, the King’s Fund has shown that even if we do nothing to the current inadequate adult social care system, its cost will rise from £6.7 billion in 2011 to £12.1 billion in 2026. In that situation, the eligibility criteria for social care will get tighter and tighter, despite the extra expenditure, and the pressures on the NHS will increase as social care is unable to cope. Both systems need rebalancing and improved integration between the two.
However, they do not start from the same position. Since 2003-04, spending on social care has increased by 19 per cent in real terms, which is half the rate of increase in NHS spending in England over the same period. Despite this increase in spending on social care, access to state-funded services has reduced. In 2005-06, 60 per cent of local authorities restricted their service eligibility threshold to those whose needs were substantial or critical, leaving those with low or moderate needs to fend for themselves. By 2010-11, that 60 per cent had risen to 82 per cent of local authorities. As local authorities try to balance their budgets, they have cut the price they pay to providers, with a consequential impact on the quality unless they can persuade a growing number of self-funders to subsidise the care of those who are funded by the state. The impact has meant increasing burdens on informal carers, whose health is often not of the best, and rising costs in the NHS. Perversely, we can now end up with the taxpayer spending £3,000 a week to care for an 85 year-old in the medical ward of an acute hospital when they would be better off in a medically supervised £1,000-a-week single room in a nursing home.
At the heart of this problem is that social care simply does not have the standing of the NHS. If we are to improve social care and its integration with the NHS for the benefit of service users, we have to improve that public and political standing and realign the financial balance between the NHS and social care. I suggest that a good starting point for that would be the statutory duty placed on the Secretary of State. Leaving aside our current dispute over the precise wording of Clause 1, the Bill as it stands gives the Secretary of State the clear duty, which he has had for a long time, to promote a comprehensive health service designed to improve the physical and mental health of people and the prevention, diagnosis and treatment of illness. There is nothing equivalent to that duty in relation to the NHS for adult social care.
In subsection (1) of my new clause in Amendment 260DA, I have tried to even things up a bit by placing a clear duty on the Secretary of State to secure continuous improvement in the quality of social care services. This would mean that, when considering his priorities in relation to health and social care, the Secretary of State would have to consider securing a proper balance between both sectors. I suggest that both will face similar demographic challenges and careful consideration would then have to be given to how to allocate resources and priorities between the NHS and adult social care.
The rest of Amendment 260DA is intended, if I may put it this way, as a helpful encouragement to the Government to use the Bill to secure the legislative framework to implement the ideas in the Dilnot commission’s report but without the Government, at this stage, committing themselves to the precise financial figures in our report or the timing of implementation. The Government would be able to consider the responses to the consultative process that closed last Friday and prepare their White Paper in the spring as they are proposing to do. The amendment would remove the need to worry about whether they would have a piece of legislation on this subject in the next Session. I have to say that a number of us, both inside the House and outside, have a fair degree of scepticism about whether that Bill will actually happen.
There is widespread support for the direction of travel pointed to by the Dilnot report, with widespread consensus among stakeholders that this is the road we should tread if the finances of adult social care are to be placed on a more secure footing over time. It is no purpose of mine today to go into the detailed merits of the Dilnot commission’s report. However, I would like to hear, especially from the Liberal Democrats who have been supportive in this area, whether they support moving forward swiftly as many of us do. What I should make clear is that I regard subsection (1) of Amendment 260DA as standing on its own merits irrespective of the Government’s attitude to using this Bill to create a legislative framework for implementing Dilnot. I cannot say that my optimism on that aspect is all that great. However, I hope we can secure support across the House for inserting something in the Bill along the lines of subsection (1) so that when the Bill leaves this House there is a bit more equilibrium between the duty placed on the Secretary of State in relation to the NHS and that placed on him in relation to adult social care. I am not wedded to the precise wording of my amendment but I hope we can actually secure some cross-party consensus on the need to put something that follows the spirit and thrust of that subsection into the Bill before it leaves your Lordships’ House.
Amendment 244 simply requires the Secretary of State, when he publishes his annual report on the NHS, also to report on the health service’s integrated working with adult social care. This is such an important part of how the NHS will work in the future, particularly with the financial challenges that are faced, that I believe we should make specific reference to it in the Bill. I hope the Government agree. I beg to move.
Baroness Pitkeathley
My Lords, my name is attached to Amendments 244 and 260DA. I want to emphasise how vital integrated working is from the point of view of the patient. Most patients, especially older ones or those with a long-term condition, do not experience either health or social care but some kind of combination of both—combinations that fluctuate according to variations in their condition.
This, as we have been reminded, is a Health and Social Care Bill yet the Committee debates thus far have not reflected the experience of patients and their families but have been very focused on acute care and the role of hospitals. I am delighted that consideration of these amendments gives the Committee the opportunity to focus more acutely—no pun intended—on the social care aspect of the proposed legislation. I strongly support the call for social care provision to be subject to annual review. I remind the Committee of the multifaceted nature of social care—residential care, home care, respite care and increasingly tele-care—and of the range of providers such as private, voluntary and social enterprises. Many of these services are facing huge challenges because of increased demand and reduced resources so it is clearly vital that a review is carried out regularly and I can see no reason why the Government should not agree to this amendment.
Baroness Cumberlege
I just ask the supporters of the two amendments a question—the noble Lord, Lord Warner, may be the appropriate one, having been a director of social services. The amendment talks about breaking down the barriers. We are all at one with that. I was very interested in what the noble Baroness, Lady Pitkeathley, said about the Dilnot report; the noble Lord, Lord Warner, was a distinguished member of that committee, of course. Having listened to the amendment’s promoter, I thought it was very persuasive and one could see a real future there.
One of the blocks that has not been addressed in this debate is the difference in accountability in terms of the democratically elected councillors who are responsible for social care. I wonder whether the Lord, Lord Warner, had thought about ways to try to harness that to get that integration. To try to bring together two very different accountabilities is a real challenge.
Lord Warner
I shall briefly respond to that. We should never forget that the lion's share of the money that goes on state-funded adult social care comes from central government and is passed through local authorities to be spent on that group through the commissioning of various domiciliary, residential and even nursing home care. Although what I have crafted is a duty on the Secretary of State, a lot of this comes back to where the balance is struck between the NHS and adult social care in terms of priority and funding in Richmond House. They are all under the same departmental expenditure limit at department level.
The sense I had as a Minister was that it is a bit like the Army: you have to put a musician in the canteen. A former director of social services is kept well away from social care in Richmond House. I saw a reluctance in the NHS culture in Richmond House—which, thankfully, has changed with the arrival of David Behan —to fight for social care at the time of expenditure reviews. That is a real and serious issue. The big guns of the acute sector are alive and well in Richmond House when the expenditure review comes around. My noble friend Lord Hunt is nodding—I think enthusiastically, given his current job as chairman of a foundation trust. This is a real issue. We need a bit more balance in the statutory duty on the Secretary of State in order to align the money going into social care vis-à-vis the NHS.
There is a perfectly good point to be made at the local level. You want to see priority being given to adult social care at the local level, and you want to see openness on the part of local government—which, if I am honest, has not always been there—in working across the boundaries with people in primary care and in the NHS. That is absolutely an issue. However, if in local government you have only enough money to deal with people with substantial or critical needs, then your ability to help people with moderate needs and stop them getting worse will be restricted by the amount of resources available. It will then be extremely difficult to work across that boundary. We know that many local authorities have reprioritised their services, taking money away from other services and putting it into adult social care, but a very clear finding from the Dilnot commission was that the adult social care pot is simply not big enough. It is no good for us to keep uttering that there is a need for integration if there is not enough money at the local level for adult social care to work across the boundaries.
Baroness Greengross
My Lords, I strongly support the amendment and the remarks of the noble Lord, Lord Warner, and the other noble Lords who have spoken. Over the past 50 years we have seen a huge rise in longevity. In this century and at the end of the last century, that rise in longevity has been largely due to medical success in taming many acute and terrible diseases that once we could hardly even talk about. Now, many cancers can be lived with for a long time. However, the big and difficult condition to be dealt with now is dementia. This is a long-term illness and it is terminal in various forms, yet the care for people with dementia is funded largely through social care. This, in itself, is an enormous anomaly. One in four patients in hospital who are elderly and a huge number of people in the community have dementia, but that illness is treated as being due for social care, not NHS care, although the borders do blend to some extent.
We need to celebrate that huge medical success but we cannot do so if we go on as we are with the funding of, and attitude towards, social care, which remains very much as the Cinderella between the NHS and the community. Many people now say that this differential means that in reality we should close 20 per cent of acute hospital beds and transfer those patients to a different sort of care—perhaps hospitals transformed into community hospitals. It is not a case of killing them off; they should be transformed into care centres where people with these long-term conditions can be properly treated. We really must work towards that and accept the truth of it. If we do that, there will be an obvious need to integrate health and social care quite differently from the way that we have done it in the past. What is needed is not a transfer of resources but integration. We must get this right.
I have recently been involved in the EHRC’s inquiry into the care of older people in the community. We found that while a quarter of a million people are happy with the social care they receive in their homes, another quarter of a million are not—and understandably so because some of the ways in which they are looked after are, frankly, appalling. This is partly because of the huge diversity and differential in the allocation of resources, as well as the status and training of staff in dealing with the most difficult issues and problems. I am not going to go through everything I learnt from that inquiry. The report has been published, and I hope it will be helpful to many people in policy-making and in practice.
If we get this right and we keep people in the community for longer, we will save an enormous amount of money. At the moment, adult social services directors have no choice but to give money to the people in the most acute need, which means that the social care needs of all these other people are therefore not being met. If I were one of those directors and I had to choose where my money was going to go, that is what I would do. That needs to change because of the necessity of resource integration. We must find a way to intervene earlier, for dementia for example, with drugs, early diagnosis, and treatment in the community. People will then be able to live in the community for much longer and many will die in the community. An enormous amount of money will be saved. Care for people with dementia, in particular, in hospital is really unsuitable. It is bad for them and it is extremely bad for other patients. It really must change.
One reason that community care goes wrong is annual budgeting. If, like local authorities, one has to have an annual budget, one can do no preventive work. At least a four-year cycle is needed. It is like starting a business, investing in it, and expecting the return within a year—it cannot be done. One must wait a few years for the return. However, local authorities cannot wait because they lose their central government grants; we need to change that. The well-being boards need to be given the resources to integrate care properly so we can get rid of this imbalance.
Further, the Dilnot recommendations—and I congratulate the noble Lord, Lord Warner, on the distinguished role he played in this—are the first realistic proposals which bring together all sectors—public, private and voluntary—to get it right, with what seems to be a political consensus. This is such an opportunity, and we really cannot afford to lose it. Older people will suffer the most. There is still an enormous amount of discrimination. The social care we offer to younger disabled adults and to people with physical or learning disabilities is totally different; the attitude, and the range of resources and skills available to younger adults are quite different. This is direct and really damaging discrimination. The only way to change this is by integrating resources through the well-being boards. We need to make Dilnot a reality so that in the longer term all of us know enough to save for our pensions and our care. This amendment is essential if we are to get some action now. I support it very strongly.
Baroness Barker
My Lords, I will speak briefly in support of the amendment and answer the point made by the noble Lord, Lord Warner. Since 1948, we have had a system whereby there has been an agreed national settlement on a person's entitlement to healthcare. It is delivered to national criteria and demand is managed largely by waiting times. Running in parallel is social care, where there is no national entitlement and demand is managed by eligibility criteria. The two systems are administered in parallel by completely different people, side by side. Successive reports have set out for us all the different ways in which the two systems do not work together. People have analysed the reasons why the systems do not work together.
The most telling thing for me is that we have known for a very long time, because we have evidence to prove it, that if older people are discharged from hospital and are supported through the period of discharge, the likelihood of them being readmitted to hospital is very low. We also know, because of that, that the cost to the NHS decreases. I am afraid to say that those of us who work in the charitable sector also know how impossible it is to get the NHS to run a hospital discharge system. The noble Baroness, Lady Emerton, is absolutely right. I do not want to throw blame about, but it leads to my point about why I think the amendment is important. The biggest single thing that will make an impact on the NHS is cultural change. There are a lot of barriers in the NHS to that change. We have heard the point echoed in our debates over the past few weeks. Some of our most eminent clinicians have made the point very glibly that there is very little evidence about what works in social care. That is true; social care has some way to go in developing an evidence base. However, we have some evidence and it still gets ignored because social care is not up there with healthcare.
Noble Lords have talked throughout our debates about specialist nurses and how important they are. I have come to the conclusion that the greatest asset of a specialist nurse is that they know their way around social care and can explain it to people in the NHS. I do not wish to denigrate specialist nurses in any way; they do a fantastic job. However, part of me thinks that if they are the only ones who understand the system, are they letting the rest of the NHS off the hook? The biggest single thing that will make the Bill work or not work is whether everyone in the NHS sees it as their responsibility to understand and work with social care.
The amendment of the noble Lord, Lord Warner, is cleverly worded. I congratulate him on that. It is based on Dilnot and the Law Commission, although he has crafted it using general terms so that it is not specific to those two reports. I commend him for that. On balance, the most important part of the amendment is proposed new subsection (2)(b), which reflects the Law Commission report. Until we get nationally agreed standards of eligibility, assessment and charging policies, it will be impossible for anyone who works in the NHS to know what it is they are supposed to be integrating with. That is the key point. I understand that Dilnot is important in terms of funding, but the Law Commission report is the important one.
I listened very carefully to what the noble Lord, Lord Turnberg, said. I always do. It is a very good report; I agree with that. However, he said that all these local developments in integrated care depend on funding. He is right, but there is a huge amount of wastage of resources throughout the health service. I pick up on this at local level. It comes down to two things: data are not shared and there is no understanding of common assessment of needs. Those two things cost the NHS and social care a fortune. Proposed new subsection (2)(b) of the amendment is so important because it covers the key area on which we have to work.
Perhaps noble Lords have been slightly pessimistic about the Bill. The existence of health and well-being boards is important. It will be possible, locally if not nationally, to begin to work on these issues. It will be possible for some areas to do highly innovative stuff. Noble Lords have talked about the work done in Torbay. When my colleagues were in charge of the borough of Islington, they had a very interesting approach. Social services took responsibility for everything that was to do with children and the NHS took responsibility for everything that was to do with older people, which included social care. I would like to see more of that and I hope that health and well-being boards will bring it about.
Presumably the noble Lord, Lord Warner, was told to have a go at the Liberal Democrats today. I was surprised that he asked about our attitude to the Dilnot report and the Law Commission report. At our conference in September we passed a resolution to the effect that we welcomed the reports and wished to see the Government implement them quickly. We have not come up with a series of bureaucratic provisions to hold up implementation. I pay tribute to Paul Burstow. He came into government when the previous Labour Government had not resolved the issue in 13 years. He found extra funding for social care and went out of his way to make sure that the Dilnot review was set up. He laid down a challenge to us that I pass on to noble Lords. He challenged us to campaign on social care with all the passion and vigour that we do on the NHS. I challenge noble Lords to do that. Actually, I would like to challenge 38 Degrees and everybody else to do that, because there are an awful lot of people who are willing to be as vociferous as you like on the NHS but are suddenly silent when it comes to social care. Some of us have had enough of that. I commend the noble Lord’s amendment.
Lord Warner
I was not doubting the enthusiasm on the Liberal Democrat Benches regarding this area. I just wanted to provoke the noble Baroness into giving the kind of excellent speech that she has given. I was hoping that we would hear from her. I also join her in paying tribute to Paul Burstow, and indeed Norman Lamb, for the very supportive way in which they have approached this issue.
Baroness Thornton
My Lords, we have had a very interesting debate on this imaginative amendment from my noble friend Lord Warner. Today’s debate might well be the only debate on social care in the whole life of this Bill, including in the Commons. I would like to talk about some real people, with real conditions and real problems, because it is only by testing this Bill against those that we will know whether it is going to work, and whether the issues that are being raised by noble Lords across the House are going to be taken into account.
I would like to pick up where the noble Baroness, Lady Greengross, left off, and talk a bit about dementia, partly because I have a very close friend whose wife has dementia and I have been following the path of this for the last seven or eight years, but also because this is an issue that affects hundreds of thousands of people. The Alzheimer’s Society reckons that: there will be 1 million people with dementia by 2025; dementia costs the country £20 billion now; one in three people over 65 will die with dementia; only 40 per cent of those have a formal diagnosis—that figure varies enormously across the UK; and, of course, which is the reason why they are important to this debate, people with dementia are very significant users of health and social care services. We know that people over 65 with dementia are currently using up one-quarter of hospital beds at any one time. The current system of charging for care, such as help with eating, hits people with dementia hardest, as the noble Baroness, Lady Greengross, has said, and amounts to what the Alzheimer’s Society calls a “dementia tax”.
We know all of this. The All-Party Parliamentary Group on Dementia, the National Audit Office and the Alzheimer’s Society have identified that significant resources are wasted on poor-quality care—for example, through crisis admissions into hospital or long-term care. There are opportunities to save money in dementia care across a wide range of settings; for example, by investing in early intervention and prevention services. In a way, those matters are the test of this Bill. Can we save the money and deal with the people who have got dementia? How can we promote a shift of NHS resources away from acute hospitals into community-based services, as recommended by the NHS Future Forum and the recent inquiry by the All-Party Parliamentary Group on Dementia?
I know that the Government recognise that a sustainable NHS in the future requires a new long-term settlement on social care to ensure quality for people facing disability and long-term illness. We think that this amendment will help with that. When I was looking at this amendment, I remembered that I myself was given a speaking note that said, “Of course, health covers social care, too”. That is not good enough any more; it is not good enough to say that by writing health into the Bill and giving the Secretary of State responsibility for it, we are somehow covering social care. Apart from anything else, it has not worked. We know it has not, and we are where we are. There are some very serious issues.
Lord Warner
My Lords, I have listened carefully to what the Minister has said. I am not totally astounded to hear his remarks and I am grateful for the generous way in which he made them. However, I also listened carefully to other people in this House, in particular, the noble Baroness, Lady Barker. I certainly cannot see why the Government cannot move on Amendment 244. It does not pre-empt in any way their decision-making on the Law Commission, Dilnot or anything else they want to write about in terms of their White Paper in the spring.
The flavour of this debate is that we need to give some particular attention in this Bill to integration between health and social care. Requiring the Secretary of State specifically to deal with that issue in his annual report is a very good signal to be given to the outside world and, particularly, to the NHS. A number of people who have spoken today have suggested that that signal needs to be given.
I was not expecting to get a lot of progress on Dilnot but I want to come back briefly to subsection (1) of the new clause to be inserted in the Bill under Amendment 260DA. I feel strongly that we need a duty of this kind on the Secretary of State to balance the equation with the NHS. I shall take advice from a lot of people outside this House on whether we should come back to this issue on Report. At the moment, my instincts are that we will want to but I want to hear what people outside this House in the sector have to say. But I certainly reserve the right to come back on that issue, which I am happy to discuss with the noble Earl further if he wishes to do so. In the mean time, I beg leave to withdraw the amendment.
Lord Warner
“( ) On the abolition of the Health Protection Agency, the Secretary of State will allocate their functions and any others he or she considers appropriate to an Executive Agency with its own chief executive as accounting officer with a management board with an independent chairman and at least three non-Executive Directors with expertise in its functions selected by the Department’s Chief Scientific Adviser.
( ) In allocating these functions the Secretary of State shall ensure that staff of the Executive Agency should have freedom to secure and discharge external research contracts.”
Lord Warner
My Lords, we come now to Clause 53 and the proposed abolition of the Health Protection Agency. I shall speak to Amendment 257ZA in this group, but in doing so I should make clear that I do not support the abolition of the Health Protection Agency, and I have every sympathy with the Front-Bench amendment that Clause 53 should not stand part of the Bill. I should not be unhappy if I lost my amendment because the clause itself was removed.
However, if the Government are going to proceed with this casual vandalism against an internationally respected organisation, I would hope that we could secure some damage limitation, which is what this amendment attempts to do. I will leave it to my co-signatories of this amendment, who have much more scientific and clinical expertise than me, to explain why we need to protect the independent scientific and research expertise of the Health Protection Agency in any new organisational form that there is for it.
As the Minister who helped to shape the Health Protection Agency in its present form by bringing together a wider range of scientists in one organisation, I want to put on record that it has acknowledged the importance of that and the improvement in the cross-fertilisation of ideas that has come about because we brought a wider range of scientists into the organisation.
I should also make clear that when confronted with crises involving areas of great public concern—I cite as examples the great concern in 2003 and 2004 about the growth in healthcare-acquired infections, and, later on, the Litvinenko affair and the concerns about polonium-210—the independent scientific advice from the arm’s-length Health Protection Agency was absolutely vital to giving the public confidence in how we were moving forward and dealing with those issues. It was the people from the Health Protection Agency, particularly during the Litvinenko affair, who were able to stand up in public and give scientific reassurance in that area. It is that independence of scientific expertise that I am very anxious we should preserve in the move to abolish the Health Protection Agency.
Amendment 257ZA would ensure that if the functions of the Health Protection Agency are to be transferred to the Secretary of State and the Department of Health, there should be a distinct executive agency with its own chief executive as accounting officer, and a management board with an independent chairman and at least three non-executives with expertise in its functions, selected by the department’s chief scientific adviser. The amendment would also ensure that staff had the freedom to secure and discharge external research contracts.
These changes will help to retain high calibre staff over time, and indeed the scientific reputation of what is currently the Health Protection Agency, in its new guise. I believe that they have the support of the staff of the HPA and reassure them about scientific independence and the ability to carry on seeking research contracts.
We need this reassurance in the Bill, not just warm words, however well intentioned the Minister is. I beg to move.
Lord Turnberg
My Lords, my name is also attached to Amendment 257ZA. I also do not like the idea that the HPA is to be abolished, so I hope my amendment is not necessary, which it will not be if the proposal that the clause should not stand part of the Bill is agreed.
I have, of course, extolled the virtues of the HPA on a number of occasions in your Lordships’ House. You could say that I would do that, wouldn’t I?, having been the chairman of the predecessor of the HPA, the Public Health Laboratory Service, but it is certainly true to say that it is the envy of the world, and I am not the only one who says that. The Centers for Disease Control and Prevention in Atlanta, in the United States, are a very well funded counterpart with which we collaborated very strongly, and even they recognised this excellence and envied the fact that we, unlike them, had a network of laboratories across the country primed and ready to detect outbreaks of infection wherever they occurred. Those laboratories were linked into a central laboratory at Colindale, where highly specialised tests could be carried out when needed for unusual infections and where epidemiologists could link up outbreaks in one area of the country with outbreaks in another, so that it was possible to track the speed and spread of infections and prevent them developing into epidemics.
The fact that the HPA is hardly ever in the news is testament to its success in protecting the population. If your Lordships think that because it is so good there is now less need for such surveillance, let me point to the fact that just one set of infections—those responsible for food poisoning—remain a considerable health hazard, and gives rise to about 1 million cases per annum in the UK. Although it is usually fairly mild and often not reported, some cases, such as those due to E. coli, can be very severe indeed, and in the particularly vulnerable can be fatal. Food poisoning is, unfortunately, not showing any signs of decreasing, so the need for constant vigilance is high and the role of the HPA remains absolutely vital.
The amendment sets out two of the planks needed for the agency to contribute to its key roles. The first is the degree of independence that it needs to be able to give advice not only to those out in the field who need to act but very specifically to the Secretary of State and the Government. The HPA must not be seen to be simply the mouthpiece of government. It must have the independence that is so necessary to its credibility. It has stood it in good stead over the years. Its advice is respected and accepted, and we should not lose that now.
The other element of the amendment is the need to be able to undertake research. If the agency is to keep ahead of ever-changing bacteria and viruses, which seem to mutate every week, and to be able to develop new ways of rapid detection, it needs access to research funds. For example, it has excellent high quality researchers, two of whom have recently been elected to the fellowship of the Academy of Medical Sciences, which is a demonstration of their esteem. Over the years it has been fortunate to have access to research funds from the Department of Health, and I understand that that will continue. That, of course, has been of enormous value, but the agency has also attracted research funds in fairly large amounts from external grant funders, and this is funding won in open competition. There is a fear that as an authority that is rather more closely identified with the Department of Health, access to those external funds will be denied to it.
The amendment makes the clear case that the agency must continue to have access to these funds in order for it to function at the highest level. I hope that the Minister will accept the case and look sympathetically at the amendment.
Baroness Cumberlege
My Lords, I speak to Amendment 260, in the name of the noble Lord, Lord Patel. It is probably not the time to go around memory lane, but I want to draw on some experiences that I have had. I was the hapless Minister responsible for the Health Education Authority. Some people may remember the Health Education Authority. It was largely independent and its funding came through the department. I should not speak ill of the dead, but it really was a nightmare. One of my lasting memories of my modest ministerial career was when we had a Starred Question in this House, asking why government money and very scarce resources should be spent on a leaflet, produced by the Health Education Authority, entitled, I think, 69 Ways for Better Sex. It was the first that I or the department had ever heard of it. Perhaps one of the interesting things was the number of noble Lords who said they could not take part in the debate unless they had seen a copy of the leaflet.
The HEA went completely off the rails. It was only when we were reading or listening to the media that we found out what it was up to. In the end, it not only alienated the Department of Health and the Government, it alienated local health authorities, with their responsibilities for public health. It was they in the end who asked us to close it down. Well, we did. Listening to the current proposal for Public Health England to be an agency, I think that is a good idea, although I know it is very unpopular with the Faculty of Public Health and others. An executive agency, although not totally independent, will operate with a degree of autonomy from Ministers on a day-to-day basis. While not as independent perhaps as a health authority, it will be recognisable as an entity and have its own identity.
The only model that we have got in health of an executive agency is the MHRA. Its chairman, noble Lords will know, is Professor Sir Alasdair Breckenridge, who has been the chair since its inception. Sir Alasdair is a very strong individual and somebody people really respect highly. In the vernacular, he is the sort of person you do not mess with because you know you will not win; you do not even try because he is somebody with enormous integrity and presence, and runs a very good organisation. It seems a good idea to look at the MHRA model and see how it is organised. Sir Alasdair tells me that there are eight non-executives on the agency board, who form the majority and are the board. They have a very good chief executive who is a civil servant but the non-executives are not. They are drawn from right across the country with different experiences and, again, they are people of huge distinction who are very much respected.
Here is an example or model that actually works. It has been tried and tested, and is a model we could certainly adapt for Public Health England. However, I suggest to my noble friend that the important thing is to keep the public health constituency with us on this. It is important that it has a real involvement in choosing the chairman of this new agency. If it is involved, that will go someway to ensuring the agency will be a success. It should also be involved in the recruitment and appointment of the non-executive members. We have a highly credible organisation here that could be a very good model for Public Health England and I hope my noble friend will consider those points about the appointment of the chairman and the non-executives, and the formation of that board.
Lord Warner
I was the Minister responsible for the MHRA and very much share the noble Baroness’s views on this. There are some slight differences, one of which is that a lot of the funding for the MHRA, in effect, comes from the pharmaceutical industry, in terms of licence fees. However, I was well aware of the MHRA experience, and my own experience of it, in trying to craft Amendment 257ZA, which does bear some resemblance to that. I certainly would not argue with the idea that the number of non-executives under my amendment should be larger than three—it does say “at least three”. I will certainly go along with her that some outside expertise, in quite substantial numbers among the non-executives, is an extremely good model.
Lord Beecham
My Lords, I am tempted to open by invoking, if not the Health Protection Agency, then perhaps the protection of the local environmental health department, because conditions in this Chamber, at this temperature, are hardly conducive to anyone’s good health. However, that is a matter perhaps for the House authorities to look at.
I rise to express the view that Clause 53 should not stand part of this Bill and to support my noble friend Lord Warner’s Amendment 260. I do the latter on the basis that that would be a fallback position, because I entirely concur with the view expressed in particular by the noble Lords, Lord Turnberg, Lord Patel and Lord Walton, and the noble Baroness, Lady Finlay, who have of course such a distinguished history as leading clinicians in these and other medical fields. Part of the thrust of the argument is the need to maintain not only a functioning organisation which has, as we have heard, an international reputation, but also to ensure that any such organisation has the requisite degree of independence from Government—that is, the right and in fact the duty, as the noble Lord, Lord Turnberg, made clear, to advise the Secretary of State and the Government generally without fear or favour.
Amendment 260 would create an executive agency for the Health Protection Agency. It is arguable that executive agency status would not of itself lead to the required or desired degree of independence whereas perhaps a special health authority would conceivably achieve that. There is a difference of view from the Government about the status of a special health authority. Their preference for Public Health England is that it should be an executive agency. They argue that a special health authority would not be appropriate. They point to analogous situations of agencies created for the Medicines and Healthcare products Regulatory Agency and curiously, by way of analogy, the Met Office, as organisations which are deemed to have sufficient independent status, albeit operating as executive agencies of their respective departments.
Neither of those arguments can be sustained. The role of Public Health England is a much wider one than either of the two bodies to which their document published earlier this year refers. A regulatory agency is not the same as an organisation which has to advocate and oversee a wide range of services, such as Public Health England would be required to do, and the Met Office is hardly an organisation which is required to be independent of Government in preparing its weather forecast. The analogy is somewhat ludicrous.
There is also, of course, the very important point made by noble Lords about the need for independent status in order to attract some of the funding, both charitable and contractual, on which in particular the Health Protection Agency is critically dependent and which might be endangered by its absorption into Public Health England in a way which would make it clear that it is no longer independent. That is not to say that the creation of Public Health England in the form of a special health authority would not of itself be desirable. The bringing together of a range of functions under the auspices of Public Health England, although not, I would argue, the Health Protection Agency, would be welcome.
A number of professional bodies have commended the principle but clearly have reservations about how the new structure would work. The Association of Directors of Public Health, for example, makes it clear that Public Health England should include health protection and emergency planning, health improvement and health services in its main areas of work and, in addition, provide an independent science base and advice to the Government and the devolved Governments. One of the arguments against creating a special health authority was that it would not be able to deal with devolved Governments. I would have thought that that is something that the Government could deal with relatively easily.
The role of Public Health England should also support the national Commissioning Board and provide support for local directors of public health. However, the association expressed concerns about the role and status of directors of public health. We recently discussed some of those in Committee. It also had concerns about the input into the national Commissioning Board and the lines of accountability. We will have Public Health England, the clinical commissioning groups, the directors of public health and various other functioning arms of the National Health Service, and it is not clear how the relationship would work and, in particular, what the role of Public Health England would be. The association has argued strongly for consolidating public health capacity into Public Health England with overall responsibility for improvement, protection and promotion of health care, and for public health intelligence and analysis.
Baroness Northover
I thought that noble Lords would be delighted to hear my announcement, but I hear that they are less than thrilled. I will take that back and consider carefully what my noble friend has said about striding further forward, and see how best people’s concerns can be addressed.
My noble friend Lady Cumberlege asked whether the public health community would be involved in selecting the chair and non-execs of Public Health England. We will give very serious consideration to how the chief executive and the non-executive directors are appointed although in the case of the chief executive the final decision must of course be with the Secretary of State.
Some noble Lords have suggested that a special health authority model might be appropriate and Amendment 260 would have that effect. The key issue here, as the noble Lord, Lord Beecham, correctly identified, is that Public Health England will exercise functions that are wider than just the health service in England. In particular, Public Health England will have UK-wide responsibilities. I heard what he said about believing the devolved Administrations could somehow or other be sorted out but I am not so certain. Public Health England will have responsibilities for highly specialised health protection functions such as radiation protection and will therefore need an organisational form that can operate across the whole of the United Kingdom, and a special health authority is normally established in relation to England only. It cannot be established under secondary legislation to exercise UK-wide functions that relate to reserved matters or in relation to functions in England that do not relate to the health service—that obviously would be a challenge.
On the points raised about Amendment 257ZA, I hope I can reassure noble Lords that the chief executive of Public Health England would be appointed through an open and fair competition and would be solely responsible for its day-to-day operation. Ministers will agree the business objectives for Public Health England and the chief executive will be responsible for putting in place the management structure and using the budget appropriately to deliver these. This operational freedom will be supported by a framework agreement between the Department of Health and Public Health England which will set out the roles and responsibilities of both organisations.
During an earlier debate the noble Lord, Lord Turnberg, raised the question—it has been raised again today particularly by the noble Lord, Lord Patel—about the ability of Public Health England to receive research grants. Public Health England will be able to receive research funding from most, if not all, of the sources from which the Health Protection Agency currently receives research income. In the light of the concerns that the noble Lord, Lord Turnberg, flagged up last time, I asked for an analysis of where the HPA currently got its research funding from, in terms of proportions, organisations, amounts and so on. I then asked what would happen in each case. I was reassured to see exactly how Public Health England would be eligible, right across the board it seemed to me, for the kind of grants that currently exist. I am very happy to discuss this further with the noble Lord if he wishes.
In particular, there was concern about what money could be received from the EU and it is very clear that, in terms of the funding rules on intergovernmental organisations such as the EU, the executive agency would no doubt work in conjunction with an academic or analogous institution, as is the case now, to apply for that kind of funding. I appreciate noble Lords’ concern about that and how important it is that this is got right. I therefore hope that they will have a really good look at how this would carry across.
Clearly it is extremely important for Public Health England to have scientists who are not only independent but also able to publish—it is important for their own future careers as well as the work they are doing within Public Health England—and to continue to be able to publish. Public Health England would have a very important role in filling evidence gaps and building on the evidence base to improve and protect public health. That is a critical part of what it would be doing, so that would continue. I am not quite sure where the noble Lord, Lord Patel, got some of his concerns from but he is right to probe and to make sure that this is going to work in the future.
Lord Warner
I am slightly bemused by what the noble Baroness has said on research. I would certainly like to know in writing, rather than poring through Department of Health files, what the risk assessment is of Public Health England losing research grants out of the total of £150 million that the noble Lord, Lord Patel, mentioned and in particular, whether it is at risk of losing the MRC grants that the noble Baroness, Lady Finlay, mentioned. We need something clear in writing and not just vague assurances. We also need some guarantees from the Minister about the right of people who are doing research in Public Health England to publish peer-reviewed articles without any censorship from the Department of Health and Ministers.
Baroness Northover
I am sorry if I am being at all opaque. As noble Lords have said, the HPA generates income and conducts research which it is in effect selling out. There is some commercially sensitive information in what I have here: I am sure that we can clarify it but I am a little bit concerned not to say something that is commercially sensitive. As I said, I looked all the way through here and have seen organisations such as the Wellcome Trust. In fact, I have just been passed a note with large writing saying, “A lot of this information is commercially sensitive but we will write saying what we can”.
Lord Warner
I do not wish to have any commercial-in-confidence information and I am sure my friends do not either. We want to know what is at risk out of the £150 million the Health Protection Agency is getting now under the new arrangements. If you can guarantee, in writing, that Public Health England is not at risk of losing any of that money I think we will be much more confident. We do not want the details of the commercially sensitive stuff we just want the global figure and the assurances of what it is at risk of losing.
Baroness Finlay of Llandaff
Can we also have the assurance that it will be eligible in the future to apply for a broad range of funding even if currently it does not hold a grant from a particular grant-giving body? I think that that applies to the MRC.
Baroness Northover
I hope the cameras are not shining down on this piece of paper of mine so I can try to give you some of the information that may be less commercially sensitive: there are organisations such as the Wellcome Trust and Research Councils UK. Noble Lords should be very reassured as to how this will work, but as a very junior Minister I have to be extremely careful.
The noble Lord, Lord Turnberg, flagged this up, I took it back and asked for a breakdown of the funding the Health Protection Agency gets. I asked in every instance what would happen in the future and I have a comprehensive answer because I thought it was extremely important. I hope noble Lords will be reassured both by my probing and these answers, even if I dare not reveal them all. I hope we can therefore write and reassure noble Lords that those working for Public Health England will indeed have access to the same kind of grants that they have at the moment.
Amendments 257A and 257B are minor and technical government amendments to Clause 54. These amendments would allow the Secretary of State or the Northern Ireland department acting alone to exercise functions in relation to biological substances for the whole of the United Kingdom. I was asked about sub-national structures. Indeed, Public Health England will have hubs. The precise details of these arrangements will be published shortly. As stated in Healthy Lives, Healthy People, we will provide further detail on the operating model for Public Health England.
I was also asked about emergencies. As I mentioned on the previous occasion when we debated public health, Public Health England will act on behalf of the Secretary of State as a category 1 responder. It will also be able to offer support or leadership in dealing with local incidents short of a full-blown emergency.
Reference was made to one or two other areas. If noble Lords will forgive me, I will write to them to sweep up what needs to be covered. I hope that noble Lords are reassured by what I have said. It is extremely important to the Government and to both Ministers in the Lords concerned with this matter that Public Health England is very strong and has the necessary independence. As the noble Lord, Lord Turnberg, put it, it should not be the mouthpiece of the Government. It needs to be able to conduct expert research. I hope that I have reassured noble Lords who have raised these very important points that all this is built into the Bill, and that the noble Lord will withdraw the amendment.
Lord Warner
My Lords, my reaction is, “C+: Must work harder”. The noble Baroness has given some reassurances but they are certainly not sufficient. She should have a lengthy chat with her noble friend Lady Cumberlege on the MHRA. I would be happy to join them as it is an interesting model and has a lot to offer. The noble Baroness, Lady Northover, may remember the Cadbury inquiry’s report on the governance of companies in which it advised that there should be a separate chairman and chief executive. Therefore, the principle of promoting good governance through having a separate chairman and chief executive is well established in both the public and the private sector. She might think about that a bit more.
I do not know about other noble Lords but I was not swept off my feet by the assurances on research. We would like some good assurances in writing, particularly with regard to the ability of the new body to compete for MRC research funds. I continue to have concerns about the ability of any body in this position to publish peer-reviewed articles and findings from research that are uncensored. The road to hell is paved with good intentions. Once a body is inside the Civil Service code, the ability to publish independent utterances and research tends to become a bit more circumscribed. Therefore, we want further assurances in that regard.
I will want to discuss with my colleagues whether we will come back to this issue on Report. In the mean time, I beg leave to withdraw the amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Turnberg
My Lords, I had a previous bite of this cherry when I spoke at some length in my prayer to take note of the statutory instrument to set up the Health Research Agency a few weeks ago, so I will not be long and will not repeat what I said on that occasion about the need for a research regulatory authority that was more than simply a home for the national research ethics committee. Highly important though that is, my message was that it was essential but not sufficient. If we are to get over the barriers to research posed by the regulatory processes that delay research approval, we must include more functions.
I was very taken by the Statement that the noble Earl repeated yesterday on the life sciences. It was a marvellous demonstration of the Government’s commitment to research and innovation—I could not have said more myself in many of its aspirations. However, if you were looking for a reason for us to have a fully functioning research regulatory authority, as set out in this group of amendments, you need look no further than that Statement. It points out quite clearly where the barriers to innovation lie—with excessive regulation, access to patient data and delays in taking up innovation into practice.
On regulation, the Statement says:
“Excessive regulation can mean that the uptake of new treatments and technology is slow. That is a challenge felt acutely by an industry that sometimes feels that the return is not there quickly enough to satisfy investors. It is felt even more acutely by patients”.—[Official Report, 6/12/11; col. 685.]
There it is; we need a more strongly established research regulatory authority. Let me give one example of where we are in danger of losing out. The NIHR—the National Institute for Health Research—sponsored the North West Exemplar programme to see whether it could engage both the pharmaceutical industry and the NHS in trying to get approval for multicentre clinical trials in a reasonably short time. This involved getting the strategic health authority in the north-west to convince the various hospital trusts in its area to approve the research as efficiently as possible. It has worked—their rate of research and development committee approvals are rapid and compare very favourably with the rest of Europe. They are certainly better than the rest of the UK.
However, there is a danger of that being lost when we lose the strategic health authorities. The driving force of the strategic health authorities will disappear shortly. That is another reason for a research regulatory authority to take on this leadership role: to drive this exemplar forward and spread its message more widely. We need it, therefore, not only for the National Research Ethics Service and the ethics committee on the use of data—a separate ethics committee—but for many of the other functions described so forcefully by the noble Lord, Lord Willis.
I heard exactly what the Minister said about the HTA and the HFEA, and what my noble friend Lady Warwick of Undercliffe said about the HTA. I accept that that should be looked at as a separate set of items. These amendments would allow that; I do not think that they are obviated. However, we need this critical role if we are to take advantage of our excellence in research and if we are to fulfil the Government’s ambitions, as set out yesterday in the Statement. The dangers are evident already, as we see the pharmaceutical industry withdrawing and moving elsewhere. If we are to draw it back, we must have something in the Bill that sets up a full—and fully empowered—health research authority. I hope that the amendment has some sympathy in the Government.
Lord Warner
My Lords, my name is on Amendment 258. I speak as a former Minister responsible for NHS R&D in the pharmaceutical industry in 2003 and 2004. We were having exactly the same discussions then. Since that time, the National Institute for Health Research has been set up, we have had the Cooksey review, OSCA has been set up, and we have had the review by the Academy of Medical Sciences. All these cases come back to the issue of a faster, smoother regulatory approval system. The same blockages that are being talked about now were being talked about five, six, seven years ago.
In that time the UK has lost large numbers of clinical trials. We continue to lose trials and we are going to lose more to south-east Asia. UK plc suffers while we continue with these present arrangements. I understand the Minister’s anxieties about this. However, at the end of the day it is difficult to see that a new authority would be in place, even with a very smooth passage, until at least a year later than if we went along with the amendment. We need to move faster on this.
I end with one question to the Minister. Have the Government actually talked to the big beasts in science research in this area—to the Wellcome Trust, the MRC, the Academy of Medical Sciences? Have they asked them directly whether they would you sooner have the Willis amendments or wait for a Bill in the next Session. I would like to know what their straight answer to the Minister would be on that particular question.
Baroness Finlay of Llandaff
I have my name on the amendments about setting up the authority. In his response to the questions posed, I hope that the Minister will address how exactly we are going to streamline the process, as has been outlined so eloquently, and whether mechanisms such as commencement orders could be used so that we do not delay the process of speeding up research, because some parts, such as the Human Tissue Authority and the HFEA, are not yet clarified. It would be very sad to go at the slowest pace rather than storm ahead. This Government have demonstrated an understanding of research as an important economic driver to the UK as a whole, but that infrastructure, as suggested in these amendments, has to be in place and cannot wait. I hope, therefore, that the Minister will also address the timetabling in detail when he replies.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Warner
Lord Warner
My Lords, I rise to speak to Amendments 146, 148 and 149 in my name, and in support of Amendment 151, which the noble Lord, Lord Patel will speak to. These amendments are about keeping in check the cost of running the biggest quango in the country and holding it to account, through published information on its financial and service performance in the main part of its job, which is commissioning NHS services either directly or through clinical commissioning groups. My Lords, I fully accept that it is not common to put budgetary control of new bodies in the Bill that creates them. However, it is not that common to create a new huge quango that will be spending in excess of £80 billion pounds a year. As someone with long experience of quangos, I am only too aware of their capacity to grow their management budgets and roles, often through mission creep and always with plausible reasons for doing so.
When these bodies have regional and local arms, as seems increasingly likely to be the case with the national Commissioning Board, their scope for consuming more taxpayers’ money is only increased. These bodies are notoriously difficult to control in terms of their running costs and their activities over time. The history of British public administration is littered with examples of Parliament setting up bodies and then finding a decade later that they have grown in size and cost much more to run than was originally intended. That is why every so often, under successive Governments, we have culls, mergers and budget cuts to these bodies, as we have seen recently, and it particularly occurs when their running costs clearly become disproportionate to what they are actually delivering.
I do not usually do prediction, but I can predict with absolute certainty that the national Commissioning Board will follow the trajectory I have outlined, whatever well-meaning assurances the Minister gives us and whatever honeyed words are uttered by its chairman and chief executive. Our job in Parliament is to frame the Bill so that they are more likely to deliver those assurances in practice. I suggest that from the outset the Bill should impose constraints on the board’s running costs, not only to ensure that the maximum amount of NHS budget goes on delivery of front-line services but also to thwart the growth of bureaucratic procedures and curb the temptation for the board to become excessively controlling of local initiatives. We are already hearing concerns from clinicians who will be undertaking commissioning about the board becoming too controlling and, some would say, too big for its boots.
It is to these ends that I have framed Amendments 146, 148 and 149. Amendment 146 makes it clear that the board’s annual business plan must clearly state its proposed operating costs. This will enable everyone to see what they are as a proportion of total expenditure and to make comparisons over time. Amendment 148 is the really meaty amendment in this trio because it tries to make clear that from the outset the board’s operating costs are going to be controlled. It proposes that its base operating costs should be 30 per cent lower than those incurred by the predecessor bodies whose functions will be transferred to the board.
The Government say they want to cut bureaucracy—here is an opportunity to show what they are made of. Figures would be audited under this amendment by the National Audit Office but the Secretary of State could change the discount rate of 30 per cent shown in this amendment if he published reasons for doing so. In subsequent years the board’s operating costs could not go up by more than a price increase in line with the consumer price index, unless authorised by the Secretary of State. I am sure there will be lots of arguments about these kinds of amendments being inappropriate in primary legislation and the inflexibility they will cause—well, they are intended to cause a bit of inflexibility—but if the board’s operating costs increased by just 1 per cent of the total expenditure over a number of years, that would be another £1 billion spent on administration rather than service delivery.
In the tight financial climate that all public services face, it is incumbent upon us as parliamentarians to reduce from the outset the risk of the board’s operating costs getting out of control, given the size and scale of its expenditure. Amendment 149 tries to complete the controls by requiring the board’s annual report to include a statement on the financial and service performance of its own commissioning and that of clinical commissioning groups collectively. We need to know on a regular basis what the board is delivering for a given amount of money. If my wording can be improved, I would be delighted, but this is too important and potentially expensive an issue to be brushed aside by vague assurances. I promise the Minister I shall be terrier-like on this particular issue.
Earl Howe
My Lords, I recognise from everything the noble Lord, Lord Warner, said that these amendments have been proposed with the best of intentions. I start by making it clear that an independent, accountable, transparent and efficient NHS Commissioning Board is a key component of our proposals, so I hope I can reassure the Committee on these issues. In doing so, I hope my Lords will forgive me if I touch on similar ground to that covered during the debate on Schedule 1.
Let me first assure the Committee that we want to reduce the amount of NHS funding spent on back-office bureaucracy. Indeed, as we stated in last year’s White Paper, the NHS simply cannot continue to afford to support the costs of the existing administrative structure. Management costs in PCTs and SHAs more than doubled in the decade up to 2009-10, to £1.85 billion, increasing by more than £220 million in 2009-10 alone.
The noble Lord, Lord Warner, posed the question: what is different this time? Well, I believe a great deal will be different, and that is exactly why Clause 21 provides the Secretary of State with the power to set a limit on the use of resources by the board itself and by the board and CCGs together in relation to administrative matters. The meaning of what is to be considered as administrative matters will be defined through parliamentary regulations for the first time. The board has the power to set similar limits for individual CCGs. The changes that we are making will cut the overall cost of administration by one-third, and Clause 21 gives us the legislative basis to do that.
The Bill includes clear procedures around the publication of the board’s annual accounts, annual reports and performance assessments of CCGs; and I hope that I can provide reassurance in this area as well. The requirement to publish an annual report applies to all of the board’s functions, including its commissioning and financial functions and its performance assessments of clinical commissioning groups. The board is also under a separate duty to publish a report each year containing a summary of the results of each performance assessment. So I do think that the provisions in the Bill already address the concerns embodied in Amendments 146, 148 and 149.
On Amendment 151, which is grouped here, the board’s power in new Section 13X(b),
“to acquire and dispose of property”,
is necessary for the board to acquire any premises that it needs to accommodate itself for the purpose of carrying out its functions. Likewise, should it find itself with property surplus to its requirements, it would need to be able to divest itself of that property. The power simply replicates the power that PCTs currently have.
My noble friend Lady Tonge asked about the costs of transition. The modernisation programme will have one-off costs of between £1.2 billion and £1.3 billion, spread over the lifetime of this Parliament. It will reduce expenditure on administration by £1.5 billion a year from 2014-15 onwards. That is reducing the administrative spending across the system by one-third, and over this Parliament the modernisation will save £4.5 billion gross, or £3.2 billion to £3.3 billion net. So the up-front costs are expected to be more than recouped by the end of 2012-13. With those explanations, I hope that the noble Lord, Lord Warner, will be somewhat reassured. I am sure that I have not completely reassured him, but I hope that I have done so sufficiently for him to withdraw his amendment.
Lord Warner
Can the noble Earl explain to us, in writing, the comparison between the current costs of the bodies carrying out functions that are going to be transferred to the board, and what the Government’s current estimate is of the first year’s fully fledged activities of the board in discharging those functions? It would be very helpful and certainly more convincing to me and, I suspect, other Members of this House if we could see the comparative figures just for the board. I am not asking him to go into Monitor or CQC; I am asking for the figures just for the board taking on the functions that it will be taking on.
Secondly, his response did not really deal with the issue of how you keep these costs under control as the years go by. Is he relying only on the Secretary of State being eagle-eyed and briefed by his civil servants to do it, or do the Government have in mind an uprating mechanism that would curb unnecessary growth in this area?
Earl Howe
This is one area where the Secretary of State has a direct interest to ensure that administrative costs are kept low. In answer to the noble Lord’s first question, of course I would be happy to write. There is already a great deal in the impact assessment, to which I would direct noble Lords’ attention. However, I shall be happy to write an individual letter to him and copy it to noble Lords in answer to the questions that he posed.
Lord Newton of Braintree
My Lords, I wonder whether I could chip in, starting with an apology. As a result of the apparent abandonment of the previous set of amendments, I did not realise that this one had started and, therefore, have not followed everything that has been said. My remarks will be correspondingly brief. However, I have heard enough to know that I want to declare my general broad sympathy with the thrust of what the noble Baroness, Lady Williams, proposes and to link myself with the remarks that have just been made by the noble Lord, Lord Hunt, and not least those that were made while I was in the Chamber by the noble Lord, Lord Owen. They all echo something that I, and my noble friend Lord Mawhinney, have tried to say on a number of previous occasions—that there is beginning to be an absence of realism in the Government’s attitude to some of these matters. As I have said several times—and as has been said in other ways by other Peers during this debate—at the end of the day the House of Commons will not accept a Secretary of State who says, “Nothing to do with me, guv”, when something has clearly gone seriously wrong.
If the Secretary of State judges that something is happening that is not in the best interests of the health service, I do not see how he can fail to do something about it; and if he does not have a clear power to do something, I can tell you what will happen. The Government will scratch around in every corner of the Act until they find something that enables them to do something, because the Secretary of State will not be able to tell the House of Commons that he can do nothing. There is a real danger that the Government will immolate themselves, in this House at least, on the basis of an absurd proposition that the Secretary of State can somehow stand back and wash his hands of things when they are going wrong. I hope that this amendment will not be pressed to a Division tonight, because I do not think it would be sensible. We need to reflect on what the Minister says, but he needs to reflect on what is being said to him and to be prepared to come back with something different on Report.
Lord Warner
My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State’s mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.
The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.
Lord Hunt of Kings Heath
Perhaps I could try to answer my noble friend. There are two reasons why this is important. First, there is a real risk that the mandate will become so large and extensive to cover the Secretary of State—who wishes to transfer responsibility to the national Commissioning Board—that we will end up with a real fudge about who is actually responsible. Secondly, there are circumstances. Until last week, I do not think that many people knew that once a trust had allowed its waiting times to go beyond 18 weeks, there was a problem with some of them taking their eye off the ball. If a patient missed the target, often he might have to wait for weeks. It is quite possible that even if the mandate is as extensive as I suggest it might be, there will be circumstances in which the Secretary of State may need to intervene. It is not the case of having time to rewrite or edit the mandate, or look at the standing rules. The Secretary of State may need to intervene on the day that an issue arises. All that I want to do—and I suspect the noble Lord, Lord Marks, also wants this—is to make sure that the Secretary of State is able to intervene in circumstances that we cannot necessarily anticipate but, knowing the health service, we suspect will arise from time to time.
Lord Hunt of Kings Heath
My Lords, my Amendment 154 brings us to a group of amendments which consider a number of interesting points about clinical commissioning groups and their relationship with GPs, other contractor services and local authorities. They also allow us an early canter at probing exactly where the Government’s policy on clinical commissioning groups currently is.
My first Amendment 154 is partly probing, but it is also to ask why membership of a clinical commissioning group is only confined to general practitioners or, in the jargon of the Bill, providers of primary medical services. What about the other contractor professions within primary care: the dentists, the pharmacists and the ophthalmologists? What about primary and community nurses? I would not in any way seek to undermine the potential leadership role of general practitioners, but they are part of a primary care team. It is rather unfortunate that other members of the primary care team were not considered worthy of membership of a clinical commissioning group.
I must say that I have yet to hear any rational explanation as to why GPs only have been singled out for this exalted membership of a clinical commissioning group. It would have been perfectly possible to have brought all the contractor professions and, I would hope, primary care nurses, into membership of a clinical commissioning group, and then to have a governance structure which none the less recognised the pivotal role of GPs but did not exclude the other professions. One could have had a weighted voting system or some other way of reflecting that yes, GPs are clearly a very important profession in primary health care, but they are not the only one.
I am curious to know why the Government did not adapt that approach, and how they expect clinical commissioning groups to really relate to the other professions. How can they bring them on board? I think of rural clinical commissioning groups and rural dispensing, and how there can be terrible tensions between GPs who dispense in rural areas and community pharmacists in those areas. If I were a community pharmacist, I would be rather concerned that the rural clinical commissioning group is not at all going to act in the interest of community pharmacy. It is almost bound to act in the interest of rural dispensing general practitioners.
I would be interested therefore, if the noble Earl, Lord Howe, could give some further explanation as to the construct of clinical commissioning groups. I should say to him that, having talked to dentists and community pharmacists, they are really concerned that they will be excluded from the decision-making process within clinical commissioning groups, and that it will be purely GP-dominated. Some of the people most concerned, and quite rightly, are primary care nurses, whose voice should be heard. One fears that the traditional approach will be to exclude them from those discussions when they have an enormous amount of expertise to bring to the table.
Amendment 158 is a probing amendment. It relates to the areas of clinical commissioning groups and argues that clinical commissioning groups ought to be coterminous with the boundaries of a local authority or contiguous group of local authorities.
I stress to the noble Earl, Lord Howe, that this is a probe. If health and well-being boards are to work well, there clearly needs to be an integration of public health and commissioning between the various groups at local level to make sure that they come together in a cohesive plan and at interventions. It is very important that clinical commissioning group areas at least do not go over into other local authority boundaries. There is an argument for coterminosity, but of course I do accept that in some areas that would make the clinical commissioning groups far too large and that is why I stress to the noble Earl that this is a probing amendment.
In the county, non-metropolitan district areas where you still have a two-tier system, I would have thought there is some concern about the involvement of the non-metropolitan district councils in the arrangements for liaison between local government and clinical commissioning groups. While it does not strictly come within the remit of this amendment, it is a matter to which I suspect we will want to return at Report stage.
Beyond that, this is a good opportunity to ask some serious questions about clinical group commissioning. It seems to be clear that there is now increasing anxiety among GPs that the likelihood of them having significant control of commissioning is becoming remoter by the day. The noble Earl will be aware of the BMA’s decision to come out decisively against the Bill. But I have also noted with great interest a press release by the NHS Alliance, which of course has been very much a flag waver for the Government, in which it complained about bullying taking place by the system in relation to clinical commissioning groups. The headline is that doctors leading the NHS reform changes report coercion and bullying in the way the organisations are being set up, which followed a survey of a number of pathfinder clinical commissioning groups. The survey asked: “Do you believe that your clinical commissioning group is being coerced or bullied in how you are setting up in ways that conflict with what you feel would benefit your local population?” Out of the 67 clinical commissioning groups surveyed, 60 per cent answered yes. So much for this hands-off approach that we have been promised. Clearly things have changed. When this started the assumption was that we would have a large number of clinical commissioning groups covering fairly small areas where GPs would actively be involved around the table in commissioning decisions. It has been made abundantly clear that CCGs would not be authorised unless they merged into much larger organisations covering very large population bases.
I wonder whether the noble Earl could perhaps say how many clinical commissioning groups he now expects to be informed. Can he also confirm that they are going to be forced to obtain external commissioning support? Indeed, they have been promised the delight of a bureaucratic procurement process for that support lasting, I understand, up to 12 months. So they are also clearly being leaned upon to use the private sector for such support and they are being forced also to merge commissioning for large-scale commissioning projects. No wonder some GPs are beginning to wonder what this is really all about and whether one beast is being replaced by another. Today Dr Michael Dixon, the chair of the NHS Alliance, told the annual conference about the challenges ahead for clinical commissioning groups or, as he called them, the nation’s future clinical commissioners. He said that they will be confronted by the demons of self-interest, factional politics, ignorance, laziness and raw emotion. They will be hated by all of those who have fed from the gravy train of the current system.
I am a longstanding admirer of Dr Dixon, not least because of his pressure when I was in government to give support to complementary medicine, which I suspect that noble Earl, Lord Howe, now enjoys as well. But I think he made those remarks because he knows, deep in his heart, that the game is up. Whatever one thinks of the Government’s reforms and whatever changes have been made as a consequence of the listening exercises, I had always clung to the thought that the Government were serious about giving GPs control of commissioning. It has become abundantly clear that this is not the case. GPs have been sold a dupe and so too has Parliament, I fear. I beg to move.
Lord Warner
I speak to Amendment 157 which is aimed at containing the number of clinical commissioning groups and their total operating costs. I have some sympathy with the remarks made by my noble friend, but before I go into the detail of these particular amendments, I want to give a little context.
My Lords, there has been a great deal of concern expressed by many people who are well versed in the background and activities of the NHS about the number and small size of clinical commissioning groups that might emerge. I do not condone bullying, but we have a problem. The smallest population size for a CCG that I have come across is 18,000 for Radlett, near Watford. I asked the Minister for the Government’s latest estimate of the number of clinical commissioning groups likely to be operational in April 2013. In his answer to me on 9 November, he said:
“It is too soon to estimate the number of clinical commissioning groups that will be operational in April 2013. There are, however, currently 266 pathfinder CCGs covering 95% of GP practices in England”.—[Official Report, 9/11/11; col. WA 58.]
So it is possible that there could be about 280 clinical commissioning groups when all practices are covered. This is far too many to be effective, for reasons I will explain in a moment. We are getting into an extraordinary position. It seems almost an article of faith, or really bold ministerial courage, for the Government to be embarking on this massive NHS reorganisation, at a time of great financial challenge, without knowing, 16 months before they go live, how many clinical commissioning groups—the bodies that will be handling large chunks of this money—will be in place. That seems a pretty racy way to live with a national icon like the NHS.
We will come to the competency tests for CCGs in later amendments. If those competency tests are to mean anything, a significant number of these groups could, presumably, flunk them. Or will all the geese suddenly become swans? What light can the Minister throw on the likely failure rate for clinical commissioning group applicants? When will we have more reliable data on how many clinical commissioning groups we are likely to end up with? For the purposes of discussing the amendment, I will assume that the Government anticipate having something of the order of 250 clinical commissioning groups by April 2013. For many of us, this would seem far too many, and totally fails to learn the lessons of history. As someone who had to learn the lessons of history in the area of commissioning the hard way, I want to share some of that experience with the House.
In 2002, the previous Government set up 302 primary care trusts to undertake commissioning. To some extent, in doing this, it was following the course that this Government are trying to pursue—of getting commissioning closer to local populations. That was one of the arguments for doing it and it is not one which I would quarrel with, in principle. But, like clinical commissioning groups, small PCTs were expected to be able to carry out most of the functions of a commissioner. They needed to have all the skills to undertake commissioning, they needed to be effective demand managers, they had to have the muscle to stop acute hospitals gobbling up too much of the money and they had to be able to secure a more appropriate balance between community-based and hospital-based services in their delivery. They failed, and their failures were shown by a number of reports by the Health Select Committee in the House of Commons. They failed because many of them were simply too small and there were too many of them for the commissioning capability nationally available to be able to staff and run that number of bodies. We are heading down exactly the same path with clinical commissioning groups. The manifestation of the failure of the PCTs was the financial meltdown of the NHS in 2005-06. This meltdown occurred after several years of 5 per cent real terms growth in NHS expenditure and in the middle of a financial year with 5 to 6 per cent real terms growth. This is not the situation that clinical commissioning groups will be faced with.
Baroness Murphy
My Lords, is not the whole point of the formation of clinical commissioning groups that it should be a local solution that fits the configuration of a particular urban or rural area and that it should be decided locally with the Commissioning Board what the best fit is? I take the point made by the noble Lord, Lord Warner, that size is an important issue as to whether one is favouring individual GP commissioning of a personal family health service or whether one is going for the much bigger purchasing of population services. Surely the big difference with this Bill is that PCTs had no real central support for developing commissioning in the way that clinical commissioning groups will have very explicit support from the Commissioning Board. I can see that the noble Lord, Lord Warner, is shaking his head, but I think that makes a huge difference because we have seen the concentration of emphasis by the Department of Health on the acute sector, and to get a way towards having much greater leadership from the centre in developing commissioning seems to me a very positive thing.
The noble Lord, Lord Hunt of Kings Heath, asks why is it only GPs—why do all professionals not get involved? All local primary care clinical professionals should have an input to the groups’ deliberations, but surely the obvious answer is that it is GPs who specifically use resources for their patients from secondary care. They actually determine the costs in secondary care through their use of secondary care hospitals; they intervene to stop secondary care—they have the possibility of doing it through provision of primary care; and they have enormous control over the funding, potentially, of the hospital system. It seems absolutely obvious that it should be GPs. The input of local dental practitioners, opticians and pharmacists is vital but they do not play the same financial role and that is why it seems to me it has to be GPs.
We cannot in this Chamber fix this Bill to lay down rules for the development of clinical commissioning groups. It would be absurd. The Commissioning Board and local people who are going to contribute to it have to make that decision. They have to be the ones to make it work. If they need to come together to commission services for rare conditions, that is fine.
Lord Warner
There are very few things in health policy on which I disagree with the noble Baroness. However, this House needs to look at what the evidence base from GP fundholding and practice-based commissioning shows us. The evidence base shows that GPs did quite well in commissioning some services. However, their actual impact on reshaping services out of acute hospitals was virtually zero. There have been some very good evaluations of GP fundholding and some less good evidence from practice-based commissioning. These showed that GPs got very close to their patients, understood what they wanted and reshaped some services. The transaction costs were seriously high in GP fundholding, which demonstrated that doing good commissioning requires a lot of data collection and analysis, which does not come cheap.
We need to understand the issue of muscle. People like the Nuffield Trust have done some good work on this. At the end of the day, the GP commissioners we have had so far were not strong enough and did not have big enough budgets or the analytical capabilities to call the shots with acute hospitals. That is the bottom line. I strongly support GP commissioning in principle. However, we are in danger of repeating the mistakes of the past and not learning from those experiences.
Baroness Murphy
I do not disagree with the noble Lord, Lord Warner. It is absolutely true that there is a balance and that size is important. Nevertheless, at the moment we are going back to a size that is approximately the same as the old district health authorities that we had between 1983 and 1992. They survived for quite a long time—
Lord Warner
I thought I would get my question in before the noble Lord gets warmed up again. He said there is no indication from the evidence from the past of what the right size for a PCT was, but there is some evidence from the past. I do not think that there was ever constructed a PCT of under 100,000 population, which compares with 18,000 in Radlett for a CCG. If you actually look at what happened when we asked PCTs and SHAs to work together and engage in local consultation in 2005-06 on reformulating PCTs, the general thrust of what they came forward with was twofold: it was to be bigger in size and to be a better match with the boundaries of the upper-tier local authorities, which were the social services authorities. So there was some evidence that people themselves, when engaged in an exercise of reorganisation, moved towards bigger organisations and coterminosity with social care authorities.
Earl Howe
Earlier on I noted that the noble Lord drew parallels between CCGs and his attempts when he was a Minister to reduce the number of PCTs. I do feel there is a critical difference. The decision to establish a certain number of PCTs was taken in Richmond House by Ministers. I am not saying those decisions were arbitrary—of course they were not—but they certainly were not bottom-up. With CCGs, the onus is on GP practices to determine the most appropriate size and configuration for their local population. As I have said, the board will then rigorously assess whether this proposal will result in the CCG being able to fulfil its functions. That is a judgment, but it is a proper fitness for purpose test which PCTs never had to go through. I simply do not accept that, come April 2013, there is likely to be a raft of CCGs failing. If a CCG’s proposed constitution is not robust, then it will not receive full authorisation.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Warner
My Lords, I just wanted to make a couple of observations and ask the Minister a question on this group of amendments. First, this is a not a new area that we are getting into. The same issues arose with GP fundholding and with practice-based commissioning. We have managed, as I recall, to sail through those two areas where we have involved GPs in the commissioning of services where there was potential for conflicts of interest without any great scandals. Has the department looked at the experience on this issue of conflicts of interest with practice-based commissioning and GP fundholding and seen whether there was a major issue? My recollection of all this from the research on GP fundholding was that there was not an issue and it was handled perfectly sensibly.
Secondly, if we actually have bigger clinical commissioning groups—and I promise the Minister I am not going to reopen the debate we have already had, no doubt to much relief in your Lordships’ House—the smaller the risk, I would suggest, of conflicts of interest. There is a different set of considerations if you have got a clinical commissioning group for a population of 18,000, where inevitably there is going to be much greater potential for a conflict of interest, to one in which you are commissioning for 400,000. There is a different order of magnitude and I wonder whether that is an issue that the Government have looked at.
Thirdly, if there is concern about sanctions, the thing which really counts with doctors is the prospect of being reported to their professional bodies. It is the GMC and professional misconduct which is the big issue. We should not invent a system which is based too much on local government. It should be bedded into the professional body and the misconduct issues, because that is likely to be the way that it will have most effect with doctors involved in commissioning.
Lord Marks of Henley-on-Thames
My Lords, I rise to speak to Amendments 175E, 176AA to AD, 213C and 220A, all in the names of my noble friend Lady Williams, the noble Lord, Lord Patel and myself, and in the case of 220A in the additional name of my noble friend Lord Clement-Jones. The purposes of these amendments are first to secure on the face of the Bill a thoroughly robust regime to avoid conflicts of interest sullying the commissioning process, and secondly to ensure transparency in the commissioning process to the greatest extent that is commercially possible. Taking the point made by the noble Lord, Lord Warner, a moment ago, that this is not an entirely new area, I suggest that the arrangements for commissioning proposed in this Bill risk raising the threat level from conflicts of interest in the commissioning process from “moderate” to “severe”, if I may use the intelligence services’ scale. That is because of the greater involvement of practitioners in the commissioning process, which is of course to be welcomed for many reasons, and the increased likelihood that many practitioners may also be providers of other healthcare services or have interests in such providers.
Our task is to reduce the threat at least to “substantial”, and then to manage the threat in such a way as to avoid commissioning decisions ever being skewed by the private interests of those making the decisions. Much of what we propose ought to be uncontroversial, and merely represents good practice, but we suggest, and in this I agree with my noble friend Lord Greaves, that it is important that our commitment to best practice is made clear on the face of the Bill. Amendment 220A would impose on any provider of medical services who is also a member of a CCG a duty to declare any financial interest in a commissioning decision—a bare minimum proposal, I suggest. Amendment 213C would impose on the NHS Commissioning Board a duty to refer a member of a CCG to his or her relevant professional body for material breach of the provisions or of the guidelines we propose. I entirely agree with the further point made by the noble Lord, Lord Warner, that this is an appropriate way of dealing with offending by practitioners. It should not be for the board to act as, or to set up, a disciplinary tribunal, but it is sensible and a greater deterrent, I suggest, for the professional bodies to do so.
However, the meat of our proposals is in Amendments 176AA to 176AD. We propose a thoroughly transparent regime as the best and most effective way of protecting commissioning from the insidious effects of conflicts of interest. I say insidious—and this is a point in which I pick up on what was said by the noble Baroness, Lady Finlay—because it is not only when a public decision-maker acts deliberately to favour his private personal interests that conflicts arise and threaten the system. It is also when the decision-maker at least persuades himself that his interests and the public’s interests coincide. It is only public scrutiny of the process that can properly test that.
The provisions in the Bill permitting some public access to the meetings of governing bodies of commissioning groups are, I suggest, over-cautious and too limited. The system should be made more open. The public should not be excluded from governing body meetings during the all-important discussions involving a choice between potential providers. I entirely accept that that would involve a new openness about commercial transactions and decision-making. However, these decisions are about choices between providers at public expense; I question the need for meetings to be held behind closed doors in relation to them.
Secondly, in the case of other decisions where the public are excluded from governing body meetings in the public interest, then a record of decisions made should at least be published, and quickly. That is the subject of Amendment 176A.
Our amendments set out a code for dealing with conflicts of interest in new paragraphs to go into the schedule. There would be a requirement for a register of interests of all CCG members. That register should be kept up to date. It should be kept available for public inspection. Then there would be a provision to exclude from the governing body of any CCG a director of a healthcare organisation or anyone with a significant financial interest in such an organisation if there is a contract in existence between that CCG and that organisation.
Thirdly, there would be a provision to ensure that a member of such a governing body who would be excluded if such a contract came into existence would have to stand down from the governing body while any negotiations for such a contract were in progress.
Finally, our amendments import the admirable guidelines produced by the General Medical Council, entitled Good Medical Practice. Those are the guidelines to which the noble Baroness, Lady Finlay, referred. I am grateful to the GMC for producing a document of such clarity and for welcoming our use of it in these amendments. The emphasis of the guidelines is on honesty and openness; that is what we are trying to achieve in this Bill. I believe it is what the Government are trying to achieve in this Bill. These are probing amendments, intended to give the Government an opportunity to consider how they might import such guidelines into the Bill at Report stage. However, our central point is this: we believe that the present provisions of the Bill do not display the seriousness, the clarity or the robustness that are required to meet the risks posed by the new arrangements. I suggest that the Bill cries out for a code in this area such as the one we have proposed.
Lord Warner
Lord Warner
In moving Amendment 159 I shall also speak to Amendments 160 and 164 in my name. I start by emphasising that this is a package of amendments that relates to many concerns that have been expressed to me and others—namely, that we need to make very sure that we ensure the assessment of competence of CCGs is sound and open before they undertake the commissioning of services that this Bill will enable them to do.
My earlier Amendment 157 enabled us to debate the number and population size of clinical commissioning groups, both of which considerations have a considerable bearing on the issue of competence of CCGs. I will not rehearse those arguments again except to emphasise that if the Government go ahead with such a large number of clinical commissioning groups, as it seems may well happen, then it is even more necessary to tighten up the Bill’s provisions on proof of competence and the ability of the National Commissioning Board to reject applications where competence is in doubt. It is for those applicants to take on the role of a clinical commissioning group to prove that they are competent to take on this task and to safeguard the public money that will be entrusted to them.
Amendment 159 makes it clear that in submitting an application to the board, the clinical commissioning group applicant must demonstrate that it can meet the requirements of commissioning competence specified by the board. If its application does not do so then the board should be able to reject it out of hand. The onus is on that group to show that it is competent to undertake the commissioning. It seems to me that clinical commissioning groups will have had plenty of time to assemble their case and to prepare for their application. The Bill should make it absolutely clear that a demonstration of competence should be mandatory in submitting an application. If I can put it crudely, we do not want to see people taking a punt. They have to be able to demonstrate that they can actually do the job, otherwise public money and safety will be put at risk.
Amendment 160 is linked to Amendment 159. It requires that when the board publishes information for applicants, that information document must specify the competencies required to commission health services. This problem of specifying competencies in commissioning has bedevilled the whole movement towards commissioning over several decades. Mark Britnell’s attempts at world-class commissioning ran into the same problem—we were not sufficiently clear about what competencies would deliver good quality health services from commissioners. So this competency issue is at the heart of making clinical commissioning groups work. It is vital that the board is left in no doubt of its responsibility for doing this and that applicants are in no doubt that the competency hurdle that they have to clear is put very clearly to them before their application can be accepted. What we do not want to see, if I may put it this way, is a load of well meaning waffle coming out of the board about commissioning. We want to have articulated the competencies that have to be met before applicants can be successful. Amendment 164 rounds the whole process off in terms of applicants showing that they can discharge clinical commissioning group functions “competently”, which is the word which it adds to the Bill.
These amendments make it clear that Parliament regards competence in commissioning as the yardstick by which the success or failure of applications to become clinical commissioning groups will be judged. This issue should be uppermost in the mind of the board when it makes decisions, and wording that makes this clear should be on the face of the Bill. Competence in commissioning has been missing in the past and we are in danger of repeating the mistakes of the past by not making it absolutely clear in this Bill what is required of the applicants to be clinical commissioning groups. I beg to move.
Lord Hunt of Kings Heath
My Lords, I have a number of amendments in this group. I will start with Amendment 159A which questions why, on page 9, line 36, it is possible for non-providers of primary medical services to be eligible to apply to establish a clinical commissioning group. Particularly in the light of my noble friend’s comments on Amendment 159, one would surely only want applicants who had experience of providing GP services to be able to apply to form a clinical commissioning group.
Amendment 160A requires the board, before considering an application to form a clinical commissioning group, to consult with the general public, the relevant local authority, the relevant health and wellbeing board, and patients receiving primary medical services from providers within the clinical commissioning group. The noble Lord, Lord Greaves, raised some pertinent questions about transparency in the formation of clinical commissioning groups. It is extraordinary that there seems to be no process by which putative CCGs consult with their patients before they make an application. The decision is, essentially, being made by bureaucrats within the National Health Service system—who put constraints on CCGs,—and the GPs themselves. Where on earth are the public in all of this?
Earl Howe
My Lords, these amendments are all concerned with the process of the establishment of CCGs or changes to the established organisation. The Bill lays the groundwork for the NHS Commissioning Board to establish CCGs. Ensuring the competence of an applicant group to exercise the functions of a CCG is a key part of that process.
In the first instance, the board may publish guidance on the making of applications and this may include details of how it will assess the fitness of CCGs for establishment and therefore their suitability to assume responsibility for exercising their commissioning functions. That is really what Amendment 159 is trying to get at. The whole process is intended to ensure that the CCG has made appropriate arrangements to discharge its functions competently. If the board is not satisfied about that, it will not grant the CCG’s application, or else it will grant it subject to conditions under the transitional arrangements.
I can confirm that we intend to make provision in regulations to require the NHS Commissioning Board to take the views of the shadow health and well-being board into account when they consider the establishment of a CCG. Health and well-being boards will be able to provide insight into the willingness and ability of a prospective CCG to be involved in partnership working and engaging with the local population. That is the theme of Amendments 160A and 162.
However, in my view, wider mandatory consultation with the public, either by a prospective CCG or by the board on receipt of an application to be established, would be completely disproportionate and add unwarranted delay to the establishment of new arrangements. We already have intelligence that early implementer health and well-being boards are engaging in constructive dialogue with CCG pathfinders about the right size, area and configuration to best meet local patient needs. That is fine, but problems arise when you start to mandate it. I am very uncomfortable about that. Consultation with the public has its rightful place but I was completely unconvinced by the argument of the noble Lord, Lord Hunt. For my money he simply has not made the case.
We also need to ensure that we do not have a cumbersome process for agreeing changes to CCGs, which may evolve over time as organisations and may choose to merge formally or to adapt their constitutions, which of course would need to be agreed with the board. A number of amendments in this group seek to require consultation, with the public, the relevant local authority, the relevant health and well-being board and patients receiving primary medical services from providers within the CCG, for different processes: establishment, variation, merger or dissolution of CCGs. The Bill as it stands would set clear duties for patient and public engagement in new Section 14Z. CCGs would have to engage the public in their planning of the commissioning arrangements; in the development and consideration of commissioning proposals, which would have an impact on the manner in which the services are delivered to the individuals; and in the range of health services available. They would also have to engage on decisions of the CCG affecting the operation of the commissioning arrangements where implementation of the arrangements would impact on individuals or the range of services available. The CCG would also have to consult the patients it is responsible for on its commissioning plan. That is quite right and proper and I hope that, in that area at least, there will be some agreement across the House.
As regards local authorities and health and well-being boards, these boards will include representation from the local authority and CCGs. I suggest that is the ideal forum for CCGs to discuss proposals such as mergers with their fellow members. However, it would not be appropriate to impose an explicit requirement for CCGs to consult the board on such matters.
Turning to Amendments 164B, 166A, 166C and 167C, tabled by the noble Lord, Lord Hunt of Kings Heath, I commend the report of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House. These amendments would make the resolution procedure for certain regulation-making powers relating to applications between CCGs and the board affirmative. This approach was rejected by the DPRRC, which found that the negative resolution procedure would give noble Lords ample opportunity to consider regulations laid before the House covering determination of applications for establishment of a CCG, for variation of CCG constitutions and on dissolution of CCGs.
The noble Lord, Lord Patel, asked me about competencies. In September the department published Developing Clinical Commissioning Groups: Towards Authorisation, which sets out our current thinking on the domains that the Commissioning Board may wish to use as indicators to judge the competencies of prospective CCG commissions.
While I know that there will not be a meeting of minds over this, I hope that I have at least fleshed out what the Government’s intentions are. There will, obviously, be opportunity for further reflection on these matters.
Lord Warner
My Lords, I was not convinced by the noble Earl’s views on the number of clinical commissioning groups in our earlier debate. I was even less convinced by what he had to say about competencies. There was a lot of talk about, “The board may wish to do this”, and, “The board may wish to do that”, on competencies. The problem of healthcare commissioning in this country has actually been the lack of competency. That has been the problem for 10 to 20 years, under successive Governments. If we miss the boat again on this issue, we are making a great blunder.
I do not want to go over the ground about consultation with the public at all. I am interested in having in the Bill that the critical requirement of becoming a clinical commissioning group is competency to do the job, and that the board is required to specify what those competencies are, before people make an application. My noble friend Lord Hunt has made the perfectly sensible observation that while we are sitting, chatting about this Bill, people out there are doing the business about who will be clinical commissioning groups. That is what is actually happening. We need to make sure that they are under no illusions that competency is the yardstick by which they will be judged. I am not satisfied with the Government’s response and wish to test the opinion of the House.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Harris of Haringey
No, the reason being that it may not be an emergency situation; it may be that an individual is being passed from one agency to another. The point at issue is a risk and the mitigation of that risk. The risk may be that an assessment has been done suggesting that a person is at risk of suicide. They may well not commit suicide; there may well not be an emergency; or there may well be things that the receiving agency can do which will reduce that risk. However, there is no emergency so there would not be circumstances in which you could say it is in response to a particular situation; it is to avoid a situation arising. I am sure that there could be a form of words which would both deal with the concerns the noble Lord has highlighted and permit the sensible passing on of information to safeguard the right to life of that individual. I do not think Amendment 153ZZA quite deals with that point, and the Minister may want to respond to that when we get to that stage.
The final amendment I wish to speak to, very briefly, is Amendment 299C in the name of the noble Baroness, Lady Finlay of Llandaff. I, too, think it is extremely important that NHS services explicitly in the Bill must not use NHS business to recruit private patient business. In a context where again we will see the fragmentation of services, the arrival of all sorts of new providers and the possible blurring of distinctions between NHS provision and that provided privately by NHS practitioners, this needs to be made explicit. It is already an issue. I will cite my personal experience. The last but one time I visited my general practitioner—I think it was the first time for some five years—he declined to make the referral for secondary care I wished to have, saying that I probably had not looked after myself as well as I should have done, but then he pushed across the table a card advertising his Chinese medicine service. I thought that was extremely inappropriate—disregarding whether it was an appropriate treatment; as far as I am concerned it is non-evidence-based medicine.
Under any circumstances for there to be a blurring of the NHS responsibility of a practitioner and their private concerns seems extremely dubious. It is important it is made explicit that this is not permitted. In a previous series of exchanges the noble Earl has said it is quite clear what should happen under those circumstances. However, it does happen and what is permitted becomes increasingly confused. Even if medical practitioners are not abusing their position, or there is no blurring of those lines and everyone has been quite proper, it is perfectly feasible that patients will be confused and will not be clear as to what is happening, and that will colour future relationships they have with people providing medical services to them. It certainly coloured my relationship with that GP because on the last occasion I saw him I was extremely dubious about receiving any advice from him. I confess I referred to him as being patronising. This was perhaps inappropriate; it was certainly unwise as he was about to perform a rectal examination. None the less, it certainly coloured the relationship we had. In the interests of both patients and medical practitioners the amendment of the noble Baroness, Lady Finlay of Llandaff, should be in the Bill.
Lord Warner
My Lords, I do not intend to follow that in a similar style. I support Amendment 144 in the name of the noble Lord, Lord Patel, to which I have added my name. I do not want to go over the ground covered by the noble Lord, Lord Patel, but I just wish to share with the Minister in particular and the House in general my own experience from introducing near-miss reporting in the NHS when the National Patient Safety Agency was established. In those good old days the figure was around 800,000 a year. The current figure, as my noble friend Lord Patel said, is of the order of 3,000 a day; it is on an upward incline.
The issue at stake in those days was not the principle of trying in effect to copy the airline industry and improve safety by having people come clean about near misses—some very serious, some less serious. No one disputed the merits of trying to learn from those experiences. Where everybody got a little concerned was around the making public of the information. I will not delight the House with some of the discussions that took place in Richmond House about whether the first lot of information should be made available, because who knew what the Daily Mail would do with it? Noble Lords will be pleased to know that the Daily Mail behaved in a predictable manner and ran screaming banner headlines about how near to death 800,000 people came each year.
The important point was that one was beginning to change the culture of the NHS, which knew that the information was being put in the public arena. The problem with the Bill is that it leaves to the board the decision about how to disseminate information. We as citizens would be better off putting in the Bill the specific organisations to which the information should be disseminated—which is what the amendment of the noble Lord, Lord Patel, does. I strongly support it and hope that the Minister will give it very careful consideration, and will carry on the publication and dissemination of the information on an agreed basis.
I will make a couple of remarks in response to the concerns expressed by the noble Baroness, Lady Williams, about a market in commissioning skills. I have no particular wish to promote a market in commissioning skills. However, as a former Minister responsible for the performance of primary care trusts, I say that many trusts seriously lacked commissioning skills. These were lacking particularly in areas such as collecting information, analysing it and using it to establish need and to procure services to meet those needs. We should not in the Bill do anything to limit the ability of the new clinical commissioning groups to receive and acquire the skills to enable them to do their job effectively, wherever the skills may be located. That is a very important part of introducing successful new arrangements for clinical commissioning.
I pray in aid of that approach the history of Dr Foster. The dear old NHS had been collecting data for decades but was unable to use them effectively to improve performance. It took an outsider coming in—Dr Foster—to use the information and turn it into something that was useful to the NHS in terms of improving its performance. We should not be too hung up on precisely where clinical commissioning groups get their skills from to do their job.
Baroness Thornton
My Lords, I forgot to speak to my Amendment 137A. I will make three points. The first is not about my amendment. I say how much I agree with the noble Baroness, Lady Williams, on the issues that are the subject of all the amendments to Clause 20, and of the debate and discussions that we are having in the Chamber and outside it about the mandate. I also say to the noble Lord, Lord Marks, and my noble friend Lord Harris that there is clearly an issue about information and confidentiality that must be addressed before the Bill leaves the House.
I will also say how much I agreed with the orphan amendment of the noble Baroness, Lady Finlay. Mine, too, is something of an orphan amendment but is rather important. Amendment 137A states:
“The Board must ensure that in relation to its duties under sections 13C to 13N, those persons in the private sector contracted to provide health services must contribute in the same way as public providers towards the achievements of those duties”.
Those duties are to do with the NHS constitution, effectiveness, quality, reducing inequalities, patient involvement, patient choice, innovation, research, integration, and the impact of those services. It is very important that we have clarification that all providers have a duty to promote those.
Lord Warner
My Lords, can I ask the noble Earl a couple of questions, on which I would be grateful if he could write to me and to any other noble Lords who are interested? I found two of his answers a bit unconvincing. The first was on Amendment 144, tabled by the noble Lord, Lord Patel. I would really like to know how the Minister will ensure that the board will disseminate this information on patient safety and put it in the public arena to a wide group of people. At the moment, as the Bill is, it is left totally to the discretion of the board as to how it will behave. Secondly, I did not find the Minister’s answer on rare diseases and mandatory guidance very convincing. I would really like to know what discussions have taken place with those such as the Royal College of General Practitioners and clinical commissioning groups, about their appetite for making local decisions on these very rarefied diseases without the kind of mandatory guidance that the noble Lord, Lord Patel, spoke about. I do not expect an answer now but I would like some more written guidance on that.
Baroness Cumberlege
My Lords, I was heartened by a lot of what my noble friend said about maternity services, but it seems that the variations will be reduced through NICE quality standards. I understand that NICE has a very long queue of services to be considered for quality standards and I wonder whether my noble friend and the Government have any influence over which services have priority to have their standards set early and which will have to wait. As maternity involves a tremendous number of women who are giving birth, it is really important to get it in the front of the queue, as far as possible.
Lord Warner
My Lords, I rise to speak in support of Amendments 124, 125, 126 and 196, which are in my name in this group. These amendments are on slightly different aspects of patient involvement and patient choice in new Sections 13H and 13I in Clause 20.
Amendment 124 adds words to the duty under new Section 13H to promote the involvement of each patient. Nothing seems more likely to promote that involvement than ensuring that patients have easy access to their own medical records and, even better, hold their own medical records. The amendment puts those matters in the Bill as part of the duty of promoting patient involvement in decisions about their treatment and care. If patients are to be involved in decision-making, it is important that they can be confident about the information about them that is being held by clinicians and used by those clinicians in making decisions about them. We have moved a long way from a position in which doctors could say, “Trust me, I’m a doctor”. That is not to say that patients do not place a lot of trust in doctors, but the more examples of systems failure that patients hear about, the more I suspect they will want to be sure about what the system has on record about them. This is particularly true when we are dealing with end-of-life issues. Some of us are very keen to ensure that doctors and nurses observe our advance decisions in living wills that are placed in medical records rather than just make decisions on our behalf.
Amendment 125 literally follows on from Amendment 124 and reflects a number of conversations that several of us have had with National Voices, which speaks on behalf of many charities, especially those representing people with long-term conditions. National Voices, with assistance from the Health Foundation, has drawn on a lot of work to distil what it believes service-users expect from those commissioning care. The noble Baroness, Lady Finlay, referred to the work being done by the Health Foundation. This work with National Voices was born from the huge frustration of patients, service-users and carers about the way that they are often treated by those providing services. National Voices has also set out the results of this work in an excellent document called Principles of Integrated Care. Many Members of this Committee may well have a copy of it. If the Minister has not seen it, I commend it to him. I am certain that it has been sent to Sir David Nicholson. Around 50 chief executives or chairs of voluntary organisations involved with National Voices signed a letter to him, commending this piece of work.
Amendment 125 tries to ensure that there is a clear obligation on clinical commissioning groups to pay heed to patients’ and service-users’ voices in their commissioning of services and that the board issues guidance in this area to clinical commissioning groups. I hope that today the Minister will at least take away this amendment, discuss it in detail with National Voices and those of us who are involved in this area, and agree a version that can be included in the Bill and with which everyone is content. Of course, if he wishes to say “Snap!” to these words, we will be delighted. I emphasise that Amendment 125 does not come from the fertile minds of people in this Committee. It comes from the experience and views of many thousands of people with long-term conditions whose representatives have discussed and researched this very thoroughly within the ambit of the Health Foundation and National Voices.
Amendment 126 is on a different topic altogether. It tries to sharpen the duty of patient choice in new Section 13I in Clause 20, which in my view is pitifully vague. When they are exercising choice, people need to know what the speed of access to diagnosis and treatment is; where the location options and alternative providers of service are; and some information on the different levels of performance by those providers. Choice cannot be exercised in a vacuum. If people are to exercise meaningful choice, they need information that they can draw on to make their decisions about what is best for them. They should not simply be guided to local incumbents, which is too often the case in the system as it works now. Very often, those local incumbents may not be the best option for the patient seeking services for their particular condition at a particular time in their life.
I speak with some confidence on this, having spent two years as a Health Minister trying to advance the cause of patient choice. I have had a fair exposure to clinical views about patients not wanting it and just wanting a good local hospital. I have seen at close quarters commissioners in excessively close relationships with local providers. I have heard the voices of patients frustrated at being denied the information they need to exercise choice. I have experienced, at first hand, consultants declining to place their consultation slots on the Choose and Book system. I know that we need much more than the vague wording of new Section 131 in Clause 20 of the Bill. I hope that the Minister, who I know to be a strong advocate of patient choice, will throw away his brief and say yes, we do need more specific wording of the kind in Amendment 126.
I hope the Minister will do likewise in respect of Amendment 196, which applies the same increased precision to the duty as to patient choice and places it on clinical commissioning groups as well as the board. I will not go over the arguments again, as they are exactly the same as those I have deployed on Amendment 126. It is even more important to disturb the cosiness of provider incumbency when we come to clinical commissioning groups. I have added a little piquancy to the clinical commissioning groups amendment by a specific reference to end-of-life care, where we badly need more options for people to choose from if their preferences are to be delivered.
I have spoken for too long already, but I also wish to add my support to the amendments in the name of the noble Lord, Lord Patel, to which I have added my name.
Lord Clement-Jones
My Lords, I shall speak to Amendments 127B and 197B. As they relate to pharmacy, I declare an interest as the chairman of the Council of the School of Pharmacy, University of London. The intention of these amendments is to ensure that all relevant healthcare providers, including community pharmacists, are consulted when the NHS Commissioning Board and commissioning groups are discharging their functions and developing their business and communications plans. The essence of these amendments is to retain the long-standing arrangement whereby, under the 2006 Act, commissioning bodies have to consult widely and in good time with all relevant stakeholders, including local service providers or their representatives.
Under the current system, primary care trusts are required to consult widely in relation to their commissioning duties. There is concern in the pharmacy profession that the current provisions under Clause 20, new Section 13J, for the board, and Clause 23, new Section 14V, for clinical commissioning groups, to obtain appropriate advice are too vague. It is important that consultation with all local healthcare providers should be done via local representative bodies as well as directly with providers. Clinical commissioning groups should consult pharmacy professionals when making decisions in relation to the commissioning of relevant services in order that the professional skills, knowledge and expertise of pharmacists are used in planning, commissioning, delivering and evaluating NHS services. They should also demonstrate arrangements systematically to seek the views of all appropriate local clinical groups throughout the commissioning process, in general and for particular services. This would include ensuring that all local representative committees are fully engaged in the commissioning process and signed up to the outcomes agreed.
As part of their local leadership role, clinical commissioning groups also need open and transparent processes for reconciling different professional perspectives and contingency arrangements for seeking the agreement of non-GP professional groups in the case of urgent service change. These processes should be clearly set out as part of the CCG’s governance procedures for commissioning decision-making. The above will be of particular importance in the immediate term, given the influx of new commissioners into the market, to ensure commissioners commission services effectively. Without relevant healthcare providers being consulted, the different contributions that such providers, including pharmacy, can make to local healthcare could be lost.
If used effectively, pharmacy has the potential to deliver a great deal more both to patients and commissioners. For example, it is estimated that some 57 million GP consultations each year involve minor ailments which could be dealt with at a pharmacy. If these patients could be moved to a pharmacy, more than £812 million could be saved annually, and GP capacity could be freed up to deal with more complex cases.
In summary, it is critical that there is a duty on commissioning groups, when developing their commissioning plans, to consult primary care providers such as pharmacists as there is a danger under the proposed legislation that some groups may not do so, leading to ineffective commissioning of services. At the Royal Pharmaceutical Society Conference in September, the Minister said that pharmacists are pivotal to every aspect of the Government’s plans to modernise the NHS. I find those words very encouraging and hope that he can give further encouragement in the course of this debate.
Lord Warner
I am sorry to interrupt the noble Earl’s flow but I have been extremely restrained today. Can he clarify for me the point that he has just made concerning clinical commissioning groups’ constitutions? As I understand it—he can correct me if I am wrong— they have a considerable amount of freedom on how they frame the obligations in those constitutions. Is the Minister saying that there would be some requirements on them centrally from the board to cover areas such as patient involvement and patient choice?
Earl Howe
I am. The intention is that no clinical commissioning group will be authorised in the first instance unless it can demonstrate to the board that it can fulfil the legal duties that the Bill places on it. That is key to our thinking. Indeed, as time goes on, it will be under a continuous duty to show it is abiding by those duties. In the first instance, it is very important that clinical commissioning groups demonstrate they are fit for purpose in that sense.
I also appreciate the concern to ensure that the board and CCGs benefit from as wide a range of advice as possible. The Government have been clear that everyone with a role to play in securing the best possible services for local people should be able to do so. The definition used in the duties to obtain advice is that used to define the comprehensive health service. It would encompass the areas covered by Amendment 127C. Indeed, I do not think it would be possible to cast it in broader terms. These duties will apply to every function the board or a clinical commissioning group will exercise. Again, within those broad parameters it is important to retain some discretion for the board and CCGs to determine how best to exercise this duty.
The board and CCGs will certainly have to work closely and effectively with all the providers with which they contract as Amendments 127B and 197B suggest. I would say to my noble friend Lord Clement-Jones that that most certainly would include pharmacists. I also agree as to the expertise and the unique perspective that patients and their representative bodies can bring not just to the commissioning process but also to the way the board and clinical commissioning groups approach many of their functions. The same would apply to many other groups, including academic institutions, as the noble Lords, Lord Kakkar and Lord Walton, have highlighted.
The noble Lord, Lord Kakkar, spoke powerfully in favour of academic health partnerships. Academic health science centres have been successful at developing these partnerships within their local areas but understandably have been less successful in spreading innovation across the NHS. As the noble Lord set out, the NHS chief executive’s innovation review is due to be published next month. That will set out how we can accelerate the adoption and diffusion of innovations across the NHS. It will include a mix of bottom-up, horizontal and top-down incentives and pressures that will drive adoption and diffusion of innovation and behaviour change. The role of academic health partnerships may or may not feature in this review. I hope the noble Lord will forgive me if I do not at this stage anticipate or pre-empt what the report will say by elaborating any further. However, I counsel noble Lords to play close attention to what the noble Lord said in his speech.
While these duties refer to obtaining advice from people with expertise in relation to the health service, that is not confined to clinical expertise. Indeed, in fulfilling these duties we envisage a role for clinical senates, as we have already discussed, in providing not just clinical advice but multidisciplinary advice from professionals in health, public health and social care backgrounds alongside patient and public representation and other groups as appropriate.
I am sure we all share a desire that these duties are effective. However, I am not convinced that imposing specific duties as to where the advice should come from, including through the membership of governing bodies, or how the advice should be acted on is the right way to proceed. If we become too prescriptive we risk overburdening CCGs with so many duties and obligations that they could never be sure whether they were doing enough and in reality we must trust them to build these relationships themselves and judge them on the outcomes they achieve.
The noble Baroness, Lady Finlay, asked me about the secondary-care doctor role on CCGs and whether it had to be somebody from outside the area or retired or whether it could be a local person. We are looking carefully at that question. The secondary-care doctors on CCG governing bodies will not be able to have a conflict of interest in the decision-making process of the CCGs. That is where the noble Baroness, Lady Murphy, was absolutely correct. We will use regulations to set out more detail about this and we will work with stakeholders, including pathfinders, to develop these proposals. The noble Baroness referred to the secondary-care doctor coming from either outside the CCG area or being retired. Those are two ways in which a conflict of interest could be avoided but they are only examples and do not represent an exhaustive list.
I want to finish by returning to a point raised earlier by the noble Lord, Lord Warner. We too are aware of the very good work of National Voices, as well as a range of other organisations, on how patient and public involvement could be strengthened in the Bill. While I have explained why I think these specific amendments are not necessary, I am happy to go on listening. I feel that the Bill is already strong in this area but we are always open to new ideas and I look forward to further discussions on this general topic. It is for those reasons that, while sympathetic to the intention behind the amendments, I am unable to accept them and I hope noble Lords will agree not to press them.
Lord Warner
Lord Warner
My Lords, I listened very carefully to the Minister’s response to my amendment on patients’ access to or holding of their medical records. As I understood what he was saying, it was that we could eagerly look forward to the Government’s long-awaited information strategy which might well be moving this agenda forward. If that is indeed the case I hope we can consider further with the noble Earl and his officials whether we should enshrine that moving forward in the Bill so patients have a clear statutory right to have access to and to hold their medical records. I will not move the amendment.
Lord Warner
“( ) In discharging this duty, the Board must publish guidance for clinical commission groups that ensures that patients and their carers and representatives have—
(a) the means to express their views on the quality of services provided,(b) opportunities to consult with service providers through a variety of means,(c) access to appropriate information about their care and treatment,(d) opportunities to consider available treatment options and their risks and benefits,(e) the opportunity to participate in decisions about their care and treatment and its management, and(f) the means to ensure informed consent is given to care and treatment.”
Lord Warner
My Lords, I am glad to note that the noble Earl is willing to reflect on this and perhaps discuss it further with us. I would very much like to talk to him with National Voices to see whether we can craft some wording which meets people’s concerns in this area. I will not move the amendment.
Lord Warner
Lord Warner
My Lords, this is an important issue about choice. We need more beef in the Bill about what it means. We have not gone as far as we need to go. In the mean time, I will not move the amendment.
Baroness Thornton
My Lords, we move on now to discuss innovation and research. The amendments in this group are very important and were prefigured to an extent by the discussion we have just had. The amendment tabled by the noble Lord, Lord Hunt, and me, is modest in some ways. However, it strengthens the promotion of innovation in the provision and commissioning of health services. Taken together with the amendments tabled by my noble friend Lord Warner and the noble Lord, Lord Patel, it strengthens the Bill significantly and in a very important way.
We have come to what seems an intractable problem: how to encourage innovation in the NHS. This is part of the Minister's area of responsibility and was also part of the area of responsibility of my noble friend Lord Warner when he was a Minister. I look forward to both of their contributions on this matter.
We know that often, the taking up of great innovation is a painfully slow, complex and bureaucratic process. Our amendment strengthens the promotion of innovation through commissioning as well as through the provision of health services. I would like the Minister to explain why that should not be possible—because it would strengthen and help innovation—and also how it could be done, because we are looking for incentives to promote and spread innovation throughout the NHS.
Last week, the noble Lords, Lord Willis and Lord Ribeiro, and I, with others, enjoyed a dinner and an evening with organisations and businesses to discuss how to ensure that innovation is disseminated, promoted, supported and invested in throughout the NHS so that both the NHS and UK plc benefit. The point was made during the evening that often we do not talk about sophisticated issues but about simple changes to nursing practice, such as the way dressings are done, or to information management, that nevertheless can have an important impact on patient care and progress.
I will not speak further on the amendments because I will be very interested to hear what other noble Lords speaking to their amendments in the group will say. I hope that the Minister, with his passion in this area, will give us some comfort on the matter. I beg to move.
Lord Warner
My Lords, I will speak in support of Amendments 129 and 129A in the group. First, I will take up the point made by my noble friend Lady Thornton about the long-standing problem of the slowness of the NHS to take up innovative ideas, and the frustration often felt by people in this country who have invented new approaches and created new innovations, only to find that they have had to go abroad to get them projected, promoted and sold, with the NHS being one of the last to take up the innovation, which was often funded in one form or another with public money by the British taxpayer. It is a long-standing problem and not a party-political issue; it has been a challenge for successive Governments. One of the most embarrassing moments one has as a Minister is when one meets foreign delegations or travels abroad to back Britain and is asked, “Has this innovation been taken up in the NHS?”, whereupon one has to shuffle one’s feet and think of a suitably weaselly form of words to avoid answering the question directly. It is a very long-standing and difficult issue.
Amendment 129 draws attention to the importance of the procurement of goods and services in the promotion of innovation, and to the duty that that places on the national Commissioning Board. There are many reports about the importance of public procurement in advancing innovation and in ensuring the take-up of UK inventions and innovative practices. The latest one was by the Science and Technology Committee of your Lordships' House, of which I was a member. The report brought out some of the dilemmas around using procurement to take forward innovation. Yet again it cast doubt on central government's use of their purchasing power and muscle to drive the take-up of UK innovations in public services.
The NHS is not alone in having this problem, but it is part of the problem and it is a big part of the public sector. A major and long-standing problem is that too many purchasing decisions are taken too far down the organisational food chain, with too little intervention at senior level and too little willingness to use large-scale purchasing to spread the use of innovative approaches. Whatever else the national Commissioning Board has, it has a lot of financial muscle. It must use that, through the NHS’s purchasing capacity, to drive innovation, which often comes from publicly funded research. I hope that the Minister, who is well aware of the issue, will see the sense in putting something like Amendment 129 in the Bill. We cannot say too often that public procurement is a way of helping to establish and drive innovation in the NHS.
Amendment 129A seeks to add the idea of an innovation fund to the board's armoury on innovation in new Section 13K. There is nothing novel in this. The amendment continues and builds on the proposals of my noble friend Lord Darzi, which led to regional innovation funds that strategic health authorities currently manage. Again, we need to strengthen the mechanisms in the Bill for driving innovation in an NHS that historically has been slow to take up innovations and apply them to scale for the benefit of patients. We are not talking about huge sums of money in the innovation fund, but relatively modest amounts in relation to the scale of NHS expenditure. However, an amendment of this kind would ensure the continuance of the useful work that has been started by the strategic health authorities following the promptings of my noble friend Lord Darzi.
It is typical of what we sometimes do in this country. We start an initiative with a fund at strategic health authority level and then shuffle the cards so that somehow, along the way, some of the initiatives and their benefits get lost. I hope that we can get some reassurance from the Minister that some kind of innovation fund will be available so that we can continue the work that my noble friend Lord Darzi so ably started to ensure that patients can secure the benefits of UK innovations.
Lord Patel
My Lords, I support the amendments tabled by the noble Lord, Lord Warner, to which I have added my name.
First, I will speak very briefly about innovation and procurement. I also contributed to the report by the Science and Technology Committee on procurement. The public sector could learn a lot from the private sector about using procurement to drive innovation. Perhaps the Minister can comment on this. The NHS is a huge organisation that uses about £20 billion-worth of procurement a year and if that was done in a co-ordinated way, it could drive an immense amount of innovation within the NHS.
My second point is about how to drive innovation into clinical care. There are lots of examples I could give, but I will give one from my own specialty. It took us 20 years to take the learning from research into the kind of treatment to be given to the mother in premature labour that would considerably reduce the incidence of respiratory distress syndrome, which causes a lot of harm and death in neonates, and embed that into practice. There are lots of examples of such innovations not being embedded into the NHS and we need to look at ways of doing that faster.
My third point is how to use tariffs to drive innovation. If I as a provider will not be given a higher tariff if I drive innovation or innovate a different way of providing the service, and all that will happen is that the tariff for procuring my services as a provider will be less the following year, there is less incentive for me to use innovation in clinical care to improve patient care and also to make it cheaper.
The fourth issue is about an innovation fund, which I support. Together with the Wellcome Trust, the Government have an innovation challenge fund that asks for tenders in particular areas of innovation. The one I know about is in reducing infection rates. Innovation funds of this kind will drive further innovation; for example, in the United States Medicaid and Medicare have a joint innovation fund to drive improvements in healthcare. So I support that amendment.
Earl Howe
I am always keen to accept the wise suggestions of the noble Baroness, and I will of course go away and consider the words that she has proposed.
I was just referring to the amendment proposed by the noble Lord, Lord Warner, on procurement, and saying that we would face the perennial problem of listing those areas where the duty should be exercised to the detriment of those not listed.
Lord Warner
I have an uneasy feeling that we are going to hear a lot about lists today. On lists, some things are more important than others, and I think that the argument about lists does not hold a lot of water unless the Minister can show us some other items that will be missed out that are as powerful as procurement of goods and services in further research and innovation. If there are others, I would be happy to consider the matter, but the reason why the amendment has been tabled is because it is a very powerful way in which to promote something that the Government want. Many of the other things may not be as powerful in delivering that.
Health and Social Care Bill
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Baroness Thornton
I think that I explained to the noble Baroness earlier today that these are probing amendments. When we received the briefing from ACEVO, we were very concerned, and that is why we tabled the amendments. It is very important for those of us who have been promoting the voluntary sector all these years that we find out what the truth is. They are probing amendments; there is no intention at all to press them, and I said that from the outset. They are to explore the meaning and the effect of the provisions. Sometimes amendments can have unintended consequences. I hope that the noble Baroness will accept that this is not partisan; it is a genuine effort to get some explanation for how this part of the Bill might work.
Lord Warner
My Lords, I hesitate to intervene in this debate, but I am prompted by the intervention from the noble Baroness, Lady Williams of Crosby. I speak as someone who is probably some way away from the Labour Front Bench on the subject of competition. I do not start from the same position as my noble friend, but like her I am extremely puzzled about what the Government are trying to do. We may be in the realm of unintended consequences.
We go back to July 2010, when the Government published a White Paper that said that the aim was to make the NHS the largest set of social enterprises in the world. That was the Government’s policy. It is quite difficult to achieve that, I would suggest, without some capacity building—and I was one of the Ministers involved in setting up the Social Enterprise Unit in the department, under the previous Government. The Minister will know about the case of the East Surrey nurses and their attempt to set themselves up as a social enterprise. It is very difficult for people to set up these new forms and organisations without some assistance and capacity building.
Looking at the data, you can see that the voluntary and community sector currently delivers only a tiny proportion of NHS services. The National Audit Office estimated that over 2007-08 PCTs spent less than 0.5 per cent of the NHS budget on commissioning services and support from the voluntary sector. So we are dealing with a minute proportion of the provider side of the NHS when we talk about social enterprises and voluntary organisations. Those sectors cannot grow bigger without some assistance; they have to be given some help; there has to be some investment of resources in capacity building so that they can compete for contracts and provide alternative ways of providing services outside hospital in a community setting. In many parts of the country, they are the big hope for actually producing a set of services which are not based on in-patient care of individuals. We are never going to get to that brave new world without some capacity building. As far as I can see, in their attempt to reassure their coalition partners on the subject of competition the Government may have shot themselves in the foot on this issue.
We need some clarity about what the Government are up to on the subject of the voluntary and social enterprise sectors. Forget the private sector; we need to know how they will grow those sectors, which seems to be their declared aim, without some capacity building and without altering the proportion of services that those sectors provide in the coming years. I would be glad to be reassured by the noble Earl but, as I and ACEVO understand it, the Bill as drafted freezes the proportion. We need to understand from the Minister whether the Government are going to amend it to clarify that position, because it is certainly exercising the outside world.
Lord Warner
I am really puzzled by that. What happens in a big swathe of the country if Monitor or the national Commissioning Board considers that there is a 100 per cent public sector monopoly that is actually slowing down the improvement in services? Does that mean that they cannot, as a matter of policy in order to benefit patients, break that 100 per cent monopoly in a certain part of the country that is public and bring in, say, the East Surrey nurses or whoever as a social enterprise to reduce that 100 per cent to, say, 95 per cent? That would change the proportion of services in a chunk of the country, and that is what I understand competition to mean.
Earl Howe
The board and clinical commissioning groups might well decide that it was important to have more hospices. The question would be: who would provide them? It might be that a charity would provide those hospices. That is fine, as long as the justification is that the expansion in market provision is there to meet the needs of patients and that it is not some covert way to boost artificially a particular sector of the market, unrelated to patient needs. That is the distinction.
The concerns that noble Lords have raised, that these clauses would make it illegal for the department to build capacity in the voluntary and social enterprise sectors, are unfounded. This is neither the intention behind these clauses, nor is it their effect. As I have said, we will debate the third sector in the next group of amendments, but I can reassure noble Lords that we will ensure that procurement practices do not unfairly restrict the opportunities for charities, voluntary organisations and social enterprises to offer health and care services. We continue to value and support the many contributions that the voluntary and community sectors play in improving health and well-being for our communities; and there are a number of ways in which we can do that in a tangible fashion. We are already doing this, and the noble Baroness listed a number of the levers that we have at our disposal. I hope that the distinction I have outlined makes sense and that it will therefore reassure noble Lords that the fears they have expressed are groundless.
Lord Warner
Can I just be clear that I have understood this? If the national Commissioning Board or the Secretary of State, in pursuance of their duty under the Act to facilitate choice for patients, decided that one important way of expanding such choice was to increase the number of social enterprises and/or voluntary organisations in a particular service sector, would that be permitted under the Act?
Earl Howe
It is highly unlikely that that scenario would arise. What could happen is that the board could identify certain services where it felt that competition would serve the interests of patients. Let us take the example of children’s wheelchair services. If that choice offer were created by the board and Monitor created a tariff for those services, it would be up to local commissioners to decide whether to take advantage of that choice offer. There may be instances where that would be a very good thing to do. On the other hand, in other local areas clinical commissioning groups might find that there was no need to create a local market because the services were already adequate. It might be helpful if I write with some detailed examples of how this is expected to work.
The point that I want to emphasise is that the board’s decisions about who will supply particular services could result in one type of provider having a larger market share. That is fine, as long as the intention is to deliver a service that meets the needs of patients in an area. As I say, what is not acceptable is for a conscious decision to be taken to increase the market share of a particular sector just for the sake of it, unrelated to patient need.
Lord Rooker
If the Minister’s words in the last debate mean anything at all, he will accept this amendment. It is as simple as that. It is his lifeboat. In fact, it is the lifeboat that—nothing personal to the Minister—will stop the team of Ministers becoming a laughing stock for the third sector, bearing in mind what was said last year, which we have heard a little bit about, and what is being done in this Bill. It will also stop them taking the Lib Dems for a ride. I heard some of the most profound words in our debates on the Bill uttered by the noble Baroness, Lady Williams of Crosby, at around 3.30 pm this afternoon, when she deeply questioned once again the motives of the endgame of this exercise. That is what she said; it is very profound and she has said it before. They are words that others have also used. What is the endgame of this process? To stop themselves being taken for a ride, the Lib Dems would do well to accept the amendment too. We have heard about creating opportunities and,
“the largest social enterprise sector in the world”.
Last year, the Secretary of State said there was,
“also opportunity because across government we are going to open up to new providers, and the voluntary sector is at the heart of that”.
That is what he actually said, before this Bill was drafted. I know you can get carried away on conference platforms, but as the Minister you are, at the end of the day, responsible. We have probably all done it, but the fact of the matter is that is what was said, and it could be held to be misleading. The amendment, which has come to me via Social Enterprise UK, is a lifeboat. It does not require anything, it says “may”, and it goes to the heart of what the Minister said about not trying to do it for ideological reasons. Clause 20, as drafted, may be used to prohibit any interventions that support the voluntary and social enterprise sectors. The fact that it can be used for that purpose is bad enough in itself and undermines the point which the noble Baroness, Lady Williams of Crosby, made earlier on. It would be a disaster. Therefore, the amendment, which has been looked at by those outside, would be of assistance.
Why do we want the amendment? In the previous debate, we heard the well rehearsed arguments for social enterprise and the voluntary sector providing a greater share of public services. They were the implications of the Secretary of State’s words at the conference last year. They are recognised and proven, and it is a trend that crosses all political parties. That point must be taken on board if the credibility of Ministers is to be maintained. Indeed, all parties in the House and next door support the passage of the Private Member’s Bill tabled by Chris White MP that would open up public service markets and require commissioners to consider how they might promote or improve the economic, social or environmental well-being of their local area through contracts. The parties are supporting that Bill in the other place. Are they kidding anyone or are they being genuine about support for a mixed economy, because this Bill, as drafted, could stop the mixed economy and stop any changes? I am not proposing my amendment for ideological reasons.
There are about 62,000 social enterprises in the UK. They contribute some £24 billion to the UK economy, and they need to be treated seriously, responsibly and as adults. Of these, a third operate in the healthcare sector. By the way, I am reliably informed that Circle is not one of them—whatever might have been put over as spin by the Department of Health. Add to that the vast number of voluntary and community organisations that are providing a huge range of health and social care, and you can see that knocking out their continued development—I repeat, continued development—would be a disaster for the market and most importantly for service users.
If there is to be a competitive market, and I do not argue against that, then it can operate only if there is a fully functioning market. We do not have a fully functioning market at present—it is embryonic. That is the difference and that is the point that did not come across in the Minister’s response to the earlier debate. Healthcare markets in England are, by any definition, in their infancy with regard to supply and demand sides. That must be the case as regards this Government, the previous Government and the one before that. Where both supply and demand sides are underdeveloped, I believe that open competition will result in high barriers to entry, limited choice and compromised quality and outcomes. We have seen a few examples of that in the past few years. A small number of large firms will dominate and there will not be the innovation or value that introducing competition is designed to bring about. There has to be another way of looking at this.
Knowledge barriers, capacity barriers and structural barriers put social enterprises, and voluntary and community groups, at a disadvantage. Knowledge and understanding of the social enterprise and voluntary sectors by the public sector has improved but remains particularly weak in the healthcare sector. Without understanding the sector, commissioning may be designed in such a way that precludes its involvement. It will be all right for the smart lawyers to argue about the way it was done, but the consequences are snuffed out before they start. That is the difficulty we are seeking to overcome.
On capacity, we know that a lot of community-based organisations could play, and currently do play, a huge role in improving healthcare through early intervention, community-level delivery, advocacy and behaviour change, but they lack the capacity to engage with competitive tendering, and alternative approaches specifically designed for them can make a huge difference. The Bill as currently drafted may—I repeat, may—prevent commissioners from feeling that they have the power to do this. That is the point. If we had a fully functioning market, the situation would be slightly different.
Structurally, we know from the central Surrey case—as has been repeated several times—and others that barriers to entry can be set structurally too high for many social enterprises. We are not on a level playing field. Not everyone is a big firm or a multinational. That is not the purpose of the exercise, which is to allow 1,000 flowers to bloom in the interests of the patients. That is what it is about. However, the fact is that the entry level can be set structurally too high for many social enterprises and voluntary organisations that lack the ability to raise the same levels of capital as private organisations but are often better placed when it comes to quality of care. That is the other side of the balance. They reinvest their profits into the organisations, which means that their balance sheets always appear less strong. It is an inevitable consequence but a strength when it comes to service delivery.
The Bill must make provision for the continued development of these groups and certain interventions need to be made; without this we will not see the realisation of a truly plural ambition for these reforms. As has already been said, where would we be without the hospice movement, community drug and alcohol projects, the range of mental health work and so on? The innovation and user-centred services will disappear to the detriment of all. The multinationals do not come with that ethos to start with and what is really wrong with Clause 20 is that it assumes an already existing level playing field where there is an established mixed market. I challenge that assumption which underlines this clause and, although I would not dream of questioning him personally, I challenge the Minister that if he is serious about what he said in answer to the last debate, he must be prepared to come back with something in the Bill which does not snuff out social enterprise in the way that this Bill, currently structured, will do. I beg to move.
Lord Warner
My Lords, I speak in support of my noble friend Lord Rooker’s amendment. I pose a couple of questions and add a couple of facts for the Minister. I will not repeat what I said on the previous group of amendments. I speak from two perspectives; first, as a former chairman of a number of voluntary organisations competing for public service contracts; and, secondly, as the former Minister involved in the setting up of entities at the centre to facilitate the growth of social enterprises and voluntary organisations to participate in NHS service provision.
I want to mention some of the things which were set up at the centre because you could not rely on people at local level to actually provide this kind of help to the voluntary and social enterprise sector. Can the Minister say whether these initiatives will continue in this brave new world we are going into? The first one was the Department of Health voluntary sector and social enterprise programme, which was set up to maximise,
“the extent to which third sector organisations are able to achieve their full potential”.
That was a central unit aiming to help people to develop their capacity. There was the social enterprise investment fund, which provides investment to social enterprises to start up, grow and develop in order to deliver NHS services. The third I would mention is the health and social care volunteering fund—both the local and national programmes—which supports volunteering in health and social care.
Those are three areas where an initiative had to be taken well away from the local level to ensure there was some capacity building of social enterprises and voluntary organisations. If those are disbanded in the guise of leaving it up to clinical commissioning groups, it is very difficult to see how those sectors will be able to participate.
Now briefly, I turn to my experiences as a chairman of voluntary organisations. Voluntary organisations simply do not have the capacity to go at risk for entry into new markets without some guarantees. They often do not have the working capital or access to loan facilities because there is no guarantee of the revenue streams that would fund those loans. Unless they happen to have very large reserves, which many do not, they cannot easily enter that market without a big brother to help them over their first steps. I cannot see how we can move in this direction without an amendment of the kind that my noble friend has proposed, and which has backing it some capacity to help these sectors grow when the need arises rather than just leaving it all to clinical commissioning groups.
I hope that the Minister can give us some reassurances about how that capacity-building capability can continue to be preserved and developed because, if it is not, we will see a growing volume of partnerships between the private sector and the voluntary sector, because they have the capacity to borrow money and provide the working capital to help those organisations to play their role in developing services in the NHS.
Baroness Armstrong of Hill Top
My Lords, I, too, support the amendment. It is critical that the Government are clear as to how they will support and enable the voluntary and community sector to participate in ways that we know, from experience, are valuable to the National Health Service. In my previous intervention, I mentioned the three parts of the DH which the Minister referred to as levers. It is important that he is clear with the Committee that those parts of the Department of Health will remain, and that the financial contribution put into the fund will continue in order to support the capacity building and the ability of the voluntary sector to put in bids.
The problem is that the Government's rhetoric has not so far been followed through in action. I take, for example, the work programme, which came not from the Department of Health but from the Department for Work and Pensions. Serious commitment was given in the House that significant parts of the work programme would be contracted to the voluntary sector. This simply has not happened. In most of it, the voluntary sector was a very lowly partner. I must say that the organisation I am involved with in the north-east, which is now the largest voluntary organisation in the north-east, is a lowly partner with others in the work programme. We have not signed anything, because we cannot afford to go into it unless we get more than what is left after everyone else has taken their cut, because we are at the bottom, committed to work with only the most disadvantaged, who are therefore the most difficult to get into work. It is six months later, and we are not yet anywhere near agreeing to go in with the other groups. We have to cover our costs.
It is very important that the Government do not follow the same route in the health service. I know that that will be done locally, which the work programme was not, but it is very important. I also have experience through the voluntary organisation on negotiating on detox facilities and facilities for addicts. It has cost us an enormous amount to finally be allowed to provide the service. Because we are providing a unique service and no one else in the National Health Service in the region is following what is called the recovery method, rather than methadone and so on, we have decided that it is worth pursuing that. I must tell the Minister that, were we not such a large organisation, we would struggle. Were we not therefore so prepared to continue to work on it, it simply would not happen. It is vital that the Government give the voluntary sector much more reassurance than they have to date in these areas. Accepting my noble friend’s very good amendment would be one way to do that.
Lord Warner
My Lords, would the noble Baroness accept from me, as someone who was this great centraliser sitting in Richmond House, that we actually set up these capacity-building capabilities for social enterprise in the voluntary sector, in response to those sectors’ concerns about their inability to make headway locally and enter the market to provide services in those areas? That was not a centralising tendency on our part. It was actually a response to people saying to us that we needed more capacity-building capability at the centre because it was not being provided at the local level.
Baroness Jolly
My Lords, I can give an example of where it has been provided. Today I have been talking to the operations director of Peninsula Health Care. That was the provider arm for the Cornwall PCT which was providing community hospitals and community services, and which is now a community interest company as of 1 October 2011. It has already brought across all the arrangements that it has with its local authority; Section 75 and so on, shared budgets for equipment, and all sorts of innovative work alongside.
The whole thrust of the amendment of the noble Lord, Lord Rooker, was part of our manifesto, it was part of the coalition agreement, and I feel quite comfortable about supporting it.
Funding of Care and Support
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Lord Warner
My Lords, I, too, congratulate my noble friend Lady Pitkeathley on securing this debate and on her excellent speech, after which I felt that I should like to make her an honorary member of the Dilnot commission. I also pay tribute to the coalition for setting it up. I declare my interest as a member of that commission, which was so ably chaired by Andrew Dilnot.
I do not have time this afternoon to go through all the issues that were raised in the commission’s report; I want to concentrate on a few key issues. First, I emphasise that we formulated our recommendations only after an exhaustive consultation with a very wide range of interests, encompassing commissioners and funders of care, providers across the different sectors, the financial services sector, carers and many others with experience and expertise in this area. These groups were united in the view that the system of funding long-term care needed urgent reform on a sustainable basis that had cross-party political support. This issue will require the leaders of the three parties to oversee a political concordat on a solution. It must not just be left to the health teams to sort out, particularly since, if I may say so, some of the current health-post occupants have form on this issue.
The other thing that was clear from our work was that, however much some people still hanker after a wholly tax-funded solution to the issue of funding, there is now widespread recognition that we must move forward on the basis of a partnership between the state and the private citizen in funding adult social care but—and it is a big “but”—with the state covering the cost for the poorest groups and those incurring high, unpredictable costs at the end of their lives. Only through a partnership of this kind will a sustainable system of mixed funding sources be built and new financial services products developed. The commission has created a wide measure of public agreement on this vexed issue, as the reception of our report on publication has demonstrated. I hope that the elected political class will not casually waste the consensus that has been created.
If I may put it as bluntly as this, the funding system for social care is bust. Despite the additional £2 billion announced by the Government in the previous spending review, for which they deserve huge credit, the King’s Fund estimates that there will be a funding gap of at least £1.2 billion by 2014. Despite their best efforts, local authorities are having to continue to tighten eligibility criteria and face more legal challenges for doing so.
We are seeing a growing number of reports of poor care of elderly people at home, in care homes and in hospitals. Too many of the staff undertaking this care are poorly trained, poorly paid and poorly supervised. A shrinking social care funding pot will inevitably produce more scandals and load pressure on expensive and inappropriate NHS in-patient care. That is the stark reality that we face as a country.
We have to start the process of increasing the size of the adult social care funding pot as a matter of urgency. This cannot all be done by implementing the Dilnot proposals but they are critical to showing commitment to building a more sustainable funding solution. If I may say so to the Government—I make this as a helpful contribution—there is nothing to stop them taking powers in the Health and Social Care Bill to implement Dilnot by regulations subject to affirmative resolution procedure. In the spirit of helpfulness for which I am famed, I have put down an amendment on these lines to test their appetite for a bit of decisive government. They could still complete their consultation on the details to be covered in regulations and the timing and cost of implementation. I suggest that this would give a clear signal to the sector and the public that change and improvement are going to happen.
I recognise that in this difficult financial climate the Government face difficult financial choices. I am sure the Minister will say that even just another 0.25 per cent of GDP—that is the cost of the Dilnot proposals at £1.7 billion—is difficult to find. However, it would be unlikely that all these costs would be incurred in one go, or immediately. I make another constructive suggestion. The Government could implement the proposals in stages of their own choosing. They could halve the cost by raising the cap to something like £65,000 rather than £35,000. I, for one, would be sympathetic to moving in that direction just to establish the principle of the cap, as my noble friend Lord Lipsey said.
While I am in radical mode, I bring one of the Health Secretary’s favourite subjects to the House’s attention—the so-called death tax. The reality is that many people in my generation have seen a remarkable increase in the value of our housing assets. Some would see these as windfall profits. There is no reason why some of those assets should not be collected after death to pay for care. Indeed, as we said in our report, some local authorities already do this but do not charge interest on the effective loan of the care costs. Why do the Government not accept our proposal to have a national scheme to allow more people to meet care costs from their estate if the property value is sufficient and up to a capped limit, and let local authorities charge interest at an agreed national rate? If we have a state student loan scheme, why cannot we have a state long-term care loan scheme? On that constructive note, I end by saying that if we do nothing about this, as the King’s Fund has shown, the cost of the current inadequate scheme for public funding of adult social care will rise from £6.7 billion in 2011 to £12.1 billion in 2026. That is a pretty expensive way of doing nothing.
NHS: Waiting Times
Lord Warner Excerpts(12 years, 5 months ago)
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Earl Howe
Yes, my Lords, my noble friend is right. Five hospitals account for a very significant proportion of the number of patients waiting for longer than 18 weeks. We are working with those hospitals to look at ways in which that performance can be improved. We know that it can be because many hospitals are more than achieving the desired standard.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
Perhaps we may hear from one noble Lord from the other side at a time, and then from my noble friend.
Lord Warner
I am grateful to the noble Lord. Blessed is the sinner who repents. However, will the Minister tell us whether in the light of this repentance, he will, following my noble friend Lord Beecham’s Question, look sympathetically at amendments to the Health and Social Care Bill which will give patients the kind of safeguards that targets did under the previous Government?
Earl Howe
My Lords, we believe that the safeguards are already in place, but the figure I cited in my original Answer is very similar to the figure we have seen over the past two and a half years. Little progress has been made over that time. We do not think that that is satisfactory, so we are broadening the operational standard to ensure that more patients are treated in a timely way. I am sure all noble Lords would wish to see that.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Warner
Lord Warner
My Lords, we have come to Clause 20, which covers the Secretary of State’s mandate to the National Commissioning Board and the wide range of duties placed on the board. This gives us an opportunity to probe the Government’s intention vis-à-vis this board and their perspective on the relationship between the board and the Secretary of State. I find myself taking something of an ambivalent attitude to the board which, if I may say to the Minister, was a major reason for my being very unattracted to the idea of chairing it when I was approached. At the heart of that ambivalence is a wish to stop elected Ministers and their henchpersons—if I may use that term—at Richmond House interfering endlessly in the day-to-day management of the NHS. But against that there is also a serious disbelief that when anything goes significantly wrong in some part of the NHS, the Secretary of State will be able to say, “Nothing to do with me, guv. Talk to Malcolm Grant and David Nicholson”. I certainly do not see the Health Secretary of the day having the kind of detached relationship with the national Commissioning Board chair that Professor Malcolm Grant seems to envisage in his public utterances. Those remarks suggest that the new national Commissioning Board chair sees himself being left in political peace for two to three years once the mandate has been agreed with the Health Secretary. My experience both as a Minister and as a senior civil servant is that he is deluding himself if he thinks that that is going to happen, but I shall be happy to hear from the Minister what his views are on the relationship between the board and the Secretary of State.
The first of the amendments in this group, Amendment 96, suggests the placing of a numerical limit on the number of items in the annual mandate provided for in proposed new Section 13A(1). I was prompted to do this by some rumours emanating from the Whitehall gossip mill suggesting that Andrew Lansley saw the mandate as a booklet of indeterminate size along the lines of the operating framework, while David Nicholson saw it as a couple of sides of A4. We want to probe further what the Minister sees as the Government’s approach to the mandate. These rumours took me back to three happy years in the early 1990s when I chaired a health authority, at a time when it had 50-odd priorities that had to be accounted for annually at a session with the RHA chairman. In practice, the NHS had no priorities then because the shopping list was too long. However, everybody kidded themselves and felt rather good about life because they felt that they were being held to account for the delivery of a substantial number of worthy and desirable objectives.
Amendment 96 tries to place a limit—admittedly somewhat arbitrarily—on the scale of the marching orders that the Secretary of State can give each year to the national Commissioning Board. At the same time it tries to distinguish between what one might call must-do’s and “attempts to seriously do”-type items. It proposes five of each. As someone who has managed big public sector organisations, I have never attempted to give my managers more than five or six must-do’s in any one year, together with a few development items. We need to understand from the Minister the scale of the remit that will feature in this mandate and that will be given to the board. That is the setting in which I think we want to discuss this and I would certainly be grateful if the Minister could enlighten us on the scale of that mandate in terms of the number of priority areas that it is likely to contain. How will the mandate differ from the annual operating framework that has been used to guide the NHS in its priorities over recent years and which has itself got bigger and bigger as time has passed? How will the mandate be related to the resources given to the board and, indeed, the inflation factor allowed for in the resource assumptions underpinning that mandate? The latter is critical in any mandating process because healthcare inflation is typically greater than RPI or CPI, for a variety of reasons which we need not go into today. Keeping healthcare inflation nearer to CPI would be one way of driving NHS productivity. The mandate’s financial underpinning is a critical factor.
Amendment 98 is based on the idea of the Permanent Secretary’s letter to a Minister when, having tried everything else, a top civil servant is instructed for political reasons to do something which is, in his or her eyes, essentially against the public interest. We need some transparency in the relationship of the Health Secretary to the board when totally impracticable or unaffordable instructions are included in the mandate by an elected Minister. Amendment 98 tries to give the board a right to raise this formally with the Secretary of State when it thinks that what is being asked of it is totally impracticable, particularly in terms of the resources available.
Amendment 100 extends this transparency to any other persons consulted by the Secretary of State on the objectives and requirements in the mandate. I look forward to hearing the Minister’s account of how these new mechanisms will work and how they will be made more transparent than the Bill provides for at present. I beg to move.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I hope that I can demonstrate to the Committee that the portrayal of what the Government intend through these provisions is a false one. We wish to create a transparent and accountable system in which every organisation understands its duties and responsibilities. Clause 20 sets out further provisions for the NHS Commissioning Board. It requires the Secretary of State to publish a mandate to the board setting out objectives and requirements as well as the board’s resource limits. The mandate is one of the key levers that Ministers will have in order to set a national health policy and influence the way in which taxpayers' money is spent on delivering NHS services. It lies at the heart of the Secretary of State’s continuing accountability for the health service.
In a moment, I shall cover the provisions concerning transparency prior to the publication of the mandate, but once the mandate has been published, the Bill requires the board to publish its business plan, setting out how it will deliver it. The Bill also requires it to report on what it has previously achieved in its annual report laid before Parliament. The Secretary of State must then publish an assessment of the board's performance. Taken together, that will provide what we believe is an unprecedented degree of transparency about what the NHS is asked to achieve and what is delivered.
The noble Lord, Lord Warner, suggested that, having issued the mandate, the Secretary of State would detach himself from the health service from that point on. That has never been our vision and it will not happen. I say to the noble Lord, Lord Hunt, in regard to his example of waiting times, that he will know that the board and all the commissioners will have to have regard to the NHS constitution, and within the NHS constitution is a standard which says that patients can expect to wait no longer than 18 weeks. That duty is in the Bill and we do not intend to change it. It is also open to the Secretary of State to stipulate conditions to be included in the NHS standard contract. Again, the noble Lord will know that within the NHS standard contract there is a stipulation about waiting times.
The Bill requires the Secretary of State to keep the board's performance against the mandate under review throughout the year, over and above his general duty to review the performance of all national bodies. I refer the noble Lord, Lord Owen, to Clause 49 of the Bill which sets out that duty.
Amendments 96 and 153A, tabled respectively by the noble Lords, Lord Warner and Lord Hunt, would limit the number of objectives in the mandate and remove the ability to amend it in-year following an election. I do not yet know how many objectives the mandate will contain. That will emerge from the process of engagement and public consultation that we will undertake, but I am confident that, given that the NHS Commissioning Board will receive around £80 billion of funding, there will be many more than 10. Setting an arbitrary limit, as the amendment seeks to do, would undermine Ministers’ legitimate ability to set strategic policy for the NHS.
As a result, although I support the broad intention of the noble Lords, I think a better way of achieving the desired outcome is not to put crude limits on Ministers’ powers, but to ensure that they are used proportionately. That is what the autonomy duty in Clause 4 does. I hope that helps to explain to the noble Lords why we think that duty is so important.
The noble Lord asked whether the mandate would contain desirable as well as obligatory objectives for the Commissioning Board. That is not our intention. The Bill will require the board to seek to achieve all the objectives in the mandate and the board will then be legally required to comply with all the requirements set out in the mandate.
The noble Lord, Lord Hunt, asked me about the period—
Lord Warner
I would like to pursue the last point the Minister made. Is he saying that, after a lot of consultation, the Secretary of State may say, “I have 35 objectives for you, laid out in the mandate, and I claim that the justification for that is the consultation process that we have had. You, the national Commissioning Board, better get on with it, and we will look at what you have done at the end of 12 months to see whether you have delivered those 35 objectives”? Can the Minister give us some idea what failure would look like? Would it mean failure on 10 objectives, or five, or 15? Where does the point come when the chairman and the chief executive get fired because they have not delivered the objectives in the mandate?
Earl Howe
The noble Lord is taking us into a hypothetical realm. I understand why he is asking those questions, and I think the answer would depend on the degree and scale of the failure. I have just said that the Bill requires the board to seek to achieve all the objectives in the mandate. It would be up to the Secretary of State to judge whether it had used its best endeavours to do that. The performance of the board will be a matter of public record; it will be up to Parliament to take a view on that, as well.
Earl Howe
My Lords, I was just about to comment on the recommendation of the Delegated Powers and Regulatory Reform Committee that the requirements in the mandate should have the force of legislation, in an instrument subject to the negative procedure. The board will have to comply with the requirements in order to support delivery of the objectives in the mandate that it must seek to achieve. Parliament will therefore be able to scrutinise the requirements after the mandate is published. We will bring forward a government amendment at Report stage to achieve that recommendation of your Lordships’ committee.
That is not the same as opening up the actual objectives in the mandate—that is to say, the direction and the strategy that the Government of the day want to set for the NHS—and rightly so. If that were to happen, it would lead to unwelcome delay and uncertainty for the health service. The Delegated Powers Committee, which has great expertise in this area, did not suggest that any further parliamentary scrutiny of the mandate was necessary. I can reassure the Committee that if Parliament were to make a recommendation concerning the mandate after it is laid before Parliament, the Secretary of State would undoubtedly have to respond, just as Ministers do now as a matter of course.
Lord Warner
I have been cogitating what the Minister has been saying, in his normal, plausible way, about the consultation with everybody before the mandate is agreed by the Secretary of State. The trouble that I have with that, worthy though it is, is that it does not really deal with the point in my Amendment 98, and in some ways it makes the situation worse. My amendment is all about how the national Commissioning Board answers back and tells Parliament if it thinks that the final mandate is undeliverable. That is the purpose. If you have extensive public consultation, the point that my noble friend Lord Harris made earlier comes into play. I am sorry to have got a bit fixated about the figure of 35, but you end up with 35 propositions in the mandate, and the money available to the Secretary of State at that point is still the same as when he went out to public consultation. We run an even greater risk of having a very overloaded mandate, with lots of items in it which come out of the public consultation. The money has not changed. The board is expected to deliver a larger number of things with the same amount of money. That is why my Amendment 98 becomes even more important if the Minister is going down the path that he says that the Government are going down.
Earl Howe
Because it would get Parliament into the territory of micromanaging the health service, if it so chose. That is not the territory we would want to be in, any more than we wish the Secretary of State to micromanage the health service. That is the problem. The Secretary of State has to take responsibility for the objectives set for the health service. I think there is a general acceptance among those in the health service and indeed the public at large that the health service has to be judged on a different set of measures than it has been in the past—namely, on its outcomes and the cost effectiveness with which it approaches the use of the budget given to it.
We believe that undue political influence is undesirable. Parliament is capable of exercising that kind of interference every bit as much as a Secretary of State. We are saying, however, that Parliament has every right to scrutinise the Secretary of State’s proposals, to feed into those proposals, to be listened to and to be responded to. However, in our contention, it is undesirable for us to go beyond that because in the end, the health service has to know where it stands. If this is an endless process of Parliament second guessing the mandate and coming forward all the time with suggested changes, we will not have a workable system.
Lord Warner
My Lords, we have had a very interesting debate on Amendment 96. I cannot say that I have been convinced by the noble Earl’s argument that he will not have a large amount of clutter in this mandate as a result of this public consultation. The poor old NHS will have to make the best of it. I suspect that at some stage we will come back to this issue of placing some limit on the objectives and requirements. In the mean time, I beg leave to withdraw Amendment 96.
Lord Warner
Lord Warner
My Lords, I found the arguments used by the noble Earl on this particular amendment in this debate utterly unconvincing. We have a very serious risk, in the process he described, of a level of overload on the board which is unrealistic in relation to the resources available. I can just imagine the kind of negotiations that will take place between Richmond House and the board, wherever it is, up in Leeds, to try to ensure that the Secretary of State is not embarrassed. We need something along the lines of Amendment 98. The noble Earl has not been willing to take this away and consider it, and so I wish to test the opinion of the House.
Lord Warner
My Lords, I have added my name to Amendment 99 and to a number of other amendments tabled by the noble Lord, Lord Patel, and my noble friend Lord Harris. I do not want to speak for very long on this issue. I have some inhibition about speaking about this because I do not think that my own party’s record on patient representation was extremely startling. I had to take some of those measures through your Lordships’ House and usually did not get the better of the arguments with the noble Earl on these issues. I accept that the Government have started off pretty well on this issue and that they have a good brand—HealthWatch is quite a good brand. I am an athletics fan, however, and the Government are beginning to look like a 200-metre runner who has moved up to 400 metres but is now starting to run out of steam on this issue in the last 100 metres. What I think has happened is that the money has started to dominate the discussion.
I also recognise here a favourite Department of Health word—hosting. There are two phrases that used to worry me as a Health Minister: “the NHS family”, which was usually an excuse for doing something foolish; and “hosting”. The danger of hosting is that, for what seemed to be perfectly good reasons, you put one organisation in the maw of another organisation whose culture is fundamentally different from the needs of the organisation being hosted. The real danger here is that there is no obvious similarity between a regulator and a patient representative organisation.
I will give the noble Earl just one example where the Government would do well to pause and think. If you are the parent of someone with a learning disability who is in a home which has mistreated and abused them and the regulator has let you down, or you perceive that the regulator has let you down, you are not going to be very pleased to find that the regulator is the very same body that is hosting the national body representing patients. That is a real example, not a phoney example. I think that there could be many such cases—and we will have a debate on Dilnot and social care on Thursday. However, there are some serious problems in the funding and quality of some of our social care institutions. The regulator is going to have a tough time in these areas over the coming years. It is a mistake for HealthWatch England to be hosted, in effect, by the regulator. Given the size of the NHS budget, the Government are spoiling their ship for a ha’porth of tar, to use a corny phrase, by not finding the money to fund this body adequately, so that it can stand on its own two feet and be secure and independent, and so that it can be allowed to be seen to be secure and independent by the patients who will put their trust in it.
I shall end on the point made by the noble Lord, Lord Harris, about ring-fencing. I can give the noble Earl a good example of where the Government have tried to do the right thing. They tried to put some extra money into social care that would go down to local authorities to improve the volume and quality of social care, but they did not ring-fence it. It was the best part of £1 billion, out of the £2 billion increase in social care funding. We now have a lot of people who thought that that was a jolly good idea. However, as it was not ring-fenced, the Government will not get any credit for it. It has gone into local budgets, but we do not know where. If you talk to any director of adult social services they will tell you that one of the problems was that the money was not ring-fenced, so they cannot reassure the Government that the money has gone to the purposes for which the Government sent it down the conduit to the local authorities. There is a very real danger that the same will happen with the HealthWatch money that will go down to the local level. I strongly support these amendments.
Baroness Masham of Ilton
My Lords, I spoke on this subject at Second Reading, and I want to go back in history for a few minutes. I remember that when the community health councils were closed down, the noble Earl, Lord Howe, and I felt strongly that the health forums which were put in their place should be independent. If a local healthwatch organisation is linked too closely to its local authority, it will be difficult for it to be able to speak out if it finds that both health and social care facilities are not up to scratch. What happens if they disagree with the CQC? Patients often need help, so an independent body would be much better to help them with their problems. It is vital that HealthWatch is adequately funded to do a useful job, otherwise it will fail. Perhaps I may give an example concerning a rural area. What happens if there are not adequate funds for the payment of members’ travel expenses? That has been found with the local LINks. I hope that the Minister will give this serious consideration.
Baroness Northover
Then there were the patient forums of 2004. The noble Lord, Lord Warner, said that these were,
“the cornerstone of the arrangements we have put in place to create opportunities for patients and the public to influence health services”.—[Official Report, 5/7/04; col. 516.]
In 2007, we moved on to LINks. We have abandoned the commission that was at the centre—the noble Baroness, Lady Cumberlege, referred to this—because it was centralising, bureaucratic and absorbed money that was supposed to be devolved. I have the Health Select Committee report criticising that commission.
As others have said, there is a history of trying to move this forward and trying to ensure that there is better patient and public involvement. I welcome what various noble Lords have said about the improvements in the Bill. We are trying to learn from that history and move it on, although I hear what people say that we possibly have not got it as far as they people wish.
The Government are seeking a fundamental shift. The aim of HealthWatch England is to help orientate the NHS first and foremost around the patient. Healthwatch, at both local and national levels, aims to strengthen the ability of service users and other members of the public to shape and improve health and social care. The role that Healthwatch England will play is crucial. Its aim is to provide leadership, support and advice to local healthwatch organisations and to make them more effective. I looked at the LINks reports and although they are welcome, anyone can see that there is much more that can be done. They do not reflect the whole range of patient voices and the kind of responsiveness you might wish to see in the health service, which is why it is such a challenge.
HealthWatch England will also provide information and advice about the views of patients, the public and local healthwatch to the key players in the NHS and social care—the Secretary for State, the NHS Commissioning Board, Monitor, English local authorities and the Care Quality Commission. At present there is no statutory body with either of these roles. Therefore, I am sure we can all agree that this represents a step forward. As noble Lords have said, the HealthWatch England committee will be a committee of the CQC, with a chair who we intend will be a non-executive director of the CQC. Part of this debate has focused on whether this is the appropriate organisational form for HealthWatch England: whether, in this form, it can sufficiently and independently serve the interests of patients and the public and whether it will have the status it needs to achieve this. I have listened to these concerns and I fully agree that this area is too important to get wrong. We are interested in change that works and this Government believe that setting up HealthWatch England within the CQC is the best way to achieve this aim.
I shall explain the reasoning behind this. First, there are key synergies to exploit here. To be effective, HealthWatch England is going to need extensive capabilities which the commission that existed before clearly did not have. It will need clout, which clearly that commission did not have. Being part of the CQC will enable it to have both of these. HealthWatch England will be able to draw on the infrastructure and support from the CQC to deliver its work to a high standard. It will have easy access to the CQC’s information sources, which have been referred to, enabling it to develop a deeper understanding of how health and social care organisations are functioning or where there are problems where the views of people may have made a difference. Being part of one of the big national bodies will, we hope, give HealthWatch England a real profile, and one we feel would be hard to generate if it was a new, separate body—and there is the history that we know about. Operating from within the CQC should enable HealthWatch England to punch considerably above its weight.
Secondly, it will enable the voice of patients to have a real influence on the regulatory work of the CQC. Close working and communication between HealthWatch England and the CQC opens up the possibility of having the patient voice hardwired into the work of the commission. It is not just a matter of looking at HealthWatch England but seeking to ensure that it really has a positive effect.
Lord Warner
Can the Minister give the House any information that the department has on the name recognition of the Care Quality Commission which would deliver the kind of profile for HealthWatch that she is claiming for it?
Baroness Northover
The noble Lord, Lord Warner, is very concerned that HealthWatch itself is a name that is going to be far too easily recognised and obliterate his charity. This is HealthWatch. The fact that it is in that relationship with the CQC does not obviate that. I would turn it back to the noble Lord and ask him who might recognise any of those predecessor organisations over the past 10 years and whether there was ever wide recognition of those.
Lord Warner
That was not my question. The noble Baroness is arguing that HealthWatch would actually benefit from being hosted by or being part of the Care Quality Commission because it would be a powerful national body. I was asking the noble Baroness what the name recognition of that powerful national body was that would produce benefits for HealthWatch.
Baroness Northover
At the moment the CQC is relatively well known because its reports are in the press fairly frequently. The reports of the investigations that it has been undertaking have caused considerable concern. I cannot give the noble Lord a scientific response based upon polling as to the recognition of the CQC, but I would guess that it is somewhat higher than some of the organisations representing the patient voice that have been there before. When patients went into hospital and had concerns about various things, did those organisations spring to the forefront of their minds? Possibly not.
Lord Warner
“(2) In discharging its duty under this section the Board shall establish an independent panel to formulate minimum standards of—
(a) financial,(b) performance, and(c) asset,management information to be included in the audited accounts for all bodies to which this subsection applies.(3) Subsection (2) applies to all bodies commissioning or providing NHS services under annual contracts of at least £500,000.
(4) The independent panel shall be established—
(a) within 6 months of this Act receiving Royal Assent, and(b) jointly with Monitor on a basis agreed by the National Audit Office.(5) The standards formulated by the panel shall be kept under review by the Board and Monitor and, in doing so, they will pay particular regard to the extent to which the standards have ensured levels of public accountability similar to those required of bodies providing comparable services.”
Lord Warner
My Lords, I regard this amendment as one of the most important building blocks in the Bill, although I have to confess that I am not sure that it will attract the same enthusiasm from the Government or their Civil Service advisers. The amendment is based on my own experience as a Minister, especially when dealing with the financial meltdown of the NHS in 2005-06—which I have recorded for posterity in a book that I have written on the subject. Since I believe that the NHS is heading for another financial meltdown, Ministers, especially in the Treasury, might give some serious thought to the proposal in Amendment 102.
There is a very good book about the history of the Audit Commission called Follow the Money. I think that we should do a bit more following of the money so far as the NHS is concerned, and not simply rely on things like outcomes frameworks. At the core of this amendment is the rather simple idea that there should be a minimum set of standardised management accounts covering finance, performance and asset use, applying to all bodies providing NHS services that spend more than £500,000 a year. I have put that fairly arbitrary figure in the amendment so that bodies which are relatively modest spenders are not brought into these requirements. It is a matter for negotiation whether that amount is the right one to set. However, with the bigger, higher spending bodies, we need greater standardisation of management accounts because we need to know more than we know now. At present, we cannot easily compare the performance of similar bodies in terms of how they spend our money, how this expenditure relates to what they produce, the value for money they give and how well they use public assets.
It has often been forgotten, under successive Governments, that the NHS is, in effect, a major landowner and user of public buildings. The real estate footprint of the NHS is far too large for the buildings on it and the use that is made of them, and I will give a little data later in my remarks. There is, at present, little rigorous assessment of whether the NHS holds on to land unnecessarily, how much of its accommodation and equipment is used well or intensively, or how much of the buildings or land is left vacant. Work done in the London SHA, after my time as a Minister, shows how scandalously poorly the NHS uses land and buildings. There is no reason to believe that the situation is different in other parts of the country. I am happy to give the Minister and his boss chapter and verse outside this debate. However, in a nutshell, in non-foundation trust sites in London, only some 18 per cent of NHS land was built on; another 18 per cent was underutilised; and some 25 per cent of the buildings were functionally unsuitable for the purpose for which they were used. I have given you a snapshot of London two or three years ago, but it is probably not much different now.
Although we have a great deal of data on the performance of acute hospitals, much of it cannot be related to expenditure because service line accounting—in the jargon—is still not used in most hospitals, especially outside the foundation trust sector. However, acute hospitals are a positive treasure chest of performance data compared with community health services, mental health services and primary care, where any relationship between what they spend and what they deliver is more conspicuous by its absence. Any public company which tried to run its affairs with the same financial performance or asset data as the NHS does would be insolvent very quickly. We should take the opportunity of this Bill to do something about moving to some standardised management accounts for all but the smallest providers.
If this amendment is passed and this requirement is put into the Bill, it would improve commissioning, choice and competition. Without the data that would be produced by implementing the amendment, it is very difficult to secure effective commissioning, effective choice and effective competition. One simply would not have the data to compare on a standardised basis the performance of many of the bodies involved.
I recognise that some of your Lordships do not favour competition. It is certainly easy to resist competition in the NHS if it remains a largely data-free zone in terms of finance and performance. Good commissioning and patient choice become very difficult to deliver if one does not have that information on a standardised basis.
I hope that the Government are prepared to give proper consideration to this longstanding problem. I do not regard this as a party-political issue; this is all about good governance and running the NHS more effectively on behalf of those who are funding it. I beg to move.
Baroness Williams of Crosby
My Lords, it would be very helpful if the Minister could say something about the proposals with regard to the accounts and financial statements made by CCGs, which will obviously depend a great deal on the guidance from the board.
I am concerned that a number of clinical commissioning groups without any great knowledge of how to deal with audit and financial problems will emerge. You could quite quickly see a commissioning group getting into difficulties, not because it was not performing well but because it had very little awareness of requirements relating to information on its conduct in relation to assets and finances that was needed to establish its standing as a proper clinical commissioning group. I am concerned because there is already some evidence of clinical commissioning groups seeming rather unclear about the accounting standards that they have to live by. It is important that the board makes very clear indeed what its expectations are and that it involves, as the amendment would require, the National Audit Office, which will become—and in some ways is already—a fundamental arbiter on the quality and standards of accounting practices.
I hope that the Government will consider the amendment carefully and that the Minister will let us know what the Government’s intentions are with regard to setting out the standards that they expect from clinical commissioning groups and that the board should lay down. The Bill is currently uncommunicative on the subject.
The whole process of procuring the pharmaceutical and other products that a commissioning group will need is always problematic. It is crucial that what is required is clearly set out, and that there is an indication under which we can compare one clinical commissioning group with another.
Baroness Cumberlege
My Lords, I should like to probe the amendment a little further because I think that it has a lot of merit, especially when one considers the PFI arrangements that have so destroyed the financial situation within the NHS.
I should like to ask the noble Lord, Lord Warner, about the accountability of the body. As I understand it, it is to be independent. I presume that he means independent in its membership as well as the way in which it works. I wonder where that accountability lies, whether there is a relationship with the business plan of the Commissioning Board and how the noble Lord sees the body working. Will the panel run for years and years, or will it exist just to set the standards at the beginning? Perhaps we could have a fuller picture.
Lord Warner
My Lords, I am seeking to set up something that would function in the early years of the national Commissioning Board. It would be independent in the sense that I did not want it to be dominated by NHS finance people. I want it to be a broader group of people than just those who have worked in the NHS. There is a tendency on the part of the NHS to think of itself as unique, special and different from other businesses, whereas it is a business which needs some business systems in it.
I am not someone who wants to keep bodies going in perpetuity. I am certainly open to negotiation on how long this one exists. I feel more strongly about the National Audit Office keeping an eye on this area. The national Commissioning Board needs some outside help to get this started, particularly in asset management, which is a long neglected area in the NHS, as I think the noble Baroness knows.
Some of the problems with PFI which she mentioned arise from the fact that the NHS has not had a track record of looking after its assets. It does not see them in the terms that a more commercial organisation would do. Many of the things that have gone wrong with PFI are not to do with there being anything inherently wrong with it, because it delivered a lot more hospitals more quickly and effectively than previous public procurement systems. What went wrong was the hubris in the NHS in many parts of the country about its ability to build a Taj Mahal district general hospital with some very dodgy income/revenue flows spread over time, most of the contracts being for 30 years. If one looks at the quality of some of the financial management in the NHS, it is not surprising that it could not do a very good job, even with some outside help, of getting a realistic idea of the revenue that it was likely to generate over 25 to 30 years to fund those projects.
Lord Owen
My Lords, I had not expected to intervene in this debate, but some of the things that I want to say may fit more naturally under this issue. The idea of having a standardised method of comparison right across the National Health Service is a very good one and it has merit if it comes initially from an independent group.
The Government have a special responsibility here, because, very soon after taking office, they encouraged the noble Lord, Lord Green, to look at all these areas, of which land and asset management was a very important part. We all know that this has not been coherently done in the past and that there are substantial land assets throughout the NHS.
As we go to smaller and more fragmented units, it is even more important that there is some structure which looks at land management across the board; otherwise it will be seen in a very narrow context. There may be a sale of some land asset which might quite appropriately have been offered to a neighbouring organisation, whether it is a commissioning group or a foundation hospital. The proposed body would cover all aspects, not just commissioning groups but foundation hospitals as well, and so I am very attracted to it.
The report of the noble Lord, Lord Green, said that not only did government not utilise the efficiencies of having an overall look at land management but also that it had no coherent way of achieving its procurement gains. Any large organisation looks across these areas and maximises the advantages that are available. Procurement has not been done very well in the National Health Service, so there is room for improvement whatever structure is implemented. In the past, regional health authorities had procurement functions and were able to negotiate substantially improved contracts because of the size of the procurement agency. I do not quite know what is going to happen in the procurement field. I therefore put the matter to the Minister so that he can perhaps indicate where he thinks it would be appropriate to raise the issue of procurement in future. Again, I say that the work needs to be done by independent people. That was the advantage of the Green report: he got his people from many different fields and focused on government as a whole. He did not look very closely at the NHS, but there is merit on both these questions of land and procurement in seeing whether we can achieve some economies of scale and in taking a fresh and independent look, which we have not had for some time.
Baroness Murphy
My Lords, I recognise the problem that has been described so ably by the noble Lord, Lord Warner, but I wonder whether he is not being a little pessimistic about the possibilities of the architecture providing the right framework to do what he wants to do. If we look at the role of the economic regulator, it must, as it has under the more restricted role of Monitor, include a very serious analysis of how financial management is happening in provider trusts, or foundation trusts, and has led to the growth of the service level management system, which for the first time has given people an idea about which services are making money, which are losing money, which are loss leaders and so on.
These are terrible terms when one is talking about human services and I do not like them. Nevertheless they are business terms and we understand what they mean in this context. They have also led to a much more fundamental understanding of the capital assets of each foundation trust. It has led to better use of capital assets at the moment, but that is largely because at a time of massive growth people do not look to make best use of their capital assets. At a time when money is shrinking or staying the same, as it will be over possibly the next 10 years or more, people will be looking to use their capital assets more effectively.
We must look to the economic regulator to encourage the sort of use of assets that we have so often wanted to encourage in the younger Monitor—to use those assets more effectively and to ensure that we can look across the totality of both community and acute hospital providers at how entrants into the system are using their assets. That would be possible under the new Monitor. I am not sure that we should set up another body to do that although I can see it might have a short term job to make sure that everybody is using the same monitoring mechanisms and is putting in the same sort of systems of financial accounting. With the new architecture we should be able to do that through Monitor.
Lord Warner
My Lords, I should like to respond briefly to the noble Baroness. There is nothing in the amendment that would stop this information being given to Monitor. If people want to amend the amendment in terms of Monitor as the customer for it, I do not feel strongly about that. I have put it under the national Commissioning Board because one of the things it will be doing is, I suspect, giving guidance to clinical commissioning groups on the nature of contracts. One of the requirements that can be used to drive change in this area is contractual requirements on people in terms of the standardisation of accounts. I saw the national Commissioning Board as likely to be able to deliver through this independent panel—which can be as short lived as one wants—the kind of changes that we need.
I want to emphasise to the House that the financial situation in the NHS is serious and will get really serious over the next few years. We need to improve very rapidly the quality of the financial management accounting systems in the NHS. That is a separate issue from the assets and procurement issue, to which the noble Lord, Lord Owen, has very ably drawn attention, because it is another long-standing problem. The standardisation of management accounts is an urgent issue for the NHS in the brave new world that it is going into, particularly with the large increase in the number of new organisations that are going to start for the first time to handle big sums of money without much clarity about how they are supposed to account for it.
Lord Walton of Detchant
My Lords, I believe it would be helpful to the Committee, even if one leaves aside the crucial role of Monitor with its new, major responsibilities, if the Minister could let us know what kind of administrative support, and in particular what kind of financial management support, Sir David Nicholson and his staff in the national Commissioning Board will have. Can he give us any information about that?
Lord Warner
I do not particularly want to intervene about GPs. I can understand to some extent what the noble Earl is saying about them. I am more concerned that the noble Earl has given us a lot of information about powers in the Bill for people to do things. I recognise only too well official defence in depth of the current status quo. I have had many a brief along those lines in my time, so I can see that.
What I am really interested in is how the Government are going to use those powers that they have taken in this Bill to deliver the kind of ideas that are actually in my amendment. I want to know what work is going on to produce the kind of comparative data that this amendment seeks to deliver to an unsuspecting world, from this variety of providers; not least because it is not just about accounting standards in financial terms, it is about the relationship of that expenditure to what is being delivered. That is why I have deliberately used the term “management accounts”, not just financial accounts. The public, and many of us, want to see the NHS showing how it has spent the money and what it has produced for that, and to see that on a standardised basis. I remain very sceptical whether the QUIP accounts deliver that. That is the issue that the NHS has to face up to. Unless we tackle that and can use the powers that the noble Earl has referred to in the Bill—and I am happy to come back on Report with a new amendment that relates to those powers—to deliver the comparative management account data, I do not think we are progressing matters very far from where we are now. I would very much welcome a more detailed discussion on this issue with the noble Earl, and with any other noble Lords, before the next part of this Bill, so that we can get to the bottom of this and help the Government use the powers that they are taking in a more constructive way.
Earl Howe
My Lords, I would be delighted to have that conversation. I did not in the least mean to suggest that the ideas the noble Lord has put forward are in any way irrelevant. Indeed, quite the opposite, I am aware that there is a lot of work going on at the moment in the very areas that he has highlighted. I would be happy to write to him about that, if that would help as a precursor to a meeting.
I will just cover a couple of the questions that have been asked. The noble Baroness, Lady Morgan, asked to what extent the Office for Budget Responsibility would be involved. The OBR has a very specific role in terms of producing economic information. We would not see a role for the OBR itself in analysing the impact of NHS spending, but this is an area that is always under close scrutiny across the Government, in the Department of Health and beyond. I am leaving the possibility slightly open, if I may.
The noble Lord, Lord Walton, asked whether Sir David Nicholson would have sufficient financial expertise alongside him on the board. Sir David Nicholson has said in Developing the NHS Commissioning Board, published earlier this year, that the board will have a finance director as part of its leadership team. That is all I can tell him at the moment. However, it is clear that the board will have a major task in ensuring that sufficient financial control is maintained over the health service as a whole. If it fails to do so—as the noble Lord, Lord Warner, rightly reminded us—we are all in trouble.
The noble Lord, Lord Hunt, asked how we can achieve comparable performance measurement of CCGs. The board will be required to publish an assessment of CCG performance annually, including their financial functions. It must also publish a summary report of the performance of all CCGs.
The amendment is well intended; I have no difficulty with that. However, in practice, as framed, it would be onerous and cut across established government responsibilities. I know the noble Lord, Lord Warner, thinks I am just defending the status quo, but I am trying to say that I am not sure his formula would add much value, particularly as the underlying purpose of the amendment is already achieved under existing arrangements. For those reasons, I hope he will feel comfortable—for the time being—in withdrawing it.
Lord Warner
My Lords, this has been a very interesting debate. It was never my intention to assume that the way in which this amendment was framed was the last word on the subject. It is helpful to know that there are provisions in the Bill that can be used or adapted for the purposes that I was seeking to produce. I still remain concerned that we need to use the powers that the Government are taking in a very speedy and effective way to link finance with performance data on a standardised basis. We need to get on with that. It needs to be in place by the time the SHAs disappear. The SHAs have been holding some of this stuff together. Once they go, we will need better systems than we have now to monitor performance and money. As the noble Baroness, Lady Young, has said, we need that matter to be in the public arena as well; it is not just for the closed world of the NHS. I hope that we can have some useful dialogue on this before Report to see whether we can secure amendments to the existing arrangements that will improve things.
Lord Warner
“( ) In discharging this duty, the Board must annually agree with Monitor new currencies for pricing under the national tariff that incentivise more efficient integrated clinical care pathways for patients, especially those with long-term conditions, and that minimise the use of in-patient hospital services.”
Lord Warner
My Lords, I apologise as I seem to have a series of amendments to this part of the Bill with my name on them. Amendment 103 is the first amendment in this group in my name and that of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy. It brings us to the first of what I suspect will be a number of debates on the complex and difficult issue of a national tariff and the need to use that tariff to ensure the most appropriate forms of care and care pathways for patients.
This is a time for confessions. The current tariff system, which I am afraid I was deeply involved in implementing to scale seven years ago, was designed for a different era when there was considerable financial growth and we were trying to drive acute hospitals to increase capacity to dramatically reduce waiting times for treatment. Those long waiting times, which had been a feature of the NHS for a long period, were the part of the NHS that led to the most complaints being made. They were the issue to which any Government needed to pay attention. The tariff was one of the ways of helping to progress that. The other was, of course, the much maligned targets, which we need not go into at this point.
In some ways, the current tariff has been too successful. It has helped to create overcapacity in in-patient hospital provision and has propped up poor and unsustainable hospital provision in some parts of the country. The current tariff does not promote well co-ordinated, integrated care for people with long-term conditions, which is the bulk of the NHS’s workload, given our demographic profile and some of our lifestyle choices. A significant proportion of services, particularly mental health and community services, are simply not covered by the national tariff and are often still dealt with on the basis of block grants. In 2012-13, the plan is to focus mainly on developing currencies rather than mandatory tariffs. This means that the majority of non-acute services will remain outside the national tariff. What is more worrying is the fact that the continuation of an acute hospital-dominated tariff based on episodes of care without any counterbalance risks these hospital trusts sucking in a disproportionately large amount of our NHS budget, which is shrinking in real terms. This is not a jibe at the Government except to say that they should stop pretending that the NHS can continue with real-terms growth and deliver the Nicholson challenge, as should any political party, including my own.
Tariff-setting is a technically complex business. There are plans to expand it into fields such as mental health where there is no international track record of success in doing that. There are no quick fixes, particularly if there are insufficient people working on a new tariff system. Tariff-setting relies totally on a good understanding of costs, an area where the NHS does not have great strengths, as I think we have just discussed. The current reference cost system has considerable shortcomings and excludes independent sector providers. Most of the rhetoric on price competition is just that—rhetoric—because reliable data to make price competition work effectively within the NHS are usually absent, so we are having a row about something that we probably could not deliver anyway.
The best that this Bill can do is to try to set a direction for future tariff design. The elements of that design should be fourfold. First, it should enable integrated care, not just within the NHS but across the health/social care boundary. This almost certainly means moving away from the tariff based on episodes of care to a year-of-care approach for long-term conditions, or a bundling of the services across care pathways. Secondly, a future tariff system should not be based on average cost, as now, but on best practice for particular conditions. Thirdly, the currencies in a new national tariff should cover the full range of services, not just acute care, which needs to diminish its dominance of the tariff. Fourthly, it should cover unavoidable costs and avoid windfall profits to providers. Unless we start designing a tariff system around those ideas, we will not progress towards a new NHS.
It will take at least three or four years at best to complete a national tariff covering a full range of services. However, I believe that we should set a clear direction of travel for the national Commissioning Board in the Bill. Given the responsibility of commissioners for demand management, it is right that if we are to have a national Commissioning Board it should set the currencies for a new tariff system. That is why Amendment 103 seeks to place the duty on the board to progress this work and to create some momentum by securing annual increments of progress. We can discuss later whether the board should also price the currencies rather than Monitor, but that is a subject for a debate on another day.
In the mean time, I wish to speak in support of Amendment 290 in my name and others in this group of amendments. This amendment would enable whoever is setting the prices in the tariff—currently Monitor in the Bill—to pay incentives to providers to integrate the delivery of health and social care services to individuals. It seems to me that we use the word “integration” without realising that it probably requires someone to do a bit more work than they are doing now to integrate the services, and that has a cost. This should be recognised in setting the tariff for the future so that service providers can be encouraged to take on the difficult job of integration without losing money in doing so. I hope that the Minister will see merit in these amendments and, indeed, others in the group, which move in a similar direction to mine. We need to set the agenda for the board in taking this difficult area of tariff work forward. I beg to move.
Lord Patel
My Lords, my name is added to Amendment 103 and other amendments in the group. Amendment 197E, which is a new amendment relating to commissioning, also stands in my name. Some of the points that I will make are similar to those made by the noble Lord, Lord Warner, but I have a slightly different way of looking at tariffs. I see them more from a clinical or patient care pathway point of view than that of integrating services. It is true that tackling the financial physiology of the NHS is critical to enabling the more influential and focused commissioning of integrated care. The payment by results tariff was designed by the previous Government to support the introduction of choice and competition, and specifically to create incentives for providers to increase elective activity to bring down waiting times for treatment and reward them for work undertaken. As the noble Lord, Lord Warner, has just said, that has been a bonanza for some of the acute trusts.
The tariff has played its part in that process with the consequence that access to planned care has improved significantly. Progress in elective care has enabled—or should enable—attention to turn to other priorities, such as providing high-quality care for people with long-term conditions where continuity and co-ordination are key objectives alongside access. This includes shifting unplanned care from secondary to primary care settings, where this will help deliver improvements in efficiency.
As currently designed and operated, payment by results does not appear to be well suited to support the implementation of these priorities, and there is a need to develop incentives that will facilitate integrated care for people with long-term conditions and for other services where this approach is likely to bring benefits. Experience in the United States offers valuable learning in this regard, but it is not the only place, particularly in the development of new forms of payment that go beyond fee for service and case-based reimbursement.
The idea behind episode-based payments—something that my noble friend Lord Warner also referred to—is to remove incentives to deliver increasing volumes of care by bundling together payments for a range of services relating to a particular episode of treatment. One example from the United States is the ProvenCare programme of the Geisinger health system under which a global fee covers the entire cost of cardiac care from pre-admission and surgery to follow-up for up to 90 days after surgery. Episode-based payments are designed in part to improve the quality of care by placing the responsibility on providers for avoiding and correcting errors. You do not get paid if you make a mistake and it takes the patient longer to recover. This encourages care to be done right the first time, and hence offers a more co-ordinated and positive experience for patients.
Capitation payments on the other hand go much further than episode-based payments in potentially covering all the costs of care for a defined population over a certain time period—a year, for example. Integrated healthcare systems such as Kaiser Permanente in California have pioneered the use of capitation funding—or pre-paid group practice as it was originally known—as a way of creating incentives to support prevention and primary care and to avoid the inappropriate use of specialist care. Kaiser Permanente sees acute care as a cost centre, but it sees community care and primary care, particularly for long-term conditions, as where the costs should be maintained and the quality driven. It monitors the performance of the providers of that care more intensively on a one-to-one basis than it does for acute care.
Although capitation funding has a long history, there has been renewed interest in it. In the NHS, various options could be pursued. These include combining payments to cover an episode of care or a care pathway, taking forward the idea of the year of care that has been tested in three national pilots for diabetes—I say this to the noble Baroness, Lady Young—and exploring how it might support integrated care; contracting with local clinical networks of primary and secondary care clinicians or foundation trusts to deliver integrated care for a specific population—some of the foundation trusts are experimenting with this and are quite innovative; and, lastly, accelerating work on personal health budgets to enable patients to commission care packages for themselves, with support from carers and families.
In practice, it is likely that all these options, and others, will have to play a part, and a period of active experimentation and evaluation is now needed to work through the consequences. All healthcare systems use a mix of payment systems related to the service that is provided, such as episodic or long-term, and where care is provided, such as primary or secondary care. The NHS is no exception and attention is needed for the way in which financial incentives can be developed to support integrated care where it will bring benefits to patients. The prospect of four years in which the NHS budget will only increase in line with inflation underlines the urgency associated with this work and the need to focus on improving the quality of care and not simply incentivising extra activity at a time when resources are not available to do this. As my noble friend Lord Warner said, it will require tariff flexibility, even tariff bonuses for providing care quicker and of a higher quality. What is needed is system leadership and innovation, which we expect the NHS Commission to deliver boldly, in tariffs for integrated care, with the explicit promotion of systems of integrated care.
Baroness Williams of Crosby
I think the answer to that had probably better come from the department rather than from me, but I am consistently surprised by the failure, not of this Government but of Governments of the United Kingdom for a long time, to say what the real achievements of the NHS have been and to recognise that outside this country it is widely regarded as perhaps one of the most outstanding health services in the world. It is worth saying that from time to time because we have 1.2 million people employed in the NHS and they deserve a great deal of the credit for having maintained a high standard in the face of very considerable financial pressures, even in the past. We have always had among the lowest expenditures per patient in the 11 highly industrialised countries, with only a couple of countries—Australia and New Zealand —spending less than we do.
There are two points to this argument. First, we are in a much better place to integrate care than we seem to think we are because we have already clearly established relations of trust between doctors and patients, and between hospitals and doctors, to an extent that other countries clearly regard as enviable. Secondly, one has to ask why we suppose that competition is a better way to deal with healthcare than are integration and collaboration. There is one area where competition is clearly crucial, and I accept that. It is in innovation and in trying out new ideas. None of us would in any way be opposed to that happening. However, I would like to put it on the record that if we are going to move in the direction of collaboration and integration, we have a very strong base on which to do it and we have the makings of something very impressive and important. The makings of that appear to be stronger in this country than in most others.
Lord Warner
I would not normally have interrupted the noble Baroness, but this canard that somehow integration is incompatible with competition has to be challenged. I refer the noble Baroness to the King’s Fund’s work on integration and its citing of Kaiser Permanente operating in a competitive market and doing very successful integration. I would also refer her to the peer-reviewed article by Zack Cooper of the LSE in a recent edition of the Economic Journal, which makes it absolutely clear that competition under the previous Government both improved patient outcomes and reduced deaths.
Baroness Williams of Crosby
I have actually gone in to the story of Kaiser Permanente very carefully. It is not surprising that if you choose the very best example in another country you can make a favourable comparison. I am talking about the outcomes for a whole population rather than a particular part of a population. I have said already that there are certainly areas where competition can play a very important part—I referred to innovation and new ideas—but I am simply putting on the record that if you look at the comparison between the health services of the 11 most advanced, richest and most industrialised countries in the world, the combination of integration and competition that we have here appears to have rather better outcomes than in those countries that rely much more heavily on competition such as the United States.
Earl Howe
Yes, I will. To address the point that I began just now, the board’s duty to promote integration specifically requires it to exercise its functions to ensure that services are provided in an integrated way where it considers that this would reduce inequality in outcomes. Those words are very important. That is mirrored by Monitor’s duty to enable integration.
I completely understand the intentions behind the amendments in this group. We have had a very helpful debate. We believe that the duties in the Bill, coupled with the wider levers in the system to promote integration, address the points that have been made. In the light of what I have said, I hope that the noble Lord will withdraw his amendment, although I am sure that this is a theme to which we shall return.
Lord Warner
My Lords, this has been a very helpful debate. I do not wish to keep noble Lords from their supper. I just want to log with the noble Lord the thought that, ultimately, if we look at history, changing the tariff has been a long, arduous job. I ask him to think some more about whether we should give a little more of a push to the work of the board in setting currencies than we have so far. Monitor cannot get on with pricing until those currencies are settled. That is the potential blockage in the system. On that basis, I beg leave to withdraw my amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 5 months ago)
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Lord Warner
“( ) In discharging its duty under this section the Board shall, after consultation with Monitor under subsection 171(4) and the appropriate clinical commissioning group, advise the Secretary of State whether or not the NHS service configuration in a particular area is financially or clinically unsustainable within the mandate issued or proposed to be issued by the Secretary of State.”
Lord Warner
My Lords, this is probably not the best time of night to be concentrating on this set of amendments, because it brings us to the difficult and controversial issue of service reconfigurations. Let me start with why I think that we need to move upstream from the full-scale failure regimes which are provided for in this Bill, and with why I do not consider that one can rely totally on local commissioners and elected Health Secretaries to undertake the scale of service reconfiguration that the NHS requires, or as quickly as it requires. In making that statement I start from a position that the best predictor of future behaviour is past behaviour. In the field of service reconfigurations past behaviour has not been a speedy or easy process to start, let alone finish.
I do not want to spend long on why it is urgent, but the essence of this is the Nicholson challenge, which is £20 billion of productive improvements in the NHS in the four years to 2015-16. As the Health Select Committee has pointed out, no health system in the developed world has ever delivered this level of productivity. To say that it is a big ask is a masterpiece of understatement. The NHS’s track record on productivity improvement is, putting it at its best, modest, so we are dealing with a difficult set of issues, on top of which there are constant pressures from demography, advances in science and rising public expectations in the UK healthcare system and, indeed, in virtually every advanced healthcare system. That is what confronts the NHS.
It is crystal clear that the public and politicians are beginning to recognise more openly that the historic patterns of service provision built around district general hospitals do not meet current or future healthcare needs. They certainly have a capacity to gobble up resources without necessarily delivering the type of services that many patients of the NHS need and which could be delivered more cost-effectively but probably not using the present pattern of hospital configuration. What that means is that we are facing a situation where in many parts of the country we have to change those hospital services very rapidly indeed, and we have to make some painful decisions on those service configurations, which can often mean closing some services, doing some services in a different place, redeploying and retraining staff and, in some cases, in all probability making some staff redundant. That is why this is contentious territory and why it has proven difficult to do. We are now moving towards a financial situation where we cannot put off the job of reconfiguring these services much longer.
The difficult problem we have in the way this Bill is structured and in the way we are approaching this is that we are expecting this painful stuff to be done in a situation where we are saying that local clinicians and local people have got to face up to these difficult decisions. They have got to start the process, unless it gets so bad that Monitor is required to trigger a failure regime. In many cases, the problem manifests itself in an acute hospital, but often you cannot solve the problems of that acute hospital without looking at the wider health economy within which it is situated, so we have a situation which is asking quite a lot of local clinicians, certainly based on experience, to start the process of reshaping those services however right it is in principle to expect local people to take the initiative in these areas.
Historically, we have faced a situation where elected politicians in the form of MPs have found this extremely difficult territory—whether they are going to be Kidderminstered, or whether they are going to find themselves having a very small majority and feeling honour bound to carry a placard around outside the local hospital without making a change. That is not a criticism of them; that is a fact of life. Asking local elected politicians and local people to, in effect, fall on their sword to some extent in relation to changing these hospital services is a big ask. This amendment tries to face up to some of those realities. It suggests that waiting for things to fail, to get so bad that they trigger the failure regime, is putting Monitor in a pretty tough situation.
This amendment tries to move upstream from that and to advance the argument that Monitor, with the support of the national Commissioning Board, should be able to look upstream and see the hospital services that are heading towards failure—in this case, I have taken a period of 12 months before failure—and start to do something about it. In co-operation with the national Commissioning Board, Monitor could trigger an independent panel to work with local people to come up with a set of proposals for reconfiguring services within a reasonable timescale set by Monitor that would make those services sustainable financially and clinically for the future. That is not to say that local people should be excluded but we should have a trigger that brings in some facilitation to help them get there.
Fast-forward, then, to the end of that process. We have often talked about the Chase Farm example. Seventeen years is a bit of a long time to sort out an A&E department, but that is what it has taken. My noble friend Lady Wall is still struggling with what comes next. We have to have something better than that. Elected Ministers are also constituency MPs. They understand the problems that some of their colleagues face. Sometimes they even understand the problems that their opposition colleagues face in these situations. It is not surprising that they find it difficult to take decisions quickly, even armed with the current independent review panel. No stone is left unturned in trying to give local people an endless chance to stop progress. We call it public consultation but it is in fact a stopping of progression of the reconfiguration.
What my amendment also does is to say, at the end of that process, that the Secretary of State cannot be taken out of the loop, but if he is going to turn down this independent panel’s set of proposals for making services sustainable clinically and financially in a given area, he has got to give his reasons to Parliament for doing that and has to come up with an alternative proposal for making those services sustainable. That is why I think we badly need a process of this kind where there is a trigger, some independent facilitation and some lock on the ability of the Secretary of State to endlessly procrastinate or avoid taking a decision coming out of an independent panel.
I am the first to recognise that this may not be enthusiastically received by the elected political class. It is probably a bit much to stomach appointed Peers proposing this idea. However, I am putting this forward on a non-partisan basis in the hope that we can move forward in this area on a basis similar to the one that I am proposing. At the end of the day what I am doing is pinching something. This is not a totally original thought. I am pinching it from Canada’s experience, where in the 1990s the healthcare system in Ontario was literally going broke and they had to find a way of not bypassing the elected political class but facilitating a set of changes that made it easier for elected politicians to take difficult decisions. That is the purpose of this amendment and I move it in that spirit, as a constructive attempt to deal with what I acknowledge is an extremely difficult and complex problem. I beg to move.
Lord Hunt of Kings Heath
My Lords, we are indebted to my noble friend for raising what I think is one of the most difficult issues the health service is going to face. There is no doubt that if the efficiency challenge is to be met, there has to be a major reconfiguration of services. Yet, as my noble friend has said, we know that this is often very difficult to undertake and get local sign-off. Both my noble friend and I enjoyed—if that is the word—experience as Minister for the health services in London, and both of us have been involved in some of the agonised discussions with the outer-lying hospitals and boroughs. The whole London area is littered with proposals that have been made for many years and which have not been put into effect. There are other examples up and down the country. The problem is that the health service no longer has the luxury of being able to rely on the uncertainties that are caused by the current system. Reconfiguration needs to take place, and rapidly, over the next two or three years.
I am enormously sympathetic to my noble friend’s amendment. It is interesting that in our previous debates the view has been expressed that ministerial intervention has often caused the problem. My noble friend would still push this substantive decision back to the Secretary of State. That is probably right, because in the end, however much the Government might wish to push this back onto the health service or onto the NHS Commissioning Board, I should have thought that the interest of MPs in reconfiguration issues would have sucked the decision back to the Secretary of State one way or another. We have to assume, therefore, that any process that is put forward does involve the Secretary of State.
I have no doubt that the noble Earl will say that we do not need to go down this route and that he is confident that clinical commissioning groups will be able to embrace reconfiguration of acute services and get sign-off from the appropriate or relevant local authority. I am sure that there may be some areas where that might happen, but of course, one has first of all to recognise that if a major reconfiguration is proposed, it will involve a number of clinical commissioning groups. The first test will be whether a number of CCGs will be able to come together to achieve a strategic outcome. Secondly, even if that happens, those clinical commissioning groups have yet to feel the heat of battle. They may well theoretically sign up to a reconfiguration, but they are inexperienced, I would suggest, in the kind of pressure that they will come under from politicians and the public. I suspect that one or two will find it very difficult to hold the line.
The other problem with the current proposals of the Government is that clearly they wish the NHS Commissioning Board to have a leadership role. However, the Commissioning Board will have much less legitimacy than Ministers when it comes to controversial decisions such as closures of accident and emergency departments. It is easy to see how these may come, in the end, to little fruition.
I certainly support my noble friend. The only question I put to him is whether his process is really tough enough. I wonder whether what really needs to happen is that every area of the country should be reviewed by some kind of independent body as to whether the configuration of services is safe and appropriate. It no doubt could have examinations in public, similar to the old strategic planning process that we have had in the planning system. I would favour a much stronger statutory approach to this, which forces each health economy to come to the table, to put their viewpoint, but then to have an outside group of experts who would then make strong recommendations to the Secretary of State. I fear that without such external views we will find it very difficult to make progress. I suggest to my noble friend that he should consider whether he might need something stronger to make this bite.
Lord Warner
I never thought that I would be outflanked on the Stalinist wing of the Labour Party by any Member of your Lordships’ House, but clearly I have that all wrong. I would be happy to strengthen these proposals because I rather share my noble friend’s view that I may be being a little wimpish here, but I was deferring to the elected politicians on this, probably unwisely. I am producing this rather wimpish proposal, but somewhere along the way we certainly have to have a trigger that is independent of the political process. We need some outside facilitation of change with the local people and we have to restrict, to some extent, the ability of elected Ministers to totally undo or avoid taking decisions in this area, possibly as much as my noble friend is saying.
Baroness Cumberlege
Those words are so warm to my heart, I cannot tell the noble Lord how much. One of the things that really concerns me is delay. I am worried that if we get this outside group it will delay matters, because some of this is very urgent at the moment. What is the relationship between this and the independent review panel—I am not sure what it is called—which deals with hospitals at the moment?
Baroness Cumberlege
I am indebted to my noble friend for that. Does the Independent Reconfiguration Panel play a part in this? Is it something different? Do we have to go through that as well, in which case it will take even longer?
Lord Warner
Something equivalent to the Independent Reconfiguration Panel was used earlier in the system. It was put in to bat with the local area by Monitor when it saw trouble coming down the railway track in the form of failure. I envisage that a standing group of people would be approved to work in this area, which Monitor would be able to assemble very quickly. My amendment proposes that a timescale is set for this panel to work with local people and to come back with a solution to the problem, but I think that more people than are currently approved for the reconfiguration panel will be needed because of the points made by my noble friend. In many parts of the country we are likely to have to intervene quite quickly because we have spent a lot of time over the past 10 or 20 years putting off decisions about some of these places. A lot of these places will come to Ministers, the national Commissioning Board and Monitor over the next few years, so we will need quite a few different panels.
Earl Howe
My Lords, this group of amendments usefully focuses us on reconfiguration and the sustainability of NHS services. The sustainability of services will be centre stage for commissioners and providers alike. I should like to set out some key features of the Government’s reforms, which I hope will reassure noble Lords that the system we have put in place will deliver sustainable NHS services. The first key feature is that local clinical commissioners will be responsible for securing continued access to healthcare that meets the needs of local communities in consultation with health and well-being boards. Any proposals for service change will be locally led by clinicians in consultation with patients and the wider community.
The second key feature is that the continuity of services regime requires Monitor to support commissioners to secure continued access to NHS services. Monitor will do this by undertaking an ongoing assessment of risk and intervening to support recovery and to prevent failure where possible. Therefore, the onus is on commissioners and providers to address any problems with the sustainability of NHS services. Only as a last resort where commissioners and providers have failed will Monitor step in to appoint an administrator to take control of the provider in order to secure continued access to NHS services.
The noble Lord, Lord Warner, suggested that there would be nothing between a locally led process leading to an agreed reconfiguration and Monitor triggering the failure regime. That really is not so. It may be helpful to the Committee if I explain. There are various levers available to Monitor before failure is even thought of. First, regulatory interventions are available to Monitor through the licence in order to protect patients’ access to essential services where Monitor considers that a foundation trust is at risk of becoming clinically or financially unsustainable. I agree that there should be a way for the system to respond when, as the noble Lord put it, trouble is seen to be coming down the railway track.
Where it is appropriate, Monitor would be able to direct a provider to appoint turnaround specialists that would provide additional capacity and expertise to support a provider’s management in turning an organisation around. Monitor would also be able to appoint a pre-failure planning team to work with commissioners to develop plans for securing continued access to services in the unlikely event that turnaround was unsuccessful. That process may identify reasons why service reconfiguration would be needed to secure sustainability, but it would remain a commissioner-led process. I hope that I have made it clear that it is appropriate for local clinical commissioners and not Monitor to lead this process with support from the NHS Commissioning Board. The board will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes, and Monitor will support commissioners in protecting patients’ access to essential services through the licensing regime.
The noble Lord, Lord Hunt, suggested that the board should play a leadership role. The Bill allows for that to happen in a number of ways, using commissioning guidance to set expectations on how CCGs should deal with reconfigurations that span CCG boundaries. It would also provide access to advice in the form of senates to help them develop their proposals. Ultimately, where a local authority challenges a proposal, the board will be able to direct the CCGs on their plans, so there is an interest in making sure that those plans are robust to start with.
Earl Howe
The noble Lord is absolutely right. In that kind of situation the process would inevitably become more complex. I do not know whether the noble Lord noted the comments of Dr Jennifer Dixon of the Nuffield Trust when she gave evidence to the Commons committee, but she said:
“If you look at some of the more successful attempts at reconfiguration, more involvement of local groups was necessary in order to get change. Some of the unsuccessful ones have been those where they have communicated less and involved fewer people”.
So paradoxically, she said, having more local organisations involved,
“could have the opposite effect”.
I think that that was a very perceptive comment. We think that the Bill should strengthen and encourage these relationships, either within a local area, or within a larger one, where services are commissioned over a larger area, as very often they will be, and you will get a broader dialogue taking place. The main object for all of us is to ensure that the mechanisms for this kind of partnership-working and local engagement are in place.
I take the point of the noble Lord, Lord Warner, about the length of time that some reconfigurations have taken in the past. We are very conscious of that. Under our plans, local authority scrutiny functions will be required to publish a timescale for when they will make a decision on whether to refer proposals for substantial service reconfiguration. We intend to change the existing regulations so that, where scrutiny functions are delegated to joint committees of two or more councils, councils could not step in and exercise those functions. This should prevent proposals which have taken time to develop and agree through a joint overview and scrutiny committee from falling apart at the end of the process by one local authority choosing to refer.
I understand the noble Lord’s concerns and will of course reflect on his proposal. However, I think that we are creating what could be an effective framework that would allow commissioners and providers to work together to reconfigure services where that is needed to protect patients’ interests. To support that, the Bill sets out a commissioner-led framework. We think that it is right for patients that it should be framed in that way. With the prospect of continuing dialogue on this subject, which I think will rear its head on more than one occasion as we go through these Committee proceedings, I hope that the noble Lord will feel content for now to withdraw his amendment.
Lord Warner
My Lords, this has been a useful piece of—if I may put it this way—foreplay on this subject before we get down to real business. I want to say a couple of things to the Minister as he goes into reflective mode.
We tried turnaround teams with individual trusts in 2005-06 in the aftermath of financial failure. The trouble was that they tried to solve the problems of a particular hospital within that hospital and not within the health economy. I listened carefully to a lot of what the Minister said. Many long-standing problem trusts cannot solve their problems. You can keep coshing them into insensibility, but they cannot solve them on their own. They need to be solved within a much wider context. I would pray in aid north London, which in my judgment has something like three district general hospitals too many for the income that is likely to be available. Those hospitals cannot be saved on their own. There is a massive reconfiguration exercise to be done in a wider health economy. I give turnaround teams three out of 10; we need something better than that.
I wish the Minister and the Government well in trying to tackle this subject. It may be that all Governments have to go through the difficult process of learning by disaster, which is what may happen here. We are dealing with a deep cultural problem in the NHS. It believes that, somewhere along the line, a cheque will come through the post to bail it out at the local level. Unless that culture is changed dramatically, I do not believe that the Minister’s well intentioned approach is likely to deliver the change that we need.
I, too, shall reflect, but I think that we shall come back to this matter and look for something which may not be as draconian as my noble friend would be satisfied with but which moves in the same direction if we are to see the changes that the NHS needs made in the timescale that is needed. I beg leave to withdraw the amendment.