Access to Palliative Care Bill [HL]

Lord Warner Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Warner (Non-Afl)]

My Lords, as this is the first time on which I have spoken from this position in the Chamber, perhaps I could clarify my status. I am not a Member of the Cross-Bench group at this stage but a non-affiliated Member of your Lordships’ House. Let me reassure your Lordships that I have not had a personality transplant because I speak from this place—some may say that that is a shame.

One of my long-established views is to improve the end-of-life experience and, in particular, to give people more choice on how and where they end their lives with the maximum dignity. Clearly, good-quality, affordable and accessible palliative care is an important part of the end-of-life choices we should all be able to exercise when our time comes. That is why I strongly support the Bill and warmly congratulate the noble Baroness, Lady Finlay, on her initiative in bringing it forward.

I have no problems with the Bill’s structure and I very much support the points made by the noble Baroness, Lady Finlay, and others about the need to tackle the huge geographical variation in access to good-quality palliative care. However, I will explore in more detail a particular aspect and think about bringing forward amendments in Committee. I hasten to add that the issue I shall raise is not assisted dying. I still strongly support legislation on assisted dying along the lines of the Bill proposed by the noble and learned Lord, Lord Falconer. I gently say to the noble Lord, Lord Suri, that good palliative care is a partner with choice on assisted dying. They are not rivals, but part of the end-of-life choices that many people would like to have.

That brings me to the area I would like to strengthen: the choice to die at home, or the place that people regard as home. I have a Private Member’s Bill on this, the Right to Die at Home Bill, which is unlikely to be reached in this Session. As drafted, my Bill does not sit well with this Bill. It is no purpose of mine to damage this Bill by trying to force it into the structure of my Bill.

Here I turn briefly to the excellent briefing from the End of Life Care Coalition. The bull point to emphasise is one made by a number of other people: about 50% of people in the UK continue to die in hospital, despite this being the place where most people would least prefer to be. It is also the most expensive in care cost terms and is rated substantially lower than care at home, in a hospice or in a care home. We have achieved something quite remarkable in this country. Each year we allow half the people who die to do so in the place they least want to be, which provides the least acceptable care and is the most expensive for the taxpayer. That is no mean achievement when the NHS is in such a parlous state financially and needs to care for far fewer people in hospital.

I want to explore with the noble Baroness, Lady Finlay, how we might frame an amendment that captures the spirit of my Bill without damaging the structure or purpose of hers. After a helpful discussion with the clerks, I think that this might be done by giving patients a right to receive palliative care at home right up to the point of death. I believe that this would effectively provide people with an effective right to die at home or the place they regard as home. It would help to change some of the cultural and professional problems that we have in this area, which a number of other people have drawn attention to, in particular the noble Lord, Lord Crisp. It would prevent what happened to my father, who was discharged from a hospice to die in hospital—in my view, quite unnecessarily. I have an instinctive feeling that that is going on from time to time in some parts of the country, apart from for the people who get to receive hospice care.

Before I sit down, I shall touch briefly on money—a subject that I know is dear to the heart of the Minister. Allowing more people to die at home will save the NHS money, but some of those savings—this is a point I want to emphasise—will have to go to boost social care, which is still scandalously neglected by all the political parties. Macmillan has shown that palliative care delivered to people’s home is about a third of the cost of that delivered in an institution. Let us have a bit of sensible, integrated public policy-making. I hope that we can give this Bill a prompt passage.

National Health Service: Sustainability

Lord Warner Excerpts

Thursday 9th July 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, I, too, congratulate the noble Lord on securing this timely debate. As usual, his analysis was impeccable and very much to the point. We have just completed an election campaign in which undying love was professed by all the parties for the NHS and more money was promised—£8 billion to be precise, as the Chancellor said yesterday, for the period to 2020. Nevertheless, we have to move quickly now to tackle the rapidly deteriorating NHS finances, even with an extra £2 billion in prospect for the current financial year. We must also seriously up the tempo of service reform, because we have a linked cash and care crisis.

On the care side, we at least have a plan—the five-year forward view—and a chief executive capable of implementing it, if he is allowed to do so. But the NHS has to be turned round very fast indeed, with much more emphasis on preventing ill health and much more care and treatment being provided in the community rather than in hospitals. Staff need to work in radically different ways, with much greater use of technology by a too-often luddite NHS. The budgets and care delivery of the NHS and social care must be integrated rapidly, both nationally and locally. Unchanging and failing providers have to be replaced much faster than we have been willing to do so far, with a willingness to use competition to do this. It is worth remembering that 60% of the public simply do not care whether their NHS services are provided by the public or the private sector.

The key question now is whether the five-year forward view will resolve the NHS’s major productivity problem, whereby it produces the wrong services in the wrong way and in the wrong places. It needs an annual productivity gain of at least 2.3% stretching over the next decade. The best it has achieved in any recent year is 1.5%, and the average for the last Parliament was under 1%. Most of that was achieved by curbing staff pay, a policy that is to be continued for the rest of this Parliament. The acute and specialist hospitals are the worst offenders, with an annual productivity gain averaging 0.4% over the last Parliament—do not believe me, believe the Health Foundation.

Unconditionally pumping more money into an unreformed NHS is probably the worst thing any Government could do, not least because the public have rumbled NHS inefficiency. The 2014 British Social Attitudes survey shows that over half the public thought the NHS wasted money. They have not yet rumbled the NHS’s track record on avoidable deaths that the noble Lord, Lord Patel, pointed out.

We must always remember that the best predictor of future behaviour is past behaviour. The jury must definitely be out as to whether the NHS, even under its new leadership, is capable of delivering, or willing to deliver, the £22 billion of productivity gain by 2020 promised in the five-year forward view and now apparently being relied on by the Government.

If the NHS fails, as I think it will, do the Government increase borrowing, cut other public services further or raise taxes? Without any of these, they will have to face up to finding new streams of revenue or reducing the NHS service offer. Those are the hard facts of economic life. Even if—it is unlikely—the Government manage to wriggle their way through to 2020 without making hard choices on the NHS, the Office for Budget Responsibility forecasts show that the NHS financial challenges will last very much longer than this Parliament.

Our tax-funded, largely free at the point of clinical need NHS is rapidly approaching an existential moment. The voices of dissent and outrage will no doubt be deafening but a wise Government should begin now the process of helping the public engage in a discourse about future funding of the NHS. To do that requires a measure of cross-party consensus on some form of authoritative independent inquiry that could produce analysis and a range of options for a way forward. As the noble Lord, Lord Fowler, said, the start of a new Parliament is the right time to start this process for both Government and Opposition. Let us try to avoid weaponising the NHS—to use a phrase—and show a bit of political maturity from both Government and Opposition.

Standardised Packaging of Tobacco Products Regulations 2015

Lord Warner Excerpts

Monday 16th March 2015 Lords Chamber

[Viscount Falkland (CB)]

My Lords, I am a non-smoker but having been in your Lordships’ House for some years one thing that concerns me about this measure is the unintended consequences. One is always worried in this House about them and so we should be. It seems very odd that so few people have expressed the view that tobacco is a legal product. How can you interfere with the marketing and the sales of a legal product? I think the product is undesirable and the arguments of the scientific community about its danger to health are indisputable. However, we have to think rather carefully about what may follow. If you get away with this without too much protest there are all kinds of bien pensants and vigorous politically correct people who will seek to do various things. For example, it could happen quite easily that in some local authority someone of limited life experience might suggest that, with obesity and the compulsion that people have to eat too much, it might be a good idea to prevent restaurants allowing people to eat on the pavement under an awning because that attracts people to sample the restaurant’s delicious wares. Noble Lords may think that this is a trivial, Clarksonesque point, but it bears thinking about.

I am grateful for the efforts that have been made to curb the ill effects of smoking. I am a frequent cinema goer—I have been a film buff since I was a boy. I do not think I would be talking to noble Lords today if they had not banned smoking in cinemas. I may have a husky voice, but I would probably be dead by now, I should think. These are things that have to be considered.

In the speeches so far, there has been scant respect for one thing that is very important to this country, and I hope it will be borne out in the speeches during the election campaign. This is a trading country, and trading countries require freedom in order to encourage the production of goods, to sell them and to market them correctly. If you do not like smoking, then ban it, for heaven’s sake. Do not try to pretend that this is going to deal with it—it is not going to deal with it. We have already seen the unintended consequences on the streets. In some of our best streets in the West End of London you see cigarette ends everywhere because people are smoking at lunchtime in doorways, smoking in the open air and smoking in groups; they are also smoking in their homes because it is unsatisfactory outside so that the smoke filters through badly constructed walls.

There are all kinds of aspects of this whole problem which have not been properly addressed, and I do not think that packaging is the answer. Should the noble Lord who introduced this amendment guide us towards the Lobbies, I shall follow him.

[Lord Warner (Lab)]

My Lords, I had not intended to speak in this debate, but I want to congratulate the Minister and the last speaker has provoked me to take us back to the time when I, as a Minister, was taking through this House the legislation banning smoking in public places and in the workplace. Some of the arguments which we heard from the last speaker and from the noble Lord, Lord Naseby, took me back to those times, the good old days when Parliament was challenged because it had the temerity to introduce legislation in this area to protect people’s health and, in particular, to try to protect children’s health. We heard the same old rubbish, if I may put it that way, on second-hand smoke, which was later proved scientifically to be as dangerous as direct experience of smoke. We can sit through these debates hour after hour, but the science does not change. The science is the same as it always was. It just gets better for those who want to control the consumption of tobacco. The Government are to be congratulated on taking this legislation forward, and I hope the House will support it overwhelmingly.

Before I sit down, I shall ask the noble Lord, Lord Naseby, whether he enjoyed the Eagles concert last July which he experienced as a guest of JTI Gallaher.

[Lord Naseby]

Yes. I declared the interest and went to one concert. I do not imagine the noble Lord has ever been to anything, anywhere, paid for by anybody else. I just hope he has always declared it.

[Lord Warner]

I have not. I pay for my own concert tickets.

[Baroness Meacher (CB)]

My Lords, I was not planning to speak today, but I have to rise to respond to the noble Viscount, Lord Falkland. If we were to have a logical system in this country for dealing with drugs, tobacco would indeed be illegal. We have lots of drugs that are illegal in this country that are infinitely safer than tobacco, and we all know that, if we were starting today, tobacco would be unlawful. So I simply do not accept the point that, simply because tobacco is lawful, we should allow the market to let rip—very far from it. We know that it is very difficult to make a product such as tobacco unlawful at this stage, but we need to do everything possible to protect the public from the most dangerous drug available in this country today.

Health and Social Care (Safety and Quality) Bill

Lord Warner Excerpts

Friday 13th March 2015 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I also have an amendment in this group. My intention is very similar to that of the noble Lord, Lord Turnberg, who has just spoken. I, too, state categorically that I do not believe that harming patients is acceptable. Pressure sores, neglect of patients, hospital-acquired infections and so on are not acceptable, and we should aspire to eliminate avoidable harm from our systems in healthcare. However, when we legislate, we must be careful that our wording is accurate, clear and does not raise the probability of unintended consequences. It is that which concerns me, hence my amendment.

The Berwick advisory group has advised that the correct goal is the continual reduction of harm, because patient safety experts report that zero harm is impossible, that cultures must be addressed to reduce harm, and that that is where resources should be focused. We must ensure that open, honest and transparent working cultures exist across the NHS, and that the clause does not inadvertently inhibit innovation, which often involves taking controlled risks, and does not stifle open discussion and reporting of errors. We must not legislate in a way that seeks blame and reverses our move towards such an open culture.

That is why I have suggested that the clause be retitled “Reducing harm in care”. The amendment would amend the National Health Services Act 2006 to include among the Secretary of State’s duties,

“the continuous reduction of avoidable harm”.

Given the time and progress of the Bill, can the Minister confirm that any subsequent regulations will be consulted on and be subject to affirmative resolution?

Can the Minister confirm that the duty in Clause 1 applies to organisations overall rather than to an individual practitioner, who may find himself or herself working in an uphill struggle to decrease harm in a poorly run organisation? As the noble Lord, Lord Turnberg, outlined, my concern is that such an individual could be scapegoated and hung out to dry by such an organisation unless it is absolutely clear that the onus of responsibility in Clause 1 rests on the provider organisation to have appropriate infrastructure in place to reduce avoidable harm. Can the Minister confirm that it is all organisations with which the NHS contracts in any form that must have a harm reduction policy, including private and voluntary sector care organisations, and that this must go across all health and social care?

Harm reduction must recognise the need to take risks at times with the intention of achieving a good outcome. Paralysis caused by risk-averse cultures is beginning to pose a great risk to patients, because not acting or taking the guidance or protocol-type approaches to care can sometimes pose a greater risk to an individual patient with complex individual needs than acting in a way that is outside what might be considered to be the normal confines of activity.

[Lord Warner (Lab)]

My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.

I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.

I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.

NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.

This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.

[Baroness Masham of Ilton (CB)]

I agree that there should be a culture of openness, honesty and transparency. When things go wrong, most people say, “I don’t want this to happen to anyone else”. There should be lessons learnt from mistakes, not cover-ups. This should be made as clear as possible.

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[Earl Howe]

That is a very important point, which I shall be happy to take away.

Amendment 1, tabled by the noble Lords, Lord Turnberg and Lord Warner, would replace the reference to “no avoidable harm” with “take steps to reduce” avoidable harm. I accept that in some settings regulated by the CQC, including the NHS, that phrase may better reflect the scale of what can be achieved. However, regulation by the CQC is not just about the NHS. In the case of some health and adult social care services, I believe that it is reasonable to strive to eradicate all avoidable harm. It is for that reason that I prefer the current wording. Yes, it is more ambitious, but its ambition contains an incentive to strive towards a continuous reduction of avoidable harm across all settings regulated by the CQC.

The amendment would also result in requirements on providers to monitor the steps they take to reduce avoidable harm and to train staff in the reduction of avoidable harm. That is clearly desirable, but I must question whether it needs to be a duty set out in primary legislation. The training of staff in reducing avoidable harm is important, and Section 20(3)(d) of the Health and Social Care Act 2008 already expressly provides for regulations to include requirements on the training of staff.

The fundamental standards regulations, to which I referred a minute ago, which were passed by this House in November and come into force in April, already meet the test of the Bill, and no change to regulations is required. The fundamental standards require that care and treatment is provided in a safe way for service users. They give the CQC power to take action against providers where a failure to take steps to provide care in a safe way results in avoidable harm.

The regulations are breached not whenever avoidable harm occurs, but where there has been a significant failure effectively to manage the risks of harm. They are clear that that involves assessing the risks and taking steps to mitigate them. They ensure that staff have the right skills and qualifications, that premises and equipment are safe and that medicines are properly managed. They also require providers to have systems in place to assess, monitor and improve the quality and safety of services.

Noble Lords have cautioned that the clause might lead to staff taking a risk-averse approach. The noble Lord, Lord Hunt, expressed the concern that it could encourage staff to lose sight of the patient and instead focus on covering up mistakes. I firmly believe that the reverse is the case. What it does is to underpin our efforts to strive for the very thing so strongly advocated by the noble Lord, Lord Turnberg: an open reporting culture where identifying errors helps organisations to improve the safety of care. Where providers take the steps to manage the risk to safety, front-line staff can focus on the needs of patients and service users, content in the knowledge that the environment in which they work promotes safety and quality.

Our debate up to now has perhaps given the erroneous impression that the fundamental standards are just about the systems and processes. They are not. They focus on the outcomes of care and treatment. The new regulations, which come into force in less than three weeks, place patients and service users at the heart of service provision. They require that treatment and care meet the needs of service users and reflect their preferences. They prohibit providers from providing care without consent. They also put in place a new duty of candour that requires providers to inform service users where there have been failings in their care.

In those ways, patients and service users are central to the fundamental standards. Clause 1 rightly ensures that safety and the reduction of avoidable harm will always be the foundation of the regulatory system operated by the CQC.

I turn to Amendment 4, in the name of the noble Baroness, Lady Finlay. I am confident that all noble Lords share the same objective as that of Clause 1, which is to place patient safety at the heart of the delivery of services. The Committee will be aware of the importance that the Government place on improving safety. The recent report of the Morecambe Bay investigation has re-emphasised that that is the right approach. Moving towards the reduction of avoidable harm requires action across the health and social care system.

I agree with those who say that the main way to reduce avoidable harm is through changes in culture. None the less, there is also a role for legislation. The role of the law in this area is straightforward: it can define minimum acceptable standards and introduce ways to protect patients who are put at risk when those standards are not met. It provides a safety net that protects people from harm.

I stress that the regulations issued under Section 20 of the Health and Social Care Act 2008, which Clause 1 amends, apply to registered providers of health and adult social care in England. There are two important points here. First, the regulations do not apply to individual members of staff but to the providers of care. In that respect, they offer protection to staff as well as to patients and service users. Secondly, the scope of the regulations is not restricted to the health service but applies also to adult social care. In that respect, the scope of the clause is broader than that of the noble Baroness’s amendment. For that reason, I prefer the current wording, which offers the same protection to patients and service users wherever they receive care, not just in the NHS.

The noble Baroness asked whether the clause applies to all care organisations, including those in the voluntary sector. All providers of regulated activities must register with the CQC and meet the registration requirements, including voluntary sector and independent sector providers. She also asked whether the regulations will be consulted on and subject to affirmative resolution. The answer to both questions is yes, but having said that, the fundamental standards regulations are consistent with the objective of Clause 1. Those regulations were consulted on and were subject to affirmative resolution. Any future regulations amending or replacing those regulations would also be consulted on and, unless the changes are minor, would be subject to affirmative resolution.

[Lord Warner]

Can the Minister clarify something for me, because I am increasingly puzzled? He keeps talking about the fundamental regulations which are coming into force in three weeks’ time being consistent with Clause 1. If they are consistent with Clause 1 as they are framed, why do we need Clause 1?

[Earl Howe]

What Clause 1 does is to amend the provision whereby the Secretary of State may require the CQC to have safety as its prime objective to one where it must have that requirement as its prime objective. That is what Clause 1 essentially does, so there is a good reason for having the Bill alongside the regulations.

[Lord Warner]

I am sorry but this is quite a key point. If the Minister is right and those regulations were drafted in accordance with the law as it stood before this Bill, they presumably make the same requirement. The Minister is saying that they meet the requirements of the Bill. I still cannot reconcile why you need to change the law, particularly if we are now into “may” and “must” territory, which always delights your Lordships’ House. I am obviously being very dim but I still cannot understand why you need to change the law—the primary legislation—but do not then need to revisit the regulations which were made under other primary legislation. I thought I saw the Minister proceeding, uncharacteristically, with a degree of caution on this. There is an issue here on which, so far, the Government have not given me a particularly convincing explanation.

[Earl Howe]

I am very sorry that I have not given that explanation clearly enough. The point was well drawn out at Second Reading by my noble friend Lord Ribeiro that what Clause 1 essentially does is to bring patient safety absolutely to the fore in the context of the CQC’s work. That is entirely consistent with the approach that we took in the fundamental standards regulations which, as the noble Lord knows, flowed out of the work done by Sir Robert Francis QC in his report on Mid Staffordshire. If I can be clearer to the noble Lord before the conclusion of this debate, I will be glad to do so but I find it difficult to say more than I already have on this.

The noble Lord, Lord Turnberg, asked about the CQC’s guidance. Its guidance on the new fundamental standards has been consulted on. The CQC has a range of actions that it can take when a provider does not meet the fundamental standards, ranging from a warning notice to cancelling registration. The CQC’s enforcement policy is clear that any action that it takes will be proportionate to the risks to patients and that its most serious sanctions will be used only in response to the most serious service failings.

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[Lord Ribeiro]

I entirely agree. This should be taken forward in all the colleges and, in particular, in the Academy of Medical Royal Colleges. Checklists do not stop with surgeons. There is a lesson here for many medical disciplines which could adopt similar practices. This is something that we should hear more about in future.

I have reflected on this in the light of today’s debate and the concerns expressed by the noble Lord, Lord Warner, and others, and I feel that the amendment tabled by the noble Baroness, Lady Finlay, provides an opportunity to look again at the heading of Clause 1 and to change it to “reducing harm in care”. I am assured by the Public Bill Office that it is possible to change a heading in a Bill without an amendment. I propose to accept the noble Baroness’s suggestion and recommend a change in the heading which will be printed when the Bill is enacted, although I may well ask her not to move her amendment in respect of the rest of the content.

I hope that that and the other assurances I have given about the progress in education and training following the recommendations of the Berwick report will reassure those who remain concerned that this clause implies zero harm. It does not, but it will encourage the reduction of harm in any health setting. It is progressive and does not imply that from the day that the Bill becomes law we will outlaw avoidable harm. To err is human. Our job should be to create a climate through the education and training of medical students—who from this autumn will become patient safety champions—trainees and all healthcare workers whereby they recognise that reducing harm is their responsibility. As a result, I hope noble Lords will not press their amendments.

[Lord Warner]

Will the noble Lord clarify the change in heading? On the first page of the Bill there are two references to “harm-free care”. Will both be changed to “reducing harm in care”?

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Moved by

[Lord Warner]

8: After Clause 3, insert the following new Clause—
“Children
(1) The Secretary of State shall, as soon as practicable, make regulations to apply the provisions of sections 2 and 3 to services for children that benefit their health and wellbeing and protect them from abuse.
(2) Such regulations shall be applicable in the first instance to relevant health and children’s social care commissioners and providers.
(3) These regulations may be extended to other public bodies by order where there is an established body of evidence that such extension would improve the health and wellbeing or protection of children.
(4) All such regulations shall be approved by resolution of both Houses of Parliament.”

[Lord Warner]

My Lords, Amendment 8 follows the slightly unsatisfactory debate at Second Reading on 6 February on the issue of a common identifier for children. As I said then, I welcome the provisions in the Bill for consistent identifiers for adults across health and social care, but I still cannot see why the same considerations do not apply in this Bill to children. Indeed, I would go even further and say that the absence of a common identifier for children poses even greater risk than that for adults.

I declare an interest as the Children’s Commissioner for Birmingham, appointed by the Secretary of State for Education. I do not intend to speak about my work there except to tell the House that Birmingham, like many other parts of the country, is experiencing huge rises in the numbers of children at risk and in need.

A key element of tackling this problem is all agencies speedily sharing information about individual children. To do this means a common identifier. It is not only me saying this. As far back as 2003 the noble Lord, Lord Laming, in his excellent report on the tragic case of Victoria Climbié, called for a common identifier database for all children under 16. This Government halted work on it. Nevertheless, professionals working in the area have battled on, trying to improve information sharing in order to reduce risks to children.

The child protection information sharing project is being implemented to allow—I emphasise “allow”, not “require”—healthcare staff in unscheduled care settings to be alerted to the existence of a child protection plan. However, this is a long way short of using the NHS number, given to all individuals at birth and a lifelong identifier, to link data sets for the protection of children. All these professionals cannot understand why politicians across the parties—I am not making a party-political point—simply will not commit to doing the same for children as they do for adults on interagency information sharing and to making it easier to share information through a common identifier.

I am not going to detain the House today with various attempts to patch up children’s data sharing. I simply suggest that all Front Benches read the 2014-15 report on information sharing from the Children and Young People’s Health Outcomes Forum. This makes it clear why the NHS number should be used as the link identifier and provides a process map for doing so.

Amendment 8 attempts to build on all the hard work that I have mentioned by an army of committed professionals to improve the lot of vulnerable children. Instead of the almost endless bureaucratic dithering and squabbling by various public bodies both nationally and locally, we need to put children on the same basis as adults in terms of information sharing and linked identifiers. My amendment provides that a Secretary of State—frankly, I do not care which one, and anyway they may all have different functions after 7 May—should have the responsibility to make regulations to apply the provisions of Sections 2 and 3 of the Act to services for children that benefit their health and well-being and protect them from abuse. It is a deliberately broad remit, but I believe that it is within the scope of the Long Title of the Bill. If the Minister wants to argue that it is not within scope, I would like to hear the legal arguments for that. I have gone through the Long Title and I cannot see that it states anywhere that the Bill is limited to adults.

The amendment does not tie the hands of any Government in terms of detail or precise timing. Initially, it restricts the scope to children’s commissioners and providers in the health and social care sectors, but it provides for later extension where there is a body of evidence to show that doing so could improve the health and well-being of children—something which I suspect all noble Lords in the House support.

I recognise that my amendment will not have improved my popularity rating in government departments, among the Bill’s sponsors, and probably on the Front Benches as well at this stage of the electoral cycle. However, if people want this Bill speedily, I want to see some movement from the Front Benches—not just the Minister; this is also a matter for our Benches. I do not intend to press matters further today, but I would like to hear whether the Front Benches can demonstrate a willingness to commit to act on this issue at the earliest legislative opportunity if they are part of the next Government. I know that no one can commit the next Government, but it is possible for all the main parties to take a view on the issue going into an election. I hope that we can bring a bit more positivity to this issue and I beg to move.

[Baroness Masham of Ilton]

My Lords, I would like to ask a question of the noble Lord, Lord Warner. Would Amendment 8 help to protect children such as Baby P, who suffered around 50 abuses, including a broken back, which had been neglected? Many other children have suffered abuse and neglect since then. Children need extra shared protection.

[Lord Warner]

I know of the commitment of the noble Baroness in this area. The answer is that a linked identifier would have helped in many of these cases. We have to move beyond exhortation in central government guidance for people to share information across the agencies to providing them with the practical tools that will make it easier for these data systems actually to share information and make it readily accessible. That means providing a common linked identifier for the agencies to use in matching their data sets. So, yes, in all probability Baby P might have been protected, as well as the many others we have seen since Victoria Climbié.

--- Later in debate ---

[Lord Ribeiro]

My Lords, the amendment tabled by the noble Lord, Lord Warner, seeks to extend the use of the NHS number to services that benefit children, particularly those in social care, and which protect them from abuse. The Minister addressed the amendments in some detail and I was pleased to hear the assurances he gave, which I hope will have an effect. But I also note that the noble Lord, Lord Warner, was pretty impartial in his criticism of both Front Benches, and the suggestion that they come together and provide some movement is something that perhaps could happen when we have the report from the Department for Education at the end of the year. I will leave it to the noble Lord to decide. He has already intimated that he will not be pressing his amendment.

[Lord Warner]

I just want to register something with the Minister. I am grateful for what he had to say, but the whole issue of trying to make progress in this area is littered with attempts at reviewing the information that is available on making the world a better place. As the noble Lord opposite has reminded us, we have to go back 40 years for the first really serious child abuse scandal, involving Maria Colwell, which came to light. Since then it has been 40 years of agencies, in case after bad case, failing to share information that would have saved a child’s life. As I said, 12 years ago the noble Lord, Lord Laming, said his piece on one of those cases and made it very clear that a common database was required, with a linked identifier.

It is no good the Department for Education crawling all over the ground again and finding 27 reasons why we should not do anything. We need some action. There is plenty of evidence about why a common identifier would make things a lot safer for children. They are pretty much the same arguments that you would use in relation to adults; they are not fundamentally different. The Government and the Opposition Front Bench need to understand what is going on around the country—it is happening in Birmingham—where the agencies are coming together in multiagency safeguarding hubs. But when they come together, they find that their data systems cannot talk to each other, even if they are in the same room, because there is no easy linkage between the different databases.

If we wish to make kids safe, we have to progress this issue quickly. Frankly, I am not wildly reassured by a DfE review by the end of this year in an area that is littered with information about the need to make progress. It is not just me; I think that many of those hard-working professionals I have talked about cannot see why the government bureaucracy—whoever is in government—cannot make some progress in this area. Having got that off my chest, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Francis Report: Update and Response

Lord Warner Excerpts

Wednesday 11th February 2015 Lords Chamber

[Earl Howe]

I am sure that my noble friend’s comments will strike a chord in many places. I am aware that we have had debates of this kind quite often in the past. Of course, it is open to any NHS organisation or hospital to appoint a matron if it so wishes—and indeed some do that. The key point here is that there should be appropriate leadership in nursing at a senior level in the organisation. The successful organisations of which I am aware have had a senior nurse on the board and someone who has taken direct responsibility for nursing standards throughout that organisation.

[Lord Warner (Lab)]

My Lords, I am not necessarily of the Hattie Jacques school of nurse management, but will the Minister say a little more about these leadership issues? Those of us who have actually been involved as either a chair or a chief officer of a public body know how difficult it is to keep these agendas alive after they have lost their fashionability in the public eye. What are the Government going to do to ensure that the regulators and the boards keep coming back to this issue and keep bringing to the attention of the front-line staff their enthusiasm—and I use that word advisedly—for learning about failings that are going on in their organisation?

[Earl Howe]

The answer to that must lie chiefly with the way in which the CQC now operates. One of the domains that it pays attention to in its inspections is the well led domain. Is this an organisation that has leaders in it who are aware of what is going on in the hospital, have a clear vision and a strategy for that hospital and are in touch with patients’ views and experiences, not least through complaints? These, and a whole range of other factors, are what the CQC looks at when assessing the quality of the leadership. The noble Lord is, of course, quite right that this must be and remain a key ingredient of a successful NHS culture and good-quality care for patients. We now have a system in which poor leadership will be exposed quite rapidly.

Health and Social Care (Safety and Quality) Bill

Lord Warner Excerpts

Friday 6th February 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord McColl. I reassure him that before my NHS hernia operation two or three years ago I was very appropriately marked up in indelible ink as to where it should take place. To my pleasure, I found that it had taken place at that same spot—there may be others who thought that perhaps the surgeon should have moved somewhere further north and east.

I had originally told the noble Lord, Lord Ribeiro, that although I wanted to raise issues relating to children in the Bill, I was unlikely to want to table amendments. However, that was before I had read the Bill as carefully as I should have done and certainly before I had considered the amount of briefing that we have had, particularly about Clause 1, which I did not read until yesterday evening. These concerns have been enhanced by the points made by my noble friends Lord Turnberg and Lady Pitkeathley.

First, I will say a few words about children. In doing so, I declare an interest as the Secretary of State for Education’s children’s commissioner in Birmingham City Council. I should make it clear that my remarks are not based on that experience, although it has brought home to me the growing volume of children in need and at risk that many local authorities, health bodies, police and schools are having to deal with. It has brought home the importance of the flow of information between those agencies if children are to be protected.

I very much welcome the provisions in the Bill on consistent identifiers across health and adult social care. However, if this is being done for adults, why are children left out of the Bill? It is yet another example of how often, under all Governments, children get lost sight of in terms of the needs that must be addressed. They are less able to answer back and pressurise for change in some of these areas. It is of great concern, given what we know about children in need and at risk, that we have again in this piece of legislation forgotten about or failed to address the needs of a common identifier in the area of children’s services. I recognise that some progress has been made with the child protection information-sharing project which, if properly done and developed, would enable healthcare staff to see whether a child attending unscheduled care services had a child protection plan or looked-after children status. That is progress: it is better than where we were. Yet it is a long way from what is promised in the Bill—a single identifier for adults. It is a long way from that for children.

It is worth reminding the House of a sterling report by the noble Lord, Lord Laming, in 2003, after the Victoria Climbié disaster. In recommendation 18, he said there should be a proper, common identifier database of all children under 16 in the country, which agencies could know about and have access to when they came across children. This Government decided to abort the work taking place on that. That was a mistake. We are now, yet again, failing to deal with the issue of a common identifier for children that enables all agencies—not just health and care ones—who have a duty to protect children at risk and in need to do so. We need to think a lot more about why, if we are to do this for adults, we will not do it for children.

A number of bodies working in this area have already said to parts of the government machine, “In this age of digital technology, why do we not even consider producing a web-based database for children that could use a unique identifier to help the agencies do a better job?”. It is no good wringing our hands over child protection and exhorting agencies to work better together in this area if we then neglect to provide them with the tools and ability to access those data that would protect children. I regard that as a missed opportunity in this particular legislation.

I turn briefly to Clause 1, with particular reference to the letter and briefing mentioned by other noble Lords that came from the Health Foundation, drawing very much on the work of the Berwick advisory group. I recognise that the intentions of the architects of the Bill are entirely well meant. However, the duty in Clause 1 would, I suggest, go against all the evidence of what is required in the delivery of safe health and care services. I do not want to quote at length from that letter, which other noble Lords have mentioned. But I will put two quotes from it on the record because they summarise the problems with Clause 1.

The first quote is from the report of the Berwick advisory group, which concluded:

“While ‘Zero Harm’ is a bold and worthy aspiration, the scientifically correct goal is ‘continual reduction’. All in the NHS should understand that safety is a continually emerging property, and that the battle for safety is never ‘won’; rather, it is always in progress”.

The second quote is from a recommendation:

“To introduce this new law would not be supportive of the Berwick Advisory Group’s key recommendation for ‘the NHS … to become more than ever, before a system devoted to continual learning and improvement of patient care, top to bottom and end to end’”.

If we are not going to listen to people who put a lot of effort into study in this area and take account of what they say in framing legislation, that is a poor show. If we do not think that it is worth giving the time to scrutinise the legislation and pay attention to views being offered in a very professional and politically independent way, that is an even poorer show. We cannot rush through legislation when we choose not to give enough time to draw on that expertise and use that information.

It is a shame that we are trying to rush on with the Bill in this way. We need to stand still and think about how we can give proper time to a well intentioned piece of legislation. If not, if people want to rush on with this, they should consider taking out of the Bill the provisions that are controversial and not generally agreed.

There is a lot of support for a common identifier, if the Government want to put that on the statute book. I say “the Government” because although the Bill is a Private Member’s Bill, it is being given every encouragement by the Government. Like my noble friends, this is the first time that I have ever been approached by a civil servant to encourage the progress of a Private Member’s Bill, almost implying that I am somehow failing in my duty if I do anything to impede it. That is not the way to proceed. The Minister needs to give us some assurances about what is the Government’s position on and attitude to the Bill and whether the Government want to provide some of their time to give us proper scrutiny of the legislation in Committee.

I hope that the noble Lord, Lord Ribeiro, will not take that as a personal attack on him; it is not. He is honourably trying to progress the Bill for good reasons, but we must ask some questions about the Government’s position and whether they will provide the time to enable us to have proper scrutiny of all parts of the Bill.

--- Later in debate ---

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

My Lords, I very much welcome the debate on this important Bill. I thank my honourable friend in another place, Jeremy Lefroy, and my noble friend Lord Ribeiro for their stewardship of this Bill to improve the safety of patients and protection of the public. A productive debate was had in the House of Commons, with support for the Bill from all sides. Parliamentary time is limited. Speaking for the Government, I hope that we can get this Bill on to the statute book as soon as possible.

We must never forget the terrible events that occurred at the former Mid Staffordshire NHS Foundation Trust, which demonstrated what can happen when providers put other priorities before safety. As highlighted by the Francis inquiry report, we have much to improve in patient safety and to avoid a repetition of those tragic events. The Government have thrown their full support behind this Bill in our continuing efforts to improve patient safety and the quality of care. I turn now to the Bill and each of its clauses. I will address most of the concerns from noble Lords; I will write on the others that I am not able to cover.

Safety of care must be the focus of healthcare providers at all times. Regulation by the CQC plays a vital role in assuring that providers are focused on safety and are taking steps to reduce avoidable harm. Section 20 of the Health and Social Care Act 2008 currently provides the Secretary of State with a power to include safety in registration requirements with the CQC, but this is no more than a discretion. It would equally be in the gift of the Secretary of State to put a regulatory system in place for providers of health and adult social care that did not cover safety. The first clause in the Bill will remove that discretion and instead place a duty on the Secretary of State to make CQC registration requirements include safety of care. This is consistent with the Government’s continuing effort to reduce avoidable harms and to ensure services are provided in a safe way.

Parliament has recently passed new requirements for registration with the CQC, which include new fundamental standards. Regulation 12 of the fundamental standards states that,

“care and treatment must be provided in a safe way”,

and it sets out a number of steps that providers have to take in order to reduce the risk of unsafe care. Where a provider fails to meet this registration requirement in a way that results in avoidable harm to a service user, the CQC will be able to bring a prosecution against that provider. It is the Government’s sincere intention that the CQC will make use of this important power to hold providers to account for the most serious failings in care.

It is the Government’s view that this new fundamental standard, which comes into force in April, already meets the requirement of the Bill that we are considering. It is important to emphasise that the Government do not intend to amend the registration requirements in response to Clause 1.

I am aware that concern has been expressed regarding the use of the phrase “avoidable harm” in this clause. The Health Foundation, for example, as we have heard, has argued that Clause 1 will draw time away from understanding risk and preventing harm. I do not share that view. Part of being able to assess the risks of receiving care and treatment in order to prevent harm in future involves examining past performance and understanding the causes of past incidences of harm. It is vital that an organisation can learn from its errors in order to improve services to patients and service users.

Furthermore, I say to my noble friend Lord Willis and to other noble Lords that whatever the perceptions, “avoidable harm” equates not to “zero harm” but to harm that can reasonably be avoided. For example, where harm is an inherent part or risk of a regulated activity and it is in the best interests of the patient to receive that regulated activity, this clause would not seek to prevent that activity. However, in providing the service in question, the provider should still take reasonable steps to prevent any harm that is avoidable, such as harm from the use of unclean instruments. I say to the noble Lord, Lord Warner, that this is exactly about providers seeking a continual reduction in harm, given the intrinsic risk that exists in many treatments.

I hope that noble Lords will support the objective enshrined in this clause of causing no avoidable harm. This clause places a duty on the Secretary of State to impose requirements that he,

“considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided”.

The duty on providers is not imposed by this clause: rather, it will be imposed by the regulations that are issued under this clause. I perhaps need to emphasise that to the noble Lords, Lord Turnberg and Lord Hunt. The regulatory levers are already in operation through the CQC registration requirements on the safety of care. The duty set out in the Bill will not change those regulatory requirements. Indeed, from April a regulated provider may be prosecuted by the CQC if the way in which it provides care or treatment causes avoidable harm to a patient or service user, so this is already the case.

The noble Lord, Lord Young, referred to following best practice. The CQC can take relevant best practice into account when assessing a provider’s performance against registration requirements and in reaching a judgment about rating services. Indeed, the CQC’s guidance to registered providers of health and adult social care about complying with the regulations will point to such best practice.

Turning to Clauses 2, 3 and 4, the sharing of relevant information in a timely and accurate manner facilitates the provision of integrated care and treatment, tailored to an individual’s needs and wishes. This information sharing is essential to the delivery of safe and high-quality care. Dame Fiona Caldicott, in her review of information governance, found a culture of anxiety that prevents information sharing, and the current legislative landscape was found to be a contributory factor. The review recommended that the duty to share information should be as important as the duty to protect patient confidentiality. The information-sharing provisions in the Bill seek to create parity between the need to protect information and the need to share it as part of care.

The second clause in the Bill will place a duty on providers and commissioners of publicly funded health and adult social care to record and use a consistent identifier in health and care records and correspondence. This duty will apply only in the best interests of the individual patient and in the direct provision of their care. A long-standing priority of the Department of Health has been to establish the universal use of the NHS number as a consistent identifier when individuals move between care providers. This will support the integration of medical records, reduce errors and facilitate the co-ordination of care. It is our intention that the NHS number will be specified in regulations as this consistent identifier. Others in the debate referred to the national insurance number, but the NHS number is already a well established identifier and the proportion of people in England without an NHS number is very small. Of course, the number of those without a national insurance number is rather greater.

The noble Lord, Lord Turnberg, asked whether this should not apply also to the private sector. The duty to use the NHS number applies only to providers and commissioners of publicly funded health and adult social care. This means that it will apply to NHS commissioners, local authority commissioners and providers of health or adult social care that are public bodies, or are contracted by an NHS or local authority commissioner. Private sector providers would be subject to the duty only in respect of care they provide that is made pursuant to contracts with NHS commissioners.

The third clause in the Bill would place a duty on providers and commissioners to share information. Where it is in the patient’s best interests, providers and commissioners within scope will be required to share relevant information with staff within their organisation, and with other providers and commissioners directly involved in that person’s care. As my noble friend Lord Ribeiro explained, this will reduce the burden of moving between care settings and having to tell your story over and over again. This is especially true in the case of older people, and people with dementia and other complex conditions. It is the intention of these clauses that using a consistent identifier, and having a duty to share information, will help to ensure that health and care professionals will have the information they need to deliver high-quality care. I must stress that the duties within the Bill are strictly limited to the sharing of information for the purposes of direct care and only in the individual’s best interests.

Turning to Clause 4, these duties will not extend to providers and commissioners of children’s social care or the providers and commissioners of children’s healthcare, for which the Department for Education is responsible. I know that concern has been expressed about this exclusion, not least by the noble Lord, Lord Warner. I understand those concerns. Requiring children’s education and social care settings to use a single identifier would extend the scope beyond that of the Health and Social Care Act 2012, which this Bill seeks to amend. As the noble Lord knows, the statutory framework for children’s social care is different, with the DfE the lead department and Ofsted the regulator. Responsibilities have already been placed on professionals and agencies working with children to share information, particularly where there are safeguarding concerns.

There may be benefits in extending the use of a common identifier from the NHS to wider children’s services but, as yet, these benefits have not been assessed against the costs and burdens on local authority children’s services. Implementing a duty to use the NHS number could create significant burdens on schools, which would have to collect and record NHS numbers from all pupils when they enrol in the school. That is why the Department for Education has committed to undertaking an evidence-gathering exercise to fully understand what the impact of using a consistent identifier would be for these types of provision. This exercise is expected to report by the end of the year.

I now come to the fifth clause and the schedule, which will bring in a consistent overarching objective for both the Professional Standards Authority and the regulators of certain health and care professionals, including dentists, nurses, midwives and opticians. This will ensure that public protection is at the heart of what the Professional Standards Authority and these professional regulators do. This overarching objective of public protection will involve the pursuit of objectives in relation to protecting, promoting and maintaining the health, safety and well-being of the public, and promoting and maintaining public confidence in the professions covered by the Bill and proper professional standards and conduct for members of those professions. This measure will also ensure that regulatory body panels dealing with the disposal of fitness to practise cases—that is, making a final decision or considering appropriate sanctions—will have regard to that overarching objective.

The noble Baroness, Lady Pitkeathley, and my noble friend Lord Willis expressed disappointment at the lack of a government Bill on professional regulation, and I think that that disappointment is widely shared. We of course welcome the law commissions’ 2014 report but, in the absence of a government Bill to implement its recommendations in this Parliament, we have taken the opportunity to consider the report and to work closely with the regulatory bodies and the PSA to build on the important work that the law commissions have done. We accept the vast majority of the recommendations and the Government remain committed to legislate on this important issue at the earliest opportunity when parliamentary time allows. I am therefore particularly pleased to throw the Government’s full support behind this Bill, which seeks to implement in part and for some of the regulators two of the law commissions’ recommendations.

The noble Baroness, Lady Pitkeathley, asked how the PSA can have an objective to promote confidence in the professions when one of its functions is to uncover poor performance. Let me explain this a little further. Under the new overarching objective, the PSA and the regulators will have to act in the interests of public protection. The reference to maintaining public confidence is bounded by this overarching objective of public protection and does not mean that the PSA or the regulators should be actively promoting the reputation of the professions, as this does not necessarily serve public protection. Rather, it is concerned with conduct, performance or behaviour of individual members of a registered profession in so far as this threatens to undermine confidence in the profession as a whole, to the extent that people may be deterred from seeking the treatment or care that they need.

It is clear to me that a robust and transparent way to challenge regulators’ decisions, while it may call into question decisions in individual cases, can only contribute to maintaining wider public confidence in the professions as a whole. In some instances, that may mean that poor performance is uncovered. Sometimes it is necessary to do this to increase public confidence in the professions—and of course that is only right. This is not about requiring the PSA to maintain public confidence in individual professionals or even in the regulators, but confidence in the professions. I hope that that is helpful to the noble Baroness.

The overarching objective does not create any additional functions for the PSA. The PSA is an independent body which oversees the work of the nine regulators of health and social care professionals. Its functions remain unchanged and include auditing investigation stage decisions of the regulators’ fitness to practise procedures, referring final fitness to practise disposals to the relevant High Court where necessary and reporting on the performance of the regulators.

Under this Bill, while discharging particular functions in relation to the regulators—that is, promoting best practice in professional regulation, formulating principles relating to good self-regulation and encouraging co-operation between the regulators, and between them and other bodies that exercise corresponding functions—the PSA must have in mind the overarching objective of public protection. This may involve the PSA, in its role as overseer of the regulators, taking such appropriate actions as may be available to them in the circumstance that regulators have not acted in accordance with their own overarching objectives.

I know that the PSA is particularly concerned with consistency in the legislation governing regulation of health professionals. Ensuring consistency of purpose in professional regulation and how it is overseen through the introduction of a consistent overarching objective was a key recommendation made by the law commissions in their review of regulation of health professionals published last year.

I also know that the department and the PSA share the common principle that any legislative change must have public protection at its core. I would just say that the definition of “public” in the Bill encompasses patients, users of healthcare and social care, and,

“other members of the public”,

as defined in the PSA’s existing objective. I say to the noble Baroness, Lady Pitkeathley, that my officials are happy to continue the discussions which I know have been conducted recently in order to give any further clarification that might be helpful. As the Government set out in our response last week, we support this principle and we hope to see public protection placed clearly and firmly at the heart of professional regulation through this Bill and through parallel secondary legislation for the GMC, which will shortly come before this House.

I should like to clarify the effect of Clause 5 and the schedule for my noble friend Lord Willis. The Bill introduces a duty on regulators’ panels and committees. It does not affect the regulators’ fitness-to-practise processes. My noble friend mentioned the NMC’s fitness-to-practise caseload. I reassure him that the department has recently taken forward secondary legislation in relation to the NMC to help it to carry out its fitness-to-practise and registration functions more effectively. I am happy to write to my noble friend if he would like further and better particulars.

At the risk of overstaying my welcome at the Dispatch Box, I hope that I may be allowed to cover briefly a point which arose as the Bill passed through the House of Commons and which I know is of concern. The BMA has raised concerns about the requirement for fitness-to-practise panels and committees to consider “public confidence” when making final decisions about the application of the term “well-being”. I understand that the BMA recently had productive discussions with my honourable friend the Parliamentary Under-Secretary of State for Health, Dr Dan Poulter, and has been much reassured by the intention for the overarching objective to be set out in secondary legislation for the GMC and in this Bill for other regulators. Indeed, the BMA wrote to my honourable friend yesterday to confirm this and to seek further assurances about the form that guidance might take and how it might clarify how regulators’ panels and committees should apply the overarching objective in practice, particularly the interpretation of the terms “public confidence” and “well-being”. These concerns relate particularly to issues raised by a recent GMC consultation on sanctions guidance.

Noble Lords will understand that the GMC’s handling of fitness-to-practise cases is not within the scope of this Bill. However, these issues are likely to be relevant to the other regulators who will be subject to the new, overarching objective. Of course, I cannot say on behalf of the regulators how they should give guidance on their internal processes, but I will ensure that my officials raise these issues with the professional regulators when considering the implementation of the objectives, as part of both this Bill and the GMC legislation, and can confirm that the GMC will seek views on implementing its secondary legislation through a public consultation.

I think that that is enough from me. I will of course write to noble Lords, as I have promised, on other matters.

[Lord Warner]

Will the Minister clarify something that he said in relation to what I said in my speech? He said that the Bill cannot cover children in relation to health and social care. I have just read the Long Title and the Title. I can see nothing there that specifies particularly adults or excludes children. I would welcome it if he could write to me to explain what the legal judgment is as to why an amendment that relates to health and social services only—not police, not education—should not be included in the Bill in respect of children.

[Earl Howe]

I would be happy to do so.

National Health Service

Lord Warner Excerpts

Thursday 8th January 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, I, too, congratulate my noble friend on securing this debate at such an appropriate time. I share his analysis, particularly around what I see as the decline in the effectiveness of general practice. However, I want to focus on just two strategic issues: the Five Year Forward View and the funding issues; and the problem of social care and the role of local government.

First, on the forward view, everybody should be extremely grateful to Simon Stevens for the leadership that he has shown in bringing forward this document and securing such a large measure of agreement for many of the ideas in it. I very much support his approach of pointing people in a direction of travel but without what I would regard as an overcentralised, detailed game plan or a further reorganisation. The emphasis on local solutions is a big step forward but I want to draw attention to the key funding assumptions underpinning the forward view vision.

The document acknowledges what many of us have been saying for some time: that the NHS faces a £30 billion funding gap by the end of the decade. It says clearly that this can be closed only by a combination of reducing demand, increasing NHS efficiency and more generous “staged funding increases”, in its words. That is absolutely right, but whether you close that gap depends a great deal on what combination of those assumptions actually takes place. You need everything to work in order to close the funding gap entirely.

Underpinning all that is a set of assumptions about the efficiency gains that we have talked a bit about today. Under this vision, the NHS is required to achieve an annual efficiency gain of at least 2%, possibly even 3%, for five years on the trot. Its long-run performance is 0.8%, rising recently to about 1.5%, with a big chunk of that 1.5% being achieved by pay restraint—not a card that you can keep on playing year after year. Some would say, “The assumptions on efficiency in this document are heroic, Minister”. As someone who has been in this field a long time, I have to say that I cannot see the NHS sustaining that level of efficiency gain over a five-year period.

My second point concerns one of the provisos that the Five Year Forward View assumes will actually take place—that is, and this is the document’s term, “sustaining social care”. The reality is that the huge reduction in adult social care funding over the past five years has been a disaster for the NHS. The hospital “bed-blocking” that we so glibly talk about today is in large part a direct result of the draconian cuts in social care funding over that period, which, as the Dilnot commission’s report pointed out in 2011, was in any case underfunded in relation to demography even before the 2010 election. Here I should declare my interest as a member of that committee.

The continuing tightening of the eligibility criteria for social care has produced an extremely efficient pipeline of frail, elderly people for A&E departments, many of whom then seamlessly become acute hospital bed-blockers. The Better Care Fund is a belated attempt to stop the situation getting worse, but it does little to repair the damage already done and has itself been criticised for its highly bureaucratic approach by one of the Government’s own Ministers, Mr Francis Maude. I have real concerns that unless something is done to tackle the continuing shrinking of the resources for adult social care, the NHS can only get into a worse set of troubles, and many of its patients will receive a poorer service. Acute hospital medical wards are about the last place you want to leave frail elderly people who are confused.

I close by drawing attention to the issue of local government. Successive Governments have neglected local government; too often they have seen it as the problem rather than part of the solution. I hope that my party will pay attention to this problem. Attention needs to be given to the excellent report for the Labour Party by Sir John Oldham’s independent committee on treating the whole person and integrating care, and not seeing medicine as a collection of professionals attending to various body parts of the individual. Unless we can actually get real about funding and about repairing the damage done to adult social care funding and services, we are not going to make much progress in sustaining our NHS.

Health: Rheumatoid Arthritis

Lord Warner Excerpts

Monday 16th June 2014 Lords Chamber

[Earl Howe]

My Lords, we of course recognise the very hard work that GPs do. Despite a decrease in headcount, there has in fact been a 1.2% increase in full-time GPs since 2012 and the number of practice nurses and practice staff has also grown. However, we also recognise that the workforce needs to grow to meet rising demand. That is why our mandate to Health Education England requires it to ensure that 50% of trainee doctors enter GP training programmes by 2016. Generally, we will work with NHS England to consider how to improve recruitment, retention and return to practice in primary and community care.

[Lord Warner (Lab)]

My Lords, is not the current model of general practice in this country bust? Is it not time that the Government started to think about setting out the requirements that all GPs who offer services to NHS patients ought to make available? If that means them working in bigger practices then so be it, because that is in the interest of patients.

[Earl Howe]

My Lords, the noble Lord is right that there is scope to examine different ways of working in primary care. I would have to think about whether I would go quite as far as he has, but the point of principle he makes is a very sound one. That is why the Prime Minister’s Challenge Fund is encouraging GPs to think out of the box in the way they make themselves accessible to patients.

National Health Service: Nursing Staff

Lord Warner Excerpts

Monday 16th June 2014 Lords Chamber

[Earl Howe]

My Lords, the work going on on seven-day working certainly includes the nursing workforce. However, I repeat that it is not for the Government to mandate what each and every hospital should be doing in terms of deploying their senior nursing staff. It is a judgment for the board of that hospital.

[Lord Warner (Lab)]

My Lords, the Minister is very proud of the increase in the number of nurses on the front line. Can he confirm that all these nurses are actually in hospitals? What is the comparable figure for nurses working in the community? I believe the Government’s policy is supposed to be to have more care in the community.

[Earl Howe]

The noble Lord is right. The Government recognise the very important contribution that community nurses make in providing high-quality care to people within community settings. I think we have seen a reaction, as I have said, to the Francis report. Lots of hospitals say that they are going to employ more nurses on the wards. We now need to ensure that staffing levels are safe across the NHS and the community, and the Chief Nursing Officer has set up a working group which is looking specifically at what we can do to increase the number of community nurses, which we certainly need to do.

NHS: Seven-day Working

Lord Warner Excerpts

Thursday 6th February 2014 Lords Chamber

[Lord Warner (Lab)]

My Lords, I congratulate the noble Lord, Lord Ribeiro, on securing this platform to enable us to discuss this very important issue. I declare my interest as an adviser to Synlab, a German pathology company.

There is not much to disagree about in principle on the idea of seven-day working in healthcare with such a large number of emergency admissions to hospital. The evidence is pretty clear that we need the most senior doctors working later in the day and at weekends in those places dealing with emergency conditions. The noble Lord, Lord Ribeiro, told us the scale of those admissions each year. The interesting thing is that the Academy of Medical Royal Colleges has made clear that patients with these conditions need on-site consultant inspection at least once every 24 hours. Those admitted on Friday may not be seen by a consultant until Monday. That is clearly a dangerous practice. I would be very interested to know whether the Minister accepts that in hospitals which have A&E departments they would expect there to be seven-days-a-week consultant cover to enable a person to be seen by an on-site consultant at least once every 24 hours. Is that now government policy or just an aspiration set by the Academy of Medical Royal Colleges?

We know all about the difficult practical issues of implementing this kind of policy. We have also heard from the noble Lord, Lord Ribeiro, the different financial estimates for doing this. It is very interesting that the BMA’s estimate of £32 billion for seven-day working overall is roughly the same size as NHS England’s estimate of a £30 billion funding gap by the end of this decade on present plans for the NHS. There is some symmetry and agreement around about £30 billion; it is just a question of whether it applies to the gap or the funding increase you would need for this kind of policy.

I do not disagree with anything the noble Lord, Lord Ribeiro, said, but I want to focus on the point he made about money. Before I do that, I pay tribute to the work he has been doing in his capacity as chairman of the Independent Reconfiguration Panel. The trouble with that work is that he has to wait for what is served up to him. He is not allowed to take the initiative. We know many of the failing health economies. The NHS Trust Development Authority was set up to deal with many of these bodies. We have a situation where we are thinking of dreaming up a highly desirable change in patients’ access to consultant cover on urgent admission to hospital when we know full well that we have a very large number of almost insolvent trusts carrying out A&E admissions day in, day out. They are propped up by handouts from other bits of the NHS. This is the reality that the NHS faces daily. I suggest that we can implement this policy only if we grasp the nettle of reconfiguring services rapidly and consolidate more of these specialist services on a single site.