Pension Schemes Bill [HL]

Debate between Lord Warner and Earl Howe

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 4th March 2020 Grand Committee

[Lord Warner]

I just want to amplify the point made by the noble Baroness, Lady Altmann. Those of us who have been around in government for some years know that the announcement of review reports in Budgets do not necessarily mean that anything in those reviews will be rapidly implemented. My suspicion would be that any such reviews would have a longish period of consultation and would not appear in the next finance Bill—that is a likely outcome. Building on what the noble Baroness said, I need to go back to my clients—if I may put it that way—who will want to know what the position is. If I prove to be right over what happens on 11 March, would the Government be willing to consider something along the lines of buying two to three years for the NHS doctors? Will they help me get the wording right, so that it does not fall into the elephant traps that the Minister has set out? When we get to Report, we cannot just leave this; we have to come back to this issue with some credible solution. I would be delighted if the announcement on 11 March delivered a quick response, but if we do not deliver a response that covers the next two financial years, we will put the NHS in great peril.

[Earl Howe]

My Lords, my answer to my noble friend and the noble Lord, Lord Warner, has to be exactly the same as that which I have already given. I can do no other than urge all noble Lords to wait for the Budget announcement. I cannot comment on what ideas the Chancellor has in front of him on this issue. Those ideas may or may not include those that have been articulated by my noble friend and the noble Lord—I do not know. I suggest that we get past next week and then take stock. No doubt noble Lords will consider how best to approach this on Report, if they feel that to be necessary.

Health and Social Care (Safety and Quality) Bill

Debate between Lord Warner and Earl Howe

Friday 13th March 2015 Lords Chamber

[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.

Francis Report: Update and Response

Debate between Lord Warner and Earl Howe

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

Debate between Lord Warner and Earl Howe

Friday 6th February 2015 Lords Chamber

[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: Nursing Staff

Debate between Lord Warner and Earl Howe

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.

Health: Rheumatoid Arthritis

Debate between Lord Warner and Earl Howe

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.

NHS Property Services Ltd

Debate between Lord Warner and Earl Howe

Thursday 30th January 2014 Lords Chamber

[Lord Warner]

To ask Her Majesty’s Government what assessment they have made of the performance of NHS Property Services Ltd in disposing of surplus properties and operating within their working capital.

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

My Lords, NHS Property Services is on target to dispose of 97 properties by 31 March 2014 and a further 100 properties by 31 March 2015. The department has provided the company with a £350 million flexible working capital loan facility, of which £271 million had been drawn down as at 27 January 2014. This working capital support is in line with the department’s expectations for a start-up company of this size and complexity.

[Lord Warner (Lab)]

I thank the Minister for his Answer, but what action has been taken to improve the performance of this company in controlling its costs? What action has been taken to reduce its running costs, given the large number of staff that it inherited, and what action has been taken to improve the professional competence of those staff and to collect bad debts, which have been a rising problem for this organisation?

[Earl Howe]

My Lords, on administration costs, the company is already reviewing the way in which its strategic asset management and facilities management functions are structured. It is probably inevitable that the consolidation of 161 PCT and strategic health authority estates into one will throw up duplication, overlap and operational policies that conflict. These all need to be rationalised and a commercial ethos introduced. It is vital that the skills are imported into the organisation to match that challenge.

G8 Summit on Dementia

Debate between Lord Warner and Earl Howe

Tuesday 17th December 2013 Lords Chamber

[Earl Howe]

The noble Lord asked a number of questions. The Government have stated an ambition to double research funding in dementia. That will depend on the quality of the proposals that come forward and on the rate of scientific progress. We very much hope that arising out of the summit, momentum will be gained, not only in this country but internationally. As regards the noble Lord’s second question, we recognise how important this is for future dementia research and I can tell him that the Government, through the Ministry of Justice, are negotiating with member states in Europe and are aware of the impact that the proposal would have on research. It is likely to be some months before there is an agreed approach between member states and the Commission, and the Parliament is unlikely to vote on the proposal before 2015.

[Lord Warner (Lab)]

The Minister will no doubt be aware that there is growing interest in this country in assessing whether drugs used for conditions other than dementia might be useful in tackling dementia. Will the Minister say what efforts the Government are going to put into this area as a result of the G8 summit?

[Earl Howe]

My Lords, we certainly hope that the private and charitable sectors will respond to the call, but at the same time the Government are not dictating to the research funding bodies which projects they should support. The Haldane principle is very important. The noble Lord makes an extremely powerful point, and we would hope that the pharmaceutical companies will wish to step up to the plate.

NHS: Clinical Commissioning Groups’ Funding of Treatment

Debate between Lord Warner and Earl Howe

Tuesday 12th November 2013 Lords Chamber

[Earl Howe]

My Lords, the list of conditions for which treatment is directly commissioned by NHS England is reviewed regularly. On the particular question my noble friend asked about transparency, as part of Innovation Health and Wealth the innovation scorecard is now showing up the variations in prescribing rates between different clinical commissioning groups. We expect this information to be extremely informative as regards the decisions taken by commissioners.

[Lord Warner (Lab)]

My Lords, has the Minister seen the recent evidence given by the Nuffield Trust to the Health Select Committee showing that a growing, and increasingly large, number of NHS hospitals are financially unsustainable? In the light of his earlier answer to my noble friend, what arrangements do the Government have for ensuring that CCGs or local health economies are not in breach of the NHS constitution by failing to deliver the mandate that the Secretary of State has given NHS England?

[Earl Howe]

My Lords, it is for NHS England to oversee the commissioning practices and policies of CCGs. If any deficiencies are brought to the attention of NHS England, they will be followed up. On the specific point made by the noble Lord about the financial sustainability of provider trusts, we would expect commissioners and trusts to engage in regular discussions about how to ameliorate that position, not only for the sake of the NHS but also to ensure that patients are treated in the right setting. As we all know, that imperative needs to be pursued very vigorously over the coming months.

NHS: Urgent and Emergency Care Review

Debate between Lord Warner and Earl Howe

Tuesday 12th November 2013 Lords Chamber

[Earl Howe]

My Lords, I do not have that evidence in front of me but, where there is a case for change, the local NHS has to agree a number of measures to be effective before any changes to services take place. That will include ensuring additional capacity at neighbouring hospitals, where that is appropriate, or in the community, where that is appropriate. If CCGs can properly satisfy themselves that a case for change can provide safe, effective and sustainable services, that is a legitimate justification for moving forward with local proposals.

[Lord Warner (Lab)]

My Lords, what light can the Minister throw on the recent report in the Financial Times that the Prime Minister has put the private hospital sector on standby for capacity over this winter? Is that true and is that part of the Government’s preparation for winter pressures? What impact do the Government assess has been made on the capacity of A&E departments by the 12% cut in the tariff paid by NHS England?

[Earl Howe]

I am aware that the tariff has been the subject of active discussion on the part of NHS England and Monitor; in particular, the 70% of the emergency care tariff that has been withheld under the arrangements put in place a number of years ago, and how that money should be used.

As regards the independent sector, the noble Lord is correct: discussions have been taking place with representatives of the independent sector to see whether and to what extent there is capacity to absorb elective care patients over the winter when needed. I see everything to be gained by that. It was something that the previous Government did and we think it is right that the independent sector, where appropriate, should play its part in relieving the burden from the NHS.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 21st October 2013 Lords Chamber

[Earl Howe]

My Lords, in moving Amendment 142, I shall speak to the other government amendments in this group, Amendments 143, 145, 146, 148, 149 and 150. This group relates to the ability of the Care Quality Commission to operate free from day-to-day intervention by Ministers. The amendments that I have tabled will place the CQC on a new footing of greater operational autonomy. They also clarify some of the arrangements for the new system of ratings to be operated by the CQC. I will outline the principle guiding the Government in tabling these amendments.

Last year we passed legislation that placed a duty on the Secretary of State to promote autonomy in the way that other bodies exercise their functions in relation to the health service. The changes that we are proposing build on this. They remove nine separate powers that the Secretary of State currently has to intervene in the day-to-day operation of the CQC. Additionally, they place the new chief inspector posts on a statutory footing, ensuring their longevity, with a specific duty to operate in a way that ensures the independence of the CQC’s judgments.

We are also introducing a new system of regular assessments of registered providers, which has no requirement for ministerial approval of the methodology. Each of these changes gives the CQC greater scope to get on with the day job without interference from Ministers. Why does this matter? The CQC has the key role in providing assurance of the quality of services provided to patients and service users. It needs to be able to inspect what it wants when it wants and to be free to report its findings as it wants. The proposed amendments and new clauses that I have tabled will see the Government relinquish a range of powers that intervene in the operational decisions of the CQC.

In addition to the amendments relating to the department’s powers to intervene in the work of the CQC and to place the chief inspectors on a statutory footing, I am also tabling a number of amendments relating to the performance assessment system operated by the CQC. The amendments clarify that the CQC will not undertake routine performance assessments of local authority commissioning but, rather, will be able to carry out special reviews of local authority commissioning under Section 48 of the Health and Social Care Act 2008. This will bring the position for commissioning by local authorities in line with that of NHS commissioning as put in place by the Health and Social Care Act 2012.

I will briefly set out two areas where the CQC’s freedom is not being enhanced and explain why. The changes that we are making will give the CQC greater freedom in its day-to-day work, as I have explained. When it comes to the CQC’s strategic role and activities, outside of its routine functions, it is appropriate that the Government maintain oversight of the commission.

The first area to which this applies is investigations of commissioning. The amendments we are making to Section 48 of the Health and Social Care Act 2008 make it clear that the CQC has the power to carry out a special review or investigation of commissioning—both of health commissioning by NHS England and NHS Clinical Commissioning Groups and of local authorities’ commissioning of adult social services. Such reviews will only be possible with the approval of the Secretary of State for Health, in the case of NHS commissioning, and the Secretaries of State for Health and Communities and Local Government in the case of local authority commissioning.

Secondly, I reassure noble Lords that we are maintaining the arrangements through which the commission is accountable to the Department of Health. We will retain a range of the conventional measures that exist to manage an arm’s-length body of the Government. The non-executive members of the CQC’s board will continue to be appointed by the Secretary of State, who will also maintain the power to intervene if the commission fails to properly discharge any of its functions. The department will also continue to hold the CQC to account for its financial and operational performance. I hope that these amendments will find favour with the House, and I beg to move.

[Lord Warner]

My Lords, I express my concern about the provisions of subsection (4) of the Government’s new clause on the independence of the CQC. My instincts are that this will do the absolute reverse of what the Government are seeking to do in terms of the CQC’s independence, which is why my Amendment 143A seeks to remove subsection (4). I do not disagree in any way with the other provisions in this set of government amendments and will explain my thinking. Subsection (4) effectively prevents the CQC investigating, of its own mere motion, the extent to which local authority commissioning practices and decisions on adult social care damage user interests and well-being.

In effect, if the CQC considers, after looking at the results of its work on providers of services, that there is a major stumbling block to good, sound provision of services that promote the well-being of users—the provision in Clause 1 of the Bill—it has to seek the approval of the Secretary of State before it can do any kind of generalised or thematic review of local authority commissioning of services. It has to seek the approval not only of the Health Secretary but of the Secretary of State for Communities and Local Government. That seems a step backwards from the position we have now, where the CQC, as I understand it, could actually undertake these kinds of reviews. I do not see how the new subsection (4) helps the CQC to get to the root of a problem that may be affecting thousands of users of services. We have already seen that the providers were not the instigators of the policy of 15-minute home visits—it was the commissioners of services who instigated that policy. They required the providers to do that; they almost drove them along the path of not paying for the travel costs of the healthcare assistants who were making those visits. The institutional behaviour that has grown up and caused so much concern among the public and in Parliament has been driven by commissioners.

I suspect that we will have other kinds of such issues as we move through a decade of austerity in public services. It ought to be possible for the CQC to take the initiative and try to get to the bottom of those issues by carrying out a thematic review of the commissioning practices. That is why we need to take out subsection (4), which seems to be incompatible with the rest of the provisions in this set of government amendments, which I thoroughly welcome. All credit to the Government for removing these requirements on the CQC, but why are they spoiling the ship for a ha’porth of tar? Why are we pushing back on the ability of the CQC to decide that it wants to carry out a review of commissioning practices, when that is not in the best public interest? The Government should think again about this.

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[Lord Warner]

How easy will it be for members of the public to see this material when they are trying to be sure that they are going to a safe place?

[Earl Howe]

The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.

My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.

I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Wednesday 16th October 2013 Lords Chamber

[Earl Howe]

My Lords, I have just described one of those perverse consequences: that we would purport to be giving rights to people which could not be pursued before the European Court of Human Rights. If I could correct the noble Lord, I was not seeking to suggest that the previous Government had addressed the issue that I have been talking about. They addressed part of the issue in the Health and Social Care Act 2008, but there is another dimension to it, as I have said. The amendment would risk creating an asymmetry, which once again risks creating legal uncertainty and confusion.

What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things. People are not, surely, really exercised about which route of redress they have if things go wrong so long as they have one, which they do; what they expect is for things not to go wrong in the first place.

I do not accept the argument that putting this measure into legislation will deter those who abuse or neglect, or galvanise providers into preventing those things. It would not send some kind of message that should not otherwise already be amply clear to all providers of care and support: that poor-quality care is unacceptable.

What I think will make much more of a difference are the stronger measures to improve care that the Government are proposing: the emphasis the CQC is placing on individual experience as opposed to paperwork, the improvements in commissioning and the safe routes for whistleblowers. We are amending the requirements that providers have to meet to enable the CQC to take effective action against providers that do not provide acceptable levels of care. With these things in place, it is my view that when things go wrong we will have a strong and effective mechanism for dealing with the situation. For all these reasons I say to the House that the amendment should be decisively and emphatically rejected.

I now turn to Amendments 138A and 138B, also in the name of the noble Lord, Lord Low. Their effect would be that, where a local authority delegates a function, in addition to the local authority remaining subject to all of its legal obligations in the way the function is discharged, the person authorised under the delegation would also be directly subject to those same obligations. These would include, for example, obligations arising under the Human Rights Act. The amendments are unnecessary because when it delegates its functions, Clause 75(6) is clear that the local authority remains responsible for the way that that function is discharged. The person using care and support will therefore always have a route of redress against the local authority even if the local authority has delegated the discharge of the function to a third party.

Furthermore, these amendments could prove unhelpful because, by making both the local authority and the contractor liable, they could create a lack of clarity about who is ultimately responsible for complying with the local authority’s statutory obligations when a function is delegated. We believe strongly that it must remain absolutely clear that the ultimate responsibility lies with the local authority and that it cannot absolve itself of this in any way. This is an important principle of allowing local authorities to delegate their functions and we do not want to cast any doubt on this.

The underlying intent of these amendments is unexceptionable as they are about protecting the rights of people using health and care services. However, I am absolutely and firmly resolved that these amendments will not achieve what we all want, which is that everyone receives safe, dignified and respectful care and that we must prevent abuse in the first place. With that, I can only express the hope that the noble Lord will think again and decide to withdraw Amendment 83.

[Lord Warner]

Before the noble Earl sits down, can he clarify something from his earlier remarks about the Human Rights Act? I ask with a certain amount of humility but also from the perspective of one of the people who wrote the Labour Party’s policy in 1996 on the incorporation of the European Convention on Human Rights into what became the Human Rights Act in this country. When that Act was framed, the definition of a public function, or the nature of a public function, was one which did not to a great extent anticipate the move over the next 10 to 15 years in which public services would actually be undertaken and provided by private and voluntary bodies. It simply did not do that. However, the terminology was wide enough at the time to embrace an organisation like Channel 4, which had a mix of public and private functions. It was incorporated, as I recall, into that legislation on the basis of its partial role in performing public functions.

The noble Earl seems to accept that, over time, case law can change the definition of the nature of a public function. He seems to be saying that we have to plod through the courts, case by case, to change the definition. I rather lost him when he then tried to argue that you cannot do it by groups of cases, which is effectively what this amendment does. Is the noble Earl saying that the definition of the nature of a public function—in the law as it is—cannot be changed by cases and can only be changed by amending the primary legislation itself?

[Earl Howe]

I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.

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[Lord Warner]

My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.

I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.

People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.

People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:

“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.

We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.

Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.

I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.

We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.

The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.

[Earl Howe]

My Lords, I have listened with care to noble Lords as they have introduced their respective amendments and I am confident that we can all agree that the issues that they raise are vital to the successful implementation of government policy and are essential parts of good policy-making. Let me first address the questions about the cost and funding of these reforms. We have taken and will continue to take a robust, evidence-based approach to assessing the cost of the reforms. We are working closely with local authorities to help them to understand the costs at a local level, and we will use this knowledge to refine our national modelling further. Funding of care and support, including the reforms in Part 1, will be reviewed regularly as part of the spending review process, and the core elements of the capped-costs system will be reviewed within each five-year period.

Turning to the specific issue of the short and long-term costs of the national eligibility threshold, I can assure noble Lords that we have published an impact assessment fully setting up the costs and benefits of the policy. We have comprehensively assessed and funded those provisions. We have published impact assessments for all elements of the Bill and, in line with the Government’s approach to all new burdens on local authorities, those costs were fully funded in this year’s spending round. Those estimates are based on the best available evidence in the area. They have been produced in co-operation with academic experts and officials from across government.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 14th October 2013 Lords Chamber

[Earl Howe]

My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.

On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.

[Lord Warner]

My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.

Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.

Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.

If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.

Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?

I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.

I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.

Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.

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[Lord Warner]

My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:

“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.

We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.

[Earl Howe]

My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.

The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of £23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—

[Lord Warner]

Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.

[Earl Howe]

I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.

I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.

Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.

I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.

The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.

My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.

--- Later in debate ---

[Lord Warner]

Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?

[Earl Howe]

I may need to answer that question later. However, my understanding is that, yes, we can do it through secondary legislation. If I am wrong on that, I will correct myself before the end of today’s proceedings.

[Earl Howe]

I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.

I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.

[Lord Warner]

Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?

[Earl Howe]

I shall certainly do so.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Wednesday 9th October 2013 Lords Chamber

[Lord Warner]

I am trying to help the Minister. If he does agree to provide the assurances sought by noble Lords to look again, could he see whether if he moved in the direction they suggest, he would be discriminating against humanists?

[Earl Howe]

I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.

In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.

--- Later in debate ---

[Lord Warner]

My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.

I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.

[Earl Howe]

My Lords, I very much agree with noble Lords that housing, along with health, and care and support, should be considered as the three legs of the stool. In relation to housing we are clear about two things: first, many types of housing can be provided as a means of meeting or preventing care and support needs—for example, extra care housing. That is why accommodation is listed as a way of meeting needs in Clause 8.

Secondly, housing is a wider determinant of health; simply having a roof over your head can have an enormous impact on your health and well-being. To reflect this, the “suitability of living accommodation” is listed as part of well-being in Clause 1(2). I hope that those two points in particular will serve to reassure the noble Baroness, Lady Masham.

Amendment 12 clarifies that housing is a “health-related” service, and that both local authorities and the NHS are required to promote integration between care and support, health and housing. This makes the importance of housing explicit not only in the integration duty in this Bill but in the comparable duties on the NHS in the 2006 Act. I hope noble Lords will welcome that.

In Committee, noble Lords also expressed the view that we needed to clarify that local authorities are required to co-operate with providers of services, including providers of housing services. Amendment 28, again in my name, does just this. The non-exhaustive list of the types of “other persons” we expect local authorities to co-operate with would now include certain providers of health, care and support, and housing services. However, we cannot add these bodies as “relevant partners”, as public law is limited in the extent to which it can place duties on such private bodies.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Wednesday 9th October 2013 Lords Chamber

Earl Howe: Yes, I accept that distinction, but Parliament has already vested in the CQC considerable scope to focus on any aspect of a provider it wishes to, which could well include its employment practices. It is not as if, when the CQC moves in on a provider and conducts an inspection, it cannot decide for itself that the employment practices are the mischief that it needs to investigate most closely.

[Lord Warner]

Can I be clear about something arising from what the noble Earl said? I am struggling with whether the CQC can look at these employment practices only as it plods its way around the country, one authority at a time, or whether, if it starts to pick up something—either from looking at one or two authorities or from public reactions—it can commission a generic review or study of commissioning practices across the country. I am not clear what the noble Earl is saying about this—whether the commission has to work its way through authority after authority, or whether it can make a generic review of particular practices.

[Earl Howe]

My Lords, I was distinguishing between providers and commissioners. The CQC can do thematic reviews under, I believe, Section 48 of the Act, but we are talking there about providers. As regards commissioners, we are proposing in a later amendment to give the CQC powers to conduct special reviews where concerns have been raised about a particular local authority or NHS commissioner; there would not be periodic, regular reviews. However, the CQC will be looking at every provider over a period of time. The amendment from the noble Lord, Lord Hunt, specifically addresses the ability of the CQC to examine providers. I was saying earlier that it already has the necessary powers to do detailed work in whatever area it chooses.

I return to the issue of local authority commissioning practices. As I argued, the underlying causes of poor commissioning are cultural, and we need to work with local authorities to tackle these issues. We are therefore undertaking a number of non-legislative activities, including the development in co-operation with ADASS of a set of commissioning standards. These standards will enable individual authorities to gauge their own effectiveness, and will support the LGA and ADASS to drive sector-led improvement.

In addition, we are working with the Towards Excellence in Adult Social Care initiative to support local authorities to seek continuous improvement in their adult social care functions, and in the outcomes achieved. This programme brings together local, regional and national stakeholders, and is focused on providing peer support and interventions by local government to share learning, find new ways of engaging local people, and use knowledge of what works, data and innovation to drive improvement in the quality of services.

I hope that these arguments, and the amendments we have tabled, are sufficient to demonstrate to the House that we understand and agree with the strength of feeling around these issues. For the reasons I have set out, I cannot support the amendments tabled by noble Lords, but I hope that the arguments I have made today will be sufficient for those noble Lords to feel able not to press their amendments. I do not yet know what the noble Baroness, Lady Meacher, intends to do with her amendment, but it may be helpful for noble Lords to know that the Government do not consider that a decision on Amendment 25 is consequential on Amendment 22.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 29th July 2013 Lords Chamber

[Earl Howe]

I will come back to the noble Baroness on that question.

I take the point of the noble Lord, Lord Hunt. It could clearly be a source of resentment on the part of a self-funder if they find out through the transparency of the arrangements that we are putting in place that they are paying more than the cost of somebody else’s care. I can tell the noble Lord that we have given thought to that. It has been discussed with the LGA. I would be happy to flesh out the substance of our discussions, but we want to avoid a situation that gives rise to that kind of resentment.

The noble Baroness, Lady Wilkins, asked what plans the Government have to make sure that service users and carers are able to contribute fully to the consultation on funding reform. We intend to arrange a series of consultation events around the country to engage with those who use services, their carers and their families. We will also work with stakeholders to make the best use of their networks and local groups to make sure that we consult as widely as possible.

The noble Baroness, Lady Bakewell, asked a particular question around what she termed the “postcode lottery”, and, of course, I understand the force of that phrase. She asked whether the funding of the Bill adequately addresses the disparity of care and support across the country. The short answer is that the Care Bill provides for national eligibility criteria. That, of itself, will provide greater transparency and consistency for people across the country. I do not think that we will ever completely get away from variation in what local authorities are prepared to consider adequately meets the needs of individuals and we will see some independence of decision-making, whatever we do. However, I firmly believe that the Bill brings us much closer to greater consistency and fairness.

On top of the spending-round announcements, I believe that the Bill will have a positive effect on the NHS by strengthening joint working between health and care and support. For example, Clause 3 requires local authorities to exercise their functions with a view to ensuring integration between health and care. In addition, Clause 2 creates a clear legal duty on local authorities to ensure the provision of preventive services. We want a service that reduces dependency, as well as supporting those who already need care and support, rather than just waiting for people to reach a crisis point. By slowing and preventing the development of care needs, the onset of health conditions or the loss of independence, we believe that preventive care can increase quality of life for individuals, while having the potential to provide longer-term financial savings to the public purse. It is only with this greater focus on prevention and integration that both the NHS and care and support can respond to the financial pressures of an ageing population.

The noble Lord, Lord Lipsey, took us forward to 2025 and beyond and referred to the shortage of workers in the social care workforce predicted by the King’s Fund. Of course, we agree that reforming care and support to make it sustainable for the future will require more capacity and greater skills in the workforce. That is why we stated our ambition in the Caring for Our Future White Paper to double the number of apprenticeships in social care to 100,000 over five years. We are now working with stakeholders to make that ambition a reality.

The noble Baroness, Lady Campbell, speaking powerfully about the areas that she knows best, said that disabled people feel that they are losing their independence as a result of funding cuts, and, indeed, there is a fear that the country unwittingly may be breaching Article 13 of the UN Convention on the Rights of Disabled People. A local authority’s overriding duty under the Bill is to promote well-being. This includes control by individuals over their day-to-day lives, including the way in which care and support is provided. We are confident that the well-being principle captures the outcomes that affect an individual’s independence. We should always keep going back to that principle, not least in the context of the rights that people feel they have—and do have—under the UN convention.

In so far as I have not answered questions from noble Lords, I will, of course, follow up this debate in writing. For the time being, I hope that, for the reasons I have outlined, the noble Lord, Lord Warner, will agree to withdraw his amendment.

[Lord Warner]

My Lords, this has been a helpful debate and I am grateful to all noble Lords who have spoken in it—overwhelmingly, I should add, in support of my amendment. I take great confidence from that.

The noble Earl has made not a bad job of answering my four questions about the £3.8 billion. I am feeling generous and so will give him a B minus for his attempts. At least he has come clean that only half the money is new money, which is a helpful clarification, and that only half of the £1 billion of the rest will be paid up front, while the rest is dependent. Therefore, to some extent my point has been made that that £3.8 billion looks a little less glossy than when it was announced in terms of what new money people will get in 2015-16. I notice that the noble Earl did not answer my question about the base budget, which took up much of my speech. The bottom line in all this is that the base budget is very deficient. The local authorities which will take on these new roles are starting, essentially, from a deficit position.

The noble Earl is always one of the most plausible Ministers and has done a good job of explaining efficiencies and productivity. However, the people who gave evidence to the Joint Select Committee just do not believe that this has all been achieved through efficiencies. They are seeing cuts in services and tougher eligibility criteria. The interesting mini-debate we had about the difference in payments for publicly funded people in care homes and self-funders illustrates that local authorities have been cutting the rate for the job for those who they pay for. We will see more of that. Until we face up to this base budget issue, we will have a problem.

I do not doubt that the Government have done a pretty reasonable job of costing the new provisions in the Bill. However, it will be introduced on the basis that the underlying base budget is too low. No one has yet answered my question with very much confidence about the fact that we are talking about a base budget deficit, which is in the Dilnot report, and which in broad terms has risen two and a half times since this Government came to office. That is the nub of this issue.

The noble Earl also glided over with his usual elegance the issue of why the Government are so preoccupied with this rather strange way of giving money to local government. First you see the Department for Communities and Local Government take money away and then local authorities have to cut other services if they want to prop up social care. Then Health Ministers, almost in desperation and worried about the implications for the NHS of what is happening to social care, long before they were betting the farm on integrated care, are—perfectly understandably—starting to slide money across to prop up social care. That is what is going on. If I were a director of social services these days, I would find it rather difficult to plan my service response to a kind of resource allocation system based on that kind of approach. That is a real problem for central government, which is expecting local authorities to plan well for these new changes. It is a pretty messy way of giving money to people at the local level.

I will read very carefully what the noble Earl has said in this debate. I am not convinced that we do not need an impartial review. If it is not the OBR I will think of somebody else. I might try a few on the noble Earl during the Recess—the Institute for Fiscal Studies comes to mind. We need a hard look by somebody who is not party pris. If my own party wins the 2015 election, it will need that hard look as well. I will think about it further, but in the mean time, I beg leave to withdraw my amendment.

--- Later in debate ---

[Earl Howe]

My Lords, I thank the noble Lord, Lord Warner, for tabling these amendments which bring us to an important and sensitive set of issues. The Government have great sympathy with these concerns and I hope that I can reassure the Committee on them.

Amendment 105P would give the Secretary of State a power to introduce regulations for two specific but related issues—a right for NHS patients to die in the place that they regard as their home and an exemption from local authority charges for care and support for adults who are in the final six months of their lives. The Department of Health’s End of Life Care Strategy provides a blueprint for improving quality and choice in palliative and end-of-life care, and NHS England, which is now responsible for end-of-life care, is pressing on with its implementation, including aspects relating to the pathway to which the noble Baroness, Lady Emerton, referred.

We made a commitment in Liberating the NHS: Greater Choice and Control to move towards a national choice offer to support people’s preferences about how to have a good death. This is not an easy task and it cannot be done overnight. For example, commissioners need to be sure that the right services are available in the community to support people to be looked after at home. A lot of work is needed to make choice in end-of-life care a reality. We shall take all the evidence into account and review progress this year to see how close we are to being able to introduce a national offer on the choice to die at home. The noble Lord, Lord Warner, rightly pointed out that there are variations across the country as regards people’s ability to die in the place of their usual residence. I take that point completely. However, if we are to solve that disparity, it is important that we do not act prematurely. If an area is not ready to roll out a better system for palliative and end-of-life care, it will serve no one’s purposes, so we must take the necessary time to do this.

On the issue of palliative care funding, as the noble Lord is aware, in the Care and Support White Paper, published in July 2012, we stated:

“We think there is much merit in providing free health and social care in a fully integrated service at the end of life”.

This followed the report of the independent Palliative Care Funding Review in July 2011, after which the Government set up seven adult and one children’s palliative care funding pilots. The pilots are running for two years, with the aim of having a new funding system in place by 2015, a year sooner than the review proposed. From April 2013, we gave responsibility for this work to NHS England. We need to analyse the evidence from the pilots thoroughly before the details of the new funding system are finalised. Any changes to social care palliative care funding could be made by secondary legislation under Clause 14(1) in due course and will not require an amendment to the Bill.

My noble friend Lady Jolly referred to the cost savings in hospital admissions at the end of life and suggested that this might cover the cost of nursing care at home. This is a point made cogently by Marie Curie. The issue we need to bear in mind here is the readiness of the service to cope with sudden changes in services that an amendment would entail, so we still think that it is better to gather the evidence, as the pilots are now doing, and allow services to be properly planned for.

I turn to Amendment 105PA. The Bill allows local authorities to treat a person’s care and support needs as urgent, as set out in Clause 19(3). We believe that in end-of-life cases a person’s needs would be highly likely to be considered “urgent” and therefore should be fast-tracked so that needs are met as quickly as possible. We do not believe that the Bill should set out a list of urgent situations where a local authority can meet an adult’s needs without having yet carried out a needs or financial assessment, or made an eligibility determination. The problem is, as we have debated on many occasions in the past, that such a list could never be exhaustive and might suggest that only certain situations could be treated as urgent. Local authorities must have the flexibility to determine themselves which situations they consider to be urgent, depending on the facts of each individual case. The wording of Clause 19(3),

“which appear to it to be urgent”,

enables this. However, I can say that we intend to refer to end-of-life cases specifically in statutory guidance.

I can readily identify with the questions asked by the noble Baroness, Lady Pitkeathley, about carers and the need to support them after the death of the person they have been caring for and to make sure that they are informed about the stages at the end of life, the additional pressures that may be placed on them and the need to plan. The duty on a local authority to provide information and advice in Clause 4 very definitely includes information and advice relating to support for carers, including in these circumstances.

The noble Baroness, Lady Wheeler, asked about end-of-life care for BME groups in particular and the need to address the low use of palliative care services among those groups. She asked how we are addressing that. I shall write to the noble Baroness on that point, as I do not have information in front of me on whether the pilots are collecting those data specifically. However, I agree that it is a material issue. The noble Baroness also asked whether the palliative care funding pilots had been impacted by the transition to the new NHS system and whether we would meet the timescales. I can reassure her that the work of the pilots is on track.

I hope I have demonstrated that the Government are committed to offering patients the support to facilitate their dying at a place that they regard as their home, when the system is able to meet this commitment and where this is the person’s wish. I hope that the noble Lord, Lord Warner, will be sufficiently encouraged to withdraw his amendment.

[Lord Warner]

I am grateful to all noble Lords, across the Benches, who spoke in support of this amendment. I will, of course, consider carefully the noble Earl’s points in his constructive response. I will discuss them with my co-signatories and the voluntary sector. However, I want the noble Earl also to ponder something. The idea of giving people a right to die where they choose is one of the major social right breakthroughs. It is on a par with some of the other things that Parliament has spoken on and passed legislation about. In my view, it is more than about waiting for the bureaucracies to give their blessing that there is a state of readiness for this change to take place. This is an issue where the political parties and Parliament should show their willingness to press on as a top priority. I will certainly consider what the noble Earl has said, but I hope he will consider what I have said. We did not have everything ready when Parliament decided to ban smoking in public places and the workplace. It thought it was the right thing to do and it did it. This issue of people’s right to choose where to die is in the category where Parliament should say, “It is the right thing to do and we are going to get Governments to do it”.

I may be wrong. The Government may bring forward these changes in good order. But I take a different view from the noble Earl about the issue of local variation. They need to put a marker in legislation to make jolly sure that those parts of the country actually deliver the goods on a similar timescale to everybody else. I do not think that we could rely on strong messages from NHS England necessarily to deliver that. In the meantime, I will consider carefully and I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Warner]

Supplementary to that, my simple view of the world is that if the situation is so bad, the CQC ought to be able to deregister someone who persistently engages in these kinds of employment practices. Do the Government share that view?

[Earl Howe]

My Lords, I am the first to agree that these are very important issues. I cannot do justice to explaining where we are with them at the moment and I ask both noble Lords for their indulgence. I will write to both of them and provide more information on this subject.

I was referring to the role of the CQC, which has the power to act in response to any concerns and to take enforcement action where services are failing people. Failure to comply with the requirements is an offence and, under the Health and Social Care Act 2008, CQC has a wide range of enforcement powers that it can use if the provider is not compliant. These range from issuing a warning notice and fines through to cancelling a provider’s registration. The new Chief Inspector of Adult Social Care will be in post from October and will provide additional focus on quality issues in care and support.

I repeat my reassurance to the noble Lord, Lord Warner, that the Government fully agree with the intention behind the amendment—that employment standards and workforce issues are fundamental to quality care—but I hope I have demonstrated that there is a wide range of activity bearing down on poor practice and that the variety of existing law and other non-statutory approaches mean that further legislation is not required. I hope the noble Lord will feel reassured enough to withdraw the amendment on that basis.

[Lord Warner]

I am grateful to the noble Earl for his reassurances. However, like my noble friend Lord Hunt, I am still uneasy about the extent to which there is, if I may put it this way, a clunking fist that could be used to stop such practices in their tracks, possibly by the regulator.

It would be helpful if before Report we could meet, perhaps with David Behan or someone from the CQC, to satisfy ourselves that, possibly by using guidance and advice from the department to the CQC, enough priority will be given to this issue and systems will be put in place to take action swiftly when concerns are raised. However, in light of the possibility of further discussions, I beg leave to withdraw the amendment.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 22nd July 2013 Lords Chamber

[Earl Howe]

I have received advice that, technically, that is not so, but I am more than happy to engage the noble Lord in discussion after this debate. It would largely depend on the availability of a deferred scheme, agreed to by a local authority. It would also largely depend on the quantum of the debt that was already in existence. Of course, setting aside this particular issue, there could be a property on which there was pre-existing debt of a considerable size. It would largely be for the local authority to judge in individual cases whether it was in a position to offer a deferred payment scheme, looking at the facts of the case. I do not think one can make generalised remarks about this. We think that technically it is possible for an equity release scheme to exist alongside a deferred payment loan. As I say, I am sure that the noble Lord, with his insight into the market, will be able to put us right if we have misread the situation.

[Lord Warner]

While we are on this topic, it seems to me that there is an issue for the Government to think about. What is the market rate for equity release, compared to the market rate for deferred payments? If you are not very careful, you could end up with a situation where one is incentivised over the other. I wonder what consideration the Government will give to that issue.

[Earl Howe]

We will, of course, give that consideration. I am just reflecting, in the light of the noble Lord’s comment, on whether deciding what arrangements suit the individual is a matter for the Government, or rather a matter of individual choice. If there were a difference in the interest rate, it would surely be up to the individual to decide whether they wished to avail of whatever facility was being offered to them. I do not see that it is necessary to go down the path that the noble Lord, Lord Lipsey, is suggesting, whereby a local authority should be the one and only provider of funding in that kind of situation, merely because the interest rate was perhaps more favourable than an insurance provider’s.

Deferred payments mean that people will not have to sell their home in their lifetime to pay for residential care; I do not think that any commercial product offers that. Equity release is not available to people currently in residential care. However, there is potential for equity release to help people with domiciliary care and other costs. We would welcome developments in that market but this is an evolving discussion with the industry.

In respect of Amendment 92ZZX, we will continue to work with the care sector to ensure that authorities are in the right position to offer deferred payments from April 2015. There will be a dedicated implementation effort led jointly by government and local authorities, learning from local areas with well established deferred payments schemes. This will help to achieve a consistent national approach that fits with existing local systems and structures. We have also announced £335 million of additional funding in 2015-16 to support local authorities to deliver funding reform, including the introduction of universal deferred payments.

Amendment 92ZZZ would delay implementation by one year, until 2016. Given the work already under way with the sector and the shared desire across both Houses to address the issue of care and support funding reform, it is surely only right that we implement this at a reasonable pace. My view—and I hope, on balance, that the Committee will agree—is that it would be unfair to persist with the current system for longer than is needed. The timetable we have set out has other advantages. The 2015 introduction means that deferred payments will be part of the new offer to self-funders coming into place that year, and the stronger engagement by authorities with self-funders will be excellent preparation for introducing the capped costs system in 2016.

The noble Lord, Lord Warner, expressed the fear that we would have 152 deferred payment schemes around the country. As we have discussed, some authorities already have established deferred payments schemes. We think it makes perfect sense to build on the good work that exists. It will also ensure that deferred payments integrate with wider care services. The point here is that authorities will be following criteria set out in national regulations. There will be a consistent approach to who qualifies and what fees they can defer, and a consistent policy around interest and charges.

There is, of course, work to be done by local authorities, but I suggest that what we are tasking them to do is not exactly alien territory to them. We are confident that local authorities have the skills to offer deferred payments. The requirements primarily involve financially assessing people and keeping a record of fees that people have deferred and the interest owed, which is all consistent with activities that authorities undertake as part of providing means-tested care and support. Many authorities already operate deferred payments very effectively. We will work with the sector to identify good practice, as I have mentioned.

In answer to my noble friend Lady Barker, in local authorities with established schemes 20% to 30% of self-funding care home residents take out deferred payment. The level of uptake in 2015 may be similar or it may be somewhat higher. Again, it is incumbent on us—and we recognise this—to work with the sector to identify good practice that others can learn from.

[Earl Howe]

Yes, it is intended to be an average estimate across local authorities.

The noble Lord, Lord Lipsey, was concerned that there might be an incentive to encourage people to go into care homes rather than receive care at home, which would be contrary to the direction of the policy. That is an understandable concern, but Clause 1 creates a new statutory principle that applies to all the functions under Part 1, including care and support and safeguarding and means that, whenever a local authority makes a decision about an adult, it must promote the adult’s well-being. That ensures that individual well-being is the driving force behind care and support so that local authorities focus on achieving the outcomes that matter to people.

Moreover, although local authorities will be able to charge interest they will not be able to make a profit on deferred payments, so there should not be perverse incentives. Even so, it is important that people who go into residential care should understand their financial options so they can decide what is best for them. Authorities will have a duty to establish and maintain a service to help people access independent financial advice. We are currently consulting on how this duty should operate in practice, including how it works for deferred payment.

The noble Lord raised an important point in relation to the details of the scheme. These are all things we want to look at as part of our consultation and in the work we are doing with the care sector on implementation of funding reform.

[Lord Warner]

I am sorry to interrupt the Minister, but he skipped past the whole issue of 152 schemes rather rapidly in his answers and brushed aside most questions. Have the Government actually considered a national scheme, which was one of my questions? Does the Minister realise that only a small number of local authorities are actually running deferred payment schemes? It is a very small proportion of the total. The overwhelming majority of them have no experience whatever of running a deferred payment scheme; very few of them are used to valuing assets. These are all new complexities, but the Government are not going to be producing their draft regulations until 2014, by the Minister’s own admission. This is a recipe for a total shambles.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 22nd July 2013 Lords Chamber

[Earl Howe]

My noble and learned friend is, of course, right. That goes back to a question posed in an earlier group by the noble Baroness, Lady Wheeler, about what the definition is of business failure. We propose to define in regulations circumstances in which a provider can be deemed to have failed. Those circumstances may include a situation in which a provider is struggling to service its debts as they fall due or has breached its financial covenants under loan agreements, or an administrator, liquidator or receiver has been appointed—which is a clear-cut case of failure. As I said, this will be defined in regulations because we want to capture these various different scenarios where a business can be deemed to have failed. We will, of course, consult on the regulations before they are laid. No doubt what I have just said will be refined and augmented during that process.

[Lord Warner]

The Minister mentioned that the Government will look very closely at some of these ownership issues and their opacity. Will he be willing to look at some of the other sectors which have been regulated? I would cite water and the electricity and gas industries, where we are already seeing the emergence of a clear conflict between the rights and needs of shareholders and those of consumers. There are lessons to be learnt from these other sectors, which now have a lot of experience of regulators trying to hold the balance between those who invest and those who are receiving the services from the providers of those services. Consolidation has also taken place in those industries, particularly in the energy sectors.

In this sector, we are seeing the early stages of consolidation, which is moving apace. Given the vulnerabilities of the people who live in these homes, it is conceivable that some ownership patterns could simply not be acceptable in this particular sector because of the high risk that they pose for the users of the services. Will the Government look at those other sectors and at that issue as they start to consider this? I am the last person to want to stop new entrants coming into a market, but Southern Cross was a wake-up call for us. We have to see whether certain ownership patterns have too much of a conflict of interest between the investor and the user of the services for us to be able to be comfortable that they could ever deliver the bacon in a satisfactory way.

[Earl Howe]

The noble Lord is absolutely right. We are entirely open to looking at the lessons to be drawn from other sectors and the regulators of other sectors. I am sure that important messages will come from such sectors of the kind the noble Lord describes—no doubt not just the energy and water sectors but others, too.

I will move on to the question of whether there should be central oversight of local authority commissioning practices. I wholeheartedly agree with many of the arguments that have been expressed this evening. Commissioning practices which risk undermining personal dignity and lowering quality are simply not acceptable. That is why Clause 5 of the Bill introduces a duty on local authorities to shape high-quality, diverse and sustainable markets in care and support services. Clause 5(4) requires local authorities to have regard to this duty when commissioning services. As I said when the Committee discussed Clause 5, we are aware that there are examples of poor commissioning practice across the country. We need to move away from overly prescriptive commissioning that focuses only on price or time slots, to consider how it can do things differently and deliver better outcomes in quality care.

In relation to the option of central oversight of local authority commissioning that the noble Lord, Lord Patel of Bradford, suggested, the Bill leaves open the possibility of the CQC conducting reviews of local authority commissioning. However, by enabling the CQC to review local authority commissioning, if it is prescribed in regulations, the Bill gives us the opportunity to discuss this option further. In particular, we are considering whether the new chief inspector, who will work with local authorities that commission care and support, should have a formal role in assuring the performance of those authorities, building on the strength of the current programme of improvement activity and peer assurance led by councils.

I emphasise at this stage that if there is to be central oversight of commissioning, the CQC, as a consequence of its links with the chief inspector and its existing relationships with, and expertise in, the social care sector, will be the most appropriate body to undertake this function. Although we have not closed our minds to the option of central oversight of local authority commissioning, the fundamental problems underlying poor commissioning practices are cultural and structural. Central oversight on its own will not necessarily tackle these issues.

The noble Lord, Lord Warner, asked how we could be satisfied that local authorities’ commissioning will be of a suitable quality. It goes without saying that it is for local authorities to decide the most appropriate way for them to fulfil their duty of commissioning and of shaping local markets, responding to local needs and circumstances. They will be accountable locally for those decisions. However, we are working with local authorities to support them to develop their capacity to shape local markets. We launched a programme of support last year and intend to continue working with local authorities to improve commissioning practices. We are committed to working with the sector to support local authorities to shape diverse and high-quality markets, including through improving commissioning practices, through the recently announced homecare challenge and through a programme to support the authorities in their market-shaping capacity.

In conclusion, I fully understand and sympathise with the issues raised by the two amendments. However, I hope that I have been able to shed some light on why the Government have come to their view on the issues. In so doing, I hope that I have provided a measure of reassurance to the noble Lord, Lord Patel of Bradford.

NHS: Foundation Trusts

Debate between Lord Warner and Earl Howe

Tuesday 16th July 2013 Lords Chamber

[Lord Warner]

To ask Her Majesty’s Government what progress the NHS Trust Development Authority will have made by April 2014 with NHS Trusts becoming NHS Foundation Trusts; and when they forecast that the Authority will have completed its work.

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

My Lords, in the light of Robert Francis’s recent report, we have allowed the NHS Trust Development Authority to agree trajectories for NHS trusts to reach foundation trust status that go beyond 2014 on a case-by-case basis. In doing so, we will ensure that the primary focus of the NHS Trust Development Authority and of NHS trusts themselves is on improving the quality and sustainability of services for patients.

[Lord Warner]

My Lords, I thank the Minister for that reply. Does he recall that in a recent Written Answer to me he identified 26 acute hospitals under the stewardship of the TDA which have cumulative deficits running into hundreds of millions of pounds? Does he agree that many of them are unsustainable and potentially unsafe and need their services reconfigured? Will he tell the House why the Government refuse to publish the review by Sir Ian Carruthers on the procedures for service reconfiguration and why they resist publication by declining FOI requests?

[Earl Howe]

My Lords, there is no doubt—and we have never denied this—that there will be a hard core of organisations which will be very difficult, if not impossible, to bring to foundation trust status. For those trusts, it is necessary to look at other options, including, for example, mergers. That work is being taken forward. Although some trusts are in deficit, the NHS TDA is working very hard to mitigate those deficits in-year and when the first quarter board papers are published in September we will know what its predictions are for all trusts for the current year. I will come back to the noble Lord on the report of Sir Ian Carruthers because all FOI decisions are reviewed at regular intervals to make sure they are current. I want to make sure that there is a plan to release that information in due course. I am sure that there is.

NHS: Keogh Review

Debate between Lord Warner and Earl Howe

Tuesday 16th July 2013 Lords Chamber

[Lord Warner]

My Lords, I want to ask the Minister about the Government’s future intent. Are he and his colleagues now satisfied that Sir Bruce has found an indicator or indicators which require constant attention, year on year? Can we expect to see, either by Sir Bruce or by the new Chief Inspector of Hospitals, an annual look at the outliers on mortality rates and a regular report to Parliament about the findings of the exercise? Is this going to be institutionalised as part of the performance management of the NHS?

[Earl Howe]

We will see the Chief Inspector of Hospitals picking up the baton, as it were, from Sir Bruce Keogh, whose way of working in this exercise has been very instructive. His judgments were based on talking, not just to a few people in the trust, but to patients, a wide range of staff and, in some instances, people outside the trust. I am sure that Sir Mike Richards, the new chief inspector, will want to learn from that. It will be up to the CQC to decide whether this will be institutionalised. Its methodology is evolving. The hospital aggregate rating system will have a role to play in systematising the evaluation of performance and in any future instances of very poor care we will no doubt see a level of transparency from the CQC which we have, perhaps, not had before. However, I would not want to commit the CQC to reporting annually to Parliament in a particular way. It will report annually to Parliament but it is largely up to it how it does it.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Tuesday 16th July 2013 Lords Chamber

[Earl Howe]

I am more than happy to discuss this with the noble Lord and I apologise if I have misunderstood his amendment. I certainly would not wish to do that.

The noble Lord, Lord Low, asked me how equipment and adaptations will be addressed in a personal budget. Those costs that are intended to meet eligible needs will be included in the personal budget, or the independent personal budget, and will count towards the cap. We intend that aids and minor adaptations will be provided free of charge however they are funded, including by way of direct payments.

The noble Baroness, Lady Wheeler, asked me when the regulations under Clause 14 will be published. We intend to publish the draft regulations after the forthcoming consultation on funding reform. This consultation will enable the regulations to be based on the best available evidence. She asked where are the provisions about complaints and redress in relation to charging and, indeed, all of Part 1. Existing complaints provision for adult social care is through regulations. The provisions of the regulations mean that anyone who is dissatisfied with the decision made by the local authority about their assessment or eligibility would be able to complain to the local authority and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.

The Government recognise that the existing framework allows local authorities flexibility in the development of the process for dealing with appeals and challenges. There are options for local authorities to introduce independent elements to the complaints process through a range of formal and informal measures. Each local authority will therefore have a different process and we appreciate that local variation will result in varying user experiences. If a complainant is not satisfied with the response from the local authority, they can refer the case to the independent Local Government Ombudsman.

I hope that those remarks will be helpful and that the noble Baroness, Lady Pitkeathley, will for now be able to withdraw her amendments.

[Lord Warner]

Can the Minister clarify his response to my noble friend’s amendment that there would be statutory guidance? I know that I have been away for a few weeks, but before I left, the Government had turned their back on a statutory code of guidance, as I understood it. Has there been a change of heart in my absence?

Health: Children's Heart Services

Debate between Lord Warner and Earl Howe

Wednesday 12th June 2013 Lords Chamber

[Lord Warner]

My Lords, I take us back to Sir Ian Kennedy’s review 12 years ago in which he made it crystal clear that unless we significantly reduced the number of these centres, children would continue to die unnecessarily. That was the brutal conclusion of the Bristol inquiry. Has anything come out of the IRP review that fundamentally changes the July 2012 decision of the Joint Committee of Primary Care Trusts that seven centres, with clinical networks built around them, was the right number? As I understand it, the argument is not necessarily that seven was the wrong number of centres, but that the wrong seven were chosen. Are we not now opening up the whole issue of the relationship with adult services, which will take us back to a situation where we start to review from the beginning the appropriateness of the particular centres? Do we not need to get back to where the JCPCT was when there was a good deal of consensus around the idea that seven was the right kind of number? The issue is really about east coast versus west coast, and the danger of this report, thorough though it may be, is that it will now reopen all the issues on which we had actually made a good deal of progress by 2012.

[Earl Howe]

That is indeed the core of the disappointment felt by the clinical community and noble Lords: that we are little further forward in terms of deciding exactly where these services should be delivered. The noble Lord is also right to say that support for a philosophy of improving children’s heart services by concentrating surgical expertise to provide round-the-clock cover and develop networks of care is as strong as ever. There is a rare consensus on the clinical case for improving services on the pathway of care for children. The IRP has said that its report is not a mandate for going back over the ground of the past five years; indeed, it commends a great deal of the work done by the JCPCT. The IRP says that that work should be built upon. The JCPCT should not necessarily feel bruised by this, although I am sure that it will feel thoroughly disappointed. However, its groundwork has been publicly appreciated, and it is now for NHS England to take that work forward as swiftly as it can.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Wednesday 12th June 2013 Lords Chamber

[Lord Warner]

My Lords, I am sorry to interrupt, but I have here a document that the noble Earl’s department sent out in May, signed up to by the TDA, Monitor and the CQC. I want to direct his attention to paragraph 27 of that document, which I mentioned in my remarks. As I understand it, this sets out the Government’s policy on the relative difference between TDA and Monitor. It makes it very clear. I shall quote from it, because this is absolutely the nub of the issue:

“Monitor can also place a foundation trust into special administration directly, following consultation with the Secretary of State and the CQC, on the grounds that it has, or is likely to become, financially unsustainable. The changes proposed in the Care Bill will enable it also to do this where it is apparent that a provider is clinically unsustainable”.

The initiative lies with Monitor. It can do this in relation to the trust of my noble friend Lord Hunt or to any other foundation trust when it has had a warning notice from the CQC and thinks change has not taken place. Hold that thought in the head and look at what the document says about NHS trusts that are in the maw of the TDA. It states:

“Managing the process of reconfiguring local services to provide sustainable, high quality healthcare that meets patient expectations and needs is primarily a role for local commissioners, supported by NHS England. In the event that an NHS trust or foundation trust has failed to make improvements and commissioner-led efforts to resolve the issue have not succeeded, special administration may, as a last resort, provide a mechanism for dealing with NHS trusts and foundation trusts which have become either clinically and/or financially unsustainable. Where the TDA considers it is in the interests of the health service, it can already advise the Secretary of State to place an NHS trust which it considers to be either clinically and/or financially unsustainable into special administration”.

Monitor can simply take that decision itself when it has the evidence. The TDA has to go through a series of hoops with commissioners before it can advise the Secretary of State. That is what this document seems to say. If it is wrong we need to be clear that it does not say what the Government mean it to say.

[Earl Howe]

I think the noble Lord has misled himself. The way in which we envisage the system working for both trusts and foundation trusts, where we have a provider that looks as though it might be clinically unsustainable, is to encourage commissioners and the provider concerned to come together and have a grown-up conversation about the configuration of services. That is the first resort and it is the normal course of action that we would expect, whether it is an NHS trust or an NHS foundation trust. In either case, trust special administration is going to be a last resort.

The noble Lord is right that, while we envisage the process of trust special administration to be broadly the same in both instances, there has to be a difference. The difference arises from the fact that foundation trusts are, in statute, much more autonomous bodies than NHS trusts. NHS trusts are still subject to directions from the Secretary of State. What the TDA does is act as the Secretary of State’s proxy in overseeing their quality, sustainability and governance. That is why there is a process around referral to the Secretary of State before a trust special administration can take place for an NHS trust, whereas that is not the case with a foundation trust. That is because Monitor is the independent regulator for FTs charged with doing that.

The noble Lord does not need to make too much of the differences that he has purported to identify in that document, which I will, of course, re-read in case we have inadvertently misled the Committee. The point I sought to make was that in no way do we envisage a material difference in the process which will ensue from a clinically unsustainable provider, or one whose quality is in question.

The noble Lord, Lord Warner, asked what will happen to NHS trusts that do not meet expectations of the accountability framework published last December. The accountability framework covers clinical and operational metrics, governance, leadership and finance. If the TDA judges that a trust is failing the accountability framework, it has a number of options. It can request recovery plans—Monitor is also in a position to do that with FTs; it will increase the frequency of its engagement with the trust; it can commission an independent investigation; it can review the skills and competence of board members. Again that is something that Monitor can do with FTs. It can commission interim support to provide additional management capacity—again that is something that in theory Monitor could do under its licensing arrangements. Ultimately, the TDA can exercise the Secretary of State’s functions and terminate appointments. Monitor has similar powers. I want to reassure the noble Lord, Lord Warner, that there is not such a gap as he has made out in this area.

Incidentally, the noble Lord called into question the speed of progress of the foundation trust pipeline. I can assure him that the pipeline is moving. It may look rather glacial from his perspective, and I can understand why. However, even though the TDA was established only on 1 April, two foundation trusts have been authorised since then—Kingston on 1 May and Western Sussex, which was announced today.

The noble Lord, Lord Warner, sounded a warning that this kind of arrangement posed a risk that money could end up being taken away from successful trusts to bolster poorer performers. It is precisely to avoid that that we need to grasp the nettle in some cases as we had to do in south London to ensure that one part of the NHS did not drain the resources that should be shared out more equitably among the rest of the health service. Certainly, this is not the intention of our policy. In fact, the purpose of special administration, if it is deemed necessary, is to ensure both clinical and financial sustainability. When it is clear that a hospital cannot resolve quality failures in its current form, we will no longer have to wait until a trust fails financially before action is taken. That is why I shall talk about special administration in more detail in a second.

In future, issuing a warning notice to a trust or foundation trust will be a sign that there is a serious quality issue at that trust and that significant improvements are required. I fully agree with the noble Lord, Lord Hunt, that it will be important to determine what significant improvements could encompass, as proposed by Amendment 64A. We have been clear that the new warning notices are designed to highlight serious failings, such as a systematic failure to meet fundamental standards. As noble Lords will remember, the fundamental standards are a concept that Robert Francis put forward, whereby treatment or practices in a trust could be said to be absolutely unacceptable by anyone’s measure. The fundamental standards themselves have not yet been defined; that process will be taken forward in the coming months with full consultation with the public, and we need to get that right. That is the issue underlying the provision around significant improvements. Under the 2008 Act, the CQC is already required to publish guidance to detail its approach to issuing warning notices. This will be revised in light of this Bill to include its interpretation of “significant improvement”. That is a flexible and proportionate approach.

When a trust receives a warning notice, just as happens now, it will be published and the CQC will send a copy either to the TDA or to Monitor, depending upon whether they relate to an NHS trust or foundation trust, as proposed by Amendment 65. Clause 74 amends Section 39 of the 2008 Act, which requires that a copy of the notice be sent to Monitor and any other persons whom the CQC considers appropriate. When the notice relates to an NHS trust, this would include the TDA.

I have listened carefully to the noble Lord’s arguments in favour of Amendment 66ZB regarding large providers spread over many sites. This is not a new issue; having a regulatory system that is flexible enough to cope with such organisations has always been critical. At present, the CQC has to ensure that they can take a differentiated approach and can deal appropriately with providers, ranging from large multisite hospital trusts to care homes. This will continue to be the case, so I feel that this amendment, while I sympathise with its intent, is unnecessary.

Clause 75 introduces changes to ensure that when failures are identified, there is a prompt and firm response. We have been clear that when a provider receives a warning notice, the responsibility to resolve problems will remain with the provider in conjunction with the local commissioners, as I referred to earlier. However, serious failures in the quality of care must not be allowed to be endure, so Clause 75 makes changes to ensure that, when quality of care at a foundation trust requires significant improvement, Monitor can take timely action to make changes to leadership or governance to secure improvements in those services. It amends Monitor’s powers under Section 111 of the 2012 Act to enable it to impose additional licence conditions on foundation trusts when the Care Quality Commission has issued a warning notice to that trust. At present, Monitor can make use of these powers only if there is a failure in governance. If the foundation trust breaches those additional licence conditions, Monitor will be able to use its powers to suspend or remove directors or governors. The NHS Trust Development Authority already has powers to intervene in NHS trusts or to remove or suspend boards, as appropriate.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 10th June 2013 Lords Chamber

[Lord Warner]

I am grateful to the Minister for his remarks and I take them very seriously. I do not wish to be churlish, but I may be tempted along that path a little way.

Clause 85, as I understand it, is a regulation-making power. It seems to envisage that the Government of the day will from time to time make regulations that relate to very specific groups of staff. I have read the provision carefully, and it could presumably make regulations that exclude particular groups of staff. Somewhere along the way, there is a very real possibility that we will get regulations that cover particular groups of staff in a very specific manner. I am particularly interested in those groups of staff who work at the sub-professional level—the healthcare support staff. As my noble friend Lord Campbell-Savours said, these are very much the people who work across both these settings. At the moment, I cannot see why it will do harm—indeed, it is likely do some good—if we require this regulation-making power to take account of the kinds of issues which foster integration that I and other noble Lords have spoken of. The Minister mentioned the mandate. I know that mandates are extraordinarily fashionable at the moment, but mandates come and mandates go. Regulations tend to have a bit more sticking power than mandates, which might get out of date or move out of fashion.

I think that there is an issue here. I would probably be more reassured if the noble Lord could write to me, and send a copy to other Members who have spoken in this debate, on which groups the Government envisage covering in regulations under Clause 85(2).

[Earl Howe]

I would be happy to write to the noble Lord and other noble Lords on this topic. Perhaps I may add one final comment. If we were to go down the road proposed in this amendment, by providing a cross-reference to Clause 88(1)(h) in Clause 85, it could suggest that consideration of this factor alone takes priority over other factors. We want to avoid the risk of creating any perceived hierarchy in the matters to which Health Education England must have regard in the exercise of its function under Clause 85(1).

[Lord Warner]

I would like to reflect further on this. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Warner]

My Lords, perhaps I may ask the noble Earl a question before he sits down because I am getting increasingly puzzled by this debate. I agree with him that a list does not of itself do very much to protect the public, particularly if it is a list of apples, oranges, bananas, pears, cherries or whatever—and this is a list of people with different qualifications or experiences. However, the whole point about HEE is that it is meant to be a game-changer and to standardise some of the training for particular groups. Is it the Government’s view that the term “healthcare assistant” will start to mean the same in Cornwall as in Cumbria, because HEE has defined the training for those covered by that terminology to be the same wherever the person is trained?

[Earl Howe]

That indeed is the ambition whereby there should be consistency of standards throughout the country and people should know precisely what those standards are. The problem with this sector of the workforce is that the standards have not properly been defined until now—hence the work that Skills for Health and Skills for Care are doing. However, we will see from that work and the work of Camilla Cavendish where the gaps are and where we need to focus our attention. The noble Lord is certainly right to say that once we have these standards in place, Health Education England will be responsible for ensuring that they are properly promulgated and rolled out.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Monday 10th June 2013 Lords Chamber

[Lord Warner]

Perhaps I may respond to my noble friend. I was arguing the case on behalf of the Joint Committee as much as anything else. The committee heard a lot of evidence on this, and across the parties, and across the Commons and the Lords, the conclusions were drawn up in its report to the Government.

I say to my noble friend that most of these clinical trials look at a product which is being tried for a particular purpose. If that product happens to fulfil some other purpose, a different set of issues arises. Seroxat was actually trialled as an anti-depressant, but it failed that test in so far as it was applied in a dangerous way to juveniles. The information about it failing that test was concealed from the public and the regulator. My wording might not be perfect but I am not arguing for my wording. I am trying to get the Government to engage with the issue so that they can find a wording that meets my concerns—and, I suspect, those of my noble friend Lord Turnberg—in the way that the Joint Committee proposed, to engage the HRA in ensuring proper transparency when there are downsides to research. That is in no way stopping a pharmaceutical company from using a drug or trialling a drug for a different set of purposes from that for which it was originally constructed.

[Earl Howe]

My Lords, I say straight away that I sympathise with the intention behind the noble Lords’ amendments. These two amendments seek to make an explicit statement about the Health Research Authority’s role in encouraging transparency in health and social care research findings and clinical trial results.

We are all keenly aware of how topical the issue of transparency in health research is. The House of Commons Science and Technology Select Committee is currently undertaking an inquiry into clinical trials. Last week I gave evidence to that committee along with my right honourable friend the Minister of State for Universities and Science. I look forward with interest to the committee’s report. As the noble Lord, Lord Turnberg, and the noble Baroness, Lady Wheeler, rightly pointed out, maintaining trust in research is crucial to its success, and the way in which we respond to the mounting calls for greater transparency has consequences for how the integrity of research conducted in this country is perceived not just on a national level but on the international stage.

However, in reaching answers to these pressing questions, we must be careful not to create perverse incentives that simply result in people choosing not to carry out research in the UK and invest elsewhere. Promoting transparency in research is a core part of facilitating the conduct of safe, ethical research. People enrol in trials because they want to contribute to medical knowledge and advances. In considering the ethics of research proposals, ethics committees have to be assured that any anticipated risks, burdens or intrusions will be minimised for the people taking part in research and will be justified by the expected benefits for participants, or for science and society. Knowing what research has already been undertaken or is under way and the results of that research is therefore essential in order to minimise risks and burdens by not repeating research that has already been conducted.

Here, I come to the answer to the question asked by the noble Lord, Lord Hunt, in debate on the previous group of amendments. Promoting transparency in research is inextricably part of facilitating the conduct of safe and ethical research, which is the Health Research Authority’s main objective in Clause 97(2)(b). As Dr Wisely, the Health Research Authority chief executive, said in evidence to the Joint Committee which scrutinised the draft Bill, promoting transparency is absolutely fundamental to protecting patients and the public in health research. As a special health authority, the Health Research Authority is already doing a number of things with regard to transparency in research. First, research ethics committees already consider an applicant’s proposals for the registration and publication of research, for dissemination of its findings, including to those who took part, and for making available any data or tissue collected as part of the research.

Secondly, since April 2013, the Health Research Authority has been undertaking checks of research ethics committee applicants’ end-of-study reports to see whether they registered and published research as they declared they would to the ethics committee. Thirdly, as noble Lords may be aware, the Health Research Authority recently published a position statement setting out its plans for promoting transparency in research. This statement has received widespread support from stakeholders, including the AllTrials campaign, the James Lind initiative, the Association of the British Pharmaceutical Industry and INVOLVE.

I turn specifically to Amendment 63, which would specify that one way in which the Health Research Authority, the bodies listed in Clause 98(1)—for example, the Human Tissue Authority—and the devolved Administrations would be able to fulfil their respective duties to co-operate would be through encouraging transparency in the reporting of clinical trials results. The intention behind these duties of co-operation is to encourage co-ordination and standardisation of practice so as to streamline regulation and remove duplication. The aim is that through these duties the people and bodies listed will work collaboratively with the Health Research Authority to create a unified approval process for research applications and to put in place consistent and proportionate standards for compliance and inspection. Streamlining the approval process for research will make initiating research faster for researchers, funders and sponsors, and ultimately enable people who use health and care services to benefit from research more quickly.

Noble Lords will be aware that clinical trials in this country are governed by EU law. The EU Commission’s current proposals for a new clinical trials regulation look likely to enshrine the principle of transparency in the rules governing clinical trials at every stage, including, as the current proposals set out, mandatory publication of clinical trials summaries, not only in their technical form but in a form that ordinary members of the public will understand. We believe that that is the right direction of travel.

Given the focus of these duties on streamlining the regulatory system that the HRA has, I hope that noble Lords understand why it is not necessary to make encouraging transparency in reporting clinical trials a fundamental part of co-ordinating and standardising the regulatory practices of the persons and bodies listed and the devolved authorities. I hope that noble Lords are reassured by the fact that promoting transparency is a core part of the Health Research Authority’s main objective in facilitating safe and ethical research.

The noble Baroness, Lady Wheeler, asked about discussions with the national advisory council on health improvement drugs. Perhaps I may write to her on that topic. I hope she will forgive me for not answering now.

The noble Lord, Lord Campbell-Savours, asked about the patient information leaflet that is now mandatory within packs of medicines. The risks that are set out typically on the patient information leaflets can be derived in several ways: first, from the original clinical trials data—the noble Lord is quite right about that—but also from any data that may have subsequently arisen from the reporting system that exists. Pharmacovigilance legislation, which came into force last year, now enables the Medicines and Health products Regulatory Authority to require pharmaceutical manufacturers to report safety and efficacy data where either concerns arise or where the evidence for a medicine was perhaps less than it might have been in the first instance. So transparency can be promoted in that sense as well. The noble Lord may already be aware that the MHRA regards its pharmacovigilance responsibilities extremely seriously.

--- Later in debate ---

[Earl Howe]

The MHRA, in granting a marketing authorisation to any medicine will have access to all the clinical trial data that the company has at its disposal. That is mandatory. Therefore, if the MHRA decides to issue a licence for a medicine, it will require that the full range of adverse effects is reflected in the patient information leaflet. The answer to the noble Lord’s question is yes, but he will not necessarily see a whole lot of technical data in the patient information leaflet. It will be translated into language that the ordinary patient can understand.

I believe that the Bill as drafted already gives the HRA a clear objective which requires it to take an active role in promoting transparency in research. I hope that I have given enough reassurance on these issues to all noble Lords to enable the proposers of Amendments 58 and 63 not to press them.

[Lord Warner]

My Lords, that was an interesting and rather complicated set of assurances from the noble Earl. I would like to consider it carefully and talk to my noble friend Lord Turnberg and the noble Lord, Lord Patel, before considering whether to go any further.

As an observation, if the EU directives are going in the direction of this amendment and there is a lot of concern to make sure that patients are left in no doubt that a full, frank publication of reports including the adverse consequences of that research is a prime consideration, I still cannot see why we cannot put something—whether my wording or something equivalent to my noble friend's wording—on the face of the Bill. I would like to think about that a little further and I certainly do not promise not to bring this issue back after talking to my noble friends. In the mean time, I beg leave to withdraw the amendment.

Care Bill [HL]

Debate between Lord Warner and Earl Howe

Tuesday 4th June 2013 Lords Chamber

[Earl Howe]

My Lords, Health Education England will have responsibility for the NHS workforce, but not for the social care workforce. We will reach a group of amendments that bear closely on the issue of integration, where I am sure that we can explore the relationship that Health Education England will have with those bodies charged with delivering the social care workforce. The noble Baroness is absolutely right: there needs to be co-ordination and joined-up thinking in those areas. If she will allow, we can wait until we reach that group of amendments before debating the issue further.

[Lord Warner]

Let me assure the noble Baroness that I shall be in good voice on the subject of social care on Amendment 13.

It was helpful to hear what the Minister had to say about advisory committees and advisers. I listened carefully. I did not note anything about those advisory committees or an adviser for what I might call the sub-professional group. I am sure that the professions will be extremely well looked after in HEE, but the groups which we often have the most problem recruiting and ensuring are properly trained are those below the professional level. Can the noble Earl say a little more about those unsung heroes working at the sub-professional level and what kind of advisory capacity HEE might have in that area?

[Earl Howe]

It will certainly be open to the board of HEE to establish an advisory committee that specialises in unregulated professions. Although, again, I cannot make a firm commitment about that, the very fact that we are dealing with a workforce of substantial size on which the NHS crucially depends—I am now talking about healthcare support workers—means that it would be very surprising indeed if the board were not to have some form of specialist advisory service to inform its decisions.

NHS: Leeds General Infirmary

Debate between Lord Warner and Earl Howe

Tuesday 23rd April 2013 Lords Chamber

[Earl Howe]

My Lords, children’s heart surgery has been the subject of concern for more than 15 years. Clinical experts and parent groups have repeatedly called for change, and there is an overwhelming feeling in the NHS that the time for change is long overdue. The review that has taken place was about making sure that children’s heart services are as good as they possibly can be, and that has to be the message to the parents involved. It is of course an extremely complex issue but it is generally accepted that concentrating surgical expertise will deliver better outcomes for the children concerned. In view of the legal proceedings, it is very difficult for me to go any further than that at the moment.

[Lord Warner]

My Lords, if NHS England decides, under its new responsibilities, to undertake and control the specialised commissioning functions within the NHS, and if it chooses to implement the McKay panel’s recommendations on paediatric surgery, can the Minister say whether they would accept that judgment by NHS England or whether they would seek to overturn it?

[Earl Howe]

I take the noble Lord’s question to mean: would the Government accept that decision? Yes. This is a matter for the health service to determine. As I mentioned earlier, the Safe and Sustainable review was an NHS review. The Government and Ministers were not in any way involved in it, and that is appropriate. Therefore, the answer to the noble Lord’s question is that the Government would stand back from any such decision.

Health and Social Care Act

Debate between Lord Warner and Earl Howe

Tuesday 5th March 2013 Lords Chamber

[Earl Howe]

My Lords, it is my intention to issue an invitation to noble Lords to join me in a meeting so that we can discuss these matters. I am very happy to do that over the coming days. The answer to the second question is yes. We read these regulations in conjunction with the Explanatory Memorandum and the line-by-line interpretation that we have also published in this case which make it crystal clear that these regulations do no more and no less than reflect the law and the Government’s policy. However, others have chosen to misinterpret the regulations, and that was something that I could not predict.

[Lord Warner]

The Minister may know that I do not always see totally eye to eye with all my colleagues on these Benches on the subject of competition. Will he say how much discussion there has been with the voluntary sector and social entrepreneurs on these regulations? In my experience they have always struggled to make their presence felt when contracts are available within the NHS.

[Earl Howe]

My Lords, the department consulted on its proposals for these regulations between August and October last year on the basis of the commitments that had previously been given. All sectors had an opportunity to feed in their comments. Our proposals for the regulations did not give rise to any anxieties at that time.

Social Care Funding

Debate between Lord Warner and Earl Howe

Monday 11th February 2013 Lords Chamber

[Earl Howe]

My Lords, I am grateful to my noble friend for her remarks. She is of course quite right; many of us have heard for years the concerns of members of the public, friends and family about what might be the catastrophic burden of care costs in old age. If there is one thing that everyone should welcome, it is that aspect of this announcement. With regard to a rebate, no, that is not in our sights at the moment. If someone were to die in the circumstances posited by my noble friend, the arrangement would have to remain as set out to that person at the outset. We would not expect to move the goalposts after that person had died.

[Lord Warner]

My Lords, I should declare my interest as a member of the Dilnot commission. It would be churlish not to welcome the Government’s acceptance in large part of the Dilnot architecture for reforming the funding of social care for the medium and longer term.

I have a couple of questions for the Minister. As I understood what he was saying, the new capping system is likely to start in 2017-18. I understood him to be saying that a new national threshold for eligibility criteria would start at the same time. That would therefore mean that the present eligibility criteria, interpreted by local authorities, would stay in existence for another four years, so we would have four more years of the tightening of those eligibility criteria.

I remind the Minister of a paragraph in our report that drew attention to the fact that there was strong evidence of a major shortfall in the existing funding of social care that could not be put right by our recommendations, and that if those problems were not resolved on a cross-party basis, they would simply undermine the functioning of our recommendations in the medium to longer term.

[Earl Howe]

My Lords, I hope that I can put the noble Lord’s mind at rest. In doing so, I thank him once again for the work he did on the Dilnot commission. It is our intention that the eligibility criteria will be introduced from April 2015—so, in advance of the Dilnot arrangements. As he well knows, that national minimum eligibility will be set to make access to care more consistent around the country. In addition, carers will have a legal right to an assessment to care for the first time. I take his point about trying to achieve cross-party consensus on social care funding.

As for funding in the existing system, in the last spending review we made, as he knows, an additional £7.2 billion over four years available for care and support. Since then, we have provided local authorities with an additional half a billion pounds. We believe the challenge creates an opportunity for local authorities to innovate and to explore new ways of working better to meet the needs of their local populations and to optimise the use of the resources that they have. Many local authorities are already innovating, and we are committed to supporting them to deliver further service improvements.

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

Debate between Lord Warner and Earl Howe

Tuesday 5th February 2013 Lords Chamber

[Lord Warner]

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

[Earl Howe]

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

Social Care: Funding

Debate between Lord Warner and Earl Howe

Monday 21st January 2013 Lords Chamber

[Lord Warner]

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

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

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

[Lord Warner]

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

[Earl Howe]

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

NHS: South London Healthcare Trust

Debate between Lord Warner and Earl Howe

Tuesday 8th January 2013 Lords Chamber

[Earl Howe]

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

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

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

[Lord Warner]

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

[Earl Howe]

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

Department of Health: Budget

Debate between Lord Warner and Earl Howe

Thursday 6th December 2012 Lords Chamber

[Earl Howe]

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

[Lord Warner]

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

NHS: Hospital Services

Debate between Lord Warner and Earl Howe

Thursday 6th December 2012 Lords Chamber

[Lord Warner]

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

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

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

[Lord Warner]

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

[Earl Howe]

My Lords, I think it is common ground between the noble Lord and the Government that we need to see care delivered more in the community and less in acute settings; that was a policy that his Government espoused. I agree with the noble Lord and with Terence Stephenson that we need to deploy clinical leadership, evidence and insight as a driving force behind service change. Service change is not new; it has happened all the time throughout the NHS’s history. Clinical commissioning groups on the ground will be the driving force for this, but the NHS Commissioning Board will be there in support and the wisdom of the royal colleges will clearly need to be tapped to provide the board with expert clinical advice. Indeed, that is the theme behind the board’s aim to establish clinical networks and senates to help build the clinical evidence for change.

NHS Commissioning Board: Mandate

Debate between Lord Warner and Earl Howe

Tuesday 13th November 2012 Lords Chamber

[Earl Howe]

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

[Lord Warner]

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

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

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

[Earl Howe]

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

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

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

Social Care: Sustainable Funding

Debate between Lord Warner and Earl Howe

Tuesday 17th July 2012 Lords Chamber

[Lord Warner]

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

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

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

[Lord Warner]

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

[Earl Howe]

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

NHS: Private Finance Initiative Costs

Debate between Lord Warner and Earl Howe

Wednesday 11th July 2012 Lords Chamber

[Earl Howe]

My Lords, I am not aware that we are doing that particular thing, although I understand my noble friend’s concern. There are contracts in place which are legally binding. Nevertheless, within the framework of those contracts there is often scope for looking creatively and flexibly at their provisions. We are endeavouring to do this in order to help the trusts work their way through their problems.

[Lord Warner]

My Lords, what role is the Treasury playing in trying to mitigate the effects of some of those PFI contracts, given the part that it played in particular at its official level in agreeing and signing them off under the previous Administration? Indeed, many are still in place in the Treasury today.

[Earl Howe]

My Lords, the Treasury has been very helpful in advising my department on the kinds of flexibility that we may have in these difficult situations. It has also been helpful in refining the current PFI model so that, as and when we use PFI again, we have a tighter structure which strikes a better balance between risk and reward to the private sector.

Care and Support

Debate between Lord Warner and Earl Howe

Wednesday 11th July 2012 Lords Chamber

[Earl Howe]

The noble Lord is quite right; there is huge concern about the sometimes tick-box attitude to domiciliary care, very often resulting in nugatory time spent by care workers with those they look after, which one is tempted to say is hardly worth while in some cases. We are very aware of this. Part of the answer lies in our plans for personal budgets, which should give service users much greater scope to define what they want and what their needs are. The service should then work around those needs and requirements. However, we are also talking about the workforce here.

We are clear that the minimum standards for health support workers and adult social care workers in England that are being developed by Skills for Care and Skills for Health will set a clear national benchmark for the training of support workers and their conduct when delivering care. We expect that the standards produced will inform proposals for a voluntary register for adult social care workers in England, which could be in place by next year. This will allow unregulated workers to demonstrate that they meet a set of minimum standards and are committed to a code of conduct.

All those things combined should move us away from the kind of culture that in some places, although not in all, is degrading the quality of care that is delivered.

[Lord Warner]

My Lords, I congratulate the Minister, and pass these congratulations on to his right honourable friend, on making progress on the Dilnot commission recommendations, as well as on the other measures in the White Paper. I declare my interest as a member of the Dilnot commission.

I also congratulate the Minister and his right honourable friend on extracting his documents from the dead hand of the Treasury. In that connection, I ask him to confirm two things. First, it will, I believe, be impossible to deliver a deferred payment scheme by April 2015 without a clear decision on the cap that will be required to underpin it, and the extended means test. Can he confirm that decisions will have to be taken on these two issues in order for a deferred payment scheme to go ahead?

Secondly, his right honourable friend rightly said that he was in the market for open cross-party discussions on the way forward. Does this mean that the Treasury will participate in these and will not blackball politically contentious proposals that may be found for funding and sustaining the implementation of Dilnot, even where those proposals may recoup some money from the very population groups that are going to benefit from a better adult social care system?

[Earl Howe]

First, I thank the noble Lord for all that he did as a member of the triumvirate of the Dilnot commission. There is no doubt that we owe him and his fellow commissioners an enormous debt. I am grateful to him for his kind remarks about this set of announcements. We propose to introduce deferred payment without the cap necessarily being in place. We believe that that can be done. I understand the direction from which the noble Lord comes, but a system that obliges local authorities to offer deferred payment where certain eligibility criteria—yet to be defined, admittedly—are met is deliverable in the absence of a cap. That is not to say that we do not wish to work hard to define what that cap should be.

On the noble Lord’s second question about the dead hand of the Treasury, I would not characterise my esteemed colleagues in that venerable department as dead hands. However, I acknowledge his central point about affordability. That is why we have felt it necessary to defer final decisions on how the funding of the Dilnot principles will be worked through until the next spending review. That inevitably means that my colleagues in the Treasury will have a direct interest in the result; it would be strange were it otherwise. Nevertheless, that does not preclude creative and constructive discussions between our two parties.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 19th March 2012 Lords Chamber

[Lord Warner]

I am sorry to interrupt the noble Earl. I waited patiently until he had been through the research arguments but I am still not clear. He said earlier that Public Health England would be master of its own destiny in terms of research. The point that I and, I think, my noble friend Lord Turnberg were making was that, if it comes to a tussle between PHE and the National Institute for Health Research over doing research which PHE considers to be in the public interest but there is no academic partner to undertake that research, will PHE’s mastery of its own research destiny trump the attempt by the National Institute for Health Research to impose partnership working on the research agenda? That is the issue that I was trying to talk about and which I think my noble friend was also talking about.

[Earl Howe]

My Lords, although I understand the noble Lord’s question, I do not think that I can answer it at the moment, and I am sorry to disappoint him. My advice is that we do not think that partnerships will be necessary in all or every case for Public Health England. Whether the NIHR can insist on trumping the operational independence of Public Health England is not a question that I can answer very readily. The main point is that research would not have to be jointly conducted. The Secretary of State has the power to carry it out on his own. That means that, if there were a tussle between two priorities, the Secretary of State could insist that a certain programme should be prioritised. I think that that is probably as far as I can go in answering the noble Lord at the moment.

My noble friend Lady Jolly asked me some general questions about lines of accountability. I hope that she will have gathered from my remarks today that Public Health England will be accountable directly to the Secretary of State in the first instance. Directors of public health will be joint appointments between local authorities and the Secretary of State, although they will be local authority employees and directly accountable to the authority chief executive. It goes without saying that close joint working between PHE and local authorities will be crucial.

My noble friend’s amendment and the powerful way that she has argued for its objectives are a tribute to her and to the noble Lords who have supported her. I believe that I have responded positively to each point that the amendment seeks to establish and that that response can be made comprehensively without amending the Bill. That remains our strong preference. I hope very much that my noble friend is sufficiently reassured by the commitments that I have made today to withdraw her amendment.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Tuesday 6th March 2012 Lords Chamber

[Earl Howe]

The noble Baroness may not have been following all our debates as closely as some, given that we have extensively debated integrating health and social care and how the Bill will improve the prospects of that. I therefore do not agree that social care is such a poor relation in the Bill. She is quite right; of course its prime focus is health, but we have not completely neglected the subject that is so close to her heart.

Specific legislation on social care will be the most appropriate vehicle for debating these critical matters and achieving lasting reform. Of course I understand the desire of the noble Lord, Lord Warner, to keep social care at the top of the political agenda. That is greatly to his credit. I can assure him that the Government have not lost sight of this. We share the same aims for a high-quality service, but it would be wrong to legislate now in such a selective way. The noble Lord may suppose that this is just another instance of a Minister following the standard line that says “resist”, but I hope he will accept that that is not so. There are genuine reasons why the amendment is a bad idea, and I hope that he will feel able to withdraw it.

Having said that, I look forward to debating these issues with him further in due course, and to benefiting from the insight that he and others bring to this topic.

[Lord Warner]

My Lords, this is an interesting debate. Let me say to the noble Baroness, Lady Murphy, that I am not having the House on. I am deadly serious about this because when the Dilnot commission was set up we were asked to do a job extremely rapidly, and we did so well within the 12 months we were set. We were asked to do that so that the Government could crack on with change, which is absolutely vital. This service—adult social care—is in a parlous state that will also do enormous damage to the NHS. Unless you do something quickly about adult social care, you will cause the most terrible financial crisis in the NHS. That is what the demography tells us. That is the reality for urgent admissions to acute hospitals and people staying there much longer than they need to.

If you are interested in improving and safeguarding the NHS, you should be interested in rapidly moving on with the reform of adult social care. The Government are already behind time on this reform. I do not blame the noble Earl, but we were expecting faster action, as was the Dilnot commission. Spring could come quite late this year in terms of the White Paper appearing, and we have no guarantee that there will be legislation in the next Session. The noble Earl has stuck to the normal line, for which I do not criticise him, that one can give no assurances about the next Session’s legislation, but one has to be an extreme optimist to believe that a collective Government will want to have another go at this territory in the next parliamentary Session. I do not doubt his good will—I am grateful for the kind words he said about me—nor his real confidence that the Government will press on with that, but there are a lot of people out there, not just in front of Parliament today, who think that the Government need to go faster on this issue.

I have listened very carefully. The amendment does not prevent the Government from bringing forward new legislation in the next Session. If they want to do that, I shall be deeply delighted and they will have my support. I see nothing in the amendment that prevents the Government from making a start on making changes and protects them to go further if they want to include such provision in the next legislative programme.

I think we should make sure that adult social care is properly represented and recognised in the Bill. Therefore, I wish to test the opinion of the House.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 27th February 2012 Lords Chamber

[Earl Howe]

It is a very interesting question from the noble Lord. When I visited Oldham a few weeks ago, I saw for myself how they were getting around that problem in the context of musculoskeletal services. Instead of patients being shunted from pillar to post, they had a system whereby the patient could move seamlessly and immediately from one specialist to another. They did not have to be referred; they could ring up the centre and ask to see a particular person. That is the kind of integrated model that we need to see rolled out more generally in other services. I recognise the issue that the noble Lord raises, but it is one that we are seeing inventive solutions arising to address. I hope that the work being done will do that.

[Lord Warner]

My Lords, there have been some extremely powerful speeches of support for this amendment for which I am extremely grateful. I am grateful in particular to my co-signatories and I noted the powerful speeches of the noble Lords, Lord Owen and Lord Sutherland, and the noble Baroness, Lady Young. They have made the case for an amendment of this kind to the Bill.

I was disappointed by the Minister’s response. That was not just because I got only a B- for my definition—I expected to have my homework marked by officials in the Department of Health and was not expecting to get a high score—but because I think that the definition meets the needs that we have. I find it very difficult to see how the Minister can stand up and say, “Well, we’re going hold people to account; we’re going to monitor their performance”, if we do not have a definition against which we are going to monitor their performance.

The definition proposed by the amendment moves us away from a preoccupation with integration as organisation and process change to delivery of services to the individual. I do not see how the Minister can say, “We’re concerned about outcomes for individuals”, if we do not integrate delivery. You are highly unlikely, I would say as a jobbing ex-public sector manager, to get good outcomes if you have not orchestrated the delivery of the services to the individual that meets their needs.

[Earl Howe]

I would not want the noble Lord to believe that I was dismissive of the point that he has just made. I recognise that it is important that we somehow give the meaning of integration a clearer explanation, whether that is through the guidance issued by the board or, indeed, the Explanatory Notes to the Bill. I am just wary of putting something in the Bill. That is all.

[Lord Warner]

I guess I am more of a risk taker than the noble Earl and I believe that we could put a definition of this kind in the Bill. It would cause no confusion—indeed, it would remove it—in the minds of many people working day in, day out in the NHS. As to those who have asked, “What is the purpose of some of the other changes?”, the noble Lord, Lord Owen, powerfully made the point that we need to give strong signals to these new players in the game. We want them to start off knowing that they will be held to account in their annual reports for monitoring their progress on integration. We want that: it is deliberate. We want them to know that Parliament put that in the Bill for a purpose. I am not satisfied with the Government’s response and I beg leave to test the opinion of the House.

--- Later in debate ---

[Earl Howe]

My Lords, we have had several lively debates on the importance of redesigning services if the NHS is to become more personalised and productive, and the noble Lord, Lord Warner, speaks with great insight and passion on this issue. He has tabled further amendments on this topic, which we will have an opportunity to debate in detail at a later stage.

The Government are clear that, as a basic principle, the reconfiguration of services is a matter for the local NHS and that decisions about service change should be driven by local assessment of need. The reconfiguration of services works best when there is a partnership approach between the NHS, local government and the public. What matters is that strategic decisions are taken at the right level. We believe that our reforms will enable commissioners to make the changes that will deliver real improvements in outcomes for patients and the public. The Bill places clear duties on the Commissioning Board and clinical commissioning groups, which will underpin a locally driven approach to service redesign, clinically based and framed around the needs of patients. That includes duties to promote the NHS constitution and the involvement of patients as well as duties to secure continuous improvement in the quality of services and to reduce inequalities. These duties set important guiding principles against which the commissioning system will develop and oversee service redesign and reconfiguration. In addition, the NHS will continue to assure reconfiguration proposals against the four clear tests set by the Secretary of State, which are that proposals should have support from clinical commissioners; should be based on robust patient and public engagement; should be underpinned by a clear evidence base; and should be consistent with current and prospective plans for patient choice. The Bill and the four tests will ensure that any proposals for service change are based on a thorough assessment of local need, underpinned by clinical insight and developed through dialogue between commissioners, providers, local authorities, patients and the public. Of course, the board will have an important role in providing support and assurance to local commissioners, but we will not be replicating layers of top-down management.

With the clear legal duties set out in the Bill, the four tests and the support and assurance that will be available, there should be no need for the Secretary of State to prescribe through the mandate how the commissioning system should prioritise and determine the design of services. To do so would cut right across the clinically led local commissioning, which is at the heart of the Bill. Nevertheless, I recognise the importance of getting these arrangements right, and between now and Third Reading I commit to working with the noble Lord with a view to finding a formula designed to address the concerns that he has articulated. We are looking at a range of options. I hope to be able to say more about this when we reach his later amendment on the subject. I hope that for now he will find this rather broad assurance sufficiently strong to enable him to withdraw that part of the amendment.

I hope that the noble Lord will be able to withdraw the rest of Amendment 42 as well, because it also raises another issue. It is vital, especially in the current economic climate, for the NHS to provide financial support for adult social services where possible in relation to those services at the interface between health and social care. Here, I pay tribute to the noble Lord, Lord Warner, who has been a tireless advocate of social care at numerous stages of our proceedings, to ensure that this element of the equation—and that part of the Bill’s title—is not overlooked.

The noble Baroness, Lady Murphy, has tabled Amendment 148B with a similar aim in mind. We are all, I think, aware of the impact that such services can have in helping people to live independently in their own homes and in reducing unnecessary hospital admissions—which is, of course, better for the individuals involved and relieves pressures on the NHS. The last spending review included a commitment to provide £648 million in 2011-12, rising to £700 million by 2014-15, for these purposes. Early indications are that this funding has helped to promote integrated working between social care and health commissioners. We want this to continue. I can reassure the noble Lord and the noble Baroness that by virtue of paragraph 130 of Schedule 4 to the Bill the NHS Commissioning Board and CCGs will inherit the powers that primary care trusts currently have under existing legislation to make payments to local authorities towards expenditure on community services.

Generally speaking, our approach in this Bill has been to give NHS commissioners maximum autonomy in how the NHS budget is used. However, I have sympathy for the argument that it is legitimate that the Secretary of State should be able to determine the proportion of NHS funding that is to be transferred to local authority community services in order to secure closer working between the NHS and social services. I am not sure that the mandate is the right vehicle for this. However, I can see very considerable merit in the approach that the noble Baroness has taken with Amendment 148B. This amendment would give the Secretary of State additional powers to direct the board on the minimum amount that it should transfer to local authorities in a given financial year. The Secretary of State would be able to specify in the directions the bodies to which those payments should be made, the amount that should be paid to each body and the functions in respect of which the payments must be made, and to amend these instructions if necessary. It would essentially enable the current arrangements to continue.

The noble Lord, Lord Warner, asked whether the amendment was wide enough to cover adult social care; whether it was within vires; and whether the Treasury is content. The answer to all those questions is yes. Indeed, I am advised that the amendment would enable funding to be transferred to other community services, such as housing, if necessary.

The approach taken is in line with current practice, which is approved by and agreed with the Treasury. Importantly, this would represent only a minimum. The board would retain the power to make additional payments over and above those required by the Secretary of State if it chose. The CCGs would also retain their powers to make such payments. Although I think it makes sense for it to be the NHS Commissioning Board that makes these payments, it would also be vital that there is a dialogue between local authorities and clinical commissioning groups as to how the funding could be best used. Of course, both will be involved, as members of health and well-being boards, in setting the strategic framework for health and social care commissioning through the joint health and well-being strategy. In addition, the existing powers in Section 256 for the Secretary of State to give directions on the conditions that should apply to such payments would apply. This is helpful because it would provide a mechanism for ensuring that the agreement of the health and well-being board is obtained as to how funds are spent.

The noble Lord, Lord Warner, has spoken with great conviction about the Bill’s importance, including the tangible duties to act to ensure that integration moves from being just an aim to being a reality—as, indeed, the Future Forum has emphasised that it must. I think that Amendment 148B meets all the criteria to ensure that that will be the case. I shall therefore be happy to support it if the noble Baroness should decide to move it. I hope that my noble friends will join me in supporting the amendment; I would urge them to do so. Given that commitment, I hope that the noble Lord, Lord Warner, will be prepared to withdraw Amendment 42.

[Lord Warner]

My Lords, I am grateful to the Minister for his explanations and reassurances. I certainly think that Amendment 148B is a better amendment than my provision on social care in Amendment 42. I am very happy also to accept his broad assurances that we will have a discussion and dialogue to see whether we can move forward on, in effect, a version of a pre-failure regime, while recognising the Government’s commitment to local decision-making on redesigning and reconfiguring services. On that basis, I am happy to withdraw the amendment.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Wednesday 21st December 2011 Lords Chamber

[Lord Warner]

I was the Minister of State responsible for competition policy in the NHS in 2006, when this legal advice was sought by me and, I think, by Patricia Hewitt as the Secretary of State. As I recall, it was at the point when we were considering the whole issue of regulation reform and Monitor becoming an economic regulator. For my part—I cannot speak for Patricia Hewitt—I would be only too happy for that information to be made available to the noble Lord, Lord Owen. If, in a sense, I am the client, I waive my client’s responsibilities in this area, and I am very happy for that information to be shared.

[Earl Howe]

I note the noble Lord’s liberality of spirit in this Christmas season. The problem is that it is not up to him, or indeed me as an individual, to cut across the practice which has been laid down across government. However, I have undertaken to look further into this question and I shall indeed do so.

--- Later in debate ---

[Lord Warner]

In the spirit of Christmas, I make myself available to attend the Permanent Secretary’s office. I hope that the coffee in the Department of Health is a bit better than it was when I was there. I would like to take up that offer, which is a very good and constructive suggestion by my noble friend. I hereby deliver the request to the Minister.

[Earl Howe]

I shall be glad to attend to the noble Lord’s request.

--- Later in debate ---

[Earl Howe]

I am grateful to my noble friend. I cannot predict what the collective view of the Government would be in a situation in which the decision on appeal went against my department. We have not reached that stage yet but it is potentially the case that the Government as a whole would wish to pursue the matter further in that eventuality.

Perhaps I should now revert to the amendments before us, beginning with Amendment 346. The noble Lord, Lord Warner, is absolutely correct: information standards are important. However, we need to remember, too, that standards have to be appropriate. There can be burdens associated with them as well as benefits. There are a number of different types of information standard that could help to support the health and social care system—for example, standards to ensure the comparability of data or information governance standards to protect patient information. We intend to consider the detail of which standards we would require following the publication of the information strategy. As a result, we think that it is better to create an enabling provision that does not tie the Secretary of State or the Commissioning Board to an obligation to prepare a standard, and gives us an opportunity to consider where we can adopt standards that already exist.

The amendment also seeks to remove the authority for the Secretary of State or the Commissioning Board to prepare an information standard. This means that the Secretary of State or Commissioning Board would have the power to adopt only an information standard designed or prepared by another body. However, in some cases they may need to design a new information standard themselves, rather than rely on one prepared by another organisation. We believe that the Secretary of State and the NHS Commissioning Board would be best placed to develop or commission an information standard if, for example, it became apparent that one had not been prepared by another body or needed to be modified to be appropriate.

Turning to Amendment 347, I should like to reassure the noble Lord that, under the current drafting of the Bill, the collection and dissemination of information would also be subject to information standards. This is because the “processing” of information, as the term is used in this clause, has the same meaning as in the Data Protection Act 1998, which includes collecting and disseminating information. Therefore, the additional wording is unnecessary.

I am sympathetic to the sentiment in Amendment 347A. There are many intended benefits to using information standards, which include those highlighted in the amendment. However, prescribing the anticipated benefits or beneficiaries of the policy in the Bill is not necessary. In fact, it could prevent the development of information standards that do not fit into those categories. I hope that those comments will reassure the noble Lord.

The noble Lord, Lord Warner, asked me why we put so much about information standards in this part of the Bill, compared to what we put in the Bill about accounting standards. Our view is that it is essential that information standards are set at a national level to allow different systems to talk to each other. That is an approach that the noble Lord shares. With accounting standards, the arguments are slightly different. I do not agree that it is appropriate to put accounting standards on the face of the Bill. We need to ensure that the management information collected by local organisations is of use to those organisations; that is, the organisations have the flexibility to determine their management information needs. However, I will write to the noble Lord on this matter before Christmas, and no doubt he and I can have a further conversation about it. I look forward to that.

On Amendment 347B in the name of the noble Lord, Lord Low, we agree that it is vital that people receive information in an appropriate format. This point was clearly made in the responses to our consultation on an information revolution. For example, the RNIB, of which the noble Lord is vice-president, highlighted the importance for health professionals to be made aware of, and respond to, people’s need for information in alternative formats.

We fully recognise the need for people’s communication and information requirements to be recorded—for example, in their care records—and for that information to be shared with professionals along care pathways. I reassure the noble Lord that the department is currently working with stakeholders on the best way to achieve this, which could be through an information standard or through other mechanisms. Further detail will be included in the information strategy, which we plan to publish in April next year.

I realise that I have not covered Amendment 348 in the name of the noble Lord, Lord Warner. This amendment would require the information centre to arrange for and publish an independent audit of its processes every three years. I completely accept that effective oversight and scrutiny of our arm’s-length bodies is important so that the department and the public can be assured that they are performing their functions effectively and are providing value for money. However, we do not believe that this amendment is necessary. I shall briefly explain why. First, as a department, we plan to undertake formal performance and capability reviews of each of our arm’s-length bodies at least every three years, including the re-established information centre. This would consist of reviewing its performance, financial controls and internal governance, and what one might term its “organisational health”, including the centre’s relationships with its key partners in the system.

In addition, the information centre, as a non-departmental public body, would be required to establish an audit committee that would provide independent and objective oversight and assurance of the centre’s systems of internal control, including risk and financial processes. The Bill also requires the information centre to prepare annual accounts each financial year. These would be examined and certified by the Comptroller and Auditor-General and laid before Parliament.

Finally, the Bill makes provision for the re-established information centre to be subject to the Parliamentary Commissioner Act 1967. This means that the Parliamentary and Health Service Ombudsman would be able to investigate complaints that the information centre had not acted properly or fairly or had provided a poor service in the exercise of its functions. With those assurances, I hope that the noble Lord, Lord Warner, will feel able to withdraw the amendment.

[Lord Warner]

My Lords, I am grateful to the Minister for his full reply to my amendments. I will certainly study it very carefully. I think that he and I probably differ on the issue of information standards and accounting standards. I still think that there is an issue in that area given how significant it is for the NHS. Therefore, I will probably return to it.

Before I sit down, I should also mention that in recent days the King’s Fund has produced a report on the very serious situation in London, which is extremely relevant to the consideration of the risk register as it shows that more than 50 per cent of the NHS’s historic deficit is held in London. London is in serious financial difficulty as regards converting many of its trusts, if any, to foundation trust status. The Minister might like to look at that report when considering this whole issue of access to the risk register. In the spirit of Christmas, I say to the noble Earl and to the noble Lord, Lord Low, that I recently bought a case of Chapoutier wine, the labels of which are also printed in Braille. Therefore, I say to the noble Lord that if a French winemaker can do that, the Department of Health ought to be able to do it. I beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 19th December 2011 Lords Chamber

[Earl Howe]

The noble Baroness is quite right and no legislation can provide for that culture change, as she will appreciate. At the same time, we can put in some important building blocks to encourage a change of culture. One is to have maximum clinical input into how the quality standards are framed and formed and, indeed, input from patient representative groups. It is very important to see things from their perspective. We can create duties, as we have in the Bill.

The work that my department has done on accelerating the uptake of innovation is relevant here. The NICE implementation collaborative—the NIC—that was part of our announcement about the growth agenda some days ago is designed to bring together the relevant stakeholder groups to see how the uptake of innovation can be accelerated and how people can be made to look at working practices in rather a different way so that cultures shift. However, it is easy for me to stand here and say that; it is less easy to drive this forward. I would not pretend that the Government are necessarily in the best place to do that, although we are clear that this shift in approach, which largely underlines the QIPP agenda as well, has to take place. However, it will take a little time.

[Lord Warner]

My Lords, the total purpose of my Amendment 342 was to inject some momentum into the process of delivering these quality standards. I am much reassured by what the noble Earl has said. I think my noble friend’s point about directions for the national Commissioning Board is important. It can be misleading. I hope that the revelations of the noble Lord, Lord Owen, about the chairman of NICE’s past associations will do no damage to his reputation. I beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Tuesday 13th December 2011 Lords Chamber

[Lord Warner]

I want to briefly respond to what the noble Earl said about Amendment 266, particularly in the light of the points that the noble Baroness, Lady Murphy, made about a good deal of anti-competitive behaviour being already quite well entrenched in the NHS. Simply waiting longer to get it even more entrenched before Monitor has a go at the issue of the barriers for new entrants to the NHS market simply gives the signal to the NHS that it can go on as it has been going on. It seems to me that it is important to give a signal that there is a new show in town and that the issue of the barriers to entry, particularly in the light of the report by the Co-operation and Competition Panel, are going to be addressed. I am not sure that waiting longer for the new systems to settle down is going to be in the best interest of the NHS or Monitor and I wonder if he might think a bit more about this and perhaps we could have a further discussion.

[Earl Howe]

My Lords, the noble Lord makes a telling point. I took on board entirely what the noble Baroness, Lady Murphy, said in her contribution. I will of course reflect further in the light of what the noble Lord has just said.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Wednesday 7th December 2011 Lords Chamber

[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.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 5th December 2011 Lords Chamber

[Lord Warner]

I am sorry to interrupt, but I am really bemused by what the noble Earl has just said about the accountability of the local entity of the national Commissioning Board to health and well-being boards. Health and well-being boards have no budgetary responsibility whatever, as I understand what the Government are saying; whereas the national Commissioning Board has two lots of budgetary responsibility—for its own specialist commissioning and for its oversight of the money that it hands out to clinical commissioning groups. Perhaps the Minister can explain it to me. I can understand that it might want to consult the health and well-being boards but, in terms of accountability, I cannot understand how it can be accountable for its budgetary priorities and decisions to the health and well-being boards.

[Earl Howe]

It is accountable for its decisions at a regional or sub-national level in a real sense. If it was not interacting with the boards, the noble Lord, Lord Hunt, might have a point; but it will be. I think that that is accountability in a meaningful sense. The noble Lord, Lord Warner, talks about budgetary accountability, and I understand that that is a real issue. Of course there will be no budgetary accountability, but there will be accountability for the decisions and actions taken by the field forces.

I was saying that the structure means that all too often neither of the roles that PCTs perform is performed well. GPs, who actually make the clinical decisions, are not properly involved in PCT commissioning; and PCTs do not have the detailed understanding of their communities or the link to other local public services. The result is an unsatisfactory compromise, with commissioning that fails to deliver improvements in health outcomes and local services that are fragmented and not integrated.

It has been suggested by some noble Lords that one could have kept PCTs and parachuted in a whole lot of doctors, perhaps filtering out some of the administrators. Anyone who has visited any pathfinder CCG and put that question to the doctors and other clinicians involved will know the answers to why that would not have been a valid and sensible idea. The way in which services are commissioned has to depend on the judgment of clinicians and the wisdom of establishing geographic areas for commissioning groups that make sense in terms of patient flows and in terms of links with local authorities, social services and public health. It does not make sense to retain structures that, frankly, are administrative constructs that do not necessarily bear any relation to patient flows or relationships with local authorities. These clinical commissioning groups are being created from the bottom up by those who know what is in the best interests of patients, and it is to patients that we must always return in our thinking. We currently spend £3.6 billion a year on the commissioning costs of PCTs. PCT and SHA management costs have increased by £1 billion since 2002-03. That is a rise of over 120 per cent. We cannot make savings on the scale that we need to while retaining the administrative superstructure of the NHS.

The noble Lord, Lord Hunt, suggested that the pathfinder CCGs were being built on nothing at all. They are not being created from nowhere. They are building on, and are indeed a logical development of, practice-based commissioning groups, of which there were a very significant number. There are currently 266 pathfinder clinical commissioning groups covering 95 per cent of GP practices in England. As I have indicated before, I cannot say how many we will eventually end up with, but that will give noble Lords a rough indication of the order of magnitude.

The noble Lord, Lord Rea, quoted some words of mine from a debate of several years ago. I would simply say to him that I was speaking then of something completely different from the Government’s current proposals, and I am grateful to the noble Baroness, Lady Murphy, for pointing that out. These reforms place leadership of commissioning firmly with clinicians. I completely agree that giving leadership to a non-statutory, private-sector firm would be a bad idea. That is why there are very clear safeguards against this happening. With PCTs, I feel that there was a genuine question over where commissioning leadership really lay, and this is very firmly no longer the case.

On Amendment 236A, I must clarify one point. It is not the case that a clause stand part debate on Clause 30 would be consequential if a Division was to be called on Amendment 236A and won. It would simply amend this clause and not entail that it needs to be removed.

I hope that I have sufficiently covered the issues raised by noble Lords. I do not suppose that I have satisfied everyone, but I hope that I have at least indicated the direction of government policy in a coherent way.

--- Later in debate ---

[Lord Warner]

Could the Minister give us an assurance that before Report he will give us some idea of the extent to which the current arrangements are going to meet the targets set by the Government for delivering the Nicholson challenge for this coming year, so that we can see the extent to which the Government are at risk if they abolish the SHAs from April 2013?

[Earl Howe]

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 5th December 2011 Lords Chamber

[Earl Howe]

I would be happy to write to the noble Baroness in the interests of time, but I was about to explain that as regards primary medical services the direction-making powers that I mentioned will also enable the board to arrange for clinical commissioning groups to carry out some contract monitoring functions and limited commissioning functions on its behalf should it so wish. So the board can enlist the help of the clinical commissioning groups themselves to do some of the monitoring function. That will not alter the board’s overarching responsibility for commissioning general practitioner services and holding their contracts. But I will write to the noble Baroness, as she asks.

[Lord Warner]

Can the Minister explain something to us, if necessary in writing in order not to detain the House? I am very confused about what happens in areas where historically there have been great problems with health inequalities in securing a volume of primary medical services to meet the needs of those communities. I am very unclear who we are expecting to ensure that there is a sufficient volume of primary medical services and what the relative roles of the Commissioning Board, the CCGs and the health and well-being boards are in that context. It is a longstanding problem for the NHS. I do not expect the Minister to answer now, but it would be helpful to have some thoughts in a letter on that issue.

[Earl Howe]

I undertake to write to noble Lords about that, and I agree that it is an important matter.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Wednesday 30th November 2011 Lords Chamber

[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.

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[Earl Howe]

No my Lords, I am not aware of the specific circumstances that my noble friend refers to and of course I will find out and give him greater chapter and verse if I can.

[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

Debate between Lord Warner and Earl Howe

Wednesday 30th November 2011 Lords Chamber

[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

Debate between Lord Warner and Earl Howe

Monday 28th November 2011 Lords Chamber

[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.

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[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

Debate between Lord Warner and Earl Howe

Monday 28th November 2011 Lords Chamber

[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.

NHS: Waiting Times

Debate between Lord Warner and Earl Howe

Tuesday 22nd November 2011 Lords Chamber

[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.

[Lord Warner]

My Lords—

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[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

Debate between Lord Warner and Earl Howe

Tuesday 22nd November 2011 Lords Chamber

[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.

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[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.

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[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.

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[Earl Howe]

I understand the noble Baroness’s point. Clearly, we want to see maximum accountability for public money. Does the noble Lord wish to intervene?

[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.

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[Earl Howe]

The noble Baroness, with her passion for this important area of care, makes an extremely important point. I will take that point away and see what more I can tell her about the work that is going on in that area.

[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.

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[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

Debate between Lord Warner and Earl Howe

Tuesday 22nd November 2011 Lords Chamber

[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.

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[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.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Wednesday 16th November 2011 Lords Chamber

[Earl Howe]

They will be held in the first instance by the NHS Commissioning Board. I anticipate that if a CCG or a group of CCGs wishes to establish a new service that involves a new building, a dialogue will take place with the board to bid for the necessary funds.

The noble Baroness, Lady Armstrong, put a very important question to me about the needs of the homeless. As I have indicated, CCGs will have responsibility for meeting the reasonable secondary care needs of the homeless. CCGs are responsible for unregistered patients in their area as well as those who are usually resident. Primary care for the homeless will be, as now, accessed through GP practices, either as registered or temporary patients, or through open-access GP services, such as GP-led health centres or bespoke services for the homeless. It is important that the needs of the homeless are factored in to the plans not only of CCGs but of the joint health and well-being strategies formed at local authority level. Clinical commissioning groups will participate in formulating them.

Just to clarify the point I made to my noble friend Lord Greaves, I perhaps should have made it clear that the Commissioning Board could in practice allocate capital budgets to a CCG or a group of CCGs. I hope that was implicit in what I said. I re-emphasise that clinical commissioning will deliver better outcomes only if we allow clinicians the autonomy to identify the needs of their patients and communities and to make the key decisions about how best to meet those needs. With that in mind, I hope I have provided sufficient reassurance to the noble Lord for him to withdraw his amendment.

[Lord Warner]

Can the noble Earl help me, before we get to Report stage, on the issue of the integration of services? He used the same argument he used previously, which is essentially that integration is a process and what we should be concerned with in the future is the outcomes framework. The problem for those of us who want to see something more on integration in the Bill is that we cannot quite see how we can change the culture on integration without having something in the Bill. Outcomes frameworks deliver results later on in the process. We see in the future what has happened. The difficulty many of us have is that we do not believe that that future will arrive unless we are more vigorous in this legislation about specifying some requirements on integration. Will the Minister write to a number of us before Report stage to explain how the outcomes framework will deliver that change of culture without words in the Bill about integration, particularly integration between health and social care? I do not expect an answer today, but I would like a clearer answer than the noble Earl has been able to give to satisfy us that we do not need some words in the Bill.

[Earl Howe]

I understand the point the noble Lord is making and I will be happy to write to him and other members of the Committee. The Bill already provides a framework of powers and duties which will support more integrated approaches to meeting patients’ health and social care needs, ranging from requirements to ensure that use is made of research in the health service to the close relationship between commissioners and the local authority and the health and well-being board. We ought not to forget that the NHS Commissioning Board guidance under new Section 14Z(6) could well cover the exercise of this function of integration. I accept the noble Lord’s point that in large measure it is a matter of changing cultures and one cannot achieve that through the written word in a Bill that goes through Parliament. However, I would be happy to put some flesh on the bones for noble Lords in writing and I hope that that will be helpful.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 14th November 2011 Lords Chamber

[Lord Warner]

My Lords, I rise to speak on this amendment, mainly because of my puzzlement over why the Government want to give the national Commissioning Board a concurrent duty with the Secretary of State under new Section 1(1), given all the other provisions in the Bill which try to shape—if I may put it that way—the relationship of the Secretary of State with the national Commissioning Board. This is especially the case with Clause 20, the mandation clause. One interpretation of this concurrency is that the Secretary of State can pick and choose how he interprets his responsibility.

My noble friend Lord Hunt has mentioned, as delicately as he could, what has happened in the Home Office recently about the sometimes rather strange boundary between policy responsibility and management responsibility and the confusions that could arise. This is not the first time that the Home Office has got into this kind of territory. Your Lordships will remember the difficulties that Michael Howard, when he was Home Secretary, had with the chief executive of the Prison Service, Derek Lewis. It boiled down to this problem of uncertainty about where the remit of Ministers ended and where responsibility began, in this case with the Prison Service, an executive agency. Equally, though, I suggest it could have been a non-departmental public body.

There is a lot of history in this area where one should be extremely wary about passing legislation in particularly high-profile areas and giving concurrency of responsibility to a Secretary of State and to a powerful arm’s-length body, in this case a non-departmental public body, the national Commissioning Board. It is fraught with difficulties. I thought that the Government were trying to clarify this with Clause 20. I think the clause has been misunderstood a little bit by the new chairman of the national Commissioning Board, but the wording as it stands gives the Secretary of State the right, before the beginning of each financial year, to set out a mandate for the board.

There are a lot of safeguards in Clause 20, on both sides of that discussion and agreement. The national Commissioning Board has a lot of safeguards. The Secretary of State cannot keep coming back and adding bits and pieces as the year progresses. The Secretary of State also has quite a lot of safeguards. He or she can expect the national Commissioning Board to stick to what has been agreed in that mandate. There is no doubt about the Secretary of State’s ability to give instruction to the board and there is no doubt about his ability to change those instructions on an annual basis after proper discussion and consultation. That is very clear. One of the strengths of Clause 20 is that it does make the relationship clear between the Secretary of State and the national Commissioning Board.

I have tabled an amendment that tries to restrict the number of requirements that the Secretary of State can place on the national Commissioning Board. I can well remember the time when the noble Lord, Lord Mawhinney, was a Minister with responsibilities for health, along with his colleague the noble Baroness, Lady Bottomley, who is not now in her place. We had somewhere in excess of 50 priorities in the NHS that we were required to deliver each year. In practice, we had no priorities, because no one could hold 50 priorities in their head, so there is an issue about how far you go on mandation. Nevertheless, the structure of Clause 20 clearly states what that relationship is, on an annual basis, between the Secretary of State and the national Commissioning Board.

We would do well to stick with that kind of relationship rather than muddy the waters with a concurrency of responsibility. I will be interested to hear what the Minister has to say on this issue.

[Earl Howe]

My Lords, as has been pointed out, this amendment returns us to the topic of the comprehensive health service. We have had a wide-ranging debate on that issue. I appreciate the concerns held by some noble Lords about the extent to which the Secretary of State will be genuinely accountable for the health service under the new arrangements introduced by the Bill. I have outlined the reasons why I believe accountability will be maintained and how accountability to Parliament and the public will be increased by our proposals. We have indicated our intention to look further at what could be done to put the Secretary of State’s ultimate accountability for the health service beyond doubt. We will do that.

However, it is a core principle of our reforms that politicians should step back from day-to-day interference in the NHS to allow clinicians to take the lead in developing services that are built around the needs of patients. That would simply not be possible if the Secretary of State retained broad powers of direction over the NHS Commissioning Board. As I have previously described, the role of the Secretary of State in future should be to set the legislative and regulatory framework; to set the strategic direction for the NHS through the mandate, as the noble Lord, Lord Warner, has rightly reminded us; and to hold the national bodies in the system to account for fulfilling their responsibilities effectively.

I also understand the argument that the Secretary of State alone should be responsible for promoting a comprehensive health service. However, I believe that there are strong arguments that, in the interests of accountability, the NHS Commissioning Board should share this duty as far as it relates to NHS services. The NHS Commissioning Board will be the body responsible for ensuring that there is a comprehensive coverage of clinical commissioning groups covering every area of the country. It will be responsible for authorising and assessing clinical commissioning groups, providing support and guidance to them, and intervening if they run into difficulties. It falls to the NHS Commissioning Board to ensure that the continuity and quality of service provision is maintained at all times.

I am afraid that the arguments of the noble Lord, Lord Hunt, expose a clear fault line between the Government and the Opposition. We believe it is important that the board should be under the same obligation as the Secretary of State to promote a comprehensive health service in so far as this relates to the health services that the board and clinical commissioning groups will be responsible for. Let me be clear: the Bill’s provisions would in no way dilute the Secretary of State’s overarching duty. Indeed, they are intended further to reinforce the promotion of a comprehensive health service rather than to undermine it. With the general desire of noble Lords to strengthen accountability in the Bill, it seems odd that the noble Lord, Lord Hunt, should want to weaken accountability in this way, for that is what his amendment would do.

I listened to the point made by my noble friend Lord Mawhinney that this is another facet of the issues that we are going to consider in relation to Clauses 1, 4 and 10. He made a good point. Therefore, I suggest that, in the light of our intention to consider together how we approach the duty on the Secretary of State and return to this on Report, the amendment should also be withdrawn and that any consequential changes to the functions of the board or clinical commissioning groups are considered as part of those deliberations.

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[Lord Warner]

Can I press the noble Earl a little further on that? If a chairman has been appointed for this body who has a level of experience to enable him or her to function at that level, then requiring the Secretary of State to approve the appointment of the chief executive seems to throw into doubt whether the Government have confidence in that chairman running that kind of body—they need to be able to appoint an accountable officer as their chief executive. I find this a pretty considerable vote of no confidence in the kind of people who are being appointed as chairmen.

[Earl Howe]

Not at all, my Lords. Of course we have confidence in the chairman. However, it is a little strange to hear from the noble Lord that he suddenlythinks the Secretary of State should not be involved in an area where he has a legitimate interest to make sure, on behalf of the taxpayer and indeed patients, that we have somebody who is capable of fulfilling the role of accounting officer. This is an important role for the Secretary of State to have.

Turning now to Amendments 57, 153ZA and 153B, let me assure the Committee, and especially the noble Lord, Lord Hunt, that we want to reduce the amount of NHS funding spent on back-office bureaucracy. That is why have made a commitment to reduce administration costs across the health system by one-third in real terms, saving £1.5 billion annually by 2014-15. All that money will be put back into patient care.

Clause 21 provides powers for the Secretary of State to impose certain limits on the overall expenditure and use of resources by the board and clinical commissioning groups, including in relation to administrative matters defined through parliamentary regulations, for the first time. The board has the power to set similar limits for individual CCGs. I see no reason to change this to a duty to do so, as Amendment 153B suggests. As the board will itself be responsible for overall administrative spending, I am sure it will want to use this power carefully. Within those limits, it should be for the board to determine how best to use the resources available to it, and to decide on its own structures and ways of working, and the number of staff that it needs to perform its functions effectively. It is not appropriate to set a staffing cap on an arm’s-length body.

How big will the board be? In a document called Developing the NHS Commissioning Board, Sir David Nicholson, chief executive-designate of the board, estimated that the board was likely to have 3,500 staff, carrying out the functions currently exercised by around 8,000 staff in the Department of Health, strategic health authorities, PCTs and a number of arm’s-length bodies that are being abolished, along with its own new functions. It will deliver these in a much more streamlined way.

Likewise, setting an arbitrary cap in the Bill on the number of clinical commissioning groups or on their expenditure on administration in comparison to PCTs is not, in our view, an appropriate means of controlling administrative costs. CCGs will be different from PCTs. They put local clinicians in charge and align clinical decisions with the financial and quality consequences. It is a little unfair of the noble Lord, Lord Hunt, to say that we are creating a complicated and bureaucratic system, and citing clinical senates and networks and health and well-being boards. Clinical senates and networks are not new organisations in their own right: they will be hosted by the board. Clinical networks already exist. Health and well-being boards are also not separate statutory organisations: they will be hosted by local authorities. We are abolishing a whole raft of bodies under this Bill, as I have said on previous occasions. It is important to bear that in mind.

I appreciate the concerns underlying Amendments 58 and 59. It is important that there should be transparency in all the workings of the board. This is why Schedule 5 to the Bill was amended in another place to include the board in paragraph 7 as a body to which the duty in Section 1 of the Public Bodies (Admission to Meetings) Act 1960 applies. This would include any annual meeting that the board may decide to hold. I say “may decide” because the Bill is clear, in new paragraph 12 in Schedule 1, that:

“The Board may regulate its own procedure”.

This would also apply to determining when it is quorate.

However, the Bill does include clear procedures around the publication of the board’s annual accounts and annual reports, to ensure transparency. The board must send its annual accounts to the Secretary of State and the Comptroller and Auditor-General. The latter must examine, certify and report on the accounts and then lay copies of the accounts and the report before Parliament. The Comptroller and Auditor-General is responsible for the audit of the accounts of all arm’s-length bodies. The board must publish an annual report and lay it before Parliament. The Secretary of State must then write to the board, providing an assessment of the board’s performance of its functions, publish the letter and lay it before Parliament. That gives an indication that there will be maximum transparency here.

Turning to Amendments 145A, 146A, 147ZA and 147C, I am afraid that I do not agree that it would be worth while to add the unusual burden of an explicit duty of consulting on a draft business plan. The board is already required in new Section 13P(2)(a) to involve and consult the public in planning its commissioning arrangements. Under a duty in new Section 13J, it is required to obtain appropriate advice to enable it effectively to discharge its functions, including the planning of how it will exercise its functions.

I hope I can reassure noble Lords that Amendments 147A and 147B are also not necessary. First, the duty to produce a business plan already provides for transparency by obliging the board to publish its plan. Secondly, while the Bill requires that the board’s annual report and annual accounts are laid before Parliament, that is part of specific processes for scrutiny of the board’s performance against the objectives it was set and the outcomes it has achieved. It is right and proper that the board should be held to account in such a way. Another clear recommendation by the NHS Future Forum was that the autonomy of the board needs to be respected. With this in mind, although it is right that the board should be required to produce a plan and for that plan to be published for all—including Parliament—to see, I am not convinced that it would be appropriate to have parliamentary scrutiny of the board’s plans or draft plans. The Bill places certain functions on the board, and it should be for the board to determine how it will seek to exercise these.

With regard to the questions asked by my noble friend Lord Greaves concerning the size of clinical commissioning groups, I respectfully suggest to him that we defer them to a later group of amendments, where this issue will come up and I shall be able to talk more about it. For now, I hope that the noble Lords are sufficiently reassured to be able to withdraw the amendment.

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[Earl Howe]

I apologise to my noble friend. The national Commissioning Board will, we envisage, be tasked with commissioning a number of public health functions by Public Health England. There will be a close relationship between Public Health England and the board. Much of the work of the board will straddle both public health and the provision of NHS services. There will be an intimate symbiosis between the two bodies.

[Lord Warner]

My Lords, on Amendment 50, which I seem to have moved quite a long time ago, I will consider the noble Earl’s remarks. I am grateful to noble Lords who spoke in support of Amendment 50. Public health is a rather special case and I would want to reflect, in a later debate, on the public health amendments. In the mean time, I beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Monday 14th November 2011 Lords Chamber

[Earl Howe]

The noble Lord could be proved right. As I have said, we will see how the functions of senates are defined. That work is ongoing. The initial proposals for the design and implementation of senates are currently being developed and initial straw-man proposals are being tested with the intention of presenting a clear set of recommendations to the top team of the special health authority later this year, so—

[Lord Warner]

I am sorry to interrupt the noble Earl but I am still puzzled about where he and the department are taking this concept of the senate and how it fits in with the regional specialist commissioning set-up, which already exists and which has 10 regional commissioning capabilities aligned with the SHA areas. I am not clear about whether that work is to be folded into the senates. Is it free-standing? Are the lessons all to be lost, and what are the costs of this? What does hosting the senate mean in terms of costs, because there are costs to these regional bodies that are undertaking the work on specialist commissioning? I am at a loss to understand how these two elements—the senates and the regional commissioning capability that is there now—coexist and what the cost implication is of hosting senates alongside those.

[Earl Howe]

I will talk in a moment about specialised commissioning and I hope the answer to the noble Lord’s question will emerge. Amendment 84, tabled by the noble Lord, Lord Patel, would require the board to commission highly specialised services, in collaboration with the sub-national clinical senates that are accountable to it.

I will not rehash my arguments around Amendments 51 and 224A, but many of the same points will apply to this amendment. Specialised services are challenging to commission; they involve complex care pathways, small numbers of providers and very small numbers of patients with rare conditions. The new NHS Commissioning Board authority will be considering options as to how it does this, including the best form for its substructures. There will be the freedom to adapt these over time and, to ensure that progress is not lost, the board will be required under existing provisions to maintain the necessary focus of clinical expertise in these highly specialised areas.

The noble Lord, Lord Hunt, asked how we ensure that clinical senates are not ignored; this is precisely why we do not want to prescribe their role in the Bill. We want senates to be enabling bodies, which is why we are inviting views on the type of advice they could provide to identify the functions of the board and CCGs where they would add value.

The noble Lord, Lord Patel, indicated that he thought the clinicians on the senate would have to come from outside the clinical commissioning group area. That is not the case; he is not correct in that assumption. There may be slight confusion with the rules we set for secondary care doctors on CCG governing bodies, who must avoid conflicts of interest, hence the need for area restrictions in that context. Experts on clinical senates can come from, in theory, all or any areas of the country. The difference between the senates and regional specialist commissioning is that the latter focuses on specialised services and nothing else. The senates could, in theory, work across all services; the two are not designed to do the same thing. The senates will be quite high level. It is expected they will be about only 15 in number, and while they may be established in a certain form they can evolve over the years to conform to the requirements that are placed upon them.

My noble friend Lady Jolly pressed me on the role of the board with regard to specialised commissioning, and I have already indicated in outline part of that role. The key point is that the board will maintain the necessary focus of clinical expertise and it will be under specific duties to obtain professional advice in the exercise of its functions. Under the regulations, the types of service the board will be required to commission will be kept under regular review. Work is going on at the moment to define what those services should be in the first instance, and I fully expect them to conform broadly to the specialised services national definition set. As my noble friend knows, the list of those services has historically changed over time and I expect the same will apply in the future.

The noble Baroness, Lady Finlay, asked about the long promised organigram. In fact, our fact sheet on the overall health and care system does have an organigram in it. It includes the NHS Commissioning Board and describes how senates and networks will be hosted by the board. I refer the noble Baroness to that sheet. The noble Lord, Lord Kakkar, asked how senates will be different to academic health science centres in their focus. In short, AHSCs are partnerships of local academic and health bodies to support innovation and excellence in that area. However, they will not be impartial; they are by definition a vested interest. Therefore, they would not be the right bodies to offer the broader perspective on how services should best be configured across a region.

I hope that noble Lords will be at least somewhat enlightened by the details I have been able to give about clinical networks and senates. As I say, this is work in progress. I make no apology for that. This was very much a recommendation that emerged from the Future Forum report. We have got on with the work needed to flesh out what these bodies should be, but we have a broad and, I hope, helpful idea of their role across the wider NHS system. I hope the noble Lord will feel able to withdraw his amendment.

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[Lord Warner]

I am sorry to interrupt the noble Earl, but I was aware of that. My concern was that it seemed to leave to clinical commissioning groups the decision on what type of information they put in that. They could put in a whole load of information that was not comparable with any other clinical commissioning group. The whole point of my amendment was that there should be a level of standardisation so that we could see the different levels of performance in different CCGs.

[Earl Howe]

My Lords, I take that point on board. It is my understanding that the NHS Commissioning Board will wish to set common standards for CCGs to follow. However, I will follow up that point with the noble Lord. As I said, the Bill requires each CCG to prepare annual accounts, independently audited. The board may, with the approval of the Secretary of State, direct CCGs as to the methods and principles according to which their accounts must be prepared, and the form and content of such accounts. Therefore, there will be scope for the board to drive consistency in the area the noble Lord mentions.

I turn now to Amendments 169, 175BA, 175C and 101A, which concern membership of, and appointments to, CCG governing bodies. In response to amendment 169, as the Bill stands, under new Section 14N, regulations may already provide that members of governing bodies must include the accountable officer of the CCG. Paragraph 11 of Schedule 1A also specifies that the accountable officer may be one of the following: a member of the CCG, or an employee of the CCG or any member of the group. Restricting the accountable officer to being the “most suitable senior employee” of the group, as Amendment 169 also proposes, would narrow who the officer could be and ignore other able candidates, so I am not attracted to that amendment.

Amendment 175BA, and Amendments 175A and 175B, which we will be discussing in more detail in a future group, clearly intend to ensure CCGs have access to professional or other expertise to advise on all areas of their work. This is undoubtedly important, but the governing body is not the route to achieve this. As the Future Forum advised, a clear distinction should be made between governance of CCGs and clinical involvement in designing care pathways and shaping local services.

Clinical involvement in designing pathways or shaping services is exactly what a CCG will need to ensure in exercising its duty in new Section 14V, which requires a CCG to obtain advice appropriate for enabling it effectively to discharge its functions from individuals, who, taken together, have a broad range of professional expertise.

Clinical senates and networks will, of course, be crucial to effectively meeting this duty and to ensuring that CCGs can access specialised advice, as will the local knowledge and public health knowledge held by health and well-being boards. We believe there is a case for ensuring that governing bodies include the voices of some other professionals—at least one registered nurse and a secondary care specialist—but it would be unhelpful, as the Future Forum also acknowledged, for governing bodies to be representative of each group. That could lead to bodies that are too large and slow to do their job well. CCGs should have the flexibility to determine the professional input into their governance arrangements.

Amendment 175C would provide for regulations to be made setting out how lay members are recruited and remunerated. Subsection (3) of new Section 14N already makes provisions as to the appointment of members, including lay members, to the governing body. Paragraph 12 of Schedule 1A allows the CCG to pay members of its governing body such remuneration and other expenses as it considers appropriate. These existing provisions cover the intent of Amendment 175C.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Wednesday 9th November 2011 Lords Chamber

[Lord Warner]

The noble Earl is taking this clause out of the Committee stage, so far as I understand his proposal. If the strategy is to take clauses out when the going gets rough, that does not seem to be in keeping with the spirit and behaviour of this House.

[Earl Howe]

My Lords, I have no desire to take this clause out of the Committee proceedings. These proceedings are continuing. We have heard the noble Lord and his views, and I look forward to hearing other noble Lords. I am not in the least desirous of inhibiting debate on this clause, which I think is very valuable. However, perhaps noble Lords will consider that, in view of the undertaking that I gave on 2 November, there is a certain amount that need not be said today because I have undertaken to look at this clause on a cross-party basis and with an open mind. It is a clause that the Government were and are satisfied with and they believe that it can stand as worded without amendment. However, I appear to be accused of being too concessionary on this. It is a case of the Government being damned if we do one thing and damned if we do the opposite.

I felt that my offer to the Committee was helpful. I think that there is concern around the Chamber about this matter and I can only repeat my offer to look at that concern and, if we can reach an agreement, to put beyond doubt the fact that these clauses do what I believe many noble Lords wish them to do. I hope that in that spirit the noble Lord, Lord Warner, will agree that, while we can debate the clause today for as long as we wish, the offer is there on the table from the Government to engage in cross-party discussions with a view to reaching consensus.

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[Earl Howe]

I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.

I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships’ House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.

I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, the noble Lord will feel able, for the time being, to withdraw his amendment.

[Lord Warner]

My Lords, there is a film showing in local cinemas called “We Need to Talk About Kevin”; I think that this excellent debate has shown that we do indeed need to talk about Clause 4. I do not intend to comment on all the excellent contributions that have been made. I just want to say two things in conclusion.

I think that the noble Lord, Lord Marks, has provided an excellent forensic analysis of what is wrong with this clause. My personal view is that he has holed this clause below the water-line. I hope that the Minister, in conducting these cross-party discussions, will really keep in the front of his mind the easy solution that the noble Lord, Lord Marks, has helpfully given to the Committee, which is that we simply drop the clause.

Secondly, I would say to the noble Baroness, Lady Cumberlege, that I do not disagree with her about many of the issues that she raised. However, if she is really concerned about reducing political interference in decisions on service reconfiguration, I would direct her towards Amendment 304 in the names of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy. There is room for another name on that amendment, which will indeed actually reduce political interference in this area. So I commend it to her. In the mean time, I beg leave to withdraw the amendment.

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[Earl Howe]

I hope that I am not putting my neck on the block, but within a month the noble Lord should hear news that may cheer him on this front.

A great many noble Lords have asked me questions, some of which I have covered, but I suggest that in the interests of time it might be helpful if I followed up this debate in writing and in a way that will enable me to answer the questions in greater detail than I would now in any event.

[Lord Warner]

My Lords, in doing that will the Minister clarify what “health service” means? As I read the Bill, it sometimes looks as though public health is not included in that definition. It would be helpful if the Minister could give us some clarity on that and point us in the direction of an authoritative definition.

[Earl Howe]

I should be very glad to do so. The noble Lord may not be surprised to hear that, when I was being briefed for this Bill, I had to ask myself that very same question. The definition is there, but I think that it would be helpful if I set out the import of that phrase in its fullest sense.

I hope that I have said enough to encourage noble Lords not to press their amendments, but, in doing so, I reiterate my thanks to all noble Lords who have made such an excellent contribution to this debate.

[Lord Willis of Knaresborough]

My Lords, I thank the Minister for, as ever, a very courteous and thoughtful response to many of the issues which have been raised, in particular his response to Amendment 39 and his undertaking to reconsider “have regard to the need to”, which appears to be a little bit of clumsy draftsmanship that would be unworthy of the Minister himself.

The Minister raised a number of important issues, including that to which the noble Lord, Lord Warner, referred. We have now had a definition of “health service” which includes public health. That means that public health research could lie within some local authorities, because a significant amount of public health will be devolved to local authorities. While I was pleased to hear the Minister say today that those people moving from the National Health Service to local authorities for public health matters would retain National Health Service terms and conditions, the reality is that they will be working under a local authority aegis and that research would therefore be an issue for local authorities rather than Public Health England—or so I understand, but we will probe that later.

On protecting funding, I was particularly grateful for the way in which my noble friend the Minister responded to the idea of ring-fencing. He spoke not of ring-fencing, but said that there had been an increase in budget. It would have been good if he could have made that comment. However, he did say that NIHR would remain a stand-alone organisation. That was news to me; I thought that it was going to move into other organisations. Quite frankly, that is good news. It has a reputation which demonstrates that research is very important and we can track how it is used and when. I thank the Minister for that.

I apologise profusely to the noble Baroness, Lady Emerton, for indicating that “research” meant the work that is coming out of universities and being translated for use at the bedside. She was quite right to remind us that “research” for the purposes of this Bill was all research, and that what should underpin all public policy, in the NHS or anywhere else, is research which gives you evidence to inform policy decisions. I thank her for that rebuke.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Wednesday 2nd November 2011 Lords Chamber

[Earl Howe]

My Lords, I will address that question in a moment, if I may. The noble Lord, Lord Warner, asked how clinical commissioning groups will deal with the non-registered population in practice. Individual clinical commissioning groups will have responsibility for ensuring that patients resident in their area who are not registered with a GP have the same access to the care for which the clinical commissioning group has commissioning responsibility as a patient registered with a GP. Individual clinical commissioning groups will need to ensure that they have sufficient geographical focus to be able to commission emergency care services for anyone who needs them when in their area. The National Health Service Commissioning Board will be responsible for establishing a comprehensive system of clinical commissioning groups covering the whole of England, and the board will be responsible for commissioning primary medical care for the unregistered patient population. I think that my noble friend Lady Tonge is confusing two issues.

[Lord Warner]

Can I just be absolutely clear that I have understood the noble Earl? Is he saying that a clinical commissioning group with a defined geographical area for which it is responsible also has a responsibility to find out about the needs of all those who are not registered with a GP, including homeless people, asylum seekers, rough sleepers and you name it? Is he saying that the group has a responsibility to find out how many of those people are in its area and that it must commission services for them?

[Earl Howe]

Let me be clear: each clinical commissioning group will have a specific geographic area and will have responsibilities linked to it. This addresses the question asked by the noble Lord, Lord Rea, as well. Unregistered patients of any shape or kind are one example. Clinical commissioning groups will be informed by the work done in the health and well-being boards, whose job it will be to define the health needs of an area and what they believe the priorities are for commissioning in that area, and to produce a joint health and well-being strategy that addresses those priorities. The interaction between the health and well-being board and the clinical commissioning group should ensure that the marginalised groups of people to whom the noble Lord refers will be catered for.

--- Later in debate ---

[Earl Howe]

My Lords, there are perhaps several issues bound up in my noble friend’s question. It is entirely possible that a CCG will cover two local authority areas. In that event, it will have a clear duty to work in partnership with both local authorities to improve health and well-being and to secure more integrated services. Do health and well-being boards need to translate their assessments for each clinical commissioning group area? The CCG will need to use the joint strategy of the health and well-being board to inform its commissioning plan according to the needs of its local population. It is in its interests to ensure that the information is translatable.

I would be happy to write to my noble friend because there is a clear narrative here, although I may not be expressing it entirely clearly. Obviously, there will be instances where boundaries do not coincide. As I have said, we are aiming for that not to happen but it will in some cases and it has to be dealt with in terms of the duties that we set out.

[Lord Warner]

I will not torture or tweak the Minister any further but I will ask him to make a sensible response on this issue after today’s Committee sitting. It would be extremely helpful if he could take two or three areas—perhaps an urban area and an urban/rural area—and show us where there is a health and well-being board and where there are pathfinder groups of CCGs, and how this would work in practice. I think that we would find this much easier to understand if there was a diagram.

[Earl Howe]

I absolutely agree with the noble Lord. It is all very well me trying to describe in words what the duties will lead to but a graphic depiction of how this might work is a very good idea, which I would be happy to follow through.

NHS Commissioning Board Authority (Establishment and Constitution) Order 2011

Debate between Lord Warner and Earl Howe

Tuesday 1st November 2011 Lords Chamber

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

My Lords, I welcome this, the second in a series of debates tabled by the noble Baroness, Lady Thornton, scrutinising various pieces of secondary legislation which together are intended to provide continuity and security to NHS staff, as well as maintaining the continuity and quality of NHS services, and delivering the £20 billion efficiency challenge.

This second debate provides an opportunity for me to set out the need for a proposed new preparatory body to ensure the most effective transition to a new system for commissioning NHS services. As noble Lords will know from our debates on the Health and Social Care Bill, a key part of the Government’s agenda is to turn the NHS into a more patient-centred organisation, with a clearer focus on improving patient outcomes, and designed around the needs of the local population.

The Government intend to create a more autonomous and accountable NHS, with greater clarity about the roles and responsibilities of different organisations for provision of commissioning. A stronger, more effective commissioning system is necessary to support the improvement in health outcomes that we all want to see. An autonomous but accountable NHS Commissioning Board is a key component in the realisation of this objective.

The NHS Commissioning Board will be rigorously held to account by Ministers and Parliament as a whole for delivering improved patient outcomes instead of top-down process targets. While it will be free from interference on a daily basis from Ministers, it will have clear duties set out in primary legislation, and will be held to account for objectives set by the Government through an annually refreshed mandate, giving it a clear long-term direction.

The board will allocate resources to clinical commissioning groups and support them to commission services on behalf of their populations, according to evidence-based quality standards. It will directly commission services in six areas: specialised services, primary care, specialised dental services, military health, prison health and some aspects of public health. It will develop a high-quality market for commissioning support, while minimising redundancy costs, living with reduced running costs and retaining the best of NHS talent. This means that the board will be at the centre of delivering improved, patient-centred services while cutting waste and bureaucracy.

It is essential that we get this right. With this in mind, the NHS Future Forum has recommended that,

“the NHS Commissioning Board should be established as soon as possible to ensure focused leadership for improving quality and safety as well as meeting the financial challenge during the transition”.

This shows that there is a recognised need to begin work now to ensure that the transition arrangements to the new system allow the NHS Commissioning Board to undertake its full responsibilities from the day it is established.

The NHS Commissioning Board Authority, as established in the statutory instruments that we are debating tonight—as well as the functions which were not laid before this House, but noble Lords may have seen earlier this week—is a preparatory vehicle, which will allow the organisation to recruit a leadership team; establish robust governance processes; develop an open and supportive ethos and culture; and begin to develop some of the key relationships with other organisations in the system. It will take on only limited functions, delegated by the Secretary of State for Health, with regard to the health system during the course of 2012.

The authority will ensure that the NHS Commissioning Board is able to function as intended as soon as it is established as an executive non-departmental public body, subject to the passage of the Bill. The authority will help the NHS to manage some of the challenges of the transition from the current system to the new one. Through establishing a body at arm’s length from the department, we can ensure robust accountability and governance arrangements.

There will be a letter from the Secretary of State setting a series of objectives that the special health authority will be expected to deliver. In addition, there will be a framework agreement defining the relationship between the Department of Health and the authority. This provides a level of transparency that would not have been present had this preparatory phase been handled wholly in-house. The authority will have an accounting officer who will be accountable to the department, and the Public Accounts Committee, giving Parliament and the Secretary of State for Health clear access to officers responsible for the major decision-making within the board.

Establishing an arm’s-length body also allows us to recruit a strong leadership team, who can provide strategic input and challenge. Wherever possible, we have drafted the establishment legislation for the special health authority to reflect the legislation that noble Lords have been scrutinising in this House. This has been done to build in continuity wherever possible, particularly around the balance of the board. Officials have sought and received the approval of the Appointments Commissioner to roll over the key non-executive director appointments to provide continuity of leadership as the body moves from being a preparatory one to an operational one, subject again to the passage of the Bill. The preparatory arrangements will ensure that the culture of national and local accountability is embedded in the board from an early stage, and does not see the centrally administered, top-down, performance-managed culture merely transferred into the board on the date of establishment, by transferring all staff and working practices on day one.

We have taken our administrative responsibilities extremely seriously during this process. We have been careful to balance appropriately the need for transparent and accountable preparatory arrangements, while ensuring that we still respect Parliament’s role in scrutinising the legislation for which these regulations prepare. Establishing a special health authority at this stage does not pre-empt the Bill’s progress through this House. It is intended as a short-term measure. The Secretary of State for Health can abolish the authority, subject to consultation with staff and parliamentary scrutiny. We are working to ensure that the costs of establishing the body are kept to a minimum, and the body will employ only staff whose roles are considered business-critical to its preparatory functions. The Government are committed to creating an NHS that is able to shape health services that are patient-centred and locally accountable. The NHS Commissioning Board Authority is a key step in this process.

I shall now address the specific questions raised by noble Lords in this debate. I was very grateful to my noble friend Lady Barker for reminding the House of the legislation passed under the previous Administration in relation to the establishment of the CQC. That is not an unreasonable comparator to the present situation. The orders before us do not pre-empt the outcome of the scrutiny of the Health and Social Care Bill. There are good reasons for establishing the authority now. They are, in sum, to ensure strong governance around the organisation’s preparations; to identify and induct a strong, independent board who could lead the NHS Commissioning Board, subject to the passage of the Bill; and to provide an important signal to the NHS about the future.

I say to my noble friend Lord Willis that this legislation is not subject to the successful passage of the Bill. It is a supporting measure, which could be reversed or amended as necessary, subject to consultations with affected staff. The functions of the authority, which are outlined in directions issued by the Government, could be updated as the Bill progresses.

The NHS Commissioning Board Authority was established as a special health authority yesterday. As I say, it will have a preparatory role and will be replaced by an executive non-departmental public body by October 2012, subject to the passage of the Bill. It is expected to be fully operational by 1 April 2013.

The noble Baroness, Lady Thornton, asked me about consultation on the setting up of the special health authority. Section 28 of the NHS Act 2006 is the basis for establishing special health authorities. The Act requires consultation with staff, which was carried out. It does not require consultation with others. As stated in the government response to the Future Forum report, the authority—the preparatory body, in other words—will continue operating until the provisions of the Bill relating to the establishment of the board are brought into force some time between July and October 2012. Only at this point will the full executive non-departmental public body be established with responsibility for establishing and authorising clinical commissioning groups. This would be followed in April 2013 by the executive non-departmental public body taking on its full suite of statutory responsibilities. The special health authority would therefore only have a preparatory role; it is currently envisaged that it will exist for a maximum of one year. The noble Baroness, Lady Thornton, asked a number of questions about the powers of the special health authority: how many would be employed; how many would be recruited and at what cost.

In order to prepare for the establishment of the board, we have established this authority with the purpose of developing the details around the processes and relationships required to carry out the board’s functions, developing the business model, and making such other practical arrangements that are necessary and appropriate for the effective running of the board on its establishment, including developing HR and governance models. I would simply say to the noble Baroness, Lady Finlay, and indeed my noble friend Lord Willis that that encapsulates the functions of the authority. The functions of the board are of course subject to the passage of the Bill and not dealt with in the orders that we are currently considering.

As regards staff, the publication of the NHS Commissioning Board People Transition Policy in July 2011 gave staff in relevant bodies, including PCTs, SHAs and arm’s-length bodies in the Department of Health, a description of how the NHS Commissioning Board would manage the transfer of functions and staff from other organisations. While further detailed work will need to be undertaken during the preparatory phase on the detail of transition, the People Transition Policy was able to set out how transfers will be managed and appointments will be made. The chair, as the noble Baroness mentioned, has been appointed—Professor Malcolm Grant. Other non-executive board members are recruited by the Appointments Commission; however, the department has used the intelligence gathered by the recruitment company to aid this process. The chair will lead the recruitment of other board members.

Recruitment to the NHS Commissioning Board is being managed in two phases. This phased appointment process will allow the senior leadership team to help take the NHS Commissioning Board forward, together with their support teams and some key transition and priority roles, while more of the work on the detailed structure is carried out. The immediate priorities for appointments as part of the first phase for recruitment are: first, the senior team and their support staff; secondly, the transition functions; thirdly, functions that have early deadlines; and, fourthly, transfers from organisations that may not be sustainable until October 2012.

The noble Lord, Lord Warner, asked about induction training of non-executives and the chair. An induction process has been developed for the chair by the authority transition team. It will also be adapted for the non-executive directors. The noble Lord also asked a series of questions about the budget of the board during its first year; what it will be responsible for in terms of that budget and about the number of non-executive directors.

The preparatory NHS Commissioning Board Authority has access to a transition budget of up to £6 million during the financial year 2011-12 to establish itself and to undertake consultation and analysis to design its future functions. This excludes staff costs and capital expenditure on estates and infrastructure—

[Lord Warner]

That was not the point of my question. It was what the board budget was going to be, so that we knew what this authority was preparing itself for. I am not frankly very fussed about the odd million or two going to this authority. I am more concerned about how it prepares itself for the transition to the board if it does not know what the expenditure and scale of the board’s operation is going to be.

[Earl Howe]

My Lords, I appreciate that and I was coming on to providing him with the answers to those questions. The impact assessment published alongside the Bill includes an analysis of the costs and benefits of establishing the NHS Commissioning Board. Preliminary estimates for the annual running costs of the board are in the region of £400 million. That budget will, of course, be partly dependent on the detail of secondary legislation that will be subject to parliamentary scrutiny.

The noble Lord expressed concern that we should not end up with a board that is too large and with the wrong membership for the remit placed upon it. We need here to distinguish between the role of the authority and that of the board. The authority has a clearly defined preparatory role. It is not responsible for commissioning in the NHS but rather for preparing for the establishment of the NHS Commissioning Board. The board will, when fully established, be responsible for the £80 billion commissioning budget.

As regards who will sit on the board when it is in its fully fledged form, the Health and Social Care Bill sets out details of the proposed membership of the board, including a chair and at least five non-executive directors, along with fewer executive directors than non-executive directors. The Secretary of State will appoint the chair and non-executive directors, and has identified Sir David Nicholson as the first chief executive designate. The board will appoint the executive members other than the first chief executive. As an autonomous body, the board will be free to appoint board members and, in turn, other staff below board level.

The noble Lord, Lord Warner, asked me to outline what the board will do with the money that it receives from the Government. The board will directly commission a wide range of services, including local primary care and the most specialised services in the country—meaning that the board will have direct responsibility for around £20 billion of commissioning spend. It will be accountable nationally: for the outcomes achieved by the NHS, which will be set out in the Government’s mandate to the NHS Commissioning Board; for contributing to improving broader public health outcomes; for how the NHS commissioning budget of around £80 billion is spent; and for maintaining financial control across the system.

As regards how the NHS Commissioning Board Authority will be held to account, the authority will operate in line with the establishment order, regulations and directions set by the Secretary of State. The Secretary of State will issue a letter as guidance under the directions setting out more specifically the priorities against which the special health authority board will be held to account. The Department of Health’s Permanent Secretary is its principal accounting officer. She will appoint the special health authority’s chief executive as its accounting officer. The principal accounting officer has responsibility to Parliament for overall expenditure in relation to the department and its arm’s-length bodies—thus making sure that an overall system of control is in place for ensuring proper stewardship of public funds and the issuing of grant in aid to the special health authority.

The noble Lord, Lord Warner, referred to the issue of the board meeting in public. The authority is not required to meet in public. The board is required to meet in public, subject to the passage of the Bill— I refer the noble Lord to paragraph 7 of Schedule 5. The authority is a preparatory body, and there is therefore a stronger case for the board rather than the authority to meet in public. The framework agreement between the department and the authority that we expect to be published in the coming weeks includes a commitment by the authority to carry out its activities transparently.

My noble friend Lord Willis asked whether the shadow authority will have a duty to commission research and whether it will take over the duties of the Chief Medical Officer. The authority, as I think I have made clear, will not commission research. The NHS research strategy policy will remain in the Department of Health until the board is established. The board, as my noble friend knows, will be under a duty to promote research.

The noble Lord, Lord Turnberg, asked further questions about the accountability of the board and the role of the Secretary of State, and whether there will be sub-committees. The executive officers of the authority and the board will account to their chair and the board. The Department of Health will hold the authority and the board to account. The Bill places the Secretary of State under a duty to keep the performance of the board under review—that is stated in Clause 49. The Secretary of State will set an annual mandate for the board, and the board is also accountable to Parliament in its annual report.

The noble Baroness, Lady Thornton, referred to the appointment of Professor Malcolm Grant as the chair of the authority. Professor Grant was selected as chair of the NHS Commissioning Board because he was the best candidate for the job. His experience as the head of an internationally respected organisation such as UCL means that he is highly qualified, and his appointment is backed by the Health Select Committee. I understand that when he remarked to the Health Select Committee that he was not an NHS patient, he was simply referring to the fact that he is not ill and is therefore not currently an NHS patient. I understand that he is registered with an NHS practice.

I think that I have covered all the questions that have been asked of me. I have certainly endeavoured to do so but if I have failed to answer any, I shall of course write to noble Lords.

Health and Social Care Bill

Debate between Lord Warner and Earl Howe

Tuesday 25th October 2011 Lords Chamber

[Earl Howe]

My Lords, I cannot speak for Amendment 44, which is not the government amendment; but I can speak for Amendment 43, which is. My advice is that the amendment delivers everything that my noble friend has just said. I have not given a critique of the amendment of the noble Lord, Lord Walton, but as I have been invited to do so, I will now offer one. It does not cover non-clinical staff or trainees; it covers the healthcare workforce. So, in actual fact, I think it is deficient; and I urge the Committee to accept the government amendment on that basis.

[Lord Warner]

I am sorry to interrupt the Minister’s flow, but he has been interrupted, so I thought I would ask my question now. The Minister has given us quite a lot of assurances about what the government amendment would cover, but I put to him a particular issue that came up—not that long ago, in 2006—when there was a major national row about the number of specialist training places. A large number of doctors and would-be doctors marched on London to complain about that system. It was absolutely clear that the only person who could deal with that issue in any satisfactory way, for both the professions and the public, was the Secretary of State. Is the Minister absolutely confident that the government amendment would enable the Secretary of State to act in such circumstances?

[Earl Howe]

The Secretary of State could act if Health Education England was failing in its functions. Our vision is that we will be giving functions to Health Education England to oversee a national system. If it does its job properly, then the situation the noble Lord describes would, one hopes, be handled in a satisfactory way. If it fails in its functions, then, yes, of course it would be the duty of the Secretary of State to step in and oversee the process.

--- Later in debate ---

[Earl Howe]

It might or it might not. All I can say is that the Department of Health will have designed and co-ordinated the new system and will develop the outcomes framework. Health Education England will be providing oversight and national leadership for education and training. The department and Health Education England, together, would no doubt have a role in sorting out the kind of situation that the noble Lord, Lord Warner, has adumbrated. However, it is a little difficult to discuss this in hypothetical terms. I have tried to set out, broadly, how the system should operate—

[Lord Warner]

My example was not hypothetical—it actually happened.

[Earl Howe]

It did happen, but it did not happen with the system that I have outlined in place. As I have just said, NHS Future Forum is talking to a great many people about where exactly responsibilities should sit for what, and how the system should work, which is why—I confess freely—I am in difficulties. While I would love to be able to answer detailed questions about the system, we have quite consciously deferred these matters to a second Bill.

NHS: Medical Records

Debate between Lord Warner and Earl Howe

Wednesday 7th September 2011 Lords Chamber

[Earl Howe]

My Lords, I can well understand my noble friend’s acute disquiet over this matter, particularly in light of the recent report from the Public Accounts Committee. The view we have taken is that some very good things have been achieved so far, particularly from the national elements of the programme, but it is equally clear that the top-down policy approach taken to the computerisation of the NHS has not delivered the benefits at local level that everybody was hoping for and has failed to engage the NHS sufficiently. Those are the things we are now concentrating on: making sure that the governance of the programme is sound; learning lessons from what has happened; and achieving value for money.

[Lord Warner]

My Lords, I declare an interest as the former Minister responsible for this programme—one does have to own up to one’s past from time to time. Could the Minister assure the House that the Government are fully committed to the idea of an electronic patient record system as the way forward for the NHS, given its benefits for patient care, research and NHS efficiency? Could he tell the House what proportion of the population has now been able to avail itself of an electronic summary record?

[Earl Howe]

I pay tribute to the work that the noble Lord did when he was a Minister. Yes, the Government are committed to a summary care record, which, for the benefit of noble Lords, is a record that includes a defined set of key patient data, other than for patients who choose to opt out—that is an important rider. Clinicians can then access essential medical information that they need to support safe treatment and to reduce the risk of inadvertent harm, especially during emergency care. To answer the second question that the noble Lord asked, over six million patients now have a summary care record, which is a considerable increase over a few months ago.

NHS Reform

Debate between Lord Warner and Earl Howe

Monday 4th April 2011 Lords Chamber

[Earl Howe]

The economic regulator will do two things. It will fix prices for the purposes of the tariff and it will preside over the marketplace—such as it exists—in healthcare so that anti-competitive conduct will be prohibited. It will bear down upon conflicts of interest and anti-competitive practices of all kinds and, in conjunction with the NHS commissioning board, it will ensure that the pricing system in the NHS incentivises quality. There are, as the noble Lord knows, a number of levers that we can use to do that through the tariff.

[Lord Warner]

Is the Minister aware that many people are concerned about whether the Government will listen excessively to those who make the greatest noise among some of the vested interests that the Bill tries to tackle? Is he aware that many people wish to look at the Bill forensically to make sure that changes in commissioning lead to more competent commissioners, something we have not achieved in the past: that we start to dismantle some of the barriers to entry in order to create more diverse providers; and that we look very seriously at the pricing system to make sure that it does not just put money into the pockets of acute hospitals, but brings more care closer to home?

[Earl Howe]

I am grateful to the noble Lord, Lord Warner, whose book, I may say—without indicating that I am in receipt of a commission for saying so—deserves reading by every thinking healthcare commentator. He is right, of course; we need to ensure that the vision that I think is shared by many in this House, regardless of party, can be successfully implemented. I recognise the implication of his question, which is that this House is eminently capable of examining the Bill forensically. When it comes to us I have no doubt that we will do that however long it takes, and I look forward to that. However, it would be a rather cloth-eared Government who were insensitive to the voices that have been heard in recent days outside this Chamber and another place. We need to dispel many of the misunderstandings that exist as well as address some of the genuine misgivings that people have. It is right that, without losing too much momentum in the process, we take these few weeks to do just that.

Public Bodies Bill [HL]

Debate between Lord Warner and Earl Howe

Wednesday 9th March 2011 Lords Chamber

[Lord Warner]

I am sorry to interrupt the Minister. I have been listening intently to what he has said. I am extremely confused about the order in which things are going to be done. As I understood what he was saying, we are going to get a series of orders that transfer functions through a process of consultation, which I welcome, but we may or may not know at that point what the Government are going to do about setting up a health research agency, either by statute or otherwise. As I understood him, we could be in the position of being asked to agree those orders before we know what the final endgame is. It would be helpful if, before the next stage of the Bill, the Minister could set this out more clearly for us in writing so that we can understand the sequence. I found it rather difficult to understand.

[Earl Howe]

I must apologise to the Committee if I was not sufficiently clear and I will be happy to write to those who have participated in this debate to make the position clearer. I was seeking to say that we do not wish to take a disjointed, piecemeal approach. There is a natural flow of process that, if Parliament agrees, can lead us to a position where we are able in one move, so to speak, to transfer the various functions more or less simultaneously—although I would not wish to undertake that the whole thing would be done on the same day—so as to arrive at that point.

In our view it is desirable to consult during the late summer of this year. We will then set about the process of designing statutory instruments based on that consultation and go out to consultation on them. All being well, we will then introduce a second-Session health Bill that will have within it the provisions to establish a single research regulator, assuming that that is what we decide to do. Therefore, the whole process should work in a seamless way. However, I shall be very happy to write to noble Lords setting that out.

I return to the point at which I left off, which is to express the hope that the noble Baroness will not press her amendment this evening. I hope that she will accept our assurance that we have a clear intention to consult on the proposed transfers of functions and that she will be willing to withdraw the amendment.

NHS: White Paper

Debate between Lord Warner and Earl Howe

Monday 12th July 2010 Lords Chamber

[Earl Howe]

My Lords, the noble Baroness identifies two particularly important issues. How will GPs be held to account for the clinical care that they provide? The data emanating from their performance will be transparent and published. The consortia will monitor the performance of each practice. They will identify outliers, whether good or bad, and act accordingly. We do not have those information systems sufficiently in place—I hope that, over the next 18 months or so, there will be time to develop the systems needed for consortia to do this—but it is vital that GPs are held to account for their performance and they will be incentivised in their remuneration to provide high quality.

The noble Baroness made an important point about loss leaders among providers. The NHS commissioning board will license a provider only if it is satisfied that the quality of care delivered by that body is of an adequate standard. I think that the board will look with great care at the practice of introducing loss-leader services and rule out, if there is any doubt at all, quality being compromised in the process.

[Lord Warner]

My Lords, I warmly welcome some of those ideas in the White Paper that build on the previous Government’s reforms such as choice and competition. However, is the Minister aware—as am I from my own experience as a Minister—that many in the NHS do not wish to be liberated? What will be his approach to those areas where GPs’ consortia do not live up to the standards required of the commissioning board? What will he do to ensure that we do not lose the benefits of regional specialised commissioning, which it has taken many years to bring to the level of quality that exists today?

[Earl Howe]

My Lords, I shall be brief because time is against us. I agree with the noble Lord that we must not lose the gains that we have made in specialised commissioning following the Carter reforms. He will see that the national commissioning board will retain responsibility not only for national specialised commissioning but for regional specialised commissioning. That will safeguard the quality of those services.

The noble Lord referred to GPs who do not wish to commission or who are in some way found wanting in their performance. Our experience to date—a number of consortia have been formed around the country, all of which are working encouragingly well—suggests that those GPs within the consortium who are in the lead and are the most go-ahead are best placed to bring up to standard their colleagues who are perhaps struggling. We have witnessed that in a number of instances. Those GPs who are incapable of being brought up to an adequate standard may be subject to a question over their future. In certain consortia, we have seen GPs retiring from NHS service.

NHS: Budget

Debate between Lord Warner and Earl Howe

Wednesday 23rd June 2010 Lords Chamber

[Earl Howe]

My noble friend makes an extremely good point. Much of the thrust of what we are trying to do is to achieve much greater local ownership by clinicians, staff and managers of the problems that we can all identify. The ideas that my noble friend has put forward already operate in many trusts, but they should be imposed more widely.

[Lord Warner]

My Lords, in his review will the Minister encourage his ministerial colleagues to enhance the coalition Government’s reputation for taking tough decisions by looking seriously at the number of acute hospitals that are failing financially and are unsustainable, especially in London? Is he willing to market-test the provider side of PCTs, which the Department of Health has identified as inefficient?

[Earl Howe]

My Lords, the noble Lord, with his knowledge of London, speaks with great authority and he will know that reconfiguration is high on the agenda in London. Efficiencies can be created, but we want to see local buy-in to those changes rather than any top-down prescription. On his second point, we are keen on the split between the commissioning and the provision of community services, so that we can get greater plurality of provision in community services.

Health: Government Spending

Debate between Lord Warner and Earl Howe

Monday 14th June 2010 Lords Chamber

[Earl Howe]

My Lords, there are several principles. A reduction in the number of arm’s-length bodies is only one of the possible outcomes. As I have said, we are not looking necessarily for a large-scale reduction in numbers, but we want to see both efficiency and the delivery of quality. With those two ends in view, the bodies that we end up with have to make sense in terms of what matters in our wider system reform, which is, as I have said, to deliver quality.

[Lord Warner]

My Lords, the Minister has said that he will be looking at functions in the review of bodies and that he will be looking to save one-third of running costs. In carrying out this review, will PCTs be examined carefully in terms of divesting themselves of their provider-arm functions so that they can concentrate on their commissioning functions?

[Earl Howe]

My Lords, strictly speaking, primary care trusts are not considered to be arm’s-length bodies, but the coalition agreement, which I am sure the noble Lord has read from cover to cover, indicates the new role and the functions envisaged for PCTs. Further details of our plans will be announced very soon.

Mid Staffordshire NHS Foundation Trust

Debate between Lord Warner and Earl Howe

Wednesday 9th June 2010 Lords Chamber

[Earl Howe]

I am grateful to my noble friend for her kind comments. The House will know what a champion she is of patient care and compassion in the health service. On her last point, it is of course for Robert Francis, who is in charge of the inquiry, to decide whom he calls as witnesses, but he has a completely free hand and I am sure that he will take note of my noble friend’s suggestion.

[Lord Warner]

My Lords, before I ask my question, I suggest that we register that the usual channels might discuss the sequencing of speakers from the government Benches and these Benches, because I am not sure that there is a correct interpretation.

I have no objections whatsoever to this wider inquiry. I hope that it will look carefully at the extent to which doctors, nurses and managers failed in their professional responsibilities. What the regulators and other bodies did might also be usefully looked at. However, does the Minister accept that it is easy in such circumstances to reach for something that cannot answer back, such as a target, to explain away what is essentially appalling clinical and managerial behaviour? That is clear from many other inquiries into what happened in Mid Staffordshire.

If the Minister wants seriously to consider targets, he might read some of the speeches made by previous Ministers, who made it crystal clear to the NHS that its overriding responsibility was to the care and safety of patients, not obsessively to implement targets. I know that there are conventions about looking at papers from previous Administrations, but I would certainly be prepared to waive that consideration. Will he also look at the extent to which John Reid, when he was Health Secretary, amended the way in which the four-hour target was implemented in response to concerns expressed by doctors? He might like to see the minutes of a meeting that I had with the College of Emergency Medicine. Members of the college came to see me as a Health Minister to ask me—beg me, almost—not to amend the four-hour target because of the improvements that it had produced for its members, for patients and for the way in which hospitals were run. Will he also look at the Nuffield Trust’s independent inquiry into targets, which also shows the benefits that they have brought to patients in terms of better access and shorter waiting times and which compares the experience in England, where there were targets, very favourably with that in the Celtic fringes, which did not have them?

[Earl Howe]

My Lords, we are not targeting the targets with this inquiry. They are not the main point at issue. The noble Lord is right that the main point at issue is the failure of care, but that is also, as we hope this inquiry will show, a systemic failure. That is the point of the inquiry. I do not doubt anything that he said about the commitment of previous Ministers to putting care above any rigid adherence to targets; I fully accept the good faith of Ministers in the previous Administration in that regard. However, the noble Lord will know that what Ministers say is very often not interpreted in the same way on the ground in the NHS. When people in the NHS hear things coming out of Whitehall, they are inclined to adhere rigidly to what they are told to do. That is part of the problem, but it is not the problem that I want to emphasise in this context. We need to understand how the wider performance management and regulatory system failed to spot the problems earlier and deal with them and why so few professionals felt that they could challenge what they saw. Understanding the lessons from that and the culture in which the events at Mid Staffs were allowed to happen will be key to informing and shaping our plans for the future.