Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012

Lord Willis of Knaresborough Excerpts

Thursday 7th February 2013 Grand Committee

I hope very much that your Lordships are reassured that we recognise the importance of this activity for local Healthwatch for it to be able carry forward the role of LINks effectively. In conclusion, I commend these regulations to the Committee.

[Lord Willis of Knaresborough]

My Lords, I rise in this packed Chamber at this late hour to discuss these regulations. I say that light-heartedly, but the raft of regulations going through the House as a result of the Health and Social Care Act 2012 is incredibly important. The fact that the regulations are being very effectively scrutinised by this House demonstrates the commitment to getting the implementation of the 2012 Act right, so my comments this afternoon on behalf of the Liberal Democrats are meant to be helpful to the Minister. I will do my best.

There is significant support for these regulations, not least because there is significant agreement among the political parties that the direction of travel for local authorities to be at the heart of a renewed emphasis on public health is absolutely right. It always struck me, as a former council leader, as bizarre that I had responsibility for the efficient collection and disposal of refuse but that protecting and promoting the health of the people whom we represented was a peripheral activity. Indeed, when the Government introduced the scrutiny committees, supported by the Labour Party, they emphasised the importance of local politicians taking an interest in health. That engagement—certainly for my local area—was incredibly helpful and supportive. I regard this as the next step. Local authorities should be involved in the scrutiny of health, and most activities from economic generation to housing and education are all part and parcel of improving public health; they are not separate silos.

Before I deal with some of the specific regulations within this SI, I raise an issue which is not in the regulations but which requires a response from the Minister. I refer to public health research, and he will not be surprised that I raise it. In some ways, public health research has gone under the radar—I confess a lack of emphasis myself—yet if we are to improve public health, and local authorities are going to be at the heart of that agenda, it is crucial that research is part of it. Traditionally, local authorities have not funded, nor have they been responsible for research in public health. That resource has come from the primary care trusts and SHAs.

Currently, 187 public health clinical academics with honorary contracts, and 26 academic dentists with honorary NHS contracts are working in England. Of those, 56 clinical academics and four dentist academics are part or wholly funded by PCTs and SHAs. However, that funding—some £15 million—has now been swept up by being transferred to the Commissioning Board, which, as the Minister knows, does not have a mandate to honour the honorary contracts determined by the Follett principles. In fact, public health research is not in the Commissioning Board’s mandate. That responsibility, rightly, lies with Public Health England. Fifteen million pounds is of course a relatively small sum—loose change to the Commissioning Board—but it is the main source of funding for vital public health research which can be commissioned by public health directors in local authorities. If we are serious about local authorities commissioning research—and I think that these regulations are serious about that interface—they must have access to research capacity.

This is an urgent issue, which is why I raise it at the beginning of my remarks. The existing honorary contracts legally run out on 31 March, and continuity over existing research programmes is absolutely crucial unless we are to see the abandonment of key strands of public health research. Will the Minister say what plans he has to resolve this very small but important issue? In particular, will he instruct the Commissioning Board to transfer the £14.7 million of public health funding that it has obtained from PCTs and SHAs to Public Health England as an interim measure until a more secure funding stream can be found for public health research?

Continuing the theme of research, perhaps I may seek clarification on two other matters in the current regulations. This SI gives local authorities powers as directed by the Secretary of State which are in effect transfers of existing powers. They are largely welcomed and give much needed continuity. Therefore, I do not think that there is any argument about the transfer of those powers. However, a person who has one or more of the declared morbidities will be checked on a more regular basis—that is, if you have hypertension, you will be checked annually. However, will the broader health check given to eligible persons be carried out on non-eligible persons on a five-yearly basis or will it be in the sequence of their morbidity? In other words, if you have hypertension and are checked annually, will you have all the other health checks at the same time, will you have to wait for five years to have them, or will you not get those other checks? The regulations do not make that clear. This is important because the health check data obtained via Regulation 5(3) is valuable not only for individual patients but for research groups.

Indeed, with regard to the information obtained under Regulation 5(3), will the data automatically be made available in an anonymised format, with open access for research groups, but allowing for patient opt-out? If so, will it be the responsibility of the Department of Health, the NIHR, the Commissioning Board or Public Health England to prescribe a format for data collection and storage? I make that point because, if the information is collected in different formats, it becomes less valuable in terms of interrogating it for effective research.

Let me move on to Regulation 6, which I am somewhat confused by the thinking behind. While I fully understand why services such as abortion, sterilisation and vasectomy should be moved into the NHS, given their “clinical and surgical nature”, surely the same could be said about specialist STD management and specialist contraception services, which carry significant clinical risks—not to mention a minefield of legal and ethical dimensions. For instance, IUD insertion management can be an incredibly invasive and difficult issue. The decision to ask local authorities to exclude HIV patients from other sexual health services and treatment for other STDs appears to be at odds with offering patients a comprehensive sexual health service. Why are we separating those out? There is confusion over the implication for people who move out of an area to be tested for HIV, for instance—a more likely scenario in places such as London, Manchester and Birmingham, where specialist clinics with the latest technology quite rightly are emerging. Yet there is confusion over where people will be treated if they are tested elsewhere and how that will be cross-charged.

Who will have responsibility for treating an HIV person with another STD? Will patients continue to have the right to access sexual health services, including related treatment and care, wherever they choose in England, regardless of their place of residence? Will there be no loss either in expertise or in the infrastructure needed to commission complex sexual health services, and will those services and pathways of care be fully integrated? I ask that because small authorities may not have the capacity to be able to have that range of services. Will they therefore be able to commission those services elsewhere and send people from one local authority to another? Will the pressures on local authority budgets not simply result in a diminished quality or availability of care?

How do we guarantee that what we are promising in the regulations can be delivered, given the pressure on budgets? For instance, 25% of the budget for public health is likely to be spent on promoting and supporting the treatment of sexually transmitted diseases and sexual health. That represents a huge amount of the budget, and for some authorities, particularly in large, deprived urban areas, the proportion could be even greater. Will there be a seamless integrated pathway of care for people living with HIV? We cannot ask such people to be treated differently to any other group in the population, and that is what these regulations appear to be saying. Perhaps the Minister can give me some comfort on that.

As regards Regulation 8, health protection is at the core of the new arrangements and, as I said earlier, none of us, of any political persuasion, do not very strongly support the direction of travel of the Government. Local authorities are enthusiastic about this role of being responsible for health protection. However, an effective response to an early outbreak or emergency requires clear roles and responsibilities, strong leadership and timely intervention. This regulation does not appear to do any of those things. Indeed, rather than building on the DoH guidance of September 2012 on health protection in local government, in which the Government clearly stated that local authorities would be expected to ensure that partners have effective plans in place and that the director of public health would have a leadership function, these regulations give local authorities no more responsibility than requiring other bodies to draw up plans and requiring the local authorities themselves to issue guidance. There is nothing here to say whether plans will be mandatory or optional. That is hardly encouraging if a major crisis develops with potential or actual loss of life. Would the director of public health have a recourse in law to say, “Not me, guv, I asked them all to issue guidance and they did so and therefore my responsibility is over.”?

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He asked about local directors of public health. We expect local authorities and directors of public health to take the leading role in responding to incidents. If the local authority does not believe its advice is being heeded, it will have a duty to escalate the matter to Public Health England and the Secretary of State, who will consider appropriate intervention. There is that backstop arrangement, which should reassure my noble friend and, I hope, the public that there is no question of a service locally being delivered poorly and there being no intervention to put that right.

[Lord Willis of Knaresborough]

Will the Minister state categorically that, in the event of a major public health incident within a local authority area, it will be the director of public health who has the lead responsibility in co-ordinating a response to that event?

[Earl Howe]

We expect that that will be the case but it will depend on the nature of the incident and how big a public health emergency we are dealing with. We might find, for example, that if it is an emergency that covers more than one local authority area, a particular director of public health will take responsibility on behalf of all the local authorities. We would expect Public Health England to be on the scene for any major incident and to advise, but the central point is that there has to be somebody with ultimate responsibility for what goes on on the ground. Clearly, who that person is will depend on how major or minor the incident is and the nature of that incident. It would be open to the director of public health to delegate certain functions but, again, we would expect the director of public health to retain an oversight role to make sure that functions were appropriately performed.

The noble Lord, Lord Collins, referred to the important area of prevention. He expressed concern about local authorities investing in prevention work. I was grateful to him for what he told me about the work currently being done in London on HIV prevention. The mandate to the NHS Commissioning Board does not specifically cover prevention, but local authorities will want to undertake prevention activity because this will improve the health and well-being of their population and reduce costs. Sexual health services are also a preventive activity in their own right—for example, the provision of contraception to prevent unplanned pregnancy and the testing and treatment for STIs to prevent onward transmission.

On HIV, one of the public health outcome indicators is to reduce late HIV diagnosis, and prevention activity can clearly play a crucial role in that. We are aware that in London, in particular, councils will be working together to review arrangements for pan-London HIV prevention work. The noble Lord may well be aware of the work going on to underpin the current pan-London HIV programme. The current programme comes to an end at the end of March and this has been known by all the providers and voluntary sector organisations for some time. Therefore, a needs assessment of pan-London HIV prevention was undertaken in 2011. London Councils and the mayor’s office are absolutely sighted on the need for effective HIV prevention in the capital and urgent discussions are under way about taking this forward from April.

HIV services will continue to be commissioned by the NHS. More generally, local authorities will be able to enter into cross-charging arrangements if they wish. In London, we introduced secondary legislation last year to allow the Greater London Authority to undertake public health activity in partnership with the boroughs, and that was obviously designed to facilitate co-operation across boundaries.

The noble Lord asked how we would ensure that HIV treatment was standardised across the country and whether we were intending to publicise HIV prevention. Local authorities will certainly be able to run awareness and information campaigns, and they will be funded to do so. HIV treatment will, as now, be commissioned by the NHS and be informed by the existing standards and guidance.

My noble friend mentioned the letter from my honourable friend Anna Soubry, which stated that there are no plans to do anything on the regulation of public health specialists at present. He sought reassurance on the regulation of public health specialists being in place by the end of next year. During the debate on the Health and Social Care Bill we made the commitment to regulate non-medical public health consultants after conducting a consultation. That remains the case. However, the process will take 12 to 18 months to complete and so, at this point, I am reluctant to commit to a particular date for implementation. I should be happy to follow up that comment in a letter to my noble friend.

He also raised the issue of the interface between Healthwatch England and services providers. Part 4 refers to the duty on services providers to allow entry to local Healthwatch rather than Healthwatch England. If local Healthwatch representatives observe anything that might be unsafe or poor care of any kind, they can report those matters directly to the Care Quality Commission to investigate. I hope that that addresses an issue also raised by the noble Lord, Lord Collins, because it is clearly very important for local Healthwatch not only to have a hotline to the CQC where necessary but to co-ordinate its work, where relevant, with that of the CQC—exactly as LINks do at the moment.

The noble Lord, Lord Collins, asked me about local Healthwatch in the context of the Francis report, published yesterday. All I can say at this point is that, as the Leader of the House said yesterday, my right honourable friend the Secretary of State will be considering all the recommendations in Robert Francis’s report in detail over the coming weeks. Clearly, we will need to reflect very carefully on the implications of his recommendations and we will be providing an initial response next month.

Finally, the noble Lord, Lord Collins, raised the issue of local Healthwatch being able to enter and view premises and, in doing so, access all areas in those premises—for example, areas being renovated, kitchens and so on. Local Healthwatch representatives will be able to access communal areas but there are restrictions based on the privacy of residents or patients and the need to respect that, and on intruding on the provision of care while it is being delivered. The enter-and-view powers are activities for the purposes of Section 221 and relate to service improvements. These regulations support local Healthwatch’s role in that respect.

On the issue of the reasonableness of local Healthwatch’s enter-and-view activities, the service provider’s view has to be one that is held reasonably; otherwise the provider would be acting unlawfully. Regulation 13 requires local Healthwatch, when on any premises, not to act in a way that would compromise “effective provision of care” or the,

“privacy and dignity of any person”.

These terms bear their ordinary meaning and, in our view, they are clear. They have worked well on the ground so far. They are, of course, based on the 2008 regulations and we are confident that they will serve the new system well.

I am aware that there are several matters of detail that I have not covered but I shall, as promised, look carefully once again in Hansard at all the questions posed by both noble Lords and write accordingly.