Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022

Baroness Brinton Excerpts

Tuesday 8th February 2022 Grand Committee

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak.

[Baroness Brinton (LD) [V]]

My Lords, first, I thank the technical wizards who have mended the problem with the link to the Grand Committee so that I can contribute remotely. This sort of thing happens only very occasionally, and the smoothness with which most of the business goes on is extremely helpful. I am very grateful to them.

The Explanatory Memorandum says that these regulations are to ensure protection from Covid, and the Minister has explained why there is a requirement to extend the deadline for the department to carry out a review of the CQC regulations. However, why are a further three years needed? Perhaps he can explain how there will be accountability between now and then to enable the House and Parliament to see the progress. Given that we are talking about three years, will he undertake to provide your Lordships’ House with an interim report on progress? If it takes the full three years, can that be on an annual basis?

Finally, and perhaps most importantly, can the Minister outline how the review fits in with ongoing reforms such as the Health and Care Bill, which will come to the end of Committee tomorrow, and other social care reforms? Will it keep pace with all those new developments?

I want to add one other item. The Minister knows that, when we had the Statement in the Chamber last Thursday, I asked him why care homes had not yet received the details of the change of rules about the compulsory vaccination of staff. He kindly said at the Dispatch Box that he did not have the answers to hand but would write to me and my noble friend Lord Scriven, who also asked questions about this that day. I do not appear to have had anything. Given that this covers care homes and keeping patients safe, I wonder whether I can ask again.

On Wednesday afternoon, the director-general for adult social care wrote to providers of CQC-regulated adult social care activities about the removal of vaccination as a condition of deployment. Unfortunately, the problem is that it specifically excludes care homes. I believe we know that the problem exists in regulations that need to be revoked, but can the Minister explain to the Grand Committee exactly what the problem is? Clearly, reading that letter from the director-general at face value, care homes are sitting in a limbo which no other parts of the NHS or the wider settings for care are in, in that they should be applying compulsory vaccination.

The Minister said on Wednesday that the intention was quite clear. Unfortunately, this affects care homes, because it is to do with employment law. I know that some care homes have already been approached by staff they had to sack, asking whether they can have their jobs back, while they are still waiting to hear formally from government about when the revoking of the regulations will come into force. I hope the Minister can answer my question on this.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for introducing this SI on Care Quality Commission registration, somewhat at the 11th hour before the current 2014 regulations run out on 31 March 2022. Of course, we fully support their extension beyond that date so that all providers of health and social care in England will continue to be required to register with the commission and to comply with the high patient safety and care quality standards it sets.

The SI is very brief and to the point, with the proposed extension to 31 March 2025 the only amendment to the 2014 regulations, and the activities regulated by the CQC and the fundamental standards with which all CQC-registered providers must comply all unamended and unchanged.

Like the noble Baroness, Lady Brinton, I fully understand the impact of the pandemic on the CQC’s capacity to undertake the full range of its work, but the Minister needs to explain why the extension of the regulations is for another three years, to 31 March 2025. Why so long? The Explanatory Memorandum says the extension is to

“allow the Government to review the 2014 Regulations to determine”

whether the scope of its current regulated activities

“is still proportionate to ensure that regulated activities are delivered safely to a high standard.”

The CQC’s role as regulator and the fundamental standards that it sets to ensure high-quality care are crucial. According to the Minister proposing the SI in the Commons on 26 January, time is needed

“to reform and consider the regulations more fully”.—[Official Report, Commons, 26/1/22; col. 8.]

This is a major review being undertaken by government, and we need to know much more about its extent and purpose. Why are three more years necessary to undertake this review? Can the Minister explain why, given its vital importance, the review cannot be undertaken in a shorter timeframe? What are the timescale, scope and terms of reference of the review? How are all stakeholders, including providers and patient organisations, to be consulted and involved?

As the Minister knows, under the Health and Care Bill currently in your Lordships’ House, the CQC is to take on the not inconsiderable additional duties of reviewing and assessing ICBs and the performance of local authorities in the delivery of adult social care. To what extent will consideration of the impact of this extended role be included in the review, including the significant additional resources that the CQC will need to undertake these new areas of responsibility?

We are less than two months away from when the current regulations expire, and we fully recognise the urgent necessity of this SI to ensure that the CQC’s vital role and that work will continue. I also look forward to the update that the noble Lord will provide on the questions raised by the noble Baroness, Lady Brinton, about care homes and last week’s decision on the mandatory vaccination of staff.

Vaccination: Condition of Deployment

Baroness Brinton Excerpts

Thursday 3rd February 2022 Lords Chamber

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to make her comments.

[Baroness Brinton (LD) [V]]

My Lords, from our Benches, I thank all the staff and volunteers in the entire health and social care sector, as well as the scientists and other experts, who are still working to keep us all safe as this pandemic continues, because it is clear, especially with omicron BA.2, that it is not over yet.

We are warned that there may yet be more surprises down the line, which is why it is somewhat bemusing that the Statement begins with this phrase:

“Last Thursday, we woke up to a new phase of this pandemic as we returned to plan A.”


That is extraordinary, because the Prime Minister made his Statement with neither the Chief Medical Officer nor the Chief Scientific Adviser by his side. His press conference and this Statement feel like the Government trying to create good news against the constant bad news battle, not least over partygate.

Last summer, and again before Christmas, we warned that the insistence on compulsory vaccination for front-line staff in the social care sector and the NHS would cause severe problems, specifically in terms of staff shortages as staff either left or were sacked. That problem is already evident in social care; a number of care homes have already been taken to court by staff they have had to let go.

The Statement on Monday also talked about cases falling but, frankly, the opposite is happening at the moment, with cases plateauing in some areas and rising in others. Tim Spector of the ZOE Covid study is warning that the numbers are consistently increasing despite many people no longer recording their results. The high level of cases in schools and in the younger adult age groups shows that Covid is still prevalent. Even if omicron BA.1 and BA.2 are less severe than delta—which is, by the way, good news—the number of cases has two consequences. First, there is increased pressure on primary care, especially GPs and hospitals, even if there is less pressure on ICUs. Secondly—the Minister will not be surprised to hear me say this—there are the problems faced by the clinically extremely vulnerable. I will return to this point later.

Yesterday afternoon, the director-general for adult social care wrote to providers of CQC-regulated adult social care activities about the removal of vaccination as a condition of deployment, or VCOD. Extraordinarily, this letter was written as late as on the eve of the date when notices would have to be served to staff in the NHS. Further, the letter refers to a Written Statement being laid before Parliament today but, as at 3.30 pm, it still has not been laid.

The first and second paragraphs of the letter refer to the regulations on VCOD, which relate to care homes and the wider social care sector, but the heading of the letter reads:

“Vaccination as a condition of deployment … in wider social care (social care settings other than care homes)”.

For anyone reading this letter at face value, it clearly excludes care homes from the U-turn on compulsory vaccination. There is no mention of a separate letter for them and the sector is extremely concerned. I know that the department has been dealing with calls on this matter today, but those I have talked to say that they cannot get a straight answer from the department. Can I try to distil this to get a clear answer from the Minister, who I wrote to about this earlier today?

Is the reason that the letter to the social care sector specifically excludes care homes from the compulsory vaccination rule changes because they are covered by regulations that are being revoked and it is not necessary and, if so, why were they not told that in the letter? Or is it because of an error, and they will receive a separate letter that has not gone out yet, despite today being the day that any final employment notices must be served? Or is it because compulsory vaccination rules remain in care homes? Another matter that I have picked up today is that this letter was not sent to hospices. Why was that? I hope the Minister can give your Lordships’ House a precise answer, but there is a wider interest in this so, if he cannot give me that now, I would welcome a written response.

Secondly, can the Minister say whether UKHSA gave formal advice to the Department for Education, in advance of Nadhim Zahawi’s guidance to schools on 20 January, specifically the strong guidance on no face coverings in schools, other than temporarily and only on the advice of their director of public health? Further on in the guidance, on page 12, it says that

“Children and young people previously considered CEV should attend school and should follow the same … guidance as the rest of the population. In some circumstances, a child or young person may have received personal advice from their specialist or clinician on additional precautions to take and they should continue to follow that advice.”


What would the Minister say to the head who, earlier this week, asked all pupils—not just the CEV pupil—to wear masks until further notice, as one pupil has leukaemia and is severely immunocompromised? The family and the school want that pupil in school, if possible. Why have the Government, the Department for Education or the Department of Health—I do not mind which—not given advice to these pupils, their families and their schools?

Finally, the briefing to journalists earlier this week that the Secretary of State for Health wants to stop publishing Covid data in mid-April has rung alarm bells across the medical and scientific community, as well as for those who are CEV and are still following the guidance in place for them. Scientists say it will reduce their ability to look at data to understand the progress locally, regionally and nationally, and doctors need that information too. I hope the Minister can confirm that any such decision is in the hands of the Chief Medical Officer and the Chief Scientific Adviser, as these are scientific, not political, decisions.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I start by thanking both the noble Baronesses for their questions and the Benches opposite for their support during this difficult time. There was not really much political difference between us. We all recognised that vaccination remained the best defence against the virus and the variants. I also thank them for their support on VCOD.

One of the things we have constantly been doing—for example, over the Christmas break, I was on almost daily calls with other Ministers, the UKHSA and others—is to look at the evidence and the data, as it came in. We were always led by data when it came to making decisions. At the time, we felt that it was right to bring VCOD in for care homes and then to extend it across wider health and social care. You only have to look back to the beginning of Covid when we saw the disproportionate number of deaths in care homes.

Given that Delta has now been replaced, it is not only right but responsible to revisit the balance of risks and opportunities that guided our decision last year. In weighing them up, this was the balance we struck. First, our population as a whole is now better protected against hospitalisation from Covid-19. Secondly, the dominant variant, Omicron, is intrinsically less severe. Taken together, the evidence shows that the risk of presentation to emergency care or hospital with Omicron is approximately half that with Delta. Given these changes, and in conjunction with scientific advice, we have reviewed the policy and decided it is no longer proportionate to require VCOD.

We continue to encourage staff to take up vaccines. It is really important. I know most noble Lords have supported this. The NHS has focused on a targeted approach, particularly among hesitant groups within the health service, but in some ways, those hesitant groups reflect hesitant groups in the wider population. When speaking to my colleague, the Minister Maggie Throup, I have been very impressed by the number of different targeted interventions and consultations there has been, sometimes targeted right at the level of local communities. When I chaired a round table for black and ethnic minority organisations this week, one of the things we looked at was how to roll out antivirals. The question there was do we need to do still more work to convince those who are hesitant in certain communities, sometimes based on ethnicity, sometimes based on geography, sometimes based on income levels. How do we make sure they are vaccinated?

The NHS has continued and will continue with its one-to-one conversations with all unvaccinated staff. This has been associated with an early increase in vaccine uptake by 10%. Even though VCOD, we hope, will be dropped subject to the consultation, we will continue, and I know the NHS will continue, to consult all staff.

On the written advice to those who are about to issue letters today—I have to take responsibility for this—it was waiting for sign-off from me because I was doing lots of meetings for the Bill. I am very sorry; I was juggling two things at once. However, literally just before I came into this Chamber, I gave my sign-off for that letter to go out to give advice that those letters of dismissal should no longer go out.

We know it does not happen immediately, but we want to finish the consultation quickly. We hope to finish the consultation by April, and then we can drop VCOD.

As I said, we are continuing with the wider vaccination programme, and our intention is to be able to revoke it well ahead of 1 April, which is our target date. We want to move as quickly as possible, but as noble Lords will acknowledge, we also have to do a consultation process.

In the care home sector, employees have already been dismissed since 11 November. We know it has been difficult. Care homes were following the laws at the time. There have been conversations about whether some care homes will have those conversations with staff who have left. Will those staff want to go back, or have they got new jobs? This is part of our wider recruitment process to make social care a more attractive vocation and a more attractive career. Some care homes have told us individually that they will probably keep VCOD because it gives more assurance to the relatives of patients in those care homes. So, it is very much not one size fits all.

Some have asked why we are doing this now and whether it is still too dangerous. Others have asked why we have not done this sooner. We have always followed the evidence. We have always balanced the risks, and we now recognise, clearly, that given the rates of transmission, the lower severity of Omicron and the higher percentage of staff that are vaccinated in both the health and social care systems, this was the right time.

I thank the noble Baroness, Lady Brinton, for giving me advanced notice of some of her questions. Unfortunately, I do not have good enough answers at this stage, so I am going to go back to my department and ask for clearer answers, and I will write to her.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, the noble Lord, Lord Blencathra, has outlined why there is an urgent need to address the NHS procurement rules in the light of possible genocide and other clear human rights abuses. We have a duty as a nation and as a society to ensure that goods used in our publicly owned NHS are not tainted with modern slavery or linked with behaviours that may lead to genocide.

This is not hypothetical. In November 2020, the noble Lord, Lord Alton—who I look forward to hearing speak shortly—asked the noble Lord, Lord Bethell, the then Health Minister, about Medwell Medical Products, which has a factory in Fenglin town, in Jiangxi province, noting that Uighur Muslims made up 25% of the workforce, despite being forced to live in separate accommodation from other workers. This was reported at the time by the excellent investigative paper, Byline Times. At the time, the noble Lord, Lord Bethel, said that the Government had not entered into an agreement directly with Medwell but that the central distribution warehouse in Daventry did have a record of receiving PPE masks produced by Medwell Medical Products. A spokesman for the Department of Health and Social Care said to Byline Times:

“We expect all suppliers to the NHS to follow the highest legal and ethical standards and proper due diligence is carried out for all Government contracts.”


This is an extraordinary response. Any contractor to the Government, even in an emergency such as a pandemic, must follow the commitments that the Government have given internationally to ensure that goods used by the publicly owned NHS are not tainted with human rights abuses. If companies such as Marks & Spencer can do it for their clothes supply chain, we can too.

In July 2020, the New York Times reported that Uighur Muslims—a minority subject to widespread persecution in China, including being put into detention camps where they are forced to undergo communist indoctrination—were being employed in the factories of medical suppliers under a specific Chinese Government labour programme. The Speaker of the US House of Representatives said at the time:

“We must shine a light on the inhumane practice of forced labor, hold the perpetrators accountable and stop this exploitation. And we must send a clear message to Beijing: these abuses must end now.”


As the noble Lord, Lord Blencathra, said, just over a year afterwards, in December 2021, the Americans passed the Uyghur Forced Labor Prevention Act into federal law.

UK Health Ministers’ responses in 2020 were, perhaps typically of this Government, aimed at prevarication and deflecting responsibility. This amendment does exactly what the noble Lord, Lord Blencathra, said, and what any self-respecting Government should do. It makes it absolutely plain that procurement must be

“consistent with the United Kingdom's obligations under the Convention on the Prevention and Punishment of the Crime of Genocide”,

and that

“procurement is not consistent if a Minister of the Crown has assessed that there is a serious risk of genocide in the sourcing region.”

The amendment also sets out conditions under which the risk should be investigated if the chair of a relevant Select Committee of either House of Parliament requests an assessment.

The amendment is very straightforward and clear. Perhaps the Minister can explain which parts of it he has problems with. It actually helps the Government, especially after the discoveries of the PPE provided by Medwell Medical Products and the supply chain—we suspect there are many other such companies as well. If the Minister is not minded to accept the amendment, can he explain to the House how NHS procurement can be protected from these human rights breaches, including possible genocide, in the future, and what guarantees there are that the department sees the supply chain details? I hope he will also agree to a meeting with the speakers in the debate on this amendment.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I apologise for not forewarning noble Lords that the noble Baroness, Lady Brinton, and the noble Lord, Lord Howarth of Newport, wish to speak remotely on this group of amendments.

[Baroness Brinton (LD) [V]]

My Lords, Amendment 219 in this group is in my name and I thank the noble Baronesses, Lady Pitkeathley, Lady Watkins of Tavistock and Lady Meacher, for also signing it. Just before I speak to that amendment, can I say that I also support the other amendments in this group so helpfully introduced just now by the noble Baroness, Lady Wheeler? I find her clarification of the difference between care workers and unpaid carers particularly helpful and vital in this debate because unpaid carers are invisible.

My amendment deals with unpaid carers. I am very grateful for the briefing from Carers UK which estimates —as we heard from the noble Baroness, Lady Wheeler—that there are as many as 13.6 million unpaid carers in the UK and, shockingly, over 1.4 million people providing over 50 hours of unpaid care a week. My brother looked after my mother for eight years, probably for 40 to 50 hours a week for most of that time. It meant that he just could not work at all. He is not alone.

I am sure we all know someone who is an unpaid carer. Even if they want to fulfil this role for their loved ones, society and the Government need to recognise the difficulties this gives the carers. The census in 2011 showed that carers are more than twice as likely to be in poor health than those who do not have a caring role—and they need support too, especially if they are isolated at home with the person they are caring for, whether that is day services or short in-patient respite care. Some 72% of carers have not had any breaks from caring during the pandemic and, as a result, are exhausted and worn out.

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[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

I thank the noble Baroness very much indeed. That makes it 15 all, I think.

The noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I too will be extremely brief on this, given the hour and the number of groups we have to go through.

I am very interested to hear the response of the Minister on this; it feels as though there has been a sort of gentle relaxation, and it would be good to understand the boundaries for foundation trusts around how much they can increase their income from private patients at exactly the time when we have a phenomenal NHS waiting list and people are becoming more seriously ill as a result of the pandemic and there are delays in getting their treatment.

I say this particularly in the light of two recent comments—as I will call them—by the Secretary of State for Health. One was about increasing the amount of contracting from the NHS to private hospitals to perform large numbers of investigations as part of the backlog, but this is becoming habit now in this exceptional time—we have bad flu winters as well, but this is an exceptional time. Perhaps slightly more worryingly, the other concerns proposals that were outlined, informally, by the Secretary of State a couple of days ago to change entirely the nature of contracts with GPs. I am concerned that some of the structures, particularly for foundation trusts, are being loosened without Parliament being aware. I look forward to the Minister’s response.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I think now would be a convenient moment for her to speak.

[Baroness Brinton (LD) [V]]

My Lords, along with the noble Baroness, Lady Thornton, and other noble Lords, I was involved in the passage of the Bill that started off life as the Healthcare (International Arrangements) Bill, and which, by the time it was passed, had been renamed the Healthcare (European Economic Area and Switzerland Arrangements) Bill—a name almost as long as the Bill itself, and after some of the worst Henry VIII powers had been removed, including the power of Ministers to sign international trade agreements that could include preferential access to NHS contracts without the formal scrutiny and decision-making powers in Parliament.

The frustration with the remote arrangements is that I am speaking before my noble friend Lord Sharkey. I know that he will speak about the delegated powers in Clause 136. I wish I could hear his contribution before I speak, but I want to say that it seems the Government have forgotten, in nearly three years, the roasting that they got from your Lordships’ House during the passage of the Healthcare (International Arrangements) Bill. The noble Lord, Lord Wilson of Dinton, said:

“The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on.”—[Official Report, 12/3/19; col. 926.]


The then Health Minister, the noble Baroness, Lady Blackwood, when conceding on those Henry VIII powers later that day on Report, said:

“I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances … we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).”—[Official Report, 12/3/19; col. 963.]


One of the reasons that your Lordships’ House is so concerned is that it looks as if the provisions in that Bill are being resurrected in Clause 136 of this Bill. I will give two brief examples: “2 Healthcare agreements and payments” on page 110 of the Bill, among other clauses, gives the Secretary of State the powers to make a healthcare agreement with another country and for Parliament to only comment on it by the negative resolution. For those of us who worked on a previous Bill, that sounds horribly familiar. It also gives the Secretary of State the power to give directions to a person about the exercise of any function, which is familiar not only from that Bill but from other parts of this one.

In “2B, regulations under Section 2A: consent requirements” on page 112, it says at (5) that the consent of the Secretary of State is required for a

“healthcare agreement”

which means

“an agreement or other commitment between the UK and either a country or territory outside the UK or an international organisation, concerning health provided anywhere in the world”.

Any type of “agreement” or “commitment” brings us full circle back to the Healthcare (International Arrangements) Bill as first drafted. This would include international treaties, as was planned back in 2019, to include that access to providing major parts of healthcare in the NHS, but without the consent or knowledge of Parliament, because the detail of the agreement would not need be seen before it was signed, including by the NHS, its stakeholders and the staff who work in the sector.

Lest we think that this is just words, the Chancellor of the Exchequer and the Secretary of State for Health and Social Care have both talked extensively in America to healthcare providers in recent months. What is different about this clause is the breadth of definition of a healthcare agreement, the powers that are held only by the Secretary of State, and the total lack or paucity of consultation or scrutiny by Parliament and other stakeholders before the Bill came to your Lordships’ House.

Why has Clause 136 reinstated some of the key elements of the Healthcare (International Arrangements) Bill that were removed because Ministers recognised that the scope was too wide, the Henry VIII powers were egregious, and Parliament, the NHS and other stakeholders were being totally disregarded?

Should my noble friend Lord Sharkey wish to propose on Report that the clause do not stand part, I will support him.

[Lord Sharkey (LD)]

My Lords, as the noble Baroness, Lady Brinton, said, I have given notice of my intention to oppose the Motion that Clause 136 stand part. This clause is yet another example of the Government’s abuse of delegated legislation and the avoidance of any meaningful parliamentary scrutiny. It is also a clear and obvious breach of an important constitutional convention.

Clause 136 amends the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which started off life as the Healthcare (International Arrangements) Bill, as we just heard. It would enable the Government to implement healthcare agreements with countries outside the European Economic Area and Switzerland. The exercise of the powers in this clause is through regulations subject only to the negative procedure. The department points to the 2019 Act as for seeking these powers, despite what we just heard from the noble Baroness, Lady Brinton.

During the passage of the then Bill in 2018-19, the Government justified or tried to justify taking the relevant powers as the need for speed and flexibility in the extraordinary circumstances of the EU withdrawal process. Parliament did not accept the provisions in the original Bill that the powers should be geographically and temporarily unlimited. After interventions by Parliament, the powers ended up being confined to the EEA and Switzerland and being sunsetted.

The department may be correct to state that the Secretary of State currently lacks the necessary powers to implement reciprocal healthcare agreements with countries outside the European Economic Area and Switzerland. However, this does not mean that there is currently no way to implement such agreements. They could and should be implemented by primary legislation. This would be in keeping with a long-standing constitutional convention that, outside the exceptional case of making provision for EU law, international legal agreements that make changes to UK law are given domestic force by an Act of Parliament. This ensures proper parliamentary scrutiny.

Our committees have pointed out breaches of this convention to the Government on several recent occasions. The last occasion was the proceedings of what was originally the Healthcare (International Arrangements) Bill, as I have just mentioned. Before that, the DPRRC commented on the breaches of this convention in the Professional Qualifications Bill in May 2021 and the Private International Law (Implementation of Agreements) Bill in March 2020. The Constitution Committee commented on the same Bill in its May 2020 report and concluded that:

“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation.”


This is exactly what the Government are proposing in Clause 136.

The department does not address why such international healthcare agreements could not be implemented by primary legislation. We could try to remedy this abuse of delegated powers and breach of convention, as we did with the 2019 Act, by limiting their application and by sunsetting provisions. But, without a clearer understanding—or indeed any understanding—of exactly what agreements the department intends to use these powers for, it is not really possible to limit the power as we did then. The powers could also be sunsetted, as per that Act, but it is clear this would be inappropriate, given there is no longer a pressing time constraint on their use, unlike the then imminent departure from the EU. A better solution would be for the Government to abide by the constitutional convention and bring forward the appropriate primary legislation. That is the only way in which to enable any meaningful parliamentary scrutiny of these important reciprocal arrangements.

I look forward to the Minister’s explanation of why it is necessary to bypass Parliament and breach the constitutional convention in the manner proposed. I understand why it may be convenient, but cannot see why it is necessary or proper. We will certainly return to this issue as the Bill progresses.

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[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baronesses, Lady Brinton and Lady Campbell of Surbiton, will be speaking remotely. I invite the noble Baroness, Lady Brinton, to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I thank the Minister for introducing the large swathe of government amendments, trying to provide small changes to clarify and to remove unintended consequences of the current system. I will speak to Amendments 235, 236A and to Clause 140 standing part of the Bill.

Amendment 235 in the name of the noble Baroness, Lady Greengross, is an attempt to replicate and update the Dilnot cap. It is certainly better than the current system, and I think that many noble Lords across all parties in this House have said that it is a shame that the new system does not emulate Dilnot better. The amendment from the noble Lord, Lord Lipsey, reduces the rate at which those on low incomes lose benefits if they have assets above the means test threshold.

However, Clause 140 as a whole is a problem. It was added to the Bill later and was not considered by the Commons Bill Committee. Under Amendment 234, “persons entering the care system at or under the age of 40 will have their care costs capped at £0. This would apply to new applicants as well as existing care users who, while over the age of 40, have been accessing care and support since before the age of 40.” It is a huge form of injustice that we have an NHS that is free at the point of use and yet young people with learning disabilities and life-limiting health conditions are being charged for their essential care. One survey of respondents with disabilities in April last year found that 81% said that they had faced cuts in care packages or increased charges during the pandemic, with over half of them specifically reporting increased charges. The survey found that

“charges had forced people to stop care they needed or make difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.”

The National Audit Office reported on local government finance in the pandemic and found that 41% of councils with social care responsibility said that they needed to make “substantial” service savings to balance their budgets, including by increasing charges and further use of their reserves.

Mencap’s response to the national insurance levy was that

“we can’t see how the proposed cap on care costs will benefit people with a learning disability … People who need care are missing out, others are having their support cut and some are being asked to pay towards their care which they simply can't afford.”

Further, BBC research has found:

“Some adults with learning disabilities are paying thousands of pounds extra a year, with six councils doubling the amount of money collected in charges. In half of 83 areas that responded to a BBC request, bills across all users have risen at least 10% over two years.”


One example is Saskia Granville, who was shocked when, earlier this year, her care charges increased more than 400%, from £92 to £515 a month. She has a learning disability and lives in supported accommodation in Worthing, west Sussex, but fears the charges will curtail her independence. Some 94% of people with learning disabilities are not in work so they just cannot find that extra cash.

I look forward to hearing from the Minister how on earth he thinks that the current system is either justifiable or equitable. While there may be change trying to sort out some of the minor anomalies, what remains is a system that is deeply unjust. I hope that the Minister is able to consider both Amendments 235 and 236A. I remain to be convinced by the arrangements that he has outlined and if brought back at Report, I am likely to support Clause 140 not standing part of the Bill.

Social Care Sector: Private Equity

Baroness Brinton Excerpts

Thursday 27th January 2022 Lords Chamber

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, the noble Baroness, Lady Brinton, wishes to speak virtually, and I think that this is a convenient point to call her.

[Baroness Brinton (LD) [V]]

My Lords, typically, private equity-backed providers spend about 16% of the bed fee on complex buy-out debt obligations. The accounts of Care UK show that it paid £4.1 million in rent in 2019 to Silver Sea Holdings—a company registered in low-tax Luxembourg—which is also owned by Care UK’s parent company, Bridgepoint. Given that the ONS says that 63% of care home residents are paid for from the public purse, does the Minister not think that private equity providers should be subject to a financial code of conduct?

[Lord Kamall (Con)]

What is important is to make sure that we have continuous and high-quality care for patients. Therefore, where there are concerns about the financial stability of any company, whether it is funded by private equity or otherwise privately owned, it is important that we have a system to make sure that we manage that. If a company goes under, there is the ability to transfer patients to high-quality care. The important thing for us is the quality of care for patients—it is important that we put patients first.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, we have just heard a very powerful contribution from my noble friend Lord Sharkey, reminding Ministers and your Lordships’ House of the importance of the problem of Ministers taking delegated powers, stopping Parliament doing its job properly. I support his amendments.

Amendments 133, 139 and 161 in this group, from the noble Baroness, Lady Greengross, are on continuing healthcare and I can think of no better person in your Lordships’ House to speak about the importance of that. I look forward to her speech. I am pleased to support her amendments and will speak to them now. The NHS definition says:

“Some people with long-term complex health needs qualify for free social care arranged and funded solely by the NHS. This is known as NHS continuing healthcare.”


The full continuing healthcare assessment and the toolkit for updating assessments are absolutely vital for any multidisciplinary team and, at least in theory, these amendments put them on a formal footing as part of the smooth package of care that individuals need. The amendments establish a duty to fund and assess continuing healthcare, which needs to be visible, not least because of the abuses in the current system.

The principles of continuing healthcare in current legislation are fine, but unfortunately, as money has got tighter, there are problems with how they work in practice. There are many reports of CCG assessors and social workers having disruptive and degrading discussions, sometimes with family members present, about whether a particular issue is a continuing healthcare or a personal care need, which would be funded by the patient or their local authority, or the NHS. I personally witnessed a debate about the percentage split of continuing care versus personal care concerning the incontinence of a family member. It was not about the patient; it was solely about money and who would pay.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have failed in my duty, and not for the first time. I should have stated before calling Amendment 145 that the noble Baronesses, Lady Brinton and Lady Harris of Richmond, will be taking part remotely. May I apologise, and invite the noble Baroness, Lady Brinton, to speak?

[Baroness Brinton (LD) [V]]

My Lords, this probing amendment from the noble Lord, Lord Hunt, is essential, because it protects confidential patient data from being given out by an ICB in contravention of the ethics rules of the General Medical Council and other regulatory bodies.

When the Police, Crime, Sentencing and Courts Bill arrived in your Lordships’ House in the autumn, it had clauses in it that gave the police, probation and prison services access to a patient’s confidential medical data as part of their role to reduce and prevent serious violence. As originally drafted, that Bill would have required GPs, CCGs and their staff to hand over that data. This was not just about those under suspicion; it could have been anybody involved in serious violence.

I had extreme concerns about this, and I tabled an amendment not dissimilar to Amendment 145. I was grateful for the support of the noble Lords, Lord Patel and Lord Ribeiro, the General Medical Council, the BMA and others in Committee on that Bill. We had meetings between Committee and Report with officials from the Department of Health and the Home Office, meaning that by the time we got to Report the Government had laid amendments to ensure that a patient’s personal data could not be demanded by the police, probation and prison services. It is now recognised that the medical regulators—the GMC, the Nursing and Midwifery Council and other bodies—actually have the responsibility and the excellent ethical standards by which their members are expected to judge what they should do if they are asked for personal data.

The amendment from the noble Lord, Lord Hunt, would address what data an ICB may disclose by adding a subsection to protect the Government in the same way as happened in the police Bill, so that the personal data of patients should not be disclosed. This is a vital amendment. The Government have already accepted in this Parliament that a patient’s personal data must not be accessible by those other than clinical and clerical staff dealing with it, who must abide by the confidentiality rules of their regulatory body or by their employment contract.

This is even more necessary, because the Bill says in new Section 14Z61(1)(g), on permitted disclosures of information, that

“the disclosure is made in connection with the investigation of a criminal offence”.

That is even broader than in the original police Bill. Patient confidentiality is a fundamental ethical duty. It is crucial to upholding the trust that lies at the heart of the doctor-patient relationship. The new section will give the ICB the right to override that.

New paragraph (e) is also more far-reaching than the investigation of any crime. It says that

“the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment”.

So it is not the doctor or the ICB that has the choice about disclosing that information; they must take the word of the person making that request. That is total free access for anyone who says that it is necessary or expedient for them to have that information. Where is the protection of a patient’s individual and confidential data?

It also removes the decision from GPs, despite GPs having very clear and effective guidance from the GMC on when, in exceptional circumstances, they can give out data. I will not quote the whole of the guidance, because we do not have time, but there are two vital points that a GP must consider: the patient must consent, whether implicitly or explicitly; and disclosure must be permitted or must have been approved under a statutory process that sets aside the common-law duty of confidentiality. The doctor also has a duty, even when they have made their decision, to use anonymised information if practicable, and they must be satisfied that the patient has ready access to information explaining how their personal information will be used. It goes on, but I will not quote the rest.

One might hope that Ministers assumed when drafting the clause that confidential patient data would never be included, other than for the treatment of the patient. However, paragraphs (e), (g), (h) and (f), as the noble Lord, Lord Hunt, outlined, put paid to that. If the argument is that the clause is needed because the ICB might have to share data with, for example, care providers or social workers carrying out assessments, that needs to be made clear, and it would be permissible. But, as drawn, it is far too brief.

The amendment from the noble Lord, Lord Hunt, at least protects the personal data of patients. It is very straightforward and provides the protection that every doctor, nurse and patient would expect. So I hope the Minister will say today that he is happy to accept the amendment. If he is not, please will he agree to a meeting with those who have spoken in this debate, and invite the GMC and the BMA? If progress is not made on this, I will lay an amendment on Report and am likely to press it to a Division.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Baroness, Lady Harris of Richmond, is also taking part remotely and I invite her to speak.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, the amendments in this group, so ably introduced by the noble Lord, Lord Crisp, aim to restrict the powers of the Secretary of State to limit the capital spending of NHS foundation trusts and to ask for the reinstatement of the 2019 agreement. It is important to note that these amendments do not remove the powers as a whole but tighten them to avoid changes by the Secretary of State to funding that would delay capital works which are needed and urgent on health and safety grounds.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I now call the noble Baroness, Lady Brinton, to speak remotely.

[Baroness Brinton (LD) [V]]

My Lords, there are two amendments in this group, both dealing with end-of-life arrangements, and I support both of them. Amendment 203 in the name of the noble Baroness, Lady Meacher, would put on the face of the Bill an extremely important provision—that of giving anyone with an end-of-life diagnosis the right to a conversation about their needs, how and where they want to die, and how they can be given the support they need to achieve that. This is long overdue. Our excellent palliative care and end-of-life healthcare clinicians and professionals carry out an invisible yet vital service to people. But unfortunately, it is not universal.

Why, oh why, as a nation, do we hate to talk about dying? I have seen both the best and worst in practice. Indeed, very recently, a friend in hospital who was told that he had a few weeks left wanted to go home to die. No one at the hospital used the phrases “end-of-life care” or “palliative care” or even talked about hospices. They thought he was not close enough to death to get to that stage. Instead, there were discussions about setting up the right domiciliary care, or possibly a care home through the council. This amendment would ensure that when the diagnosis of end of life is made, that conversation will happen for all patients. That is very welcome. It is too late for my friend, who died while he was still in hospital.

Amendment 297 in the name of the noble Lord, Lord Forsyth, sets out the requirement for the Secretary of State to lay a Bill before Parliament to permit terminally ill and mentally competent patients to end their own lives with medical assistance. I offer my deepest sympathies to the noble Lord, Lord Forsyth, on the death of his father. I look forward to hearing his speech on this amendment, and I apologise that, due to the remote contribution rules, I have to comment on it before he speaks.

Both the Private Member’s Bill brought by the noble Baroness, Lady Meacher, and before it the Private Member’s Bill brought by the noble and learned Lord, Lord Falconer of Thoroton, had exceptionally sensitive and thoughtful debates in your Lordships’ House, but neither has progressed any further. We know that public views have changed—like those of the noble Lord, Lord Forsyth—in light of sad family experiences of death where pain and trauma were not controlled and where, for too many people, access to palliative care and end-of-life care was just a lottery.

I have spoken in the debates on both those Private Members’ Bills in favour of assisted dying and remain firmly committed to campaigning for it, but that is not what tonight’s debate is about. If accepted, Amendment 297 would not immediately change the law on assisted dying. It would merely require Ministers to bring forward draft legislation, not even to campaign in its favour.

Government is well placed to draft the legislation, encourage a wider public debate through consultation and bring together voices and views from right across our society in a way that perhaps the polarised debate between individual MPs and Peers on such a complex issue always makes difficult. Government can and should maintain their neutrality on assisted dying, but they can guarantee sufficient time for the consideration of the legislation.

It is worth noting that in those jurisdictions where assisted dying has been made legal, there have not been the disastrous consequences predicted by opponents. Instead, those laws continue to receive huge popular support many years after legalisation. In no jurisdiction has any law been passed on assisted dying and subsequently repealed, demonstrating perhaps that the fears of opponents to assisted dying have not come to pass.

The Crown Prosecution Service has recently opened a consultation on the introduction of a prosecution policy for homicides that can be categorised as mercy killings or suicide pacts. The prosecution guidelines, if approved, would add clarity to the law in the same way as the prosecution policy on assisted suicide adopted over a decade ago. While this is helpful, it does not change the law, and it cannot protect dying people with a legal choice of how to end their life, nor can it protect their families, as decisions would be made by the CPS only after the death of the person. I have seen a family friend have to go through the trauma of a police investigation after her husband took his own life. He deliberately chose a day when she was 100 miles away to protect her. It still took months for the police to make their decision and, frankly, it was cruel.

What we need above all is a commitment to a public consultation and parliamentary time for a wider debate on assisted dying. Amendment 297 provides that. It does not change the law on assisted dying. Tonight is not the right time for that, but I think the country is ready for that debate. Both these amendments are vital in their own way, and I hope that the Minister will be able to respond favourably.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite her to speak.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, we have two noble Baronesses taking part remotely. I first call the noble Baroness, Lady Brinton.

[Baroness Brinton (LD) [V]]

My Lords, the present Health Minister and his predecessors for a number of years—far too many years, frankly—should not be surprised by these amendments, all of which cover the issue of workforce planning. Often, Ministers’ words and aspirations have been supportive but the reality is that, without proper long-term workforce planning, the NHS and our social care sectors will struggle to be able to plan for the medium term, let alone the short term.

My noble friend Lady Walmsley introduced this group by saying what is needed in workforce planning and why, and I support her brief but critical amendment to ensure patient safety. The other amendments in this group set out the how: whether the workforce planning reports or clinical and healthcare training needs in Amendment 171, the duty on the Secretary of State in Amendment 173, the report on parity of pay in Amendment 174 or the important Amendment 214 from the noble Baroness, Lady Finlay, on workforce boards. I am looking forward to hearing the expert contributions to follow on them from the noble Lord, Lord Stevens, and many other noble Lords, and I hope that the Minister will take note of how the lack of effective workforce planning is hobbling the provision of health and care services in England.

Health and Care Bill

Baroness Brinton Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I wish to speak in support of Amendments 54, 74 and 97, tabled by the noble Baroness, Lady McIntosh, and Amendment 163, tabled by the noble Baroness, Lady Finlay. I too pay tribute to the historic work of the noble Lord, Lord Patel, prior to the setting up of NICE.

While it is not an interest in the formal sense, I declare that I have autoimmune disease and have experience of being on the NICE rheumatoid arthritis care and treatment pathway for 19 years, which has been regularly updated by NICE over that time. Where it has been applied in full and from diagnosis, patients have found it very beneficial and, with new and more effective drugs being approved every few years, many are now in remission. I pay tribute to the consultants trying to do their best for their patients and the National Rheumatoid Arthritis Society and Versus Arthritis helplines which support RA patients in navigating their way through access to their NICE treatments when these have been blocked.

I thank the noble Baroness, Lady McIntosh, for her introduction to this group and for explaining the problem with the formulary list. She is right that this should be addressed formally. However, I want to focus on some of the commissioning practices on NICE-recommended treatments, including those on the formulary, in the current CCGs, because I believe these explain the need for the amendments in this group.

In May 2014, the High Court ruled that Thanet CCG could not disagree with NICE guidance merely because it disagreed with it, even when there is no statutory duty to provide that treatment. This specific case was about access to fertility treatments for a woman who was about to undergo bone marrow transplantation to put her severe form of Crohn’s disease into remission. NICE’s 2013 clinical guidance recommended that

“oocyte or embryo cryopreservation as appropriate”

should be offered

“to women of reproductive age … who are preparing for medical treatment for cancer that is likely to make them infertile”.

This was not cancer, and the CCG’s own policy was to not grant funding unless there were exceptional circumstances.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 3 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak.

[Baroness Brinton (LD) [V]]

My Lords, I thank the noble Baroness, Lady Finlay, for laying these amendments and pay tribute to her for her tireless work in the palliative care sector and in your Lordships’ House. I also thank Marie Curie, Hospice UK, Sue Ryder, Alzheimer’s Society and Together for Short Lives for their very helpful briefing.

Clause 16 provides integrated care boards with duties to commission hospital and other health services for those for whom they are responsible. While specific services are highlighted in the clause, there is still nothing for specialist palliative care as currently drafted. There should absolutely be a fundamental right to access palliative and end-of-life care and support services for everyone who needs them. It is vital to restate that palliative care and end-of-life care are not always the same thing.

Hospices, homes and special services at home help children and adults for more than just those last few days. However, far too many people already miss out on palliative care, as the noble Baroness, Lady Finlay, set out; estimates suggest that while as many as 90% of people who die may have hospice and palliative care needs, only around 50% will actually receive it. Like many others, I am afraid I know family and friends who were desperate to move to a hospice in their last few days but ended up dying in hospital. In my stepfather’s case it was because of the bureaucracy of the hospital—at the point at which they said it was possible to move him, they said it was too late.

If we can reduce unplanned and potentially avoidable hospital admissions, it would be considerably less distressing for the patient and their families and would also reduce pressure on our hospitals.

With people in the last year of their life in England accounting for some 5.5 million bed days, it is estimated that the total cost of these admissions is over £1 billion for our already pressed acute hospital trusts. I have a friend currently receiving end-of-life care who is also stuck in a hospital. The real problem is the lack of understanding of where and how the specialist services can be provided. That is vital, because otherwise people end up in hospital and cannot get out again.

During debate on a similar amendment in Committee in the Commons, the Minister of State for Health, Edward Argar, indicated that the Government’s view is that everything is covered by aftercare. As the noble Baroness, Lady Finlay, said, this is not aftercare. If you have ever seen the brilliant work of palliative care specialists, you will understand that it is real care at a vital time in people’s lives.

I mentioned Together for Short Lives in opening. I have a particular interest in children’s palliative and end-of-life care. One of the things that worries me most at the moment is that people often do not understand that respite care for families looking after young children with very serious illnesses and disabilities has been a vital way of ensuring that they can have some sort of break. They often work 18, 19, 20 hours a day, sometimes with help at home but often, during the two years of the pandemic, with no help at all.

Take the example of my local children’s respite centre, Nascot Lawn. The parents took the CCG to the High Court twice and won, but it closed down. It was not the first. Part of the problem we have with our hospices and other forms of provision is that they rely utterly on public fundraising. The last two years have been a particular problem. For children’s respite and palliative care, it is an absolute tragedy—far too many units are closing down around the country.

In addition, despite a version of the language used in Clause 16, on aftercare, having been in place since the 2012 Act, many CCGs do not currently commission sufficient specialist palliative care. Worse, in the case of Nascot Lawn, the entire onus was put on the local authority because, it was said, it was about personal care. One of my concerns is a muddle between personal care and aftercare, when all these children required specialist nursing.

It is vital that the funding element is looked at. The noble Baroness, Lady Finlay, is right that the NHS always proudly boasted that it was there for people from the cradle to the grave. Sadly, at the moment this is not true. It is the hidden gem of our public health system and we must find a mechanism to make it not hidden but apparent and something that everyone who wants and needs it can rely on in the future.