Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

Amendments 23 and 24 not moved.

[Baroness Chisholm of Owlpen (Con)]

My Lords, we will start the next grouping now but we will stop at 2.15 pm. Anybody who is speaking three minutes before 2.15 pm should realise that they will have only three minutes before we stop, if the Committee sees what I mean.

Amendment 25

Moved by

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[Baroness Walmsley (LD)]

My Lords, I support that. I am glad that the noble Baroness, Lady Thornton, introduced Amendment 34. According to the Bill as it stands, the chief executive of the ICB could be appointed only by the chair—of course with the approval of NHS England. Like many of your Lordships, I have been on a board, including being the chair of a board, and as such, I always thought it good practice to appoint my chief executive with the help and approval of my board members. As an ordinary member of a board, I cannot imagine how I would have managed the relationship with a chief executive officer who had been appointed over my head only by the chair without any consultation with me or other members. If we want to encourage collaboration, that is not the way to do it at board level.

It is inconceivable that the mechanism would work in practice in such a situation. Indeed, it is vital that all the senior people who steer the ICS, the members of the ICB, and indeed the chair and members of the ICP, must have confidence in the chief executive; the word “confidence” was so appropriately used by the noble Lord, Lord Hunt of Kings Heath. How could that be if they had no involvement whatever in the appointment? It is a simple matter of good practice and I shall be very interested to hear what the Minister can possibly find to say against it.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I know we have 10 minutes to go, but perhaps it makes sense to stop now in case noble Lords want to interject during the Minister’s speech.

Debate on Amendment 25 adjourned. House resumed.

Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

House resumed.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I suggest that we adjourn the House for four minutes, until 7.30 pm.

Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I am delighted that my noble friend Lord Howarth has brought this suite of amendments in front of the Committee and is bringing the wealth of his experience to our debates on the Bill. He is a great proponent of the role and value of the non-clinical services in healthcare and well-being, and quite rightly too. It would be great if, somehow or other, this could be recognised in whatever comes out of our considerations, though I challenge the Minister to tell us how we might do that.

We support the amendments in this group to establish a role for wider considerations beyond remedial, interventionist clinically-led care. Amendment 90 covers housing. The role of decent housing in good health and in tackling health inequalities cannot be overestimated. Amendment 103A would require IBCs to consult on youth health prevention and treatment through an advisory board consisting of young people. All these amendments have huge merit.

I know that we will have a wider discussion about the role of the voluntary sector and social enterprises in provision of healthcare in a later group. However, voluntary and community organisations and social enterprises have been central to the delivery of non-clinical services in healthcare and well-being, particularly during the pandemic.

[Baroness Chisholm of Owlpen (Con)]

My Lords, before I respond on this group, I want to apologise for the chaos that I caused at the beginning of this Bill today. I hope that noble Lords did not think I was being discourteous to the House. Luckily, next Wednesday, normal services will be resumed when my noble friend Lady Penn is in her seat.

I am grateful to the noble Lord, Lord Howarth, and other noble Lords for bringing this suite of amendments before the Committee. It was interesting that several noble Lords brought up my noble friend the Minister’s band, Exiled In Brussels, which I think he is now going to rename “Exiled From Brussels”. I can say that there is a YouTube clip of the band which my noble friend said he is willing to send out to everybody, so that is something to look forward to.

On Amendment 59, I recognise the noble Lord’s concern to ensure that the voluntary, community and social enterprise sectors are represented in the Bill. I understand the intention of his amendment. I certainly acknowledge the important work of these sectors and their contribution to our health system. I am sure that we all have examples of how these non-clinical services are of benefit to our health system.

However, our intention, quite rightly, is to use the Bill to set out a framework of duties for ICBs that ensures they fulfil their functions effectively while avoiding being overly prescriptive. The provision in question sets a clear requirement on ICBs to discharge their functions in a way that promotes continuous improvement in the quality of services, particularly in health outcomes.

The intention is to establish a culture of continuous improvement in everything the ICB does, but, importantly, leaving ICBs to decide how this will work for them. Setting specific parameters, as this amendment seeks to do, would in practice narrow the focus of how they may look to improve the quality of services. This may be to the detriment of taking a more holistic approach to how to improve the quality of services. That said, the current drafting of the provision would not prevent ICBs engaging providers of non-clinical services, including those mentioned in the amendment of the noble Lord, Lord Howarth of Newport. Indeed, we would expect that, where appropriate, ICBs would consult with relevant stakeholders, such as those from the voluntary sector, to ensure continuous improvement.

Turning to Amendment 69, co-production, where people, family members, carers, organisations and commissioners work together as equal partners to design and deliver services, is an important principle, and one that we would expect ICBs to champion. This is reflected clearly in NHS England’s draft implementation guidance on working with people and communities, which also sets out several practical steps ICBs should consider to appropriately promote and embody co-production. This includes visibly supporting and sponsoring co-production, and supporting the adoption of co-production approaches where appropriate. I feel it is important to point out that mandating co-production in all circumstances risks narrowing the duty and may lead to other valuable methods of involvement being marginalised. Therefore, while it will often be a desirable aim that we would expect ICBs to pursue, it may not be appropriate in every case, and we want to allow ICBs and patients discretion to determine what is best in their area.

I will address Amendments 71 and 77 together. I am grateful to the noble Lord, Lord Howarth, and the noble Baroness, Lady Greengross, and I appreciate the interest in including social prescribing in the Bill. On Amendment 77, I begin by assuring noble Lords that the Government are absolutely committed to the rollout of social prescribing in line with the NHS Long Term Plan commitment. The plan was to have 1,000 new link workers in place by 2020-21, a target which I am pleased to say has been exceeded, so that we now aim for at least 900,000 people to be able to be referred to social prescribing by 2023-24. As of September 2021, there were at least 1,582 social prescribing link workers in place. Furthermore, in relation to innovation, the Government have set up the National Academy for Social Prescribing, in line with our manifesto commitment, which has continued to support the expansion of social prescribing and promote innovation in health and well-being across all sectors.

The duty to patient choice should be considered by ICBs as part of the broader move towards more integrated, population health-management approaches. This requires embedding more personalised care models that enable patient choice and also consider non-clinical approaches, in line with the NHS Long Term Plan. This commitment is to make personalised care business as usual across the health and care system. Social prescribing and community-based support is already a core component of the NHS’s comprehensive model of personalised care. I hope I have reassured noble Lords of the progress being made and work being done on social prescribing and that they will feel able not to press these amendments.

I turn next to the amendments proposed by the noble Lord, Lord Howarth, and the noble Baroness, Lady Bennett of Manor Castle, which would insert a number of references to the voluntary community and social enterprise and creative and cultural sectors. This Government hugely value the contributions of the voluntary community and social enterprise sector, including creative and cultural entities, to the health and well-being of the nation, and recognise their important role in integrated care systems. However, we feel that the amendments are not necessary, as their intended effect is already possible through provisions within the Bill.

A key principle of the Bill is the legislative flexibility to empower local leaders to develop bespoke solutions to meet specific local needs. This principle is reflected in the current drafting of Clause 20. Several of these amendments would have the effect of being overly prescriptive in areas where we would already expect the VCSE sector to play a key role.

I assure noble Lords that many of these concerns will instead be addressed in guidance. NHS England and NHS Improvement have published guidance relevant to ICBs on partnerships with the voluntary community and social enterprise sector, outlining the importance of the VCSE sector as a key strategic partner in local health systems. It provides guidance on how VCSE partnerships should be embedded in how the ICBs operate. Furthermore, the guidance sets out that, soon after they are established, ICBs will be expected to develop a formal agreement for engaging and embedding the VCSE sector in system-level governance and decision-making arrangements.

I turn to related Amendment 80. I know that the noble Lord, Lord Howarth, has a special interest in this issue, and I listened with interest to his speech at Second Reading on the work of the National Centre for Creative Health, which he chairs. Research is very important, and I am pleased to say that the department funds research in this area through the National Institute for Health Research. The NIHR funds and supports a range of research conducted by multidisciplinary researchers from diverse fields, including social sciences, behavioural sciences and the humanities. For example, the MODEM project, jointly funded by the NIHR and UKRI, reviewed evidence on music therapy and identified that a structured programme of music therapy given by a trained therapist can reduce agitation among people with dementia—which I think the noble Baroness, Lady Tyler, mentioned in her speech.

We do not consider it appropriate or necessary to specify particular research areas in primary legislation. In addition, we expect that ICBs will already promote a range of research, including those on non-medical interventions, and the noble Lord already cited in his Second Reading speech where this has been done by existing integrated care systems.

On Amendment 82, the Government place the utmost value on supporting the health and well-being of NHS staff. We are taking a range of actions to ensure that this remains a priority across the health and care system, and we do not believe that a legislative duty is needed in this area. Over the past two years we have seen as never before the intense pressures on the workforce, and we recognised at an early stage the toll that this may place on the mental health and well-being of health and care staff, with a clear need to prioritise enhanced well-being and mental health support for all NHS and social care staff. We all know that the whole country owes these staff an immense debt of gratitude.

At a national, strategic level, the People Plan, published in July 2020, puts NHS staff health and well-being at its core and ensures that all NHS staff have access to a comprehensive psychological and emotional support package. This includes a dedicated support line that is available for staff 24/7, and free access to mental health and well-being apps. Alongside this, 40 dedicated mental health hubs have been established and are accepting referrals across the country to proactively identify at-risk people and groups and focus on staff with more complex needs, ensuring that they receive rapid access to evidence-based mental health services. To ensure that this offer continues to improve staff mental health throughout 2021-22, an additional £37 million has been invested in 2021-22, building on the £15 million in 2020-21. I hope that the noble Lord, Lord Howarth, will accept that this work is worth while and important and will continue without the need for legislative amendment.

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[Baroness Bennett of Manor Castle (GP)]

Before the noble Baroness sits down, I would just like to go back to some of the earlier amendments and some of the words she used. She said this is included in the guidance on using social prescribing, and that it is expected that ICBs will work with local social enterprises, et cetera. I want to ask a question. If we were talking about NICE-recommended medical treatments or the best possible surgical procedures, would we be saying that it is expected that ICBs will do this as it is included in the guidance? This picks up on the point the noble Baroness, Lady Morris, was saying that this still seems to be somewhere in the second class, and it should be up there in the first class, treated in the same way as a medical treatment or a medical device.

[Baroness Chisholm of Owlpen (Con)]

Well, I think it is, actually. We all realise how important it is. Social prescribing is a key component of the NHS’s universal personalised care. It is a way for GPs or local agencies to refer people to a link worker. Link workers give people time to focus on what matters and take a holistic approach to people’s health and well-being. They connect people to community groups and statutory services for practical and emotional support.

For instance, a man had bad bronchitis and asthma and was continually going to the doctor and costing the NHS a great deal of money; and it was agreed that a humidifier would be prescribed to him for his house at £800, and that has been a huge success, with the result that he has not gone to the GP once for a whole year. I think social prescribing can work well for those who are socially isolated, whose well-being is impacted by non-medical issues and who routinely present to primary or secondary care as a result. We certainly are taking it seriously.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

The noble Lord, Lord Howarth of Newport, is taking part remotely. I invite him to speak.

Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

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

[Baroness Chisholm of Owlpen (Con)]

My Lords, I shall start by addressing Amendment 72 in the name of the noble Lord, Lord Warner. The Government are wholeheartedly committed to addressing the backlog of hospital treatment, much of which, as we are all aware, has resulted from the unprecedented efforts that our country and our health system have taken to combat the Covid-19 pandemic. This includes continuing to work closely with independent sector providers of acute care to provide the capacity to deliver more treatments and to reduce waiting times. I shall explain that a bit further. As of 10 January, NHS England has entered into national arrangements with 10 independent sector providers, to meet the needs of their patients and to reduce waiting times for treatment. This will also allow a wider range of patients to be treated in the independent sector, such as those needing some forms of cancer surgery and other treatments not normally delivered under existing arrangements.

The Government will continue to monitor this collaboration and work closely with the NHS and the independent sector to ensure that patients receive the best possible treatment and care. I welcomed the shadow Secretary of State’s comments on the use of private providers in recent weeks, supporting the use of the private sector where necessary to address the backlog.

We do not, however, believe that the amendment as written offers the right approach to effectively support collaboration between these parts of our health system at this time. The system already has arrangements between the NHS and the independent sector to address specific needs and to target areas where the greatest benefit can be gained. In addition, in most cases, patients already have the legal right to ask for their appointment to be moved to a private sector provider if they are likely to wait longer than the maximum waiting time specified for their treatment. This includes where patients have to wait more than 18 weeks before starting treatment for a physical or mental health condition, or more than two weeks before seeing a specialist for suspected cancer, with some specified exceptions. This does not limit patients to a private provider, as the amendment would, but allows them to choose from a range of providers. Currently, patients waiting for treatment are prioritised by the NHS so that those in the greatest need are treated first, when their clinical urgency and the length of time they have been waiting for treatment has been reviewed.

At present the NHS captures information on patient choice, which includes the use of e-RS at referral, where NHS England can see the number and nature of choices offered to patients. There is also a national e-RS pop-up survey for patients, which provides data on patient choice; information on choice offered to waiting list patients is also recorded.

The noble Lord, Lord Warner, wanted to know about the timing of the publication of the regulations on patient choice. That will be the same as for the provider selection regime regulations: as close to July as possible, subject to parliamentary passage.

The noble Lord also asked about work on the elective recovery plan. The Government have announced that we will spend £2 billion this year through the elective recovery fund to tackle the elective backlog, as part of the biggest catch-up programme in the NHS’s history. This will continue with £8 billion in the following three years, from 2022-23 to 2024-25, and a further £5.9 billion was announced in the October 2021 spending review to support elective recovery diagnostics and technology.

The independent sector is bolstering NHS capacity in a wider range of areas—MRI scans, providing cancer diagnosis and treatment, treating women with gynaecological health issues, and much more. Thousands of patients are receiving tests and treatments for a wide range of conditions, thanks to the arrangements in place in the NHS and the continued strong partnership with the independent sector.

The noble Lord, Lord Warner, also wanted to know about the story in the Times on academisation of hospitals. Significant NHS reform is already under way through this Bill, our plans for integration, the health and care levy, and our upcoming electives plan. No further plans have been agreed. High-quality hospitals will always have a central role in our health and care system, and the Bill will ensure that they do so in a way that supports integrated and patient-centred care.

I think that the noble Lord, Lord Hunt, said that he did not want to move Amendment 204, so I will not speak to that.

I thank the noble Lord, Lord Rennard, for bringing Amendment 226 before the Committee today. Supportive self-management is part of the NHS long-term plan commitment to make personalised care the norm. However, we do not believe that having an additional duty on NHS England, as proposed by this amendment, would further support this work. Indeed, having a stand-alone duty of this kind could make the work more disjointed, rather than complementing the existing holistic approaches to personalised care, which aim to empower individuals to live well with their conditions. The department is working with NHS Digital and NHS England and NHS Improvement to encourage innovative new approaches and organisations to support services and to collaborate in an effective way with the NHS.

Amendment 109 deals with the access to innovation technology among diabetes patients, and I thank the noble Lord, Lord Rennard, for bringing it before the Committee today. He is a much-valued contributor to all debates on this subject, and we learn something new ourselves every time he speaks on it. We have existing tools at our disposal to monitor the use of innovations. This includes NHS Digital’s innovation scorecard and the AAC scorecard. We are committed to further strengthening these innovation metrics and to improve our understanding regarding the use of innovations in the NHS.

This amendment seeks to add a new subsection to new Section 14Z49, which would create a requirement for guidance published by NHS England for ICBs to include performance metrics on the uptake of innovative technologies among diabetes patients. I understand that the amendment would seek to set specific requirements for the system oversight framework for ICBs in respect of diabetic patients. However, this could risk creating a confused system of reporting requirements, which I am sure we are all keen to avoid.

The amendment would also cut directly across the existing mechanism for setting priorities, by which the priorities set by the Government for NHS England, and in turn by NHS England for the system, are translated into reporting requirements—this flows from ICBs to NHS England and to Parliament. However, I hope I can give the noble Lord some reassurance that the Government take the issue of diabetes very seriously. I assure him that we will continue to hold NHS England to account for the performance of the system against those metrics, as I am sure your Lordships’ House will hold Ministers to account.

I hope this has been a helpful debate, and I will make sure that we get letters to explain any questions I have not fully answered from the noble Lord, Lord Warner. With that, I hope that he will feel able to withdraw the amendment.

[Lord Warner (CB)]

My Lords, this has been a helpful short debate, and I am particularly grateful to noble Lords, especially the noble Lords, Lord Lansley and Lord Hunt, and the noble Baroness, Lady Wheeler, for their contributions and for opening this subject up a little.

The purpose of my wording of this amendment—I did not think it was a perfect piece of parliamentary drafting—was mainly to flush out what the Government are going to do on patient choice and provider regimes. We have an answer on the latter. We will not know what is in the provider selection regime regulations until after Parliament has passed this legislation. That does not seem to me to be a particularly satisfactory position to be in, for the reasons that the noble Lord, Lord Lansley, said. So, I strongly encourage the Government to get on to the Department of Health and Social Care officials and speed the process up. Even if they are only draft regulations, they should be made available to your Lordships so that we can see what the Government’s practical intentions are.

I will not go into a defence of the private sector—I do not particularly want to do so—but, in the past, when it has been bought in on NHS contracts, it has brought more professionals to the party. Part of the original contracts for ISTCs made it clear that the private sector could not swipe NHS consultants; it had to find its own staff, who were not working in the NHS, to deliver on those contracts. So, they added to the capacity. I remind Members of this House that the thing about diagnostics, which the noble Baroness, Lady Barker, rightly raised, is that you can use the spare capacity in the private sector at marginal cost, so that you are not paying the full cost you would normally have to pay. So, there are some advantages there, if a Government know what they are doing in their contracting.

Finally, I was not satisfied with the noble Baroness’s answers both in relation to the NAO report and more generally. It is very easy to give me and the House figures for expenditure. I was asking how many patients will actually benefit, because the currency for waiting lists is patient numbers. We want to know how many people will be taken off those waiting lists as a result of the Government’s expenditure—that is the issue I was looking for some enlightenment on.

The background to this is: will I go further on Report? The answer is: I look forward to hearing what the Government say between now and then, but, at the moment, my inclination is to come back and test the opinion of the House. I beg leave to withdraw my amendment.

Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

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

[Baroness Thornton (Lab)]

My Lords, I agree with my noble friend Lord Hunt and those speakers who expressed their concern about the open-endedness of what is in the Bill at the moment and the lack of protection for patient data. I look forward to the Minister’s reply on this.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I am grateful to the noble Lord, Lord Hunt, particularly for his brief and, as always when he speaks, his clear understanding of the amendment. It makes it so much easier for us to know where the noble Lord is coming from.

I am grateful to all other noble Lords who spoke on this issue, and I understand the interest in the integrated care boards’ power to disclose information that is personal data. As the noble Lord, Lord Hunt, mentioned, public trust is essential in this and individuals’ data will be used lawfully and with respect, and held securely with the right safeguards in place. It will need to be proportionate, transparent and subject to individuals’ rights to access and correct information in use.

Let me further explain how we will make sure this happens. I assure noble Lords that the clause already restricts integrated care boards’ powers to disclose information by limiting these to the specific circumstances set out in the clause. Further, all use of personal data is subject to data protection legislation, including the UK general data protection regulation and the Data Protection Act 2018. This legislation provides several key protections and safeguards for the use of an individual’s data, including strict rules and key data-protection principles for the sharing of personal data.

Under the UK GDPR, health data has to be treated as a special category. This data requires additional protections due to its obvious sensitivity. For this type of data to be lawfully processed, a further condition must be met, in addition to identifying a lawful basis, as set out in the GDPR and the Data Protection Act.

This data protection legislation applies to the use of all personal data and provides robust safeguards in relation to information and disclosure. Importantly, there are additional protections on the use of health data, including the common-law duty of confidentiality, along with the role of the National Data Guardian, who advises and challenges the health and care system to help ensure that the public’s confidential information is safeguarded securely and used properly. As the noble Lord, Lord Hunt, mentioned, there are also the Caldicott principles; there are seven of these, which I am sure noble Lords are aware of, so I will not go through them all now. They provide guidance to health and care organisations on the use of confidential information. Along with this, there is also the national data opt-out.

I remind the Committee that new Section 14Z61 will apply, which provides when an ICB may disclose information obtained by it in the exercising of its functions. I emphasise that maintaining trust that healthcare data is being used properly is paramount. Individuals’ data will be used lawfully and with respect, held securely and have the right safeguards in place. None of the changes we are making will remove the duties of organisations to comply with the requirement of data protection legislation. Along with that, we are working with the Home Office to ensure that the protection and confidentiality of patient information is upheld within the Police, Crime, Sentencing and Courts Bill. Appropriate safeguards are in place and the Bill makes it clear that information can be shared only in accordance with data protection laws.

I am concerned that this amendment could cut across the different pieces of relevant legislation, preventing the ICB from effectively discharging its functions where it may be necessary to disclose information, which may include personal patient data. This would include investigating complaints, making safeguarding referrals for patients whose welfare is at risk, complying with court orders and assisting criminal investigations. It would also risk a confusing data-sharing system, with different rules applying to different organisations.

I know that my noble friend the Minister, the noble Lord, Lord Kamall, has agreed to talk about this further with the noble Lords, Lord Hunt and Lord Clement-Jones. He wants to meet civil liberties organisations, along with them, to discuss this subject further. However, I regret that the Government cannot accept this amendment. I hope that I have given the noble Lord some reassurance and that he will feel able to withdraw the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am of course grateful to the noble Baroness but I am not sure that she has entirely dealt with the concerns expressed. Because the noble Baroness, Lady Brinton, referred a lot to the GMC, I should just say that, although I am a member of its board, I am not acting here on behalf of the GMC at all.

The noble Lord, Lord Clement-Jones, and I signed the amendment and we both start from the basis of supporting digital transformation in the NHS, but we have always seen that it has to go hand in hand with the safeguards. That is why this debate is so important. We have heard powerful interventions from the noble Baronesses, Lady Brinton and Lady Harris, about why the police Bill had to be amended in relation to police access to patient information. The noble Baroness, Lady Finlay, referred to the issues for clinicians if they did not feel that the integrity of the patient confidentiality system was sufficiently safeguarded.

The Minister has basically said that we need not worry, because the NHS will only deal with information lawfully, and she went through some of the protections, including the fact that in the Bill there are conditions before the integrated care board can release the information. She referred to the data protection legislation, the GDPR, the special category given to health data about patients and the Caldicott principles. She went on to say essentially that my amendment would cause problems, because it would get in the way of legitimate information being given by the ICB, which might have an impact on patient care quality.

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[Lord Kamall (Con)]

I do not know for certain, but I am sure their views would have been heard via the Local Government Association.

[Baroness Chisholm of Owlpen (Con)]

They were.

[Lord Kamall (Con)]

They were. Good. I got the answer just in time.

I will turn to Amendment 147, which would mandate a role for a member drawn from each area of primary care. With all amendments relating to the ICP membership, we want to be careful to give space for local areas to find a model of membership that works best for them. As the noble Lord, Lord Stevens of Birmingham, raised at Second Reading, it is right that in a country as large and diverse as ours, one size will not fit all. Therefore, it is right that local areas should be able to determine the model and membership that best represent their area.

We fully expect primary care professionals to be involved in the work of ICPs. Each partnership will need to involve a wide range of organisations and representatives from across the system, including professionals from primary medical, dental, pharmaceutical and optical backgrounds as they prepare their strategy. The department has published a draft list of representatives for ICPs to consider involving, which includes clinical and professional experts, including those from medical, dental, pharmaceutical and ophthalmic settings. The mechanism of how this is done will be down to local discretion. For example, one ICP may wish to formally appoint certain members, whereas a neighbouring ICP may wish to have an extensive range of consultees, and a third may decide to invite primary care representatives to join a subcommittee instead. We believe it is right that local areas are able to determine the model of partnership that best works for them, and this amendment would prevent that from happening.

A similar argument applies to Amendment 148. While we welcome the contribution of directors of public health and the voluntary, charity and social enterprise sector, I do think that we risk limiting the flexibility of ICPs. We expect public health experts to play a significant role, especially given their role in developing the joint strategic needs assessments that are crucial to guiding all planning, and their role in supporting, informing and guiding approaches to population health management.

Similarly, we expect appropriate representation from the voluntary, charity and social enterprise sectors, which will be able to contribute in respect of a number of different interests and perspectives. A number of noble Lords have spoken very eloquently about the reasons we should involve these sectors. We believe it would not be prudent, for example, to suggest that it may be appropriate for only one person to represent the local voluntary sector on a partnership, given the diversity of their involvement in health and social care.

I turn to Amendment 150, tabled by the noble Lord, Lord Davies of Brixton, and I also thank the noble Baroness, Lady Thornton, for her advice on that. I appreciate that the noble Lord might want to prevent anyone who works for, represents, or has a financial interest in a private health and care company, from being a member of an ICP. However, I would draw the noble Lord’s attention specifically to the recent experience of coronavirus, which showed that independent and voluntary providers were a vital part of the health and care picture. This amendment could exclude a significant part of the health and care sector, as the noble Baroness, Lady Thornton, rightly said. Given their scale and the central role they play, adult social care providers in particular would be potentially useful members of an ICP. It also risks leaving out, for example, dentists, pharmacists, opticians and many others working in primary care, and doctors other than GPs who work both in the NHS and privately.

We expect every ICP to have robust measures to ensure that formal conflicts of interest are managed carefully and transparently. It is also important to note that ICPs, as the noble Baroness, Lady Thornton, says, are not commissioners, and so will not be making decisions on the allocation of funds. Fundamentally, the ICP is working solely for the interests of people in the area. The experience of the health and well-being boards is helpful here, as they have similar flexibility in membership, and there have not been significant issues with conflicts of interest as they have developed their plans. We really expect the ICP strategy to be rooted in the people and communities they serve, and to be directly informed by the health and well-being boards and the joint strategic needs assessments. We are refreshing the health and well-being boards’ guidance to ensure that there are strong foundations in place at neighbourhood levels that the ICP can consult and build on.

Having said this, I thank noble Lords for their contributions on this important matter. However, as I have explained, we believe that these amendments run contrary to the principles of flexibility and subsidiarity that the Bill is based on, and therefore I hope that noble Lords will not press them.

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Amendments 161 and 162 not moved.

[Baroness Chisholm of Owlpen (Con)]

My Lords, if my noble friend Lord Lansley agrees, this might be a good moment to stop for lunch, rather than him having to start and stop perhaps mid-speech on his amendment.

House resumed.

Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

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

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baronesses, Lady Thornton and Lady Brinton. I too will be brief. I have attached my name to the first of these amendments because it addresses such an important issue. We are seeing more and more signs of real competition between the resources being used for private work and for public purposes, for which the NHS is there. A report in the Guardian this month said that in January 2021, when there were enormous Covid pressures on hospitals in London, doctors wrote to their medical consultants begging them to reduce their private work so that their availability to those hospitals was greater. That is a measure of how Covid has accelerated and put extra pressures on the NHS.

I will quote from the websites of two hospitals, which I will not name; to do so would be unfair, as I suspect that they are very typical. One says:

“All profits from the provision of our private patient services are used to support the delivery of NHS clinical care for the benefit of all patients.”


Therefore, it is very easy to see how well-meaning people might say, “Well, if we do more private work, then we’ve got this money to put into our horribly underfunded public work”, but that is taking away terribly limited resources, particularly staff and staff resources, as we have discussed in considering so many other amendments. The other hospital’s website says of its private provision that it offers

“rapid access and flexibility for a wide range of conditions and care needs … the unit can also care for those patients admitted through”

the hospital’s

“emergency department who may wish to make use of their private insurance or indeed pay for their private care themselves.”

As noble Lords know or will recognise from my accent, I come from Australia, which has a two-tier system. Many people with resources have medical insurance, and the poorer people do not. There are clearly two utterly different levels of service, which means there is much less advocacy for, support for and fighting for public provision. If we look at the trend of travel, the amendment tabled by the noble Baroness, Lady Thornton, is important and must be thought about in the context of foundation trusts and much more broadly.

[Baroness Chisholm of Owlpen (Con)]

Well done. You need Baronesses to do this: they get to the point and get it done.

I thank noble Lords for explaining these amendments. As they may recall, in 2012 we abolished the private patient cap while clarifying that the foundation trusts’ principal purpose is

“the provision of goods and services for the purposes of the health service in England”.

This means that foundation trusts must make the majority of their income from NHS activity and must always have as their primary purpose the delivery of NHS services. We also retained the requirement that additional income should be used to benefit NHS patient care, and it has been used across the system to offset such things as maintenance costs, to finance alternative transport such as park and-ride and to fund patient care.

This amendment would introduce a new cap by requiring foundation trusts to agree with their ICB and ICP their income from non-NHS sources. However, this would be a significant bureaucratic burden on foundation trusts and would require them to forgo raising additional income or seek agreement via a multi-stage process before doing so. It would also mark a significant new restriction on foundation trusts’ freedoms and autonomy.

Similarly, Amendment 233 would restrict the freedom of NHS organisations to decide locally the most appropriate structures they need to support their operations. There are multiple reasons for trusts setting up subsidiary companies, including providing services for other trusts and being able to attract staff from the local employment market. Creating a subsidiary can also be an alternative to outsourcing services to the private sector, thereby maintaining its staff within the NHS family. Importantly, in November 2018 NHS Improvement issued guidance to trusts about forming or changing a subsidiary. Under that guidance, all subsidiary proposals must be referred to NHS Improvement for review. NHS England and NHS Improvement paused their update of the guidance to trusts on subsidiary companies to allow the sector to focus on supporting the response to Covid-19 and the recovery of services. However, we remain committed to the review and the publication of this updated guidance is now set for early summer 2022.

I hope I have given the noble Baroness sufficient reassurance for her to withdraw the amendment.

[Baroness Thornton (Lab)]

I thank the Minister and am very pleased indeed to hear about the review. However, we on this side of the House believe that the NHS should be the default provider of clinical services and, if it is not the only provider, it should be the predominant one in geographical and service terms. That means that there must be investment in the NHS, not in the private sector. It is that balance, which we must ensure is in this Bill, that has protected NHS clinical services in the past.

I will read what the noble Baroness has said very carefully, and I might need further reassurance in due course. I beg leave to withdraw the amendment.

Health and Care Bill

Baroness Chisholm of Owlpen Excerpts

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

[Baroness Thornton (Lab)]

My Lords, we have had an important debate here, and I thank the noble Lord, Lord Warner, both for bringing these amendments before the House and for explaining their background and the important role of the Select Committee. We have debated it several times in your Lordships’ House and everybody in the House, apart from the Government Front Bench, it seems, thinks it is a brilliant report that should be acted on. This seems to be an opportunity for the Government to take on board some of its major recommendations, and this is one of them. We would support that, and we hope that the Minister might have some good news for us on that.

I also wish to speak briefly to the amendment in the name of my noble friend Lady Merron. The argument has already been made by other noble Lords—I am having a slight sense of déjà vu because I am sure I made a speech along the same lines in 2011—about the importance of Public Health England having a statutory basis to its work to give it transparency and accountability. The last two years must show us that that is the right thing to do. That is why I agree with my noble friend’s amendment to put the new UK Health Security Agency on to a statutory footing. As far as I can tell, in the past 20-odd years since I came to your Lordships’ House, every time that various Governments have mucked about with public health, they have got it wrong. Let us use this opportunity to get it right.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I thank noble Lords for bringing forward and explaining these amendments tonight. The specific functions that noble Lords describe in Amendments 225ZA and 285 are crucial functions that the Government are committed to ensuring are discharged in full. There are, however, several bodies in place that already fulfil these proposed functions.

The first proposed function would be a monitoring role and a duty to publish data. This important function is undertaken by the Department of Health and Social Care, which already monitors and publishes some of the data described in the proposed amendment; specifically, that relating to disease profiles, but also incorporating demographic trends, where relevant. The department also commissions independent academic modelling from the Care Policy and Evaluation Centre, or CPEC, to produce projections of the long-term demand on adult social care services. The CPEC model is updated regularly to reflect the latest available academic research and evidence, as well as important updates to key inputs such as ONS principal population projections, along with life expectancy and mortality rates, disability rates, household composition, availability of informal care and unit costs of care.

The second proposed function involves assessing the workforce and skills mix. We agree that workforce planning is a vital component behind any investment. We agree, therefore, that the assessment referred to in this function is extremely valuable. It is undertaken at present by the Department of Health and Social Care, working collaboratively with both Health Education England, or HEE, and NHS England. They work together to look at key drivers of workforce demand and supply over the long term, and will set out how these may impact on the required shape of the future workforce in its broadest sense to help identify the main strategic choices facing us, develop a shared and explicit set of planning assumptions, and identify the actions required.

There are two reasons why I have concerns with trying to involve another body in workforce planning, as this amendment suggests. First, I fear the new body proposed by noble Lords would be distant from planning decisions within the NHS and the needs of service delivery. The strength of the intention to merge Health Education England and NHS England is to tackle this very issue. Secondly, it would overlap and duplicate HEE’s existing statutory responsibilities for workforce planning and investment. To support this work, the department commissioned HEE in July 2021 to refresh its long-term strategic framework, Framework 15.

Moving on, the third proposed function focuses on the stability of health and adult social care funding. This Government are committed to funding stability and sufficiency, underlined by our decision to enshrine in law our five-year long-term plan funding settlement. Healthcare budgets are agreed at spending reviews, with the Office for Budget Responsibility scrutinising those budgets. Further independent financial assessment is therefore not necessary.

It is clear that, for each of the proposed functions, there are already well-established bodies and processes to safeguard the long-term sustainability of an integrated health and adult social care system for England, underpinned by reporting to Parliament. We do not think that the creation of a further body would add value.

I fully agree with the sentiment behind Amendment 281. The UK Health Security Agency, or UKHSA, must be fully accountable for its activities, and there should be full transparency as to how it operates. I can give reassurance, however, that the establishment of the UKHSA as an executive agency of the Department of Health and Social Care is the most appropriate model.

I assure your Lordships that we fully explored other organisational models. However, the executive agency model best facilitates a balance across the needs for strong operational delivery capability, scientific integrity, and the ministerial oversight and accountability necessary to command public confidence. The executive agency model allows for the delivery of executive functions of the department to be carried out separately from, but within a policy and resources framework set by, the department. As the noble Baroness will recognise, this level of flexibility is critical to ensuring a quick and effective response to Covid-type threats without needing to rely on legislation to confer functions, which this amendment would require. Any other approach would reduce the ability of the UKHSA to respond flexibly and rapidly.

In line with requirements for all executive agencies, multiple arrangements are in place to ensure accountability, transparency and effective governance for UKHSA. These include the framework document, which is soon to be published; the annual remit letter, published on 13 July; the business and strategic plans to be published each financial year; and quarterly accountability meetings. Also, UKHSA is required to publish information on contracts and expenditure under normal government transparency rules. As an executive agency, UKHSA must publish annual reports along with audited accounts after the end of each financial year.

It is for these reasons that I ask noble Lords not to press their amendments.

--- Later in debate ---

In conclusion, I support not just the spirit and ambition of this group of amendments, but the suggestions in them. I hope that the Minister will take them on board.

[Baroness Chisholm of Owlpen (Con)]

I thank noble Lords for explaining these amendments. On Amendments 236 and 306, it is right that social care services be appropriately and effectively regulated, and this includes rehabilitation and reablement. However, I do not believe these amendments are necessary to achieve that outcome.

The definition of “social care” in the existing Section 9 of the Health and Social Care Act 2008 is already sufficiently broad to cover reablement and rehabilitation services provided under Section 2 of the Care Act 2014. Most rehabilitation and reablement services are already within the scope of the CQC’s regulated activities, so most of those services are CQC registered.

It follows that these services are also in scope of the provision in Clause 85 that enables the Secretary of State to require information from CQC-registered providers of adult social care services. If there are concerns about the scope of CQC regulatory activities in relation to these particular services, I would encourage the noble Baroness to write to my noble friend the Minister, so that it can be ascertained whether changes to secondary legislation are needed.

On Amendment 241, the scope of Section 60 currently covers healthcare professionals across the UK, and social care workers in England only. Social care is a devolved matter and falls within the competence of the devolved legislatures for Scotland, Wales and Northern Ireland. Section 60 defines

“social care workers in England”

through a list of descriptions. Staff who work to provide reablement and rehabilitation services in the course of care work are covered by the existing descriptors and could therefore be brought into regulation through secondary legislation. In addition to those carrying out this role in the social care field, there are also a number of healthcare professionals who provide reablement and rehabilitation services, such as occupational therapists and physiotherapists, who also fall within the scope of section 60.

Finally, turning to Amendment 289, the Government recognise that rehabilitation is a critical element of the health and care system, supporting patients with a wide range of conditions. A number of initiatives are already under way to support future discharge routes in a way that is sustainable and cost-effective and that provides choice for patients to return to their community. These will be pursued locally by the NHS in ways that best fit their local clinical requirements.

I think it was the noble Baroness, Lady Finlay, who asked why NICE could not give guidance. NICE has already given guidance on rehabilitation after critical illness in adults. It was published in 2009 and reviewed in 2018.

NHS England and NHS Improvement lead a programme to identify optimum bed-to-home models of care for rehabilitation services, supporting discharge to assess policy implementation. The programme will estimate the right capacity for out-of-hospital rehabilitation care, supporting systems through a range of guidance, frameworks and tools. Furthermore, we have already asked NHS organisations to review their estate and identify opportunities to utilise or dispose of surplus assets to ensure that the estate remains efficient and cost-effective.

The NHS also, for transparency, publishes quarterly statistics on surplus land. Integrated care boards will be able to develop estate strategies which identify the efficient use of the estate. As part of that, these plans will be able to identify a number of NHS priorities that could be delivered through the use of surplus land. It should be for local organisations, not the Secretary of State, to decide how to utilise surplus land to meet the needs of their local populations, and therefore we do not think this amendment takes the correct approach in this regard.

I thank noble Lords for their contributions to this debate and hope that I have given them enough assurance at this late hour to allow them not to press their amendments.

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the Minister for that response and I am particularly grateful to all those who contributed to this debate at this late hour. The noble Baroness, Lady Merron, had it completely right when she said that this was about a continuum of care. The problem is that, if people do not get timely care at the outset and on the way through their journey, things just accumulate.

I certainly will go back and look at the NICE guidance; I had understood that it did not go far enough or cover things effectively, but I am most grateful to the Minister for drawing my attention to that. Certainly we should be looking at how the regulation of those involved in rehabilitation in the community can be extended. Of course, the advantage of regulation is that you also have a lever for training and education, to address the very specific needs of different groups. My noble friend Lady Grey-Thompson spoke of the disabled group, which includes those with physical disabilities, learning difficulties and different areas of handicap. They need to be looked after by people who have been trained and who understand what their specific needs are. That cannot be just a generic service.

I am also glad to hear that there will be the ability to look at the beds and the estate overall and that people are beginning to think about that again. With all those assurances, I beg leave to withdraw the amendment.