Health and Social Care Bill

Baroness Cumberlege Excerpts

Tuesday 13th December 2011 Lords Chamber

The need for equity between the private sector providers and the NHS is pressing. There needs to be a mechanism in place to ensure that any qualified provider, irrespective of the sector, is held to account using the same standards in regards to professional guidelines, education and training, research and the NHS outcomes framework. Amendment 278BA seeks to address this issue and foster debate among noble Lords. I very much hope that the Minister will address some of these points in his response.

[Baroness Cumberlege]

My Lords, I have listened very carefully to the debate. I think that it has been one of the best that we have had. I pay tribute to those who have taken part, and especially to the Opposition, for introducing it so fully.

I, too, have been connected with the health service since 1948. Like the father of my noble friend Lord Owen, my father was a GP. This resonates with what the noble Lord was saying about paying for services. My brother is a consultant and I work daily with the NHS—rather, I wish that it was daily. I run my own business, and, sadly, it is not quite daily. However, I want to declare that I run Cumberlege Connections, and that we do not provide any patient services to the NHS. We provide training for doctors, nurses and those working in the service.

Reading the evidence that has come forward from the King’s Fund, from the Nuffield Trust and from other bodies, nearly all of them have said that the NHS needs to improve. Looking at the research, I think that is absolutely true. We have to look forward: the NHS is facing enormous challenges. Our population is changing; it is getting more diverse, as well as growing older. The NHS needs to innovate and adapt to meet the new expectations of patients.

I have had treatment over the past two years in hospitals and have been very interested in how care was given. However, patients have had to sit in out-patient departments, queuing as my mother used to queue just after the war, when there was rationing. Sir Muir Gray, a very respected member of the medical profession, has said that the out-patient department is a relic of the 19th century. So we have to change. I think of banking—perhaps that is not a very good example at the moment. However, at one time we used to have to queue to get our money at a counter. Then the banks introduced a hole in the wall. I remember Barclays saying, “Our customers are much too important to have to go to the impersonal ‘hole in the wall’; we are going to give them personal service at the counter”. No—the public wanted cash quickly, and they went to the hole in the wall. Now we can do our banking in our sitting rooms. The world is changing so fast, and the NHS cannot be stuck in aspic. We really must move on.

I am, therefore, very interested in the debate and the question of choice. One of your Lordships said the NHS was not a shopping spree, or something like that. However, there is a huge amount of competition within the NHS. Would-be doctors compete for medical schools, for a start. Actual doctors compete for the very best jobs in the NHS. NHS hospitals compete with private practice for consultants’ time and compete with non-healthcare employers to retain nurses. GPs have been partly competing for NHS patients since 1948; so have hospitals since 1991. Companies compete to provide the NHS with new medicines and diagnostics. NHS researchers compete for grants. The NHS competes with schools, prisons and the Armed Forces for public funding. So competition in the NHS is both long-standing and inevitable. It involves not a yes/no ideological choice, but pragmatic and nuanced judgments about how, not whether, to make use of it. Competition gives NHS patients choice. The phrase, “I want a good local hospital” is a familiar refrain, just like the desire for good local schools and shops. Yet the very fact of choice and its implicit challenge, as we have seen in the previous Government’s introduction of independent sector treatment centres, actually shakes up the NHS providers. It is the grit in the oyster that helps to create a better service with higher standards.

Looking at choice and Protecting and Promoting Patients’ Interests, which has been produced by the Department of Health on the role of sector regulation, it was interesting that 81 per cent of respondents wanted more choice in where they are treated; 79 per cent wanted more choice in how they are treated; 75 per cent wanted a choice of hospital consultant in charge of their care; and 75 per cent of respondents wanted a choice of which hospital consultant is in charge of their children’s care. Women and older people, in particular, want to see more patient choice in the NHS. Nine out of 10 people over the age of 55 want to have a greater say in how and where they are treated. So we know that people want more choice, and that choice can go beyond the NHS and into the independent sector; we have got good examples of where that is happening successfully.

It is important that we go with the Government on expanding the opportunities for people to choose the care that they want and where they want it, but we know that if it is going to work well we need a robust economic regulator. That is absolutely essential. That regulator needs to support plurality of provision for NHS patients. In the Bill, we see that Monitor will ensure that tendering to provide services to NHS patients is not unfairly rigged—that is really important; that cost does not take precedence over quality, as has already been said; that the tariff is set independently of politicians in Whitehall, and we do want a very independent regulator; that essential NHS services of patients are protected; and that patient choice is unrestricted without destabilising the NHS. That is what we should be aiming for.

I am grateful to my noble friend for clarifying some of these issues in his opening speech. We have seen problems. We have seen spot-purchasing; that has got to go. We have seen cherry-picking; that has got to go. We have seen a race to the bottom on price; that has got to go.

There is huge merit in the Bill. I see the creation of an independent sector regulator as one of the great benefits in the Bill, which will facilitate the development of a forward-looking NHS that can undertake efficient investment and support sustainable growth. It is right that the Government should set the framework—that is what we are proposing in the Bill—and it is right that the Government should retain oversight of Monitor as it does of other sector regulators.

I had a very interesting conversation with the regulator for the railways. It is interesting how she is managing that business. Many of us will know Anna Walker, who used to be the chief executive of the Healthcare Commission, and have seen her go from one regulator into another, and how she is managing that. There are some good parallels that we can learn from. Looking at telecoms, there was no intention that BT should remain a monopoly, or that it should go. It is still with us, but it gave other people choice, working through a good regulator.

I am very much in favour of what has been proposed. It moves the health service into this century, because a lot of it is still in the last. It will offer patients and the public a far better service than we have now.

--- Later in debate ---

[Baroness Thornton]

My Lords, this has been an absolutely brilliant debate and very helpful to everybody in the Committee; I hope that that includes the Government. I start where the Minister left off about intentions—it is not the Government’s intention to introduce competition red in tooth and claw. However, the Minister must by now have realised that that is not what people understand by what is actually in the Bill and how it might be applied. That is the dilemma that faces the Committee and the Government. We on these Benches will certainly take up the offer that the noble Earl made in his opening statement, which was extremely useful, of discussing how to improve and change this part of the Bill. We would like to be part of that process. There is definitely work to be done on that.

I will briefly sum up our position on this debate. I have a series of questions for the Minister and I am very happy for him to write to me about them. We are not convinced as yet by the idea that having a quango as an economic regulator is the only way to bring a clear and comprehensive legal framework into the Bill. The purpose of Monitor in the Bill is to develop competition, which is why we have the Bill. We believe, and this debate shows us, that the contents of this part of the Bill in fact open the door and invite in the issues that were raised, for instance, by the noble Lord, Lord Clement-Jones. If competition is not at the heart of the Bill, why do we need all that detail? The noble Lord, Lord Clement-Jones, made a very helpful intervention and a useful analysis. I, for one, will be rereading his speech about EU competition law.

I ask that the noble Lord, Lord Clement-Jones, and his colleagues look at our Amendment 262A, which would add a third subsection to Clause 59(1). The proposed paragraph (c) says the provision of health services should be,

“based on the principles of universality and social solidarity”.

We were not making a particularly left-wing statement with that. We were actually lifting it out of European law, which our advice tells us is one of the ways in which you keep at bay the procurement processes of European law. I strongly ask the noble Lord, Lord Clement-Jones, to look at that; I would be interested to hear his comments.

One part of the debate that I have been disturbed about was that raised by the noble Lord, Lord Owen. He also has a freedom of information request in for information that would help to inform the discussions of this House. We know that we have had our debates about the lack of access to the risk register to help us in our deliberations. Indeed, my honourable friends in another place asked if they could also have access to the legal opinions that the department had got on this part of the Bill, and were refused access to that, too. We have all had to find our lawyers to advise us about competition law. We are now all a lot better informed than we were several months ago. The noble Lord, Lord Owen, was right when he said there is no consensus about this; indeed he was right when he said that parts of this Bill are feared and hated. The Minister needs to understand that there is a lot of fear out there, about this part of the Bill in particular. The noble Lord was expressing very grave concerns.

The noble Lord, Lord Newton, made a threat to the Government about patient safety and quality being the order of the day and said that he will be returning to this on Report. He will probably have more effect than the rest of us put together in his interjection on this matter. We will be behind him if he does so, which may not do his reputation any good at all.

The noble Baroness, Lady Meacher, made a very thoughtful speech, her most important point being that we already have the tools to make the system work. There is no need to put in an economic regulator and the competition regime that this Bill suggests, because the tools are already there. That is very important.

I say to my noble friend Lord Whitty that there is absolutely nothing wrong with a bit of slash and burn to make the point about this part of the Bill. In effect my noble friend was at one with the noble Lord, Lord Clement-Jones.

The message from the noble Baroness, Lady Cumberlege, is that the NHS needs to improve. Yes, we would all agree with that and every health system in the world needs to change and improve. I would, however, refer the noble Baroness to my speech, which embraced change, embraced development and even embraced the use of managed competition. Where we part company is that the way to improve the NHS is not to treat it as a utility or a supermarket; we do not think the evidence is there to prove that. In fact, there is a lot of evidence to suggest that we should be very wary of the introduction of market forces as a way to improve our health service.

My noble friend Lady Armstrong made the important point that we agree with the Minister that there is a case for the use of competition in its place. The challenge before us is how we ensure that this Bill delivers that without threatening the whole fabric of our health service.

[Baroness Cumberlege]

Is the noble Baroness aware of Gaynor et al and the work they have done? I quote again from Protecting and Promoting Patients’ Interests: the Role of Sector Regulation, a research study in 2010:

“We find that the effect of competition is to save lives without raising costs. Patients discharged from hospitals located in markets where competition was more feasible were less likely to die, had shorter length of stay and were treated at the same cost”.

[Baroness Thornton]

All I would say in answer to the noble Baroness is that there is no known health service in the world that shows competition improves health outcomes. I challenge the noble Baroness to send me the information that shows that is the case.

[Baroness Cumberlege]

The noble Baroness should look at this document and at the research which is stated in it.

[Baroness Thornton]

We are talking about the whole system, not a small part of it. We can share our intelligence outside the Chamber; the noble Baroness makes a good point but there is no evidence that says this is the way to improve our national health system.