Health and Social Care Bill

Baroness Cumberlege Excerpts

Thursday 15th December 2011 Lords Chamber

[Baroness Pitkeathley]

My Lords, my contribution in support of the amendments is simple and brief: it is to ask that the Minister ensures that we learn the lessons of history and do not repeat the mistakes of the past when it comes to patient involvement. As we know, there is a huge evidence base about the benefits of patient involvement in health outcomes, and I am sure that the mantra of “No decision about me without me” is something that all noble Lords will accept.

While successive Governments have been committed to patient and public involvement, the history of it has not been a happy one. Some of us can go right back to 1974 when CHCs were first set up. Like my noble friend Lord Harris, I believe that this Government are committed to putting patients at the heart of the NHS, but let us look at why the previous attempts to do so have not been successful. In summary, I suggest that the reasons are these: the efforts have not been sufficiently well funded; they have not been seen as sufficiently independent and therefore have had conflicts of interest; they have not had enough status; and there has not been seen to be enough communication between national and local bits of the set-up.

I leave aside the current problems of the CQC, although I agree with noble Lords who have spoken about that, but the very idea of making the new body a sub-committee of anything seems to me to ensure that we are in fact going straight down the route where we have made so many mistakes before. I remind the Committee that those who do not learn from history are doomed to repeat it.

[Baroness Cumberlege]

My Lords, the noble Lord, Lord Harris, is right that we have already had this debate much earlier in the progress of the Bill, when we discussed the relationship between the Care Quality Commission and HealthWatch England. The debate took place on 22 November and I spoke in cols. 977-79, and your Lordships will be very grateful to hear that I am not going to go through it again.

There are just one or two things that I want to say. The amendments that I tabled at that time were very similar to some of those that have been tabled today. However, I want to make it plain that I am not, in principle, in favour of making Healthwatch England totally independent. I think there are enormous advantages in having a very close relationship with the Care Quality Commission. As I have said, I am not going to go into the reasons why at this time.

The first amendment that I have tabled provides:

“The majority of the members of the Healthwatch England committee shall not be members of the Commission”.

I think that is very important, in order to give them opportunities to criticise the CQC. The second amendment provides:

“The provision that must be made by virtue of sub-paragraph (1A) includes provision as to—

(a) the majority membership of Healthwatch England committee being elected from representatives of Local Healthwatch organisations, and

(b) the manner in which those representatives are elected, the term which they must serve and the role that they must fulfil”.

That has been very well argued again this afternoon.

Both the independence and the influence of Healthwatch England can be secured, providing that the right sequence of accountability is in place. I see this as follows: Healthwatch England must have a majority membership made of elected people from local healthwatches, and it must be accountable for the way it influences the CQC by local healthwatches across the country. The CQC must be accountable for the way in which it responds to HealthWatch England, and local healthwatches must be protected from interference and bias from local authorities. I will say more about that in the next group.

I want to take up the very good points about history made by the noble Baroness, Lady Pitkeathley. The question of whether Healthwatch England should be a stand-alone organisation is actually answered in history. Fourteen years ago, the then Association of Community Health Councils for England and Wales published Hungry in Hospital?. This highlighted the failure to feed elderly patients in hospital separately. Just a few weeks ago, exactly the same problem was highlighted in the dignity and nutrition programme report from the CQC. We know it is still a problem but have failed as a nation to sort it out. I wonder if ACHCEW had been part of the regulator, whether the CHCs could have ensured that the matter was addressed by the regulator and then monitored whether it was or not. Simply making an organisation stand-alone does not give it influence; indeed, it can distract it into supporting its own infrastructure, leaving less capacity for getting on with the job. Its functions, membership and accountability are what make it independent, and not, necessarily, its stand-alone status.

[Baroness Emerton]

My Lords, my name is not under any of the amendments, but I want to say briefly how much I support what has been said by the noble Lords, Lord Warner and Lord Harris, and the noble Baroness, Lady Pitkeathley.

Following on from the noble Baroness, Lady Cumberlege, I think that, while Healthwatch will have some opportunity to look at the CQC, it will usually look at the negative side. However, I thought HealthWatch was going to be a body that might be able to influence future policy. Certainly, when I had the experience of sitting on a CHC board, it was able to contribute to the future policy of a new development. I feel we are looking very much at the negative, rather than the positive and the contribution that can be made by members of HealthWatch, possibly to future national policies.

Thinking back to the changes that took place in mental health and learning disabilities, I think that it would have been very valuable to have had the contribution of the HealthWatch group of people. We did not have it at that stage. Somehow we need to weave into this the positive side of policy-making and strategy that HealthWatch can often contribute in a very positive way. While HealthWatch will have a contribution to make in looking at the negative side—which usually means the critical side in relation to the CQC—I do not think that that should be its sole role. I hope the Government will take that away and perhaps feed it in.

--- Later in debate ---

[Lord Warner]

I am not talking about flagging up; I am talking about a campaign. A campaign means that you take action, using the media, to put serious pressure on the Government in relation to their record in running the NHS for elderly people. I am not saying that that should happen; I am trying to understand what power this body would have as a sub-committee of the regulator, which is the point that we are discussing.

[Baroness Cumberlege]

Does the noble Lord, Lord Warner, agree that much depends on the membership of this body and whether it is independent? I am not sure why people call it a sub-committee. In the Bill it is called a committee. I have chaired the top board in organisations and I know that you get very close to some of those committees—you listen to them. If an organisation is totally independent and it goes left field, making a whole lot of noise, you just dismiss it and say, “Oh, they’re always making problems”. The opportunities are far greater if part and parcel of what it does is informing you of what is going on. I honestly think that you will listen much more carefully to people whom you meet in the corridor, in the chambers or wherever the debates are going on.

I take the point made by the noble Baroness, Lady Emerton. The Care Quality Commission does not always say that everything is dreadful. The Healthcare Commission used to say, “This bit’s good; this bit needs addressing”. I can see that this committee—not sub-committee—of the Care Quality Commission will serve a very useful purpose. It could put enormous pressure on the Care Quality Commission really to understand what is going on and it would not just be an irritant that is offside.

[Baroness Northover]

I thank my noble friend Lady Cumberlege for that and I agree with her very much. We all wish, and have all sought, to drive up quality in the NHS. That is so often difficult to achieve but this is one of the means by which we hope to make that happen. No doubt some people will be made to feel uncomfortable by what the committee reports and says, and I hope that that will be the case.

--- Later in debate ---

[Baroness Cumberlege]

My Lords, perhaps the noble Lord, Lord Whitty, ought to speak next, because I suspect that his amendments relate to what the noble Lord, Lord Low, was saying, and it may be that the synergy would be better that way.

[Lord Whitty]

My Lords, I thank the noble Baroness very much. In this case, logic trumps chivalry.

I have four amendments in this group, all of which relate to the independence of the local healthwatch—some of them in some slightly indirect ways. We spent some time at an earlier stage, and again today, talking about the independence of Healthwatch England from the regulator. I did not intervene today, but it is evident that the Government are not persuaded that we need to unravel them. I am afraid we are going to have to return to that at a later stage, because I am certainly not convinced by the Government’s arguments. However, I think that even the Government must recognise that a body representing patients, users and consumers of health and social care services has to be independent from the provider.

The problem with some of these clauses is that the local healthwatch organisation, as the noble Lord, Lord Low, has said, is not clearly independent from the local authority in all respects. We are not yet clear how independent of the local authority it will be in its membership and how that membership is appointed. Schedule 15, which comes in with Clause 179, is pretty general as to who the members would be. As the noble Lord, Lord Low, said, we have to await regulations before we see that. Meanwhile, there are other reasons why one is a bit suspicious that the local healthwatch organisations would come too much under the sway of the local authority, which is going to be the provider of many of the services to which they relate.

There may be other ways of doing this, but these amendments are attempting to make clear the independence of the local healthwatch body by establishing that it sets its own priorities and manner of operating, subject only to any guidance given by Healthwatch England; that is, it would not be subject to any guidance, restriction or direction from the local authority. There are then a number of clauses which are pretty complicated in themselves, but appear to treat the local healthwatch as if it were an excrescence of the local authority.

For example, I want to delete the bulk, or the purport, of Clause 181, which appears to treat local healthwatch organisations as if they came through the local authority rather than being independent bodies. Some of the requirements may well apply to healthwatch locally, but they should not be implemented and enforced via the local authority in any sense. The noble Lord, Lord Low, has already referred to some of the problems about freedom of information, but some of the other provisions could well raise difficulties if the local authority was the one ensuring that the local healthwatch met those provisions.

Independence of consumer organisations across the economy is important, and I will return to that on Report. Local bodies, in particular, need to be independent. They are the bodies to which individual patients and users will relate, and if they believe that the local healthwatch is in any way associated with, dominated by, or accountable to the actual providers of the bodies that provide the services, its credibility will be diminished. I would therefore hope that the Government took note of these concerns and made it more explicit in the final version of this Bill that local healthwatch organisations were independent of the local authority and made their own decisions, with their own priorities and manner of operation. I do not think that we can leave all that to regulation; it has to be more explicit in the Bill. This is one way of doing it, although the Government may well come up with better ways of doing it, but I think that we need to ensure that we reach that stage before we finish with this Bill.

[Baroness Cumberlege]

My Lords, I have a number of amendments in this grouping concerning local healthwatch. As has already been said this afternoon, local healthwatch is the source of intelligence from the people who are actually using the services. This intelligence is gathered through their enter and view monitoring visits to both health and social care services—we should not forget that it is social care as well—and through their local involvement work.

However, neither commissioners nor overview and scrutiny committees have the same binding arrangements to enter and view health and social care facilities. Local healthwatch has the opportunity to interview people at the time they are actually using the service. The local healthwatch has the independent messenger status with local people that neither commissioners nor overview and scrutiny committees have. Local healthwatch has the right to enter and view, to talk and listen, to the most vulnerable of all people, those with dementia or other mental illness, those lying on trolleys in A&E, or on mental health in-patient wards. “No decision about me without me” can be tried and tested when most fresh in the minds of patients and users. It is only here that the reality of the services that results from the theory of commissioning is to be found. To fail to take due account of this perspective in commissioning services is commissioning wearing a blindfold. The purpose of Amendment 318E is to ensure that commissioning is evidence based.

New Sections 14Z and 14Z11(2) require clinical commissioning groups to involve and consult on their commissioning plans. We know that this is a somewhat bureaucratic exercise, and it is often simply for the cognoscenti. Although these clauses are to be welcomed, they do not go far enough—hence the insertion of my new clause. Frail elderly patients lying in hospital wards who are not being fed will not be responding to consultations any more than will patients who have been sectioned under the Mental Health Act. The local healthwatch must talk to those patients and its findings must be an indispensable component of the evidence on which commissioning is based.

New subsection (3A), inserted by Clause 180(6), also requires commissioners and others to have regard to reports and recommendations from local healthwatch. This replicates the current arrangements for reports and recommendations from LINks, which has failed to bring the patient experience into the heart of commissioning. Compared to the status given to the views of health and well-being boards on commissioning plans—the strategic beginnings of commissioning—this is weak. What is needed is equal attention to the evidence on the outcomes of that commissioning, which local healthwatch is uniquely well placed to provide.

My new clause requires local healthwatch to hold the clinical commissioning group to account for incorporating the evidence that the local healthwatch has produced at the very start of the commissioning period. It should then heavily influence the commissioning plan for that period in taking the reality and applying it to commissioning theory. Binding the patient experience into commissioning is a much more specific requirement than merely “having regard to” local healthwatch reports and recommendations. The conjoint benefit of this new clause is that it increases the accountability of local healthwatch for producing robust evidence of the patients’ experience. Providers must also satisfy the local healthwatch if they are to secure further contracts.

[Lord Mawhinney]

My Lords, I think that my noble friend said that providers must satisfy the local healthwatch before they can proceed with their commissioning. Is this another barrier to the commissioning process, or does she anticipate a collaborative conversation? I am not clear on whether this is another hurdle in the commissioning process or a lesser effect. It would be helpful, at least to me, if she would expand a little on that thought.

[Baroness Cumberlege]

My Lords, there is no intention that this should be a further hurdle, but if commissioners are going to commission services that are really relevant to local people then they need to take account of what the local healthwatch is saying. This is a huge resource that could improve services enormously and make contracts much more relevant than some of them have been in the past. I hope that that answers my noble friend.

I shall take three quick examples to illustrate my point. The first is a patient in an older persons ward who leant forward confidentially to the CHC visitor, saying, “They don’t feed them in here, you know. They just put the food at the end of the bed, then they take it away again. Please don’t tell them it was me who told you”. The second one is the mental health in-patient in a unit with an outside garden, who explained that he could not go out even though the summer was really hot. There were not enough staff to accompany the patients outside so he “had to stay in all the time”—his words. What quality of life is that? The third is from another patient in an older persons ward who expressed concern about a patient whose hearing aid battery was flat: “They could just have gone to the audiology department to get another battery, but they wouldn’t”. The staff just spoke more loudly to the profoundly deaf patient, increasing his distress and isolation.

To some people these examples may seem quite trivial, but to the people concerned they are not—they are very important. I took those three examples because the first is over 10 years old, yet we know from the CQC’s recent dignity and nutrition inspection programme, and from the evidence from Mid Staffordshire, that patients are still not always adequately fed in hospital. That makes the point of the amendment perhaps more powerfully than anything else. What we are doing now is not working; it is not effective, and does not bring about the radical changes that are necessary. We have to do things differently, and the suggested new clause gives us the opportunity to do just that. I feel strongly about this issue and I hope that the Minister will give it serious consideration. Otherwise, I may have to bring it back at Report.