Health and Social Care Bill

Baroness Cumberlege Excerpts

Monday 19th March 2012 Lords Chamber

Moved by

[Baroness Cumberlege]

14: Clause 56, page 87, line 3, at end insert—
“( ) On abolition of the Health Protection Agency, the appropriate authority in England will take steps to ensure that any organisation established to assume the Agency’s functions (and any others deemed appropriate) will—
(a) have a Board with a non-executive Chair and a majority of non-executive directors;(b) be able to undertake and publish independent research and to bid for research funding from any source; and(c) be able to tender for contracts related to its functions.”

[Baroness Cumberlege]

My Lords, Amendment 56 is simpler than the amendment I tabled on Report but it is necessary because I need some undertakings. I know that other noble Lords also seek those. The amendment concerns Public Health England. Both amendments found favour across the House in the previous debate, as I hope Amendment 14 will in this one. I thank noble Lords who have put their names to the amendment. I know that the noble Lord, Lord Turnberg also wished to put his name to it, but there was no room on the Marshalled List.

As I said, the amendment concerns Public Health England, the new body that is destined to take on the duties of the Health Protection Agency, the cancer registries, the National Treatment Agency, the Public Health Observatories and some of the functions of the regional directors of public health and their teams. The staff of Public Health England will number around 4,500 people, so it is an important and considerable agency. The original proposal was that the organisation should be governed by a civil servant acting as the chief executive, without a board to whom he or she would be accountable. It was a model that many of us found very strange and thought unworkable.

At the meeting we had with him and later in correspondence, my right honourable friend the Secretary of State made it clear that he values an unobstructed line of accountability between the individual charged with the day-to-day running of Public Health England and him. However, he agreed in his letter, which I received on 15 March, that Public Health England,

“needs an appropriate level of operational independence for it to be most effective”,

and that,

“it will be essential for it and the Government as a whole to work together seamlessly and to share a common agenda”.

He went on to say:

“I do accept that, if PHE is to achieve our ambitions for it, the chief executive and the Secretary of State should be seen to be subject to frank and expert challenge. To help deliver that challenge I propose to appoint a chair for PHE, through an open and fair competition under the public appointments process, and I will ensure that the PHE board has a majority of non-executives members”.

Later, he refers to them as non-executive members, rather than directors, so I seek an assurance from my noble friend Lord Howe that we are talking about directors and not members. Perhaps he will confirm this.

The board will advise on the running and development of Public Health England but my right honourable friend states that he has not yet had time to consider details of this aspect of the chairman’s role. Once the chief executive post has been filled, he will discuss the overall governance structure of PHE. He will want to make sure that the expertise and experience of the chair will complement those of the chief executive and other senior PHE staff. He goes on to say:

“The essential point is, that we need to design a role for the chair that is significant enough to attract a high quality, respected candidate without diluting the responsibility of either the chief executive or the Secretary of State”.

It is very much my wish that he should involve me further in these proposals. He says that he will write to me, but I should very much like him not only to write but perhaps to seek my views on this aspect of the organisation.

In his letter the Secretary of State writes:

“The chair and non-executive directors will have direct access to Ministers through regular, and if necessary ad hoc meetings”.

I very much welcome that. He goes on:

“They will also have editorial control over a section of PHE’s annual report”.

Could my noble friend tell me what “section” means in this context, as he will know that the annual report will be a crucial document and should be honest and unfettered in its analysis of the nation’s health? He continues:

“The annual report will reflect feedback from external agencies and individuals who have significant dealings with PHE … and PHE data will be subject to the code of practice on official statistics, which severely restricts access to certain material by officials or Ministers before release”.

Although I very much welcome this, I wonder whether my noble friend could give me an assurance that Public Health England staff will be able to give professional advice freely to the public. Since they are employed by an executive agency, they will be civil servants—subject to Civil Service contracts and bound by the Civil Service Code. They will be able speak out only if what they plan to say is departmental policy and has been approved by Ministers.

If PHE is to be the voice of public health, as we hope it will be, it will need to be able to advise the public and other professional bodies. The experts and specialists working in the executive agency will on occasions need to give professional advice that has the confidence of the public without its necessarily having been approved by the department.

Public health specialists employed by the NHS Commissioning Board or a local authority will have the freedom to speak out—of course within their professional code of conduct. I am not seeking for the amendment to be placed in the Bill but an assurance that this difficult tension will be addressed.

In earlier debates, the noble Lords, Lord Warner, Lord Patel, and Lord Turnberg, voiced their strong concerns about the commissioning and conduct of research by PHE—in particular, its ability as regards research funding for external organisations. I am sure that those noble Lords will seek assurances on this.

My right honourable friend the Secretary of State writes that he accepts the importance of the issue and will publish a more detailed description of PHE’s role in research, including its relationship with academic institutions and other agencies. I am delighted that he is happy to involve me and, I hope, other noble Lords with the Chief Medical Officer in further discussions on this issue.

We have come a long way since Committee in designing a much more robust and satisfactory national board to undertake responsibilities for public health. Public health is sometimes seen as a side show in the maelstrom of issues that dominate the provision of NHS services but it contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life, and nothing can be more important than that.

The Secretary of State has throughout sought to make public health centre stage, and I pay tribute to him for his commitment and determination, and thank him for listening to and acting on our suggestions. My noble friends Earl Howe and Lady Northover have been equally diligent and generous with their time in meeting our concerns. I know that the noble Lord, Lord Beecham, and others would have preferred there to be a special health authority. I can understand their wish, but the flexibility that an executive agency gives us might be useful in the future. The Secretary of State has promised post-legislative scrutiny of the Bill, specifically to consider whether PHE would be better served by a different arrangement or a better organisational form. I welcome that.

I have quoted fully and, I suspect, rather boringly from the letter sent by my right honourable friend the Secretary of State because it is very unlikely that my amendment will be in the Bill. I therefore need a record of the changes that have been promised. I do not doubt for a moment that there is any intention to renege on these undertakings, but I know how easy it is for things to go astray. I am therefore anxious to get as much as I can into the pages of Hansard as a reference for the future. I very much look forward to hearing the views of other noble Lords and my noble friend’s reply. I beg to move.

[Lord Warner]

My Lords, I have put my name to the amendment and pay tribute to the hard work put in by the noble Baroness, Lady Cumberlege, on making progress in this area. It has occasionally seemed a little like trudging through the Somme mud, but we have made some progress. I share her view that we want to hear at length from the noble Earl about the assurances promised by the Secretary of State, particularly on the governance issue.

I want to raise in a little more detail the issues in paragraphs (b) and (c) of the amendment, regarding the ability of Public Health England to undertake and publish independent research and to bid for research funding from any source. This remains an unresolved issue. The dialogue is continuing in the Department of Health because in November a joint working party was set up between the Health Protection Agency, which is being abolished, and the department about the research activities of the new Public Health England. I remind noble Lords that this is particularly significant because at stake is the large sum of money that the HPA, as a non-departmental public body, raised for research, its own funding of research, as well as the scientific independence and excellence of its staff. There has been a great deal of concern that creating an executive agency with civil servants would make it difficult for that research quality and volume to be maintained in the new world.

Despite the Health Secretary’s assurances, concerns emanating from within the current agency remain around whether things have really been sewn up in terms of the ability of PHA, within the resources available to it, to control its destiny in the future and to go out to seek the research contracts that will enable it to meet the threats and concerns about public health that may have to be faced.

The nub of this issue comes down to a simple matter that I should like to leave with the noble Lord and on which I ask him to provide assurances. My understanding is that the problem at the moment is that the department has taken funds from the Health Protection Agency and Public Health England and made them available only for academic partnership research projects. The concern is that this might lead to Public Health England being prevented from carrying out research if that was not flavour of the month in academic institutions. There could be conflict between the concerns of academics to pursue partnership research and the real needs that the scientists within Public Health England consider to be in the public interest in terms of the research agenda to be followed. That is the main unresolved issue causing concern to the scientists within the Health Protection Agency staff who are soon-to-be-transmogrified into Public Health England.

The more assurances that the noble Earl can give the more they will satisfy not only the signatories to the amendment but the future employees of Public Health England who are to transfer as scientists to the new organisation.

--- Later in debate ---

[Earl Howe]

My Lords, although I understand the noble Lord’s question, I do not think that I can answer it at the moment, and I am sorry to disappoint him. My advice is that we do not think that partnerships will be necessary in all or every case for Public Health England. Whether the NIHR can insist on trumping the operational independence of Public Health England is not a question that I can answer very readily. The main point is that research would not have to be jointly conducted. The Secretary of State has the power to carry it out on his own. That means that, if there were a tussle between two priorities, the Secretary of State could insist that a certain programme should be prioritised. I think that that is probably as far as I can go in answering the noble Lord at the moment.

My noble friend Lady Jolly asked me some general questions about lines of accountability. I hope that she will have gathered from my remarks today that Public Health England will be accountable directly to the Secretary of State in the first instance. Directors of public health will be joint appointments between local authorities and the Secretary of State, although they will be local authority employees and directly accountable to the authority chief executive. It goes without saying that close joint working between PHE and local authorities will be crucial.

My noble friend’s amendment and the powerful way that she has argued for its objectives are a tribute to her and to the noble Lords who have supported her. I believe that I have responded positively to each point that the amendment seeks to establish and that that response can be made comprehensively without amending the Bill. That remains our strong preference. I hope very much that my noble friend is sufficiently reassured by the commitments that I have made today to withdraw her amendment.

[Baroness Cumberlege]

My Lords, I have no intention of testing the opinion of the House this evening. We have negotiated long and hard with my noble friends Lady Northover and Lord Howe. It has been a very interesting experience. Those noble Lords who have supported me by putting their names to my amendments have tutored me well in the art of negotiation. It has occurred to me that clearly you can negotiate only if both parties are willing to participate, and in this instance that has been the case. The Secretary of State, my noble friend and noble Lords have been more than willing to meet us and to debate and discuss matters with us, putting forward some very strong assurances about the future of Public Health England.

I know that my noble friend Lady Jolly wanted the amendment to be made to the Bill and for those words to be included in the Bill so that the constituency in the country—all the public health people involved—would see what we are trying to achieve. I knew some time ago that that would not be possible, and we have had a very full debate today, albeit at Third Reading, because we are very anxious to get all those assurances articulated and recorded in Hansard.

We will be keeping a very close eye on the development of Public Health England and I shall be framing the assurances that I have been given today. I shall have them on my wall and, when there are new Secretaries of State, I shall present them with this framed undertaking so that we can absolutely ensure that Public Health England goes from strength to strength and, as my noble friend said, is a world leader and, I hope, a world beater. We have a very good reputation in the world on public health. It is something that we must retain and improve upon, ensuring that we have a healthier nation for the future. I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My noble friend Lady Emerton, in tabling this amendment, has come up with something very sophisticated and really rather clever. By requiring education, she will ensure that the next group has its standards driven up. People enter into a caring group and learn from others around them; the problem is that at the moment they are learning bad practice as well as, hopefully, learning good practice.

Making sure that these are assured training programmes is eminently sensible. Modern educational techniques using e-learning, DVDs and other ways of training mean that you do not have to take people away from the job and put them in college. They could be given provisional registration while they worked through some of these training programmes. Modern ways of teaching also allow you to train those with very low literacy skills. It is worth remembering that some of the very high-standard care assistants in the system providing care in people’s homes often have low levels of literacy, so they need to be taught using modern techniques. This will allow that to happen. As for tracking their attendance, with electronic records it becomes quite easy to monitor what they turned up for and how they performed and to assess them in the tasks that need to be undertaken.

This amendment seems to meet all the criticisms that the Government laid at the door of previous amendments. I hope that it will get a better reception than its predecessors.

[Baroness Cumberlege]

As a fellow of the Royal College of Nursing and the Royal College of Midwives, I very much regret that I have been unable to take part in the previous debates initiated by the noble Baroness, Lady Emerton. I regret that for many reasons, not least because I had the privilege of introducing the noble Baroness into your Lordships’ House, and what a good thing that was. The noble Baroness is a truly remarkable person. I am not at all surprised that she has crafted this very clever amendment, as the noble Baroness, Lady Finlay, said. I know that the noble Baroness, Lady Emerton, recognises that statutory regulation will not always prevent abuse. Indeed, the chief executive of the Council for Healthcare Regulatory Excellence told your Lordships at a seminar that the regulator is never in the room when abuse occurs.

I understand that the noble Baroness is calling not for regulation but for a voluntary register assured by the CHRE. People will get admittance to the register provided they have attended an assured training programme. The training programme is to be mandatory for all new healthcare support workers from 1 April 2013. I understand that that is where the Government have something of a problem because of the numbers and costs involved, as the noble Lord, Lord Patel, said.

However, is it not right that good employers should pay the registration fee and have some element of discrimination in deciding who they recruit to a job? The question asked by the noble Lord, Lord MacKenzie, was very apt. My noble friend’s answer to it will be very interesting. If individual support workers have to pay the registration fee themselves, it could be seen as a tax on work for people mostly on the minimum wage, and there is an issue about that. It will probably increase the cost of employment, and this is a market in which retail, part-time working and motherhood compete, so we have to be careful.

On Report, the noble Lords, Lord Turnberg and Lord MacKenzie of Culkein, referred to the history of state enrolled nurses. Unlike registered nurses, they were said to be used and abused. I remember that because I served with the noble Baroness, Lady Emerton, on the United Kingdom Central Council for Nursing, Midwifery and Health Visiting where, over time, we phased out state enrolled nurses. They have been replaced to some extent by healthcare support workers, and we are facing almost the same issues again.

In the previous debate, my noble friend Lord Newton and the noble Lord, Lord Hunt of Kings Heath, were very kind to mention my role in nurse prescribing. I am delighted to see the noble Baroness, Lady Jay, in her place. I remember the day when we rejoiced in the fact that nurse prescribing had gone another step on the way. It took me 26 years to get that to happen—a very long time indeed—and we are not quite there yet. It seemed to me that nurse prescribing was extremely obvious. In the light of today’s debate on risk and risk registers, it probably would have been seen as a very high risk, but it has not proved to be so—but we are not there yet. I am very much hoping that, with the help of my noble friend Lord Henley and the Home Office, the last piece of this jigsaw will be put into place.

We started very small with nurse prescribing. We started with Bolton. The whole of Bolton took on nurse prescribing. In some parts of the country, the fight was enormous. GPs saw prescribing as their territory, and they did not want nurses to step into it. We managed to achieve it, and one of my real worries is that if we have support workers who, as the noble Baroness told us in the previous debate, are administering some very serious drugs, the work that I have done will be diminished because people will then think that nurse prescribing can be done by anybody with sufficient training, and that is dangerous. It is wrong for patients, and it is wrong for support workers who have perhaps been told that they have to administer these drugs.