NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Baroness Cumberlege Excerpts

Tuesday 5th February 2013 Lords Chamber

[Baroness Masham of Ilton]

My Lords, it is with regret that we are here this evening regretting that the Government have, through restrictions on campaigning, deliberately tied the hands of local Healthwatch bodies from giving public voice to those patients’ interests.

The regulations seem muddled and unclear. I am surprised that the noble Earl, Lord Howe, has not managed to do better. Over the years, he has witnessed the difficulties that the bodies representing patients have had, ever since the closure of the community health councils. This time around, I feel that the Government are missing an opportunity. I support the view—I always have—that it is essential that local Healthwatch be independent and led by the service users and the public if it is to have credibility and influence. It must not be a tool of those whom it monitors and inspects.

With the Francis report to be published tomorrow, I am sure that it will become evident that a clear, independent voice supporting patients and users of care homes is vital. There should be trust. The dangerous culture of cover-up and not listening to family and friends must be rectified. At the moment, the Patients Association is asked to comment when there is a problem. We need good, dynamic Healthwatches to ensure that disasters do not happen. We need people who know the needs of their local population. We need safety and a good standard of all health and social care. Healthwatch England is there to help and support local groups, but the local Healthwatch should have freedom to do the very best for those whom it should be protecting and supporting. I hope that the Government will realise what is needed and do better before it is too late.

[Baroness Cumberlege]

My Lords, I suspect that my noble friend has got the message now that we are not totally enamoured of these regulations. I think back to when we had the White Paper, which was published in July 2010. I remember, as my noble friend Lady Jolly has said, how excited I was then by the fact that in local Healthwatch we were to have an organisation that really would be the collective voice of patients. There was a mechanism so that it would have a very strong infrastructure at the local level.

So far so good, but throughout the passage of the Bill Members of your Lordships’ House fought strongly to get that policy enacted. We were given assurances, as noble Lords have said, and they were given in good faith. Yet now we have the regulations in this statutory instrument, we are not only disappointed but deeply concerned. I share the grave concern of the House’s Secondary Legislation Scrutiny Committee, which says that there is a very real possibility that local Healthwatch is in danger of being manipulated, but our concerns do not stop there.

The Government are right to want local people to have control of local Healthwatch but there is a genuine fear about it being subjected to such complex and draconian restrictions on what it will be able to say and do. It is not entirely clear to us what value local Healthwatch can add to the accountability framework of the NHS. This view is shared by Healthwatch England which, as the noble Lord, Lord Collins, has said, suggests that this could be dealt with by guidance. However, the trouble with guidance is that it does not have any statutory force. However, it could use its powers to sharpen the way in which local Healthwatch operates—as an independent champion through the trademark which all local Healthwatches must have and have to own. I have not given my noble friend any notice of this, but perhaps he might like to think about that and take it away.

Paragraph 36 of the regulations prohibits local Healthwatch from opposing or promoting changes to any national or EU law, any national policy, any policy by a local public authority—including both local authorities, the NHS or “any organ or agency” of either—and any planned or actual changes in any of these. In addition, it prohibits influencing,

“voters in relation to any election or referendum”.

These prohibited activities may be undertaken only if they are incidental to what could be called the core purpose of local Healthwatch—that is, giving people a say in local health and social care—unless that core purpose is incidental to the prohibited activities. This is mind-stretching. That seems to be something of a circular definition whereby X is allowed if it is incidental to Y, unless Y is incidental to X. This is pretty difficult. I have said that it is mind-stretching but I really fear that it will be unworkable. What is certain is that it will be incomprehensible to local people, who are expected to participate in local Healthwatch.

The impact of this provision is likely to have a chilling effect and to negate the aims of Healthwatch. Why should any committed volunteer get involved in local Healthwatch, giving freely of their time and energy to try to influence things for the better, if they risk being penalised for doing so?

I shall describe three situations to the Minister to test this with him, and I hope that he will reassure me on these points. First, say that there was a controversial policy to close an A&E department in order to save money. Would local Healthwatch be permitted to provide evidence to campaigners of how good the patient experiences had been at that threatened department? Would that be banned under Regulation 36 as the promotion of changes to a policy that a public authority proposes to adopt? If the Minister says no, how could local Healthwatch be confident that the local NHS decision-makers would share this view?

Secondly, could people who had been active in a national campaign to improve quality and accountability in the NHS be decision-makers in local Healthwatch? Would local Healthwatch have to avoid any connections to an organisation seen as intending,

“to affect public support for a political party”,

that was in power? Again, if the Minister says no, and decisions on such matters are to be delegated to local authorities, how could local Healthwatch be confident of that?

Thirdly, during a local election campaign, would local Healthwatch be subject to purdah, like democratically elected bodies such as local authorities or the Government themselves? Would that apply even if it discovered serious abuses of vulnerable people with learning disabilities in a residential home during this period? Such a discovery would not reflect well on the local authority commissioners, who are “an organ or agency” of local government under the regulations. Would the local Healthwatch have to keep such concerns secret or risk being penalised by that very same local authority?

The very fact that we have to ask these questions demonstrates that we do not have the right set of safeguards for the independence of local Healthwatch. The fact that local Healthwatch is funded and controlled by local authorities, which it is supposed to be scrutinising, is pretty uncomfortable. The added constraints of Regulation 36 threaten its freedom to speak and to act in the interests of patients and the population. These very complex restrictions seem designed to protect those in politics or in the provision of services who have something to hide. They impoverish the debate on health and social care, whether it is about controversial reconfigurations or a Baby P tragedy. Patients could not care less about politics and just want someone to speak up for them when they themselves cannot.

I urge my noble friend to consider modifying, redrafting or, if possible, removing these restrictions, or to find a mechanism to ensure that they are not implemented in the way that I have outlined and the way that I fear. To me, it is not clear whom they are really designed to protect, but I fear that it is certainly not patients.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I thank the noble Lord, Lord Collins, for raising his concerns and other noble Lords for following in his footsteps in sometimes very trenchant terms. A number of concerns have been raised about these regulations during the course of the debate and I will now do my best to address them in turn. A number of noble Lords reminded us of the critical importance of lay involvement in local Healthwatch and questioned why the wording of the regulations does not therefore prohibit employees of a local authority or indeed of the NHS from taking roles in the leadership and governance of a local Healthwatch. Indeed, your Lordships’ scrutiny committee suggested that this might leave a local Healthwatch in some way vulnerable to manipulation or threaten its independence. That concern was picked up by one or two noble Lords. I can, I hope, provide reassurance on this. Indeed, I am sorry that despite the department’s clarificatory submission to the scrutiny committee, it still remains a source of concern.

We completely recognise the importance of local Healthwatch being truly local organisations that are led by local people and involve volunteers. That policy aim is reflected in the way the regulations are drafted. They impose explicit requirements relating to the involvement of lay persons and volunteers. Both those terms are defined. The definitions of “lay” and “volunteer” are designed to be as inclusive as possible. Essentially, they aim to cover those who wish to give up their time for something they feel passionately about to influence change and service improvement. In practice, very often lay people and volunteers are the same group of people, but we thought it important not to frame a definition in a way that would exclude other people who might not define themselves in precisely those terms. The definition should, and does, apply as much to those who have paid jobs but who wish to do their bit for the community in their spare time as to those who do not work or who are retired.