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

Baroness Farrington of Ribbleton Excerpts

Tuesday 5th February 2013 Lords Chamber

[Earl Howe]

I am surprised to hear that. My understanding is that that is not so and that local Healthwatch, as a social enterprise, is being treated on the same footing. My advice is as any other, but if I am wrong about that, naturally I will write to apologise to the noble Lord and copy all speakers into my letter. As I have said, I completely understand that the wording of parts of these regulations appears complicated. In answer to the noble Lord, Lord Collins, I should say that for that reason I can commit to my officials working with Healthwatch England and the Local Government Association to publish clarificatory material on this.

Having said that, I was slightly surprised that the noble Lord, Lord Warner, cast aspersions on Regulation 41. He asked how small organisations could understand the requirements set out in it. The matters set out in Regulation 41 are matters to be included in local authority contracts with local Healthwatch. In fact, these are based largely on the existing regulations on LINks. I have to say that it has not been previously suggested to us that these have been difficult to understand or are disproportionate.

The noble Lord, Lord Collins, asked me who was consulted before the draft regulations were published and whether Healthwatch England was consulted. We consulted a range of stakeholders, including LINks, local authorities, voluntary and community organisations, NALM, Social Enterprise UK, the Charity Commission and providers on the issues relating to the drafting of the local Healthwatch regulations. That included the Healthwatch England interim team.

[Baroness Farrington of Ribbleton]

I have listened very carefully to the Minister, who I know is trying to be helpful to your Lordships’ House. But I still do not understand who exactly judges, in the cases to which he has referred, whether particular campaigns are appropriate, local or acceptable, or whether it would refer to anyone apart from those who may have a role in funding or developing policy to which Healthwatch may object.

[Earl Howe]

The activities of Healthwatch will be governed by a contract with the local authority. The local authority’s duty will be to hold the local Healthwatch to account according to that contract. If the local Healthwatch were to stray outside the boundaries that I have set out as to what a reasonable person would interpret as legitimate activities and stray into the territory of being a political party adjunct, it would be the duty of the local authority to make a judgment about that. It would be a matter of judgment, but it would be important for the local authority to make its views rapidly known to the local Healthwatch to ensure that it retained the role that it should have, which is a role that primarily involves community benefit. There are checks and balances in the system, and those responsibilities are held primarily by the local authority.

--- Later in debate ---

[Earl Howe]

That is not what I am saying. As I said earlier, it will be important for a local Healthwatch in any campaigning or public statements to assure itself that it is truly representing local people and patients, and has the evidence to back that up. If it does, and if it can show that what it is saying is genuinely supported by local people, it has nothing to fear. It is only where the Healthwatch may latch on to one or other political party without reference to local people that it may be vulnerable.

[Baroness Farrington of Ribbleton]

I am sorry, my Lords, but the noble Earl is not answering the point about who makes the judgment. The noble Lord, Lord Greaves, and I have served on the same local authority. I can think of occasions when, had he or I joined Healthwatch and formed a campaign, it is quite possible that either he or I on the local authority could have taken a totally different view about what was happening. I want to know who the independent arbiter is of whether the local Healthwatch is actually doing something that it should not do, or something that the noble Lord, Lord Greaves, or I did not happen to like, because they are two very different things.

[Earl Howe]

They are two different things, and I say to the noble Baroness that we are dealing here with a relationship that she may characterise as overly arm’s length. It is in the direct interests of a local authority to make sure that it has a good, thriving relationship with its local Healthwatch but that it is not tarnished by party political considerations that are irrelevant to the concerns of local people. The very fact that a local Healthwatch comes out with a political statement is not to damn its activity. What makes it vulnerable is if that local Healthwatch cannot show that it is truly representing local people as it speaks out. That is a matter of evidence and of fact.

The independent arbitration that the noble Baroness talks about should not be necessary. The matter could, in the final analysis, be decided in a court, although one hopes that that would never happen. However, in the end, the local authority has to exercise its judgment, and in doing so has to act reasonably and in good faith as a public authority. If it does not, it is acting unlawfully. I hope that that is of help to the noble Baroness.

I was asked a number of other questions by my noble friends Lady Jolly and Lady Cumberlege. My noble friend Lady Cumberlege asked me whether, if there were a controversial policy, say, to close an A&E department, a local Healthwatch would be permitted to provide evidence about patient experiences to campaigners on that issue. Yes. In that scenario, we would envisage a local Healthwatch taking those very views and evidence of good standards of service directly to the commissioners or decision-makers. A local Healthwatch can also make a referral to the health scrutiny function of the local authority, which would be required to keep a local Healthwatch informed of any action taken. If a local Healthwatch thought, as part of its Section 221 activities—patients’ public involvement activities—that local people need to know what their community’s experience of its A&E is, we would certainly expect the local Healthwatch to be transparent and make that evidence known.

My noble friend asked whether people who had been active in a national campaign could be decision-makers in local Healthwatch organisations. The regulations do not set out membership of a local Healthwatch, so it will be down to the local Healthwatch to decide whether such people can add value to the outcomes that it wishes to achieve for its local people. Local Healthwatch has to be different; it has to build up its reputation and credibility in order to secure the public’s confidence that it can have a mature relationship with local authorities, which was the point that I made just now. The regulations seek to ensure that local Healthwatch does not carry out the relevant political activities as its only or main activity. That would not meet the community benefit test.

Would local Healthwatch be subject to purdah? No, it would not. I repeat that it has been set up to be the local consumer champion, and as such its role becomes very important in getting people’s serious concerns listened to and acted upon.

My noble friend Lady Jolly asked me several questions. She expressed the fear that the regulations would render local Healthwatch a mere proxy voice. I emphasise to her in the strongest terms that that is not so. As I have explained, we have sought through the regulations to be as inclusive as possible of people who may wish to give up their time to do what they feel passionately about doing. To be frank, LINks, which is the arrangement that we have at the moment, have all too often been associated with white, middle-class men, and we need local Healthwatch to embrace diversity much better.

Could the manager of a care home sit on its local Healthwatch? Yes, he or she could get involved in their local Healthwatch, but it would be good practice for the Healthwatch in its governance arrangements to have procedures for a code of conduct, and, as set out in Regulation 40, it would be required to have and publish procedures before making any relevant decisions. That is essentially about transparency.

Could a local profit-making provider of primary care be a local Healthwatch contractor, and could its manager sit on the local Healthwatch decision-making group? Again, it would be up to the local Healthwatch whom it wishes to contract with for their expertise to help it deliver its statutory activities.

On the role of local Healthwatch to provide information and signpost people to choices, the decision rests with that individual seeking out the options available to them. We would expect local authorities’ arrangements with local Healthwatch to be robust so that it acts effectively. The local authority will be under a duty to seek to ensure that the arrangements are operating effectively and provide value for money.

My noble friend suggested that the department’s interpretation of lay involvement boils down simply to the foot soldier role. I do not agree. It would be a wrong picture to paint to the public about how a local Healthwatch discharged its obligations. The obligations are quite clear. Engagement, consultation and participation are all words that can be used to describe different types of involvement activity. Referring to “involvement” therefore provides for flexibility, as I indicated earlier.

Could the decisions listed in Regulation 40(2) be made by a decision-making body within a local Healthwatch composed of a majority of people who happen to be health or social care managers? No. Regulation 40(2) must be read with Regulations 40(3), 40(4) and 40(1)(a). The requirement to be imposed on local Healthwatch in the contracts is to have and publish a procedure for involving lay persons or volunteers in such decisions. As stated in the advice to the Secondary Legislation Scrutiny Committee, the plain provision of information would not in most cases comply with the obligation to involve; the involvement has to be in the making of the decisions.

I hope that I have covered satisfactorily all the questions put to me, and I hope that the noble Lord, Lord Collins, will be sufficiently reassured to withdraw his Motion.