Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

I, too, support this suite of amendments. I shall speak only briefly, not in favour of a reinvigorated Earl Howe but in support of Amendments 234 and 234A, which are to the same effect and concern the termination of the appointment of directors of public health.

The Bill provides for joint appointment of the directors of public health, by the local authority and the Secretary of State, and it is right that it does so. I entirely agree with the noble Lord, Lord Patel, that it is therefore essential that the Secretary of State should also have a crucial vetoing part to play in the termination of such an appointment. It is not only that it is logical and sensible that he should do so. It is also that it is more important upon termination that the Secretary of State has that power of intervention. It is important because the director of public health has to have a sense of independence and security. As my noble friend Lady Cumberlege and the noble Lord, Lord Warner, have pointed out, there is considerable potential for disagreement between the local authority and the director of public health. It is therefore crucial that, in the event of friction, the director of public health can act with confidence to disagree.

This is exactly the kind of decision in which it is the Secretary of State, having ultimate responsibility for the health service, who should have that role. The Secretary of State’s role is therefore the best guarantee of the independence and the freedom of action that directors of public health ought to have.

[Baroness Finlay of Llandaff]

My Lords, my name is to Amendment 339. The other amendments have been spoken to most eloquently, having been introduced fully by my noble friend Lord Patel. One additional point, and the reason for having these directors of public health on a register, is that the person appointed may be fit to do the job today but they need to be fit to do the job tomorrow as well. By having them on a register, issues of revalidation, continuing professional development and so on would be maintained, and a level playing field would be maintained in an upward direction.

We have heard today about infection, but the greatest threat to public health may well come not from infection but from issues such as cyberterrorism around our major utilities and the havoc that that could cause. These directors of public health will have an enormous amount on their shoulders, and they need to be linked into the national and international disaster planning groups. Some of those aspects of their work will be ill understood by those in local authorities, who may feel that such things are remote and unlikely to happen. In the event of a disaster, those skills will have to be drawn on immediately, and the directors of public health have to be prepared and able to take the leadership role.

I urge the Government to consider carefully any good reason why not to register directors of public health. I cannot see any reason not to register these people who are trained specialists. You have to have a really good reason not to, in the face of all the evidence that they should be registered.

[Lord Beecham]

My Lords, there is clearly a broad and deep consensus in the House that the general direction of the Government’s proposals for public health is on the right lines. We welcome in particular the restoration to local government of many public health functions.

There are still some areas of potential difficulty, though, which may well account for the recently published survey of the Faculty of Public Health, which showed great concern among 1,000 members of the profession who responded to a survey. Some 71 per cent of them disagreed that the new system would create a safer and more effective response to emergencies, and we will be looking at the situation regarding emergencies in a subsequent group. Eighty-one per cent disagreed with the proposition that the proposals would reduce inequalities in access to health; 83 per cent disagreed that the new structures would reduce bureaucracy; and 79 per cent feared that they would lead to fragmentation. I do not necessarily concur with those views—I think they are too pessimistic—but they disclose a degree of concern that some of the amendments that we are now discussing would allay.

Underpinning some of those concerns is the issue that is not part of the Bill: funding. We cannot ignore the real concerns about that—they have been voiced before and no doubt they will be again as we continue to debate the Bill—but in particular there is concern that, whereas the department apparently estimates the cost of public health services at £4 billion, which presumably is to be used as the basis for ring-fencing the grant that would go to local government, the BMA’s estimate is £5 billion. If that is right, it is a significant difference that would impact on local authorities. Of course, we are awaiting next year’s revenue support grant settlement. In addition, there are concerns about how the health premium would operate and how it might disadvantage areas that suffer from significant social and economic disadvantage. They would find it harder to improve the health of their communities than other, better placed authorities and might, therefore, lose out. In looking at the Bill, particularly the provisions that relate to public health, these concerns must be borne in mind.

Having said that, it is clear that many of the amendments that have been spoken to this afternoon address very serious issues. While I do not necessarily accept the entire burden of the criticisms made by the members of the Faculty of Public Health, I am sure Ministers in this House would not describe those with such concerns in the terms that Simon Burns used in another place when he described critics of the Bill as “zombies”. They are not zombies; they are dedicated public health professionals whose concerns have to be addressed. I am sure that the noble Earl and the noble Baroness would not descend to language of that kind.

The amendments that have been moved and spoken to by the noble Lord, Lord Patel, and supported by Members across the Committee, deal in particular with the position of directors within local government. They begin with the question of how they should be appointed in the first place. On appointments, Clause 27 refers to an authority,

“acting jointly with the Secretary of State”.

This is a slightly curious formulation. I suppose it should not be detached from the later provisions about Public Health England. In the words of Mr Burstow, the Minister of State for Health, Public Health England is deemed to be the Secretary of State. For the purposes of this clause, it may be that that is what is envisaged: Public Health England, as the Secretary of State, would be involved jointly in the appointment.

I am not convinced that it is necessary for an appointment to be made jointly but I concur with the view of the noble Lord, Lord Patel, that a procedure is needed for the approval of the Secretary of State of such appointments, and for the approval of any dismissal. I may be risking my status as an honorary vice- president of the Local Government Association when I dissent from its views on these matters. It takes the view that a director of public health should be treated in exactly the same way as any other chief officer of an authority. Respectfully, I disagree profoundly with that; they are not in an analogous position. Their position is much more analogous to that of a head of paid service, the chief finance officer or the monitoring officer, who have separate roles because they are not simply departmental officers; they have a wider responsibility, which impinges on the roles of other officers and other departments. A director of adult services or a planning officer does not have the same relationship with his colleagues. He is on level terms, as it were, and would not necessarily be expected to take the kind of stance that a director of public health might have to take in relation to failures of other parts of the authority. It is therefore essential that the position and independence of the director are protected. Therefore, I strongly support amendments to that effect.

What I am not clear about is how the appointment should be couched in terms of responsibility. Certainly, I agree with Amendment 229, which suggests that the director should be able to report directly to the local authority. However, to say that the director should be responsible to the chief executive is too narrow a definition. Not all authorities may choose to have chief executives. Fortunately, under the Localism Act, we have been spared the notion that the position of chief executive could be combined with that of the leader of a council or an elected mayor. Councils are not required to have a chief executive; they are required to have a head of paid service. The appropriate mechanism is that promoted by Amendment 229. That should be the line of accountability and the directors should certainly be part of the authority’s management team. They should have the status of a chief officer and the ability, if necessary, to report to the council. They ought also to be qualified.

The Opposition endorse entirely the proposals for a statutory registration system along the lines to which noble Lords have referred, not a voluntary system which I think is envisaged by the Bill. The statutory system should have external quality control, particularly of non-medical public health professionals. This would certainly strengthen the position and maintain the quality of the service. The noble Lord, Lord Warner, referred to comparable status with NHS professionals and made a significant point in that respect. This could, of course, place directors on a higher salary level than other officers within a local authority. That might create some difficulties and might also be something of a new burden. I think that that is the phrase we use in local government. Therefore, it perhaps ought to be reflected in the way that grant is distributed. Perhaps the Minister will undertake to have a look at this. Perhaps some portion of the salary should be specifically contributed to by the department in making its allocations. This would facilitate an acceptance of a differential within local government. However, Amendment 259 talks about making terms and conditions,

“no less favourable than those of persons in equivalent employment in the National Health Service”.

I am bound to say that I am not entirely clear how to define that equivalence. That may need to be explored further. No doubt the Minister will want to look at that aspect.

I think that the noble Baroness, Lady Finlay, referred to what might be described as public health emergency situations. One of the difficulties to which we will have to return in the next group of amendments is the absence of a fully fledged regional structure under the new system. As I say, we will no doubt return to this. However, there is concern about resilience and about how matters that transcend local authority boundaries—and public health problems do transcend local authority boundaries in many instances—will be managed and how these can be addressed, in particular under the proposals around the Health Protection Agency and the current local pattern of provision. I agree strongly with the noble Lord, Lord Walton, about the desirability of the director of public health being a member of the commissioning groups and, indeed, of the national Commissioning Board. We have discussed this before. The noble Earl, Lord Howe, indicated that the boards should be relatively small. However, there seemed to be a possibility of ensuring that if a director was not a member of the board, one could at least be appointed as an adviser to the board and, presumably, if it is the national Commissioning Board, also to the clinical commissioning group at local level. That would certainly be helpful.

However, there remains the issue of the position of directors in relation to district councils. As other noble Lords have pointed out, the responsibilities relating to public health are not confined to principal authorities at county, metropolitan district or London borough levels. There are housing issues and other significant issues around food safety and the rest which are district council responsibilities. It is not clear how directors of public health would operate in two-tier areas where district councils have those responsibilities. A mechanism might have to be developed to ensure that directors are able, for example, to report directly to those authorities where the exercise of the district council responsibilities may not be sufficiently addressed to public health issues. I am not inviting the Minister to give a definite indication at this moment but I would hope that this matter can be taken away and looked at further.

It is clear that there is considerable consensus around the House on the direction of government policy and the need to make improvements along the lines of these amendments. The noble Lord, Lord Warner, invited the Minister to turn over a new leaf and asked for a different type of Earl Howe. For my part, I would be quite happy to settle for the noble Earl, Lord Howe, that we know and love from previous incarnations. I just hope that he is given scope by the Secretary of State to respond positively to this positive debate and to the positive suggestions that have emerged.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I have one amendment in this group and have added my name in opposition to Clause 31 standing part of the Bill. At face value, these are very different but they are grouped because of the radical changes that are occurring.

In relation to Clause 31, I want to address where clinical commissioning groups are different from PCTs and what might be lost in the process, and that is why I have put my name to opposing the clause. These organisations appear to be emerging with a hybrid responsibility. On 2 November, in response to a question about whether clinical commissioning groups are just like PCTs and asked for a yes or no answer, the Minister replied:

“In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities … linked to their unique geographic coverage”.

Of course, the difficulty here is that clinical commissioning group areas are indeterminate and their responsibilities are not comprehensive, whereas at the moment PCTs, however much they appear to be failing, as they are in some areas, have in statute a range of clear responsibilities.

Clinical commissioning groups will not be formed on the basis of responsibility for all residents within a contiguous geographical area. As was pointed out on 2 November, it will be possible,

“for individuals within that area to be registered with a GP practice which is a member of a different CCG. It would therefore be the responsibility of that other CCG”.—[Official Report, 2/11/11; cols. 1270-71.]

We have debated the problem for people with difficult conditions. I know that the clinical commissioning groups’ responsibilities will be for emergency care for people within their area; that seems to be one of their limits, but they do not go much further than that. David Nicholson confirmed the Government’s position when he spoke on the “Today” programme on 31 October. He said:

“We will publish information about general practices so you will be able to see what your general practice provides, as compared with other GPs in the area and nationally… If you’ve got a long-term condition, you might want to think in future about different GPs and whether they are providing a full range of services for particular people with long-term conditions”.

Of course it would be fantastic if patients could move between one general practitioner and another, but I fear that the financial restraints on all of the system will mean that that ideal will just not be met.