Health and Care Bill

Baroness Finlay of Llandaff Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

If we could forecast the next NHS restructuring Bill in a year of two, do we think much will have changed? I am afraid that it will not have, and this is why legislating is about the only way we can go forward, and why I support the noble Lord, Lord Black.

[Baroness Finlay of Llandaff (CB)]

My Lords, this has been a really interesting debate and it made me think of Aneurin Bevan’s original vision, which incorporated the concept of dealing with the problem and then secondary prevention in rehabilitation and concepts of convalescence. After this debate, I am tempted to go back and read again In Place of Fear, because it is a very short book but it is worth reading.

There seems to be a theme coming through here really strongly. If we do not integrate these services and pull them together, we will never get not only the primary prevention but the secondary prevention which, as the noble Lord, Lord Black, highlighted, is so important. You do not just fix the problem; you prevent the next set of problems coming along.

I was slightly alarmed to note that in 2018 alone, there were over 6,000 deaths attributed to falls. A lot of those were on stairs. They were just simple trips on steps, yet they resulted in deaths. It took me back to when I worked at the Westminster Hospital, which, of course, is no longer across the road. Somebody tripped on the steps of the Tate and subsequently died from a head injury after hitting the concrete. One sees that at stations and so on, too, and we now see it with these scooters, where people scoot into trees and lampposts.

Anyway, to return to the subject of the amendments, the reason for my Amendment 100 is precisely to promote that rehabilitation and remind everybody that rehabilitation is not just a medical and nursing issue. It involves many different professionals, and volunteers quite often, at different levels. A rehabilitation plan at the ICS level could provide the co-ordination required, across different settings and services, to properly support early discharge from hospital, provide access to multidisciplinary teams and incorporate the psychological support that is needed. At the moment, things are organised in condition-specific medical silos, and we have already heard about the fragmentation of provision.

We need to respond more effectively to the needs of people with long-term conditions. When we come to measure outcomes, it is much easier to immediately measure the outcomes of an intervention. The outcomes from long-term secondary prevention are much more difficult to measure and quantify, particularly in a population that has multiple pathologies. So there has been poor data collection in part because it has been very difficult.

A simple example is that NICE guidelines suggested that over 1 million people with COPD every year should be referred for pulmonary rehabilitation, but only 15% are referred. We need to understand why. These are people who are breathless. They are getting chest infections and becoming oxygen dependent—so the consumption of NHS resources goes up. After a stroke, people have very marked rehabilitation needs in many different areas. That may be physiotherapy, occupational therapy, speech and language therapy and so on, going much more widely.

We also have a problem with our housing, because many people are not in accommodation that is suitable for them to go to when they are discharged from hospital. It has been estimated that there are 10,000 people in hospital at the moment who do not have a suitable home to go back to—hence the problem of where they go after hospital. So it is not only about providing a social care workforce to go in. We have already debated last week the problem of housing.

I do want to speak specifically to Amendment 51A in my name and the name of the noble Baroness, Lady Jolly. That is about having responsibility for every person present in an area. If we take the south-west, which is dependent on tourism, it goes from relatively low populations to absolutely bursting at the seams with holidaymakers. We have all seen it. These areas have an additional problem: when people are on holiday, their guard is down, they are less vigilant about what they do and they are less risk averse. Going back to falls, they are much more likely to have a fall or an accident. People fall off cliffs, fall down surfaces and so on. All of a sudden, in the tourist season, these people are at higher risk of something going wrong. They often go away and forget to take their medication, or they take something that interferes with it and end up with different side-effects and so on. They put a huge pressure on the emergency services in the area, so I am quite concerned at the way the funding might flow, in the way this Bill is written. We could inadvertently find that some areas are incredibly pushed at certain times of the year because of the way the population moves. I hope that will be taken into consideration.

[Baroness Whitaker (Lab)]

My Lords, following the impressive, high-calibre tour d’horizon from the noble Baroness, Lady Finlay of Llandaff, I rise to support the importance of proper and full rehabilitation as in Amendment 100, again supported by the Royal College of Speech and Language Therapists. Perhaps I should have declared, at my last intervention in Committee, that I speak as a vice chair of the All-Party Parliamentary Group on Speech and Language Difficulties—I apologise.

Very briefly, an annual plan, as in Amendment 100, would ensure that rehabilitation is explicitly integrated. Rehabilitation spans many disciplines, as the noble Baroness, Lady Finlay, said. It is what enables those who have degenerative diseases, strokes, cancer, autism and learning difficulties, to name only a few, to communicate—how essential is that for even minimal well-being?—as well as helping people to, for instance, swallow without choking and stay alive. As ever, it is the vulnerable who suffer when these structural underpinnings to ensure joined-up, consistent care are not there. I hope the Government will adopt these amendments.

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To do anything less than accept these amendments is to demean the work and statutory role of NICE and its experts, to frustrate consultants trying to do their best under those guidelines for their patients, and to deny patients their fundamental right to access to treatment as approved by NICE. I look forward to hearing the Minister’s response and hope that it will be helpful.

[Baroness Finlay of Llandaff (CB)]

My noble friend Lord Patel has had to leave because of pre-booked travel, but he has given me the honour—and it is an honour—of having his brief speaking notes, from which I would like to start, and then move on.

Before I get on to that, I think it is important for us to remember that NICE was set up to establish the evidence base behind what we do. Before NICE was established—and I have worked with Deirdre Hine, who was very involved in setting it up when she was Chief Medical Officer for Wales—people were doing things because they had always done them and because they liked doing them that way, with no evidence base, and often they were doing things that made situations worse, not better.

As Lord Patel wanted to stress, clinicians have a strong belief now in evidence-based healthcare, and guidelines are critical to ensure high and consistent levels of evidence-based clinical practice across the NHS. The guidelines developed by NICE can be adapted to the local situation, and they are also under review. I should declare that I have served for three years as vice-chair of the group looking at ME/CFS guidelines, and it was very instructive to see the depth to which everything was explored and the rigour of the processes; to the point that, when we were asked to review again some papers, we went back to the beginning and reviewed them all over again. Interestingly, in doing that, we slightly downgraded their scoring, rather than upgrading it, which is what had been expected. I was really impressed at the rigour of the process, including the health economics impact.

That experience has been behind the push to make sure that there is compliance. My proposed amendment would be a way of assessing compliance with the guidelines as predetermined and set out in the NHS mandate. The mandate could select a few that would act as proxy markers across the piece and include a date line, so that their implementation across the country could be benchmarked. It would not increase the workload, because it could draw on existing sources of data in the NHS. As the Minister has said, data is our key to understanding and unlocking things.

The noble Baroness, Lady McIntosh, in her comprehensive introduction to this group of amendments, spoke about type 1 diabetes and highlighted that, in some areas, the adoption of continuous glucose monitoring is as low as 0%, whereas in other areas it is up to 20%. There are a couple of other emerging areas; one is in atrial fibrillation, where direct oral anticoagulants have made warfarin a drug of the past. Yet the variation between clinical commissioning groups’ adoption of the guidance is quite horrifying. There is a threefold variation in prescribing, so there are areas of the country where a lot of patients are being denied an intervention that has been shown to be beneficial compared to what was done before.

We have already alluded to another emerging area: the new biologics. On the face of it, they are very expensive, but they are often remarkably effective—they can revolutionise the management of some diseases. We have a budgetary problem here, because the NHS budgets are year-on-year, and the face-value cost of the new biologics is very high; but if you look at the whole lifetime cost of healthcare interventions then they come out much lower. Take the example alluded to, of Crohn’s disease, and consider the cost of someone having their bowel removed, who might then end up on total parenteral nutrition; it is not only the cost of that nutrition but the costs in all other domains in their life, and the lives of their family. In comparison, the new biologics can rapidly get this disease’s process under control and revolutionise things.

The proposal is to give the CQC the powers routinely to address the adherence to guidelines—that would be specified by the NHS mandate, so a national standard could be set—and introduce a reporting metric using current data sources as a starting point to establish a benchmark. I want to stress, as I know does my noble friend Lord Patel, that we are not advocating for guidelines to be mandatory—that would not be right, because each patient is different and individual—but we are asking for a system to be introduced that gives powers so that there can be scrutiny of whether the guidelines are being adopted, because their adoption would narrow the gap in inequalities. We both feel that we need to commit to address this in this important legislation, because it is a way of achieving tangible action to ensure equity in access to quality in healthcare.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the three amendments that the noble Baroness, Lady McIntosh of Pickering, has referred to. I was the first Minister for NICE, going back to 1999. At that time, we were confronted with a paradox which continues to this day, which is that, although the NHS is full of innovation and we have an incredibly strong life sciences sector and industry, the NHS is also very slow to adopt those innovations. NICE was developed to speed up the introduction of effective new medicines and devices. Right from the start, we had a problem with the NHS being reluctant to implement its recommendations and, within a few months of it starting, a regulation had to be put through which required it to implement them within 90 days. That has been slightly modified since, but none the less, it is still in being. The NHS has become very adept at finding ways to get round this through the various blocks that have been put in at CCG level—the noble Baroness, Lady Brinton, explained clearly the kind of blocks, devices and bureaucratic machinations that are put into place.

The result is that we continue to be very slow to introduce proven new technologies and medicines. NHS patients are very disadvantaged compared to patients in most countries. It then impacts on pharma and the devices industry—I think that pharma is more reluctant now to introduce medicines and develop R&D in this country as a result.

The Minister knows that there is an agreement—it is called VPAS at the moment—whereby NHS expenditure on drugs is capped and industry pays rebates if the cost goes over that cap. Given what I have always thought to be an imaginative agreement and given that industry is essentially underwriting some of those additional costs, surely there must be a better way to approach this which would allow the NHS to implement NICE recommendations enthusiastically, rather than essentially putting into place blocks.

I doubt that we are going to spend two and a half hours on this group of amendments, but these are just as important as the last group, because they go to the heart of whether NHS patients get access to the drugs, devices and technologies that they should. At the moment, they do not. I hope that the Minister might be prepared to take the amendment away. Legislation is the only way that we can see of leveraging the kind of change we need.

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[Lord Lansley (Con)]

Given NICE’s remit, it might be the Welsh Government as well, but the noble Lord may well be correct. We are all surmising, but I think we are probably not too far off the mark. It gave us an opportunity to respond to that.

So far as the amendments are concerned, the proposition that approved treatments should be adopted by the NHS is a proper one. What, of course, has not been brought into the debate is that the world has moved on, even in recent years. NHS England has taken what I think is an appropriately substantial interest in the approval of treatments, the uptake of treatments and their adoption by the NHS. When it started out, people said, “Oh dear, NICE is going to approve a treatment and then NHS England is going to tell people not to use it because it is going to cost them a lot of money.” In fact, we all agreed in the debates on the Medicines and Medical Devices Bill that there was everything to be said for NHS England, NICE and the pharmaceutical industry working together early, proactively, for the planned introduction of new medicines, including taking account of their cost. That is an NHS England role, not a NICE role. NICE does gold standard appraisals, but it does not take responsibility for the fiscal consequences of those appraisals, so all these things need to be put together. The pricing decision should not be something that comes out at the end.

One of the things I have been going on about for a decade or more—actually, 15 years—is that we should not end up in a position where there is an effective medicine that is properly approved by the MHRA and authorised for use; clinicians can use it and they know it is the right thing for their patient; but, because of the absence of an appropriate pricing decision, the answer to the patient is “no”. We should not arrive at that position. With NHS England and NICE working together with the pharmaceutical industry, we stand a better chance of the answer not being “no” in those circumstances as long as the resources are, indeed, available.

I do not think, on the face of it, that we should be legislating to change the medicines mandate from where it is now. My noble friend Lady McIntosh, in introducing her Amendment 54, referred to devices. The amendment does not refer to devices, but it should refer to devices. My further question to my noble friend the Minister is: when are we going to get a proper funding mandate on devices, which I think I was promised during our deliberations on the Medicines and Medical Devices Bill but we have not yet formally had it? Some good work has been done on some devices each year, but I am hoping that we will get a proper funding mandate on devices.

On formularies, my noble friend did not actually refer to the British National Formulary. Of course, NICE has had responsibility for the BNF for about seven or eight years, and even if it is not a legislative method, there is everything to be said for the NHS and clinicians looking to the BNF and NICE’s role in the BNF.

My noble friend and the noble Baroness, Lady Finlay of Llandaff, were quite right about the adoption of NICE guidance and standards on the use of them in clinical circumstances. However, via the regulator—the CQC—we already have a process by which the CQC looks at quality standards produced by NICE and incorporates what NICE itself isolates as the essential aspects of the standards that, in order to provide safe and effective care, must be reflected in the practice of a health provider.

My question to the noble Baroness, Lady Finlay of Llandaff, is: if she thinks that is not sufficient, how much further should the CQC actually go in adopting quality standards? At the moment, it has compromised and said, “We will take the essential steps, because those are a few, generally about five, specific things that we can look at to see whether they are being done, in which case, okay; or are they not being done, in which case it clearly needs improvement, or may not be meeting the standard.”

[Baroness Finlay of Llandaff (CB)]

The noble Lord asked me a question to which I feel obliged to try to respond, but I really want to answer the question with a question: does the CQC have enough powers to benchmark as it would want to do, and to publish those benchmarks? I hear the concerns of my noble friend Lord Stevens in relation to fear of litigation and how that is an objection to the amendments, but I am also quite worried that that is potentially a way of avoiding adopting the guidelines themselves, thereby inhibiting a change in practice and a move to best practice.

While there are sources of information that those who are very health-literate, IT-literate, and so on, can access to establish their own benchmarks about what is happening, many people, particularly those in the most deprived areas of the UK, do not have any knowledge of even where to begin looking for these things. That was the motivation behind the amendment: to try to make sure that in the poorest and most deprived areas, people would still be able to access this. That would drive up standards gently but would not create a mandated requirement that a NICE guideline is adopted, for the reasons I outlined previously.

[Lord Lansley (Con)]

I can see that my noble friend is eager to come in but I will conclude by answering the noble Baroness. I am not an expert, but I think the CQC has the powers—since it presently does it—to take account of the NICE quality standards and to incorporate specific indicators from those quality standards as part of its regulatory review. If the CQC was to attempt to introduce large-scale application of the guidance as a question in a regulatory review, I do not think the issue would be whether it had the power to do it, but whether it would make the headline conclusions it reaches in relation to healthcare providers increasingly difficult to interpret. At the moment, they are relatively straightforward to interpret. There is a small number of specific indicators in relation to services provided and they are either doing them or they are not. With guidance, it becomes much more complicated and many more value judgments have to be applied about the circumstances in which they are or are not complying. So, there is a real difficulty in going far beyond where we are now.

I will listen with great care when my noble friend the Minister responds to the questions I have asked.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I call the noble Lord, Lord Low of Dalston, to move Amendment 56A—or the noble Baroness, Lady Hollins. Is the noble Baroness, Lady Finlay, moving Amendment 56A?

[Baroness Finlay of Llandaff (CB)]

My Lords, perhaps I might put in a slight plea to the Committee on behalf of the noble Lord, Lord Low. He has sat patiently through this debate for a long time. He was expecting that the other amendment would be moved and, on realising that it was not, has made every attempt to return to his place as fast as possible.

Amendment 56A

Moved by

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[Lord Crisp (CB)]

My Lords, I congratulate the noble Lord, Lord Howarth, on introducing this very important group of amendments and other noble Lords who have made some very interesting points, such that made by the noble Baroness, Lady Morris of Yardley: this is becoming received wisdom, whereas it might have been regarded as eccentric even five or 10 years ago.

I have three points to make. First, this is a Bill about integration and partnership. It would be good to have a clear message that non-clinical groups such as the ones we are talking about are part of that, in whatever is the appropriate way—a duty or obligation or something of that sort on in the Bill—without being too specific about the detail.

Secondly, the noble Lord, Lord Howarth, made the point that this is the rediscovery of ancient wisdom, not least, as the noble Baroness, Lady Barker, pointed out, through Covid. I am talking about human flourishing going back to Aristotle and many others in the past: the merging of that ancient wisdom with very modern evidence—more evidence all the time about things such as relationships, as well as the arts and everything else that has an impact on our health.

My third point is about impact. I co-chair the All-Party Parliamentary Group for Prescribed Drug Dependence. Last year, 17% of the adult population were prescribed antidepressants. That is a huge amount: when I see such a figure, I always have to remind myself that that means that 83% of us were not. However, 17% is a huge number, and the sort of things that we are talking about can reduce that number to the benefit of the people who would otherwise be prescribed antidepressants, making enormous economic savings, time savings and so on.

[Baroness Finlay of Llandaff (CB)]

My Lords, I strongly support this group of amendments. I would like to make sure that we realise that the medical humanities as a discipline have now been introduced in many medical schools. In my own, I was rather glad that AJ Cronin’s book The Citadel was introduced in general practice, particularly because, of course, he invented Dr Finlay, but there we are.

Quite seriously, we must not forget that loneliness kills. Loneliness is a true killer; it shortens lives. If people are not moving around well, they fall more and consume healthcare resources. Therefore, having green spaces and things such as sports for health, and so on is important. There is now also a body of evidence that the new intensive care units have used in the way that they are constructed, so that there is a view of outside spaces for those patients, rather than the total sensory deprivation that occurs to them in the very noisy and difficult environment of intensive care. Of course, music is used therapeutically during procedures and so on.

In the hospice world, lots of activities obviously go on in the day centres. As my noble friend Lady Greengross said, there is now good evidence for proper physiological mechanisms that explain why contact with these different disciplines—which were considered to be outside medicine—have a beneficial effect on healing, coping with pain and distress, resolving issues, reframing what is happening to you and so on.

I would like us not to forget that loneliness kills. Importantly, so many patients have said that they have a sense of personal worth when they are still able—however ill they are—to contribute to those around them and to a sense of community. These amendments go to the very heart of being human—that is, the inherent creativity within people that has been forgotten for decades in the provision of health and social care.

I can see that there are difficulties in bringing this into the Bill, but we should commend the noble Lord, Lord Howarth, for the sophisticated way in which he has worded some of these amendments. I hope that they can be built on as we go forward. This could save a huge amount of money for the NHS in the longer term. A huge number of side-effects of drugs could be avoided. People could be fitter. There would be fewer forms. There is a great amount of optimism behind these amendments.

[Baroness Pitkeathley (Lab)]

My Lords, what I want to say follows on very well from what the noble Baroness, Lady Finlay, said. I want to quote Sir Michael Marmot. He said:

“We need to adopt a health and social care system which prioritises not just the treatment of illness but how it can be prevented in the first place. The pandemic has made it crystal clear … why public health and … social determinants of health are so important. The health and social care agenda must be rebalanced towards prevention.”


This is essentially what the noble Lord, Lord Howarth, is saying. It is not just about the treatment of illness but about preventing it happening in the first place.

I commend my own general practice in north London. In despair at the quantity of antidepressants being prescribed with very little result, it took to organising community groups to do cooking, set up friendship groups and put people in contact with each other. It puts on bring and buy sales—all with people who, perhaps, in the past, might just have been prescribed antidepressants.

I want to say a word about the charitable aspect—the voluntary sector—to which the noble Lord, Lord Howarth, referred. Charities cannot operate unless their core costs are met. My own GP practice which did this wonderful work had to go to the local authority and to the lottery to seek some funding. We have to remember that, if we want voluntary organisations to participate in these wonderful preventive services, we need to ensure that they are properly funded.