Health and Social Care Act 2012

Baroness Jolly Excerpts

Wednesday 25th April 2012 Lords Chamber

[Earl Howe]

My Lords, the performance of the health service will be very visible as we go along: we will have the NHS Commissioning Board producing its annual report; each clinical commissioning group will be publishing an annual report; directors of public health must produce an annual report; the Secretary of State has to report annually on the overall performance of the health service; and HealthWatch England has to publish an annual report. So there will be no shortage of transparency along the way.

[Baroness Jolly]

My Lords, as for the Health and Social Care Act, scrutiny was, of course, done by this House. However, there is still more to be done, because there is quite a lot of secondary legislation still to come down the track. Can the Minister give the House some indication of how many pieces of secondary legislation are still to come, when they might be introduced and what areas they will cover?

[Earl Howe]

My Lords, I cannot yet give my noble friend a precise number, but before the House breaks up in the summer we hope to lay a number of statutory instruments. Some will come into force this October, others are designed to come into force next April, but we will of course be consulting, where appropriate, on all of those and I shall be happy to give the House further information when I have it.

Health: Pancreatic Cancer

Baroness Jolly Excerpts

Monday 23rd April 2012 Grand Committee

[Baroness Jolly]

My Lords, I join with others in extending thanks to the noble Lord, Lord Aberdare, for securing this debate, and to Cancer Research UK and Pancreatic Cancer UK for such excellent briefings.

One in three of us will get cancer in our lifetime, and that diagnosis, for the most part, is quite straightforward. The past decade has seen phenomenal increases in survival rates, such that fairly soon 2 million people will be living with and beyond cancer. That number is growing. This is real cause for celebration, but sadly not yet for those with pancreatic cancer. It has one of the highest incident-to-mortality ratios for any disease. The problems of difficult and late diagnosis, leading to late treatment—often too late for surgery—have been well outlined by noble Lords.

The coalition Government’s document, Improving Outcomes: A Strategy for Cancer, was published on 12 January this year. It set out a range of actions to improve cancer outcomes. Care Minister Paul Burstow said that the strategy,

“sets out our ambition to bring England's cancer survival rates in line with the European average by 2014-15”.

He added that this,

“shows that if England’s survival rates were as good as the best in Europe we would save 10,000 additional lives per year”.—[Official Report, Commons, 7/11/11; col. 139W.]

He said that the Government estimated that of those additional lives saved, 75 would be those with pancreatic cancer. That is all to be welcomed, but 2014-15 is only three years away and we therefore need to understand what actions are being taken.

It is tragic that at the moment in England there is little hope for most patients with pancreatic cancer. The Government have acknowledged difficulties in late diagnosis, the need to consider biomarkers for pancreatic cancer because there are often no symptoms until late stages, the 2005 NICE guidelines for urgent referral of patients, the high incidence of late decisions around surgery—often too late—and some suggestion of reluctance on behalf of clinicians to recommend surgery.

In his summing up, I should be grateful if my noble friend the Minister could address three issues. What mechanisms and levers are there within the Health and Social Care Act that will be able to reassure carers and those who have pancreatic cancer that these aspirations can be met? What role does value-based pricing have in the long term? What engagement is there between the department and royal colleges to address the deficits in doctor training and continuing professional development in this area that is so particularly fraught?

Long-term research needs to be supported and accelerated and, on a brighter note, a few weeks ago, Kirtana Vallabhaneni, aged 17, from West Kirby, beat 360 other entrants to be awarded Young Scientist of the Year for 2012 for her work as part of the University of Liverpool’s research projects. She—at 17—was working on identifying the harmful cells that cause pancreatic cancer. We need many more like Kirtana to increase the level of care and survival rates that are so deserved by those with pancreatic cancer and their carers.

Health and Social Care Bill

Baroness Jolly Excerpts

Monday 19th March 2012 Lords Chamber

[Baroness Jolly]

My Lords, I shall speak briefly to Amendments 15 and 16 as well. They seem to be another correction to the minutiae of the provisions to establish a system of “nothing about me without me”—patient and public involvement—which we all support. However, it seems counterintuitive to aim to empower local people to improve health and social care without checking with them on the detail of how that empowerment should take place. The checks and balances of local patient and public involvement will be particularly important as the rest of these reforms are implemented, so we must get it right now.

Most of this part of the Bill was subject to a redraft, just a week or so ago, without any public consultation. Therefore, it would be helpful if the Minister could give an undertaking that there will be public consultation on all the many regulation-making powers within it. Thirty-six provisions are dependent on regulations, as are two lots of statutory guidance and two lots of directions.

In all previous iterations of patient and public involvement structures, there has been consultation on regulations. Given the complexity of the latest set of provisions and the limited opportunity to scrutinise them, it would seem wise to consult on them. I hope that the Minister will confirm that this will be done.

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Patel of Bradford, for all that he said. I hope that the House will accept the amendments, which I assure noble Lords are intended to bolster and support the amendment previously agreed by your Lordships.

To address the issues raised by my noble friend Lady Jolly, as my noble friend Lady Northover said on Report, we have always envisaged that local authorities will have some freedom and flexibility over the organisational form of their local healthwatch, depending on local needs and circumstances. On reflection, we felt the Bill did not provide the right legal framework for this policy to be realised. My noble friend Lady Jolly makes a good point about the need to get this right. I should like to reassure her that we have already begun to engage key stakeholders on the content of the regulations and will continue to do so while they are being developed.

It may also be helpful to point out that we envisage the content of a number of these regulations—for example, those on the duties of service providers to respond to local healthwatch and allow entry to local healthwatch—will be based on the current Local Involvement Network regulations.

The noble Baroness, Lady Finlay, asked me about the Welsh amendments. I can confirm that the ombudsman covers all patients funded by the NHS. It is not something that is judged on an organisational basis. I hope that is helpful.

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[Baroness Jolly]

My Lords, I have put my name to the amendment. Historically, both parties to the coalition were in agreement that there were too many quangos and that rationalisation was required. This is always difficult when it involves an organisation as well respected as the Health Protection Agency and others.

Its successor organisation, Public Health England, was going to take over the HPA’s and have duties with regard to the new structure of public health at local government level. However, that had no place in the Bill. On these Benches, we welcomed the move to ground public health in local authorities, and we welcome the statements by the Minister about the role, responsibility and duty of this newfound position.

However, we were anxious about public health at a national level. We were not alone, and I pay huge tribute to my noble friend Lady Cumberlege, who took up this cause at Report stage—probably before then—along with the noble Lords, Lord Patel, Lord Turnberg and Lord Warner. The Secretary of State now sees PHE as carrying out his functions. I am grateful for the time that he gave to meet us to explain his point of view and listen. He felt that to make Public Health England an executive agency of the Department of Health would give it a degree of separation and flexibility. It was argued that PHE needed to have not only an independent chair but a board with a majority of non-executive directors if it were to have credibility with professionals and the public, and for the reputation clearly held by the HPA and others to be maintained in England and abroad. It would need to be able to raise funding to carry out its research on both English and worldwide issues. All this has been ably described by the noble Lord, Lord Warner, and we should be grateful for some clarity from the Minister on the research activities proposed for the organisation. There is clearly intended to be a line of accountability from the Secretary of State through Public Health England to the directors of public health, and it would aid understanding all round if my noble friend could clarify Public Health England’s duties and accountabilities at local, community level with the directors of public health and local authorities. The line right the way down needs looking at.

I hope that the Minister will state that the Secretary of State is convinced that all of this is now a shared vision. However, as I stated earlier, none of this is stated in the Bill. My noble friend said that she will not push that, and I certainly will not, but I regret it, as it would be beneficial and make a really bold statement to the world outside that Public Health England is core to the Bill.

Can the Minister confirm the understanding of the Secretary of State’s letter and, perhaps, agree to the wording of the amendment?

[Baroness Masham of Ilton]

My Lords, the Health Protection Agency is held in high esteem throughout the world. It does the most important work in protecting society from infections and epidemics. The National Blood Service can be the blood of life. It is vital. Can the Minister give an assurance that the HPA will not be downgraded in any way? I support Amendment 14 and hope that the Minister will accept it. If he does, that will give some assurance to some of the people who have concerns about the changes. With so many complicated conditions, research should not be restricted and funding for this must be free and seamless.

Will Public Health England work with other countries? Infections have no boundaries. One never knows what is around the corner. The work of the body should be as independent as possible. Otherwise, we will lose some of our brilliant researchers to countries which will give them more freedom.

Health and Social Care Bill

Baroness Jolly Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Jolly]

My Lords, I have a couple of amendments in my own name in this group, and I shall also speak to amendments in the names of my noble friends Lady Tyler and Lady Cumberlege.

We welcome the decision to set up a patient and public involvement organisation and network across England based on local authority geography and with HealthWatch England at the centre. It offers the possibility of real engagement for all stakeholders and the consequent improvement of health and social care services for all. However, there are still some areas for concern in relation to HealthWatch England, whose role is to engage with all the key national players—the Secretary of State, the NHS board, Monitor, the CQC and the local authorities to which I referred a moment ago. It is charged with providing the views of those in receipt of services, their carers and other members of the public, and also with offering advice to the key stakeholders to whom I have just referred. It will thereby be influencing the Secretary of State mandate, commissioning practices, the process of registration of providers and the authorisation of clinical commissioning groups.

However, there is a deficit in the Bill. There is no representation on the HealthWatch England board of a local voice. Reports may be sent by local healthwatch organisations and they may be read, but there is no one on the board of HealthWatch England who can tell it as it is at a local level. The board, as with all other boards, is charged with making decisions involving running the organisation but, without a local perspective, it runs the risk of being metrocentric, south-east based and out of touch. Therefore, I support Amendment 224 in the name of my noble friend Lady Cumberlege and, as a good Liberal Democrat, I of course welcome elections run by STV.

The relationship between HealthWatch England and local healthwatch organisations has to be pivotal to the success of this proposal, and one certain way to cement that is with the presence on the HealthWatch England board of members of local healthwatch organisations, as we have just discussed. However, another way would be to use Amendments 229A and 234ZA in the name of my noble friend Lady Tyler. These allow for local healthwatch organisations to have a power to recommend to the board of HealthWatch England the reports that they think, from their local information-gathering, HealthWatch England should carry out, and HealthWatch England is bound to have regard to these recommendations. This should help to avoid situations such as Winterbourne and Mid Staffs. An effective local healthwatch organisation would have confidence that its advice would be considered and acted upon by HealthWatch England, precipitating early intervention and service improvement. It would also allow HealthWatch England the opportunity to spot national patterns, determine their significance and take appropriate action.

I have an amendment in my own name which concerns specialised services commissioned by the board—in particular, those for rare and complex conditions. Here, I need to declare an interest as chair of the Specialised Healthcare Alliance. I should be very grateful if my noble friend could clarify how it is envisaged that information can be collected about these services, how patients and carers can have confidence in a local healthwatch organisation dealing with issues with which they might only rarely get any concerns, and how HealthWatch England can put these scarce data together in a useful and timely manner for stakeholders. That will need careful management and crystal-clear guidance to ensure that the information gathered and the advice based on that information find their way to the board. Many people with such conditions are keen to hear the Minister’s response and I would welcome total clarity from her in that regard.

[Baroness Pitkeathley]

My Lords, I wish to speak in support of the powerful case made for the independence of HealthWatch England by the noble Lord, Lord Patel, and by noble friends on these Benches. It is a mystery to me why, in the face of a genuine commitment by successive Governments to public and patient involvement, we have made such a mess of it thus far. I am not one who looks back on the work of community health councils as some kind of nirvana. As someone who was briefly a chief officer of a CHC, I know that they were very patchy and variable in quality. However, they had a strong national voice, and I pay tribute to my noble friend Lord Harris of Haringey in that regard.

Since then, we have struggled. I think that the failure of the Commission for Patient and Public Involvement in Health has made successive Governments frightened of setting up one of these national organisations. It has put them off having a national body to support local groups, to help them to develop successfully and to help them when they are in difficulties, as well as provide a national, challenging voice for patients. Will HealthWatch England, as currently envisaged, be this missing national body? I am afraid that at present the answer is certainly no. As a committee of the CQC—an organisation for which I have the highest regard—it will not be independent or accountable to the patients and public it represents, and its links with local healthwatch organisations, which we will discuss later, will be very variable and often not sufficiently robust for them to be in full receipt of the amount and range of information that they need. We simply must have a proper governance structure with an independent, publicly appointed chair. Surely the independence of the whole organisation is essential to how it will provide the strong voice for patients that everyone involved say they want.

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Moved by

[Baroness Jolly]

229A: Clause 180, page 178, line 2, at end insert—
“(3A) Where a recommendation is made to the committee under section 221(2)(ga) of the Local Government and Public Involvement in Health Act 2007 (reports under subsection (3)), the committee must have regard to the recommendation.”

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[Baroness Cumberlege]

My Lords, I have three amendments in this group. My Amendment 232, which is supported by my noble friend Lady Jolly, limits the role of the local authority vis-à-vis local healthwatch to just “pay and rations plus”: that is to say, it makes sure that local healthwatch operates economically and efficiently, and develops work plans and delivers them, but does not interfere with what is in those work plans. This addresses local healthwatch independence and the local authority’s accountability for respecting it. I see that the Government’s policy document reflects this at paragraph 3.7, which states that local healthwatch will be,

“able to decide their own priorities and programmes of work, they will account to the local authority for their effectiveness and use of public funds. In turn, local authorities will be responsible for ensuring they are adequately funded and able to operate effectively”.

That goes back to the point raised earlier by the noble Lord, Lord Harris, about funding.

After the concessions that have been made by the Government to my amendments, I am very reluctant to appear to be ungrateful or ungenerous, but I have to say that I am extremely concerned. I have had meetings with both my noble friends on this issue, but I am extremely concerned that as a result of new subsection (2B) proposed in government Amendment 235D—it puts lay people in, as I see it, a subsidiary foot-soldier role with no decision-making power—it is only paid staff in the local healthwatch social enterprise who will make decisions, for example, about criticising services in a local authority on which they depend for their employment. I fear that this wipes out the independence of local healthwatch from the local authority at a stroke. I am seeking assurances that the Government will think again on this as it undermines the whole plan and their intention to give local healthwatch the voice that it so badly needs.

My Amendment 237 provides a regulation-making power on how local authorities make their decisions about local healthwatch and, particularly, its funding. The Government’s Amendments 226ZB to 226ZG help to address this by expanding the HealthWatch England role, especially by broadening its advice from specific to general in Amendment 226ZC and its new functions in Amendment 226ZG. This is very welcome, again providing we can have reassurances on Amendment 235D. At local level, my Amendment 236 puts beyond doubt that local healthwatch has statutory functions rather than mere activities, so that it can be clearly held to account for what it does by local people. I am very glad to see that the Government have addressed this in new subsection (2A) proposed by their Amendment 235D.

The accountability framework that I am seeking consists of local authorities influencing whether local healthwatch performs its functions, and I shall give three very quick examples. First, has representative membership taken place in local healthwatch and does it undertake enough work to make productive reports and recommendations? Secondly, are local people dictating what local healthwatch chooses to focus on when doing so? I am thinking of care homes, for example. Thirdly, does it work to the standard set by HealthWatch England? I am thinking of the quality of governance and the rigour of engagement. Local healthwatch needs to be able to get on with the job of giving local people influence on their local services as soon as possible with maximum support and minimum interference. Many of the latest amendments from the Government are a positive contribution to this objective, but there are new, very significant concerns, particularly about lay leadership, and I hope that the Government will address those issues today.

The greater their independence and transparency, the easier local healthwatch organisations will find it to recruit local people to their cause. We know that there are some highly motivated, very courageous and experienced members of local involvement networks who have the knowledge, skills and relationships to give us value for money. This is particularly important at this time of transition. I agree with my noble friend Lady Northover that it is important to get over the administration process as soon as possible.

We know that there are people getting less than good care and treatment who need a voice, who need advocates to speak for them, advocates who are not treated as mere complainers but knowledgeable people who have real power and influence to improve health and social care. I hope that my noble friend will think about these issues.

[Baroness Jolly]

My Lords, I was happy to add my name to Amendment 232, tabled by the noble Baroness, Lady Cumberlege, which puts in the Bill that it absolutely is the responsibility of the local authority to provide the finance for the local healthwatch to carry out its functions.

The local authority needs to develop confidence in its local healthwatch organisation—to see it as a partner, not a threat—enabling it to deliver not only its own services more effectively but those of its health partners. I hope that the Minister can indicate what might be the route to resolve any disputes about funding allocations to local healthwatch.

I will now talk about lay leadership on local healthwatch organisations. Lay leadership is absolutely critical to local healthwatch, and the noble Baroness, Lady Cumberlege, has outlined exactly why that is. It is a new PPI organisation and will need quickly to demonstrate integrity and independence to inspire local trust. The Government’s own model for user-led organisations points the way and I commend it to the Minister. It calls for 75 per cent lay or user representation on the board. Will my noble friend confirm that any guidance the Government produce will give clarity on the composition of lay membership and the involvement of lay members in the day-to-day work of the local healthwatch and that the results of the government consultation exercise will be taken due note of?

Finally, I come to a definition contained within my Amendments 234 and 235. “Local care services” are defined in the Health and Social Care Act 2008 as both health and social care, but “local people” are not defined. This definition is to ensure that no one is omitted from the remit of local healthwatch. It encompasses people living in the council area covered by the local healthwatch, people receiving care in the area and people from the area who are receiving care elsewhere.

Local healthwatch organisations will be critical in the monitoring of the new patterns of health delivery called for within this Bill. They will be vital to ensure that standards do not fall in the time of austerity, and I wish them success.

[Lord Harris of Haringey]

My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.

In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.

We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.

That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.

In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.

That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.

This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:

“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.

It says that it is not convinced. It points out that local healthwatch should,

“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—

which the Government’s amendments will make happen—

“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.

It says that only:

“Statutory, body corporate status would deliver this”.

It continues:

“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.

It suggests, although I could not possibly automatically agree, that:

“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.

If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:

“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.

That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.

Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:

“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]

He later said:

“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]

could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.

The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.

In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:

“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.

With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:

“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.

I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,

“activities carried on for the benefits of the community in England”.

Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.

The noble Earl went on to say in that June 2007 debate:

“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—

we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:

“The main problem with the Bill is that because LINks”—

and you could say the same about HealthWatch now—

“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]

Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.

Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.

Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?

In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.

How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.

The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises— at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.

Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:

“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—

there is the lay leadership of the noble Baroness, Lady Jolly—

“and our Management Committee has been redesignated as an ‘Advisory Group’”—

again, lay leadership—

“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.

I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,

“My most precious resource—the time I have given—has, at a stroke, been set to nought”.

There is no local lay leadership in these arrangements. That is why these amendments are so sad.

We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.

--- Later in debate ---

Moved by

[Baroness Jolly]

234: Clause 182, page 180, line 15, after “(2)” insert “—
(a) in each of paragraphs (a) to (c), before “people” insert “local”, and(b) ”

--- Later in debate ---

Moved by

[Baroness Jolly]

235: Clause 182, page 180, line 37, at end insert—
“( ) In subsection (6), after the definition of “local care services” insert—
““local people”, in relation to a local authority, means—
(a) people who live in the local authority’s area,(b) people to whom care services are being or may be provided in that area,(c) people from that area to whom care services are being provided in any place, and(d) people who are (taken together) representative of the people mentioned in paragraphs (a) to (c);”.”

Health and Social Care Bill

Baroness Jolly Excerpts

Wednesday 29th February 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, my name is attached to Amendments 121 and 126. I will not repeat the arguments that have already been laid out so clearly by my noble friend Lord Patel. However, as regards Amendment 126, in an emergency clear lines of communication are absolutely essential and must be worked out. Indeed, they must be tested before the event.

We do not need to think only about infections. We need to think about toxins, accidental or deliberate releases of all kinds of chemical substances, and all kinds of contamination that can be a threat to public health. When an emergency arises, the problem is that it is too late to work out those clear paths of communication and access to essential resources. Provision has to be made in national planning.

[Baroness Jolly]

My Lords, I support Amendments 124, 128 and 152, which are all on issues on which I spoke in Committee. They refer to guidance and I welcome the commitment of the Government to supply guidance to local authorities in these areas. Clearly, we have councils already setting up their shadow health and well-being boards. Local public health directors are already moving into place in the local authorities. In some cases, they are already there because they were a joint appointment with PCTs.

Given that Amendment 124 states:

“A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health”,

organisations which are setting up need to be clear about what is expected. Early guidance would be very welcome on the roles and responsibilities of the DPH in the new world. Is my noble friend able to give any indication when this guidance might be available?

Health and Social Care Bill

Baroness Jolly Excerpts

Wednesday 29th February 2012 Lords Chamber

[Lord Warner]

My Lords, I rise because I have added my name to the amendment of the noble Baroness, Lady Cumberlege. I did so because there is a part of me which actually wants to save the Health Secretary from himself. He is going down a path—for good reasons, in some ways—by which he wants to be accountable, through the department, for public health in this country. I understand that, and I understand some of the arguments that the Government have put forward about ministerial responsibility and accountability which were at the heart of some of the thinking behind the Public Bodies Bill. I can understand why that will happen. However, this is an area where science is of the essence. The Secretary of State and the Department of Health’s management and credibility in public health would be seriously damaged if the scientific underpinning of it were not sound.

The CDC in America—and I have been to the CDC in my visits to America—is an executive agency but it is a very special executive agency. It has a route into Congress to secure its funding. That makes it very different from executive agencies in this country. It has that route into Congress because it has a very strong scientific reputation. It is the credibility of its scientific reputation that enables it to be both independent and a part of the federal Government.

We cannot create that quite as easily with an executive agency here. I believe that the Government made a mistake, almost in a casual way, by abolishing the Health Protection Agency without being sure that they had another model to put in its place that would preserve that scientific independence and the kind of funding that the HPA was able to raise. We do not live in such splendid financial circumstances that we can casually toss away £150 million a year—which is the danger that we are in. I have not yet heard assurances from the Government about how they will protect access to that funding, and how they will protect the ability of people working in Public Health England to undertake independent research and be sure that their findings will be published without being censored in any way. We need absolute guarantees on that, and they should be in the Bill. That is why the amendment of the noble Baroness, Lady Cumberlege, is so convincing. I would prefer to have a special health authority, if we thought we could get one. We have compromised by going for an executive agency. However, the agency must have the kind of dimensions that are set out in Amendment 162.

I will say a few words about the issue of the chair. I heard the story that the noble Baroness, Lady Cumberlege, mentioned—namely, that the Secretary of State would be interested in the Chief Medical Officer being the chair of the committee overseeing the work of Public Health England. I am a member of the Science and Technology Committee. In two inquiries we came up against the issue that in the Department of Health, uniquely across Whitehall, we have a Chief Medical Officer who is also the Chief Scientific Adviser to the Government. Both jobs seem capable of keeping someone gainfully and happily occupied full-time for most weeks of most years. Adding the chairmanship of Public Health England would be an incredible proposition. There are already concerns in the Science and Technology Committee about combining the posts of CMO and Chief Scientific Adviser. There is an unresolved issue about how we will proceed on that. However talented Dame Sally Davies is, we do not want to muddy the waters further by asking her to take on the chairmanship of Public Health England.

We need to get to the bottom of the guarantees that are required to preserve the integrity, scientific independence and public credibility of Public Health England. If we are to have an executive agency, we need something very like what is proposed in the amendment of the noble Baroness, Lady Cumberlege. I hope that the Government will accept it and give us some certainty that the money that the HPA has raised in the past will be guaranteed as something that the new executive agency, Public Health England, will also be able to secure.

[Baroness Jolly]

My Lords, I will speak very briefly, because a lot has been said on this amendment, to which I was happy to add my name. I welcomed the amendment and the structure that it laid out. I am sure that my noble friend Lady Cumberlege will address the amendments to the amendment.

The issue is one of culture. The culture proposed by the Government does not achieve the desired vision for Public Health England. An executive agency is proposed that will be independent, able to speak out without check and research as it thinks necessary, with an independent chair and non-executive directors. At the beginning of Committee, I met the president of the Faculty of Public Health. In advance of this debate, I rang her this week and we spoke again. She expressed her anxiety about the structure proposed by the Bill.

The role of Public Health England should be to implement the policy made by the department. It should also have the opportunity to influence that policy. Clearly, the Government’s structure does not allow for that. I would really welcome an explanation from my noble friend about the rationale for favouring an organisation that is lacking in independence and that therefore will also lack in public and professional trust.

Health and Social Care Bill

Baroness Jolly Excerpts

Tuesday 28th February 2012 Lords Chamber

[Baroness Jolly]

My Lords, I thank the Minister for his ever-open door and his willingness to listen. Will he further explain to the House how he believes that the NHS will be stronger for the scrutiny from all sides of the House? How does he believe that the objections of the Royal Colleges, such as the Royal College of Nursing, the BMA and other professional bodies have been met as a result of this cross-party scrutiny?

[Earl Howe]

My Lords, I completely agree with my noble friend. I feel that the debate and discussions that we have had in your Lordships’ House have made this a better Bill, as I said a moment ago. Again, a prime example of that is the clauses relating to ministerial accountability. With regard to the Royal Colleges, we have made all sorts of improvements, such as those in response to concerns about the integration of services, education and training, research, health inequalities, ensuring that competition is never an end in itself and a number of other important issues. I am glad that these changes were all welcomed by a wide range of Royal Colleges.

Health and Social Care Bill

Baroness Jolly Excerpts

Monday 27th February 2012 Lords Chamber

[Baroness Jolly]

My Lords, I shall not repeat the many arguments that have been eloquently put this afternoon but it is just worth reflecting, as several noble Lords have already done, that integration is not new. Pooled budgets are not new. Torbay has tried to look at integration as a whole-system approach. My noble friend Lord Newton spoke about mental health integration, which occurs for some conditions in some areas. Therefore, integration is not new. The evidence that it is hugely beneficial is legion. That fact is evidence-based. Not only is integrated working better for people but it makes them better quicker and more effectively. However, integration is not universal. When I read through the Bill, I, like the noble Baroness, Lady Pitkeathley, was delighted to see that there was a duty on both the board and clinical commissioning groups to promote integration. That is good news but in a sense we are trying to use legislation to change culture. That is what it is all about. We have spoken about cultural change, and we have to put together two organisations that are not well used to working together. They jolly well should be but they are not. Therefore, we welcome what is in the Bill, although clearly more needs to be done.

I am quite surprised that the areas highlighted in the amendment would not form part of a regular reporting system, which is what is being called for. We would expect the board to take a lead on the mandate and the business plan. I should have thought that the board, the clinical commissioning groups and the Secretary of State would be expected to report on the status and progress of integration across the whole system. I should be very interested to hear from the Minister how this is expected to happen. Will he indicate how the reporting would function on an annual basis and whether the mandate and annual plan would be used in the way suggested in the amendment?

[Lord Owen]

My Lords, I rise to speak because I am a little troubled. It looks as though the Minister will object to this amendment. Of course, we are speaking in advance of knowing what he is going to do but I should like to give two or three reasons why I very much hope that he accepts the amendment.

First, using the term “social care” in the Bill means that expectations will rise. Those expectations have not been fulfilled and, to be honest, they could not have been. Nevertheless, it was a good idea to try to point to the fact that this was about more than NHS care or healthcare. We all know—it has been said many times in our debates—that there is no way that we can look at the narrow definition of the health service; it has to be broader.

The other powerful argument which I thought the noble Baroness was going to make is that this is a cultural change, and that needs to be re-emphasised at every stage as part of an educative process. Let us take the national Commissioning Board. This is a new body and the person who has been appointed to chair it is an academic lawyer—a person of great distinction. I am not objecting to the fact that it may be somebody with not very long experience of the health service. Nevertheless, a lot of hopes are vested in that Commissioning Board and to draw attention to it in a more declaratory way in this Bill is very important. It needs to know and see in clear terms in the Bill that this is part of its remit. I take great notice of what has been said about the reluctance of local authorities to respond to this. Were we having a debate involving local authority services, I would raise that, too. For a very long time I have believed that in the 1948 Act a great mistake was made in not pooling together local authority health services and welfare and social services in a comprehensive package. As everybody knows, there was a very deep debate inside the then Labour Government between Herbert Morrison and Aneurin Bevan.

There is also another debate about decentralisation and centralisation. That has been with us all these years. In the very early 1960s I wrote a book about a unified health service. When I was a Minister, there was a great deal of animosity within the medical profession at the thought of working closely with local authorities. It is amazing how that has changed. There is now a readiness in the medical profession in particular—nurses have always done it—to work across these things. I shall make no more points, but I hope that the Minister will accept this amendment. With all the reservations that have been put down, nobody should believe that this legislation will have a very big impact on social care anyhow, but pointing it in the right direction at this moment would be helpful.

Health and Social Care Bill

Baroness Jolly Excerpts

Monday 27th February 2012 Lords Chamber

[Baroness Morgan of Drefelin]

My Lords, I rise briefly to support Amendment 50A in the name of the noble Baroness, Lady Finlay, and the noble Lord, Lord Patel, and Amendment 63A in the name of the noble Baroness, Lady Finlay. We need to be clear that the role of NICE in our health system is extremely important. It plays a pivotal role in helping the system to understand innovation, and it is extremely important in promoting fairness. At a time of very tight resources, it would be good to have the role of NICE clearly set out in the Bill. I know that the noble Baroness, Lady Finlay, talked about the reputation of NICE and the role that it plays in facilitating audit and many other things. For me, however, it is about making sure that we have fairness across the NHS in England, and NICE is key in ensuring that that happens for patients.

I want to comment briefly on Amendment 63A. Others have talked about the concerns of the Neurological Alliance. I speak as the honorary president of Cancer52, which represents people affected by rare cancers. The majority of cancer deaths in this country occur because of rare cancers. We know that if a person is diagnosed with a rare cancer, they have often had to really fight through the system, visiting GPs many more times than those with the more common cancers which people call the “big four”. Oesophageal, pancreatic and ovarian cancer, for example, are conditions of which GPs have very little experience. There is a great deal to be done in the NHS to improve outcomes for people diagnosed with what are often called less common or rarer cancers, but which are a group of conditions which account for more than 50 per cent of all cancer deaths. The noble Baroness, Lady Finlay, is right to say that we should be encouraging commissioners to ensure that, where rare conditions are concerned, there is collaboration and knowledge and experience sharing so that they do the right things for patients, regardless of how common their condition may be.

[Baroness Jolly]

My Lords, I had not intended to speak because everything had been said. However, the noble Lord, Lord Walton of Detchant, made a point that I think is worth picking up on. I declare an interest as chairman of the Specialised Healthcare Alliance, which works with people with rare and complex conditions. These conditions are commissioned by the NHS Commissioning Board, while the conditions referred to by the noble Baroness, Lady Finlay, in Amendment 63A are intended to be commissioned by CCGs. Clearly, people are really anxious about these commissioning arrangements. They are based on geography; they are relatively small in number, but not tiny; they are geographically sparse; and very often GPs will not actually see these conditions very frequently.

The noble Lord, Lord Walton, asked whether any thought had been given to sweeping these conditions in with the rare and complex conditions, and to have them commissioned by the NHS board. I am not suggesting whether this is a good or a bad thing, but I think that those with these conditions and the organisations that represent them might be glad to engage in a dialogue on this to see whether it is the appropriate way forward. There is certainly a lot of anxiety about what is currently happening. If my noble friend would give us some indication of whether that could be looked at, that might alleviate some concern.

[Lord Winston]

My Lords, I hope that in summing up the Minister will address the general issue of genetic disease. The noble Lord, Lord Walton, referred to one specific single gene defect but there are some 6,000 single gene defects and they are often very complex. Most of them are fatal diseases and many of them affect children. A few sufferers of single gene defects live to a young age and some occasionally live into middle age. However, one problem that we already find in the health service is that provision for the care, treatment and diagnosis of these patients and for the counselling of their families is often very deficient, depending very much on whether funding is available.

An example is the work that has been going on in pre-implantation genetic diagnosis, which can prevent a child who might die from one of these diseases being born through the selection of a suitable embryo. Of course, this is not a cheap procedure but in terms of financial efficiency for the health service it is very much less expensive than the complex care that might be involved for a child with, for example, advanced male-type muscular dystrophy. Hitherto there has been a huge difficulty in getting these services through individual PCTs because they think in the short term and are on a budget from year to year. Therefore, collaboration seems extremely important not only in relation to these rare cancers, which of course are immensely important, but for a great number of diseases which are extremely distressing. I am sure that the Minister will fully understand and be greatly sympathetic to the fact that the families involved are immensely distressed by these diseases. They are often very puzzled that they may be carrying one of these gene defects and they find it very difficult to get answers to what are quite complex problems. There really does need to be proper provision for them through collaboration with other authorities.

NHS: Management Consultants

Baroness Jolly Excerpts

Monday 13th February 2012 Lords Chamber

[Earl Howe]

Yes, I can. The reform of the NHS is a major project. Frankly, it would be irresponsible if the Government were not to commission expert professional advice in undertaking a project of this kind. Consultancy, if used judiciously, can be highly cost-effective. I assure the noble Lord that the implementation of the Health and Social Care Bill is occupying our minds night and day and, so far, I am pleased to report that it is going well.

[Baroness Jolly]

Can my noble friend tell the House how many reports were written for the Department of Health by McKinsey between 1997 and 2010?

[Earl Howe]

I do not have the figure that my noble friend asks for. I do have a figure for the spend by the previous Administration between 2006 and 2010 on consultancy from McKinsey. That amounted to nearly £30 million. In 2005-06, just one year, the previous Government spent more than £170 million on consultancy services with Accenture plc.