Health and Social Care Bill

Baroness Northover Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Williams of Crosby]

Before the Minister concludes, perhaps I may press him on what is implicit in Amendment 220B, although I shall not move it. If, for example, the governors were to oppose a figure of more than 5 per cent, and the figure were greater than appears to be proper in the light of health services, what steps would be available to ensure that health services are protected?

[Baroness Northover]

As we are on Report, perhaps noble Lords will allow the Minister to develop his argument and then put brief questions in the light of what he said—otherwise he will lose his train of thought.

[Lord Hunt of Kings Heath]

My Lords, I hesitate to take issue with the noble Baroness because clearly she is in a position to help the House. However, interventions on Report are quite allowed. I am very puzzled that the Government are trying to seek to rule that Report stage procedure should change so that we simply listen to the Minister. That is not Report.

[Baroness Northover]

My Lords, I am not saying that short questions cannot be put. However, it might be beneficial to the House if the Minister were able to develop his argument. Then, if noble Lords had questions that he had not addressed, that would be the relevant time to put them.

[Noble Lords]

Hear, hear!

[Baroness Northover]

That is what the noble Lord, Lord Hunt, preferred when he was a Minister. I hear from around the House some sympathy for the point. If the suggestion does not work, no doubt we can take the matter to the Procedure Committee and look at a different way of doing things.

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness is not in a position to dictate to the House that it should change its procedure on Report. Surely the beauty of debate lies in interventions, and responses by Ministers. When I was a Minister for 10 years at the Dispatch Box, I always took interventions and welcomed effective and proper debate. I am on my feet—

[Baroness Northover]

For clarification, perhaps I may remind the noble Lord that the Companion sets out that a Member shall not speak after the Minister on Report,

“except for short questions of elucidation to the minister”.

I realise that noble Lords are putting short questions of elucidation. The Minister made it clear that he wishes to make progress and that at the moment he does not wish to take interventions so that he can develop his argument.

[Noble Lords]

No!

[Baroness Northover]

He certainly did to me. Perhaps the Minister would like to make it clear—if he wishes to be interrupted many times and not develop his argument, so be it. Perhaps my noble friend would like to clarify—

[Lord Campbell-Savours]

I object to the procedures of the House of Lords being changed by a junior Minister.

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[Lord Phillips of Sudbury]

I did not want to leap on the noble Lord, Lord Warner, because that would do him an injury, but I wanted to assure him that the amendment does not affect his trotting off to the chap down at Waterloo station. He can buy whatever private patient care he likes, wherever and whenever he likes—

[Baroness Northover]

I remind my noble friend that he can reply on his amendment at the end. I am sorry to keep on intervening on my noble friends in defence of the noble Lord, Lord Warner, who wanted to continue his argument, as he did. My noble friend has the opportunity to respond at the end.

[Baroness Murphy]

I have concerns similar to those of the noble Lord, Lord Warner, but this amendment is different from those that I have seen floating around from the noble Lord, Lord Phillips. I also have questions, but we must be very clear about what we mean by “queue-jumping”. If an NHS patient goes to an ordinary NHS hospital consultant and is told that they need an operation, it is completely legitimate for them then to ask to go privately and pay for the operation. That is, as the noble Lord, Lord Warner, said, enshrined in the NHS Act of 1948, and completely legitimate. Queue-jumping is when a patient sees a private consultant who then inserts the patient into the NHS list ahead of other NHS patients. That is what we want to avoid, and it is already completely illegal and highly frowned on. Most hospitals do what they can to exclude it, but I take the point made by the noble Lord, Lord Phillips, that it goes on, and we know that it does. It is an unpleasant practice and should be stamped out, but I do not know whether this amendment does that.

As the noble Lord, Lord Kakkar, reminded us, the conundrum of private units in NHS hospitals must be borne in mind. That may be the most constructive way in which to ensure that NHS consultants are available to NHS patients when they need to be, as the noble Baroness, Lady Finlay, said. But often private patients have operations that go wrong—and then, if there are two patients in need of an NHS intensive care bed, the patient who takes priority is the person with the clinical need. It is very much the same as someone on a battlefield. It does not matter whether it is an enemy soldier or a domestic soldier.

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[Baroness Wheeler]

My Lords, with an additional 68 government amendments tabled at the end of last week on the issue of HealthWatch England and the now much altered healthwatch organisations, it is somewhat of a challenge to work out exactly what the Government want from HealthWatch England and local healthwatch organisations. Why has not the Government’s time since Committee stage been spent on trying to address the issues and concerns raised by noble Lords which would ensure that HealthWatch England and local healthwatch organisations have the real status and authority to do the job that we all recognise is required of them? Instead they have concentrated on compiling one of the most confusing additional sets of amendments that we have seen on this Bill, which will seriously undermine the ability of both the national and local organisations to act as an effective and robust watchdog for patients and the public.

The new local arrangements for healthwatch organisations provide a plethora of contradictions and confusions and we shall discuss those under a later group. Sadly, none of that addresses the continuing concern across the House and among key patients’ groups and organisations about the HealthWatch-CQC relationship. Fortunately, Amendment 223A, from the noble Lord, Lord Patel, my noble friends Lord Harris, Lord Whitty and myself does. Those noble Lords have all made a coherent and powerful case for the amendment and for ensuring that HealthWatch England is independent. The amendment provides for a body corporate, with clear primary duties to represent the interests of patients and users of the National Health Service and of social care services, independent of any provider or regulator of those services. As well as powers to provide information and advice on the views of patients and standards of quality of care, the amendment provides HealthWatch England with powers to investigate complaints made by or on behalf of a patient or user of a local healthwatch organisation and to raise and investigate complaints relating to wider issues affecting patients or users in general.

The Government have said that they want to see HealthWatch England with genuine operational independence from CQC. However, attempts to do that by, for example, providing the majority membership of HealthWatch members on the HealthWatch board, or reassurances after the last debate in Committee in terms of HealthWatch England being able to speak out publicly in certain circumstances, even if their views conflict with its host body or government, miss the point. None of these small steps gives the unequivocal reassurance of independence that a robust patients’ watchdog, acting in the interests of patients, must have. In the new market-dominated system that we will soon have, independence and a collective voice for patients is more vital than ever. In the end, it will come back to how the proposed measures will play out in practice and how conflicts of interest between HealthWatch England and the CQC, or indeed healthwatch organisations in the local authority, will be dealt with.

Most important of all is the issue of public perception, understanding and confidence in the independence of HealthWatch. It is important that HealthWatch is seen to be credible and truly independent, able to challenge and to scrutinise the work and decisions of the regulators, both CQC and Monitor. The niceties of whether there is a majority of HealthWatch members on the board, whether they can combine or exchange data and whether they are part of an organisation that the Secretary of State keeps under review will escape a patient, carer or representative who, for example, makes a complaint about how CQC has investigated care in a residential home, only to find that the body investigating the complaint or championing improved quality of care on behalf of patients is a committee of the CQC itself.

I hope that the noble Baroness will address these concerns: in particular, points that were repeatedly made about how the culture clash between healthwatch and the CQC will be addressed and managed; how we will stop CQC—in the words of the noble Lord, Lord Patel—“suffocating” HealthWatch England; how the potential serious conflict of interest will be dealt with; and how public faith, trust and confidence in healthwatch can be achieved under the relationship with the CQC, particularly in light of that body’s major organisation and resource problems so starkly highlighted in the Department of Health’s recent CQC performance and capability review.

In the debate on the duty of candour, the Minister referred to the CQC as an organisation that was remote from patients. We need an independent HealthWatch England and we need local healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that the Bill gives us neither.

[Baroness Northover]

My Lords, this has been another excellent debate. I listened very carefully—as I did before—to the views expressed. Overall, there is clearly complete agreement on all sides of the House that the voice of patients and the public should be at the heart of the NHS. As the noble Lords, Lord Patel and Lord Harris, and the noble Baroness, Lady Masham, and others indicated, the history of how previous Governments tried to implement this is tortuous. The recent past has borne witness to a number of attempts to do it, and noble Lords referred to some of the problems. No attempt—not even Community Health Councils—managed to fulfil the worthy intentions of its architects, and we went from one to another.

As the noble Lord, Lord Patel, recognised—I appreciate his words—we seek here to take the strengths from past attempts, build on them and ameliorate the weaknesses as we develop our proposals for HealthWatch England. In the light of the comments of the noble Lord, Lord Harris, and as the noble Baroness, Lady Murphy, emphasised, it is worth remembering one of these previous attempts: the Commission for Patient and Public Involvement in Health. It was established in July 2003 and operated nationally and regionally, following regional government boundaries. Within five years it had been abolished after being seen to lack clout, to be too bureaucratic and too top-down for the public and those on the ground. Perhaps I may again remind the House of the judgment from the Health Select Committee’s 2007 Report into Patient and Public Involvement in the NHS, which stated:

“The evidence we received was overwhelmingly critical of the Commission”.

We are convinced that trying to recreate the commission is not the best way forward, and instead propose that HealthWatch England should be a statutory committee hosted—that was a very good description from the noble Lord, Lord Patel—by the CQC, which is a far more viable option.

I am well aware that this proposal has met with concern.

[Lord Harris of Haringey]

My Lords—

[Baroness Northover]

I will finish and then I will respond to the noble Lord if I need to. I am well aware that this proposal has met with concern from some quarters. I will explain why we are proposing this arrangement and why we do not feel that the case for having a separate body is stronger.

HealthWatch England will have clout. It will have a seat at the top table, taking centre stage in providing advice on patient and public views to the CQC, Monitor, English local authorities and the Secretary of State for Health. Noble Lords were right to say that Healthwatch England must influence all these bodies; that will be its responsibility. My noble friend Lady Jolly, too, made that clear. Each of these persons or bodies will have a duty to respond to the advice. Through local healthwatch, HealthWatch England will be closely linked to the views of people expressing views about the services that most directly impact on their lives. Our proposals for HealthWatch England will place it at the heart of the system—not at the top, divorced from the views of local people, as CPPIH turned out to be.

As a committee of CQC, HealthWatch England will be able to draw on the best of CQC’s evidence base on quality and standards of care. The enthusiasm with which CQC wishes to learn via healthwatch is instructive. It will be helpful to CQC to have information coming from local healthwatch and HealthWatch England to CQC to alert it to problems such as those at Winterbourne View. This will give HealthWatch England a prominent position within a CQC that will have a strengthened role in assuring the safety and quality of health and adult social care services, and a strengthened focus on the concerns of health and social care consumers. This will ensure that from the outset HealthWatch England will have a greater presence and ability to influence than would a body established from scratch.

The Bill already contains significant safeguards to ensure that HealthWatch England will be able to operate effectively in that situation. For example, it will provide advice to a wide range of organisations. I have just mentioned central national organisations and local authorities. However, we listened carefully to concerns expressed in Committee about possible conflicts of interest between the CQC and HealthWatch England. This issue was raised again today. We therefore welcome Amendment 228, tabled by my noble friends Lady Cumberlege and Lady Jolly. It places duties on CQC and HealthWatch England to have regard to guidance from the Secretary of State about managing conflicts between these bodies. This is a sensible suggestion, and we are happy to support the amendment.

While acting independently, HealthWatch England must of course be accountable. Government Amendment 229 places a duty on it to send all local healthwatch organisations a copy of its annual report. It was the noble Lord, Lord Harris, who thought that this was a good idea and tabled an amendment to this effect in Committee. We agreed that it would help to secure the intended wide transparency and communication between HealthWatch England and local healthwatch. I am grateful to the noble Lord for flagging that up and suggesting the idea.

It is also important that local healthwatch—

[Lord Harris of Haringey]

My Lords—

[Baroness Northover]

No, I am going to continue, and if there are things that need to be dealt with at the end, I shall deal with them. It is also important that local healthwatch is able not only to provide information to HealthWatch England but to influence HealthWatch England’s actions on matters raised locally that may have national importance. Various noble Lords made that point and they were quite right. We therefore welcome, and will support, the amendments of my noble friend Lady Tyler.

[Lord Warner]

Are we allowed under the Standing Orders to hear the question of the noble Lord, Lord Harris? I would very much like to know what his point is.

[Baroness Northover]

If I wish to continue with the thrust of my argument—as the noble Lord, Lord Warner, said in the previous debate—I can do so. At the moment it is better if I lay out my argument. If there are points of clarification that noble Lords want an answer on, I will be very happy to give way when I have completed my argument.

We welcome and support—

[Baroness Jay of Paddington]

My Lords, I was not present when the noble Baroness had an exchange with the noble Lord, Lord Warner, on this matter. However, I have been in the House for 20 years and it is my widespread experience that of course the Minister is right to say that she must complete her argument. However, she has spoken for some minutes since the first intervention by the noble Lord, Lord Harris, and her argument has been well made.

[Baroness Northover]

The noble Lord, Lord Warner, wished to continue his argument against my noble friend Lord Phillips, and he did continue his argument.

Government Amendment 226ZG will enable HealthWatch England—

[Lord Warner]

May I just correct the noble Baroness? I actually anticipated that the noble Lord, Lord Phillips, was going to jump up. I did not stop him jumping up. He chose to withdraw.

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[Baroness Rawlings]

I shall just read from the Companion:

“A member of the House who is speaking may be interrupted with a brief question for clarification. Giving way accords with the traditions and customary courtesy of the House. It is, however, recognised that a member may justifiably refuse to give way, for instance, in the middle of an argument, or to repeated interruption, or in time-limited proceedings when time is short. Lengthy or frequent interventions should not be made, even with the consent of the member speaking”.

[Baroness Northover]

My Lords, it may help the House if I continue, but I am very happy to give way to noble Lords who wish to ask questions once I have gone through the various elements.

Government Amendment 226ZG will enable HealthWatch England to make recommendations of a general nature to local authorities about the making of arrangements for local healthwatch organisations and, where HealthWatch England is of the opinion that local healthwatch organisations’ activities are not being carried out properly, to draw this to the attention of the local authority.

Amendment 226A, tabled by my noble friend Lady Cumberlege, would place a duty—I see Companions spinning all around the House, so while noble Lords are studying that—

[Lord Harris of Haringey]

I want to ask a question, and I think the Minister has moved on to another point.

[Baroness Northover]

I am very happy to take noble Lords’ questions completely out of order, if need be, at the end if I have not addressed them.

Amendment 226A would place a duty on local healthwatch organisations to have regard to any advice or assistance provided by HealthWatch England under new Section 45A(2). We believe that this is too prescriptive. While we anticipate that local healthwatch organisations will welcome advice and assistance from HealthWatch England, a blanket requirement to have regard to the advice and assistance does not seem appropriate.

The Government very much agree that it is very important to get the membership of HealthWatch England right, the better to ensure its independence, and I thank noble Lords for their contributions on this issue. The Bill already gives the Secretary of State the power to make regulations about the appointment of members, and it is a power that we intend to use. In Committee, we said that we would take away and consider the suggestions put forward by noble Lords. We have heard what was said and have undertaken a public consultation on these regulations. Noble Lords have flagged up that a number of noble Lords are interested in local elections from local healthwatch organisations to HealthWatch England, and that is one of the issues flagged up in that consultation.

The consultation closed on 2 March, and the responses are now being analysed. Government Amendments 225 and 226—I thank my noble friend Lady Cumberlege for adding her name to Amendment 226—would ensure that regulations are able to make adequate and appropriate provision about HealthWatch England’s membership, including procedures for appointing members. It would also ensure that the regulations must require that the majority of members cannot be members of the CQC.

I now turn to aspects of the amendments relating to specific functions of HealthWatch England. It is interesting that some of these have not been flagged in the debate. Amendment 223A includes elements on patients’ complaints, and I think it is important for noble Lords to be aware of some of the elements in it. I would point out that statutory mechanisms have been in place for the investigation of NHS and adult social care complaints for a number of years, and a great deal has recently been done to improve these arrangements.

In 2009, the previous Government—and I give credit to them—following considerable public consultation, introduced new complaints arrangements for the NHS and adult social care. These reforms placed a greater focus on the outcome of the complaint and on speeding up the process. Importantly, they placed emphasis on resolving complaints at local level with recourse to the independent Health Service Ombudsman, if appropriate, so that organisations were better able to learn from their mistakes and to use the information to improve future service delivery. While there is room for improvement in the local handling of complaints, we support the reforms put in place by the previous Government, and it remains this Government’s view that complaints are best dealt with initially at local level. We wish to build upon these solid foundations. However, it is extremely important that the information that can be gathered from people’s experience is fed in and that an individual complaint is taken forward in a largely satisfactory way.

The relevant part of Amendment 223A, which deals with complaints, could, we believe, fundamentally change the nature of HealthWatch, compromise its primary role of consumer champion, lead to confusion among service users, duplicate current arrangements and impact adversely upon the role of the Health Service Ombudsman.

The noble Lord, Lord Patel, laid out extremely clearly what HealthWatch England needs to do. It is extremely important that it is recognised as a very important body in the new structure and that it has input from practical experience. The noble Lord is quite right that information needs to come up from local level to national level and that it needs to feed in at every point of the new architecture. HealthWatch England needs to be part of what drives up standards, and it is different from the regulator. Many noble Lords emphasised that. It is indeed the voice of the people. All, including the Secretary of State, have to listen to HealthWatch England, so it has a huge and important job. The noble Lord is quite right. It will not be buried in the CQC. Hosting is a very good way of describing its situation. It does not have to spend time and effort on back-office functions as CPPIH had to.

How Healthwatch England will be made up, its relationship to local HealthWatch and elections will be dealt with through regulations that will be informed by the consultation to which I have referred.

I now turn to the noble Lord, Lord Harris—

[Lord Goldsmith]

When will we know when the noble Baroness has reached the end of the argument so that we can hear the question that the noble Lord, Lord Harris, wants to ask? I am worried that the noble Baroness thinks that argument means speech. That has never been my interpretation or my practice at the Dispatch Box.

[Baroness Northover]

I am very happy to indicate when I think I have finished. I now come to answer some of the points made by the noble Lord, Lord Harris, or to address them at least. He may feel that I have not adequately answered them and, after that, he might like to hop up.

[Lord Harris of Haringey]

That is not my style.

[Baroness Northover]

I bear in mind a long history with the noble Lord, Lord Harris, that goes back quite a way and includes his very complimentary remarks when I gave my maiden speech in your Lordships’ House. Noble Lords might want to look at them.

Both HealthWatch England and local healthwatch have statutory forms—perhaps the noble Lord, Lord Harris, might wish to hear this.

[Lord Harris of Haringey]

I am multitasking; it is all right.

[Baroness Northover]

I am so glad. Both have statutory forms and functions so they cannot simply disappear in the way that he fears. I pay credit to him for all his work in this area over many years.

It was a shame that the noble Lord, Lord Harris, was not at the meeting yesterday to which the noble Baroness, Lady Murphy, has referred. With his formidable local government experience, I am quite surprised that he does not welcome the local authority involvement in the arrangements that we are putting forward. Had he been there yesterday, he would have heard the enthusiasm of the LGA, the chief executive of East Sussex County Council and others for their new involvement in health services. They are extremely keen to be best informed by flourishing local healthwatches. As they take on their new task, they see having that information as very important.

The noble Lord, Lord Harris, asked about the funding formula. Funding for local healthwatch will continue in a very similar fashion to LINks. It will be allocated primarily through the formula-based grant. Like LINks, this funding will not be ring-fenced, but each local authority’s allocation through the formula-based grants will be publicly available. I hope that that is of help to him. In addition, local healthwatch will receive additional funding through the DH learning disabilities and NHS reform grant.

I have various other responses to various other people, but perhaps the noble Lord wishes to put a question to me.

[Lord Harris of Haringey]

I am enormously grateful to the noble Baroness. She has answered some of the questions that I put. However, the question I wanted to ask related to her remarks about 15 minutes ago, when her argument seemed to be that this amendment recreated the former Commission for Patient and Public Involvement in Health. Does she acknowledge that this is a completely different structure, because it would be derived from the bottom up, with the support of local healthwatch organisations? What is more, it would not have to be encumbered by the bureaucracy that the Department of Health formerly imposed on that commission. It is a completely different structure.

[Baroness Northover]

I hear what the noble Lord says, but if he remembers the relationship and the aims of CPPIH, a lot of them echo the arguments that he has been making about such a structure. We may simply have to differ. The Government are very keen to have a structure that is up and running immediately, linking to, plugged into and influencing the national bodies that it needs to, and that it is not spending its time on its central structure. That is why this arrangement has been sought and that is the philosophy behind it.

The noble Baroness, Lady Masham, raised a number of issues, some of which will be considered in the next grouping. Perhaps I could come back to them then so that I do not take too long. I am astonished and delighted to see so many noble Lords who are interested in what I have to say on this.

My noble friend Lady Jolly asked about information-gathering, and she is absolutely right. In many ways this bears out how the CQC is very useful in this regard. By being hosted within the CQC, HealthWatch England will gain support from CQC expertise on the best methods of gathering and making the most of intelligence from local healthwatch. As part of HealthWatch England’s set-up plan, the CQC has dedicated resources to identify and develop the system that will support information flow between HealthWatch England and local healthwatch. I take on board very strongly what she said about the need for that information to be produced in a form that can be generalised and applied nationally, and that there are not lots of disparate bits of information that cannot be put together.

The noble Lord, Lord Warner, asked again about campaigning. I said in Committee that HealthWatch England and local healthwatch can campaign. I followed that up with a letter confirming that, which I hope he got—but perhaps he did not—and I reiterate it here. I hope that that is of help to the noble Lord.

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[Baroness Northover]

In response to the noble and learned Baroness, if I was in any way discourteous, I apologise but I hope that I gave the opportunity at the end for anybody who had further questions please to put them to me.

[Lord Patel]

My Lords, I thank the noble Baroness for her response. I think that the conversation, or lack of it, was unfortunate because not only did it not allow people to put their questions at the correct time, it probably interrupted the noble Baroness’s flow of speech and thoughts. Having said that, I am flattered by her compliments on what I had to say. However, she did not address the fundamental point when I speak for those who are concerned about public and patient involvement. She has said that the statute provides that HealthWatch England will be a committee. That is quite different from a statute which provides that HealthWatch England will be independent. Again, there is a vast difference. Also, in terms of its functions, there is nothing in the statute that says that HealthWatch England will have the power to ask for or demand information in the interests of patients and the public in order to demonstrate that the quality of care provided is not adequate. Although the statute recognises that HealthWatch England will have strong relationships with Monitor, the Commissioning Board and so on, it will not have the power in statute to demand that independently. It has the power in statute to work through the CQC to ask for that. That is what concerns people outside. Indeed, while listening to the debate I was getting e-mails saying, “This is not what we asked for and it is not what we want. This does not give us confidence that we will have the necessary authority to respond”.

The one lone voice in the wilderness, although it might have been loud, came from the noble Baroness, Lady Murphy. She suggested that this is ideal because of one very good chief executive in mid-Sussex. I wish we could clone her. For every one that is successful there will be 10 failures, and it is those failures which a good, powerful and independent HealthWatch England would be able to address when a local healthwatch organisation fails because the chief executive is not being supportive.

There are many issues here. If we are serious about giving the public and patients a strong voice, the Government must recognise that they need strong support and that they need it for a long time. Although I have not been associated with patient and public organisations in England, I have been involved with them on three different occasions. In fact, I set up one of them. I should say to the Minister that I thought I did a brilliant job. I gave it all the powers one could possibly give in terms of setting standards, inspecting hospitals, writing reports and criticising every service. It worked well, but it fell down because its strong support was withdrawn. It is important to recognise that if we are serious about giving patients and the public a strong voice, we need to give them status. We should not treat them like juveniles who do not understand the issues. They should be treated with the respect they deserve and be given strong support.

Unless the Minister is about to tell me that suddenly she is hearing a different message and that we can have a further conversation and another opportunity to look at this, I am afraid that, for those outside who are concerned about this, I will have to seek the opinion of the House.

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[Baroness Northover]

My Lords, we have great sympathy with Amendments 227 and 233. It is indeed vital that the voice of children is sought throughout the system and we agree that HealthWatch has a key role to play in this at both national and local levels. I thank the noble Baroness, Lady Massey, for the important points to which she and others drew attention. As we know, the noble Baroness has a long record of promoting the rights of children.

We are aware that some LINks have, as the noble Baronesses, Lady Massey and Lady Finlay, said, struggled to engage fully with children and certain groups of adults. It is very important that local healthwatch learns from that and is clear about the importance of engaging with children and young people. However, we do not feel that we should specify particular sections of the population in the Bill, although local healthwatch and HealthWatch England need to seek out views, especially of those who are hard to reach.

The noble Baroness, Lady Massey, spoke about guidance on engagement with children for local healthwatch. I can assure her that professionals and service users’ representatives are, through the Children and Young People’s Health Outcomes Forum, currently working with the Department of Health to develop a children and young people’s health outcomes strategy and to ensure that detailed design and development work is done with children and young people in mind. This includes HealthWatch. I can confirm that five local healthwatch pathfinders include a focus on children and young people. We hope to learn from that and that other local healthwatch organisations will learn from their experience. HealthWatch England will be able to use the work of the children and young people’s health outcomes strategy, the experience of the pathfinders and wider development work to develop advice and assistance to local healthwatch organisations on effective engagement with children, young people and their families.

The noble Baroness, Lady Massey, also suggested that we conduct a review of how HealthWatch England and local healthwatch involve children in their work. That is a very valuable idea. We fully agree that we should look at reviewing this, perhaps after three years of operation, to see how effectively HealthWatch England and local healthwatch have involved children and other hard-to-reach groups in their work.

The noble Baroness also suggested having a champion for children within HealthWatch England to drive forward children’s engagement. I hope I have reassured her that involving children will be a priority for HealthWatch England and local healthwatch. However, we believe that it would not be appropriate to have a children’s champion or, indeed, a specific representative for any patient group.

In the next group of amendments we will look at a definition of “people” that came from my noble friend Lady Jolly. That rather bears out what many noble Lords have said about making sure that we do not have just a narrow focus but recognise that we must not overlook groups such as children or hard-to-reach adults which have not necessarily had their voices heard in the past.

I was asked by the noble Baroness, Lady Finlay, whether HealthWatch will have the resources to involve children fully. Yes, it will. Representing people of all ages will be a core function of HealthWatch and will be resourced at a level to ensure that it can fulfil its duties and functions. The noble Baroness, Lady Masham, spoke strongly about how important it is to involve children and young adults, as did the noble Baroness, Lady Finlay, and others. I very much agree and feel that HealthWatch offers great potential to improve involvement in this area. Throughout everything that we are doing we are seeking to join up and integrate in the important way that she flagged up in her comments.

Although I cannot take forward the idea of the champion, nevertheless we understand and take on board the other suggestions that the noble Baroness, Lady Massey, has made. We are keen that HealthWatch England and local healthwatch groups reach out to a number of groups whose voices have not necessarily been heard in the past. Even if the noble Baroness is slightly disappointed with that response, I hope that with these other reassurances she will feel able to withdraw the amendment.

[Baroness Finlay of Llandaff]

Before the noble Baroness sits down, does she recognise that the legal status of children differs from that of adults? That is why they do not fall into the same category as many other vulnerable groups. Children do not reach the age of majority until they are 18, although they can consent to some things at 16. Therefore, they are always dependent on a responsible adult to speak for them or to open the door for them, as it were. They cannot form a group in the way that others in the population can to speak up for their rights and what they need. Will the noble Baroness reassure us that the Government recognise that the legal status of children differs from that of adults, and that if these amendments are not to be accepted, careful consideration will be given as to how that can be made explicit in the Bill before it completes its passage?

[Baroness Northover]

The noble Baroness made a poignant case for why children need to be listened to. I hope I can reassure her that HealthWatch England and local healthwatch have a responsibility to hear the voices of everyone, whatever their age. I accept what she says about the legal status of children. However, as she made very obvious, that does not mean to say that we cannot hear their voices and take very seriously their perception of how they can best be treated.

[Baroness Massey of Darwen]

My Lords, I thank all noble Lords who have taken part in the debate on this amendment. I am aware that there is a very powerful lobby in this House which supports the voice of the child in all matters and supports children’s welfare generally. There is also a very powerful lobby outside of children’s organisations that are dedicated to providing children with what they need.

I thank the noble Baroness for the reassurances that she has given. However, I stress that the research I quoted contains clear evidence that the voice of the child is often overlooked. We must be vigilant that it is not overlooked in the future. One of my three queries to the Government concerned disseminating guidance. I fully accept that there will be a health outcomes strategy for children. However, we have to keep an eye on that and see what happens in relation to the contribution of children’s voices to carrying out that strategy.

The noble Baroness said that there would be a review of how HealthWatch England and local healthwatch involved children. I suggest that two years after commencement is a sufficiently long period. I am disappointed about the champion issue because without advocacy some vulnerable groups will be neglected, which is never a good thing. I will follow up these issues with the Government. In the mean time, I beg leave to withdraw the amendment.

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Moved by

[Baroness Northover]

231B: Clause 181, leave out Clause 181

[Baroness Northover]

I shall speak also to the other government amendments in this group relating to local healthwatch. Local healthwatch goes to the heart of the Government’s ambition for a health and care service that is centred around patients and users. In the consultation paper Liberating the NHS: Local Democratic Legitimacy in Health, published in July 2010, the Government stated:

“Local authorities have a vital role in commissioning HealthWatch arrangements that serve their local populations well … In the event of under-performance, a local authority should intervene; and ultimately re-tender the contract where that is in the best interests of its local population”.

Local healthwatch will go further than just gathering views; it will be there to support individuals by providing information and advice about access to services and choice. We firmly believe that this will enable people to take more control of their own health, treatment and care, and understand and use the increased choices available to them. I am sure noble Lords will agree that this kind of support will be invaluable.

As a corporate body with a statutory function of carrying out statutory activities, local healthwatch will gather information about people’s views and experiences of the health and social care system. This will enable the voice of people to reach commissioners and providers of health and social care services, a link that has been lacking in the past.

Local healthwatch will have a seat on every statutory health and well-being board which will prepare statutory joint strategic needs assessments and joint health and well-being strategies, which will inform local commissioning plans. Through local healthwatch the patient voice will influence and inform the work of the health and well-being board. I hope that noble Lords will agree that this will give local healthwatch much more influence at the decision-making table and will help hardwire public engagement into the strategic planning of health and care services from the start.

The evidence and insight gathered by local healthwatch will also inform HealthWatch England and enable it to advise on the national picture—for example, where it sees a pattern across a number of local concerns—which will ensure that local views will be able to influence national policy, advice and guidance. This role will be strengthened following the amendments of the noble Baroness, Lady Tyler, which we accepted earlier when debating HealthWatch England.

We have always envisaged that local authorities, which will be responsible for commissioning local healthwatch, will have flexibility about its organisational form. This will enable them to take account of local needs and circumstances. We are pleased that senior voices within local government support the Government’s policy intentions and are willing to use their leadership role to help support local authorities to drive effective commissioning and implementation at local level. This approach to local healthwatch aligns with the Government’s localism agenda. However, on reflection we realised that greater flexibility was needed over the organisational form of local healthwatch, and for this reason we tabled the amendments in this group. We do not now think that prescribing from the centre that local healthwatch must be a statutory body corporate with an exact form is the best way forward.

Before listening to the views of noble Lords, perhaps I may address some concerns around the Government’s approach to local healthwatches. The first relates to their status as statutory bodies with statutory functions. One issue that LINks have faced is the model itself. As they are inherently loose networks, they require a host to provide administrative and other support, which has caused difficulties in some areas. By establishing local healthwatch as a body corporate we will avoid the difficulties of this, as the local healthwatch will be able to employ staff as well as involving volunteers.

It is important that local healthwatch organisations will be corporate bodies with statutory functions setting out their powers and duties. We agree with the assertion of the National Association for Voluntary and Community Action that,

“a network of vibrant community led organisations, answerable to local people, will have far more bite than over 150 unaccountable quangos”.

If we were to set out the more rigid requirements that statutory corporate bodies would have, this would be more likely to lend itself to the creation of such quangos.

Secondly, a number of noble Lords are concerned that there is a risk that a local authority will not wholeheartedly embrace entering into a contract with a body that will then criticise it. It is not new for local authorities to commission bodies, partly or fully, which then make their views known in feedback or reporting arrangements, with the net result of improving services locally. Examples include citizens advice bureaux, tenant organisations, legal advice centres and advocacy support. I assure noble Lords that these groups tend not to be afraid to come forward, and that most local authorities welcome such insight—as we heard yesterday from the LGA and others at the meeting to which noble Lords referred. It follows that there should be no problem were a local healthwatch organisation to share differing views or constructively criticise a local authority’s commissioning or provision of care services. It will be useful for local authorities to hear that feedback.

The needs of local communities should play a part in who is contracted to become the local healthwatch. We want to ensure that the expertise that exists in the community has the opportunity to contribute to local healthwatch. For example, a local authority could commission a community interest company, charity or other form of social enterprise that meets the prescribed criteria. Local authorities will be best placed to make such decisions, based on their knowledge of their local area, and it will be right to allow each to commission a local healthwatch that is right for them.

Thirdly, a key failing of many LINks is their inability to involve a wide range of people and different sections of the community. We discussed this when debating the previous group of amendments. The result is that they lack diversity in their membership, which makes them unrepresentative of their local population. These issues are being addressed by healthwatch. There is a duty on healthwatch to be representative, in the sense of the population demographics of an individual local community, when carrying out its functions. In order for local healthwatch to be truly representative across the individual local community, the ambition is that it will be part of a system rooted in local experience, harnessing the expertise of the public, community and voluntary sectors and others at the local level, particularly those working with people and groups who have a difficult time getting their voices heard. I beg to move.

--- Later in debate ---

[Baroness Wheeler]

My Lords, on behalf of these Benches, I want to express our concern and exasperation at these cobbled-together, last-minute changes to the status and organisational arrangements for local healthwatch. We are utterly opposed to depriving local healthwatch of its statutory status. It is hard to see the logic behind the new approach, even for those of us who are supportive of the local development of social enterprises.

The noble Baroness has not explained why this last-minute change is taking place 14 months into the consideration of the Bill. Why was this new approach and dramatic change not spelt out and included in the consultation that the Government have conducted since Committee stage on healthwatch membership? Why such a fundamental change of direction at this late stage?

The Government’s argument is that the new arrangements will provide local authorities with the flexibility that they need in establishing healthwatch organisations and facilitating their networking with other local community organisations. In practice, this means that not only will each local healthwatch be very different, and it will take more than the proposed national kite mark to provide them with any joined-up coherence, but they will all develop at a very different pace as local authorities take time to decide on the form of structure, and then draw up and implement their commissioning arrangements, or further subcontracting arrangements, if they want to make things really confusing, and so on. This is hardly the smooth transition from LINks organisations to the proper and coherent structure of patient representation at local level that we need. Like so much in this Bill, what could be simple and straightforward is made fragmented and complicated and requires detailed explanation. The Government also make strong play of local healthwatch organisations having a statutory function through a seat on health and well-being boards, through making a contribution on that board and the statutory joint strategic needs assessments and the joint health and well-being strategy. healthwatch will also have statutory status through the statutory health and well-being boards’ ability to refer back to the NHS Commissioning Board plans that do not meet the needs of the local communities. So we have a second-hand, reflected statutory authority by participating in bodies that have statutory status.

It is interesting, too, that with clinical commissioning groups the Government have repeatedly argued that the Bill was needed to enable CCGs to be statutory bodies in their own right. Now we see exactly the opposite argument when it comes to patient representation.

Finally, there is the relationship of local healthwatch with the local authority, where there is again huge potential for conflict of interest, and concern that even the well intentioned authorities facing severe budget cuts could struggle to find the required funding for healthwatch organisations. Government amendments to address this and potential conflicts of interest by requiring local authorities to,

“have regard to ... any Secretary of State guidance on this matter”,

do not provide the safeguards that would be needed to ensure that patients, their carers or representatives should be able to expect if they are concerned that their complaint about a social services department is channelled through a non-statutory body funded and linked to the local authority itself.

As with the rest of the Bill, these are complicated structures understood and supported by no one, with details fleshed out at the last minute and sprung upon the House, in effect, only three working days before we are due to consider them, and with no opportunity for consultation on such fundamental change. Arguably most important of all is that it is impossible to see, among all these amendments, how these local organisations will relate to national healthwatch. Perhaps the kite marks are designed more to help HealthWatch England recognise who it has under its umbrellas than to assist local organisations networking with each other.

I hope that even at this late stage the Minister will acknowledge the concern, confusion and demoralisation, particularly among key patient organisations and groups, at the last-minute decision to change the status of local healthwatch organisations. I hope that she will agree to withdraw these amendments and instead restore statutory status to local healthwatch, enabling them to be organisations that everyone can rely on to be genuine patient representatives, fully trusted and supported by patients and the public.

[Baroness Northover]

Again, my Lords, what shines through is a great commitment to public and patient involvement at a local level; the only dispute is over the form of that. Again, noble Lords are familiar with the fact that various models have been tried, and I emphasise once again that we are seeking to build on the strengths of what has worked and mitigate some of the problems that have been encountered.

My noble friend Lady Jolly has tabled Amendments 234 and 235, the result of which would be to replace references to “people” with “local people” in Section 221 of the 2007 Act and insert the definition of “local people”. We talked about the difficulty of organisations— LINks in particular—reaching groups that were defined as hard to reach. The definition in my noble friend’s amendment says that when carrying out its functions, local healthwatch has to be representative of people who live in the area, service users and people who are representative of the local community. That applies to people of all ages and emphasises the need for local healthwatch to champion the views of the whole breadth of the local community. I am therefore grateful to my noble friend for this contribution, and I am happy to support her amendments.

Although I am sympathetic to the sentiment behind my noble friend Lady Cumberlege’s Amendments 232, 236 and 237, I hope I can reassure noble Lords that, as corporate bodies, local healthwatches will have the flexibilities to make their own arrangements for securing staff, accommodation and so on, so the local authority should not have to make such arrangements on their behalf. There is no need for express provision on payment of expenditure because the legislation requires local authorities to make arrangements to ensure that the relevant activities can be carried on in their area. Necessarily, that means providing adequate funding to enable the functions to be carried out. This is an important point that I hope reassures noble Lords: the statutory functions must be delivered, and that is a protection of these bodies.

My noble friend Lady Cumberlege is quite right about local healthwatches working out their own priorities and work, and they will no doubt be doing that in conjunction with what is found to be good practice around the country, information coming from HealthWatch England and so on. I assure my noble friend that staff are there to help to facilitate such work, not to dominate it. My noble friend Lady Jolly is right: local healthwatch is a partner with local authorities—the eyes and ears, as the noble Baroness, Lady Murphy, and others have said.

My noble friend Lady Cumberlege was concerned that government amendments would damage local healthwatch’s independence. I do not agree: the amendments do not dilute in any way the statutory functions of local healthwatch, including the ability to give advice to local authorities among others. In response to concerns that local authorities may try to suppress local healthwatch, we specifically brought forward Amendment 236E giving the Secretary of State the ability to publish conflicts of interest guidance that both local authorities and local healthwatch would have to have regard to.

The noble Lord, Lord Harris, raised a number of issues. He regretted the fact that yesterday he was not at the seminar that I mentioned. I regret that he was not there. It was interrupted by a couple of votes, but I am sure that he would have engaged with those who were speaking there. That would have helped to inform everybody. All Peers were invited and some from his group attended. I see a few shaking heads.

[Lord Hunt of Kings Heath]

My Lords, the seminar was held during the regular meeting of Labour Peers which has occurred at 5 pm on Wednesday evenings since time began.

[Baroness Northover]

I am very sorry if there was a conflict of timing. Obviously it is difficult to schedule all the various meetings. My noble friend Lord Howe has had 100 meetings on this Bill.

[Baroness Thornton]

This has happened all the way through.

[Baroness Northover]

I am very sorry if that was the case. If it was the case all the way through, as the noble Baroness, Lady Thornton, indicates, perhaps it might have been an idea to feed that in.

[Baroness Thornton]

The noble Baroness might like to check with the Box. I informed the noble Earl’s office of the times of our group meetings at the beginning of proceedings. Meetings and seminars have clashed all the way through.

[Baroness Northover]

I am very sorry if that is the case. I would hope that we would be able to have other such meetings. As these arrangements are taken forward, it would be extremely useful to have people’s engagement. I was extremely glad that, even in such a clash, the noble Baroness, Lady Wheeler, and her noble friend were there.

The noble Lord, Lord Harris, should have received the letter about the amendments, but I gather that he thought he had not. A letter and briefing notes were sent to all Peers when the amendments were tabled and a full narrative of local healthwatch policy has been published on the Department of Health website. If the noble Lord has not seen the letter then I will feed that into the department to make sure that he receives this information so that he has it at his fingertips when he is contacted late at night by people who email him with concerns.

As I have mentioned before, it is very important that the local healthwatch seeks out views right across the area. It is an important factor in this arrangement that the local healthwatch will have a seat on the health and well-being board. I hope that that will help to reassure people of the influence of local healthwatch.

The noble Lord, Lord Harris, talked about privatisation by so-called social enterprises, or he flagged that up as a concern. I emphasise that the Government are huge fans of social enterprises, which perform a range of roles across the NHS. Social enterprises such as Turning Point are, of course, extremely valuable. This is not about privatisation or competition, as I feel we have made very clear.

The noble Lord, Lord Harris, also referred to my noble friend Lord Howe. My noble friend’s concern in 2007 was that local LINks should have at least a basic structure of governance. That is precisely the concern that has led us to propose that local healthwatches should be social enterprises. The question of governance is quite separate from the question of whether or not an organisation should be statutory. Perhaps the noble Lord, Lord Harris, can enter dialogue with my noble friend Lord Howe on all of that in due course.

The noble Lord, Lord Harris, also asked about the possibility of there being more than one local healthwatch. Only one local healthwatch will be permitted for each local authority area. Each local authority will be able to make only one contract. If the local healthwatch wishes to subcontract some of its functions it can do so if the local authority permits, but the functions would still remain the responsibility of the local healthwatch. I hope that that clarifies the position.

[Lord Harris of Haringey]

I was trying to establish whether it would be possible, under these amendments, to segment the various functions of local healthwatch and contract them separately. I think the noble Baroness has just confirmed that. Am I right?

[Baroness Northover]

The key fact is that there is one local healthwatch for any local authority area. If it decides that it wants to subcontract something to best achieve what it needs, that is up to that local healthwatch. The noble Lord might want to bear in mind the statutory functions of local healthwatch and its responsibilities as eyes and ears. If it was not working, I am sure that noble Lords such as he would flag that up. Local healthwatch would then have to justify what it was doing and might need to move away from it.

I realise that time is pressing and it is a Thursday afternoon. I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords. My noble friend Lady Jolly also flagged this up.

The noble Lord, Lord Low, the noble Baroness, Lady Wheeler, and others raised the issue of funding for local healthwatch. It is important that local authorities can manage local priorities, since they are best placed to respond to their local communities. Therefore, local healthwatch will remain within local authority funding mechanisms, as I mentioned earlier. This view was supported by the NHS Future Forum, which made clear in its Patient Involvement and Public Accountability report that it did,

“not agree that budgets for local Healthwatch should be ring fenced”.

However, to reassure noble Lords, I point out that statutory functions must be delivered. This helps to protect what local healthwatch is there to do.

I believe that there is consensus over our ambition for local healthwatch. We do not disagree about what we want it to do for people or to accomplish in order to raise the quality of care. I hope that I have reassured noble Lords that it is right for local healthwatch to be delivered at a local level by organisations that are accountable locally. To embed healthwatch in localism will not only enable the organisational form of local healthwatch to best meet the needs of the local population but better enable local healthwatch to play an effective role in feeding back people’s views and promoting their involvement in the scrutiny and provision of local care services. I refer again to the positive reaction of several different local authorities and councillors who are very pleased that they will now be involved in many elements of the healthcare services, as they are in public health.

[Lord Harris of Haringey]

Could the noble Baroness tell us how many LINks have been in touch with the department to say that they welcome these changes?

[Baroness Northover]

Like the noble Lord, I recognise that the organisations which are in place when change occurs are always concerned. LINks have rightly expressed concern about whether what they know works well in what they do will be taken forward. They are very open about the challenges that they faced and some of the areas in which they have not done as well as intended. I pay tribute to the then Government for trying to make the system work when it was set up. It was a reaction to what had been done before and a looser model. Everybody in the system wanted that to work as a model. However, I think that the noble Lord has admitted that it has not worked universally. It is therefore understandable that the relevant organisations expressed concerns. I hope that they will become involved in the new system and that what they have contributed—the volunteers among them have made an effective contribution in many areas—will feed into local healthwatch. With that, I hope that noble Lords will accept the Government’s amendments.