Health and Care Bill

Baroness Pitkeathley Excerpts

2nd reading
Tuesday 7th December 2021 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, it is a privilege to follow the noble Baroness, with her wealth of experience in this field, both personal and professional. I too welcome the noble Lord, Lord Stevens, and look forward to working with him again.

It has always been my role in your Lordships’ House to remind colleagues that, whatever reforms we make to health and social care, however many new acronyms we have, and however many new structures we set up, the bulk of health and social care in our society is provided not by paid professional services of any kind but by the so-called informal sector, the unpaid army of family, friends, neighbours and communities on whom we all rely.

Carers play an essential role in supporting the NHS and social care systems. Without their support, our systems would not have been able to cope with the increased demands they have seen during the pandemic. For many years, we have used the estimate of 6 million unpaid carers. During the pandemic, about 4.5 million people took on new caring responsibilities. Their total contribution is now estimated to be worth £193 billion every year—more than the cost of the NHS itself.

My test of any new legislation on health and social care is: how does it affect carers and will it help them be recognised for the vital role they play? The answer to that question is only partly positive. Carers welcome greater integration and collaboration between health and care services—the stated aims of this Bill—since their lives are made even harder when services are not joined up and data is not shared effectively and efficiently. I very much welcome the duty in Clause 6 to consult carers, and the duty on integrated care boards in Clause 20 to consult them around planning and commissioning.

There are some large omissions in the Bill which will have to be rectified if carers are not to suffer as a result of its introduction. For example, I suggest that a new duty should be placed on the NHS to have regard to carers and to promote their health and well-being. Carers are not systematically identified, supported and included throughout the NHS, although good practice does exist. In most social care systems, carers are legally recognised, but this does not apply to the NHS. For effective integration to be achieved across the system, there needs to be a statutory duty to have regard to carers and to promote their well-being. I remind your Lordships of the negative effects of caring on carers’ own health, with three-quarters of them reporting that their own physical and mental health is affected as a direct result of caring responsibilities.

Clause 80 is of great concern. This has been extensively debated in the other place. Incredibly, it actually removes rights from carers—rights which were hard fought for by me and many others during the passage of the Care Act 2014 and in other legislation. This Bill repeals the legislation that gave carers a fundamental right to an assessment and ensured that services were provided to make sure that hospital discharges are safe. There are endless horror stories about unplanned discharges with which I could regale your Lordships if time permitted. Some 68% of carers say that they were not asked whether they were willing and able to care at the point of discharge. Some 61% report that they were not given the right information and advice to help them care safely and well. Surely we must, at the very least, maintain carers’ rights, not reduce them—so this must be amended. I am sure that the Minister, with his understanding of carers’ needs, will be sympathetic.

I have two other areas of concern. The first is about the definition of “carer”. This is not defined in the Bill. Since the NHS is an all-age service, we assume that the definition that already exists under previous legislation will apply and that young and parent carers will therefore be included—but this must be defined and clearly stated in statutory guidance.

I also share the concern mentioned by many other noble Lords about the cap. Research by Carers UK found that 63% of carers were contributing financially in their role. For some, the contribution was relatively modest but, for others, it ran into hundreds of thousands of pounds. These proposals without the cap will leave many carers with low or modest assets very worried indeed.

I know that many of your Lordships recognise the contribution of unpaid carers. Indeed, many of us will be carers at this very moment, will have been carers in the recent past, or expect to be carers at some point in the future. I am confident therefore that we shall be able to amend this Bill to make it another important step in the hard-fought process of getting unpaid carers the recognition and support they so richly deserve.

Health and Care Bill

Baroness Pitkeathley Excerpts

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

Furthermore, all candidates are required to declare actual or potential conflicts of interest during the recruitment process, which can then be explored by an advisory assessment panel. On appointment and subsequently, candidates publicly declare their interests in a register held by the public body. The Commissioner for Public Appointments regulates these appointments to ensure they are upholding the values of the governance code. I hope that is helpful and that I have reassured the noble Baroness, Lady Merron, sufficiently, at least at this stage of the proceedings, to enable her to withdraw her Amendment 2.

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

My Lords, I remind the Committee that I must call the noble Lord, Lord Howarth, who is taking part remotely, to respond to the debate on Amendment 3.

[Lord Howarth of Newport (Lab) [V]]

My Lords, I very much appreciate the recognition by the noble Earl of the validity of the concerns put forward by the proponents of these two amendments, and his acknowledgment that the board of NHS England must contain balance and diversity. I also recognise the force of the points made by the noble Baroness, Lady Harding, and the noble Lord, Lord Mawson: it is essential that the chair should have power to ensure that the board is cohesive. I noted that the noble Baroness, Lady Walmsley, had reservations about the principle of representativeness which is stated in Amendment 2.

We have had a very useful debate. In light of the reflections put forward in the debate, particularly what the Minister, the noble Earl, Lord Howe, has said, I beg leave to withdraw my amendment.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 13th January 2022 Lords Chamber

The system that I am describing is one of our very best but they would openly admit that they are still in the early stages of that change, which is why it is so important that we put this in the legislation. I know that the Minister and the Secretary of State care deeply and passionately about addressing health inequalities; both have been very public about their commitment. I urge them to hear the spirit of the cross- party agreement in this Committee today and accept the amendments.

[Baroness Pitkeathley (Lab)]

My Lords, I support all the amendments in his group but particularly Amendment 68, in the name of the right reverend Prelate the Bishop of St Albans, about health inequalities faced by those living in rural areas. When you live in a rural area, it is often difficult physically to access a GP practice—if you do not have a car, try getting a bus in a rural area whose timetable coincides with the opening hours of your surgery—and to access health information if your internet is not up to scratch. There are many rural areas where connectivity still leaves a great deal to be desired. Pharmacies, too, can be difficult to access; although some run outreach services, they are by no means universal.

In rural areas, the important non-clinical services mentioned by my noble friend Lord Howarth are largely dependent on the voluntary sector. During the pandemic, when village halls, with their plethora of exercise, dance, art and social support services, were closed, many older people in rural areas were cut off completely, with disastrous effects on their mental health.

The problems of delivering social care in rural areas are also well known. When care workers are paid for home visits only for the time when they are in the home and not for travelling time—time that will of course be extended by the spread-out nature of those visits—it is no wonder that many private and voluntary agencies are handing back social care contracts to local authorities because they simply cannot deliver them.

Poverty, the underlying cause of inequality, is more widespread in rural areas than is often acknowledged. Escaping to the country is a nice idea, but unless you recognise the particular inequalities faced by country residents, it is not as you see it on the television. Moving as a couple approaching retirement is a different picture when one—usually the husband, both the gardener and the driver—dies, leaving an isolated widow in declining health. The cost of fuel is also more acute in rural areas, and you will find many older people who may own a nice-looking cottage having to choose between heating and eating, with consequential effects on their health and future dependency.

I very much hope that when the Minister replies, he will emphasise that when integrated care boards are considering the provision of services for the purposes of achieving equality of access for patients, they will consider those living in all parts of the board’s area.

[Lord Scriven (LD)]

My Lords, this is my first intervention on the Bill. I draw the Committee’s attention to my relevant interests in the register, namely as a vice-president of the Local Government Association and a non-executive director of Chesterfield Royal Hospital NHS Foundation Trust.

I support this suite of amendments—particularly Amendments 11, 14, 65, 94, 186 and 195—which explicitly puts the issue of health inequalities in the Bill and makes it central to the aims of the NHS. It also deals with reporting and holding people to account for helping to reduce health inequalities.

The reason for my support is simple. I speak as a former NHS manager who, as a rookie many years ago, in the very early 1980s, was on the general management trainee scheme. For the first three months, our aim was just to go around. I remember asking the very naive question: “Who’s responsible for quality?” I expected the person who was showing me around to say, “Everyone”, but he said, “Follow me.” We went in his car for five miles outside the hospital to the health authority. We then went into a lift, down into the basement and through lots of corridors, and finally came to a door at the end of the corridor. The door was opened and in a dimly lit room was a middle-aged woman, surrounded by piles of paper. I said, “Who’s this?” I was told, “This is Gladys. Gladys is responsible for quality.” It was seen as someone else’s job.

That is why I have cringed a little when the Minister has said, in previous debates and Answers on health inequalities, that the Office for Health Improvement and Disparities is being established. That is well and good, but that office is not responsible for reducing health inequalities; everyone in the healthcare system and its partners must work together to reduce health inequalities. That is why it is really important that this is explicit. It is not just about health issues; it is about people’s income, work, environment, green space and transport. It should be explicit in the Bill as part of the triple aims—which will become four aims—and become part of monitoring. This issue must become central because something that I have learned about the health service is that unless the centre asks for it, and asks for it to be monitored, it just does not get done because it is not seen as important. That is why monitoring this at both local and national level will hold people to account so it does not become Gladys’s responsibility.

The Bill gives us a once-in-a-lifetime opportunity not just to put health inequalities centrally in the Bill but to make them explicit in the way that the NHS and its partners work. With a little extra legal push to the mill, so to speak, as well as the monitoring, the data and holding people to account, I believe that we can finally start to deal with these issues in a systematic way that shows improvement and will allow the NHS and its partners to know where to push a bit harder to get this done. That is why I support the amendments.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 13th January 2022 Lords Chamber

I recognise the difficulty of outlining and detailing names in the Bill, but I would be interested to know from the Minister how the voice of patients and empowering them and giving them agency is threaded through this Bill.

[Baroness Pitkeathley (Lab)]

My Lords, like the noble Baronesses who have spoken before me, I recognise the difficulty of being too specific about board membership, but I think that paragraph (h) in Amendment 37 in the name of my noble friend, to which the noble Lord, Lord Patel, has added his name, is wide enough to enable patients and carers to be represented. Indeed, given the Government’s commitment to the voice of patients and carers, I find it difficult to understand how they could not accept such an amendment. I know the Minister is extremely committed to that patient and carer voice.

I want to extend that a bit to making sure that we do not forget the vital contribution that charities and community organisations make to health and social care services through their well-documented ability to be innovative and flexible. Your Lordships know that in the course of the pandemic, they immediately operated better delivery mechanisms than the statutory sector was able to because they were able to be flexible. One million volunteers were recruited, and many people had experiences similar to mine, with people saying that it was only through the services of voluntary organisations and charities that they had any kind of support at all, particularly during the first few weeks of the pandemic.

When the Public Services Committee of your Lordships’ House did its inquiry into how public services had reacted to the pandemic, time and again we received examples of where charities were ignored by public service providers. Even if they were consulted at a later stage in planning, it was not to take account of their experience and skills but to assume they would co-operate in whatever role was doled out to them. That is not the way to make the best use of the untold amount of good will, experience and skill that exists in charities, especially in the areas of health and social care. This is a waste of scarce resources and must be recognised in the new structures as they are set out. There are many examples of where these partnerships work well, recognising the different skills on offer, and of where charities are treated as partners, but they must be involved in planning at the earliest stages and be supported financially if appropriate. They will always give a good return on resources.

The other area where charities make a significant contribution is in representing the patient and carer voice. Voluntary sector organisations are often the services that have most contact, especially with vulnerable people. Your Lordships will have endless examples of that. Much is made of how important the voice of the user, patient and carer is when planning or delivering the services. Co-production, co-design and the other buzzwords we hear all the time absolutely depend on being in touch with users and patients. Almost inevitably, the easiest way to access users and patients is through local or national charities which make users their focus, both in the planning of services and the governance of the organisation.

Proper involvement of users, patients and carers often throws up surprises, even pleasant ones, about money. If you really take the views of users and patients, you will often find that what they want from health and social care services is not what is being provided. They will often ask for less provision than we expect, so long as it actually meets their needs, not the needs estimated by the providers. This is a valuable fact when resources are short. It is one more important reason to forge partnerships with the voluntary sector when the memberships of ICBs and ICSs are being set up. Organisations in their areas should be considered as partners which have a great deal to contribute and will do so willingly and productively.

[Baroness Finlay of Llandaff (CB)]

I have two amendments in this group, so I will try to address them very briefly because of time. I am most grateful to the noble Baroness, Lady Thornton, for the way that she introduced this and would like to return very briefly to the issue of public/private potential conflict when public money is being spent, because there is an issue of probity around that. Having shared corporate accountability for the delivery, functions and duties of the ICS could be in conflict with the legal duties of company directors, as has already been pointed out, and therefore creates problems.

I know that the Government recognised this in the other place, but their amendment seems to fall short in two respects. It leaves to the appointed chair of the board the decision on whether a person with interests in private healthcare is incorporated into an ICB. The difficulty is that it provides a condition that their interests in private healthcare could undermine the independence of the health service, but it is very unclear how that will actually be measured. I can see that it would be a fantastic area for legal argument that a precedent had been set in one area that was being worked against by the chair of another ICB. I think this needs to be clarified, because they will be dispensing public money and there are examples already where different decisions have been taken. I will not go into those now because of time.

I turn briefly to the reasons behind the amendments I have put down and declare that I am president of the Chartered Society of Physiotherapy. I am most grateful to the noble Lord, Lord Bradley, for co-signing my amendments. There is a role in recognising that the allied healthcare professionals are the third-largest part of the workforce—the workforce is not just doctors and nurses—and are critical to the long-term plan for the NHS. They work across the health and social care boundary and out into the community. They are integral—physiotherapists in particular—to primary care, and speech and language therapists are essential for children and young people, particularly those with communication difficulties, and that of course includes those with autism and learning difficulties.

I also recognise, though, the problem that you cannot have everybody listed on a board and everybody wants their own so-called representation on it. It will be important that the terms of reference and the metrics by which the function of the board is measured and compared are very clearly laid out, to make sure that there is appropriate consultation at all times with those who are on the receiving end of healthcare, and that people such as allied healthcare professionals are appropriately involved in decisions for the patient groups on which they can have a major impact. Quite often they have a much more major impact than medicine or nursing will do in terms of a patient’s long-term quality of life, and rehabilitation in particular.

So I hope that the Government have listened to this debate and in particular will heed the important warning from the noble Baroness, Lady Thornton, in opening this debate and in the content of the amendments that she has tabled.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, I share the outrage of my noble friends and the noble Lord, Lord Scriven, about how this is proceeding. In a way, I can see how some of this has come about. Perhaps the Minister will say that the Government are building on what is happening on the ground. It is perfectly true that many organisations at a local level found their way around the disaster that was the 2012 Act. They set up systems so that they did not have to follow it and could collaborate and not compete. Many of those systems operate practically on the ground, but they do not operate in a proper legislative framework, as we have heard, and nowhere is that more important than the outrageous decision in some areas to preclude local authorities, as noble Lords have said.

For those of us who know our way around the system, it is easy to ignore the fact that most patients and users—after all, the Bill is supposed to be focused on their experience and what their outcomes will be—have no idea about the difference between local authorities and the local health producers. To them, it is all the council or the NHS, and they have no idea that the GP, the district nurse, the care provider and the local care home do not talk to one another or have any mechanism for coming together. That is the kind of mechanism that we are trying to establish. We must ignore the informal arrangements that may have taken place as a result of the 2012 Act, and establish the proper legislative framework in which all those who have the interests of patients and users at heart are properly represented.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I declare my position as a vice-president of the LGA and the NALC. I will speak particularly to Amendment 23 in the name of the noble Baroness, Lady Thornton, to which I have attached my name; it is unfortunate that we have not heard from her yet. It is about consultation with local authorities, which is what so much of our debate on this group thus far has already addressed. I particularly associate myself with the comments of the noble Lords, Lord Hunt and Lord Davies. A great rearrangement of the NHS has happened entirely under the radar, and it is deeply disturbing to those of us concerned about the risk of the Americanisation of our NHS and its takeover by private US healthcare for-profit companies.

I am slightly surprised that no one has yet mentioned the report in the Times this morning about the Health Secretary seeking to model NHS hospitals on academy schools, which has been seen as a large privatisation of our education system. Also, we found out only recently and entirely by accident that the Chancellor was giving days of his time to visit US healthcare companies in California. When you look at those facts, the runes seem very disturbing. To defend against the incidents that the noble Lord, Lord Davies, referred to, and the restructuring by stealth, we need local authority involvement. That is what Amendment 23 seeks to ensure, at least in part.

I also want to comment briefly on another amendment in the name of the noble Baroness, Lady Thornton, Amendment 44, which is about protecting the collective arrangements for pay and conditions for staff. We have to look at it in the context of the survey this week that showed one in four doctors saying that they were exhausted to the point of being impaired in their work. We have an exhausted, utterly worn-down workforce, and we have nurses who are not paid enough and end up going into food banks to feed their families.

It is obviously a matter of justice that we at least protect, and in fact improve, the pay and conditions of healthcare workers. But more than that, it is very much an issue of health as well, because workers who are overworked and underpaid are simply unable to deliver the quality of care that we would hope to provide.

I very much hope that this group of amendments will get some attention, because this has all happened under the radar. There has been no public discussion of this and that desperately needs to happen, so once again it seems to fall to your Lordships’ House to try to get this on the agenda.

Health and Care Bill

Baroness Pitkeathley Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, it is clear from the number of noble Lords wishing to speak in this debate that this group of amendments is extremely important. I want to speak particularly in favour of the amendments from the noble Baroness, Lady Hollins, about integration, which she put before us so eloquently.

In the 40-odd years that I have been working on these issues, I have never heard anyone say anything other than that collaboration would be a lot better than the current situation and that collaboration between health and social care is absolutely vital. Everyone always says that, and in recent years we even have had the hope that, when the Department of Health changed its name to the Department of Health and Social Care, we would begin to see more movements towards integration. Sadly, little progress has been made.

If one asks any patient about integration between health and social care, they think that it already exists. Most patients have absolutely no idea about different jurisdictions, how one sorts out a medical bath from a social bath or how different pots of funding ensure different points of view. That is, of course, until the patients start to find their way around the system in the way in which the noble Baroness, Lady Barker, brought so amusingly to mind. The lack of incentives to integration in the Bill are disappointing. I have not seen anything in it that will stop 15-minute visits by overworked and underpaid care staff or any ideas about integrating services and having much better integrated budgets—still less about data sharing. Those are all the things that we need if we are truly going to move to proper integration.

As the noble Baroness, Lady Barker, reminded us, at a time when waiting lists for the NHS are growing longer by the minute, should it not be a priority to ensure that no one stays in hospital longer than they have to by having discharge procedures that provide a seamless transition and making sure that the all-too-frequent readmission because of inadequate co-operation between the NHS and local authorities does not happen? We hear that care jobs are unfulfilled and that requests for care are turned down because of staff shortages. Local authorities struggle to recruit enough workers to meet increasing demands. No wonder that that is the case when one can earn more by filling shelves at Sainsbury’s.

A truly integrated service would mean that, the minute that someone is admitted to hospital, plans should be being made between health services, social care and the often-ignored but often significant voluntary services about what is going to happen on discharge. Sadly, the usual pattern is for a conflict to emerge, usually on a Friday afternoon, between a hospital ward desperate to empty beds and social care services inadequately prepared or even informed. What happens? The person goes home, the care services are not adequate and so the person is readmitted to hospital. I know someone in my local area in Herefordshire, an elderly lady who has been admitted 14 separate times since last July, and still care services to keep her adequately at home are not provided.

The Bill is a failed opportunity because we are seeing social care once again as the poor relation, the tail-end Charlie, that is considered after everything else is settled. Social care could be at the heart of a levelling-up agenda if we had a vision for its workforce and the impact that it has on the health of a community in the broadest sense. Care providers could be encouraged to diversify their businesses to reach out creatively into the community by providing tax incentives, for example, or reductions on business rates. If we want a high-skill, high-wage economy, what better place to start than social care, with its huge workforce badly paid but certainly not unskilled? Those skills could be developed by providing training, and retention could be dealt with by better career progression and recognition of qualifications. It is sad that we are not looking at practical ways in which to develop that integration in the Bill.

Fixing social care requires two things: money and better integration. We will come on to money later in the Bill. For the moment, I hope that the Government will give proper recognition of and acceptance to the amendment on integration in the name of the noble Baroness, Lady Hollins.

[Lord Warner (CB)]

My Lords, I will speak briefly in support of the amendments in the name of the noble Baroness, Lady Hollins. I had intended to put my name to them; I apologise to the noble Baroness for being so slow off the mark. I also strongly support the amendment in the name of the noble Lord, Lord Layard.

Both these amendments, in their different ways, go some way to righting what I consider to be two big wrongs inflicted on local government in the past, where responsibilities have been transferred to it but have not had their funding sustained into the future. The first was the closure of long-stay hospitals in the 1980s and 1990s. When I was a director of social services, I was the NHS’s favourite person when building provision and making available services for people coming out of long-stay hospitals. After a few years, I and my many colleagues became forgotten men and women because the money that was transferred was never maintained in real terms over a couple of decades.

Fast-forward to the 1990s and the setting up, with much enthusiasm, of the Roy Griffiths community care changes. These enabled the Government to get off the hook of an expanding social security budget. It was another repeat performance: the money was not maintained in real terms in the longer term. What we saw in both cases was local government having to pick up the tab without support from the Government—successive Governments, that is; I am not making a party-political point—to ensure that those services could be maintained for the people who became the responsibility of local government.

The amendments in the name of the noble Baroness, Lady Hollins, remind people that there is an obligation to make sure that both health and social care produce good outcomes for the people who are now primarily the responsibility of local government, which, as the noble Baroness, Lady Pitkeathley, gently reminded us, has been underfunded over a long time in terms of maintaining these services. The amendment in the name of the noble Lord, Lord Layard, is another righting of a wrong and we should all get behind it.

--- Later in debate ---

Amendments 57 and 58 not moved.

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

Before I call the next amendment, I remind your Lordships that the noble Lord, Lord Howarth of Newport, is taking part remotely.

Amendment 59

Moved by

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

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

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

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

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

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

[Baroness Pitkeathley (Lab)]

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

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


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

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

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

[Baroness Bennett of Manor Castle (GP)]

My Lords, I join pretty much everyone else in commending the noble Lord, Lord Howarth, for tabling these amendments. I have attached my name to Amendment 67, although it could have been to any of them.

It is worth making two broad points. In her wonderful contribution on the last group, the noble Baroness, Lady Cumberlege, used the really key phrase,

“the community provided the health”.

That is what this group of amendments is talking about.

A couple of groups back, the noble Baroness, Lady Thornton, talked about how, if the health system is working for people with learning disabilities, it is working for everybody. If we bring in the kind of institutions, frameworks and supports that we are talking about here—if we think about stopping people getting ill and caring for ill people—we will make our communities vastly better for everybody. This is an important point to make.

Like most noble Lords, I could come up with a list as long as your arm of wonderful places I have visited. I will not, but I will mention one, which brings together three elements of this: creativity, nature and culture. The Green Backyard in Peterborough is the most wonderful space. I defy anyone to walk into it and not smile. It has amazing, colourful, moving sculptures powered by water, with food growing—amazing salads filled with flowers. When I visited, I spoke to the carer of another visitor. This visitor had very profound disabilities—she was blind and non-verbal—but her carer said, “I’ve never seen anything like it. After the first time we came to visit, the next Monday, which she knew was the day we visited, she was all packed up, dressed and ready to go out.” This was obviously catering to someone’s needs absolutely brilliantly, but it nearly got bulldozed and turned into a block of flats a few years ago. Luckily, it was saved, but that is the situation we so often find ourselves in.

I also want to mention Amendment 90, in the name of the noble Lord, Lord Howarth. The noble Lord, Lord Best, has already said a great deal on this, so I will seek to add just a couple of small points—well, one small point and one quite big one. There is something called the lifetime homes standard, which I learned about when I visited Derwenthorpe in York with the Joseph Rowntree Foundation. The thing I remember about it, because it was so simple and obvious, was that the two-storey houses there had all been built with a space between the joists so that, if you needed to put a lift in up to the first floor, where the bedrooms were, it was a really simple and low-cost thing to do. It was a very simple piece of design. This will not be covered in the Health and Care Bill, but this relates to so many aspects of our society. You could say that housing is a health issue. In the first group this morning, we talked about social care and how many people cannot leave hospital and go home because their accommodation is unsuitable. We need to think all the way along the line across our society to make sure that does not happen.

Finally, I want to pick out one or two words in this amendment, which talks about housing and urban environments. I thought here of the New Ground co-housing development in north London, which is for women aged over 50. One aspect of it is looking at how people can support each other, be good neighbours and form a community that can provide support. This morning, I attended a King’s Fund briefing talking about social care and there was a great deal of talk about the need for digital innovation and technology. I tweeted, “What about social innovation?” We have to think about how we organise our societies and urban environments so that people can form those kinds of communities. If you visit any area of new housing being built around the country, there is typically precious little in it to encourage that kind of community development. The housing point is obvious, as is the environment point, but let us not lose the community and urban structure points from that amendment either.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to Amendments 133, 139 and 161, which were so ably introduced by the noble Baroness, Lady Greengross, and others. I also have Amendments 143 and 144 in my name. All the amendments aim to tackle the accountability gap: the inconsistency of provision of continuing healthcare across different parts of England.

The noble Baroness, Lady Greengross, alluded to some diseases, but this goes much wider. There are people with spinal injuries and long-term multiple sclerosis and there are people who have had strokes. They all need ongoing long-term healthcare at a high level—way above the level that can be provided by social care.

The problem is that the accountability gap exists and there is inconsistency in the quality of provision, with eligibility criteria being interpreted differently in different areas. Amendments 143 and 144 aim to strengthen the powers of NHS England in the Bill to give direction to integrated care boards, with the particular aim of closing this accountability gap. Within the existing system, NHS England is responsible for holding clinical commissioning groups accountable for their discharge of continuing healthcare and functions.

In the reformed system proposed by the Bill, NHS England will hold these boards accountable in a similar way, but I question whether it has adequate authority both in the current system and the proposed system and whether the levers available to it to act meaningfully are adequate. While the intention prior to the Lansley reforms was to give NHS England powers to intervene to create meaningful change in practice, the powers were restricted to high-level interventions where there was a failure of governance at the highest level, rather than interventions where a CCG was failing to implement good practice or to adhere to national policy.

The 2018 report by the Public Accounts Committee in the other place supported these concerns and stated:

“NHS England is not adequately carrying out its responsibility to ensure CCGs are complying with the legal requirement to provide continuing healthcare to those that are eligible.”


There are limited accountability mechanisms and there is inadequate data collection at present. These amendments seek clarification and would drive long-overdue improvements in the quality and, importantly, the consistency of the way that continuing healthcare decisions are made and the process is administered, with the aim of improving outcomes and reducing the strain of applying for continuing healthcare for people who live with complex health needs and for their loved ones, in particular their family and carers.

[Baroness Pitkeathley (Lab)]

My Lords, I very much support the noble Baroness, Lady Greengross, in her amendments. We should be clear that continuing health needs are ignored by assessors because of the issue of who will pay. I have experienced this twice with neighbours and friends. It was clear to me that both patients had complex needs, mentioned by the noble Baroness, Lady Finlay, and had undeniable continuing care needs, so I was puzzled as to why the families were working out how to fund places for their relatives. They had never been told of the possibility of continuing NHS funding. I suggested that they quote the legislation back to the assessors and of course when they did so they found that funding would be provided—and some years later it is still being provided. Without this chance encounter with me, and asking the right questions, those families would have been denied the funding that is their right.

[Baroness Barker (LD)]

My Lords, as ever, it is a great pleasure to row in behind my former boss at Age Concern—the inspirational leader of Age Concern for so many years—to return to an issue that Age Concern and its successor body Age UK have for decades raised with successive Governments during successive NHS reorganisations.

It is important, at the outset of this debate, that we understand the true importance of NHS continuing care. On one level, an individual level, it is about enabling people who have long-term conditions to live dignified lives in the community. At a strategic level, in terms of healthcare planning, it is about keeping people out of acute hospitals, which is the most expensive form of care.

The reason why it is right, again, that we seek to put these amendments on to the face of the Bill is that, at an organisational level within the NHS, there has never been a full accountability path for NHS continuing care. That means that, when it comes to individual decision-making on the part of members of staff in relation to individual patients, the decisions fall down. We have not just wide variation between different organisations but wide variation between particular practitioners, who sometimes resort to using non-standard checklists to make decisions, with inconsistent decision-making.

As a result of that, it is hardly surprising, but a real condemnation of a long-term failure of the NHS, that there is a need for an organisation such as Beacon to exist. It is a social enterprise set up by the main charities that gives information to older people and their carers. It should not have to exist. The fact that it does, and that it is a profitable social enterprise business, is testimony to the extent to which older people and their relatives are being badly let down on this.

I hope that in raising this yet again we have shone a light on a part of the NHS system that goes to the heart of what this Bill is supposed to be about. If we do not make this an express responsibility of the NHS in the Bill, yet again it is just not going to happen.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Meyer (Con)]

My Lords, in speaking to Amendment 266, I shall not speak for long because everything has been said. The noble Baroness, Lady Finlay of Llandaff, explained the problem very clearly as did other speakers.

The only reason I want to speak is that in April last year I spoke in favour of the Private Member’s Bill introduced to this House by my noble friend Lady Wyld which sought to prevent cosmetic procedures being performed in England on people aged under 18 unless under the direction of a medical practitioner. The Bill was passed with cross-party and government support. As a result, children are now better protected. It is high time that we protected the population at large. When one hears of all the side-effects and that people can buy a product online and inject it into themselves or somebody else, it feels like the wild west, and the consequences can be quite dramatic, as we have heard. I very much hope that the Government will be able to support this amendment. This is not complicated and needs to be done quickly.

[Baroness Pitkeathley (Lab)]

I want to follow the noble Lord, Lord Sharkey, because I am former chair of the Specialised Healthcare Alliance. I shall speak very briefly in support of Amendments 164 and 178 in his name and that of my noble friend Lady Wheeler.

Every reorganisation of the NHS leaves patients who have a rare or less common condition anxious about how their particular needs will be assessed, how they will be met and even how they will be noted. It is sadly true that the rarer or more specialised a condition, the more it comes down to a postcode lottery whether the patient will be able to access care in spite of established national standards. Not only is it harder to access care, it is also harder for these patients to access the support groups or information networks which are vital when finding out the sometimes rare information about these conditions. The suggestion in Amendment 164 that the CQC assess the provision by ICBs of care for those with rare or less common conditions would provide the assurance that is so badly need.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in part because I listened to the lecture with which we started this session but more because it is an old anecdote, I shall forbear from telling my hospital food horror story. However, I will pick up on the points made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Barker, about hospital food and how hard people are trying to improve the situation. This relates to the answer the Minister gave me on Monday in Oral Questions. Of course, it is dependent on the budget that caterers have and the quality of the food that is available to them. I was pleased that the Minister then said that the Government are looking to tackle government procurement to improve the quality of vegetables and fruit. In terms of joining up the dots, that is a useful point to make.

On Amendment 243, I offer the Green group’s support and note that, having been in your Lordships’ House for only a little more than two years, I have debated a very similar amendment at least once before—I think it must have been on the Medicines and Medical Devices Bill. We have all seen briefings that are very much a cry from the heart from the nursing profession for this to happen. Surely we can get this into this Bill.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

I hope also that Ministers will recognise the breadth and depth of support from the health and local government sectors for these amendments. They will know that bringing together so many organisations with varying roles and priorities is very difficult. The fact that so many are singing the same song is a triumph and I am sure that my noble friends on the Front Bench will consider these views and give pause for thought. I am sure that they will not be dismissive. That is not in either of their natures, as we have witnessed on other matters. However, I want some reassurance that these amendments are not totally negative and are not to be totally dismissed. I hope that my noble friends will seek to work towards some of these amendments because they are really important. Those of us who have been through the whole process of reconfigurations in a position of authority—not as a Minister, as the noble Lord, Lord Warner, was, but as junior Ministers—know how fraught reconfigurations are. I therefore hope that these amendments will find some favour with my noble friends on the Front Bench.

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

I call the noble Lord, Lord Howarth, who is participating remotely.

[Lord Howarth of Newport (Lab) [V]]

My Lords, your Lordships’ Select Committee on the Constitution, of which I have the honour to be a member, has advised the House, as has the Delegated Powers and Regulatory Reform Committee, that this Bill is a skeleton or framework Bill. It provides a multitude of vaguely delineated powers and duties. It is often impossible for noble Lords to scrutinise these meaningfully because their meaning is so unclear

The Bill is also an instance of a growing tendency in the Government’s legislative practice to create “soft law”—that is, guidance, rules and directions which are not susceptible to parliamentary scrutiny but are, in, effect binding. It also creates “hard law”, which is not susceptible to parliamentary scrutiny, as in the Henry VIII power in Clause 15, but is subject only to the negative resolution procedure.

This manner of legislating is part of a pattern documented in a long series of reports by the Constitution Committee, drawing the attention of the House to Henry VIII clauses which are convenient to the Executive but subversive for parliamentary democracy, and to the creation of delegated powers enabling Ministers to bring in significant policy change subject to little or no parliamentary scrutiny. The DPRRC has reported that the Bill contains no less than 155 delegated powers.

What is egregious, however, are the autocratic powers that the Bill accords to the Secretary of State. I had sought to indicate that I wished to speak on the previous group, but there was some confusion, and the Chair did not invite me to do so. I hope therefore that noble Lords will bear with me as I take us back for a moment.

As the noble Lord, Lord Hunt, and others, noted Clause 39, entitled

“General Power to Direct NHS England,”


states:

“The Secretary of State may give NHS England directions as to the exercise of any of its functions.”


It goes on to say:

“The directions that may be given include a direction as to … when or how a function is, or is not, to be exercised”


and

“matters to be taken into account in exercising a function.”

The autocratic power provided by Clause 39 is exacerbated by Clause 64, which repeals the duties previously placed on the Secretary of State to respect autonomy within the NHS.

The mischief, which the noble Baroness’s amendments in this group seek to mitigate, is further compounded by Clause 40 and Schedule 6, which confer comprehensive powers on the Secretary of State in regard to reconfiguration of NHS services. Effectively these three clauses together confer upon the Secretary of State, with only the exception stated at proposed new Section 13ZD in Clause 39, mainly in relation to clinical discretion, absolute power over the NHS.

We are told that the Secretary of State has no intention of bossing NHS England around and that he needs powers to sort out failures within the NHS system. In our earlier debate today on continuing care, and in his response to the last debate, the Minister said it is not the Government’s intention to interfere unduly in the affairs of ICBs. However, in a letter to the Times today, referred to by the noble Baroness, the chief executive officers of the King’s Fund, NHS Providers and the NHS Confederation warn of the danger that the Bill may lead to politicisation of decision-making in the NHS, of the kind which the noble Lord, Lord Warner, described in the last debate and which the noble Baroness, Lady Cumberlege, has just explained. The fact remains that Clauses 39, 40 and 64 make the Secretary of State untrammelled master of the NHS.

With such power comes temptation, not least for Department of Health officials. What might “unduly” mean in practice? The Secretary of State may often refrain from interfering, but too often he, or officials acting in his name, may not. In any case, to accord the Secretary of State such excessive power is wrong in principle. The legislation should strike an acceptable balance between the autonomy which NHS leaders and managers need if they are to do their jobs well, responding as they judge appropriate to local needs, and a due accountability of the NHS to the Secretary of State and, through him, to Parliament. Here, however, we have neither. The Bill concentrates power over the NHS in the hands of a Minister who is poorly accountable to Parliament in the exercise of much of his power.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Lord Howarth of Newport (Lab) [V]]

My Lords, I too would have preferred to speak later in the debate. I am sure that there are other noble Lords who have tabled amendments from whom the Committee would have preferred to hear nearer the outset, but I understand that the Deputy Chairman of Committees does not the flexibility to allow this, and I am of course grateful for the opportunity to speak.

As we know, the Covid-19 pandemic has led to a substantial rise in mental ill-health across the general population. Not surprisingly, this effect has been particularly hard-felt among unpaid carers. Many carers, already leading confined lives, have struggled with lockdown. Young carers have suffered with the loss of schooling and, when schools returned, trying to ensure that the people they care for have been shielded from the virus. Many were unable to go back to school for fear of bringing the virus home. Many from disadvantaged backgrounds did not have the digital resources to enable home schooling to be effective.

As we consider these amendments, I would like briefly to bring to the attention of noble Lords some remarkable work with carers being developed in Kingston upon Thames by Kingston Carers’ Network. KCN provides a range of crucial services to some 4,000 adult carers and 700 young carers from five to 18 years old. An important element of this support is nurturing the creativity of carers. Recognising, from the SHAPER research programme, which I mentioned in a previous debate, the positive effects of the arts on mental health and well-being, KCN is working with Rosetta Life to introduce three arts programmes for carers. Poetry and conversation provides co-created poetry workshops for adult carers, demystifying poetry and making it easier to approach. Participants have written and shared online poems about the challenges of caring. They have all said they would like more sessions.

KCN is trying to secure funding to participate with Rosetta Life in an international project called HeArt of Care. The idea is to offer master classes in dance, art making, photography, poetry and song writing for both adult and young carers. The project will create a website showing positive representations of the grace, dignity, compassion and joy of care and caregiving. The groups that would participate with KCN are a network of carers from Tyneside, Bristol Black Carers, Caregivers India and the End of Life Care Centre, Rwanda.

Another project is Room2Dream. Rosetta Life has a partnership with Dream a Dream in India, which works with 18 to 21 year-old carers who live in extreme poverty. This is one of 16 partnerships between young people in the UK and young people in refugee camps, conflict zones, hospices and adolescent psychiatric care. Young carers are offered poetry and song-writing workshops; they are given classes in film-making to enable them to create films about their poems and songs, and share them with other young carers not only in India but in, for example, Rwanda, Syria, Zimbabwe and Nepal. KCN is currently trying to secure funding for this initiative too.

These fledgling projects highlight the potential of the arts to improve the lives of unpaid carers and to enable them to have a voice that will be heard nationally and internationally. We should ensure that the system created through this legislation will underpin such ways to strengthen the resilience of carers and, beyond that, to enable them to flourish. These amendments will help. I look forward to a time when public policy, far more reliably and generously, supports unpaid carers to have better lives while they do their crucial work.

[Baroness Pitkeathley (Lab)]

My Lords, for 25 years, I have been trying to bring the voice of carers into your Lordships’ House. I know, from the great amount of support I have received over those years, that the whole of your Lordships’ House agrees that we should recognise and value the enormous contribution of millions of people caring for families and friends, who do so much to support others, often at great personal cost. I make no apology for repeating the statistics: up to 13 million carers provide unpaid care worth £530 million a day, or £193 billion a year. They are indeed the backbone of our health and care system.

Ensuring that the health system identifies and supports carers in return is the least we can do, and that is the objective of the four amendments to which my name is added in this group. I am also very supportive of Amendment 217 moved by the noble Baroness, Lady Wheeler. I thank her for her excellent introduction. I am strongly supportive of Amendment 219 and am grateful to the noble Baroness, Lady Brinton, for tabling it.

As Members will know, I have long called for the NHS to have stronger duties towards unpaid carers. The NHS depends heavily on the role and input of people who care unpaid, usually family and friends but quite often neighbours, in supporting people with long-term conditions and disabilities in the community. Research by Carers UK shows that more than half of carers say they feel invisible to the NHS; more than half of carers providing significant amounts of care were not involved in decisions about hospital discharge; and the majority of carers, over 60%, were not given enough information and advice to care safely, at the point of hospital discharge, for the person they care for.

Placing a duty on the NHS with regard to carers is needed, as there is currently neither a systemic nor systematic approach towards carers in the NHS. As the noble Baroness, Lady Brinton, pointed out, a duty to carers would help greater integration between services. Currently, local authority social care sees carers as equal partners in care and very much part of the system, whereas carers can be invisible to the health system. This duty would also lead to direct benefits to the health system, including improved health and well-being, improved satisfaction with services, and reduced admissions and those all-too-frequent readmissions. More practically, it would avoid the significant omissions of carers in recent guidance on hospital discharge, to which I now turn.

Amendment 221 proposes to insert a new clause to protect carers’ rights. As it stands, Clause 80 is of great concern. Almost incredibly—I can hardly believe I am saying this—it removes from carers rights that have been hard fought for over many years and which were enshrined in the Care Act 2014 and the Community Care (Delayed Discharges etc.) Act 2003. Many of your Lordships will remember those Acts and the many hours we spent on them.

This Bill repeals the legislation giving carers the fundamental right to have an assessment and ensuring that the services provided make sure that discharge from hospital is safe. There are endless horror stories about unsafe discharges and this issue has been debated extensively in another place. Hospital discharge is one of the most difficult points in the care system for unpaid carers, who often take on caring responsibilities without the right support.

Through Clause 80 in the Health and Care Bill, the Government are seeking to pass legislation that would enact the discharge to assess approach mentioned by my noble friend Lady Wheeler, which has recently been deployed by NHS England, by repealing, as I said, the Community Care (Delayed Discharges etc.) Act 2003. Amendment 221, in my name and supported by the noble Lords, Lord Young of Cookham and Lord Warner, and the noble Baroness, Lady Tyler of Enfield—to all of whom I am very grateful—would ensure that, in advance of any patient being discharged from hospital, the relevant NHS body must identify and consult any carer who is about to provide or will be providing care. This would ensure that the local authority is not the only statutory body with responsibilities towards carers and that the NHS plays its equal part. It would also ensure that the carer in question has services that protect their well-being and that assumptions are not being made that they will automatically provide care—assumptions that are made far too often.

Carers’ organisations are extremely concerned that the inclusion of carers in this guidance for discharge to assess is insufficient to protect carers’ rights. I ask the Minister, on what evidence basis is the move to discharge to assess better for unpaid carers? The evidence seems to be that discharge to assess is worse. The Government’s own impact assessment of the Bill recognises that it will lead to many carers having to take on even more care. It states:

“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”


Are the Government really suggesting that carers go on to benefits—the carer’s allowance, for example, which is only £67 a week and recognised as a pathway to poverty?

I am sure the Minister is also aware that if a carer gives up work to care, they do not immediately get any benefits. That leaves them without any income at all. Or are the Government suggesting in their impact assessment that discharge to assess is better for carers by suggesting they take unpaid leave from work, in the process passing on the costs of hospital discharge to employers? Giving up work to care hurts the economy and costs businesses money in terms of recruitment and retention. So I would really like the Government to explain the thinking on this one, because I have lost count of the number of Ministers who have stood at the Dispatch Box and agreed with me that the best thing you can do for carers is enable them to stay in paid work as long as possible. So will the Minister please explain that to me—or better yet, be prepared to explain it to a group of carers that I am happy to arrange to meet him?

I turn now to Amendment 225, on the definition of a carer, which will be spoken to by the noble Baroness, Lady Hollins. It may seem unbelievable, but when I started in the carers’ movement in the mid-1980s, the word “carer” was unknown. Yes, it was not even in the dictionary, and every time you typed “carer”, your spellcheck corrected it to “career”. Now the word is everywhere and, in a way, the unpaid carers movement is a victim of its own success, because everyone wants to be called a carer and it is increasingly used to describe paid care workers. Carers themselves actually have difficulty in identifying themselves as a carer—“I’m not a carer, I’m a mother, a husband, a daughter”, is what they say. This lack of identification is an obstacle to them accessing support, so a proper definition is vital and it must be all-encompassing, as set out in the amendment. We fought very hard to get these definitions acknowledged in statute, for example the Care Act 2014, and it is important that the word “carer” encompasses parent carers and young carers.

I point out that the purpose of this amendment is not to create anything new. It uses only existing legislative references. Its purpose is to ensure that the definition of carers in the Bill is entirely clear, so I see no possible reason for the Government to reject it.

Health and Care Bill

Baroness Pitkeathley Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, Clause 142 seeks to amend Section 50 of the Health Act 1999 in relation to making changes to the professional regulatory landscape through secondary legislation. It will simultaneously widen the scope of Section 60 and extend the Secretary of State’s powers. At the moment the Government have powers to bring new professions into regulation or make modifications through secondary legislation but can remove a profession from regulation only through primary legislation. The clause enables the removal of a profession through secondary legislation and makes it clear that a profession would be removed from regulation only when it was no longer required for the purpose of protecting the public.

I went and had a little look at the record. I am sorry the noble Earl is no longer here today, because in 2009 I was in Grand Committee, as the then Health Minister, and we were discussing the regulation of psychologists. I have to tell the Committee that that was not an uncontroversial matter. We had gone through whole series of regulatory reforms that year, as noble Lords who have been following these matters will be aware. I said at the time that

“the reforms set out in this draft order aim to enhance public confidence in the ability of the healthcare regulatory bodies to protect the public and deal with poor professional standards.”—[Official Report, 5/5/09; col. 510.]

The debate we had that day included the noble Earl, Lord Howe, who, at the time, was in my position now, as it were. He also welcomed the fact that the regulatory regime was in existence and, although he rightly had questions about the regulation of psychologists, which was indeed a controversial matter at the time, he did not question the need for public scrutiny of professional regulation.

That is why I have tabled the Motion that clause 142 not stand part. I am left wondering what exactly the yardstick will be, what criteria will be used to determine when there is no longer a need to protect the public and who will decide those criteria. Does professional regulation not also help to facilitate consistent common standards? What is lacking at the moment is any sense of the principles that will be allowed to inform decisions to bring professions into regulation or remove them. Will patients’ organisations, representative bodies or regulators be consulted on any new criteria applied? I can tell the Minister that in 2009 we went through weeks and weeks of discussion and consultation about every single independent regulatory body that this House helped to establish.

I suggest that the system works and there is absolutely no need to change it, though perhaps the Minister can tell me why there is such a need. Moving the power to abolish professions to secondary legislation is not putting scrutiny and transparency at the forefront. I have to say that doing so without putting any indication on the record of which professions are being considered does not instil confidence that this power grab has been considered properly or is in fact needed at all. The implications for the devolved nations, particularly Scotland, are also important but it was clear from discussions in another place that they had not been addressed. Perhaps they have by now, and the Minister would like to tell us what the outcome of that consultation is.

At the risk of repetition, there is a consistent theme in the Bill of seeking greater powers for the Secretary of State without parliamentary oversight, for reasons that are quite unclear. I beg to move.

[Baroness Pitkeathley (Lab)]

My Lords, I declare an interest as a former chair of the Professional Standards Authority. I was happy to go down memory lane with my noble friend on the Front Bench.

When thinking about professional regulation, we always have to bear in mind—I hope the Minister will be able to convince the House that this is what the Government bear in mind—the protection of the public. It is never about the glorification or protection of a profession; it is always about the protection of patients and the public.

The Professional Standards Authority developed the concept of right-touch regulation, whereby you identify the problem before the solution, quantify and qualify the risks, get as close to the problem as possible, focus on the outcome and use regulation only where necessary. I draw the House’s attention to the very successful project of accredited registers, which the Professional Standards Authority has developed in order to have, as it were, regulation at a lesser level than the very tight regulation that is necessary for some professions. You should keep it simple; the system is far too complex at present. You should check—as we always must with legislation, but it seems to me that we do it far too seldom—for unintended consequences. You should also review and respond to change, and the Government are doing just that with the proposals.

However, I must echo the caution of my noble friend on the Front Bench regarding the new powers for the Secretary of State to deregulate as well as regulate professions. We know that the risk profile for different occupations changes over time and a more agile method of responding is sometimes necessary. I hope that is what the Government have in mind. However, I emphasise, and I hope the Minister will reassure me on this, that a commitment to keeping patients safe must guide any decisions made to deregulate professions. There must be a robust and independent process to ensure that decisions are made after a clear assessment of risk—and I emphasise “independent”.

If the Secretary of State has the power to abolish regulators by secondary legislation, will there not be a threat to the independence of the regulators? If they know that the Secretary of State can abolish them at a stroke, as it were, might they become too focused on pleasing—or, rather, on not antagonising— whichever Government are in power, instead of, as I have stressed, working always and solely in the public interest? I hope the Minister will assure the House that that is the Government’s intention.

[Lord Young of Cookham (Con)]

My Lords, Clause 142, which comes under the heading “Professional regulation”, deals with the regulation of healthcare and associated professions. One of the objectives of the Bill is to integrate health and social care, and I very much hope that under the heading “associated professions” it will be possible to look at the registration and regulation of social care as well as those who work for healthcare.

Noble Lords may remember a brief exchange three weeks ago at Question Time when I asked the Government what plans they had to regulate and register social care. I was grateful for the reply, which outlined the welcome support being extended to the social care workforce. It also mentioned a skills passport, but the Minister was silent on the issue of a register.

I pressed the Minister and pointed out that Scotland, Wales and Northern Ireland already have a registration scheme for their social care workforce, and that if we are truly to integrate health and social care, as the Bill seeks to do, we need to have parity of esteem between health staff and social healthcare staff with improved pay, working conditions and career opportunities—much of which was mentioned in the debate we have just had. A registration scheme could facilitate the professionalisation of the social care workforce.

We then had an interesting exchange, in which the Minister mentioned a voluntary register and the need to assess the skills of the existing workforce, 56% of which has no qualifications. He said that he was consulting on whether registration should be mandatory and was concerned that mandatory registration might cause people to leave the sector. However, I do not believe that that has been the experience in other parts of the UK.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Lord Kamall (Con)]

My goodness—I thank noble Lords for their brevity. I am afraid that I shall not be as brief as I would want to be. I would like to confine myself to single-word answers, but I do not think that would give the reassurance that noble Lords are looking for.

I begin by thanking all noble Lords who have engaged with me on this, especially the noble Baroness, Lady Brinton, and the noble Lords, Lord Clement-Jones and Lord Hunt. As they know from our discussions, this issue is very close to my heart and something I feel very strongly about, so I welcome their pressing the Government on this and their continuous engagement—in fact, right up to this morning. I do not think that this is the end of that engagement but I hope to give some reassurances. I completely understand the interest in the integrated care boards’ power to disclose information that is personal data. I hope I will be able to clarify some of the intentions.

New Section 14Z61, inserted by Clause 20, recreates the section that applies to CCGs, which sets out the circumstances in which CCGs are permitted to disclose information obtained in the exercise of their functions. The clause in question already restricts ICBs’ powers to disclose information, by limiting these to the specific circumstances set out in the clause.

In addition, the existing data protection legislation, including UK GDPR, provides several key protections and safeguards for the use of an individual’s data, including strict rules and key data protection principles for the sharing of personal data. Health data is special category data—that is data that requires additional protections due to its sensitivity. For this type of data to be processed lawfully, a further condition must be met as set out in UK GDPR and the Data Protection Act.

In addition, the common law duty of confidentiality applies to the use of confidential patient information. This permits disclosure of such information only where the individual to whom the information relates has consented, where disclosure is of overall benefit to a patient or is in the public interest—for example, disclosure is to protect individuals or society from risks of harm or where there is a statutory basis for disclosing the information or a legal duty, such as a court order, to do so.

Every health and care organisation has a Caldicott Guardian—a senior person responsible for protecting the confidentiality of people’s health and care information and making sure that it is used properly. Caldicott Guardians decide how much information it is appropriate to share—they may decide that even legally permitted information may not be shared—and they advise on disclosures that may be in the public interest. They act in accordance with the eight principles, which are the framework to ensure that people’s confidential information is kept confidential and used appropriately. The UK Caldicott Guardian Council works closely with the independent statutory National Data Guardian, whose role is to advise and challenge the health and care system to help ensure that the public’s confidential information is safeguarded securely and used properly.

Nothing in the clause overrides the range of requirements in law that provide key protections and safeguards for the use of an individual’s personal data. I can also confirm that NHS England’s power to issue guidance for ICBs will apply to their functions relating to data sharing, and that may be a helpful route in making it clear to ICBs what their duties and responsibilities are, in respect of any confidential data they may hold, in a way that illustrates how legislation applies.

The effect of the amendment is to prevent the effective operation of the clause as drafted. This would prevent the ICB from effectively discharging its functions where it may be necessary to disclose personal patient data, including investigating complaints, making safeguarding referrals for patients whose welfare is at risk, complying with court orders and assisting criminal investigations. It would also risk a confusing data-sharing system where different rules apply to different organisations.

On Amendment 116, once again I thank the noble Lord, Lord Hunt of Kings Heath, for bringing this issue before this House. Our aim is to put data and analytics at the heart of NHS delivery and remove incoherence in the organisational leadership, for the benefit of patients and their outcomes. It is a solid recommendation for improving how health and social care data is used more effectively, closing that gap between delivery and the use of data to inform and improve services.

I understand that noble Lords fear that the movement of the statutory data functions from one world-class arm’s-length body, NHS Digital, to another, NHS England, which indeed runs the NHS itself, would result in a decline in the exercise of those functions. We feel that this fear is perhaps overexaggerated but I would be very happy to continue discussions on this.

However, that movement would be accompanied by the transfer of several thousand expert staff and all their supporting expertise and technology, along with the existing statutory safeguards, which would be preserved. NHS Digital and NHS England have a history of very close working on data, most recently of course in how the management of data has underpinned efforts to defeat Covid-19, through the protection of shielded patients and the management of data on vaccinations. The Government and Parliament held NHS Digital to account for the delivery of its functions, and they will continue to hold NHS England to account for the delivery of any functions which transfer.

As to the concern about a conflict of interest, the data collections which NHS Digital undertakes are the result of directions from either the Secretary of State or NHS England, and obviously the direction-making power of the former will continue to be relevant should the proposed merger take place. Directions include details of how data must be shared or disseminated. NHS Digital is required to publish details of all such directions and maintain a register of the information it collects. There is also a rigorous process for external data access requests and audits of how data is used.

The intention here is that such safeguards would continue when the functions transfer to NHS England and would make it very difficult for the organisation to suppress or otherwise refuse to make available any data which it is required to collect and disseminate in fulfilment of its statutory role. I hope, perhaps overoptimistically, that I have reassured the noble Lord, Lord Warner—clearly not—in terms of suppressing information.

There is a rigorous process for external data access requests. NHS England’s Transformation Directorate will be assuming responsibility for NHS Digital’s functions, and for accomplishing the alignment of delivery and data proposed in the Wade-Gery review. There will continue to be external, independent scrutiny—for example, by the Information Commissioner and the National Data Guardian—of the use by the NHS, and NHS England in particular, of health and care data.

I hope that I have given noble Lords some reassurance that these important issues have been considered by the department, and that they will feel able not to move their amendments when reached. Of course, given my strong interest in this subject, I am prepared and happy to have further conversations to make sure that we close any remaining gaps and for me push the department and NHS England as appropriate.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

I now invite the noble Baroness, Lady Brinton, who is taking part remotely, to reply to the debate.

[Baroness Brinton (LD) [V]]

My Lords, I thank all noble Lords who have contributed to this debate, in particular for their brevity given the long day we have ahead of us. In particular I thank the Minister for his helpful response.

My Amendment 60 is very specific and I asked for a specific response. The Minister has confirmed what I wanted to hear: that health data is special category data, and that it requires additional protections due to its sensitivity, which would be applied by any ICB when it has had that request. The other key phrase that stuck out was that nothing in the clause overrides the range of requirements in law to provide those key protections and safeguards regarding individual personal data. I am therefore satisfied on that basis.

Briefly on Amendment 116, which is much broader in scope and very important for the future of data use with the proposals that are coming down stream, I agree with all the comments that were made by noble Lords. One particular thing that stood out for me was the proposal of the noble Lord, Lord Clement-Jones, that the publication of the Goldacre review is vital before any final version of Data Saves Lives is made public.

We will not get to a vote on Amendment 116 today. However, could the Minister assist the House and confirm that guidance will be issued, rather than a looser “may be” issued? With that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Farmer (Con)]

My Lords, I want to respond to Amendment 64.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

Amendment 64 has already been spoken to.

[Lord Farmer (Con)]

But I did not withdraw it. I was waiting for the response; nor did I have a chance to say whether or not I would divide the House.

--- Later in debate ---

[Baroness Brinton (LD) [V]]

My Lords, I shall speak shortly to Amendment 168, but want briefly to refer to Amendment 80, moved by the noble Baroness, Lady Cumberlege, and so eloquently introduced by her, and supported across the House. Workforce planning is critical. Frankly, it is surprising that Ministers resisted amendments in Committee which called for formal long-term workforce planning for the NHS, social care and public health to be embedded in legislation.

The noble Baroness said that that current arrangements can be a bit like sticking plasters, and she is right, but it is not just about the use of bank and agency staff but about planning healthcare professional education. We all know how long it takes to train a doctor, but most of the other professionals also cannot just be turned on and off at election time. There have been too many times when this Government have said at elections that they would suddenly magic thousands of extra doctors and nurses. We need to build timescales into that workforce planning. The noble Baroness also talked about population demand, but I want to make another point: this is not just about population numbers; it is also about demographics. We will need more GPs and hospital professionals managing our rapidly ageing population. If we do not encourage people to go into those specialisms, we will not be able to look after our population in 10, 15 or 20 years’ time.

I also agree with the noble Baroness, Lady Cumberlege, that if government resistance is because of the funding implications with delivering such a plan, that is very short sighted. Not planning will be even more catastrophic. Amendment 80 is more modest in nature but is a critical minimum to achieve a commitment to plan effectively for the NHS, social care and public health.

I turn now to Amendment 168. Given that there are a number of speakers on this important group, I will be very brief here too. The amendment from the noble Lord, Lord Hunt, echoes the one he laid in Committee, and I am pleased to have signed both. We heard in Committee about this frustrating loophole that meant that it was not possible for certain members of the Royal College of Physicians of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Emergency Medicine to be added to the list of colleges which could be involved in the appointment of NHS consultants. This is now slowing down the appointment of NHS consultants. I am very pleased to support the amendment and hope the Minister will be able to give good news to the House on this amendment too.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

Now I invite the noble Baroness, Lady Masham, who is also speaking remotely, to speak.

[Baroness Masham of Ilton (CB) [V]]

My Lords, I speak to Amendments 80 and 168. Amendment 80 is very important and I thank the noble Baroness, Lady Cumberlege, for being so persistent. Throughout the country there is a workforce shortage in hospitals, the community and social care. At Second Reading, the noble Baroness, Lady Harding, warned that:

“Unless expressly required to do so, government will not be honest about the mismatch between the supply and demand of healthcare workers.”—[Official Report, 7/12/21; col. 1814.]


This amendment would give an independently verified assessment of the workforce numbers to meet the growing needs of the population.

Patients who have serious, rare and specialised conditions such as Guillain-Barré syndrome, spinal injuries and all sorts of conditions need expert, specialised staff and equipment so they get the treatment they need. Otherwise, their conditions can deteriorate and result in added costs to the NHS and the taxpayer. Delayed treatment also means unnecessary pain and suffering for the patients. I hope the Government realise the need for Amendment 80.

I was surprised when I received a letter from the Royal College of Surgeons of Edinburgh telling me that, along with the Royal College of Emergency Medicine, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Physicians of Edinburgh, it was excluded by omission from participating in the process of helping trusts in England recruit much-needed consultants. I wonder what the reason for this extraordinary discrimination is. Does England think it is superior? These royal colleges have been contacted by multiple trusts in England seeking help to recruit the necessary surgeons but, unless this regulation is corrected, they cannot help in this process. This sharing of important selection is more important than ever at this difficult time.

The royal colleges of medicine in Scotland have a good reputation worldwide. I have a personal interest in this amendment, as one of my grandfathers trained as a doctor in Glasgow and one of my cousins trained in Edinburgh and is now a professor of microbiology. I hope the Government can rectify this lacuna in the regulations by accepting this amendment.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

Moved by

[Baroness Pitkeathley]

113: After Clause 80, insert the following new Clause—
“Carers and safe discharge from hospital
(1) This section applies where—(a) a person (“the patient”) is a qualifying hospital patient at a hospital, and(b) the responsible NHS body considers that it is unlikely to be safe to discharge the patient from hospital unless care provided by one or more carers is available to the patient.(2) It is the duty of the responsible NHS body to—(a) consult the patient about their preferences regarding their care following discharge from hospital, and(b) take reasonable steps to identify and consult any carer or potential carer of the patient about to be discharged.(3) The NHS body must consult any carer or potential carer identified under subsection (2) to ascertain—(a) whether the carer is able, and is likely to continue to be able, to provide care for the patient needing care, and(b) whether the carer is willing, and is likely to continue to be willing, to do so.(4) Having consulted the carer, the NHS body must cooperate with the local authority in relation to their duties under the Care Act 2014, the Health and Care Act 2006 and the Children Act 1989.(5) For the purposes of this section—(a) a “qualifying hospital patient” means a person being accommodated at—(i) a health service hospital, or(ii) an independent hospital in pursuance of arrangements made by an NHS body,who is receiving (or who has received or is expected to receive) care.(b) a “carer” means any person, including any child under the age of 18, who provides or intends to provide care in respect of a patient to whom the NHS may provide services, but a person is not to be regarded as a carer if they provide or intend to provide care under or by virtue of a contract, or as voluntary work.”Member’s explanatory statement
This provision retains the principle and duty on a hospital, whether it be an NHS hospital or an independent hospital, to ensure that a patient must be safe to discharge from hospital and mirrors carers’ rights which were established in the Community Care (Delayed Discharges, etc) Act 2003.

[Baroness Pitkeathley (Lab)]

My Lords, Amendment 113 focuses on carers and safe discharge for hospital patients. The amendment defines the patient and the carer and is focused on safeguarding the rights of unpaid carers when the person they care for is discharged from hospital. I am grateful for the support of the noble Lord, Lord Young of Cookham, who is sadly unable to be in his place because he is isolating, the noble Baronesses, Lady Meacher and Lady Hollins, and all the other Peers who have expressed it. My thanks go also to Professor Luke Clements, professor of law and social justice at the University of Leeds, for his wise advice on the drafting of this amendment. I am also grateful to the Minister and his officials for the time and effort they have put in to meeting Peers and Carers UK—I declare an interest as its vice-president.

I continue to be amazed at what I am going to say next because, as it stands, the Bill revokes the Community Care (Delayed Discharges etc.) Act 2003, which includes a requirement to consult carers prior to discharge. Thus, for the first time, the rights of unpaid carers will be removed without being replaced by additional or improved rights. Many people, me included, have been fighting to get rights for carers recognised for over 30 years. We first achieved rights through Private Members’ Bills over several Parliaments and under Governments of all colours. No one could have been more delighted than I when these were later enshrined in government legislation such as the delayed discharges Act and the Care Act, but here there is no question of enhancing carers’ rights.

On the contrary, the Government’s own impact assessment of the Bill recognises that carers may be asked to take on additional hours of care, which could mean they have to reduce their hours of work or give up paid work entirely. It states that while the Government anticipate that in some cases

“carers may choose to … There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier.”

I should point out that “may choose to” is a late addition to the impact statement. Originally, it said simply “There is an expectation that” carers may allocate more time, with no reference to choice at all.

Perhaps this may remind some of your Lordships that the Secretary of State for Health has said that families must be the first port of call for caring responsibilities. I always found that puzzling, since families always are the first port of call. Whatever reforms we make, the bulk of health and social care will continue to be provided by the so-called informal army of family, friends and neighbours. The contribution they make to the economy is now estimated at £193 billion annually—almost the cost of the NHS itself.

The point of hospital discharge is often the most vulnerable time for patients and carers. Carers UK research shows that more than half of carers were not involved in decisions about discharge, two-thirds were not listened to about their willingness or ability to provide care, and 60% received insufficient support to protect the health either of themselves or of the person being discharged. Anyone who speaks to a carer will hear horror stories about hospital discharge. I am reminded of Norman, a man in his late 70s and a carer for his wife who has multiple disabilities—Norman spoke to a group of your Lordships by Zoom recently. His wife went into hospital for a procedure, which was a relief to him as he himself had been diagnosed with cancer and was having chemotherapy. While he was actually hooked up receiving the chemo, he received a call from the hospital saying that they were discharging his wife. He received no prior notice that she was ready to be discharged. “Okay,” said Norman, “but could you just wait till I get home to receive her?” “No,” was the reply, “she is already in the ambulance on her way home.” Norman’s response was not, “Well, please take her back again,” as I suspect many of us would have been tempted to say, but to ask the oncologist whether the drip that he was on could be speeded up so that he could get home quickly. As it was, he arrived home to find his wife had been left in a bed, frightened and alone. Many of your Lordships will have heard similar stories.

This amendment would place a duty on the NHS to ensure that carers are consulted and to check that they are willing and able to care, as well as ensuring that the patient is fit to be discharged—I emphasise not just medically fit but fit to be at home—and putting the right support in place. It would avoid the experience of another carer, who said, “We knew she was on her way home only when she was on hospital transport. We had to drop everything and rush around to try to get a commode just so she could go to the toilet when she got home.”

The Government suggest that rights in primary legislation will be replaced by statutory guidance. I have been assured of this by the Minister and officials, and I know they are sincere in the belief that this will be more than adequate. But guidance, however strongly worded, is not the same as having concrete rights in legislation that can be quoted and used. I cannot express how disappointed I and all who work with carers are that the Government are for the first time rowing back on the rights of carers, for which we have fought so hard.

With the leave of the House and at his request, I shall quote some of what the noble Lord, Lord Young of Cookham, would have said had he been able to be present. As your Lordships know, he is especially concerned about young carers. He says—

[Baroness Penn (Con)]

My Lords, while I have a lot of sympathy with my noble friend Lord Young wanting to contribute to the debate, in order to do so, he needs to be in it.

[Baroness Pitkeathley (Lab)]

I apologise to your Lordships. I will just say that the noble Lord said it was a “backward step” to leave only guidance.

This is not only morally wrong but very short-sighted. If a discharge is unsatisfactory, the inevitable consequence is readmission—and think how much that costs. The Government believe that the new discharge to assess procedures will deal with discharge problems, but carers report that discharge to assess takes place as the discharge itself is happening, with no chance to order suitable devices, equipment or changes to the home, let alone to consult the carer. I must point out that two earlier versions of the discharge to assess guidance did not even mention carers and did so only after pressure from Carers UK.

I am sorry to say that the Government and the NHS have form on ignoring carers. They were not mentioned in the health and care White Paper, which set out the foundations for the Bill and only marginally in the integration White Paper, yet I have never heard any Minister say anything other than that carers are essential, that they must be valued and respected and that we owe them a debt of gratitude. Similarly, I have always heard Ministers and officials agree that carers must be supported to combine paid work with caring to help them financially now and to avoid future poverty, yet here we are with a Bill which states baldly that carers must allocate more time, requiring a reduction in work hours and associated financial costs. I asked the Minister at Second Reading and I ask him again: does he expect carers to go on benefits in order to provide care?

Carers and patients need this amendment badly, and I hope the Minister understands that. I have no doubt of his good intention, but I fear for the plight of carers and patients if he does not accept the amendment, which is essential if we are to ensure that all carers, including young carers, are not overlooked in the hospital discharge process but retain concrete rights and recognition in primary legislation. I beg to move.

[The Deputy Speaker (Baroness Fookes) (Con)]

The noble Baroness, Lady Brinton, is taking part remotely, and I invite her to speak.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I thank all noble Lords who have spoken and particularly thank the noble Baroness, Lady Pitkeathley, for her continuing championing of carers.

Discharging people as soon as they are clinically ready is increasingly recognised as the most effective way to support better outcomes. The evidence shows that the “discharge to assess” approach reduces time spent in a hospital bed and supports people to remain independent at home wherever possible. Although the hospital discharge clause does not mandate discharge to assess, the Government are supportive of local areas that choose to implement this best practice model. We believe that carrying out long-term needs assessments at a point of optimum recovery leads to a more accurate evaluation of people’s abilities and needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover. Requiring social care needs assessments to be completed within two weeks of discharge would not necessarily be in the patient’s best interests.

I understand that noble Lords are concerned about safe discharge from hospital and safeguards for patients and carers. However, relevant NHS bodies are expected to ensure that patients’ health needs are met safely in hospital and in the community. Local authorities also have duties to assess patients’ and carers’ needs and, where relevant, ensure that appropriate support is put in place for them. In addition, the CQC monitors, inspects and regulates services to make sure that they meet the fundamental standards of quality and safety, which are set out in legislation.

The Government do not believe that these amendments are in the best interests of either carers or patients. They would create new burdens on NHS bodies and local authorities, and Amendment 144 would create new penalties for local authorities for failing to carry out assessments within a specified timeframe. In doing so, the amendments would undermine the entire purpose of Clause 80 and hinder the ambition, shared across the health system and by Members of this House, to ensure that people are discharged in a safe and timely manner. The creation of significant bureaucracy between local authorities and the NHS risks damaging relationships and would go against the spirit of integrated working that this Bill seeks to support. We agree, however, that accountability and transparency are key to ensuring that local systems deliver high-quality and safe discharge services, which is why we welcome the fact that NHS England now publishes hospital discharge data.

Additionally, a duty on NHS bodies and local authorities to co-operate with one another is already set out in Section 82 of the NHS Act 2006. To specify how this duty will apply to hospital discharge, we are co-producing guidance with organisations including Carers UK, the Carers Trust and Barnardo’s. This will set a clear expectation that, where appropriate, unpaid carers should be consulted during the discharge process. As noble Lords have acknowledged, this guidance will be statutory; NHS bodies and local authorities will therefore be required to have regard to it or risk claims for judicial review potentially being brought against them. We agree that, where we can do more to “think carer” across the NHS, we should. With this in mind, we can commit that we will consult with the public, staff and carers on including a stronger reference to the role and regard of unpaid carers in the NHS constitution, for which a review will be launched this year.

I am also mindful of the specific concerns that have been expressed in relation to young carers. As well as using the guidance to include a much broader definition of carers than that set out in Schedule 3 to the Care Act, I can inform the House that the new Explanatory Notes for the Bill provide clarity that young carers and parent carers are included within the everyday definition.

In response to a number of noble Lords’ questions, I repeat what I said earlier: our new guidance includes a broader definition of carers than Schedule 3 to the Care Act, which applied only to adult carers of patients requiring a long-term needs assessment before discharge. Adult carers’ rights to an assessment of their own needs, under Section 10 of the Care Act, and young carers’ rights, including those as part of the Children Act, remain unchanged under the proposed hospital discharge arrangements.

We believe that statutory guidance is more appropriate here. At the moment, current guidance is not statutory; this will be statutory. Where a young carer is identified, or staff have concerns, the local authority should be notified. Local authorities must then carry out a needs assessment if it appears that the young carer needs support. We are not imposing new duties on local authorities; the existing legislative duties placed on local authorities to assess and meet patients’ and carers’ eligible needs remain unchanged.

I recognise the good intentions behind Amendments 113 and 144, but we believe they would have the effect of undermining the ability of local areas to adopt best practice for hospital discharge. I am not confident when I say this, but I hope that, having heard what I have said, noble Lords may feel able not to press their amendments when reached.

[Baroness Pitkeathley (Lab)]

My Lords, I thank all noble Lords who have spoken and the Minister for his responses, particularly about consultation and about broader definitions and identification of carers. I was a little puzzled when he mentioned transparency, since the latest updated version of the impact assessment says:

“The level of support required as well as the associated impact on work hours and salary would vary significantly case-by-case and the impact on unpaid carers is difficult to assess. We are therefore unable to quantify the impact on unpaid carers at this stage.”


I am very concerned that, if we cannot quantify the impact on carers, we cannot really do anything to support them.

The problem with guidance, good practice guidance or statutory guidance, is that we have been here before. I have seen other bits of guidance—the identification of carers by GPs, breaks for carers—I have seen those bits of guidance fall away when another priority takes over. Therefore, I am very concerned that we need to have the rights of carers enshrined in primary legislation, and I wish to test the opinion of the House.

Health and Care Bill

Baroness Pitkeathley Excerpts

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

My Lords, the noble Lord, Lord Howarth, is taking part remotely. I invite him to speak.

[Lord Howarth of Newport (Lab) [V]]

My Lords, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on bringing back this issue on Report; I was sorry not to be able to speak in Committee. We must also be grateful to the academics at the University of Surrey who followed the money and, a year ago, published their exposé, Careless Finance.

The noble quartet of the noble Baronesses, Lady Bennett, Lady Brinton, Lady Tyler and Lady Altmann, has previously provided the House with an excellent analysis of predatory financial manipulation of the social care sector by hedge funds and offshore entities. I just want briefly to underline certain points.

What we have been seeing is legalised theft. Financial operators are leeching, for their own profit and benefit, substantial proportions—16% to 20%—of the funds provided for social care by both the public purse and self-funding individuals; “grey gold”, the profits thus extracted are sometimes called. This racket, unacceptable at any time, has been perpetrated during a period when the Government have chosen to underfund social care lamentably. Because sufficient budgets are not available to local authorities, many people who should be eligible for social care are not receiving it and many who are in social care are experiencing threadbare services. The workforce is depleted and miserably paid.

It is in the context of this crisis that unscrupulous operators have been ripping off a broken system. In their greed they are putting the business survival of providers at risk. As Christine Corlet Walker, Angela Druckman and Tim Jackson of the University of Surrey have reported, we have been seeing a large-scale transfer of money from the poorest to the richest. As they say,

“the ongoing cost is the silent tragedy of the most vulnerable in society.”

Meanwhile, the Government have made little or no effort to address the problem, which indeed they do not appear to acknowledge exists. The noble Earl, Lord Howe—for whom personally I have great regard—in his response on behalf of the Government in Committee, said that the noble Baroness’s amendment to improve transparency was not proportionate or necessary. He suggested that the Care Act 2014 and the CQC’s market oversight scheme should take care of any problems. However, since the abuses continue, it is obvious that these policies have been ineffectual with regard to them.

The noble Earl also said that it was for local authorities to shape, oversee and manage the market, but only the Government can act to close opportunities for rogue investors to carry out these abuses. He suggested that BEIS was on the case, but BEIS has been inexcusably dilatory.

The Government claim to be fixing social care, but all they are doing is providing a meagre and delayed increase in funding for social care by dint of imposing extra tax on the poor. The only reform they are truly interested in is to relieve the affluent of the need to sell their homes to pay for care.

Even the Government are now exercised about the abuses by Russian kleptocrats. So too they should be very seriously exercised by the abuses of the social care system by unscrupulous investors. Can they not see the evils that have flowed from marketising the social care sector? As the noble Baroness has just said, on Wednesday, the House will debate the Economic Crime (Transparency and Enforcement) Bill. We should also be debating an overdue “social care financial abuse (transparency and enforcement) Bill”, brought forward by the Government.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is also taking part remotely. I invite her to speak next.

[Baroness Brinton (LD) [V]]

I thank the noble Baroness, Lady Bennett, for tabling these amendments, slightly amended from Committee, and in particular for responding to the Minister’s concerns that the first amendment had perhaps been too broad and would catch the day-to-day business of companies. That cannot be said about Amendment 145.

I also want to pick up a point that the noble Earl made in Committee. He said:

“A company’s working capital, by its nature, is money that is used to fund day-to-day operations in general, and one cannot associate a particular pound with a particular business activity.”—[Official Report, 4/2/22; col. 1161.]


Yet the Charity Commission does have the ability to intervene in the event that a charity, or series of charities stretches—shall we say?—those rules. Its Internal Financial Controls for Charities, CC8, provides very specific guidance. Indeed, in recent years, one charity, the Plymouth Brethren Christian Church, was investigated for a circular set of donations. Each donation to each different body was paid tax relief out of the public purse, coming back to serve the schools that the adults at the community church sent their children to. The way that was structured was similar to a financial instrument employed by the few companies that abused the funding they received from the public purse for social care.

The noble Earl also referred to the Treasury guidance Managing Public Money and Accounting Officer Assessments. I have been through that, too. It is very interesting and clear. Under the heading

“expenditure which may rely on a Supply and Appropriation Act”,

Managing Public Money lists

“routine administration costs: employment costs, rent, cleaning etc … lease agreements, eg for photocopiers, lifts”.

It does not say: “Re-charging sister/parent/daughter companies for large amounts of borrowing and the interest thereto”, which is what has been happening.

It is important that we start to debate how public funding is spent by these companies, particularly those overseas, when we cannot see how that money is spent. I also support the other amendments in the group, which ask for a review of financial regulation. It is interesting that the Treasury guidance refers constantly to the Nolan principles, which are absolutely vital in talking about transparency and responsibility when spending public money. These amendments might not be quite right to deliver that, but it would be good if there were a review under way.

The other thing we must have when these companies spend large amounts of public money is publication of their full accounts. They should not be able to hide behind very short, superficial accounts from overseas.

Health and Care Bill

Baroness Pitkeathley Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, in very much welcoming my noble friend’s introduction to her amendment, I refer to Motion A, to which the Minister referred in his opening remarks and to which he has brought Amendment 11A in lieu. This relates to potential conflicts of interests within membership of committees or sub-committees appointed to exercise commissioning functions on behalf of integrated care boards. This is important because those committees will form the basis for what is widely described in the NHS as place-based decision-making.

The Minister in Committee—which must seem a long time ago to him—referred to his hope

“that the ICB will exercise functions through place-based committees, where a wider group of members can take decisions”.—[Official Report, 20/1/22; col. 1852.]

This was in relation to the series of amendments from the noble Lord, Lord Crisp, about primary care and the need for it to be round the table. I see the potential of that, but as they are given increased responsibilities, there are questions about how placed-based committees are to be held to account. It is important that they are transparent, have robust governance arrangements in place and are properly held to account. Equally important is to ensure that potential conflicts of interest are avoided —particularly that members with private sector interests who could undermine the independence of decision-making should not be appointed to such bodies.

I welcome the Minister’s amendment in lieu but there are a couple of points I want to raise with him. First, in Lords Amendment 11, to which the Commons disagreed, there is in proposed new subsection (c) a reference to members of a committee or sub-committee of the integrated care board obtaining

“information that might be perceived to favour the interest or potential interest”

of that member. However, in the noble Lord’s amendment in lieu there is no reference to access to information which could undermine the independence of the health service. Is this point regarding information implicit within his own amendment? Can he assure us that the issue must be covered when each ICB sets up its governance arrangements?

I also want to ask him about the chair of an integrated care board committee or sub-committee. His Amendment 11A follows the approach of the Bill and prohibits the chair of an ICB appointing someone who would undermine the independence of the health service. Can the Minister confirm that no chair would be appointed if they were also someone who would undermine the independence of the health service because of their involvement with the private healthcare sector?

I conclude by reiterating to the Minister that there are clearly more general conflicts of interest within integrated care boards that are going to prove challenging in the future. With NHS healthcare providers playing an increasing role in the commissioning and funding of local services through ICBs, there is a blurring of the line between those procuring a public service and those being paid to deliver it. It is very likely that conflicts of interest issues will emerge, with decisions potentially taken to benefit providers, with limited due process and transparency.

It is vital that, alongside the Bill, there are very strong governance arrangements to ensure that ICBs and their committees and sub-committees make decisions in the best interests of local populations. I hope the Minister agrees.

[Baroness Pitkeathley (Lab)]

My Lords, I rise to express support for the Motion in the name of my noble friend on the Front Bench but principally to comment on Motion E. I know that the Minister and his officials listened carefully and took note of the strength of feeling about unpaid carers expressed on all sides of your Lordships’ House in Committee and on Report. I am most grateful for that strength of feeling and the wise advice given by this House, which has resulted in what I would describe as a satisfactory outcome in the form of a new amendment.

The other place has replaced the amendment passed by a large majority in your Lordships’ House and put forward its own, which was accepted there and brought to us today. I am most grateful to the Minister and all his officials for the work that they have put into drafting this amendment, and for the understanding shown for the position of unpaid carers and the importance of involving patients and carers in discharge planning, as soon as is feasible in that process.

I seek the Minister’s further assurance on a couple of other points. The first is that parent carers are not excluded when a disabled child is discharged from hospital. This is referred to in the guidance when their own discharge is happening but not when the child they care for is being discharged. We need to ensure that services across different disciplines are married up. I know that other Lords and colleagues will be seeking assurances about this and about young carers.

My second point is that the guidance contains references to checking that a carer is willing and able to care. I hope that the Minister may be able to enlarge on this a bit. There will be occasions when the carer’s own situation makes caring impossible: they may simply be too ill to take on the responsibility, for example, however willing they may be. We need to ensure that no pressure is brought to bear in such a situation and that no assumptions are made in the discharge process about the carer’s ability. We have all seen too many examples of where this was not acknowledged, inevitably leading to the readmission of the patient.

We all seek to make hospital discharges as safe and efficient as possible, while not exerting undue pressure on the most important components: the patient and their carers. Of course, we shall need to monitor carefully how the guidance is applied, and we have to be sure too that carers are informed about their rights. I hope that the Minister’s department will promote suitable publicity as the reforms are implemented. I assure him that I, Carers UK and, I am sure, other Peers will be constantly on the case to ensure that carers and patients can trust the discharge system to support them.

[Lord Lansley (Con)]

My Lords, I want to contribute to this group and speak to Motions G1, G2 and H. As context, I say that my noble friend, the Front Bench team and their Bill team have gone to enormous efforts to try to reach a number of compromises; at this stage it is incumbent on us to recognise that. If we were to send further amendments to the other place, we should confine ourselves to doing so only in circumstances where we believe that there is a realistic prospect of reaching a compromise on them.

I was a signatory to Amendment 80. There was a compelling reason to send that to the other place and ask it to consider again the question of excluding local authority contributions from the calculation of the social care cap. The reason was, very straightforwardly, that it was introduced in the Commons at a late stage in the passage of the Bill. At that point—on Report—MPs themselves complained vociferously that they had not had an opportunity to consider it for any period of time, so it has gone back. In sending it back, we have done our job, but I am afraid I see no evidence that the Government, given their majority in the Commons, are going to reconsider the central question of excluding local authority contributions from the cap. I think they are wrong but, particularly given the substantial financial consequences it would entail, it would be wrong for us to think that we could insist—and if we cannot insist, we should not send it back.

Where Motion H is concerned, I am grateful to the noble Lord, Lord Warner, who kindly moved my amendment—which was entirely in my name— as at that point I was down with Covid for the first time. I would not now insist on that provision, not least because it entails financial privilege. From my point of view, it was to say, “Would you please get on with it?” My noble friend said in his introduction that the Government are getting on with it. I can promise him that, if they do not get on with it by the latter part of next year, we will be complaining and will be right to do so.

I turn to Motion G. Why have I tabled Motion G2? I confess that I have done it not in the expectation that we will send it to the other place because, as my noble friend said, that would be to intervene with quite a significant argument at this very late stage. However, I think the development of these arguments on the part of the Government has been quite interesting. First, they said, “Well, we are doing something and something is better than nothing.” Indeed, something is better than nothing, but it is not necessarily the best thing. So we said, “Hang on a minute. You said you would do this last September and introduce the cap.” We thought they were doing something that was very much in line with the Dilnot recommendations, even if the cap was set at a higher level, but it then turned out that they were not and that they were excluding local authority contributions.

On the financial implications of that, as the noble Baroness, Lady Wheeler, set out very well, if it saves £900 million, from whom principally is that saving to be derived? It is from those who are otherwise the beneficiaries of local authority contributions and who, as a consequence, are not asked to pay towards the cap. As the noble Baroness said, particularly if they have dementia and long-term care needs, over the years their assets will be substantially more depleted than would otherwise have been the case. I do not think we should kid ourselves: the Government are planning to do something which, in my view, exacerbates significantly the inequitable characteristics of the way the cap works. It is regressive in its effects.

Curiously, when they were debating this at the other end, they looked at the risk that incorporating local authority contributions would mean that, in different places across the country, different local authorities would provide different levels of contributions and therefore people would end up with some inequity in the amount they had to pay. This is no doubt true, but it feels like the Government shrieked at the mouse of inequity that would result from that and ignored the elephant of inequity that is in the removal of the local authority contribution to the cap.

I am always rather amused when the Minister is briefed—this happened at the other end as well—to tell us about what happened in 2012 or 2014 on the Care Act. Yes, Andrew Dilnot looked at whether the cap should be expressed as a percentage of people’s assets and did not recommend it, but that is not what is proposed in Motion G2. The model that was rejected was that there would not be a cap figure and that the cap would simply be expressed as a percentage—the so-called limited liability model. We did not support it, but the Dilnot model also had a lower cap and its structure, with the changes in the means test, would have had the effect that nobody would have lost more than about 45% of their assets. The structure the Government are now bringing in will mean that people with relatively few assets will continue to lose, in effect, 100% of their assets. As the noble Baroness, Lady Wheeler, correctly said, people who have substantial assets will only ever lose a modest proportion of those. It is not fair.

I am going to retreat, but I tell my noble friend that I think the Government should say, and I hope he will say in response, that if this turns out to be inequitable, which I believe it will, and the Government want to find the money to do something about it, they have the means to do so. I think that using the concept of a percentage of one’s assets is a legitimate way of doing it. Finally, just to put this on the record, my noble friend said that we cannot do that and that it is unworkable because people’s assets are constantly changing. No: if you do it in the context of the cap, people whose assets are significantly in excess of the requisite calculation of the amount of relevant assets would never have to be checked again. It is therefore perfectly possible to do it in relation only to those people whose financial means have to be regularly assessed for the purposes of the local authority means test in any case.

It is entirely workable; it could be done. Frankly, I think that with the passage of time the Government will realise that it is a better way of managing the cap; saying, for example, that 50% or 60% of one’s assets may be required to meet the cap but never as much as 100%. So I am retreating, and I encourage noble Lords not to insist on something that has substantial financial implications and on which the other place—as was quite clear from the debate—is not willing to shift. I hope my noble friend will say that, if this or indeed any future Government were to decide that they wanted to ameliorate the regressive effects of the exclusion of local authority contributions, there are other routes to doing so. Setting a percentage of the assets of people who are subjected to the means test as their contribution to the cap would be an effective way.

--- Later in debate ---

[Baroness Wheeler (Lab)]

I wish to test the opinion of the House.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

I should inform the House that if Motion G1 is agreed to, I will be unable to call Motion G2 by reason of pre-emption.