Health and Social Care Bill

Baroness Thornton Excerpts

Monday 7th November 2011 Lords Chamber

[The Countess of Mar]

My Lords, I support this amendment. If ever there was a case against inequality of treatment, it is for people with ME. I am saying ME rather than ME-CFS because that is too long. The postcode lottery for people with ME has been highlighted in two inquiries by the All-Party Parliamentary Group for ME over the last five years. People are constantly writing to Ministers complaining; the noble Earl himself knows, because I keep complaining about it. In 2002, the Chief Medical Officer announced an award of £8.5 million to set up specialist centres for ME. These have just fizzled out. Once the £8.5 million ring-fence money had been spent, the first thing that was cut was services for people with ME. The trouble is, they are blighted with the distinction of being yuppie flu sufferers—people who swing the lead. They are not: this is more and more often now being proven to be a physical disease with mental side effects, as cancer and MS and a whole lot of other chronic diseases are. It is time the inequality of treatment for people with ME-CFS was obliterated.

Perhaps the worst inequality is in services for children. There are virtually no ME services for children in the UK, particularly children who are bed-bound and housebound, and this is a disgrace on our society. These children—very often high-achieving children—are suddenly struck down; they can no longer have social relationships because they are too ill or too tired to cope; they cannot continue with their education and yet there is no medical attention for them. I am sorry—I am suffering myself at the moment, so I am not being very comprehensive in what I am saying—but it does need to be said that these people need to be looked after. I support the amendment in the name of the noble Lord, Lord Warner.

[Baroness Thornton]

Eight noble Lords have amendments down in this group about inequalities. Many of them seek to do the same kinds of thing. I intend to speak to Amendments 22, 25A, 27A—I mention in passing that my noble friend Lord Beecham has his name against Amendment 29—31, 32, 68A, 68B, 69B and 120A.

I will quickly run through these amendments. Amendments 21, 22, 23 and 25 strengthen the duty on the Secretary of State to reduce inequalities in the health service. The Bill currently requires the Secretary of State simply to “have regard to” this need. Amendment 21 says “is required”—the strongest of these amendments—followed by Amendment 22 with “seek”, and Amendment 23 with “act with a view”. Amendment 25A says it is the Secretary of State’s duty to reduce inequalities between people and “between communities” in England. I will return to that in a moment. In Amendment 27A, we on this side are seeking to add detail to the inequalities that the Secretary of State has a duty to reduce. We argue that,

“inequalities in health status, outcomes and experience, … the outcomes achieved … by … those services”,

and,

“ability to access such services”,

must be taken into consideration. My noble friend Lord Beecham has added his name to the amendment in the name of the noble Lord, Lord Rooker. It adds a qualifier to the duty to reduce inequalities:

“to ensure that greater patient choice is not accorded a higher priority than tackling health inequalities”.

Amendment 31 says that, in an instance of a conflict of duties on commissioners or regulators, the duty to reduce inequalities is paramount. Amendment 32 says that, as part of this duty, the Secretary of State must publish comprehensive, publicly available data on the extent to which inequalities have been reduced across the NHS. Amendment 68A says that the duties of the NHS Commissioning Board as to the improvement of public health should be extended to cover the duty to reduce health inequalities. Amendment 68B concerns each local authority having to take steps to reduce health inequalities between people and between communities. Amendment 69B again relates to public health: the Secretary of State must also seek to reduce health inequalities between people and communities. Finally, Amendments 120A, 190A and 190B are about the national health Commissioning Board having a duty to reduce inequalities in health status. Noble Lords will get the theme that is running through here.

Clause 3 places a duty on the Secretary of State to have regard to health inequalities, and that is an aim and aspiration that we would, of course, support. However, the problem with this clause is that that duty is not capable of effective fulfilment. For example, public health analysis and needs assessment require comprehensive area-based population data. This is the basis of the current health system mechanisms for resource allocation and for the commissioning of public health measures designed to prevent or ameliorate systematic inequalities both between groups of residents in an area and across and among areas, with respect to the access of resources, services, and their use and outcomes. Census estimates, adjusted for factors such as age and deprivation, are used as the denominator for the population in such analyses. Our problem with this Bill is—and I would be grateful if the Minister would address this issue—that public health analysis will not be able to be carried out in this way in future because of the proposed shift from area-based PCTs to GP-listed clinical commissioning group structures. Therefore, denominators which allow GP registrations to promote reductions in inequalities might be inherently problematic because of continuous enrolment and disenrolment, which affect accuracy, as does patient selection. The denominator will not be representative of all the people in a geographically bounded area. Without a geographic population focus, it will not be possible to monitor inequalities. I realise that part of these issues is also addressed in amendments needed to Clauses 7 and 10, but they are points which we would like to have addressed here.

Amendments 120A and 190A address the argument that local authorities and clinical commissioning groups should have a duty to reduce inequalities not only in their areas, but also in England. We think this makes sense because, for example, somewhere like Lambeth or Bradford—where I come from—could make huge improvements within area inequalities but still lag miles behind the rest of the country. Amendment 25A calls on the Secretary of State to act to reduce inequalities between people and communities. The word “communities” is important in this context because it speaks to local authorities. Given that public health inequalities are going to be in their jurisdiction, it seems that this is an important matter. Therefore, we would like the Bill to address within-area geographical inequality because it refers to inequalities between groups and communities of groups, not just an individual’s access and receipt of services. We believe that the Government should set out how they intend to use non-legislative levers and incentives to translate the duties in the Bill into practical action and how the NHS will be accountable for progress in reducing health inequalities. Our Amendments 31 and 32 tie in with this. We think we need to understand where those levers will exist, how they will be used and how the Government will measure inequalities.

As noble Lords will realise, Amendments 120B and 190B also arise directly out of the Equality Act and concern individuals and discrimination in the receipt of services. I know the noble Baroness, Lady Greengross, will address Amendment 33, which is tabled in her name. We believe that Amendment 120B addresses the general duties of the national Commissioning Board, which are vital parts of the picture. If the duties to deliver and secure provision of the health service are split between the Secretary of State, the board and CCGs, corresponding duties to reduce inequalities must also be exercised by all three, and these amendments seek to put that in the Bill.

[Lord Turnberg]

My Lords, I had not intended to speak to these amendments, but it is clear that we have had problems associated with inequalities for a very long time, and they persist. Many years ago, we had the Black report on inequalities in health, which was a major landmark, and since then we have had Sir Michael Marmot and his marvellous book The Status Syndrome pushing away at the inequalities in health, and my noble friend Lord Layard and his book on happiness and the inequalities in life in general. There is no doubt that the effects of inequalities are very severe. We see quite marked differences in health and life expectancies in communities adjacent to those where life expectancy is very high. We have some communities where several years of life are lost. The effects are very severe indeed. The reasons why there are such inequalities are multiple. They are certainly way beyond the ambit of a health Bill. Clearly there are factors outside health services that make the difference. Nevertheless, it is important that we have within a health Bill recognition of that fact and of the need for those within a health service to take account of inequalities and make recommendations as a result of them, so I am very much in favour of these amendments. We should have them in the Bill.

--- Later in debate ---

[Baroness Thornton]

My Lords, perhaps I may respond very briefly from these Benches. I took the Committee through our amendments at a gallop, so perhaps I may make two points very quickly. This debate has illustrated the problem that these amendments seek to address, and indeed it was illustrated by criticism from the King’s Fund and the Commons Health Select Committee, referred to by the noble Lord, Lord Patel. The duties, although welcome, are too narrowly drawn and, crucially, do not extend to local authorities. I might say that the noble Earl’s party does have form in this matter. We know how a previous Conservative Government treated the Black report, ready in 1980 just after the Conservatives came to power. It was not to Mrs Thatcher’s liking and was never printed. Only 260 photocopies were distributed in a half-hearted fashion on bank holiday Monday—my noble friend says that he has two of them. I know that the coalition Government would not allow that to happen and I welcome the change of heart that is shown in this part of the Bill.

However, my understanding is that the weighting given to health inequalities in the formula of allocating NHS funding has been reduced from 15 per cent to 10 per cent. Can the Minister confirm that that is indeed the case? What signal does it send about the Government’s priorities and their commitment to dealing with health inequalities? It seems to me that the commitment to dealing with health inequalities could be remedied. There is a need for a widened definition of health inequalities to include reducing inequalities in the health role, and of access for the Secretary of State, the NCB and clinical commissioning groups. There is a need to specify and define inequalities, particularly inequalities between groups and communities rather than individuals, and there needs to be a strong duty on local authorities as public health duties are transferred to them.

Finally, the message here is that the Minister needs to look carefully at these amendments and that the Committee is very interested in engaging with the Government to strengthen this part of the Bill. I look forward to the noble Earl’s remarks.

[Earl Howe]

My Lords, the Government are committed to reducing health inequalities, to ensuring equity and fairness across the health service, and to improving the health of the most vulnerable in our society. On top of the pre-existing general public sector equality duty, for the first time the Secretary of State will have a specific responsibility to,

“have regard to the need to reduce health inequalities”,

whatever their cause. This duty will be backed by similar duties on the NHS Commissioning Board and clinical commissioning groups. Taken together, these duties will ensure a focus on the reduction of health inequalities throughout the system, with special consideration paid to outcomes achieved both in relation to NHS services and to public health.

While many noble Lords seek to amend these new duties, we believe that they are right as they stand. The duty will not be an add-on or an afterthought. The Secretary of State, the Commissioning Board and clinical commissioning groups will be required always when carrying out any and all of their functions to have regard to the need to reduce inequalities. I should also point out here that the duty is purposefully non-specific. Amendments 21, 22, 23, 25, 27 and 27A all aim in different ways to strengthen the wording of the Secretary of State’s duty. While I fully accept that the reduction of health inequalities must be a priority for the Secretary of State, it must also be recognised that the causes of health inequalities and the remedies to them are complex and multidimensional and require a multisector approach. Factors such as poverty, education, employment and culture require solutions which extend far beyond the Secretary of State’s or the Department of Health’s remit or capabilities. The duty on the Secretary of State must recognise the nature of the challenge we face in reducing health inequalities, and it must be deliverable. We should hold the Secretary of State to account only for the things that he is responsible for. The duty in the Bill is drafted with these factors in mind.

For the same reasons, I am afraid that I cannot accept attempts to amend the wording of the duty to “act with a view to” or “seek to reduce”. While I understand the noble Lord’s attempts to make the duty as strong as possible, “have regard to” captures the intention of the legislation; that is, that the Secretary of State must consider the need to reduce inequalities in every decision that he takes about the NHS and public health. The approach that the unamended clause sets out is the right way to achieve this. As it stands, the Secretary of State would have to have regard to the need to reduce inequalities in any decision that he made. Contrary to what some have thought, having regard is a strong duty which shows the Government’s commitment to the reduction in health inequalities. The duty to “have regard to” has established meaning and has been used in other important legislation, such as the duty to have regard to the NHS constitution in the Health Act 2009. The courts can and do strike down administrative actions in cases where decision-makers have not had regard to something in contravention of a statutory duty to do so. For example, they have struck down decisions of public authorities for failure to have due regard to their equality duties. The courts have said in relation to public sector equality duties that the duty to have due regard must be exercised with rigour and an open mind—it is not a question of ticking boxes. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that due regard has been paid before any decision is made.

Perhaps I could clarify for the benefit of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, that the duty in Clause 3 already applies to public health functions. The expression,

“functions in relation to the health service”,

covers both NHS functions and the Secretary of State’s public health functions. “The health service”, as that term is used in the 2006 Act, is not limited to the NHS.

Amendment 27, tabled by my noble friend Lady Williams, would have the effect of making the Secretary of State and the Department of Health responsible for reducing inequalities generally, beyond those relating to health. We cannot accept the amendment because there are many areas, such as wealth inequality, which are rightly not within the department's responsibility, and therefore to place a duty on the Secretary of State for Health to reduce these would not be practical.

Amendment 27A, tabled by the noble Baroness, Lady Thornton, would specify that the Secretary of State’s duty in reducing inequalities should be in relation to health status, outcomes achieved, experience and the ability to access services. The amendment is modelled partly on the wording of the Commissioning Board’s and CCGs’ inequality duties. While I agree with the intention behind the noble Baroness’s amendment, I can reassure her that the reference to “benefits” in the unamended clause already covers these aspects and so the amendment is unnecessary. The reason that the Secretary of State’s duty talks of benefits that people can obtain from the health service is that it includes public health as well as the NHS. The Secretary of State's duty is deliberately broader than the duty of the board and CCGs.

Amendment 29, tabled by the noble Lord, Lord Warner, aims to ensure that promoting patient choice is not given a greater priority than reducing health inequalities. I understand that some people have concerns that greater choice and competition could exacerbate inequalities, and I am aware that there are particular concerns that choice could benefit the better-off at the expense of others. However, our proposals on choice are intended to ensure that all patients are given opportunities to choose. We do not believe that the assertion that the better-off will benefit more from choice is borne out by the evidence. Indeed, recent evidence suggests that choice has the potential to improve equity. For example, some noble Lords may have seen the study published recently by the Centre for Health Economics at the University of York, which found that,

“increased competition from 2006 did not undermine socio-economic equity in health care and, if anything, may have slightly increased use of elective inpatient services in poorer neighbourhoods”.

So I do not believe that there are any grounds for thinking that improving choice and tackling health inequalities are incompatible. They should be mutually reinforcing.

Amendment 31, tabled by the noble Baroness, Lady Thornton, would introduce wording to ensure that if the duties placed on commissioners or regulators came into conflict with any other duty, the duty to reduce inequalities would prevail. I fully share the intention of making sure that these organisations do not ignore the goal of reducing inequalities. However, the inequality duty must already be complied with when bodies are exercising all their other functions. Therefore, I cannot agree that other duties placed on commissioners or regulators would conflict with their general duty to have regard to the need to reduce inequalities.

Amendment 32, also tabled by the noble Baroness, Lady Thornton, seeks to place on the Secretary of State a duty to publish evidence about the extent to which inequalities have been reduced annually. I fully agree that the NHS and the Secretary of State should be accountable for their efforts to reduce inequality. Clause 50 already places a duty on the Secretary of State to report annually on the NHS. Since tackling inequality will be such an important legal duty throughout the NHS, we have every expectation that inequalities will be a key reporting theme in the Secretary of State’s annual report.

Amendment 33, tabled by the noble Baroness, Lady Greengross, would place a duty on the Secretary of State to give particular regard to certain factors and characteristics when having regard to inequalities. Amendments 120B and 190B, tabled by the noble Baroness, Lady Thornton, would amend the Commissioning Board’s and clinical commissioning groups’ inequality duties, in new Sections 13G and 14S of the 2006 Act, to include the same list of characteristics and factors. I hope that I can persuade the noble Baronesses that there is no need for these amendments. First, it is unnecessary to prescribe the characteristics and factors to be covered by the Secretary of State, the Commissioning Board and the clinical commissioning group duties. The current, unamended duties would already cover health inequalities arising from any characteristic or factor. On top of this, as we have already discussed, the Secretary of State and the NHS are already bound by the general Equality Act 2010. Section 149 of that Act lists the characteristics covered in paragraphs (a) to (i) of the amendments. Therefore, the Secretary of State and NHS bodies will already have to give specific consideration to these characteristics. In not being specific in the duty on the Secretary of State, the Commissioning Board or CCGs, we are keeping the duty with regard to health inequalities as broad as possible, so that no characteristics which drive health inequalities are inadvertently omitted.

As the noble Baroness made clear, there are two new factors not listed in the Equality Act but proposed by the amendments. These are geographical variation and socioeconomic variation. However, it is unnecessary to specify these factors either. They are already wellestablished dimensions of health inequalities and will be taken into account under the duties on the Secretary of State, the NHS Commissioning Board, and CCGs. They are also already specified in the NHS outcomes framework, subject to data considerations.

Apart from being unnecessary, the amendments are also in a real sense undesirable. While I am sure that this is not the intention, their effect would be to give pre-eminence or priority to certain characteristics or factors. We are dealing here with the perennial problem of “the list”; by implication, anything not on the list is less important. Instead, the Government are committed to ensuring that all dimensions of health inequalities are encompassed by the proposed duties, a principle that I am sure all noble Lords can agree with. All factors leading to health inequalities should be considered, with the weight given to them depending on particular circumstances.