Health and Social Care Bill

Baroness Thornton Excerpts

Wednesday 9th November 2011 Lords Chamber

[Baroness Cumberlege]

I am very grateful to the noble Baroness, Lady Williams, who has put the matter eloquently and correctly. I am very much in favour of my noble friend’s wish to try to get some negotiation. As the noble Baroness said, many of us feel that that is the way forward.

This is a difficult issue. It is trying to get the balance right between, on the one hand, the accountability and responsibilities of the Secretary of State, and, on the other, the freedom of those managing the service to do so without interference. Many of us are trying to achieve that balance.

I should like to refer to the letter that the noble Lord, Lord Warner, mentioned because I want to get it into Hansard. My noble friend urges us to consider three key factors in his letter and I quote the second one. He said that,

“we fulfil the policy intention that the Secretary of State should not be involved in the day to day operations of the NHS. Ministers should set the overall strategy, hold national arms-length bodies rigorously to account for their performance, and have the requisite power to intervene if the system is not operating effectively”.

Those are my views entirely.

I am now going to say something that I know is extremely unpopular in the Palace of Westminster: politicians are really neither loved nor trusted by the public to a great extent and I have to say also that they are seldom admired by those working in the NHS. There have been too many decisions that have been taken without any evidence to support them, resulting in very long delays in things such as reconfigurations. Those delays have jeopardised patient care. Reversals have been made at the last minute, ignoring well founded clinical advice from clinicians saying to us that the service is unsafe, yet the position of an inadequate, unsafe hospital or service continues because of political interference. That undermines the confidence of managers to manage.

I want to mention Kevin Barron, who is the Labour MP for Rother Valley—

[Baroness Thornton]

I do apologise to the noble Baroness, but I absolutely cannot resist asking her whether she thinks that the public love quangos more or less than politicians, since the intention is to put our National Health Service in the hands of an extremely large quango. So is it Andrew Lansley or David Nicholson?

[Baroness Cumberlege]

My Lords, I have not seen any evidence from MORI or any other polling organisation that has put that question to the public, so it is left in the air. I have seen the MORI poll that very recently showed that 88 per cent of people who were questioned said that doctors were the most trusted profession to tell the truth, whereas only 14 per cent thought that the truth was told by politicians. I think that is really sad—sad for democracy and sad when it comes to trying to build the confidence of people who are in charge of the National Health Service.

One real problem, which exists even if the same party is in power for a length of time, is a lack of a consistency of leadership. The Secretaries of State are here one minute and gone the next. Really successful organisations—I am thinking of schools, hospitals, companies—benefit from continuity in leadership. I read the other day that Sir Alex Ferguson has been in charge of Manchester United for 25 years. If we had had that inspiring leadership for a real length of time, I wonder what difference it might have made to the NHS. Since 1997 we have had seven Secretaries of State. Frank Dobson was in charge for 17 months. Alan Milburn, the longest serving Secretary of State, served for four and a half years and some might think that he was the most successful. At least he had time to draw up the NHS Plan, which made an impact on the service and he had time partially to implement it. John Reid—now the noble Lord, Lord Reid—Patricia Hewitt and Alan Johnson all served two years, and Andy Burnham less than a year.

Those of us who have served in government know, as Ministers, that you take up your post with enormous enthusiasm and unrealistic aspirations. You want to do things. Above all, you want to improve the NHS. You believe that you are in charge and that you can set policy. But, no, the first thing that happens is that you inherit the policies of your predecessor, which are not your policies that you know and love. They are not yours, but you do your very best to implement them. Then you have a chance to set your own policy but, before you have had time to implement it, you are off again. In the mean time, you are expected to make some very courageous, unpopular decisions about institutions that you may know very little about and about people whom you have rarely met. So how do you exercise judgment and build relationships when you are there for such a very short time, possibly just two years? That contributes to an NHS that gets confused and fed up and is mistrustful of its masters.

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Let us look at the UK and the imposition of what the central chain of command does. It manifests itself in performance targets. Targets are always popular—they are brilliant and, what is more, the NHS always meets them. It may take some time but, usually, if you tell the NHS to manage something and hit a target, eventually it will get there. In practice, a project board forms. Some hospitals have as many as 500 projects going on at the same time. That was the number that was found by one consulting agency. It found an enormous number projects under way to deliver these targets, often with external consultant help from the centre or the assistance of external consultants such as the big five. It can be demonstrated very easily that when a project is going on it is possible to reduce admissions, for example, by 60 per cent, with positive effects on cost, quality of outcomes, follow-up and discharges. It is possible to reduce the proportion of beds occupied by patients who are medically fit for discharge by 25 per cent to 30 per cent and so on.

[Baroness Thornton]

I am sorry to interrupt the noble Baroness. I am listening carefully to her because she has great experience. Is she not talking about transferring the setting of targets, projects or whatever from the responsibility of Andrew Lansley as Secretary of State to Sir David Nicholson as head of the NHS Commissioning Board? If the problem, as she sees it, is the setting of too many targets and projects—although I do not know what that has to do with Clause 4— I am not sure what safeguards there are to stop that from happening anyway.

[Baroness Murphy]

Perhaps I may respond. It is a direct result of that chain of command that goes from the Secretary of State, to Ministers, to Sir David Nicholson and to everyone inside the Department of Health. It is a direct result of the impact on the management system.

[Baroness Thornton]

My point to the noble Baroness is that I do not believe that it will change.

[Baroness Murphy]

I am sorry but I think it is the direct result of Clause 4. I shall continue my theme, if I may.

It is vital that we do not get lost in the impact of what the setting of targets does to the management structure. If the Government set goals and we have key performance targets, at the moment hospitals, services and local commissioners have no responsibility for their strategic direction or goals. I talk as someone who has been a strategic health authority chairman and I know exactly what micromanagement of health authorities and trusts means. I will come on to foundation trusts and why it has not worked entirely with them.

The targets are passed down through commissioning organisations without any understanding of the capacity to deliver. No sooner has one directive been issued than another set of politically interesting goals arrives as an additional directive—without removing the first. All this has no connection to how healthcare is delivered at the front line to patients and it creates a sort of parallel universe of management that never really touches operational patient care.

In mental health services, the care programme approach was an absolutely classic example of something that was implemented without any thought being given to how the service was really delivered and it therefore took 10 years to put in place. In successful businesses, managers focus their time and attention on operational realities—on how to help staff solve problems and improve day-to-day operational performance. This is the front-line machine that implements management decisions. However, in the NHS, managers are not interested in the front line. At every level, they focus upwards to the next level and, as a health authority chairman, I was pretty horrified to find that at least 25 per cent to 30 per cent of my CEO’s time was taken up at meetings and other activities, to which we referred as “feeding the beast” of the Department of Health or of Ministers. I understand that in many trusts some 50 per cent of this time is taken up with managing the centre.

The preoccupation with satisfying the centre leaves front-line staff—unsupported and often demoralised—to cope with broken systems, unless they have a substitute in a charismatic clinician who leads them instead. That is why high-flying specialist units work exceptionally well and why everyday bog-standard services are often a disgrace. That is why meeting targets is often a game. Data are manipulated and money is diverted from one front line to another to achieve a target temporarily until the Minister’s attention is diverted to the next enthusiasm.

The four-hour waiting time target at A&E is a very good example. This was an admirable target—some would say it was not tough enough—but it was achieved only with horrendous diversion of funds from other front-line areas and a reordering of clinical priorities, but with no real change in hospital behaviours or any understanding by staff as to why they were doing it. Metrics for the purpose of compliance are almost always different from those that one would wish to collect to understand and improve patient care pathways. A&E services targets were achieved at the cost of diverting increasing numbers of patients into medical assessment units and we have ended up with an 11.8 per cent increase in emergency admissions and vast numbers of patents being admitted from A&E who would not previously have been admitted—all in the interests of reducing a particular target, but without any fundamental change in the way that hospitals are run.

That is what this autonomy clause is meant to assist—we seem to me to be forgetting that. We must have organisations within the health service which set their own objectives, manage them properly and start concentrating on the front line of patient care. There is ample accountability in the Bill to ensure this along with the proper regulatory system. I know that autonomy can lead to machismo behaviour and that it can go wrong. We do need tough regulation, but we need tough light-touch regulation, with a mandate that has been agreed beforehand. With that, we will see that this autonomy clause is utterly vital to the way that we should be developing the health service.

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[Baroness Wall of New Barnet]

My Lords, I had not intended to participate in the debate because I did not arrive until it had started, but I have been here a long time now and want to share with people how it feels on the ground. What the noble Baroness, Lady Cumberlege, said is absolutely true. I do not envy the noble Earl because I think that the analysis that the noble Lord, Lord Darzi, gave is exactly how it feels. There is that dilemma. The noble Baroness congratulated us on now having a decision from the Secretary of State. We do, but the decision is bound up in another clause, which brings about another kind of action that we must take. It has not removed anything; it has just given us another dilemma and delay in what we must do.

I say to the noble Lord, Lord Mawhinney, that I only wish that everybody in his position did what he did. Though I have five years of experience, I am not medically qualified; I am just somebody who cares about the people that I have responsibility for as the chair. My experience from those years was often of political interference. I ask noble Lords to forgive me for being emotive about this, but it is absolutely true. We had consultation for many years, authorised by the independent review body. The Secretary of State at the time, Alan Johnson, said, “Whatever the review body says, we will go with it”. That was perfect. Then we had a hold-up and a change of government. The new Secretary of State, Andrew Lansley, then came to our trust and said, “This isn’t going to happen. We want people on the ground to be able to say, ‘Yes, if I want this service, I can have it here, and, yes, if I want my baby here, I can have the baby here’”. Both those services were questionable in terms of their clinical reliability. They were not unsafe, because we would not be doing it otherwise, but certainly questionable. And so we started all over again.

A year later, we have gone through not a consultation but the four tests, where the clinical members of the local authority team went through the same process as was involved in the previous consultation—is it clinically safe or is it not? It took a year or so for the Secretary of State to come back with another response to that. That was another stall until, just a matter of weeks ago, we received a letter from the Secretary of State addressed to the local authority—because it had put the case to him—which said, “Yes, I think that the BEH strategy should go ahead, but, actually, I think that you should consider other things as well”. Those things cut right through the BEH strategy.

Local MPs are very open about the fact that they have interceded and expressed their views. They are very proud to say, “I’ve spoken to Andrew about this and I’m not going to have that”. This goes on all the time—I am not sure that this is inappropriate language to use in this House I ask your Lordships to forgive me if I am saying things that I should not; I am just trying to tell noble Lords what it feels like as somebody who is working in the health service on behalf of patients. That is how it feels. I do not know whether political interference by the Secretary of State, as I see it, can be removed by having the national Commissioning Board make the decisions, because my view would be that MPs will always go to whoever can make an intervention in Parliament. That goes for MPs from all parties; it is not about the present Government.

I do not envy the noble Earl in the decisions that he has to make about this, but the view of the noble Lord, Lord Darzi, is very much attuned to what I see in reality. There is a dilemma; there is that interference. But, on the other hand, there are major decisions that have to be made that can be made only by the Secretary of State in the sense of his or her national perspective. I have no words of wisdom, but I have a lot of feelings. Please can we get this right?

[Baroness Thornton]

My Lords, I have added my name to those opposing Clause 4. We have had a very good debate, to which my noble friends Lord Darzi and Lady Wall have brought an element of reality. However, their remarks do not take us from the point of wondering whether this is the right clause in terms of autonomy. They have both succeeded in pointing to the problem that exists, and I am not sure that the Bill solves it.

Autonomy, from the ancient Greek, means,

“one who gives oneself their own law … In medicine, respect for the autonomy of patients is an important goal … though it can conflict with a competing ethical principle, namely beneficence”.

It might be thought that a health and social care Bill would reflect the second part of the above definition—culled, I have to say, from Wikipedia—given the concern for the interests and dignity of patients. However, such is not the case. Clause 4 seeks to insert a new section into the National Health Service Act 2006 under the rubric: “The Secretary of State’s duty as to promoting autonomy”. The clause requires the Secretary of State when exercising functions in relation to the health service, so far they are consistent with the interests of the health service—not, it may be noted, in the interests of patients—to act with a view to securing certain things that the clause then goes on to list.

I had a discussion about this clause with the noble Baroness, Lady Murphy, yesterday or the day before. I say to her that the fact that we both seem to have completely different views of what this clause seeks to do actually tells us something about it and its drafting. We totally disagree about what we think this clause seeks to achieve. That alone should make us think that perhaps we need to go back to look at this clause.

Clause 4 places upon the Secretary of State a duty to promote autonomy, as we have said. We feel that this clause is part of the general shift of the Bill to denude the responsibilities of the Secretary of State, because—viewed alongside of the removal of the Secretary of State’s current powers under Section 8 of the 2006 Act to give directions to PCTs and SHAs—it significantly dilutes the Secretary of State’s powers to influence the provision of health services. Independent legal advice from Stephen Cragg QC, for example, commented on the consequences of Clause 4:

“If the Secretary of State attempts to use his or her powers to impose requirements on commissioning consortia, for example, then there could well be a judicial review challenge from a consortium which opposed the requirements on the basis that they infringed the principle of autonomy in the new Section 1C and could not be justified as necessary or essential. This approach replaces the, more or less, unfettered power that the Secretary of State has to make directions currently to be found in Section 8 of the NHS Act 2006 with a duty not to interfere unless essential to do so”.

The emphasis on autonomy links to the change in the role of the Secretary of State, as was explained wonderfully and adequately by the noble Lord, Lord Marks.

Since the founding of the NHS, the Secretary of State has always had powers of direction and intervention over NHS bodies, which enabled him or her to control the system. While some providers such as foundation trusts could be given earned autonomy—as was referred to by other noble Lords—the Secretary of State retained control through commissioning and the nature of contracts with foundation trusts.

This is a very important clause, and nothing that has been said in this debate makes me think that I was wrong to put my name on behalf of these Benches to the Question relating to clause standing part of the Bill. I appreciate that we will be having a broad discussion of these matters along with Clauses 10 and 1 but, unless the Minister has something very significant to say about how he sees this clause evolving, I absolutely have to agree with the noble Lord, Lord Marks, that this can come out of the Bill because of all the other powers that remain in it, which we will look at in due course.

Finally, I thank the Minister for his letter to me, which was circulated around the House. I thank him and his staff and the noble Baroness, Lady Williams, and her colleagues for the fact that we are finding a way forward to having a discussion which I hope and trust will bear fruit.

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[Lord Walton of Detchant]

My Lords, I am glad that the noble Lord, Lord Willis, has raised this extremely important matter. Research misconduct is rare, but it happens. Several years ago, there were a number of quite cogent reports produced by Dr Frank Wells of the British Medical Association, Dr Stephen Lock, who was the editor of the British Medical Journal and his successor, Dr Richard Smith, which actually demonstrated that in a number of rare cases research results had been fabricated. This issue has been highlighted by a number of similar events in the United States and elsewhere. The universities, the research councils and a number of other bodies have looked at this matter and made a number of recommendations. I am not at all certain that this is the right place in this Bill for this issue to be raised, but the question needs further consideration by the Government—for instance, to decide whether this important issue should be in any way part of the remit of the proposed new medical research agency.

[Baroness Thornton]

The noble Lord raised a very interesting and important point, but I do not intend to delay the House by expanding on it.

[Earl Howe]

My Lords, Amendment 41A, tabled by my noble friend Lord Willis, will require the Secretary of State to set up a system to ensure that research is conducted properly and ethically and that there are sanctions in place in cases of misconduct. Let me say straight away that I am in agreement with the intention of my noble friend in tabling this amendment; the proper conduct of research is very important, just as proper conduct is critical in clinical practice. All my noble friend’s comments on that theme were extremely pertinent.

Looking at the amendment as it is worded, I can assure my noble friend that there are already systems in place to ensure that research is conducted ethically. Research, as he knows, cannot proceed without ethics committee approval. I realise that this is a probing amendment, but equally, as it is worded, it overlooks an important element in the current system of accountability, because it would risk undermining the clear responsibility in research, as in clinical practice, that employers have for the conduct of their employees and that professional councils have in regulating their members. Both can impose sanctions on researchers if their conduct is found to be inappropriate. I do not see that it is the responsibility of the Secretary of State to impose sanctions on clinical professionals, and it should not be his responsibility to do so for researchers. In the future, the Health Research Authority will continue the good work of the National Research Ethics Service, working with others to prevent misconduct by ensuring that the ethics of research have independently reviewed by research ethics committees.

This evening, I am able to give a new commitment to my noble friend. I am happy to tell him that we intend to publish the draft clauses on research for pre-legislative scrutiny in the second Session of this Parliament. That scrutiny will enable my noble friend and other noble Lords to comment on the detail of our proposals for the Health Research Authority and, in turn, enable us to ensure that future legislation is fit for purpose. I hope my noble friend will welcome that pledge.

If I may, I will cover the question my noble friend asked me about the concordat in a letter to him following this debate. I hope I have reassured him that there are systems in place to ensure good conduct in research. Nevertheless, his points are well made and I shall reflect fully upon them. I can only say at the moment that the Health Research Authority intends to build on these systems. In the light of what I said, I hope my noble friend will feel able to withdraw his amendment.

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Moved by

[Baroness Wheeler]

45: After Clause 5, insert the following new Clause—
“The Secretary of State’s duty as to national workforce structures
After section 1D of the National Health Service Act 2006, insert—“1E Secretary of State’s duty as to national workforce structures
The Secretary of State has a duty to maintain a national pay and bargaining system for healthcare staff, to cover those staff providing NHS services and services for the improvement of public health.””