Health and Social Care Bill

Baroness Thornton Excerpts

Monday 5th December 2011 Lords Chamber

[Baroness Jolly]

My Lords, I wish to add something on Clause 51 stand part. I am sorry that it is not where we expected it, but that is absolutely fine. We are in a place of unintended consequences, because without a PCT there is no home for this particular service. Also, post-Shipman, there is a need for sharpening up clinical governance on death certificates. Therefore, there is no disagreement with any of that, but the unintended consequence is that local authorities have a serious problem in that, as I understand it, funeral directors no longer wish to be a part of the mix, so local authorities are being tasked with implementing a system in which something will have to be collected—somewhere in the order of £150 per certificate to cover the costs. The call for the system to be set up came in 2009; the previous Labour Government asked us to look at regularising the system of certification of deaths not only for cremations but for burials. It was to be revenue-neutral, which poses another problem for the local authorities.

The timing of this for somebody who is bereaved is really difficult. If you lose somebody, you can neither bury them nor have them cremated without the death certificate. Being charged something in the region of £150 could be really awkward, difficult or maybe even impossible. If they paid into an insurance plan, it will not have paid out; after a few days, probate is just not in the right place at all. I would like the Minister to consider two things. First, the cost is anticipated to be somewhere between £40 million and £60 million. I cannot think of anything else on which the taxpayer actually pays for the collection of government data. I would like the Government to consider whether it is appropriate to pass on these fees when certificates for births, marriages and deaths are currently less than £20. Secondly, failing that, would my noble friend commit to working with the Department for Communities and Local Government and the Ministry of Justice to devise a sensitive system that does not call for a sizable payment up front on collection of the death certificate? They should pay attention to the pilot data alluded to by the noble Baroness, Lady Finlay; the pilots are not running absolutely smoothly.

[Baroness Thornton]

My Lords, what links the two parts of this debate are the unintended consequences and the need for second and third thoughts about things. My noble friend Lord Patel, the noble Lord, Lord Adebowale, and the noble Baroness, Lady Hollins, expressed concern about this clause. That is frankly good enough for me. It has been suggested elsewhere in the way of things that some enthusiastic civil servants, in the process of tidying up this Bill, have actually brought about what could be serious unintended consequences. The noble Baronesses, Lady Murphy and Lady Barker, also have some important points to make about the amendment in the name of the noble Baroness, Lady Barker. This House spent many hours constructing the architecture through the Mental Capacity Act and the Mental Health Acts, not all of it right. I do, however, remember the duty of co-operation being an important part of those Acts; those rights, protections and duties are very important and we need to check that we have not damaged them through the construct of this Bill.

On Clause 51 stand part, we on these Benches are pleased to support the important amendment put down by the noble Baroness, Lady Finlay, about the problems that might occur when the responsibilities of primary care trusts for the certification of deaths are transferred to local authorities. I do not intend to read out the whole of this note because the noble Baroness, Lady Jolly, has referred to most of it, but we are very concerned that these proposals will mean delay and an increase in cost when people are at their most vulnerable and least able to withstand that. I do not think that anybody in this House would want that to happen. I suspect that the Government would not want to place in jeopardy the trust and confidence in the system as it is, and I think there is a danger that Clause 51 does that. We on these Benches support the amendments in this group.

[Baroness Northover]

My Lords, noble Lords have spoken passionately about the need to support patients who are particularly vulnerable. These are complicated areas, and I am happy to write to noble Lords to clarify what is intended in the Bill and to address their specific questions if I do not answer them in what I say here.

The Bill makes a number of essentially consequential amendments to the Mental Health Act 1983. The Government are also taking the opportunity to remove a few redundant powers and to make a small number of changes to that Act. That is the intention. This is not a major shift; these are meant to be tidying-up changes. However, if they have unintended consequences, it is important that they are flagged up, and I hear what the noble Lord and other noble Lords said.

The principal changes are the change in the responsibility for commissioning independent mental health advocates from the NHS to local authorities and the change in the requirement that a second opinion must be given even where patients on supervised community treatment consent to their treatment. This condition does not apply to patients who are detained in hospital and is contributing to the major difficulties that the Care Quality Commission is experiencing in managing the second opinion appointed doctors service.

The Government are also taking the opportunity afforded by the Bill to make a number of changes to the Section 117 of the 1983 Act. The first amendment in this group, which was tabled by the noble Lord, Lord Patel of Bradford, addresses that. The main change is to transfer the duty on primary care trusts to commissioning consortia, but the clause also takes the opportunity to align the duty in Section 117 more closely with mainstream NHS legislation. That is the intention. For example, it gives the Secretary of State the power to make regulations that say which consortium is to be responsible in any given case. That will allow us to end the current anomaly that sees some PCTs responsible for Section 117 aftercare for patients whose other needs are the responsibility of a different PCT.

Regulations could also say that, in particular circumstances, the NHS Commissioning Board is responsible rather than the consortium. That would allow us to prevent consortia ending up having to commission services that are normally commissioned by the board just because the patient happens to qualify under Section 117. The noble Lord, Lord Patel, spoke very persuasively about the need to avoid this clause having unintended side effects, and I can confirm that that is certainly not the Government’s intention. I am very happy to meet the noble Lord to discuss these issues further.

On co-operation with the voluntary sector, we need to consider consistency with other services that CCGs will commission in order not to give in some way a distorted picture of when CCGs should work closely with the voluntary sector. Nevertheless, I am happy to have further discussions on this point.

On charging, which is clearly a significant concern of the noble Lord, the Bill does not change the current situation. Patients will not have to pay for any care under Section 117. I hope that I can reassure the noble Lord on that point.

The second amendment in this group was tabled by my noble friend Lord Marks and is about access for children who come under the 1983 Act to the services of an independent mental health advocate. Section 130C of the Mental Health Act 1983 already gives the same right of access to such an advocate to all qualifying patients, including children. Making special provision for minors might give the impression that other qualifying patients should have lower priority for access to such services. Our aim is that every vulnerable person who comes under the major provisions of the 1983 Act and wants the support of an advocate should have one. That should, of course, include every child and young person, but it should also include everyone else as well. The current law not only supports the aim of this amendment in respect to children but does so for all vulnerable people of all ages.

--- Later in debate ---

Moved by

[Baroness Thornton]

239: Clause 46, page 80, line 2, at end insert—
“( ) In exercising functions under subsections (1) and (2), the Secretary of State must set out how the performance of the Board in relation to these functions will be managed, and how the Board must agree any arrangements for provision with the appropriate Health and Wellbeing Boards.”

[Baroness Thornton]

My Lords, this small group of probing amendments concerns itself with primary care services and the directions that would provide for those primary care services. I will briefly outline each of the amendments and ask the Minister's reactions to them.

On Amendment 239, if directing the board to exercise the Secretary of State’s functions relating to the provision of primary medical services, the Secretary of State must set out how the performance of the board in relation to these functions will be managed and how the interaction with the appropriate health and well-being board will occur. How will that be supported and how will it occur?

On Amendment 239ZZA, the Secretary of State may not direct the board to exercise the Secretary of State’s functions in Section 114 of the 2006 Act, which relates to dental services and the provision of accommodation. Amendment 239ZZB is very similar. It relates to ophthalmic services. Amendment 239ZZC relates to pharmaceutical services. The Clause 205 stand part debate relates to the list of performers of pharmaceutical services and particularly addresses the question of how the Government would intend to support the provision of community pharmaceutical services in the future through the Bill. That is another probing amendment.

I want to hear what the Minister has to say about how local services being commissioned nationally will work in terms of relationships with the health and well-being boards and in terms of the provision and support of community pharmaceutical services. I beg to move.

[Earl Howe]

My Lords, Amendment 239 raises the issue of performance management of the board. Noble Lords will recall the debate on Clause 20, in which I sought to reassure the Committee that new Section 13A of the National Health Service Act 2006, introduced by Clause 20, already enables the Secretary of State to specify the manner in which he proposes to assess the performance of the NHS Commissioning Board. It is not appropriate to set out performance management processes in respect of each and every direction issued to the board by the Secretary of State. I agree about the importance of the NHS Commissioning Board developing its commissioning responsibilities in a way that complements and supports other local health and social care commissioning, as the amendment proposed by the noble Baroness seeks to ensure. As I have indicated previously, the NHS Commissioning Board will be under a duty to have regard to joint health and well-being strategies. It would confuse lines of accountability and would actually be unworkable if we forced a duty on the board to agree with the health and well-being boards on how it will deliver its functions. I hope very much that your Lordships will agree that it is right that health and well-being boards do not have a right to veto plans for the provision of those primary medical services, which the Secretary of State has determined are necessary for patients. The NHS Commissioning Board will also have responsibility for commissioning primary dental services, primary ophthalmic services and pharmaceutical services.

Directions from the Secretary of State—usually of a technical or administrative nature—are currently made to primary care trusts and others in respect of primary care services under existing powers in the 2006 Act. So the provisions in this part of the Bill are not new powers; they are replacement powers adjusted to reflect the new organisations created by the Bill. These amendments would remove essential administrative and operational flexibility to enable those primary care services to continue to be provided efficiently and effectively for the ultimate benefit of patients. I realise that they are probing amendments and that the noble Baroness has no intention of pressing them, but clearly they are not appropriate.

Clause 205 enables regulations to be made that require the board to prepare, maintain and publish performers lists of pharmacists and pharmacy technicians on the abolition of primary care trusts. It replaces those provisions of the 2006 Act that currently relate to fitness to practise for pharmaceutical services performers. It also amends the Act so that, where a performer of local pharmaceutical services is included in a local pharmaceutical services performers list, they can be automatically included in an assistants list of performers and vice versa. We have yet to take a view on implementing performers lists for local pharmaceutical services performers and for those who assist pharmaceutical contractors in the provision of pharmaceutical services. We expect to do so during the coming months. In the mean time, this clause is needed to ensure that, if we do decide to introduce them, the primary legislation will adequately enable this.

The noble Baroness asked how, logistically, the board will manage approximately 8,300 GP contracts. We recognise that the NHS Commissioning Board could have difficulty in appropriately managing primary medical services contracts throughout England without help. The proposals to establish a significant field force as part of the board’s establishment will assist, but it will remain the case that the board’s ability to undertake this task will be enhanced if it can utilise the important local expertise and knowledge that will be available to the clinical commissioning groups. We have put in the Bill an explicit duty for all clinical commissioning groups to support and assist the board in securing continuous improvement in the quality of primary medical services. That is in new Section 14R in Clause 23. Alongside this, direction-making powers in Clause 46—

[Baroness Thornton]

The Minister mentioned field forces that will help to make this work, and I can see that that will almost certainly be the way to do it. But would there be an intention to have expertise in each of the different areas or across the piece? The Minister does not need to answer the question now; he can write to me. But the community pharmaceutical industry would be interested in an answer on how that would be delivered.

[Earl Howe]

I would be happy to write to the noble Baroness in the interests of time, but I was about to explain that as regards primary medical services the direction-making powers that I mentioned will also enable the board to arrange for clinical commissioning groups to carry out some contract monitoring functions and limited commissioning functions on its behalf should it so wish. So the board can enlist the help of the clinical commissioning groups themselves to do some of the monitoring function. That will not alter the board’s overarching responsibility for commissioning general practitioner services and holding their contracts. But I will write to the noble Baroness, as she asks.

[Earl Howe]

I undertake to write to noble Lords about that, and I agree that it is an important matter.

[Baroness Thornton]

I thank the Minister for that answer. We will return to discuss issues about the community pharmacies, possibly not in Committee or on Report but outside the Chamber, because there are some areas of concern where clarification is required. I thank the Minister for his answer and beg leave to withdraw.

Amendment 239 withdrawn.