Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I rise to speak to this amendment on behalf of my noble friend Lord Low, who is unable to move it because of a failure of his technology. I commend my noble friend’s sustained advocacy of the issues raised by the amendment. I declare my interest as founder and chair of the charity Books Beyond Words, which has published a word-free book called Looking After My Eyes jointly with the charity SeeAbility, which briefed my noble friend and me on this amendment.

The amendment seeks to improve primary ophthalmic services for people with learning disabilities, including pupils in special schools. There is no system of national monitoring of the number of people with learning disabilities who have visual impairments. Some research has estimated that people with learning disabilities are 10 times more likely to have serious eye problems than the general population, and six in 10 people with learning disabilities need glasses but may not recognise that they have sight problems. They may not be able to communicate this effectively, and they certainly need reasonable adjustments to access ophthalmic services.

The prevalence of visual impairment increases with the severity of someone’s learning disability. We know that some conditions associated with a learning disability, such as Down’s Syndrome, are associated with specific causes of visual impairment such as cataracts. My noble friend commented in Committee that the charity SeeAbility had identified that “four in 10 children” in special schools

“had never had a sight test”

and that

“half of adults with learning disabilities had not had a sight test” —[Official Report, 20/1/22; col.1837.]

within the recommended period. In short, those most in need of high-quality eyecare are arguably those least likely to get it. We need targeted improvements in primary eyecare for all people with learning disabilities. I am therefore very pleased to support my noble friend’s amendment and, in his absence, I beg to move.

[Baroness Thornton (Lab)]

I just want to say that I think that that is perfectly correct and reasonable.

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[Baroness Thornton (Lab)]

My Lords, this is an important group, so it is a shame that we are discussing it so late in the evening. It is important because it contains essential broad things that people need to stay well in their community. It is about the bread and butter of people’s health—their GPs, dentists, the physios and pharmacists, getting podiatry services and getting the proper social care that you need to be able to stay in your home. It is literally about helping people to stay local and stay well. In many ways, that is why I enjoyed the three years that I spent on a CCG so much, because I knew that it was local and that every month I was going to be visiting a GP surgery. I knew all those things, and I felt that that was an important contribution to healthcare in my area.

The amendment in the name of the noble Lord, Lord Crisp, is particularly important. If primary healthcare and these local services do not work, the rest of the NHS falls over.

[Lord Kamall (Con)]

My Lords, I am grateful to all noble Lords who have spoken on these amendments in this debate and in Committee, but I am also grateful for the discussions that we have had between the various stages and the conversations that noble Lords have continued to have with my officials—indeed, right up to the dinner break this evening. I shall speak to Amendments 34, 35 and 55 in my name, which I hope will go far in addressing many of the concerns raised in the debate.

We have heard the calls for greater clarity about what will be expected of ICBs in their forward planning. We also understand the importance of ICBs being transparent in discharging their functions to allow for public scrutiny and accountability. We have therefore brought forward these amendments to further clarify what ICBs must include in their forward plans and annual reports. These amendments provide that the forward plan must describe what services the ICB proposes to make arrangements for in the exercise of its functions. It must also explain how the ICB proposes to discharge each of its duties under new Sections 14Z34 to 14Z44. These duties include improving the quality of services, reducing inequalities, promoting the involvement of patients and carers in decisions about treatment and promoting the integration of health and social care services.

Amendment 55 requires an ICB’s annual report to explain how it has discharged each of its duties under new Sections 14Z34 to 14Z44. This would additionally include new Section 14Z47A, which is the new duty we discussed earlier requiring the ICB to keep under review the skills, knowledge and experience that it needs to discharge its functions and, when there are gaps, to consider what steps it can take to address or mitigate them. I hope that noble Lords will agree that these amendments represent a significant step forward in making sure ICBs are held accountable by ensuring that they are transparent in how they intend to discharge their numerous duties and functions.

I turn to the amendments proposed by noble Lords, and I shall address each of them as briefly as I can. On Amendment 19, I assure my noble friend Lord Farmer that the Bill already includes the power for ICBs to commission services or facilities for the prevention of illness under new Section 3A in Clause 16. The provisions in Clause 16 also require ICBs to act consistently with the Secretary of State’s duty for the promotion of a comprehensive health service, including in the prevention of illness. Further, new Section 14Z34 places a duty on ICBs to improve the quality of services including preventive services, and new Sections 14Z36 and 14Z38 place duties on ICBs to ensure that patients and carers are fully involved in these decisions, including about prevention.

I now turn briefly to Amendment 62, spoken to so ably by my noble friend Lord McColl and the noble Baroness, Lady Hollins. I also pay tribute to the noble Baroness, Lady Greengross, who in my brief time in this House thus far has really educated me about dementia and the fact that, as we are living longer physically, this will become more of an issue.

The department is currently developing a new national dementia strategy for England, which will be published later this year. This will include objectives focused on restoring the dementia diagnosis rates and improving the diagnostic experience for people living with dementia, as well as increasing the number and diversity of people participating in dementia research. I take on board the concern of the noble Baroness, Lady Walmsley, about getting the many volunteers for clinical trials at the right time.

There is already work under way to help restore dementia diagnosis rates back to the target of 66.7% following the pandemic, supported by an additional £17 million to address dementia waiting lists and increase the number of diagnoses. Increasing participation in all types of research is a top priority and is in fact part of my portfolio. The UK has invested in a range of digital platforms, including Join Dementia Research, and we are now working to increase the scale of and interoperability between systems, improve diverse recruitment and reduce the burden and costs of clinical research delivery.

On Amendments 22 and 24, I reassure noble Lords that the Bill already contains requirements on NHS commissioning bodies to tackle health inequalities. Commissioners are also required to promote the right of patients to make choices with respect to services or treatment. This includes allowing patients to choose to be treated outside their ICB area. To support this, we expect ICBs to actively co-operate with each other. Furthermore, we have amended the duty on ICBs to have regard to the need to reduce inequalities between patients, proposing by government amendment to extend this to “persons”, in respect of accessing services. This means we are capturing everyone, not just people accessing services. This duty would encompass the need to reduce inequalities with respect to geography as well.

I now turn to Amendment 30. I thank the noble Baroness, Lady Finlay. First, I should thank her for the daffodil I am wearing to celebrate St David’s Day. She assures me that it is not a listening device to eavesdrop on my conversations with officials. If she had eavesdropped, she probably would have been embarrassed by the amount of praise heaped on her. We acknowledge her desire to see strong provision of community rehabilitation and it is important that this is pushed up the agenda.

Under the existing Bill provisions, every ICB will be required to provide and improve rehabilitation services as part of its duty to provide a comprehensive health service. As an added layer of scrutiny, ICBs must publish an annual review detailing how they have discharged this function. Also, NHS England is currently working on a national intermediate care framework, digital and virtual pathways and models of care, improved data recording and reports, and interventions using a wide range of community assets and levers.

I now turn to Amendments 33 and 37 to 54. I thank the noble Lord, Lord Crisp, for his engagement on this issue—indeed, including right up to the dinner break this evening. We would like to put on record our gratitude to the noble Lord and the Royal College of General Practitioners for pushing us on this and reminding us that, as we move to ICBs, we should make sure that primary care is not the poor relation. In moving to ICBs from CCGs, where GPs and primary medical services have played a huge role, we have to ensure that these are not dominated by a few large trusts.

We understand and continue to recognise the importance of primary care. Indeed, primary care is taking on more of the functions of what would traditionally be considered secondary care, especially with some of the primary care services and community centres appearing in our local communities. Only this week, we have seen stories and press reports of pharmacists calling for more of the functions of GPs to be delegated to them. They have helpfully suggested that they could save the NHS money and also provide better primary care services by taking on some of those functions. There is clearly a demand out there and that has to be encouraged.

Before I turn to this, I note that we hold primary care in equal esteem to any other sector—acute, community or mental health. Right from the outset, we have said that primary care must not be lost and must be at the heart of the ICB. As the Integrated Care Systems: Design Framework said:

“Through a combination of their membership, and the ways in which members engage partners, the board and its committees should ensure they take into account the perspectives and expertise of all relevant partners”,


including primary care.

I know the noble Lord is especially concerned about why primary care is not explicitly referenced in new Clause 14Z50(1). I hope I can offer him some explanation. First, we are conscious that there are 43,000 primary care providers, and it is impractical to require each to be a partner in developing the ICB forward plan. Secondly, new Clause 14Z50 ties NHS providers to the plan, and a failure to play their part could trigger NHS England’s intervention. It will also guide the financial requirements imposed under Clause 24. In contrast, primary care providers, as private contractors, are bound to the plan in a different way, primarily through contracts. Thirdly, new Clauses 14Z50 and 14Z54, on the joint capital resource plan, are intimately connected and primary care capital is provided through other routes.

However, ensuring that the primary care voice is sufficiently involved in joint forward planning in integrated care boards is our common ambition. The law requires the involvement of a primary care representative drawn from primary medical services on ICBs, just as it does for acute providers. ICBs will have to consider how they can best access skills and knowledge across primary care.

In addition, there is a duty in new Clause 14Z52 to consult

“any other persons they consider it appropriate to consult”

about forward plans. We expect that, in publishing its plan, an ICB should set out how it has met this duty and consulted primary care and other partners. I am able to inform the House that NHS England has confirmed that its guidance will be explicit in its expectation that primary care will be a crucial partner in that process. We are happy to engage with the noble Lord further as that guidance develops to ensure that we stick to that commitment to make sure that primary care is at the heart of this.

More broadly, ICBs have the discretion to appoint additional members to the ICB or exercise functions through committees. Commissioning at a local level requires the expertise of primary care, and we expect it to play a significant role as many decisions will be taken at that level under the principle of subsidiarity. Further guidance will be published on the development of place- level arrangements, including the role of primary care.

I also note the Fuller review. NHS England chief executive Amanda Pritchard has announced that Dr Claire Fuller, senior responsible officer of the Surrey Heartlands Integrated Care System, will lead a review on how primary care networks can be supported in integrated systems. NHS England has announced that the review will set out how ICSs and primary care networks should go about improving out-of-hospital care. The findings of the review will then be applied to ICBs, subject to the passage of this Bill. We hope this work will help all ICBs to make progress on developing general practice in this area.

I hope I have been able to assure noble Lords that we hold primary care in great esteem, and have given the noble Lord some reassurance that primary care will be involved in every level of the ICB, its functions and planning.

I now turn to Amendment 177 from my noble friend Lady Hodgson. I thank her for continuing to remind us of its importance and speaking movingly about her own experience. I remind noble Lords that all practices are already required to assign all their registered patients—including those aged 65 and over—a named, accountable GP. The GP must lead in ensuring that any GP services that they are contracted to provide, and that are necessary to meet the patient’s needs, are co-ordinated and delivered to that patient. Practices must take reasonable steps to accommodate the requests of patients to be assigned a particular GP and to see them for an appointment.

However, it is vital that practices retain clinical discretion to provide appointments, as is necessary and appropriate to meet the reasonable needs of patients—something that this amendment would remove. Through primary care networks and initiatives such as enhanced health in care homes and anticipatory care, we are supporting GP practices to improve continuity of care on the ground, including for older patients. We are committed to growing the general practice workforce and increasing access to appointments, in line with our manifesto commitments.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Lord Crisp (CB)]

My Lords, I echo that statement and say how much I appreciate both the way in which the discussion was held and the end point whereby these amendments have now been placed in front of us.

[Baroness Thornton (Lab)]

I absolutely concur with the noble Lord, Lord Crisp, and the noble Baroness, Lady Walmsley, and congratulate the Minister on a concise and accurate proposal of these amendments. Long may this continue.

[Baroness Penn (Con)]

My Lords, this has been a welcome, consensual and short start to Report stage, which I am sure we will continue through future groups. I am not sure there is much to add, so therefore I ask that these amendments be agreed.

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[Baroness Walmsley (LD)]

My Lords, from these Benches I thank the Minister and the whole Front-Bench team for the way they have engaged with the House on the issue of doing something really serious about addressing health inequalities.

Many of us put down amendments in Committee: dealing with inequalities was dotted all over the Bill. We even suggested that perhaps we needed a quadruple aim—an additional aim. The Government have taken a different but none the less effective approach, and I really welcome the fact that dealing with health inequalities has been made integral to the first two aims of the triple aim.

The Government have done two things that I particularly welcome. The noble Lord, Lord Kakkar, mentioned the engagement of the noble Lord, Lord Patel, with the Bill team on making sure that data can be collected. Without collecting the data, you cannot analyse or take action on addressing health inequalities.

The second thing, which the Minister mentioned in his introduction, is government Amendment 21, which is about the experience of people in the health service. He mentioned that the experience of people from an Asian background can sometimes be poor. I can give him an example of where that has been the case. My daughter has a friend, an Asian gentleman, who had a very painful physical injury. Very unusually, although his physical problems have now healed, he has been left with a mental scar because of his experience with the health service. This is very unusual, but he was not treated with compassion or respect. Indeed, it was more like discrimination—so I really welcomed what the Minister said about the importance of the experience of people from all demographics and ethnic backgrounds in the health service. It is vital.

I turn to the amendments from the noble Baroness, Lady Armstrong. Like all noble Lords, I have been watching the television recently, looking at the pain that the poor people of Ukraine are going through and seeing children, mothers and whole families huddled in cold, damp cellars. Some of them are taking several days to drive to the border to go to a country that will welcome them, perhaps with even more open arms than we do. It occurred to me that those people, when all this is over—and let us hope it will be over very soon—will probably be suffering from mental and physical illness. It also then occurred to me that there are people in this country who have poor-quality housing, insecure housing or no housing at all. When you put those things together, it is not surprising to realise that such people will be suffering from more serious and more frequent physical and mental ill-health than the rest of us who are in good-quality, secure housing. So the noble Baroness has hit on some very important issues about health inclusion communities and about the importance of housing to making health, and we support what she has to say.

I end by sincerely thanking all three Ministers and the Bill team for the way they have addressed this issue of health inequalities, and I really look forward to it making a real difference in future.

[Baroness Thornton (Lab)]

My Lords, the noble Baroness, Lady Walmsley, expressed that very well indeed. From these Benches, I say how much we welcome these amendments and thank the Minister for introducing them. I also join the noble Lord, Lord Kakkar, in regretting the fact that our friend Naren Patel—the noble Lord, Lord Patel—is not with us today. His speech on this in Committee was outstanding, as his speeches always are. In fact, the whole debate was the House at its very best in expressing its view.

We welcome these amendments, and I was very pleased to add my name to Amendment 3 on behalf of these Benches. I was not as energetic as the noble Lord, Lord Kakkar, who put his name to all of them, but that was a symbol of the fact that we supported all these amendments.

We support them because, as people have mentioned, they recognise the importance of addressing inequalities from the top to the bottom of the National Health Service, and of monitoring, counting and research—not a tick-box exercise to say that you are tackling inequalities. As I have mentioned before, I am a non-executive member of a hospital in London. In fact, I have just completed three days of its workforce race equality training. That was three days out of my life during the course of this Bill, but it was definitely worth while. It absolutely was not always comfortable, and nor should it have been. It did indeed raise issues, many of which were raised in research published on 14 February by the NHS Race & Health Observatory. It basically says that the NHS has a very large mountain to climb in tackling race inequalities and inequalities across the board. It is a worthwhile report, which I am sure the noble Earl will be paying attention to in due course.

I also want to say how much I support my noble friend in bringing forward her amendments on the homeless. Coming from Bradford, I am particularly fond of a GP surgery called Bevan Healthcare, named after the founder of the National Health Service. It was started by my local doctor in Bradford, who spent his spare time providing GP services on the street to the homeless. From that, the NHS was commissioned to provide a GP surgery specifically directed to the needs of people who are itinerant and homeless, working girls and so on. It is still there, and it is a brilliant example of how to deliver the service, and of the money it saves the NHS at the end of the day. As I think my noble friend Lady Armstrong said, if you get this right then people do not end up in emergency care or worse.

We hope that the Minister will respond positively to these amendments. I thank him, his team and the Bill team, who addressed this issue thoroughly and with a great deal of success.

[Earl Howe (Con)]

My Lords, this has been a very fruitful discussion and I am most grateful to all noble Lords who have spoken. I especially thank my noble friend Lord Young of Cookham, the noble Baronesses, Lady Walmsley, Lady Thornton and Lady Hollins, the noble Lord, Lord Kakkar, and the noble Lord, Lord Patel, in his absence, the King’s Fund and the Health Foundation for their contributions, both inside and outside this Chamber, in shaping this debate and the amendments before us.

Without wishing to repeat what I said earlier, I commend the government amendments to the House as they will strengthen the ability and resolve of the health and care system to take meaningful action on tackling health disparities. I next thank the noble Baronesses, Lady Armstrong of Hill Top and Lady Morgan of Drefelin, and the noble Lord, Lord Shipley, for tabling their three amendments and for the focus they bring to the issues of housing and homelessness. I found the account of the experience in government of the noble Baroness, Lady Armstrong, and the work of Professor Aidan Halligan, whom I too remember with great respect, compelling. I agreed with so much of what she said.

Let me say straight away that the Government are committed to improving the health outcomes of inclusion health groups, as they are known. That is precisely why we tabled the amendment to expand the inequalities duty placed on NHS England and ICBs beyond simply patients to incorporate people who struggle to access health services such as inclusion health groups, but there is much more to say on this.

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[Lord Lansley (Con)]

My Lords, I join the debate briefly to add my thanks to the Government for the amendments on research that they have brought forward in this group. It is extremely helpful, as the noble Lord, Lord Kakkar, said, to entrench the concept of a research culture inside the NHS. In our various ways and guises, we have all encountered some of the difficulties of diffusing innovation and the take-up of new medicines in the NHS.

The point was made very well by the noble Lord, Lord Hunt of Kings Heath, but he did not say why the NHS does not adopt new medicines as rapidly as some other European systems have. I do not think we have more conservative clinicians than other countries, but we do not have a third-party payments system. We do not have a system whereby the patient can ask “What about this?”—these days, increasingly, they do—and the clinician can say yes, and pass the bill to somebody else. Instead, our system centrally determines the extent to which new medicines will be available. We have a particular requirement in the National Health Service for a system which looks for areas where there is value in innovation, disseminates it, takes it up and makes it available to patients.

I make two other points. One is to say thank you, as I am not sure I will get another opportunity to do so. We had substantive discussions about rare diseases; the noble Lord, Lord Sharkey, in particular spoke very well and fully about the needs involved, and the Government published their England Rare Diseases Action Plan yesterday. On orphan drugs, that will give significant additional impetus to the availability of treatments for those with rare diseases. I very much welcome that.

Secondly, Amendment 178 in particular is interesting. I do not necessarily advocate that we adopt it, but it asks the Government do something that they generally have not done and ought to do, which is to come back to the issue of access to medicines and treatments—and, I would add, to medical devices—and ask how well we are doing at the process of bringing that into effect and how well our Accelerated Access Collaborative, which is supposed to look at all these things and make them work together, is making that happen.

The beauty of Amendment 178, on which I will add just a little, is that we ought to have a very clear timetable for how we move the system forward. I hope the Government will adopt this. In January 2024, we will have the next voluntary pharmaceutical pricing and access scheme. The industry will be looking, rightly, to arrive at a position where all the initiatives mentioned give patients access to medicines in this country as soon as in any other healthcare system. On that basis, the industry will be prepared to understand that not just the NHS but the Government will look to get some pretty cost-effective prices out of it.

Now I do not happen to think that it is NICE’s job to make that relationship happen. I happen to think that NHS England is increasingly equipped to be a central player in this process. It should sit alongside NICE when it carries out health technology assessments in what is effectively a trialogue with the industry and say, “Well, how can we ensure that the patient has access to this medicine, and at what price? Can NICE act as the referee to establish whether the price and the incremental benefit are reconciled to be cost effective for the NHS?”

We should build that into the system over the next 18 months so that, when we start the new scheme in January 2024, the system is understood to work. It should not depend on large-scale transfers of money, with overpriced new branded medicines on the one hand being recycled back to the NHS to go into the innovative medicines fund on the other. This tracking of money around the system is not the best way to make it happen. We should aim for the industry to be paid what the health technology assessments and the NHS budget requirements mean is a fair price for the medicines it is providing—and that is what the industry should expect.

Everybody should be working to arrive at a position where, when a medicine obtains authorisation—in other words, when it is deemed safe, clinically effective and of good quality—and a clinician recommends it for a patient, the patient should have access to that medicine through the NHS. That is what we are aiming for. It has not always been true, but it ought to be in the future. We need a system that people, including clinicians in the NHS, understand and that supports their ability to prescribe medicines in that way.

[Baroness Thornton (Lab)]

My Lords, I do not intend to speak about this for very long, because I feel that I am the least well-equipped person in the whole Chamber to do so—possibly with the exception of the Minister, which is often the way and is how I felt when I was a Minister; I would stand up to speak about research and other huge subjects and everybody else in the Chamber who had spoken certainly knew a lot more than I did, and that is the case here.

Noble Lords may recall that the starting point at Second Reading and in Committee was that there was no place for research in the Bill at all—so I congratulate noble Lords who picked this up and ran with it, and, indeed, the Minister and the Bill team on taking it on board and producing these amendments. That is helpful; as the noble Lord, Lord Kakkar, said, it is about the future and it is exactly the right thing to do.

I also agree with the noble Baroness, Lady McIntosh, and my noble friend Lord Hunt in their disappointment on the issue of NICE. They are quite right about the access and availability of medicine and devices to healthcare practitioners and that the system is still uneven; also, of course, nobody is asking how we are doing and whether it is working. It is a shame that these aspects have not been included in the Bill, but I suspect that the noble Baroness and my noble friend will probably live to fight another day.

[Lord Kamall (Con)]

My Lords, I am grateful to all noble Lords who have spoken thus far in this debate. I also thank the noble Baroness, Lady Thornton, for expressing her confidence in my ability to understand these issues; I fear that she may be right.

Turning first to Amendment 29, it is firstly important to note that it is the MHRA, not NICE, that licenses these medicines in the UK. NICE makes recommendations on whether the price that the NHS pays for treatments represents value for money. Access to effective new treatments for NHS patients is a priority for the Government. That is why we have committed to maintain the funding requirement for NICE appraisal of recommended treatments.

The standard contract also stipulates that providers must ensure that formularies include all NICE appraisal-recommended treatments. NICE’s guidance on developing and updating local formularies also clearly states:

“When a NICE technology appraisal recommends a medicine, adopt the medicine into the local formulary automatically, if clinically appropriate and relevant to the services provided by the organisation. This process should take place within 3 months.”


I believe that this represents a robust legal framework for ensuring compliance with NICE’s appraisal decisions. A stronger legislative requirement to include all NICE-recommended treatments on formularies within 28 days of a NICE decision would remove any flexibility both to vary the timescale where there are barriers to implementation, or where a product was not relevant to a particular organisation.

Turning to Amendment 171, NICE rightly operates independently from the Government, and key to this is setting its own procedures for developing guidance and recommendations. This includes setting its own discount rate, taking into account the wider policy and fiscal implications. NICE recently carried out a comprehensive review of its methods and processes for making appraisal recommendations, and the changes that NICE is introducing will ensure that its processes are fairer, faster and more consistent. I assure noble Lords that NICE already aims, wherever possible, to make timely recommendations on new medicines with draft guidance around the time of licensing, and final guidance within three months of licensing. However, NICE’s ability to issue guidance depends on an evidence submission from the manufacturer. It would not therefore be appropriate to place a requirement in legislation for a specified timeframe when that is dependent on other organisations.

This amendment would also require NICE to take account of a company’s membership of the Voluntary Scheme for Branded Medicines Pricing and Access, or the statutory scheme, in making its recommendations on medicines. These schemes have a very different purpose from NICE appraisals, which ensure that new medicines are clinically and cost effective, and they are time-limited, so would create significant disparities between medicines launched at different times.

I turn now to Amendment 178. I hope I can assure the noble Lord that arrangements are already in place to regularly review and monitor delivery against priorities and objectives, including through accountability meetings, engagement with external partners and public board meetings. The Government believe that regular monitoring through existing arrangements is the right approach and do not consider that a requirement to carry out a review is necessary. I assure the noble Lord that the changes recently introduced by NICE will make its methods and processes fairer, faster and more consistent, will ensure that they are suited to new and emerging types of technology, and will provide more equitable access for those with severe diseases. The vast majority of cancer medicines covered by the previous end of life flexibilities would also be covered by the severity modifier.

Placing requirements on NICE through primary legislation to use specified processes would fetter its independence to determine its own methods and processes, and it would be unfair to operate two different approaches at the same time. The amendment proposed by the noble Lord could also impact negatively on cancer medicines that were not eligible for the end-of-life flexibilities in their first appraisal but may be eligible for the severity modifier.

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Moved by

[Baroness Thornton]

9: Clause 14, page 12, leave out lines 3 to 6 and insert—
“(4) Each integrated care board must set out in its constitution—(a) the arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes,(b) the process by which any appointment of a member to the integrated care board or any appointment to any committee or sub-committee of the integrated care board that has a commissioning function must be made so as to avoid the appointment of anyone who would be perceived to have a conflict or potential conflict of interest, and(c) the arrangements for ensuring that no member of any committee or sub-committee of the integrated care board who has a conflict or potential conflict of interest obtains access to information that might be perceived to favour the interest or potential interest.”Member’s explanatory statement
This intends to ensure conflict of interest rules that apply to an ICB also apply to commissioning sub-committees.

[Baroness Thornton (Lab)]

My Lords, we now come to the group of amendments where the wonderful harmony that has so far filled the House, with all the fantastic concessions and discussions, comes to a bit of an end. It concerns the make-up of the ICBs. I am very grateful to the Minister and the officials for the range of discussions that we have had and, it has to be said, for the consensus that there was and the brilliant initiative by the noble Baroness, Lady Walmsley, which led to Amendment 31. I commend the noble Baroness and the Minister for that amendment, which very successfully looks to the future of how ICBs might work in terms of an audit of the qualities, skills and so on that you need on an ICB. This group, however, reflects the fact that the House is concerned about who serves on ICBs now; they are being formulated and appointments made right now, and the Bill is the only opportunity we shall get to influence who serves on them and how that works.

This group of amendments addresses that issue in various different ways. I feel particularly strongly in my support of the amendment in the name of my noble friend Lord Bradley, for example. We have had a suite of amendments that have addressed the issue of mental health, but his particularly addresses the issue of ICBs. However, I will allow him to speak to that in due course.

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[Baroness Thornton (Lab)]

I congratulate the noble Baroness, Lady Bennett, on that suggestion.

I shall be very brief. This was an excellent debate, which proved that the House still has some reservations about ICBs and, if nothing else, it should tell NHS England and the 42 existing ICBs that we want them to do extremely well and to be powerful. Amendment 31 will help ensure their future prosperity and the diversity they need to do their job.

However, I am not content with the Minister’s explanation about my Amendment 9. I regret that NHS Providers and the NHS Confederation never bothered to speak to me about this amendment. They seem to have spoken to the Minister and a few other people and have been on Twitter about it. I think that is rude and it makes me wonder where their panic has come from. I do not think they need to panic about something which just adds consistency to the rules that govern commissioning and the spending of our money. I say with great respect to the noble and learned Lord, Lord Mackay of Clashfern, who I did not see at the beginning of this debate, that if sub-committees are commissioning and spending public money, they should have the same rules as the ICBs. That is the crux of this. I wish to test the opinion of the House.

Government Contracts: Randox Laboratories

Baroness Thornton Excerpts

Monday 21st February 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, at the heart of this Question is almost £500 million of public money, awarded in two public health contracts to Randox Laboratories without competition. My honourable friend asked this Question in the Commons and raised the dissonance in what has been said by the Government over the months since the issue was first raised. I have two questions for the Minister. Does he agree with the former Minister of State for Efficiency and Transformation, the noble Lord, Lord Agnew, that the Government were paying dramatically over the odds for Randox products? If so, can he explain why the Government then entered into a second, more lucrative, contract with the firm? Secondly, the chief operating officer for the Civil Service requested the restoration of competitive tendering by March 2021. Can the Minister set out how many further contracts have been issued after that date without tender and explain why the emergency procurement rules are still in place almost a year later, given that we are coming, as the Prime Minister just told the Commons “out of Covid”?

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

I start by thanking the noble Baroness for those questions. On her first point, we should remember the stage that the Government were at at the beginning of the crisis. People were dying every day and there were panics; they were not sure what was out there. Clearly, they were going out looking for suppliers for testing and other equipment. There were a number of approaches and different meetings, but one thing that has been quite clear is that all contracts were awarded according to the Public Contracts Regulations 2015. I have been reassured about this by officials. Authorities are permitted to procure goods, services and works via direct award, using Regulation 32 of the Public Contracts Regulations 2015, in exceptional circumstances, such as extreme urgency, without competing or advertising the requirement. I contend that the beginning of the Covid crisis was such an emergency, and that is one reason it was awarded without competition. There are clear procedures, we are committed to openness and transparency and details of the contracts are available online.

The decision on whether to procure a product from a supplier ultimately sits with departmental officials once the offer has cleared assurance steps. These include clinical acceptability and financial due diligence. I often get emails from people who have sat next to me somewhere who say, “I have this fantastic product”, but I have to reply to them and say, “I’m very sorry—I will copy officials into this but I can take no further part”.

I shall try to answer on the emergency procurement procedures, but I want to make sure I have the right note. Clearly, there are unforeseeable circumstances such as, for example, the rapid onset of omicron at the end of 2021. That also required UKHSA to act with extreme urgency. We used Regulation 32 in some cases at the end of last year to supply LFTs over the Christmas and new year period due to increased demand. The use of Regulation 32 was necessary because our DPS 2 procurement had reached its limit of extension and there was no time to run additional procurement. I am sure the noble Baroness and others will remember the end of last year, when people just could not get hold of testing equipment and we were trying to buy as much as we could on the world market.

Integration White Paper

Baroness Thornton Excerpts

Thursday 10th February 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, in the almost five years that I have been doing this job, we have been waiting for a social care White Paper. My noble friend Lady Wheeler, month after month, asked where it might be and was told that it would be in the summer, the spring or the following winter, and it did not arrive. Indeed, in desperation, the House’s Select Committee, chaired by the noble Lord, Lord Forsyth, brought forward its own proposals for the future of social care, and extremely good they are, too. But here we are—the Government are now spoiling us with a third White Paper in a year. However, this one is a disappointment, I have to say, given the importance right now of the future for social care. Given the Government’s commitment to fixing social care, it is even more of a disappointment. We know that integration of health and social care, however it is defined, is extremely difficult, but I fear that its integration will not be delivered by this White Paper. It is long on description and has really great examples and aspirations, but it is very short on actual solutions and action.

Before I ask the Minister some questions that we need to address, I should also say that what is very disappointing in the White Paper is the lack of attention it gives to carers. They are not mentioned very often, even though the NHS and social care depend heavily on unpaid carers supporting people with long-term conditions and disabilities in the community. Some 1.4 million people in the UK provide more than 50 hours a week of unpaid care, and while unpaid carers provide the bulk of care, they are still not systematically identified, supported or included throughout the NHS. We have one system, social care, that recognises carers legally as an equal partner, while the other, the NHS, does not. That has been discussed in your Lordships’ House very recently, in the passage of the Bill before us, and is still not resolved. If there is going to be an integration of health and social care, one of the first things that needs to happen is the integration and legal recognition of the role of carers and our duty to support them and their well-being.

Moving on, it is not clear how this White Paper fits with the Bill before us. Even the experts involved repeatedly trip over the crucial issues, such as the relationship and responsibilities of integrated care boards, integrated care partnerships and integrated care systems, as well as the new joint committees and how they will work with the statutory health and well-being boards, which as we know have no commissioning powers, as the noble Lord, Lord Lansley, has said on at least one occasion. What is the role of health and well-being boards? If they are necessary, why are they not integrated into the system being proposed in the Bill before us? Now that we have a new Joint Committee, my first major question is, how will it work with the health and well-being boards, and with the ICBs and ICPs? Where will the clinical leadership sit, and where is the accountability to local people?

It is not clear how this latest offer fits with the proposals before us today. I suggest to the Minister that this is not really a plan. It is a description, an aspiration, but it is not a plan. It does not tell us which bit is responsible for what. If the new individual proposed in this White Paper is to take responsibility for shared outcomes, who will appoint them? How will they get there? Will NHS England, which is appointing the ICB chair and chief executive, be accountable to this new super-leader? Will they be inspected by the CQC? What if a huge local foundation trust misbehaves? What powers will the new leader have to act? That is why it is not a plan.

The second reason this is not a plan is that it has no workforce component—an issue that we are very seriously concerned with in the Bill before the House now. There is no workforce strategy or a commitment to one. If we want integration, it has to be a workforce strategy that covers health and social care, and it has to be long term.

The aspirations and vision are fine, but we have signed up to strategies before—for example, the NHS plan in the noughties; we thought that would be good. I regret that it almost feels as if this document has been put together as part of finding lots of new things to say to detract from the issues facing the Prime Minister and No. 10, which is a huge missed opportunity.

So, the issues the Minister needs to address include the workforce and the question of how you integrate and pool two systems which operate in different ways. One is means tested, and the other is not. One has national criteria for entitlement, and the other does not. The ways they are governed and funded are totally different, and they are kept going by two separate workforces with no aligned terms and conditions.

The White Paper talks about local initiatives and building things locally, but unless the infrastructure is there to produce the alignment needed, those local initiatives—many of which are very successful—will not be the pattern for how this works. So, I leave the Minister with a series of questions I hope he might be able to address.

The White Paper also does not help children and young people. It does not address the challenge of how to care for and support working-age adults with a disability. As I have said, it does not value or assist the informal workforce or carers. For an NHS under enormous pressure after years of austerity funding and then the impact of Covid, this is a disappointment. I am afraid that I could not decide whether it should get a C or a D.

[The Deputy Speaker (Lord Haskel) (Lab)]

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

Elective Care Recovery

Baroness Thornton Excerpts

Monday 7th February 2022 Lords Chamber

[Baroness Thornton (Lab)]

I thank the Minister for repeating that Answer; I am very glad that he did not bash the Dispatch Box. I remind noble Lords that this Urgent Question is only 10 minutes, so let us have quick questions. The facts that 1.1 million people are waiting for scans and tests, and that the House of Commons Library says that half a million people with suspected cancer will wait longer than the two-week target, mean that it is a shame that the Government’s plan to deal with this, which was due to be published today, was pulled late last night. I will not speculate about whether this was an argument between the Prime Minister and the Chancellor of the Exchequer, but I really hope that the Government are not playing political games with our NHS while 6 million people wait for care. Will the Minister please tell us when the elective recovery plan is now due to be published? Not that long ago, the Prime Minister announced a new target that no one should wait more than two months for a diagnosis. Is that an example of lowering standards because this Government have failed to meet them, or is it a temporary measure?

[Lord Kamall (Con)]

I thank the noble Baroness for not speculating. All I can say about the elective recovery plan is that there have been active discussions between my department and the Treasury, and we expect to publish it very soon. On waiting lists, we are looking at how we can best target the backlog. We know that about 75% of patients do not require surgical treatment but require diagnostics. About 80% of patients requiring surgical treatment can be treated without an overnight stay in hospital. Around 20% of patients are waiting for either ophthalmology or orthopaedic services. We are quite clear about what the issue is, and we hope to publish the elective recovery plan very soon.

Personal Protective Equipment: Accounting

Baroness Thornton Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Lord Kamall (Con)]

If I could correct the noble Baroness, the £8.7 billion does not refer to material that can no longer be used. As I said earlier, some of it can be repurposed or reused. On the so-called priority lanes, a number of government officials, Ministers’ offices, MPs, Member of the House of Lords, senior NHS staff, departmental staff and others were contacted. They then passed on these emails—I still get emails from people and pass them on to my department. All offers underwent a rigorous financial, commercial, legal and policy assessment. This was led by officials from various government departments as part of the PPE sale. The final decision on whether to enter into contracts sat with the appropriate accounting officer at the Department of Health and Social Care.

[Baroness Thornton (Lab)]

My Lords, I think it would be best if the Minister does not try to justify the VIP list, since he was not there. Consider the answer given by the former Minister for PPE procurement matters, the noble Lord, Lord Bethell, to a Parliamentary Question on 1 September 2021:

“As of 27 July 2021, the Department was engaged in commercial discussions (potentially leading to litigation) in respect to 40 PPE contracts with a combined value of £1.2 billion”.


Could the Minister please update the House on the situation with respect to that potential litigation and any attempt to recoup public money in the six months since the date of those official figures? If the Minister cannot provide the information today, could he write to me urgently, and ensure the information is placed in the Library?

[Lord Kamall (Con)]

The Department of Health and Social Care’s anti-fraud unit has acted quickly to investigate allegations of fraud. Indeed, this question came up when I was on a call with the unit earlier today; I was told that it saved £157 million in prevention and recovery by identifying and preventing high-risk contracts in the early days of the pandemic. There is a single company that is a potential source of loss, where we paid it and then terminated the contract as a preventive measure. I commit to write to the noble Baroness with a fuller answer.

Health and Care Bill

Baroness Thornton Excerpts

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

Moved by

[Baroness Thornton]

222: After Clause 80, insert the following new Clause—
“Cap on private charges
(1) Section 43 of the National Health Service Act 2006 is amended as follows.(2) After subsection (2A) insert—“(2B) An NHS foundation trust does not fulfil its principal purpose if in any financial year the proportion of the total income of the trust derived from private charges is greater than in the previous financial year unless—(a) the appropriate integrated care boards and integrated care partnerships have been notified of the intention that this increase will occur;(b) that intention has been published with a statement of the reasons why it is considered to benefit the NHS;(c) the appropriate integrated care boards and integrated care partnerships have used reasonable endeavours to consider any responses to the publication mentioned in paragraph (b); and(d) any integrated care board which has commissioned services from the trust, and the integrated care partnership for the board, have informed the NHS foundation trust that the proposed increase is justified.(2C) For the purposes of subsection (2B) “private charges” means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service.””Member’s explanatory statement
The amendment prevents any Foundation Trust from increasing its income from private patients unless this is agreed by the relevant commissioning bodies and the appropriate integrated care partnerships.

[Baroness Thornton (Lab)]

My Lords, Amendments 222 and 223, in my name, seek clarification about the private charges cap. Amendment 222 would prevent any foundation trust increasing its income from private patients unless this was agreed with the relevant commissioning bodies and the appropriate ICB. Amendment 223 would remove the power for NHS trusts and foundations to form subsidiary companies.

When foundation trusts were introduced in 2003, they were restricted in the amount of private patient work they could carry out. That was, in part, to alleviate concerns that they might unduly focus on generating income from private patients rather than tackling the then considerable waiting lists. The compromise stood for many years and proved to be little hindrance, although there is one trust on record that declined to move to foundation trust status because it did have a large private patient income—I will leave it to the Minister to work out which one it was. Overall, the regulations have been sufficient to ensure that such activity did not grow and waiting lists came down. The restriction only ever applied to foundation trusts—not to plain old NHS trusts, although we all know that they are, of course, subject to the will of the Secretary of State in all things anyway.

The notion of independence was reinforced under the new settlement of the 2012 Act. That removed the restrictions and allowed, at least notionally, for a foundation trust to move to have up to 50% of its income from private patients. Although there were some claims that this would lead to a huge acceleration of private patient work, once again that did not prove to be the case.

Now we arrive at today. The new Bill is based on the assumption that the logic of competition between acute trusts is indeed minimised and that they should be more focused on general good, and less on autonomy and their own bottom line than on co-operation between different parts of the NHS in their locality. Logic suggests that in this new world we should once again look at ensuring that private patient work has no adverse impact on the core work of the NHS. These amendments are similar to those that were used to ensure that private interests cannot be allowed to influence the work of ICBs, and that that should be recognised in the Bill.

I have another three, very detailed pages, but I will spare the Committee those. I beg to move.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

I thank the noble Baroness very much indeed. That makes it 15 all, I think.

The noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

--- Later in debate ---

[Baroness Chisholm of Owlpen (Con)]

Well done. You need Baronesses to do this: they get to the point and get it done.

I thank noble Lords for explaining these amendments. As they may recall, in 2012 we abolished the private patient cap while clarifying that the foundation trusts’ principal purpose is

“the provision of goods and services for the purposes of the health service in England”.

This means that foundation trusts must make the majority of their income from NHS activity and must always have as their primary purpose the delivery of NHS services. We also retained the requirement that additional income should be used to benefit NHS patient care, and it has been used across the system to offset such things as maintenance costs, to finance alternative transport such as park and-ride and to fund patient care.

This amendment would introduce a new cap by requiring foundation trusts to agree with their ICB and ICP their income from non-NHS sources. However, this would be a significant bureaucratic burden on foundation trusts and would require them to forgo raising additional income or seek agreement via a multi-stage process before doing so. It would also mark a significant new restriction on foundation trusts’ freedoms and autonomy.

Similarly, Amendment 233 would restrict the freedom of NHS organisations to decide locally the most appropriate structures they need to support their operations. There are multiple reasons for trusts setting up subsidiary companies, including providing services for other trusts and being able to attract staff from the local employment market. Creating a subsidiary can also be an alternative to outsourcing services to the private sector, thereby maintaining its staff within the NHS family. Importantly, in November 2018 NHS Improvement issued guidance to trusts about forming or changing a subsidiary. Under that guidance, all subsidiary proposals must be referred to NHS Improvement for review. NHS England and NHS Improvement paused their update of the guidance to trusts on subsidiary companies to allow the sector to focus on supporting the response to Covid-19 and the recovery of services. However, we remain committed to the review and the publication of this updated guidance is now set for early summer 2022.

I hope I have given the noble Baroness sufficient reassurance for her to withdraw the amendment.

[Baroness Thornton (Lab)]

I thank the Minister and am very pleased indeed to hear about the review. However, we on this side of the House believe that the NHS should be the default provider of clinical services and, if it is not the only provider, it should be the predominant one in geographical and service terms. That means that there must be investment in the NHS, not in the private sector. It is that balance, which we must ensure is in this Bill, that has protected NHS clinical services in the past.

I will read what the noble Baroness has said very carefully, and I might need further reassurance in due course. I beg leave to withdraw the amendment.

Amendment 222 withdrawn.

NHS Dentistry

Baroness Thornton Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Kamall (Con)]

My noble friend raises a very important point. I am sure many people understand that, when we first became aware of Covid, one issue was that, by its very nature, dental care can generate aerosols from the mouth, which presented a specific risk for dental activity. Once more was understood about Covid and its airborne spread, practices reopened in 2020 and were asked to provide urgent dental care. In addition, we have opened 700 urgent dental care centres to help patients in urgent need. You can also call 111. We are also looking at the longer-term reform of dental practice, and are in conversation with the BDA and others.

[Baroness Thornton (Lab)]

My Lords, the target-based NHS system was already unfit for purpose before Covid-19 and is completely incompatible with providing safe and sustainable services to patients as we emerge from the pandemic. Does the Minister agree that dentistry and the state of people’s mouths is becoming a serious issue which shows health inequalities? We are heading towards people who cannot afford dentistry, and their children, having rotten teeth. This is what the Minister must acknowledge and build into the health Bill that is before the House now.

[Lord Kamall (Con)]

We are very concerned about the potential inequalities. NHS England and NHS Improvement are very mindful of the risks of widening health inequalities. That is why, in their guidance, they specifically ask dentists to focus on providing urgent treatment for vulnerable groups and children and to delay planned care. NHS England has provided a flexible commissioning toolkit to local commissioners to help focus the available capacity on those who need it most and to reduce oral health inequalities.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I too support the noble Lord, Lord Warner. I well remember reading the report of the House of Lords Select Committee on the sustainability of our health and care services in 2017 and being rather jealous that I had not been on the committee, because it struck me as a very interesting one and it produced a very thoughtful and hard-hitting report. The office for health and care sustainability was probably the most crucial of its recommendations. Indeed, I think it would help the Government in making their decisions, because the body itself would not make the decisions but be independent, report directly to Parliament—which I thought was crucial—and look forward as far as it needed to look in a rolling programme of forecasting, assisting Ministers to make the right decisions.

Given the ageing population, resulting from improved healthcare, it had become very clear that funding was not keeping up, and indeed might never keep up unless things were done differently. That is why the committee chaired by the noble Lord, Lord Patel, also recommended the sort of integration that is at the heart of this Bill. It also reported on the lack of alignment between the funding of health and social care, which has resulted in the current gap in pay, particularly in the care sector, and the consequent staff shortage.

This was an excellent recommendation and, unlike other recommendations in the report, it has not been taken up—yet. The key thing about the body is that it would be authoritative, independent and unable itself to meddle in delivery. I would have thought that any Government would welcome the existence of such a body to do a lot of the work to establish what needs to be done and when. Unlike politicians of any political colour, it would be trusted by the public and would be staffed by experts able to gather and analyse the data. All Governments have their own focus—all Secretaries of State for Health have their own focus—and their own political priorities, which often depend on whatever the latest scandal has been, resulting in pressure from the public. Public health is too important for this, so I therefore support this amendment.

[Baroness Thornton (Lab)]

My Lords, we have had an important debate here, and I thank the noble Lord, Lord Warner, both for bringing these amendments before the House and for explaining their background and the important role of the Select Committee. We have debated it several times in your Lordships’ House and everybody in the House, apart from the Government Front Bench, it seems, thinks it is a brilliant report that should be acted on. This seems to be an opportunity for the Government to take on board some of its major recommendations, and this is one of them. We would support that, and we hope that the Minister might have some good news for us on that.

I also wish to speak briefly to the amendment in the name of my noble friend Lady Merron. The argument has already been made by other noble Lords—I am having a slight sense of déjà vu because I am sure I made a speech along the same lines in 2011—about the importance of Public Health England having a statutory basis to its work to give it transparency and accountability. The last two years must show us that that is the right thing to do. That is why I agree with my noble friend’s amendment to put the new UK Health Security Agency on to a statutory footing. As far as I can tell, in the past 20-odd years since I came to your Lordships’ House, every time that various Governments have mucked about with public health, they have got it wrong. Let us use this opportunity to get it right.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I thank noble Lords for bringing forward and explaining these amendments tonight. The specific functions that noble Lords describe in Amendments 225ZA and 285 are crucial functions that the Government are committed to ensuring are discharged in full. There are, however, several bodies in place that already fulfil these proposed functions.

The first proposed function would be a monitoring role and a duty to publish data. This important function is undertaken by the Department of Health and Social Care, which already monitors and publishes some of the data described in the proposed amendment; specifically, that relating to disease profiles, but also incorporating demographic trends, where relevant. The department also commissions independent academic modelling from the Care Policy and Evaluation Centre, or CPEC, to produce projections of the long-term demand on adult social care services. The CPEC model is updated regularly to reflect the latest available academic research and evidence, as well as important updates to key inputs such as ONS principal population projections, along with life expectancy and mortality rates, disability rates, household composition, availability of informal care and unit costs of care.

The second proposed function involves assessing the workforce and skills mix. We agree that workforce planning is a vital component behind any investment. We agree, therefore, that the assessment referred to in this function is extremely valuable. It is undertaken at present by the Department of Health and Social Care, working collaboratively with both Health Education England, or HEE, and NHS England. They work together to look at key drivers of workforce demand and supply over the long term, and will set out how these may impact on the required shape of the future workforce in its broadest sense to help identify the main strategic choices facing us, develop a shared and explicit set of planning assumptions, and identify the actions required.

There are two reasons why I have concerns with trying to involve another body in workforce planning, as this amendment suggests. First, I fear the new body proposed by noble Lords would be distant from planning decisions within the NHS and the needs of service delivery. The strength of the intention to merge Health Education England and NHS England is to tackle this very issue. Secondly, it would overlap and duplicate HEE’s existing statutory responsibilities for workforce planning and investment. To support this work, the department commissioned HEE in July 2021 to refresh its long-term strategic framework, Framework 15.

Moving on, the third proposed function focuses on the stability of health and adult social care funding. This Government are committed to funding stability and sufficiency, underlined by our decision to enshrine in law our five-year long-term plan funding settlement. Healthcare budgets are agreed at spending reviews, with the Office for Budget Responsibility scrutinising those budgets. Further independent financial assessment is therefore not necessary.

It is clear that, for each of the proposed functions, there are already well-established bodies and processes to safeguard the long-term sustainability of an integrated health and adult social care system for England, underpinned by reporting to Parliament. We do not think that the creation of a further body would add value.

I fully agree with the sentiment behind Amendment 281. The UK Health Security Agency, or UKHSA, must be fully accountable for its activities, and there should be full transparency as to how it operates. I can give reassurance, however, that the establishment of the UKHSA as an executive agency of the Department of Health and Social Care is the most appropriate model.

I assure your Lordships that we fully explored other organisational models. However, the executive agency model best facilitates a balance across the needs for strong operational delivery capability, scientific integrity, and the ministerial oversight and accountability necessary to command public confidence. The executive agency model allows for the delivery of executive functions of the department to be carried out separately from, but within a policy and resources framework set by, the department. As the noble Baroness will recognise, this level of flexibility is critical to ensuring a quick and effective response to Covid-type threats without needing to rely on legislation to confer functions, which this amendment would require. Any other approach would reduce the ability of the UKHSA to respond flexibly and rapidly.

In line with requirements for all executive agencies, multiple arrangements are in place to ensure accountability, transparency and effective governance for UKHSA. These include the framework document, which is soon to be published; the annual remit letter, published on 13 July; the business and strategic plans to be published each financial year; and quarterly accountability meetings. Also, UKHSA is required to publish information on contracts and expenditure under normal government transparency rules. As an executive agency, UKHSA must publish annual reports along with audited accounts after the end of each financial year.

It is for these reasons that I ask noble Lords not to press their amendments.

--- Later in debate ---

This issue is referred to in new Section 2A(4)(b). I would like assurance that this is prospective, not just retrospective, so that if the powers of the devolved nations expand, that expansion of powers will be respected and things will not be agreed without consultation with them over new powers, as well as the current powers they have in the legislation that gave them devolved competencies. It may be that it would be helpful to the Committee for the Minister to give us a specific example of where such an agreement might be entered into, how consultation would occur, and what the processes would be for seeking legislative consent. I find this clause very worrying.

[Baroness Thornton (Lab)]

My Lords, I am extremely grateful to the noble Lord, Lord Sharkey. Several months ago, some of his staff came to talk to me about the international healthcare part of the Bill. I said pretty much what the House decided two and a half years ago, which the noble Baroness, Lady Brinton, described. I said that we would be very sceptical of it, because we had to cut a Bill in half all those years ago to take out the international bit and leave in the European and Swiss bit because of the powers that it gave the then Secretary of State to make agreements with persons—without specifying who they might be. I remember it very clearly. So when I saw that the noble Lord had put down clause stand part, I regretted that I had not put my name to it at that time, because I realised that we would have to address this aspect of the legislation. I will not object at all to the two minor amendments, as I realise that they are simply drafting amendments, but unless we can resolve this in some way which deals with the powers, I fear that we will return to this on Report, and we will certainly support a move to remove this clause from the Bill.

[Lord Kamall (Con)]

My Lords, I am grateful to the noble Lord, Lord Sharkey, and others for their comments and for their engagement with the Bill team on this issue. We currently have only limited healthcare agreements with countries outside Europe. They support people from the UK to access medically necessary healthcare but do not always provide comprehensive cover for those who need it. The powers included in this clause will enable the Government to implement comprehensive reciprocal healthcare agreements with countries around the world, not just with the EEA and Switzerland. This will allow the reimbursement of healthcare costs and the exchange of data to facilitate a reimbursement process. By implementing such agreements, we hope that we can better support people when they are abroad. We have listened to concerns previously expressed in the House, so the Bill will also remove Section 1 of the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which provided a freestanding payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland. This is no longer needed, following EU exit.

We are replacing this power with regulation-making powers which can provide for payments to be made in two circumstances: one, to implement healthcare agreements, and two, in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of that agreement and the Secretary of State determines exceptional circumstances exist to justify payment. These are not the same powers that were originally drafted in the 2019 Bill. We have listened to Parliament and limited the scope of the powers to those necessary to deliver the policy intention. We have, for example, revoked the unilateral payment powers, which would enable the Secretary of State to make wide-ranging payments for healthcare outside healthcare agreements. The UK recently successfully concluded a trade and co-operation agreement with the EU, which includes comprehensive reciprocal arrangements. Therefore we see this as an appropriate time to tailor existing powers so they allow us best to support the healthcare needs of UK nationals across the world.

We hope that these legislative measures will allow us to strengthen existing agreements with non-EU countries or form other healthcare partnerships should we wish to in future. This includes looking to improve our healthcare co-operation with key international partners, the Crown dependencies and our overseas territories. We also want to offer more healthcare cover to UK residents travelling abroad for tourism or short-term business purposes, similar to the arrangements available to them when they visit EU countries.

I take this opportunity to confirm that there are no Henry VIII powers in this clause; they were removed during the passage of the Bill in 2019 and have not been put back. In response to the question of the noble Baroness, Lady Finlay, the Bill requires consultation with the devolved Administrations over the drafting of regulations made under the powers in this clause, and we are pleased that the devolved Administrations have all agreed to recommend that legislative consent is granted for these provisions.

In addition, the negotiation of international health agreements is reserved, and the devolved Administrations have a role to play in implementing those agreements. That is why we laid amendments in the House of Commons on Report of the Health and Care Bill. These amendments give the devolved Administrations power to make regulations in the areas of devolved competence within reciprocal healthcare.

As we are all too aware, healthcare co-operation between countries is a vital aspect of the global society we are a part of. Reciprocal healthcare provides safeguards and support for our most vulnerable as well as greater opportunities to travel, for work or leisure. I thank the noble Lord, Lord Sharkey, for his suggestion that we have a meeting before Report for further conversation.

--- Later in debate ---

[Baroness Bull (CB)]

My Lords, Amendments 233 and 234 are in my name and I am grateful for the support of my co-signatories and of Mencap and nine other working-age disabled adult charities, whose concerns these amendments reflect. Clause 140 would amend Section 15 of the Care Act 2014, which places a limit on the amount adults can be required to pay towards eligible costs over their lifetime. The Government intend to set that cap at £86,000, irrespective of age and income.

My amendments would “switch on” the section of the Care Act that allows different rates to be set for specific groups, and define one specific group as people between the age of 18 and 40 who are eligible to receive care and support. The effect would be to implement Dilnot’s recommendation that people entering the care system at or under age 40 have their care costs capped at zero. This would apply both to new applicants and to existing users who have accessed care and support since before the age of 40.

The Government have argued, and expert bodies have accepted, that no one will be worse off under their proposed charging reforms. But this does not make them fair and it does not make them just. They fail to recognise that people with mental, physical and learning disabilities will need additional care and support to participate equally in opportunities that many of us take for granted. They also fail to acknowledge that this inevitably leads to higher costs of living and leaves working-age disabled adults with little or no chance of accumulating assets or savings.

The Government’s impact assessment shows that savings and assets are particularly low among younger adults: 73% of 16 to 35-year-olds have made no plans to pay for social care, and ONS figures show that wealth for households where the head is 55 and over is 25 times higher than households aged between 16 and 24. But, of course, all these figures refer to the working-age population who are able to work and therefore earn, and employment rates among disabled people are shockingly low. Just 50% are in work, and this drops to 20% for those with a learning disability. This of course means many disabled people do not have access to regular earnings or career trajectories that deliver rising salaries. So, not surprisingly, disabled people have, on average, £108,000 less in assets than their peers without disabilities. According to the Joseph Rowntree Foundation, 38% of working-age disabled adults in the UK live in poverty.

On top of these limited opportunities to earn and save, most working-age care users have a long-term condition or disability that will require costly care and support long before they reach old age and, in many cases, from birth. Scope tells us that, on average, disabled people face £583 of extra cost for every month of their lives. And, of course, very few have the resources to self-fund their care. The vast majority are either below the lower capital limit or in the means-tested system. In this case, their care needs are assessed and those needs deemed eligible are part-funded by the local authority. Needs deemed ineligible are not funded, but they are still needs, and needs have to bet. Often, this is the kind of care that enables the interactions with the workplace and social and leisure opportunities that my noble friend Lady Campbell spoke about. As funding pressures on councils lead to further squeezing of eligibility criteria, as she described, more disabled people are having to fund more care from their own pockets.

But of course, as we heard when the Government introduced new amendments on Report in the other place, this contribution will not count towards the cap. Only the amount the individual contributes to the cost of their eligible care needs will count towards the cap—not the support they receive from local authorities and not the cost of ineligible needs, even though they are genuine needs and funded entirely from individuals’ own pockets. So the consequence of this controversial change is that those people least able to afford it will be spending a greater proportion of their assets and income on social care costs. Let us be clear: that income will come from benefits. The impact assessment says its calculations

“assume users do not make contributions to their care from their income and … all contributions are from user assets.”

But in the very next line, it admits:

“In reality, whilst income from employment is excluded from the means test, income from some benefits would be included.”


So disabled people not only face higher care and support costs but are less likely to be able to earn and therefore save—and they are experiencing parallel pressures on their benefits income from rising care contributions.

The Government’s analysis does not take this into account. These oversights in the analysis cast serious doubts on whether enough has been done to understand the specific needs of younger adults requiring care and how they differ from older people. No one would argue that older people do not deserve support, but it is hard not to conclude that the Government’s reforms are primarily concerned with people who develop care needs in later life, having built up assets and savings, at the expense of working-age adults with long-standing needs.

We have already heard the Minister this evening refer to the danger of unintended consequences. I urge him to consider the consequences of these reforms for those people who most need support and to consider my amendments as a fair and just way to protect them from catastrophically high costs they cannot afford for care they cannot afford to live without. “No one will be worse off” is not, I am sure, what this Government mean when they talk about levelling up. We can and should aim higher.

[Baroness Thornton (Lab)]

I am standing here to speak in the place of my noble friend Lady Wheeler, because—as irony has it—she is a carer and has had to go home to care for her husband. I find that an irony. My noble friend wanted to speak at this point because we are very keen to make our points in the debate on clause stand part. First, I congratulate the noble Baroness, Lady Bull, who tabled Amendment 233, which leads the discussion on this highly controversial clause. She spoke with clarity and precision—and, of course, I thank her for her support of the other amendments.

Health and Care Bill

Baroness Thornton Excerpts

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

[Lord Bethell (Con)]

My Lords, I an enormously grateful for this debate, because this clause and related clauses are critical both to achieving the digital transformation aims of the NHS, referred to by the noble Lord, Lord Clement-Jones, and to getting the healthcare system to work better together.

I am also grateful for the humanity and testimony of several noble Lords, exemplified by the noble Baroness, Lady Finlay, who spoke movingly about the practicalities of patients going to see their doctors. I know from my own life and from my family how important it is to protect those relationships.

That is why I would like to hear a little from the Minister about what protections there are, because health data is and should be treated as a special category of data. What additional protections are there in the use of health data, including in the common law duty of confidentiality, the role of the National Data Guardian, the way the Caldicott principles will be used and the national data opt-out? What reassurances do we have that those special considerations will apply to this clause and its related components?

[Baroness Thornton (Lab)]

My Lords, I agree with my noble friend Lord Hunt and those speakers who expressed their concern about the open-endedness of what is in the Bill at the moment and the lack of protection for patient data. I look forward to the Minister’s reply on this.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I am grateful to the noble Lord, Lord Hunt, particularly for his brief and, as always when he speaks, his clear understanding of the amendment. It makes it so much easier for us to know where the noble Lord is coming from.

I am grateful to all other noble Lords who spoke on this issue, and I understand the interest in the integrated care boards’ power to disclose information that is personal data. As the noble Lord, Lord Hunt, mentioned, public trust is essential in this and individuals’ data will be used lawfully and with respect, and held securely with the right safeguards in place. It will need to be proportionate, transparent and subject to individuals’ rights to access and correct information in use.

Let me further explain how we will make sure this happens. I assure noble Lords that the clause already restricts integrated care boards’ powers to disclose information by limiting these to the specific circumstances set out in the clause. Further, all use of personal data is subject to data protection legislation, including the UK general data protection regulation and the Data Protection Act 2018. This legislation 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.

Under the UK GDPR, health data has to be treated as a special category. This data requires additional protections due to its obvious sensitivity. For this type of data to be lawfully processed, a further condition must be met, in addition to identifying a lawful basis, as set out in the GDPR and the Data Protection Act.

This data protection legislation applies to the use of all personal data and provides robust safeguards in relation to information and disclosure. Importantly, there are additional protections on the use of health data, including the common-law duty of confidentiality, along with the role of the National Data Guardian, who advises and challenges the health and care system to help ensure that the public’s confidential information is safeguarded securely and used properly. As the noble Lord, Lord Hunt, mentioned, there are also the Caldicott principles; there are seven of these, which I am sure noble Lords are aware of, so I will not go through them all now. They provide guidance to health and care organisations on the use of confidential information. Along with this, there is also the national data opt-out.

I remind the Committee that new Section 14Z61 will apply, which provides when an ICB may disclose information obtained by it in the exercising of its functions. I emphasise that maintaining trust that healthcare data is being used properly is paramount. Individuals’ data will be used lawfully and with respect, held securely and have the right safeguards in place. None of the changes we are making will remove the duties of organisations to comply with the requirement of data protection legislation. Along with that, we are working with the Home Office to ensure that the protection and confidentiality of patient information is upheld within the Police, Crime, Sentencing and Courts Bill. Appropriate safeguards are in place and the Bill makes it clear that information can be shared only in accordance with data protection laws.

I am concerned that this amendment could cut across the different pieces of relevant legislation, preventing the ICB from effectively discharging its functions where it may be necessary to disclose information, which may include personal patient data. This would include 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, with different rules applying to different organisations.

I know that my noble friend the Minister, the noble Lord, Lord Kamall, has agreed to talk about this further with the noble Lords, Lord Hunt and Lord Clement-Jones. He wants to meet civil liberties organisations, along with them, to discuss this subject further. However, I regret that the Government cannot accept this amendment. I hope that I have given the noble Lord some reassurance and that he will feel able to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton (Lab)]

My Lords, my noble friend Lord Hunt and the noble Baroness, Lady Walmsley, started what I hoped was going to be a discussion about ICPs.

My first question is this: who was consulted on the structure, membership and role of ICPs? This question has hung over all our debates from the beginning. The Minister has said several times that this is what the NHS wants—well, which bit of the NHS? Who was consulted? As far as we can see, in the role proposed in the Bill, it is not at all clear who was consulted on how ICPs should operate. Indeed, in a previous debate, we asked how this will work with the role of health and well-being boards. That has still not been answered. It is not at all clear why both things are needed; that is the first point. My noble friend Lord Hunt is right that, at the moment, the Bill raises more questions than it answers.

In particular, the idea that local councillors cannot be members is ridiculous and slightly offensive, because the role of the ICPs is to discuss strategy and local health infrastructure and delivery. Their role is absolutely vital.

[Lord Hunt of Kings Heath (Lab)]

My noble friend raises a very important point, because councillors can presumably go on integrated care partnerships and health and well-being boards but cannot go on the integrated care boards—but one of their officers can. What is the logic? Can my noble friend help me? So far the Government have given no answer whatever as to why. I know I am going on about this, but it is a fundamental issue: why are local authority councillors not seen as core partners on integrated care? It makes a mockery of the integration. There is no integration: they are setting up two separate boards. I do not know why they are not setting up one integrated board to cover the NHS and the partnership. It defies understanding. Why have they come up with this complicated arrangement and are continuing with health and well-being boards? Can my noble friend help me?

[Baroness Thornton (Lab)]

I certainly cannot help my noble friend, but I live in hope that the Minister can. It smacks of a fix. The Minister might not be prepared to say on the Floor of the House what exactly the fix was between the various bits of NHS England and various bits and other parts of the machinery. I suspect that the noble Lord, Lord Lansley, might know better than the rest of us what that fix was.

I will comment on my noble friend Lord Davies’s amendment. The problem with it is that, as the ICPs are proposed in the Bill at the moment, they will not be spending any money or commissioning services. It is also important that they include the various important parts of our local health delivery systems, including pharmacists, dentists, GPs, social enterprises and the voluntary sector. As I read it, this amendment would exclude hospices, for example—which would be a ridiculous thing to do. So my noble friend might want to rethink that amendment, because it does not necessarily serve the intended interests of the ICPs.

[Lord Kamall (Con)]

I thank all noble Lords, especially the noble Lord, Lord Hunt, for the points they have raised. ICPs will play an important role in co-ordinating services, planning in a way that improves population health and reduces inequalities between different groups. It is right that we consider the best conditions for their success. I was asked where the idea for ICPs came from. It originated from the Local Government Association. We have had extensive consultation with both the LGA and NHS England. To be clear, councillors can sit on ICPs.

[Baroness Thornton (Lab)]

Is that the fix: that councillors are not allowed to sit on the ICBs, where the money is spent, but they are allowed to sit on the ICPs? That is not acceptable to me.

[Lord Kamall (Con)]

I do not see it as a fix. The consultation was much wider than just NHS England. In November 2020, NHS England ran a public consultation on the structure of ICSs, including NHS staff, patients and members of the public.

--- Later in debate ---

[Baroness Cumberlege (Con)]

My Lords, I also support these amendments. Earlier in Committee, I described the noble Lord, Lord Mawson, as

“a man of infinite resource and sagacity, an entrepreneur and … a great achiever”.—[Official Report, 18/1/22; col. 1575.]

I am sure that, if noble Lords are not convinced, these amendments will further endorse my description.

I now add that the noble Lord is a very determined reformer. He has told us how the present systems serving the public are not fit for purpose. The Government are trying through this Bill to remedy that through greater integration and other measures. It was Edmund Burke who said that, if you want to preserve something important, you need to be prepared to reform it. Our systems are important and need reforming.

Amendment 159A is about the financial duties of the NHS in England and solidarity. In the previous debate, I mentioned Bromley by Bow, as the noble Lords, Lord Mawson and Lord Howarth, said. Bromley by Bow was the forerunner of other imaginative, ground-breaking and huge entrepreneurial schemes in the north of England, London and Surrey. The examples are breathtaking but they cost energy, hard work, original thinking and money. It is sad that these scarce resources are dissipated by the convoluted systems that we, the nation and the Government impose on burgeoning and, at the beginning, fragile schemes. However, Bromley by Bow is not one of these. It is well established but not secure due to having to navigate 41 different funding schemes, as the noble Lord, Lord Mawson, said. Huge effort and wasted time are spent trying to integrate these schemes for the use of a single neighbourhood centre.

I strongly support Amendment 210A. The noble Lord is right: he paints a compelling picture of the future, which will be realised only if our public health, prevention and provision of services collaborate in partnership with local organisations. They understand the history, dynamics and strengths that permeate their local place—their neighbourhood. The noble Lord is also right that, to thrive, ICSs will have to embrace the principle of solidarity, which is the essence of a successful project; that includes the financial duties of NHS England.

I have lived in my community from the age of five. In another debate, I said that my father, a GP, knew his patients inside and out. I, too, know my villagers inside and out in a different way. I treasure the relationships I have made with local organisations. We fight for every shop and organisation that is threatened. We welcome newcomers. We have produced a pocket list of 45 organisations with a mantra on the front saying, “Newick”—my village—“is here for you”. It goes on to say that there is so much going on in our village and there is something for everyone, whether you would like a new hobby, to make new friends or just give something back to the community. Get active, get involved and get happy.

I strongly support Amendment 210A, which urges local providers in particular to be prioritised. I certainly support that. This is not about get-rich-quick developers, who have no regard for the nature of the community in which they are going to build, building bricks and mortar. In our village, we fight for employment, which is absolutely critical in local communities. It reduces traffic problems and helps to mitigate global warming. Above all, it goes some way to generating happy communities. It generates the Government’s intention to make place an important component of a stable community. Surely that is what we all want.

[Baroness Thornton (Lab)]

My Lords, we on these Benches said everything we needed to say on this matter in support of the noble Lord, Lord Mawson, when we had the substantial debate. I do not know when it was—last week, I think. These two amendments flow from that. We probably could have taken them then, but I am sure that the Minister will have useful things to say.

[Earl Howe (Con)]

My Lords, we return to the very important theme of subsidiarity, to which the noble Lord, Lord Mawson, has brought us in both his amendments and his powerful speech, born of his immense experience in the real world.

I will begin with Amendment 159A, if I may. One of the main reasons for introducing this Bill was to ensure that existing collaboration and partnership working across the NHS, local authorities and other partners was built on and strengthened. This relates especially to the framing and monitoring of assessments and strategies. We intend for these assessments and strategies to be a central part of the decision-making of ICBs and local authorities. That is why we are extending an existing duty to ICBs and local authorities to have regard to the relevant local assessments and strategies. Furthermore, the integrated care board and local authorities will both be directly involved in the production of these strategies and assessments through their involvement with both the integrated care partnership and the health and well-being boards. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are already several mechanisms to ensure that ICBs and local authorities will have regard to the assessments and strategies being developed in their areas. First, health and well-being boards have the right to be consulted by ICBs and give NHS England and ICBs their opinion on whether the joint forward plans take account of the joint local health and well-being strategy. Likewise, as part of its annual assessment of ICBs, NHS England must consult each health and well-being board on how well the ICBs have implemented the relevant joint local health and well-being strategies.

There are what one might call insurance policies embedded in these arrangements. Each ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy. It must also consult the health and well-being board when undertaking that review. Finally, NHS England has formal powers of intervention if an ICB is not complying with its duties in any regard. Putting all this together, we think that it is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans.

The emphasis is on collaboration. Implicit in that concept is the two-way street on the sharing of ideas and exemplars that the noble Lord, Lord Mawson, called for and illustrated in his examples. Given the strong collaborative measures in the Bill and the strong foundations of collaborative and partnership working across the NHS, local authorities and other partners on which this Bill is built, we do not think that further provision is required. We would expect an ICP to resolve disagreements through discussion and joint working rather than additional, potentially burdensome procedures.

Amendment 210A brings us once again to the role of non-statutory organisations in helping to create and sustain healthy communities. I want to stress straightaway that the Government hugely value the contributions of the voluntary, community and social enterprise sectors to the health and well-being of the nation. We recognise their important role in supporting the health and care system.

The Government fully expect that commissioners will also recognise this contribution and role going forward. This role will be particularly important in efforts to recover performance and move beyond a purely reactive service to building a sustainable and personalised health and care system, something the non-statutory sector is uniquely placed to offer. I think the lessons learned, so well described by the noble Lord, Lord Warner, in the previous set of amendments, are widely accepted nowadays.