Health and Care Bill

Baroness Walmsley Excerpts

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

[Baroness Barker (LD)]

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

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

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

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

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

[Baroness Walmsley (LD)]

My Lords, I, too, support the noble Baronesses, Lady Greengross and Lady Finlay. It is right that people should have the cost-effective continuing care to which they have a right. I have my name on the amendment tabled by the noble Lord, Lord Sharkey, and I intend to make some very brief comments about that, although I make the point that the need for us to be brief is the Government’s own fault, because they have not given us enough days in Committee—fewer in fact that in another place.

On the amendment, we refer to the 15th report of the Delegated Powers and Regulatory Reform Committee. I have rarely read such a hard-hitting report by this highly respected committee. One of the worst of the Henry VIII measures that it mentions is allowing zero scrutiny on allowing NHS England, merely by the publication of a document, to impose a financial liability on an ICB. It specifies the circumstances in which an ICB is legally liable to make payments to a provider under arrangements commissioned by another ICB. The Government claim that this is an operational matter. However, if you believe that an ICB should be in total control of deciding how its funds are spent in its area in order to fulfil its duties, you might think that this is an important thing—a legal liability to pay for something that another organisation has decided to commission is quite a serious matter. The DPRRC thinks so and so does the Constitution Committee.

In their response to the DPRRC, as quoted in Appendix 1 of the committee’s 16th report, the Government said that they

“recognise that the Bill contains a significant number of guidance making powers, powers to publish documents and powers of direction.”

They suggest that

“these are appropriate because they reflect the often complex operational details, which are better illustrated by examples and guidance rather than legislation.”

The Government go on to say that there is currently a precedent in the powers of the clinical commissioning groups.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 147 concerns the establishment of integrated care partnerships. Although the amendment is specifically about the membership of ICPs, I think that it is appropriate that I comment more generally on ICPs and their role. As I see it, the proposals on integrated care partnerships can be seen as an attempt to try to bind the NHS more closely into a wider system that delivers much wider services contributing to care and well-being.

Particularly at issue is the relationship between the NHS and its partner local authorities. If there is to be a genuine generational shift in thinking that moves the NHS from being a sickness service to one that contributes to the overall well-being of the public, that must be welcomed. Of course, there is a lot to do. At the heart of the issue must be who decides how the money is spent. Who sets the priorities and allocates funding down to place or to service line? If it is just the NHS itself through integrated care boards, that will not work. We have to widen the decision-making to ensure that other voices are heard.

What is missing is some assurance that integrated care partnerships are to have some focus not just on wider well-being but on the need to reduce inequalities and to leverage maximum social value for the area covered. Here, the skeletal nature of the Bill once again gives rise to many more questions than it answers. How are integrated care partnerships to be performance-managed? Will there be an executive? Where will the funding come from? Can the ICP actually deliver any services? Could ICPs be the hub for shared services across the NHS and local authorities?

We have so far heard very little about ICPs; there has been much more emphasis on integrated care boards. Many noble Lords have remarked that the Bill is too focused on the NHS. It is clear that, so far, much energy has been put into the establishment of ICBs and much less into the establishment of integrated care partnerships, which are due to be set up jointly between the NHS and the relevant local authority or authorities. That shows that the building blocks are flawed, because essentially local authorities should have been equal partners in the establishment of integrated care boards. If this was really an integrated Bill about the NHS and adult social care, surely local authorities would be equal partners with the integrated care partnerships on the integrated care boards.

I do not want to go over old ground, but the very fact that NHS England is excluding local authority councillors from the integrated care boards means that it does not want a serious NHS contribution on ICBs from local authorities. I can only take that as the reason for wanting to exclude local authority councillors.

Finally, I will make a general comment about ICPs. The noble Lord, Lord Lansley, raised this earlier. I fail to understand why health and well-being boards are continuing in parallel with the integrated care partnerships. I hope that we might at some stage get an explanation.

That brings me to my amendment. I have concerns about the neglect of primary care and I think that local representative committees have been an important part of the NHS since its foundation. I see no reason why they cannot be assured of some kind of presence on the new integrated care partnerships.

We had a very good debate last week, led by the noble Lord, Lord Crisp, on the role of primary care generally in these arrangements. The Minister said that it was important to consult the relevant primary care local representative committees, and that was why there was a provision under new Section 14Z52 to introduce a duty to consult anyone the ICB and its partner trusts considered appropriate when preparing the forward plan. But underlying my amendment is a concern expressed by the noble Lord, Lord Warner, who on Thursday asked whether the Minister was aware that the influence on key decision-making in the NHS was diminishing for primary care in general and GPs in particular.

In response, the Minister was clearly sympathetic to making sure that primary care was better represented and not dominated by acute trusts. He said that he was open to further discussions in this area and I hope that he will extend those discussions to the membership of ICPs as much as integrated care boards.

The Minister may say that ICP membership is best left to the local level, but I do not think that that is sufficient. We are fully entitled to agree the framework of the new arrangements. Primary care is at risk of being marginalised and that cannot be left to local discretion. I beg to move.

[Baroness Walmsley (LD)]

My Lords, as the noble Lord, Lord Hunt, said, Clause 21 is about representation on the integrated care partnerships, and new Section 116ZA specifies who should be on the committee of the partnership. The Bill currently specifies that one member of the ICP should be appointed by the ICB and one by each of the local authorities. The partnership is also free to appoint others. My Amendment 148 requires that one of these additional members must have responsibility for public health—and in that I include public mental health—and one must demonstrate that he or she can represent local voluntary organisations.

It is tempting in a Bill such as this to assume that all the members of these very influential committees should be from the major health organisations or local authorities in the area. However, there are many small community organisations run by charities or not-for-profit groups that play a very valuable role in providing services to local communities in a very cost-effective manner. Unless they are represented at ICP level, it is quite possible that their survival will be threatened by the new arrangements—and we heard in previous debates that they already do feel threatened. I am sure that the Government do not want that.

Similarly, public health has a major role to play in addressing many of the preventable diseases that contribute to health inequalities—and it looks after the tracing of communicative diseases. We saw the value of that recently when it was a great deal more effective than the national test and trace service at tracing the contacts of Covid-positive patients.

So, the work of both groups is very cost effective. If the ICB and the ICP are to use their resources efficiently and fulfil their duties to level up health inequalities, it is important that both groups are represented on the integrated care partnership. I echo the comments from the noble Lord, Lord Hunt: the Bill is quiet on the structure of and representation on the integrated health partnership. Given the duties that it is being asked to perform, it is perfectly reasonable for us to suggest that some of those important duties are properly covered in representation.

[Lord Davies of Brixton (Lab)]

My Lords, in speaking in support of my Amendment 150, the issue is simple. We have much to learn about ICPs; I associate myself with the remarks of my noble friend Lord Hunt.

My proposal is that the rules determining the membership of ICPs should be consistent with the rules for membership of ICBs. As the Committee will be aware, it has been agreed, with the amendment made in the House of Commons, that ICBs will not and cannot be controlled by the private sector, in any way. I believe that the Health Minister, Edward Argar, made the point of principle clear when speaking during the Commons Report stage. He said that

“ICBs will not and cannot be controlled in any way by the private sector, as NHS-accountable bodies guided by the NHS constitution and with NHS values at their heart.”

Let us just remind ourselves that the requirement added by the Government to Schedule 2 is that an ICB’s constitution “must prohibit” a candidate being appointed to it if the person making the appointment considers, in the Government’s words in the amendment,

“that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.”—[Official Report, Commons, 22/11/21; cols. 119-61.]

We might not agree with the wording adopted by the Government, as previously discussed, but the principle is accepted on all sides.

So, as with ICBs, we should have a parallel provision for ICPs. In this, I am simply following what the Minister said in relation to ICBs: he wanted

“to put the matter even further beyond doubt.”—[Official Report, Commons, 22/11/21; col. 116.]

I emphasise “even further”. The debate here is not really about the precise wording of any amendment; it is about the principle of extending to ICPs the same protection that, as has already been agreed, should be extended to ICBs.

I look forward to the Minister’s reply. It is possible that, given the way in which ICPs are appointed—on the one hand, by ICBs, which are already protected by the Government’s amendment to Schedule 2, and on the other hand, by local authorities—it might be suggested that the issue simply does not arise and that protection is already there. However, if only to put the matter even further beyond doubt, why not accept my amendment?

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[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.

[Baroness Walmsley (LD)]

May I ask the Minister whether councillors were consulted?

[Lord Kamall (Con)]

I do not know for certain, but I am sure their views would have been heard via the Local Government Association.