All 21 Earl Howe contributions to the Health and Care Act 2022

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Tue 7th Dec 2021
Health and Care Bill
Lords Chamber

2nd reading & 2nd reading & 2nd reading
Tue 11th Jan 2022
Health and Care Bill
Lords Chamber

Committee stage & Lords Hansard - Part 1 & Committee stage & Lords Hansard - Part 1 & Committee stage: Part 1
Tue 11th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Lords Hansard - Part 2 & Committee stage: Part 2
Thu 13th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Lords Hansard - Part 2 & Committee stage: Part 2
Tue 18th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 1 & Lords Hansard - Part 1 & Committee stage: Part 1
Tue 18th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Lords Hansard - Part 2 & Committee stage: Part 2
Wed 26th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 1 & Committee stage: Part 1
Wed 26th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Committee stage: Part 2
Wed 26th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 3 & Committee stage: Part 3
Mon 31st Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 1 & Committee stage: Part 1
Mon 31st Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Committee stage: Part 2
Fri 4th Feb 2022
Wed 9th Feb 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 1 & Committee stage: Part 1
Tue 1st Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 1 & Report stage: Part 1
Tue 1st Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Report stage: Part 2
Thu 3rd Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Report stage: Part 2
Mon 7th Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 1 & Report stage: Part 1
Mon 7th Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Report stage: Part 2
Wed 16th Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard _ Part 1 & Report stage: _ Part 1
Wed 16th Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Report stage: Part 2
Tue 5th Apr 2022
Health and Care Bill
Lords Chamber

Consideration of Commons amendments & Consideration of Commons amendments

Health and Care Bill

Earl Howe Excerpts
Baroness Uddin Portrait Baroness Uddin (Non-Afl)
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My Lords, I spent some decades of my personal and professional life trying to improve health and social care through the statutory and voluntary sector. I welcome the prospect of refining the Bill in the interest of service users and staff alike, to whom I pay my deepest respects in the light of what has been an impossible and worsening situation for the health of our nation.

I recently witnessed two contrasting events: a patient in an acute ward for mental health, and another progressing though intensive care and then a surgical ward. The staff shortage and lack of adequate care support is indeed grave at every level, and I know my family will not be the first or last to share these harrowing experiences. Therefore, my principal reaction to the many aspects of this ambitious legislation and the report on adult social care is that they ring hollow as wishful prayers.

The Government have said that the Bill is driven by NHS demand. I fear that most frontline staff across the service do not agree; nor have they asked for the inevitable fragmentation and the huge structural upheaval which may result, given the existing shortage of staff and funding within the NHS and care sector as it struggles with Covid.

Of course, I hope that the panacea on the written papers will improve service users’ actual experience. Given the glaring lack of any meaningful references to workforce development and, ominously, of any indication that the long-standing consequences of inequalities and discrimination are being addressed, my confidence is rather low at this point.

We are asked to respond to a 10-year plan fit enough to address a massive, long-standing crisis where people are waiting to receive the urgent care to which they are entitled: 1.5 million hours of commissioned care is not being delivered and at least 400,000 adults and families are waiting for formal assessment. This gravely undermines the human rights of those who may already be experiencing a great deal of indignity, pain and desperation. Does the Minister accept that the new proposed boards and commissioning structures may create an even greater backlog of unmet needs?

How do the Government propose to address these anomalies while introducing the new challenges of means-tested personal care and private care companies into an already frail NHS, which struggles to manage current demands? According to the Royal College of Nursing, the Bill as it stands does not address nursing staff concerns, ensure patient safety or give adequate weight to staffing shortfalls in the NHS and the social care sector.

According to other leading experts, including ADASS, £1 billion for the social care sector, while extremely welcome, is not aligned to the reality of the £7 billion investment required to meet urgent needs, and is unlikely to remedy the current crisis in social care. The fear is that the prolonged and chronic historical underfunding—the insufficient resources allocated for social care in the community, which is a disjointed system at local level—will exert even more pressure and cause untold misery and suffering for individuals and families who are among the most vulnerable: the elderly, the disabled with learning disabilities and autism, and people needing mental health support. Integrated care will therefore remain dysfunctional locally, regardless of the fact that half the available social care budget is spent on working-age adults with learning and physical disabilities and the elderly to empower care in the community.

We know that supported housing is seen as a critical linchpin of independent living and is projected to increase by 2030. With only £300 million for these options, does the Minister accept that the Government will have to broaden their reach to widen the network of providers, including specialist and BAME providers, to provide comprehensive and equal care across all communities?

How will these proposals affect the lives of black and Muslim men experiencing mental health crisis who are festering in hospital wards without adequate support, counselling and rehabilitative programmes, and with next to nothing on prevention? I am pleased to hear the new announcement for funding for drug and alcohol treatment. As an experienced leader in the field of dealing with substance misuse at local and national level, I can assure the House that adequate funding for resources and social work support is indeed effective in preventing revolving doors, which can save the NHS and the justice system millions. As the distinguished noble Lord, Lord Ramsbotham, clearly and eloquently said, the Bill should be the right place to consider this service.

Caring institutions and organisations are often run by poorly paid and undertrained staff, including social workers, who are once again in our sight for scrutiny. I declare my interest as one. I have worked in child protection and with domestic violence victims and survivors, as well as those with disabilities and substance misuse problems. I understand the horrendous pressures at the front line.

I have two final points. The APPG on Children, alongside many leading NGOs, is anxious that the Bill does not do enough to bring the benefits of integrated working to children and families. I support its asking the Government to commit to assess the Bill’s impact on children within two years of its implementation. Lack of investment in social work, police and education has once again led us to a tragic death, that of Arthur Labinjo-Hughes. As a social worker, I have witnessed the demeaning and catastrophic effect of child abuse. Heartbreakingly, it is a fact that lessons learned from what happened to diminish the hope, the smiles and Arthur’s last breath may not prevent the last cry of a child unless we empower staff at the front line of managing complex violence and abuse in our midst.

Finally, I draw the House’s attention to the points raised by the Inter-Collegiate and Agency Domestic Violence Abuse coalition. It views the Bill as an opportunity to deliver the health needs of survivors of domestic abuse. It rightly asks that the guidance for integrated care systems and partnership boards be placed on a statutory footing to ensure that it is adhered to across the health service. I agree with the noble Lord, Lord Shinkwin, that this guidance should also apply to those with learning disabilities and communication needs.

I welcome and congratulate noble Lords—

Earl Howe Portrait Earl Howe (Con)
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My Lords, contrary to the clock, the noble Baroness has been speaking for nearly eight minutes. Perhaps she could bring her remarks to a conclusion.

Baroness Uddin Portrait Baroness Uddin (Non-Afl)
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I welcome and congratulate the noble Lord, Lord Stevens of Birmingham. I hope that we will all work together to enhance this Government’s efforts for better regulation. I hope that we can safeguard the needs of the most vulnerable in our society.

Health and Care Bill

Earl Howe Excerpts
Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022

(2 years, 3 months ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-II Second marshalled list for Committee - (11 Jan 2022)
Lord Bishop of London Portrait The Lord Bishop of London
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My Lords, I declare my background as a former government Chief Nursing Officer and non-executive director of a number of healthcare trusts. I was not going to speak, but I have listened to noble Lords’ comments today and I come down with the noble Baroness, Lady Harding, in saying that we should not stipulate what skills are required of a board too tightly. What is in front of organisations changes over time, so the chair needs to be empowered to change. However, one caveat is that it would be wise to consider having somebody on the board with a background in patients. I speak from experience as a clinical professional: we can too easily forget the patient and to see things through their eyes. Far too often, we see things through the eyes of the clinician, which is not always in the best interest of patients.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am grateful to all noble Lords who took part in this short debate, and particularly the noble Baronesses, Lady Merron and Lady Walmsley, and the noble Lords, Lord Patel and Lord Howarth, for bringing these important issues before the Committee. As they made clear, these amendments seek to make changes to the membership and composition of the board of NHS England. Amendment 2 also outlines the conditions that should be met for the appointment process.

Like my noble friend Lady Harding, I am in sympathy with the spirit of these amendments. It is imperative that the membership of the board of NHS England is able to represent the diverse needs of patients and the populations they serve, as well as their twin functions of commissioning and holding commissioners and providers to account.

I was very much in sympathy with the principles and sentiments expressed by the noble Lord, Lord Howarth, in speaking to his Amendment 3. Executive members of the board are selected based on their expertise and ability to manage the delivery of NHS England’s functions. It is also important that non-executive members have the right skills and backgrounds to effectively support and challenge, and hold the executive to account.

I hope I can reassure noble Lords on the existing and planned board membership arrangements. We absolutely aim to ensure that the most suitably skilled and experienced candidates are appointed to the fully merged NHS England board. The legal provisions therefore need to be flexible, and I can tell the Committee that they already are. Existing provisions setting out the membership of the NHS England board in the NHS Act 2006 already provide the flexibility required for the fully merged NHS England to lead our more integrated health and care system.

I agree that robust governance arrangements are absolutely necessary to oversee public appointments, particularly to NHS England. Unlike appointments to integrated care boards, the appointments of the chair and non-executive members of NHS England are public appointments made by the Secretary of State. As your Lordships are undoubtedly aware, as public appointments, they are managed in line with the Governance Code on Public Appointments and regulated by the Commissioner for Public Appointments. These appointments are made on merit in a fair, open and transparent manner. In line with the governance code, they require due regard to be given to ensuring that they properly reflect the populations they serve, including a balance of skills, expertise and backgrounds—exactly as sought by this amendment, as I understand it. We are fully committed to the importance and value of both candidate diversity and equality of opportunity.

The commissioner works with government to encourage candidates from a diverse range of backgrounds to consider applying for public appointments. All public appointees are expected to uphold the standards of conduct set out in the Committee on Standards in Public Life’s Seven Principles of Public Life, as included in the Code of Conduct for Board Members of Public Bodies. The code sets out, clearly and openly, the standards expected from those who serve on the boards of UK public bodies and includes a clear process for managing any conflicts of interest.

--- Later in debate ---
Baroness Walmsley Portrait Baroness Walmsley (LD)
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My Lords, I am certainly with the noble Baroness, Lady Finlay, on the issue of outcomes. Like her, I am a member of the All-Party Group on Cancer, and I was right behind our former chairman John Baron’s attempt to get a clear focus on outcomes. I am delighted to see how successful that has been.

My Amendment 8 is very simple. It would prevent the Secretary of State tinkering too often with the mandate. As others have said, the mandate is the primary instrument through which the Secretary of State provides the Government’s direction to the NHS. He is right to do so, since the NHS uses the most enormous amount of our money and is of vital concern to every voter and taxpayer—those whom the Government represent.

However, the NHS is a little like the “QE2” in that it is absolutely enormous and takes quite a while to change direction. Indeed, a great many levers have to be pulled for it to do so. Chief executives, boards and professional staff need time to set new plans, targets and employment policies—to say nothing of moving the money around—to comply, as they must, with changes to these mandatory directions from on high. It is therefore highly undesirable for a Secretary of State to change the mandate too frequently. As the noble Baroness, Lady Thornton, said, even when it happens, adequate notice and reasons must be given.

Other amendments in this group deal with other aspects of the mandate, but I want to be fully assured that, given the difficult tasks we set our NHS, its outline instructions and targets are not unfairly changed too often. I feel justified in having this concern, because the evidence of clauses later in the Bill indicates to me a tendency by the Government to want to meddle where meddling is inappropriate and could have negative effects. I refer, of course, to the Secretary of State’s attempted power grab, which we will discuss later in Committee.

Can the Minister assure me that there is already some effective measure that would prevent the mandate being changed more than once in any financial year, which would make it very difficult for the NHS to comply?

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am glad to be able to respond to these amendments relating, in their several ways, to the NHS England mandate. I will cover each in turn.

I begin with my noble friend Lord Lansley’s Amendment 4. I confess that I am not in the least surprised that he, of all noble Lords, should have reminded us of the key importance of the NHS outcomes framework. Amendment 4 would require the Secretary of State to specify objectives that will help NHS England achieve improvements in the outcomes provided for in the NHS outcomes framework. As he and I remember clearly, the NHS outcomes framework is a set of indicators that provide for national-level accountability for the health outcomes that the NHS delivers. The first version was published in 2010 to inform the first mandate to what was then still known as the NHS Commissioning Board. In essence, it looks at long-term health trends across various domains, including quality of care and patient experience. It is a valuable resource and, as my noble friend knows, remains an important tool for measuring the NHS’s contribution to improving outcomes over the long term.

I quite agree with my noble friend that progress against outcomes is vital. That is why we have included Clause 3 in the Bill. One of the main advantages of a longer-term mandate is that it will allow us to take a longer-term view of progress against outcomes that can be measured meaningfully only across a number of years.

The noble Lord, Lord Patel, asked who will be responsible for improving outcomes. The answer is that NHS England and ICBs have duties in relation to improving the quality of services. I can assure him that we will hold them to account for doing so. Having said that, we are moving now to a system-wide approach. That entails the need to measure shared outcomes across health and the wider social care and public health system. Some of these outcomes are led by the NHS but many are system-wide, so the business of measuring patient and service-user outcomes will inevitably become more sophisticated.

We want to ensure that our system is flexible and able to adapt as those system approaches develop and mature. I hope my noble friend therefore appreciates why we would not want to enshrine the NHS outcomes framework in the mandate in statute, in a way that might limit or compromise our ability to explore broader system approaches as we go forward. However, I seek to reassure him that the NHS outcomes framework will continue to be a vital tool to look at long-term trends in health outcomes and the NHS’s role in supporting health outcomes. That basic role for the NHS outcomes framework will not change.

I fully understand the concern of the noble Baroness, Lady Thornton, in her Amendment 7 that the mandate should not be revised unnecessarily and without good reason. I completely agree with that sentiment; again, it lies behind our desire to look at the mandate over a longer timeframe than has hitherto been possible. My concern is that her amendment goes much further than, I suspect, she intended, because it would prevent the mandate being revised at all in anything other than an urgent or unforeseen situation. That would be unhelpful, because it would wholly prevent planned changes to reflect, for example, evolving strategic priorities, emerging evidence of need or even a planned general election.

The purpose of Clause 3 is to strengthen the role of the mandate by enabling the Government, where appropriate, to set a mandate that can endure, rather than having an annual use-by date. Looking back to our debates on the Health and Social Care Bill in 2011, the noble Baroness will remember that it was always the intention that the Government should set a multiyear mandate, and Parliament agreed. In practice, that intention has been hampered by the inevitability of an annual review of the mandate to a fixed deadline—a deadline that does not neatly align to a number of events and strategic processes, including the Budget, spending reviews and general elections. Clause 3 addresses this. I seek to reassure the noble Baroness that there is no intention to revise mandates unnecessarily at the drop of a hat, as it makes no sense to do so.

I am grateful to the noble Baroness, Lady Walmsley, for highlighting a similar set of issues to those raised by the noble Baroness, Lady Thornton. Her Amendment 8 would prevent the Government revising our mandate for NHS England more than once in the same financial year, for any reason. As I said to the noble Baroness, Lady Thornton, I completely understand her concern that the mandate should not be revised so frequently that NHS England is unable to plan for or deliver government priorities effectively. This is why I reassure her that this will not happen, except in the most exceptional of circumstances. I hope she accepts that reassurance, because it cannot be in the interests of any Government, or of patients and service users, to set a mandate that changes NHS priorities too frequently. I expect any such revisions to be very rare. As I have indicated, though, one can imagine that they may be necessary to respond to unforeseen events, to reflect the result of a general election or to signal future shifts in priorities at a point when the NHS is planning ahead. The Government need the necessary mechanism to deal with these and other similar eventualities.

The noble Baroness will see that Clause 3 already contains an explicit safeguard in respect of reasonableness: NHS England will not be obliged to revisit a business plan that it has already published, should the Government revise the mandate within a year of its issue. The Government will also have a continuing duty to consult NHS England before making any revision. I believe that, in combination, these two safeguards work together to fully answer the point that the noble Baroness made.

Health and Care Bill Debate

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Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 2 & Committee stage
Tuesday 11th January 2022

(2 years, 3 months ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-II Second marshalled list for Committee - (11 Jan 2022)
I would say that the profit motive should have no place in healthcare. Think about the cost of the profit motive. It has an influence on decisions because, after all, the private companies’ job is to make profits; there is also the fact that money going into profits is not going to healthcare.
Earl Howe Portrait Earl Howe (Con)
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My Lords, these are important amendments and I am grateful to all the noble Lords who tabled them. Perhaps I could start with the amendments relating to waiting times, before going on to those about ICB functions.

Beginning at the end, as it were, Amendment 215 would legislate for an additional duty for the Secretary of State to publish a report annually on waiting times for treatment in England, disparities in waiting times for treatment and the steps being taken to ensure that patients can access services within maximum waiting times, in accordance with their rights in the NHS constitution.

I entirely understand the intention behind the proposed new clause. It is important that patients can access healthcare within reasonable waiting times and it is important for all of us to have visibility of the waiting list size, as well as waiting times, in England. Your Lordships will understand that the Covid-19 pandemic has caused an unprecedented strain on the NHS, bring about significant disruption. It has shone a light on disparities and led to the largest NHS waiting list on record. It is a priority of this Government to reduce waiting times, tackle disparities and provide access to healthcare as quickly as possible to patients.

Although the situation is difficult, I think I can give reassurance on three grounds. First, the NHS already has waiting time standards. Some are enshrined in legislation and some are operational standards, but all are described in the NHS constitution and the accompanying handbook. Since March 2007 the NHS has published monthly official statistics on waiting times. This includes consultant-led referral-to-treatment waiting times, which monitor the length of time from referral through to elective treatment. It also includes the number of patients who began cancer treatment and waited longer than 62 days for cancer treatment. NHS England also publishes monthly management data on the number of people currently waiting longer than 62 days for diagnosis or treatment.

Secondly, the department already submits information on waiting times to Parliament as part of its annual report. Much of this data is very similar to that asked for in this amendment.

Thirdly, as I speak, extensive work is already being undertaken by the NHS so that patients can access services within maximum waiting times. The funding we have announced for elective recovery, including cancer services—with £2 billion this year through the elective recovery fund and £8 billion over the next three years through the health and social care levy—will increase activity, reduce waiting times and deliver millions more checks, scans, procedures and treatments. We also announced £5.9 billion of capital funding at the October 2021 spending review to support elective recovery, diagnostics and technology over the next three years, which will further reduce patient waiting times.

Fourthly and finally, we will set out in the elective recovery delivery plan how the NHS will deliver increased elective capacity and reduced patient waiting times for elective services, including for cancer patients. I hope that provides a degree of reassurance that we approach reducing waiting times seriously and that the data is available to hold us and the NHS to account for progress.

I now turn to Amendment 6 tabled by the noble Baroness, Lady Wheeler, and the noble Lord, Lord Sharkey, which would require the mandate to specify maximum waiting times that NHS England should ensure the NHS meets. This would include the current 18-week referral-to-treatment waiting time standard as well as waiting times for diagnosis of rare and less common diseases.

The Government should always consider whether the mandate to NHS England should set expectations on waiting times. I do not think the mandate has ever been silent on waiting time standards, and nor would I expect it to be. I firmly believe, though, in the principle that the Government of the day should be free to set a mandate based on the priorities that they have been democratically elected to deliver. These will inevitably change over time in light of improvements in services and technology, as well as evolving patient need.

However, requiring the mandate to continuously include waiting time standards is unnecessary because important waiting times set out in legislation or NHS operating standards are reflected in the NHS constitution, as I mentioned. NHS England and other organisations that commission or provide NHS services have a long-standing duty to have regard to the constitution, in addition to NHS England’s duties in respect of the mandate.

I now turn to the amendments relating to ICB functions. I again thank noble Lords for bringing these matters to the Committee today. Amendment 19, tabled by the noble Baroness, Lady Wheeler, and the noble Lord, Lord Sharkey, seeks to amend Clause 8, which ensures that NHS England is able to direct integrated care boards to take on responsibility for the commissioning of specialised services on its behalf. The noble Lord, Lord Sharkey, asked me a series of detailed questions on that theme. If he will allow, I will write to him on those that I am unable to deal with in the remarks that follow.

The first thing to say here is that NHS England does not propose to use Clause 8 initially. The intention is that any delegation is agreed with ICBs. Delegating some direct and specialised commissioning to ICBs makes sense, because it is likely to be an enabler for integrating care and improving population health. It gives the flexibility to join up key pathways of care, leading to better outcomes and experiences for patients and less bureaucracy and duplication for clinicians and other staff.

My concern about the amendment is that it would add to the bureaucratic burden rather than reduce it. It would create an unnecessary set of regulations as well as duplicative reporting mechanisms, as regulations made under Section 13YB(3) can already be used to impose conditions, which could include creating national standards. Furthermore, Section 14Z50(7) already puts a duty on NHS England to undertake yearly performance assessments of each ICB. These are focused on how each ICB has performed its function through the year, including the commissioning of specialised services that may have been delegated.

I say to the noble Lord, Lord Sharkey, that we fully recognise that Covid has significantly impacted on waiting lists, including for specialised services. The investment that we have announced to reduce waiting times should also impact on waiting times for specialised services. NHS England is keen to see progress in that area as much as in any other. We will hold it to account for that progress.

My noble friend Lord Lansley and the noble Lord, Lord Warner, expressed concerns about the risk of growing disparities and inconsistency in the quality of specialised healthcare around the country. The key point that I would emphasise is that NHS England will retain responsibility for setting national standards as well as service specifications and access policies. These will apply to all prescribed specialised services, whether they are retained for commissioning by NHS England or become the responsibility of ICBs to commission. It may be a single ICB, but it may be a group of ICBs commissioning; it will depend on the type of service and the size of the ICB.

NHS England will therefore remain the accountable commissioner for all specialised services and will ensure that the appropriate safeguards are put in place for those services that may be delegated to ICBs or groups of ICBs. Only services that are considered appropriate for more integrated commissioning would be delegated; that is, those services that are suitable and ready. There will be services that are not appropriate, and these will be retained for commissioning by NHS England. As I am sure the noble Lord, Lord Warner, well knows, we need to remember that the list of prescribed specialised services contains very highly specialised services such as hand transplants and much more routine services such as dialysis. Whereas those on the upper end of the scale will always need to be commissioned nationally —I cannot see any alternative there—it is right that those more common services can be commissioned more locally.

I turn next to Amendment 21, which I am grateful to the noble Lord, Lord Davies, for bringing forward. I do not in the least dismiss the issues that he has raised. I understand the spirit in which the amendment was brought and hope that I can give some reassurance on two counts: first, that it is not our intention for ICB functions to be delegated to private entities, and, secondly, that safeguards are already in place.

It is perhaps also worth drawing the Committee’s attention to the narrowness that this amendment would impose on the delegation of functions. It would prevent delegation of functions to other statutory public bodies such as local authorities. As the noble Lord will appreciate, this would run counter to our desire to support further integration and to allow the pooling of budgets and functions between the NHS and local authorities. This has been a fairly long established practice and has worked well to support joint commissioning, service improvements and more seamless services for patients.

Health and Care Bill

Earl Howe Excerpts
Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, I am very grateful to the noble Baroness, Lady Walmsley, because she has helped me to clarify my thinking about this group of amendments. Basically, they have good intentions and they make good points about the things that need to happen, but I am not absolutely certain they need to be in the Bill. I am also particularly grateful to the noble Baroness, Lady Finlay, for her very well-informed contribution about what actually goes on. There are of course problems in relationships between the devolved nations and NHS England, some of which are down to not being very well organised, some of which are down to arrogance on the part of the bigger ones, and some of which are down to the funding not actually being available—and some of them might be politically motivated too.

Amendment 17 opens some new thinking on the subject of integration, and accepts that devolution has given us different systems for care in Wales, Northern Ireland and Scotland, but seeks to ensure that what is done in one part of the UK—that is, England—does not adversely impact on other parts. The intention to bring collaboration between the nations is, of course, commendable.

I note that Amendment 205 places some requirements such that

“Welsh Ministers, Scottish Ministers and a Northern Ireland department must make regulations providing that the choices available to patients in England by virtue of regulations under section 6E(1A) or (1B) of the National Health Service Act 2006 (inserted by section 69 of this Act) are available to patients for whom they have responsibility.”


Again, we can understand the need for consistency, but I am unclear about how that will play out against the devolved nature of healthcare—so I think the case will have to be made out for that and, indeed, why that would be included in the legislation.

In a similar fashion, Amendment 301 looks to establish interoperability around the use of data across the whole UK. Again, that is a wholly worthwhile intention, and one that I would hope that the various authorities could collectively work on and agree. Once more, what the role is for primary legislation to address this point is not entirely clear, and I welcome the discussion. I look forward to hearing what the Minister has to say.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I begin by thanking my noble friend Lady Morgan for raising these important matters both via this Committee and by engaging—as I understand she has recently—with my honourable friend the Minister of State for Health. I am also grateful to all other noble Lords who have spoken so powerfully and knowledgably on these issues.

There is no escaping one overarching reality in this policy area, to which the noble Baroness, Lady Thornton, has just alluded. As a Government of the whole United Kingdom, Ministers are responsible for all people of the UK; that is a given. However, while the core principles of the NHS are shared across all parts of the United Kingdom, it is the devolved Governments in Scotland, Wales and Northern Ireland who are responsible for developing their own health policies. Health is largely a devolved matter in the UK, and the commissioning and provision of health services for people in Scotland, Wales or Northern Ireland will continue to be a matter for the devolved Governments.

It will not surprise my noble friend to know that the UK Government continue to respect existing devolution settlements, so our aim is close collaboration with the devolved Administrations to deliver the best outcomes for the people across the four nations. This means that, while we are sympathetic to the spirit of these amendments, I am afraid that we cannot accept them.

I shall address the detailed issues. On Amendment 17, I agree with my noble friend that there is more we can do to align our healthcare for the good of patients across the United Kingdom. We are already exploring several projects to support the NHS to work more closely across the UK, and this includes refreshing the current memoranda of understanding between all four Governments and working with the Office for National Statistics to establish a number of UK-wide datasets. Steps like that will improve transparency and collaboration for the good of all patients across the UK. We do not believe that these steps require primary legislation, but we will keep that question under review. We will also continue to work with NHS England to ensure that a number of groups that it currently hosts, such as the rare diseases advisory group, and their specialised commissioning processes, also meet the relevant needs of the devolved Administrations.

Turning to Amendment 205, we know that choice of healthcare is an important right for patients across the UK. The NHS Constitution for England, for example, enshrines the patient’s right to informed choice. We will be preserving the important right for patients in England to choose their first elective outpatient appointment, GP and GP practice through regulations made under powers provided by the Bill. NHS England works closely with the devolved Governments, including on commissioning and ensuring access to specialised services. Requests for patients to have treatment in other nations are generally to secure continuity of care, to provide care close to patients’ support mechanisms, or because of specialist expertise.

The health services in Scotland, Wales, and Northern Ireland already have the power to contract with any NHS provider in England. As my noble friend Lord Lansley rightly pointed out, they already have in place arrangements for commissioning specialised services from English providers, including cross-border agreements, referral schemes and service-level agreements. Taking further steps, as suggested in this amendment, would place a significant burden on a smaller number of providers, particularly those along borders, with consequences for the smooth running of those health systems. From a legal perspective, such a change would be a significant impingement on a devolved competence and would require the consent of the devolved legislatures. Of course, patients matter most, but such a change would also be unlikely to greatly benefit them, since they are already served by existing arrangements.

Amendment 301 deals with data interoperability. The UK Government are committed to working with officials across the devolved Administrations to explore the benefits that healthcare data can provide while working collaboratively to respect the devolved nature of this work. As in other areas, we are looking at ways to improve collaboration on data matters and address issues with data sharing. There are commitments within the data strategy for health and social care to work across central government and the devolved Administrations to improve appropriate data linkage, thus supporting people’s health care outcomes. This builds on the work of units such as the Joint Biosecurity Centre, and the newly established UK Health Security Agency.

That work will help us to collaborate to solve public health issues, improve disease surveillance and overcome any behavioural or structural obstacles to appropriate data sharing across our respective health and social care systems. In addition, we are speaking to the Office for National Statistics about collecting data on performance and outcomes across the UK. We are pursuing this with it, working in concert with the devolved Administrations. The ONS has assured us that it does not need additional powers to gather such data.

The problems encountered by the daughter of my noble friend Lady Fraser in proving her vaccination status are being actively addressed on both sides of the border. I must concede that the problems are not fully resolved yet, but understand that a Covid status pass from Wales, Scotland or Northern Ireland will be recognised in England and vice versa.

Lord Bradley Portrait Lord Bradley (Lab)
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My Lords, I am sorry to interrupt, but I have been meaning to ask this question for a while. Will that also apply to students who currently study abroad and had their first vaccinations abroad, and who then come back to work in their home country? Will that be connected to the NHS app as well?

Earl Howe Portrait Earl Howe (Con)
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Rather than give a wrong answer to the Committee, I had better take advice on that and write to the noble Lord, if he will allow it.

I say to the noble Baroness, Lady Walmsley, that if we look at this area in general, we are clear that we must and will continue to work closely with the devolved Administrations to ensure a fully interoperable, UK-wide approach to healthcare, including in relation to the provisions in this Bill.

It is worth adding that the devolved Administrations already have powers in legislation under Section 255 of the Health and Social Care Act 2012 to request NHS Digital to collect and analyse data, so they have that ability if they wish to exercise it. I am very grateful for my noble friend’s interest in this important area. I assure her that we will continue to keep listening to ways in which we can make the NHS work for all four nations of our union. It is vital that we do so and implicit in the collaborative processes we are engaged in. However, for the reasons I have set out, I ask my noble friend to understand why I am unable to accept this amendment.

Baroness Morgan of Cotes Portrait Baroness Morgan of Cotes (Con)
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I thank my noble friend very much for his response. Although this has been a short debate, it has been a very good one. It has certainly been very helpful in noble Lords on all sides sharing their experiences and thoughts. It has raised some important issues and some comments on drafting. I am grateful to noble Lords for them. It has also enabled your Lordships to share some practical experiences, not least about the NHS Covid app. It sounds as if it is moving towards a resolution.

I was slightly amused that some of those who said that these issues do not need to be addressed in the Bill are often those who say that other issues need to be addressed in primary legislation so, when we are talking about consistency, we all need to think about that.

I am very grateful to my noble friend for saying that he agrees that more needs to be done and is being done to align healthcare across the United Kingdom and for stressing the importance of collaboration. I will, of course, withdraw this amendment, but the amendments in this group raise important issues and I hope that discussions can continue. As the noble Baroness, Lady Walmsley, I think, said, this is about practical, positive treatment and outcomes for patients, which is what we all want to see regardless of where they live.

Health and Care Bill

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Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022

(2 years, 3 months ago)

Lords Chamber
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Earl Howe Portrait Earl Howe (Con)
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My Lords, I am most grateful to the noble Baroness, Lady Barker, for bringing Amendment 20A before the Committee today, and to the noble Baronesses, Lady Walmsley and Lady Thornton, for their very wise insights. I do not think there can be anyone in Committee who does not agree that delivering high-quality reproductive healthcare is critical for the health service.

This is definitely a priority area in the Government’s work on the women’s health strategy for England. Proof of that, I hope, is that on 23 December 2021 we published Our Vision for the Women’s Health Strategy for England. The vision is informed by analysis of the call for evidence, which ran for 14 weeks from March to June 2021.

On reproductive health specifically, the vision sets out our ambition that

“women can access services that meet their reproductive health needs … and women’s experiences of services and reproductive health outcomes are improved”.

As a bit of further background, we were clear that the strategy should be evidence-based, so the vision is in fact underpinned by the analysis of what we heard through the nearly 100,000 responses to the call for evidence. We owe it to women and girls across England to get it right, and when we publish our full strategy later this year we will set out our ambitions in more detail and will follow that up with full delivery plans where appropriate.

Joined-up national policy and clinical leadership are essential to the delivery of women’s reproductive health services. I can assure the Committee that this is also recognised as a priority by NHS England and NHS Improvement. We continue to work closely with NHS England and NHS Improvement on the development of the women’s health strategy for England. We will also be working closely with NHS England and NHS Improvement on the Government’s forthcoming sexual and reproductive health strategy to ensure that, together, the women’s health and sexual and reproductive health strategies take a holistic and comprehensive approach to improving women’s reproductive health. The sexual and reproductive health strategy will consider how we can strengthen leadership and accountability in relation to reproductive health, as well as how we improve access to contraception.

Self-evidently, NHS England regards these as major areas of work. We do not, however, think it appropriate in the Bill to require NHS England to appoint an additional national clinical director specifically for reproductive health. The first reason is because, within the current NHS England and NHS Improvement, the role of national clinical director for maternity and women’s health already exists. This position is responsible for clinical advice and leadership on obstetrics and gynaecology matters, which are of course important areas of women’s reproductive health. The post is currently held by Dr Matthew Jolly. The national clinical director works alongside the national speciality advisers for gynaecology and four other national speciality advisers, covering broader aspects of obstetrics and public health. Creating an additional post of national clinical director for reproductive health is likely to be counterproductive, in that it may lead to duplication or less clarity over responsibilities and clinical leadership.

Secondly, as a point of principle, we should try to resist the urge to specify the clinical directors that NHS England should appoint. If we make a habit of doing that, it strips it of its operational autonomy. It is better to allow it to determine the directors it needs, based on the challenges it faces.

The noble Baroness, Lady Barker, rightly pointed out the disparities that exist between different groups of women in this country. I can only express my agreement with the points that she made on that subject. It is essential that we recognise that women are not a homogenous group. The different characteristics that make up each woman’s identity can lead to multiple, sometimes overlapping barriers to accessing healthcare and can contribute to disparities in health outcomes.

When we launched the call for evidence that I mentioned, we said that we wanted to better understand where there are disparities between men and women and between different groups of women. As set out in the vision, a key priority running through this work is to ensure that all women have equitable access to and experience of services and that disparities in outcomes are reduced.

In addition, NHS England and NHS Improvement regularly review their clinical leadership, including national clinical director and national specialty advisor roles, to ensure alignment with strategic priorities for the NHS and patients, as set out through the NHS Long Term Plan, and to support areas in which NHS England and NHS Improvement are taking forward major programmes of work or areas identified as priorities for improvement. In other words, this is not a static landscape. I hope that the noble Baroness will be reassured by this and so will be able to withdraw her amendment.

Baroness Barker Portrait Baroness Barker (LD)
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My Lords, I thank noble Lords who have contributed to this debate. I realise that time is at a premium, but it was useful to air these issues. I thank the Minister for his full response, although it was not entirely unexpected.

I do not doubt that NHS England has a number of clinical directors, but the stats speak for themselves: 45% of pregnancies are either unplanned or ambivalent and abortion rates are at their highest level. Whatever we have at the moment is not working. The call for this director came from the Faculty of Sexual and Reproductive Healthcare and RCOG; they are people who know this subject in great detail.

I know that across the NHS there are different initiatives trying to bring a greater understanding of gender in medicine. For example, for NHS England I know that the Government are working with the Royal College of Physicians to try to bring about a greater understanding of gender in medicine in the form of training for medical students. But this area of medicine is one in which information, and particularly digital transformation, is already having a significant impact and could have an even greater impact on outcomes. That in itself is a challenge to practitioners, and NHS practitioners are not always the best at dealing with that sort of challenge to their existing practice. Therefore, there is perhaps a case for refreshing the clinical leadership of NHS England in this respect.

If the stats do not improve, we will definitely have to look at this before too long. I listened to what the Minister said about the two strategies that are coming out and I will look at them with a keen eye. In the meantime, I beg leave to withdraw this amendment.

Health and Care Bill Debate

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Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022

(2 years, 3 months ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-IV Fourth marshalled list for Committee - (18 Jan 2022)
Debate on Amendment 25 resumed.
Earl Howe Portrait Earl Howe (Con)
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My Lords, the group of amendments to which noble Lords spoke before the break deals in various ways with the appointments processes for integrated care boards. I will deal first with Amendment 32 in the name of the noble Lord, Lord Hunt of Kings Heath, which is designed to ensure that the chair of an integrated care board can be removed only by the integrated care board and not by NHS England. This is a worthwhile issue for debate, and while I recognise the spirit in which the amendment is offered, the noble Lord, Lord Hunt, and I are coming at this from rather different perspectives.

It is worth reminding ourselves that ICBs are accountable to NHS England and thereby to Ministers and ultimately to Parliament. That link is fundamental, given the amounts of public money involved. It is therefore right that the appointments and removals process should involve these bodies. In contrast, the noble Lord’s amendment would effectively break that accountability link, because under this amendment, neither NHS England nor the Secretary of State would be able to remove a chair who was acting inappropriately. We cannot have that.

I understand the concern that there should be a safe and robust process for the appointment and removal of the chair of an ICB. I can assure noble Lords that there will be. The chairs of ICBs will be public appointments and therefore managed in line with the Governance Code on Public Appointments and regulated by the Commissioner for Public Appointments. I regret that the Government cannot support this amendment, but I hope I have explained sufficiently why.

Amendment 33 would ensure that the chief executive is appointed by the integrated care board rather than the chair and not subject to the approval of NHS England. I am afraid that, once again, this amendment is not one we can accept. As your Lordships are aware, the chief executive is the accountable officer for the ICB and a crucial person for ensuring that the board is operating effectively. It is therefore right that the appointment should be ultimately made by the chair and approved by NHS England. This approach ensures that we bring together local knowledge and a commitment to ensuring the board is appropriately constituted, while also ensuring that golden thread of accountability from ICBs to NHS England and then ultimately to Parliament. Making the ICB the sole appointing body would break that chain of accountability.

I also remind the Committee that in order to ensure that ICBs can be established and formed in time, NHS England has carried out a selection process for intended designate chief executives which, subject to the passage of the Bill and commencement of the relevant appointment provisions, it expects to be appointed by the chairs of ICBs. All provisional ICB chief executive designates have been agreed by the NHS England appointments and approvals committee, and all candidates were subject to a fair and open recruitment process.

While the current process for appointing designate ICB chairs has primarily been managed and agreed by the NHS England appointments and approvals committee, chiefly in the interests of ensuring that ICBs will be ready to begin work, I reassure your Lordships that we would expect future appointments of chief executives to involve significant engagement from the ICB as a whole to ensure that all chief executives command the confidence of both the ICB and NHS England.

I would also like to address two other significant points the noble Lord raised in his speech: first, the question of conflicts of interest. I can assure the noble Lord that ICBs will have robust duties in relation to conflicts of interest and will be required to maintain and publish a register of members’ interests and make arrangements for the management of conflicts or potential conflicts of interest. Furthermore, part of the purpose of the chair’s veto is to ensure that candidates for the board who are unsuitable or have unreconcilable conflicts of interest are not appointed to the board.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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The appointments commission worked extremely well for many years. Why is it not good enough now?

Earl Howe Portrait Earl Howe (Con)
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As I understand it, the noble Lord, Lord Hunt, is proposing a separate NHS appointments commission. I am suggesting that it would be unnecessary to add that arms-length body to the existing landscape.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, I am very grateful to the Minister for his response, which he has clearly put a great deal of thought into. At the end of the day, what is being proposed is a very top-down, hierarchical approach to running the health service. ICBs may be accountable to NHS England and, through NHS England, to the Secretary of State, because the Government are taking power of direction through this legislation. However, it becomes abundantly clear that ICBs do not look outward to their local communities; they look upward to the hierarchies above them.

This is the problem with giving NHS England such power over the chief executive and the chair. Anyone who has worked in the NHS knows that, in the target-laden, panic-ridden approach from the centre to local management, the ICBs will be under the cosh right from the start. For all the wonderful words that have been used about what they will do, the reality is that they will be beaten up by the centre in the traditional “target” approach to running the service. Of course, it did not have to be this way. While it is perfectly proper to have boards making their own decisions and appointments, and being held to account for interventions where necessary, this is such a top-down approach that I do not think it will work. I believe and hope that the House will seek to amend it in some of the ways suggested in these amendments. That said, I beg leave to withdraw my amendment.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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I thought noble Lords would have more to say about digital matters. I shall respond to this group very briefly, because my noble friend Lord Hunt, the noble Lord, Lord Clement-Jones, and others have very adequately covered the issues: the potential for digital transformation, the need to use patient data, the need for resources and, as the noble Lord, Lord Bethell, just said, enthusiasm and leadership.

The noble Baroness, Lady Cumberlege, as she always does, brought us practical applications of the reasons why the amendments are necessary, and it brought to my mind that my digital interface with the NHS is a good example of someone who is absolutely at the coalface. I am part of UCLH’s digital patient management system. It does not talk to my GP and it does not talk to the Royal Free, which is where one has one’s tests in the part of London I live in, and I think, “For goodness’ sake, we really ought to be able to do better than this”.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am very grateful to the noble Lords, Lord Hunt of Kings Heath and Lord Clement-Jones, the noble Baroness, Lady Thornton, and my noble friend Lady Cumberlege for bringing these amendments for debate before the Committee today.

Once again, we are dealing here with an important set of issues. First, Amendments 26 and 35 would ensure that integrated care boards appointed a director of digital transformation. The Government fully agree with the spirit behind the amendments, ensuring a strong local focus on digital transformation. However, looking at the pros and cons, we must balance the desire to go further—which we all want—with the important principle that I have articulated before: that the provisions in the Bill should not be too prescriptive when it comes to membership requirements. As we have discussed, it is an essential principle of the Bill that there must be local flexibility to design the board in a way most suitable to each area’s unique needs.

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Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, the Minister is much in agreement with others that the leadership being enthusiastic for progress is important. I understand that nominations have already been made for the various positions that are likely to come up. To what extent has enthusiasm for digital transformation been a criterion in nominating those people? It is vital that the leader really believes in what is to happen if it is to happen at all. Therefore, it would be useful to know to what extent that consideration has applied in the prospective nominations of people for the local positions.

Earl Howe Portrait Earl Howe (Con)
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Noble Lords will remember that, even 10 years ago, when I was appointed as a Health Minister, there was an acronym, QIPP, which stood for “quality, innovation, productivity and prevention”. While I think the acronym has largely fallen out of use, those four principles remain alive and kicking in the strategic thinking that happens at the top of the health service, and indeed in the department.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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I thank noble Lords for what has been a very interesting and important debate. I thank the noble Lord, Lord Mawson, for his amendment, and I look forward to further development of the thought process that he has put before the Committee. Of course, it is not new. I started my working life working for Michael Young, the great sociologist in Bethnal Green, and we talked about ethnographic research in our neighbourhoods and places. It was about giving people who lived in those places power and developing their own leadership of what they wanted to happen. Of course, in those days, when he started doing his work, it was about regenerating inner London—the bomb-strewn East End. I had the great privilege of running the Young Foundation: a few years ago, I took a couple of years off from this job here to go and run it, and we were doing exactly the place-based work that the noble Lord, Lord Mawson, talked about.

The noble Baroness, Lady Harding, is completely right: there are many Bromley by Bow-type programmes across the country—and thank goodness for that. If the Minister decides to go on trips to places, Bromley by Bow is of course important. I went there when it started out, when I was the founding chair of Social Enterprise UK, and the noble Lord, Lord Lansley, is quite right: it is brilliant, it is wonderful, it does great work —but why has it not been replicated? That is a question I have discussed with the noble Lord, Lord Mawson, on and off over many years. But there are many other types, and I suggest that the Minister might go to Manchester, Bradford or Nottingham, where there are some brilliant programmes where this place-based delivery of healthcare and other care is thriving.

The consensus breaking out between myself and the noble Lord, Lord Lansley, is of course that this Bill is an opportunity: how and where in the Bill can that place-based initiative be expressed? Where is it and how can it be encouraged? The King’s Fund did a piece of work developing place-based partnerships as part of the process leading up to the Bill, which was published last year. It has some interesting and useful things which express the sorts of sentiments—but in NHS-speak—that the noble Lord, Lord Mawson, talked about today: the importance of connecting communities, jointly planning and co-ordinating services, making the best of financial resources, supporting the local workforce, and driving improvements through local oversight and quality provision. There are certain elements of this which need to be there and need somehow to be built into the Bill, possibly in enabling form, because they mean building multiagency partnerships which involve local government, NHS organisations, voluntary service organisations, social enterprises and the communities themselves.

The noble Lord, Lord Mawson, rightly asks in his amendment for one voting ICB board member to be nominated by place-based partnerships. That may or may not be a good way forward, but we are trying to do systems change and, whether or not putting one person on a board is the way to do that, it is a very good place to start. So we on these Benches are very interested in how this develops and want to be part of the discussions across the House about how we do that.

Earl Howe Portrait Earl Howe (Con)
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My Lords, no one is better placed, whether inside or outside your Lordships’ House, to advocate place-based partnerships than the noble Lord, Lord Mawson. I know he will remember that one of my first visits as a Health Minister in 2010, at his invitation, was to Bromley by Bow. What I learned that day made a deep impression on me, so I, like many noble Lords, need no convincing of the case that he and other speakers have made today.

I am aware that the noble Lord, Lord Hunt of Kings Heath, has tabled Amendment 165 on place-based arrangements, to be debated by this Committee later in our proceedings, so no doubt we will cover the issues in more detail then. For now, I say that the Government absolutely agree with the importance of having strong place-based elements in ICBs. Place-based structures will play an important role in delivering healthcare services for their population groups and we expect there to be open and clear lines of communication between the board of the ICB and place-based structures.

How is a sense of place given—as it were—tangible substance and meaning? I would argue that we do not necessarily need the Bill to articulate the reality. At a very basic level, an ICB will cover a geographic area. We would expect ICBs to be closely linked to their places via bodies such as health and well-being boards, where they will sit as the successor bodies to CCGs, and local authorities. ICBs will sit on the integrated care partnership as well as the health and well-being boards. Both bodies are vital in bringing together health, social care, public health and, potentially, wider views as well. That will be part and parcel of delivering their duty to involve patients, carers and the public when discharging their functions.

We expect ICBs to have place-based structures in place, but we do not want to prescribe what those structures are. As the noble Lord, Lord Mawson, said himself, we do not want ICBs to think that place-based partnerships are achievable via a central blueprint, or that a set of instructions from above is likely to be a substitute for learning by doing and local relationships. What we shall insist on is that an ICB sets out the arrangements for the exercise of its functions clearly in its constitution. Different areas have different needs, and I hope it is a point of agreement across the Committee that a one-size-fits-all model would not be appropriate.

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Baroness Wheeler Portrait Baroness Wheeler (Lab)
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My Lords, I strongly support my noble friend Lord Hunt and other noble Lords in their quest in this suite of amendments to underline the important and crucial role played by Healthwatch, particularly at local level, and to ensure that the new NHS structures and processes in the Bill fully recognise this.

Under the 2012 Bill, the noble Lord and others who have put their names to the amendment and who have spoken in today’s debate were all strong advocates of Healthwatch, and clearly remain so today. The concerns deeply expressed then of the Government’s decision to make national Healthwatch a sub-committee of the CQC, and not the independent organisation that it needed to be, have again come to the fore. Amendment 220 would add a new clause after Clause 80, seeking to establish Healthwatch England as a body corporate that provides an annual report of its activities to Parliament; it has the full support of these Benches. As the noble Lord, Lord Patel, has strongly emphasised, failing to provide for the independence of Healthwatch was a fundamental error that needs to be put right. He set out a particularly strong case, as have other noble Lords this time around.

Amendment 42 to Schedule 2 seeks to ensure that Healthwatch is a non-voting member of the ICB, so that there can be a genuine championing of patients’ voices and views, which many noble Lords have spoken so strongly about today. These are views fed back from evidence and surveys conducted by both national and local Healthwatch organisations. At the very least, it is crucial to seek to ensure—as set out in Amendment 103 to Clause 20—that the ICB is obliged to fully consider Healthwatch reports and that that body leads any local consultations proposed in the ICB forward plans.

Amendment 149 to Clause 21, seeking to ensure that ICPs have a Healthwatch nominee in membership, is also important, given the local Healthwatch links to both the NHS and local authority bodies, patients and clients.

Key questions on how Healthwatch, both at national and system level, is to be funded were raised by my noble friends Lord Hunt and Lord Harris, particularly about the whole process of allocating funds. This is important in view of the increased role of Healthwatch in the additional 42 ICSs. I look forward to the Minister’s response.

Finally, I also endorse noble Lords’ comments on the excellence of the reports produced by national and local Healthwatch organisations. Their guidance on access to social care, mentioned by several noble Lords, and comments on the detailed proposals later in the Bill on the care cap and the recent White Paper, are clear and accessible to service users, and closely examine the impact for them, and for the thousands of people currently waiting for assessment and access to key services. However, those are issues for another day. I hope that the Minister has listened to the debate.

Earl Howe Portrait Earl Howe (Con)
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My Lords, these amendments deal, in their several ways, with the role of Healthwatch both locally and nationally. I begin with Amendment 42, in the names of the noble Lords, Lord Hunt of Kings Heath and Lord Patel, and the noble Baroness, Lady Thornton. This amendment would require ICBs to make provision in their constitutions for a non-voting member to be appointed from local Healthwatch branches.

I lay great importance, as do other noble Lords, on Healthwatch’s work on patient advocacy. However, as I said in relation to other amendments on the membership of ICBs—I know this is turning into something of a mantra—we want to avoid the Bill’s provisions being too prescriptive. It is essential that we provide local leaders the flexibility to design the board in a way that best suits each area’s unique needs. Even a non-voting member risks making the boards less nimble, undermining their ability to make important decisions efficiently. As I am sure the Committee is already aware, the ICB can appoint more members, including a Healthwatch representative, if it wishes, and I am sure many of them will. What is key is that local boards should be able to decide for themselves to appoint individuals with the necessary expertise to address local needs, and we want to allow them as much scope as possible to do so by not prescribing who all those members should be.

That said, I recognise that the growing complexity of health and care demands that we listen to the voice of patients, carers and the public. We want to ensure that they are heard throughout the system. I contend that there is adequate provision in the Bill to ensure that patients and the public are appropriately consulted and involved in decisions made by the ICB. I draw noble Lords’ attention to new Section 14Z36, regarding the duty to promote the involvement of each patient, and new Section 14Z44, regarding public involvement and consultation by ICBs.

I listened carefully to the noble Lord, Lord Harris of Haringey, as I always do, about the particular need for adequate and appropriate funding of local Healthwatch. If I may, I shall take away the points he made on that issue and others and write to him about them. We would expect Healthwatch to be closely involved with ICBs in carrying out their engagement and involvement duties. On what do we base that expectation? Many systems already have some system-level arrangements in place with Healthwatch. Indeed, NHS England has published guidance, which would apply to ICBs, on working with people and communities that encourages working closely with Healthwatch. Therefore, given that ICBs will already be required to engage patients closely in their decision-making process, and that we expect Healthwatch will be closely involved in that, we consider it unnecessary to require in legislation a member drawn from Healthwatch.

Amendment 103 would alter ICBs’ duties in relation to public involvement to require them to make adequate arrangements for the receipt and consideration of any relevant Healthwatch reports. As I said, the existing ICBs’ duties in relation to patient involvement are already comprehensive, and the amendment could unintentionally limit ICBs’ ability to form relationships with Healthwatch and other organisations appropriate for their area. As was the case for CCGs, ICBs will be required to make arrangements to involve patients in the planning of commissioning arrangements in areas that may impact the manner in which services are delivered, or the range of services available. This will ensure that patients receive appropriate representation where decisions are being made that could affect them.

I previously mentioned that NHS England, in its guidance to ICBs, has encouraged close working with Healthwatch. This guidance comes with the acknowledgement that what an appropriate relationship with Healthwatch looks like will vary from system to system. For this reason, we are seeking to establish comprehensive duties and requirements in the legislation while leaving the specifics of local relationships with organisations such as Healthwatch for ICBs to determine for themselves.

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Earl Howe Portrait Earl Howe (Con)
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My Lords, I too am grateful to the noble Baroness, Lady Bennett of Manor Castle, for bringing forward this group of amendments. As many of the Committee will remember vividly, and as the noble Baroness, Lady Wheeler, has reminded us, accountability for the health service was a topic of considerable debate at the time of the Health and Social Care Act 2012 as it went through Parliament. The constitutional position of the Secretary of State was closely scrutinised and the current wording in the Act is very much the product of those discussions. I remind the Committee especially of the hard work done by the noble Baroness, Lady Jay of Paddington, who was at that time chair of the Constitution Committee, her colleagues on the committee and many others, including my noble and learned friend Lord Mackay of Clashfern, who did so much to develop the current wording of the clause. The coalition Government accepted the Constitution Committee’s recommendations in full.

I am afraid that I do not agree with the noble Baroness’s characterisation of the reasons why it was thought appropriate to modify the wording that described the Secretary of State’s responsibility for the health service. As noble Lords will be aware, the idea that the Secretary of State himself provides services has not for many years reflected the real world. As the noble Baroness, Lady Wheeler, rightly said, and as the Committee will remember, it was decided in 2012 that it was better that the law reflected the reality of the modern NHS rather than retaining outdated language. I do not think that the last 10 years have proved that proposition wrong. The current legislative framework allows some of the health services in England to be provided by entities, such as NHS foundation trusts, that are legally distinct from the Secretary of State. That will continue to be the case and should be recognised in the law.

I understand the concerns that Ministers might somehow avoid being responsible for ensuring the continuation of a comprehensive health service. However, there have been many vigorous debates in Parliament about the NHS in the years since those changes in 2012, and they have demonstrated that there has, quite rightly, been no loss in the strong sense of governmental accountability for the NHS felt by both government and Parliament. Indeed, the House amended the Act in 2012 to put beyond doubt that:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”


That has not changed in this Bill; the wording will remain set in statute.

I would gently caution against recreating the fiction that the Secretary of State provides services directly. It is much better to be clear that the role of the Secretary of State is to set strategic direction, oversee and hold to account NHS England and the other national bodies of the NHS and, occasionally, to intervene—as the noble Lord is doing.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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I thank the noble Earl for giving way. Given what he has said—and I know that we will debate this later—I point out that it is curious that the Government wish to take on a power of direction over NHS England, if that is so. I guarantee that that power will never be used because the Secretary of State’s power of direction never has to be used. Once this is passed, that changes the relationship; NHS England will know that the Secretary of State has that power of direction. Although I have tabled some amendments to try to modify it, I have no objections to the general principle, since I do not think that a quango such as NHS England should be freely floating. But we need to recognise that it is a fundamental change in the relationship to impose that power of direction again.

Earl Howe Portrait Earl Howe (Con)
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My Lords, as I was about to say, the 2012 Act does provide for the ability of the Secretary of State to intervene when that is necessary for the smooth and effective running of the system. Furthermore, we should not exaggerate the extent to which this Bill modifies the 2012 provisions. As the noble Lord said, we will debate the powers of direction on a future occasion but, when we come to do so, my colleagues and I on the Government Benches will contend that the powers of direction, such as they are, are very narrow and specific in their scope. They have been deliberately framed in that way to reflect experience over recent years. I would not be in favour of reopening this piece of drafting, given its history and the effort that noble Lords from all sides of the House made to build an effective consensus in respect of the 2012 Act.

The noble Baroness, Lady Brinton, asked about dental access. The department is working closely with NHS England to increase levels of service as quickly as possible. Practices are continuing to prioritise patients based on clinical need. Dental practices are now being asked by NHS England and NHS Improvement to deliver at least 85% of contracted units of dental activity—UDAs—between January and March 2022 to provide improved access for patients. These updated figures are based on what many practices have been able to deliver to date. They take into account adherence to the latest infection prevention and control guidance. I hope that this is helpful to the noble Baroness.

I hope also that I have explained to the noble Baroness, Lady Bennett, why I cannot entertain her amendments, but also that I have reassured her that the accountability chain between health services, Ministers and Parliament, which lies at the centre of her concerns, remains intact.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I thank the Minister for his response and thank all noble Lords who have taken part in this debate. I particularly thank the noble Baroness, Lady Brinton, for her support. She stressed how this is very much about restoring a public health system with full public accountability.

I was a little surprised, not so much by the direction as by the emphatic nature of the comments from the noble Baroness, Lady Wheeler, given that it was members of her party who moved the amendments in the other place. To address the Minister’s comments—this also picks up the point raised by the noble Lord, Lord Hunt—we are talking about a significant change in relation to power of direction; a power that we will be discussing further, at great length, and about which we have seen considerable expressions of concern. I come back to the way I framed my speech: if you have more powers, you have more responsibility. If you say, “We covered all this in the 2012 Act—it’s all fine”, once could argue that the 2012 Act did not work out fine, but we are in a new situation, creating very new structures.

Thinking about the success or otherwise of accountability, some issues where we have failed in terms of accountability—and we will see amendments on these later—are workforce planning and, as the noble Baroness, Lady Brinton, highlighted, dental provision.

This is about ensuring that people have faith, know who to look to and cannot be fobbed off, as the noble Baroness, Lady Brinton, said, by this terrible, complex diversity of funding and arrangement structures. Like other Members of your Lordships’ House, I took part in the public debate in 2012, not in this place but in the public domain, and I have given many speeches on this issue. The complexity must not be allowed to cover over the fact that what people want to know is that the healthcare is there when they need it, and if it is not that they know who to point to.

I will of course withdraw the amendment at this point, but I reserve the right to consider this and come back to it at a future point.

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022

(2 years, 2 months ago)

Lords Chamber
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Baroness Thornton Portrait Baroness Thornton (Lab)
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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 Portrait Earl Howe (Con)
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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.

Health and Care Bill Debate

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Department: Leader of the House

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022

(2 years, 2 months ago)

Lords Chamber
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Baroness Altmann Portrait Baroness Altmann (Con)
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Can I briefly ask my noble friend whether part of the thinking behind the current wording might be that the remit of the CQC may need extending? For example, when it comes to private operators of social care, the CQC currently does not have the power to look at the financial stability of those operators. Is this provision perhaps based on the thought that the Secretary of State may need to widen the remit and powers of the CQC? If not, we will be returning to this at some point.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I thank my noble friend Lord Lansley for bringing this debate before the Committee. He has made some worthwhile points but I hope to be able to explain why I think his amendments should not be pressed.

My noble friend Lady Altmann is not quite right in what she suggested was the intention of Clause 26. Clause 26 will allow the CQC to look across the integrated care system to review how integrated care boards, local authorities and CQC-registered providers of health, public health and adult social care services are working together to deliver safe, high-quality and integrated care to the public. That will include the role of the integrated care partnership. These reviews serve several functions. They will provide valuable information to the public, help drive improvement, and review progress against our aspirations for delivering better, more joined-up care across the system.

These amendments would remove the requirements on the Secretary of State to set and approve the priorities for these reviews. They would also remove the Secretary of State’s ability to direct the CQC to revise the indicators of quality that it will determine for these reviews. Instead, the amendments would add a requirement on the CQC to consult on those indicators with the Secretary of State, prescribed persons and other persons considered appropriate.

I entirely see where my noble friend is coming from as regards the CQC’s independence, but I must tell him that we have thought about this issue very carefully and we think it is right that the Secretary of State, who is accountable to Parliament, should have the flexibility to set the overall strategic direction of these reviews, with priorities and objectives. That is not an open-ended facility. In the other place, we accepted an amendment to develop this further by making it clear that the priorities set by the Secretary of State must relate to leadership, integration, and quality and safety. The amendment would remove that certainty.

As I have already mentioned in previous debates, there will be quite a range of different forms of accountability and oversight within the system, including NHS England’s role in overseeing ICBs. As a result, we think that the Secretary of State should play a strategic role to ensure that the CQC reviews complement the other oversight and accountability mechanisms. This will be achieved, in part, through the Secretary of State’s approval of the quality indicators. To provide my noble friend with an analogy, we believe, as I am sure he does, that there is a proper role for the Secretary of State in setting the strategic direction of NHS England. He does this, of course, through the mandate.

Finally, the drafting of this clause is not an accident. It is drafted deliberately to protect the independence of the CQC in how it operates, while also encouraging consultation and collaboration. It will allow the CQC to develop its approach in collaboration with NHS England and other partners in the system. The CQC is already intending to develop its approach to these reviews co-operatively and is able to consider a wide range of views in doing so. We do not think it is necessary to require it to consult.

I hope this has given my noble friend some reassurance as to why we have taken the approach we have and, for these reasons, I ask him to withdraw his amendment.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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I thank my noble friend for tabling these amendments; I have added my name to both of them. They are about transparency and legitimacy, raising very important questions which the Minister needs to answer.

I go back to what the noble Lord, Lord Lansley, said at Second Reading, which I think my noble friend referred to. He said that

“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability.”—[Official Report, 7/12/21; col. 1789.]

I do not need to say any more than that. The Minister needs to answer that question, because it needs to be resolved before the Bill completes its passage.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am grateful to the noble Lord, Lord Hunt, for bringing us back to the subject of place-based structures and taking us into the issues relating to provider networks. I hope it will be taken as a given that the Government have sympathy with the intentions behind his amendments.

On Amendment 165, we absolutely agree on the importance of place, and I hope I can provide the Committee with reassurances on that score. First, the linchpin to the accountability issue is, I suggest, the ICB constitution, which is required to set out how its functions will be discharged. That may include how functions will be carried out by committees and sub-committees, which will include place-level committees. The best size for an ICB area varies according to local circumstances, and some of the smaller ICB areas are coterminous with the local authority. In those systems, place arrangements will quite rightly look very different from the large ICB areas.

ICBs need to be clear about the expectations and roles of place-based structures, including what they are responsible for commissioning, what powers have been delegated to them, and what resources they are responsible for. The current legislation provides for the ability to establish place-based structures and set them out clearly in ICB constitutions. However, Frimley is not Cumbria, and Essex is not Manchester. We want to give ICBs the flexibility to determine structures that work best for them. To help them do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions, and is working with CCGs and the current non-statutory ICSs to develop model constitutions for the future ICBs. Those constitutions will, of course, also have to be approved by NHS England before the ICB is established. This approach should achieve the right balance, because it allows us to support ICBs to develop, without the danger of putting in place further legislation which could act as a barrier to future evolution. Requiring the establishment of a separate place-based board is simply not necessary and would come at a bureaucratic cost.

I turn to Amendment 166. I appreciate the noble Lord’s concern about transparency and accountability for groups of providers working together where they are exercising functions that an ICB has delegated. I shall come on to the concern expressed by my noble friend Lord Lansley, about the purchaser/provider split. Provider collaboratives are intended to deliver the benefits of scale, with providers working together to implement best practice and reduce variation in access, experiences and outcomes for patients and populations. For example, this could involve sharing workforce and managing capacity on a wider scale. Depending on the local circumstances, such arrangements may include a delegation of ICB functions. ICBs and providers should have the flexibility, in line with guidance that will be issued by NHS England.

Baroness Thornton Portrait Baroness Thornton (Lab)
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Has the Minister actually seen the model constitution that will be imposed by NHS England, and does it do what he is suggesting it does? Maybe the rest of us could see it, too.

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Earl Howe Portrait Earl Howe (Con)
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My understanding is that it is work in progress—so no, I have not seen it.

Baroness Thornton Portrait Baroness Thornton (Lab)
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Is it not then unsatisfactory that we should complete the passage of the Bill without having sight of the constitution, so that we can be assured that the assurances that the Minister is giving us will in fact work?

Earl Howe Portrait Earl Howe (Con)
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I do not think that is a reasonable ask by the noble Baroness, if I may say so. I am trying to describe a structure that should deliver what I am sure she wants to see—safeguards and good pointers for ICBs to make their own decisions, while also ensuring that some of the pitfalls mentioned in the debate are not fallen into. If I can let her see the work in progress, I shall certainly be glad to do so—I do not have a problem with that—but I suggest that it is not necessary for her to do that to accept the proposition that I am trying to put forward.

As I have mentioned, the Bill requires an ICB to set out in its constitution how its functions will be discharged, including any arrangements to delegate functions to provider collaboratives. Furthermore, as an additional safeguard, the Secretary of State may impose conditions on the exercise of the power through regulations.

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Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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Before the Minister sits down, is he in a position to answer the question I asked about the timing of the review regarding the position of GPs within this new set of arrangements?

Earl Howe Portrait Earl Howe (Con)
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I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.

In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.

We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.

On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.

The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—


an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.

The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.

I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022

(2 years, 2 months ago)

Lords Chamber
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I therefore hope that, in responding, the Minister will be able to explain to the Committee why the provisions in the Bill have not taken account of these important points, and points of agreement and good practice. I hope that he will reflect on the fact that these amendments improve the Bill and will feel able to take them forward.
Earl Howe Portrait Earl Howe (Con)
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I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.

Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.

The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.

The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.

At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.

Baroness Walmsley Portrait Baroness Walmsley (LD)
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Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.

Earl Howe Portrait Earl Howe (Con)
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There will be money to address the backlog of repairs within that total.

Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.

Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.

Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.

Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.

Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.

As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance. These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.

Lord Crisp Portrait Lord Crisp (CB)
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I thank the Minister for that reply. I have one point to make and one question. My point is that an NHS foundation trust may cover an area that is bigger than one ICB, and some of the bigger ones obviously do, so it does not quite work in the way that the Minister talked about. My question, and it is my final question, is: will officials re-engage with NHS Providers on behalf of NHS foundation trusts to discuss this matter further in the light of what we are saying so forcefully to the Government about pragmatic solutions to find a way forward to achieve the right balance and what the Minister has said in his response?

Earl Howe Portrait Earl Howe (Con)
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I had not quite finished the remarks I was going to make, so perhaps the noble Lord will bear with me. I was trying to say that the measures will ensure that there is certainty for all providers about their capital expenditure. It will also prevent the need unfairly to take planned funding away from other providers, such as NHS trusts, where NHS Improvement and, in future, NHS England, set routine capital expenditure limits just to keep expenditure within system control totals, or national capital limits when a foundation trust exceeds its capital limit. Operational detail of how capital expenditure limits are set is best dealt with, we think, in guidance, where we can ensure flexibility and future-proof the provision, rather than in the Bill.

I hope that those remarks are helpful and will persuade the noble Lord to withdraw his amendment this evening. I say to him, as I did at the start, that I have listened carefully to the points he has made in support of his amendments, and points made by other noble Lords, and I undertake to take these points away for further consideration between now and Report. I am aware that my officials are working closely with NHS Providers on a number of issues, and I very much hope that we can resolve any points of difference to everyone’s satisfaction.

Lord Crisp Portrait Lord Crisp (CB)
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I thank noble Lords who have spoken in support of the amendment, for the very clear message that has been given. I also thank the Minister for that reply and those final remarks about thinking about this further and discussing it as appropriate with NHS Providers. On that basis, I am very happy to withdraw my amendment.

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022

(2 years, 2 months ago)

Lords Chamber
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There is lots more that I could say—I was going to repeat some of the words of the noble Lord, Lord Ahmad —but we have had a very strong debate and there is a clear view across the House that this is not a partisan issue. Once again, the noble Lord, Lord Blencathra, is absolutely right. I will back him on this amendment, and let us ensure that the Government keep their word.
Earl Howe Portrait Earl Howe (Con)
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My Lords, I am grateful to my noble friend for enabling us to debate the serious and important issue of ensuring that health service procurement and supply chains are consistent with the United Kingdom’s international obligations. I have listened very carefully to the contributions from all noble Lords who have spoken.

I begin by making clear what the regulation-making power under Clause 70 is designed to do, and not do. The Clause 70 power is limited in scope to healthcare services and, with the exception of some mixed procurements, will not extend to the procurement of goods. The vast majority of healthcare services procured by the NHS are provided by domestic suppliers or, indeed, by the NHS itself.

However, there is a wider point to address in response to the contributions of noble Lords. As a party to the Convention on the Prevention and Punishment of the Crime of Genocide, the UK is fully committed to the prevention and punishment of genocide as appropriate under the convention. Indeed, the UK is active in fulfilling its duties under the genocide convention. Given that the majority of mass atrocities occur in and around conflict, the Government believe that a focus on conflict prevention is the best means to prevent most mass atrocities. To that end, this Government adopt a consolidated, whole-of-government effort using our diplomatic, development, defence and law-enforcement capabilities to help find pathways to global peace and stability.

As my noble friend is well aware, it is the long-standing policy of the Government that any judgment as to whether genocide has occurred is a matter for a competent national or international court, rather than for Governments or non-judicial bodies. It should be decided after consideration of all the evidence available in the context of a credible judicial process.

Having said that, our policy on genocide determination does not prevent us taking robust action to address serious violations of human rights. The Government are clear that they expect all UK businesses to respect human rights throughout their operations, in line with the UN’s Guiding Principles on Business and Human Rights. In response to the guidelines, the UK is proud to be the first state to produce a national action plan, and we continue to develop our approach in line with the Modern Slavery Act 2015. Section 54 places a requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement setting out the steps they have taken to prevent modern slavery in their operations and supply chains.

Following a public consultation, the Government committed to a package of measures to strengthen our transparency in supply chain requirements. This includes extending the reporting requirements to public bodies with a budget of £36 million or more to create public and private sector parity. The Government have led the way in this endeavour and, in 2020, the UK became the first country in the world to publish a government modern slavery statement, setting out the steps we have taken to identify and prevent modern slavery in our own supply chains. The noble Lord, Lord Collins, indicated that he had not seen evidence of action in this area. In November 2021, we published a progress report on how we have met the ambitious goals set out in that statement and, at the same time, each UK ministerial government department voluntarily published their first annual modern slavery statement. As the noble Lord mentioned, the FCDO and the Cabinet Office are also working together to introduce new guidance to UK government bodies to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. Further detailed guidance is being developed that will be mandatory for government contracting authorities.

The UK’s G7 presidency demonstrated how we are revitalising G7 co-operation to tackle the most pressing global challenges. At the meeting in Carbis Bay, in June 2021, G7 leaders reaffirmed their commitment to uphold human rights and committed to prevent, identify and eliminate forced labour in global supply chains. This was followed up by the G7 Trade Ministers’ meeting in October, building on those commitments to eradicate forced labour, protect victims and improve global supply chain transparency, including by upholding international labour standards in their own business operations and procurement policies. This is one of a number of recent, clear demonstrations of our continued leadership and commitment to ending human rights abuses in global supply chains.

The noble Baroness, Lady Brinton, indicated that she did not think that the Department of Health and Social Care in particular was doing enough in this area, but if we look at the health service specifically, we see that the Department for Health and Social Care published a statement in October 2021 explaining the steps it has taken to identify, prevent and mitigate modern slavery within its own operations and supply chains for all goods and services that it procures. This aligns with the Cabinet Office guidance advising public sector contracting authorities on how to assess suppliers in terms of mitigating the risk of modern slavery. Contracts are normally placed in line with the department’s terms and conditions, which include clauses requiring good industry practice to ensure that there is no slavery or human trafficking in supply chains.

My noble friend also asked why the 2021 modern slavery statement did not cover the Vaccine Taskforce, PPE, UKHSA—formerly Public Health England—or test and trace contracts. Some indication of preventive steps taken in relation to these areas were included in the statement, and, as was outlined later in that statement, all areas will be covered in 2022 statements.

My noble friend, and the noble Baronesses, Lady Brinton, Lady Harris and Lady Kennedy, the noble Lords, Lord Alton, Lord Collins and Lord hunt, my noble friends Lady Hodgson and Lady Sugg, and others, raised issues about Xinjiang, in particular. The Government have taken robust measures in respect of UK supply chains. We have introduced new guidance for UK businesses on the risks of doing business in Xinjiang, supported by a programme of ministerial engagement, and we have announced enhanced export controls, as well as the introduction of financial penalties under the Modern Slavery Act. Taken together, these measures will help to ensure that no British organisations —government or private sector, deliberately or inadvertently—are profiting from or contributing to human rights violations against the Uighurs or other minorities.

I am conscious that the noble Lord, Lord Alton, asked me a series of questions. If he will allow me, I will write to him on those that I am unable to answer today. The same applies to the points raised by the noble Lord, Lord Rooker, to whom I listened with great care.

For the multiple reasons that I have set out, I cannot accept my noble friend’s amendment. I hope, nevertheless, that I have been informative, and that he will have derived at least some reassurance from what I have said about the seriousness with which the Government view the issues around human rights violations, and the actions that we are taking.

Lord Blencathra Portrait Lord Blencathra (Con)
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My Lords, I am grateful to every noble Lord and noble Baroness who has taken part in the debate, every single one of whom spoke in favour of the amendment, apart from my noble friend Lord Howe—I perfectly understand that he had to adhere to the DHSC brief. I am certain that, if every other noble Lord were to speak in the debate, each one would support the amendment as well.

I am grateful for the particularly powerful speech of the noble Lord, Lord Rooker, on determining the provenance of goods. Just as an aside, I can tell the House that, before Christmas, I thought I would impress my wife by trying to buy a couple of Oxford pillowslips myself, without troubling her. I wanted something with a thread count of over 400—for my delicate little skin, of course—and it took me hours and hours on the web to try to find a supplier among the major retailers that could guarantee that it would not be from Xinjiang province. I ended up contacting one supplier and asking, and three weeks later it replied by email guaranteeing me that the cotton was not from Xinjiang. I bought the pillowslips, and I still do not know whether or not I have been sold a pup—but they are quite nice against the skin. The noble Lord is right: we can tackle this problem only if we can trace provenance, and using DNA or other scientific evidence may be the best way to do that.

I do not want to go down the route of criticising some of the initial contracts that the Government entered into, as some noble Lords have done. There is no doubt about it: we were ripped off by some of them, we bought some duff equipment, and there will have been some dodgy contracts. But I remember that, at the time, every medic was calling out, “Get us PPE from wherever you can!” The whole world was scrabbling to get PPE. If your house is on fire, you do not spend ages on the web trying to find the cheapest fire bucket; you buy whatever you can. So I do not want to spend time on whether those contracts were value for money; that is for another day.

Someone asked: when did genocide start? I recall that the noble Lord, Lord Adonis, who was in the Chamber briefly, made a powerful speech a few months ago, saying that when genocide was happening, the whole world noticed that it was happening but did nothing about it, and then afterwards said that it must not happen again. We knew that Jews were being exterminated, and after 6 million were killed we said, “It must never happen again”. We knew what Pol Pot was doing, and afterwards we said, “It must never happen again”. We knew what Stalin was doing, and afterwards we said, “We must never let it happen again”. Then there was Srebrenica, and afterwards we said, “We must never let it happen again”. We know that genocide is taking place in Xinjiang province, yet we are just putting in place systems that may, one day, eventually, stop us trading with some of the people there who are committing genocide. That is not good enough. We must act faster than that.

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022

(2 years, 2 months ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-VII Seventh marshalled list for Committee - (27 Jan 2022)
I hope that the Minister will be able to accept what I regard as sensible amendments to move us toward a strategy to deal with the treatment and prevention of oral ill-health.
Earl Howe Portrait Earl Howe (Con)
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My Lords, I am very grateful for the contributions to this debate from noble Lords, bringing us to a set of issues which many of us have been grappling with for a number of years.

I turn first to Amendment 224, and the access issue. The point I must stress before any other is that this Government are committed to improving access to dental services across England. With that aim, we are working closely with NHS England to increase dental capacity as rapidly as possible. Since the start of the year, the threshold for dental activity in NHS practices has again increased and is set at 85% of pre-pandemic activity, allowing more patients to be seen. Building on this, NHS England recently announced an extra £50 million to urgently provide hundreds of thousands of additional appointments.

Beyond recovery from the pandemic, we recognise the need to reform the NHS dental contract to increase access. NHS England is leading on dental system reform and working closely with key stakeholders to deliver this. I think it was the noble Baroness, Lady Merron, who asked about dental morale. Much of any dip in morale has to do with what is seen as a delay in introducing the new dental contract, which has been promised for a number of years. There are all sorts of very valuable reasons for that delay, which the profession is being consulted on, but I understand that dentists are keen to see a new structure of remuneration.

That is a summary of the current backdrop. Noble Lords should be in no doubt of the Government’s continuing commitment to improving the provision of NHS dentistry across the country. What we are doing demonstrates that commitment, and for that reason we do not feel that a requirement to publish a statement on this work is necessary.

This brings me to the amendments on water fluoridation. This Government want to see more of the population benefit from fluoridation, which we know reduces oral health inequalities and the burden on NHS services. I will first address Amendments 259B and 259D, tabled by my noble friend Lord Reay, which take us in a different direction. I realise that he feels strongly about the issue, but in relation to Amendment 259B, the clear advice that I have received is that there is no evidence of harms to the environment from water fluoridation schemes. There are existing safeguards in place to protect the environment and public health.

As part of their overall responsibilities, water companies are already required to comply with relevant environmental legislation. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and other legislation set out the thresholds and criteria for which an environmental impact assessment is already required. The installation of water fluoridation plants in some areas may already fall within this scope. The Environment Act 2021 will, when brought into force, place a duty on the Government to have due regard to the policy statement on environmental principles in our policy-making. New and revised policies will need to take into account their impact on the environment. The Environment Agency also monitors the ecological health of our rivers at a large number of sites. If there had been or were to be a failure in the safeguards, the agency could detect this through its routine monitoring programme.

Turning to Amendment 259D, I emphasise to my noble friend that the scientific evidence around fluoridation is kept under constant review. Several authoritative scientific reviews have looked at the general health effects. The common finding of such reviews is that there is no convincing scientific evidence that fluoride in drinking water at levels used in fluoridation schemes is a cause of adverse health effects. This view is shared by the UK Chief Medical Officers, who issued a joint statement last September supporting water fluoridation as a safe and effective public health intervention to improve oral health.

I listened carefully to my noble friend, but the Government are committed to keeping the evidence under review, and it would be inappropriate to carry out evidence reviews focusing on studies from a specific time period and a specific part of the world, as he suggested. Keeping the evidence under review is what we will do but the Secretary of State is also required to monitor the effects on the health of the population living in areas with water fluoridation schemes and then publish a report no less than every four years. The next report is due in March of this year.

My noble friend suggested that the water fluoridation elements of the Bill have somehow been slipped in without adequate time for debate. In fact, the White Paper setting out proposals for the Health and Care Bill, published in February 2021, highlighted the current difficulties faced by local authorities and set out our intention to use the Health and Care Bill to give the Secretary of State the power to directly introduce, vary or terminate water fluoridation schemes. So the water fluoridation elements of the Bill have been there from the outset and open to debate.

Both my noble friend and the noble Lord, Lord Storey, referred to the Childsmile initiative in Scotland and asked why we cannot have a scheme in England. In fact, daily supervised toothbrushing programmes in England can already be entered into by local authorities or the NHS. There are already some schemes around the country; I visited one myself when I was dentistry Minister. Public Health England has published guidance in this area to help local authorities who are interested in schemes. Against that background, I hope that my noble friend will feel at least a little reassured, and sufficiently so to refrain from moving his amendments when they are reached.

On Amendments 260 and 262, the public voice on further fluoridation remains important and we are committed to ensuring that the population continues to have its say on any future water fluoridation schemes. We are bringing forward plans for an initial expansion of water fluoridation schemes over the next three years. We will consult the public on these plans later this year, subject to the successful passage of the Bill and funding being confirmed. The outcome of that consultation will inform regulations to be drafted later this year. These regulations will be subject to the affirmative procedure.

Underpinning any scheme expansion is the need to undertake feasibility studies and to secure funding, as well as public consultation against which we do not have certainty and cannot pre-empt the outcome. As such, we cannot at this stage set out a programme of expansion; because of that, any programme drafted in advance of the completion of these steps would be so heavily caveated and subject to change that its utility would be substantially undermined. I am of course very happy, as is my noble friend Lord Kamall, to update the House as expansion plans are developed and agreed. However, we do not believe that this needs to be specified on the face of the Bill.

Amendment 261 relates to cost-sharing for new schemes. There are no current proposals for cost-sharing. However, given the cycle of legislation and the infrequency with which these opportunities present themselves, we have taken the decision to include such measures now to provide flexibility for this in future. I can assure the House that, should we bring forward any plans to cost-share in the future, we would seek to fully engage with relevant groups at the earliest opportunity. Any plans to cost-share with public sector bodies would also be subject to regulations on which there is a requirement to consult.

I would say to the noble Baroness, Lady Walmsley, that funding for both new and current health improvement initiatives is within the overall capital budget allocated to the department over the next three years. We will be undertaking a business planning exercise before this funding is made available from April 2022, and we will confirm this is due course.

The noble Baroness asked about the effect on water bills. There will be a cost associated with water fluoridation schemes that will need to be met either through taxation or other means. However, we know that in the end this is a cost-saving measure; the money spent to implement these schemes will save the nation money in the longer term and will benefit health. As I said, currently there are no plans to cost-share with water companies or indeed any other public sector bodies. However, given the opportunity presented by the Bill, we are enacting the relevant provisions.

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Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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I raised the issue of the lack of public trust in tap water and the fact that that is a public health issue and could be magnified. Could the Minister comment on that and suggest what the Government are planning to do about it?

Earl Howe Portrait Earl Howe (Con)
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I apologise to the noble Baroness, because she was making a significant point. I am not sure that I share her perception that those who buy bottled water in supermarkets necessarily do so as a reflection of their lack of trust in tap water; a lot of it has to do with some myths around the benefits of bottled water. However, be that as it may, I will take advice and write to the noble Baroness. I am not sufficiently sighted on the issue she raised and the evidence behind it, so it is probably appropriate if I look into it and write to her.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, this has been a very interesting debate. On dental access, a number of noble Lords—my noble friend, the noble Baroness, Lady Bennett, the noble Lord, Lord Storey, and the noble Baroness, Lady Walmsley, among others—commented on the great difficulty that many people have at the moment in getting access to an NHS dentist. The noble Lord, Lord Storey, focused in particular on children, which is my particular concern. More energy needs to be put into developing a dental strategy. On thoughts of contracts, anyone who has been a dental Minister will know that the problem with contracts is that dentists always overperform, and the Treasury then claws back in future years, leading to unhappiness and misery in the profession. The fact that the pilot schemes, on which I think work is being based for a future contract, have now stopped, or are going to be stopped, is a great pity, and it does not show positive intent.

On fluoridation, I was delighted that the noble Lord, Lord Young, intervened. A couple of debates ago I was watching on the screen, and he chided me for what I thought was a perfectly formed piece of legislation at the time, many years ago. He talked about his experience as a Minister 42 years ago. I think it was because of his work that I, 37 years ago, as secretary of the Edgware/Hendon Community Health Council, organised public meetings in part of the Borough of Barnet on fluoridation, prior, we hoped, to the then area health authority implementing a fluoridation scheme. Although the public meetings came out strongly in favour of fluoridation, of course nothing happened. I am afraid that the experience in Barnet and Edgware and Hendon was repeated up and down the country, which is why I applaud the Government for doing what they are doing now.

The noble Baroness, Lady Northover, spoke very eloquently about the evidence from deprived areas. Sandwell, next door to Birmingham, is high up in most indicators of poor health, except in dentistry. That is because, unlike Liverpool, Birmingham City Council took the decision in the 1960s to fluoridate the water supply and Sandwell got the benefit. The result is that, in general, oral health in the West Midlands is very good indeed.

I listened with great interest to the noble Lord, Lord Reay. He mentioned the Jauncey judgment, which unfortunately I remember. I remind him that, although Lord Jauncey ruled that Strathclyde Regional Council was exceeding its powers in seeking to fluoridate the water system, he accepted that the amount of fluoride it wanted to put into the system would have no significant adverse effect on health, that fluoridation had been shown to be harmless and that it would be effective. When we quote Lord Jauncey, we need to quote the whole judgment, rather than just whether Strathclyde was found to have the power to put fluoride in the water.

I will not repeat what the noble Earl, Lord Howe, said. In only September, the Chief Medical Officers spoke in their judgment about the effectiveness and safety of fluoride. I was very glad to hear the point the noble Earl made about expansion; I am very glad that it is on the Government’s mind. I look forward to the consultation, which I take will be a national one, if there is going to be an expansion; that is very good news indeed.

On cost sharing, I register that this Bill is full of little clauses which give Ministers powers to do something in the future, when they know what they want to do. I mention procurement regulations in Clause 70 at the same time; I think that is going a bit too far. Having said that, I beg leave to withdraw my amendment.

Health and Care Bill Debate

Full Debate: Read Full Debate
Department: Leader of the House

Health and Care Bill

Earl Howe Excerpts
Committee stage
Friday 4th February 2022

(2 years, 2 months ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-VIII(a) Amendment for Committee - (3 Feb 2022)
Baroness Thornton Portrait Baroness Thornton (Lab)
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I thank my noble friend Lord Blunkett for speaking very briefly and giving us some very wise words. The noble Baroness, Lady Altmann, is absolutely right that the system is inadequate. I am grateful to the noble Baroness, Lady Bennett, for tabling these amendments and opening up this discussion. They address the issue of ownership of the organisations that provide social care. We know that almost all social care provision, residential and domiciliary, is not in the public sector and has not been for some time. We also know that the current system is wholly dysfunctional, as the noble Baronesses, Lady Bennett and Lady Brinton, said. It does not work for the service users, for the staff or even for the providers, which go bust fairly regularly, as the noble Baroness, Lady Altmann, described. Of course, it used to be a money spinner for hedge funds and others that got involved to asset strip and leverage profits and remuneration at the expense of service users, both individual self-funders and taxpayers and ratepayers who were paying for other residents.

I have always taken the view that this sector would benefit from an enormous influx of social enterprises and co-operatives. Where social care, domiciliary care and residential care are provided through social enterprises, community enterprises and co-operatives, they are sustainable, they keep their staff and they invest their surpluses back into their social purpose, so everybody gains. To suggest that the Government will fix social care through this legislation is laughable, because the existing market solution cannot be fixed. So we have sympathy with these amendments and fully understand the intent that the noble Baroness, Lady Bennett, outlined for us.

I am interested to know how the Minister will respond, because it is quite clear that something must happen in this sector because it is so unsatisfactory. I suspect that if the Government are not going to move on this, we may have to return to this later in the Bill.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I appreciate the way that the noble Baroness, Lady Bennett, introduced these three amendments and I am grateful to her for the clear explanations she gave for them. I will take them sequentially, beginning with Amendment 237.

This amendment seeks to place restrictions on the power for the Secretary of State to provide financial assistance to bodies engaged in the provision of social care services. It would prevent use of the power for the purposes of repaying debt, paying interest on debt and making distributions to shareholders.

To begin with a general but important point, it is incumbent on all Ministers and public servants to ensure that public money is used effectively for the greater good, and that purpose is implicit in the power contained in Clause 141. However, I fear that this amendment could make the proposed power unworkable in practice. If we look at the way the amendment is worded, any adult social care provider with a trade creditor of any kind would be caught, as would any organisation with an overdraft facility designed to support day-to-day working capital. A company’s working capital, by its nature, is money that is used to fund day-to-day operations in general, and one cannot associate a particular pound with a particular business activity. Furthermore, any private company would be prevented from paying dividends, as it would be logically impossible to disassociate the long-term effects of the assistance from the ability of the company to pay such dividends.

The pandemic has demonstrated the need for speed and flexibility in providing support to the care sector. We do not intend to use the power in the way the noble Baroness fears, but we have designed it in such a way as to provide the maximum flexibility to respond in times of crisis; each individual case will be considered on its merits. Placing additional restrictions through this amendment would impede our activity to provide emergency support to critical providers.

Any future use of this power, whether for emergency purposes such as those we have seen in the pandemic or to deliver specific policy on a national basis, would be subject to the usual scrutiny and safeguards around use of public funds, as set out in Treasury guidance on Managing Public Money and Accounting Officer Assessments. As with any use of public resources, the power would be exercised with a clearly defined purpose, with strict criteria applied in practice relating to the use of the funding to ensure that it delivers maximum value for money.

I turn now to Amendments 238 and 239. Amendment 238 seeks to undertake a review of the financial regulation of companies providing social care, with a view to ensuring that it supports the effective provision of social care. Amendment 239 aims to increase the financial transparency of offshore corporate groups providing social care.

We are committed to ensuring that we have a sustainable care market. This was made clear in People at the Heart of Care: Adult Social Care Reform White Paper, published in December. It is vital to ensure that people have a wide range of high-quality care and support options to choose from, supported by a workforce that is empowered to deliver high-quality care. With that in view, we have already set out a number of planned actions to support the effective provision of social care services.

As the Committee will be aware, under the Care Act 2014 it is the responsibility of local authorities to shape their local markets to ensure that a diverse range of high-quality, sustainable care and support services is provided. We consider that they are the ones best placed to understand the needs of their local populations.

Maintaining quality and high standards is vital, and that means regulation. The Bill introduces a new duty on the CQC to assess local authorities’ delivery of their adult social care responsibilities. Alongside existing duties on the CQC to monitor, inspect and regulate health and care services, this will drive up quality so that everyone can access the care they need, wherever they live.

We are also committing £1.4 billion of funding over three years to support local authorities in moving towards paying providers a fair cost of care. This funding will strengthen the capacity of local authorities to plan for and execute greater market oversight and improved market management to ensure that markets are well positioned to deliver on our reform ambitions, to address underinvestment and poor workforce practices and to provide a stable base for reform of adult social care.

In addition, we are investing at least £500 million over the next three years to begin to transform the way we support the social care workforce. This funding will go towards continuous professional development, so that people can experience a rewarding career with opportunities to develop and progress, now and in the future.

The noble Baroness stressed the importance of transparency in the market and I understand the points she made, particularly about overseas-registered companies. The Department for Business, Energy and Industrial Strategy is continuing to finalise the draft registration of overseas entities Bill, which underwent pre-legislative scrutiny in 2019, to align with the broader reform of Companies House and our plans to verify the data it holds. The Joint Committee concluded that

“this draft legislation is timely, worthwhile, and, in large part, well drafted.”

In their July 2019 response, the Government accepted many of the committee’s recommendations, such as ensuring that Companies House is given adequate resources and introducing a reporting facility. The Government have been exploring how best to implement these recommendations and others, such as civil sanctions. We are also considering how verification will work with this register. The Department for Business, Energy and Industrial Strategy is amending the draft Bill in line with the committee’s recommendations and will introduce it when parliamentary time allows.

As the noble Baroness, Lady Tyler, said, adult social care is a mixed economy. The majority of adult social care providers are private companies. Like other sectors, many private businesses employ debt as an ordinary part of their capital structures or funding arrangements.

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Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, it is a pleasure to follow the noble and right reverend Lord, who reminds us of our obligations to assist with alcohol-related ill health. I thank the noble Baroness, Lady Finlay, and the noble Lord, Lord Shipley, for putting these amendments before your Lordships’ House today. The first is a probing amendment about the need to report on the consultation on alcohol labelling. It is absolutely right to raise this: consumers have a right to know what is in their drinks, to make informed choices about what and how much they drink. Currently there are no legal requirements for alcohol products to include health warnings, drinking guidelines, calorie information or even ingredients. Research by the Alcohol Health Alliance found that over 70% of products did not include the low-risk drinking guidelines, and only 7% displayed full nutritional information including calories. I certainly add my voice to welcoming the forthcoming consultation on alcohol calorie labelling. When can we expect to see this, and what is the reason for the amount of time that it has taken to bring it forward?

Amendment 296 requires the Secretary of State to make a five-yearly statement on the cost efficacy of alcohol services. As we know, rigorous impact evaluation is absolutely key to good policy-making and improving the lives of those who use alcohol services. At present, the Government cannot say that they are meeting their responsibility to tackle alcohol harm with the requisite financial commitment and in the right places. Perhaps the Minister will tell your Lordships’ House what evaluation measures are already in place.

Of course, the background to all this is that, since 2012, there have been real-terms funding cuts to alcohol services of over £100 million. Pre pandemic, only one in five dependent drinkers was believed to be in treatment, leaving a shocking four out of five without help. The pandemic has only worsened the situation. I hope that the Minister will agree that there is a need to do better to ensure that we know how policies and services help or hinder the treatment of problem drinking, in order that efforts and resources can be targeted to where they work best.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I pay tribute to the noble Baroness, Lady Finlay, for her work as chair of the Commission on Alcohol Harm. I thank her for this opportunity to set out the current state of play on the Government’s alcohol policy. I am the first to acknowledge the seriousness of the harms caused by the consumption of alcohol, which she pointed out.

Effective alcohol labelling is an important part of the Government’s overall work on reducing alcohol harm. I am pleased to tell the noble Baroness that the legal powers available to the Government are already sufficient to enable us to consult and report on alcohol labelling. The kind of power proposed in her probing amendment is highly prescriptive, and, from a purely practical point of view, would not allow for sufficient flexibility in the consultation process, which could make the process less effective.

As she knows, as part of the Government’s Tackling Obesity strategy, published in July 2020, the Government committed to consult on whether mandatory calorie labelling should be introduced on all pre-packed alcohol as well as alcoholic drinks sold in the out-of-home sector. I repeat that commitment today, and, as part of our public consultation, we will also seek views on whether provision of the UK Chief Medical Officers’ Low Risk Drinking Guidelines, which includes a warning on drinking during pregnancy, should be mandatory or continue on a voluntary basis. The noble Baroness, Lady Merron, asked when we might expect that consultation to be forthcoming. I am afraid I can say no more than “in due course” at this stage, which I realise is not wholly enlightening, but it is as far as I can go at the moment.

Turning to Amendment 296, which proposes additional reporting and government statements, we do not think a new reporting requirement is necessary. The Office for Health Improvement and Disparities already publishes annual data on estimated numbers of alcohol-dependent adults within local authorities in England. Health commissioners can use this data to estimate local need and appropriately plan their alcohol treatment services. Outcomes for local authority-funded alcohol treatment services are already published at local and national level via the national drug treatment monitoring system. The Office for Health Improvement and Disparities also provides a number of data tools to enable local areas to compare their performance against other areas and nationally, including the public health outcomes framework, local alcohol profiles for England and the spend and outcomes tool.

On funding, local authorities are currently required to report on their spend on alcohol services annually to the Department for Levelling Up, Housing and Communities. Through the “why invest?” online guidance, the Office for Health Improvement and Disparities already produces data and information on the return on investment for alcohol and drug treatment. The guidance includes cost savings data on treatment interventions in primary and secondary care and on specialist and young people’s treatment services. There is a strong programme under way to address alcohol-related health harms and their impact on life chances, and to reduce the associated inequalities which the noble Baroness emphasised, including an ambitious programme to establish specialist alcohol care teams in hospitals and to support children of alcohol-dependent parents.

Throughout the Covid-19 outbreak, drug and alcohol treatment providers continued to support and treat people misusing drugs and alcohol. OHID supports local authorities in this work by providing advice, guidance and data. OHID is developing comprehensive UK guidelines for the clinical management of harmful drinking and alcohol dependence. These aim to develop a clear consensus on good practice and to improve the quality of service provision. The work is expected to be completed later this year.

Finally, we are currently developing a new commissioning standard for drug and alcohol treatment which aims to increase the transparency and accountability of local authorities on how funding is spent. It will include requirements to commission services—

Lord Sentamu Portrait Lord Sentamu (CB)
- Hansard - - - Excerpts

I am sorry to disturb the Minister in mid-flow. He described this amendment as prescriptive. Seat belts became prescriptive, and most people now wear their seatbelt. There was no question of an in-between. Smoking was another, and the effect has been to improve our public life. Without clarity—and we still will not have options—how will the Government achieve what wearing seatbelts and not smoking have achieved in terms of health? Alcohol needs to have similar treatment.

Earl Howe Portrait Earl Howe (Con)
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The noble and right reverend Lord makes an extremely cogent set of points. I criticised Amendment 259 only on the grounds that it was overprescriptive. Surely, what we want in any consultation is a broad enough question to put to the public and those who have expertise in this area. If we make it too narrow—I said “overprescriptive” rather than “prescriptive”—we are in danger of introducing a lack of flexibility. That was my only point there.

I was just mentioning the development of a new commissioning standard. It will include requirements to commission services to meet a wide range of individual needs, and services will be monitored against these. I hope that information provides the noble Baroness and the Committee with a useful update on where we are with this important agenda and will enable her to feel reasonably comfortable in withdrawing her amendment.

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Lord Cormack Portrait Lord Cormack (Con)
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My Lords, I apologise for missing the first minute—but it was only the first minute—of the splendid speech of the noble Lord, Lord Hunt. I am delighted to add my support to his initiative, most splendidly supported by my noble friend Lord Ribeiro. We entered this House on the very same day and it was very good to hear what he had to say. Of course, the noble Baronesses, Lady Northover and Lady Finlay, and the noble Lord, Lord Alton, all have an impeccable record on these matters.

Earl Howe Portrait Earl Howe (Con)
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I hope that my noble friend will forgive me but, as he was not here at the beginning of the debate, strictly speaking it is not permitted for him to speak. If he could make his remarks brief, I am sure that would be appropriate; I do not want to stop him mid-flow.

Lord Cormack Portrait Lord Cormack (Con)
- Hansard - - - Excerpts

Well, I certainly was going to make my remarks brief, and I am sorry that I was detained for one minute. I just want to give my wholehearted support to these amendments. There is no more despicable trade than the trade in human organs and no more despicable practices than those that are going on in China at the moment, simultaneously with the opening of the shameful Games. I very much hope that my noble friend, who so politely interrupted me, will be able to give us a very supportive statement when he comes to wind up this debate.

Baroness Thornton Portrait Baroness Thornton (Lab)
- Hansard - - - Excerpts

My Lords, can I say how much I agree with my noble friend Lord Hunt, the noble Baroness, Lady Northover, and the noble Lords, Lord Ribeiro and Lord Alton? They know I have been with them on this journey throughout. I probably would go a bit further than my noble friend Lord Hunt’s Amendment 265, because I believe that this country should follow the example of France and ban the exhibition of plasticised cadavers and human body parts.

In 2019, we had an OQ on this, which many noble Lords here today took part in. I said at that time that there is an

“ethical issue at play here”

and that it seemed that the businesses that had

“the exhibitions which use plasticised cadavers and foetuses for supposedly educational purposes could use modern materials and production to create the same exhibits. That begs the question: why use cadavers and human body parts at all? If the answer is that people want to see such things and will pay to do so, I remind noble Lords that people used to flock … to see public executions until 1868.”

It is an ethical issue. I am afraid that the noble Baroness answering that debate at the time said that

“the ethical position is not one for government.”—[Official Report, 27/2/21; cols. 228-29.]

Well, I would say that this debate shows that the ethical position is absolutely one for government.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I begin by thanking the noble Lord, Lord Hunt of Kings Heath, and many other noble Lords for bringing these amendments relating to these important and sensitive issues to the Committee today.

Amendment 265 seeks to prohibit the use of imported bodies or parts of bodies for the purpose of public display without the specific consent of the donor. The Government share the concern motivating Amendment 265 that bodies may in the past have been displayed in public exhibitions without the donors’ consent. We therefore committed in this House, during the passage of the Medicines and Medical Devices Act, to address this concern, and have since worked closely with the Human Tissue Authority to strengthen its code of practice on public display, which was laid before Parliament last July. The code now guarantees that robust assurances on consent for all donor bodies, including imported bodies, are fully received, assessed and recorded, before the authority issues any licence for public display. The Government therefore do not believe that this amendment is necessary.

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Lord Ribeiro Portrait Lord Ribeiro (Con)
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My Lords, would it be possible to collect data to substantiate what my noble friend has said about the reduction in people going overseas to get organs for transplantation? Can we get some figures to be absolutely clear that the numbers are reducing and not continuing, as some of us fear?

Earl Howe Portrait Earl Howe (Con)
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I expect it is possible to capture some data but, of course, there will always be cases of people going overseas who are invisible to those who collect data, and we can never guard against that.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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I will follow the noble Lord’s point. Even though it may be impossible to collect credible data on people leaving who are not going to say they are going overseas to collect organs, when they return—as the noble Lord, Lord Hunt, pointed out—many of them will receive treatment and care inside the National Health Service as a result of having an organ that has not come from within the United Kingdom. That is data that could surely be collected.

Earl Howe Portrait Earl Howe (Con)
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The noble Lord makes a very good point and, if I may, I will investigate the feasibility of doing that and what systems are in place to capture that kind of data.

I am grateful to the noble Baroness, Lady Finlay, for her Amendment 297H, which covers the retention and use of tissues after coroner post-mortem examinations. I of course share the commitment to promoting education and research. However, I am afraid I do not believe that this amendment represents the right approach to supporting this aim. I appreciate that the noble Baroness emphasised that she was referring to blocks, slides and urine samples; the amendment refers to tissue samples. The advice I have received is that it is important that we remain committed to the principle that consent is fundamental to how we treat the remains of the deceased. I remember the passage of the Human Tissue Act; the noble Lord, Lord Alton, was absolutely right in what he said earlier about that. All of us should have a choice about what happens to our bodies after we die, and if we cannot exercise that choice, those close to us should be able to.

Post-mortems can already be distressing to the families of the deceased. Denying them a say as to what happens to the remains of their loved ones will compound that distress—often unnecessarily, as many of the retained tissues will never be put to use.

There are three other defects, as I see them, in the amendment; I am concerned that it would allow tissues to be stored indefinitely; it would allow for an overly broad interpretation of what constitutes a tissue sample —that is, in fact, my main concern; and it does not address the considerable challenge of how to effectively catalogue, audit or access the large amount of new material that would have to be retained.

Having said that, I believe that under the current consent-based model we can and should do more to encourage the active identification of tissues that could serve an important purpose, and to communicate the significance of retaining this tissue to the deceased’s family when seeking their consent. I understand the force of what the noble Baroness is trying to achieve and there may be different ways of doing that.

While I am grateful to noble Lords for their amendments in this area, I respectfully ask them to withdraw or not press them at this stage.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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Will the Minister undertake that the Government ask the Scottish Government about their experience of retaining tissue blocks and slides? Only tissue blocks and slides—not, I stress, organs—are being retained as part of the clinical record, so that we have some information about problems that have arisen. Also, given that the Government accepted the McCracken review, how do they then intend to implement that acceptance? If you accept the need to have consent, there has to be a process by which consent is obtained. You cannot ask for consent prior to the post-mortem because the post-mortem is a judicial process.

Earl Howe Portrait Earl Howe (Con)
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I noted that the amendment tabled by the noble Baroness is closely modelled on the current law in Scotland. Because of that, it fails to account for the significant differences between how Scotland, and England, Wales and Northern Ireland, regulate the storage and use of human tissue. In England, Wales and Northern Ireland, that storage and use is regulated by the Human Tissue Authority. In Scotland, there is no equivalent body and the amendment is silent as to what impact it would have on the authority, especially given the challenges involved in managing the great quantity of tissue that would be retained.

I am aware that many Scots share my concerns about consent for retaining tissue. A recent petition to the Scottish Government highlighted the anguish faced by a grieving mother on learning that she did not have the choice to have some of her child’s remains returned to her. She was upset at how long it took for those remains even to be located, so although this amendment would apply only to adults the same kind of issues would apply.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, it has been a very good debate. First, I say to the noble Baroness, Lady Finlay, that I sympathise with her Amendment 297H, but clearly it is a sensitive area. The noble Lord, Lord Alton, mentioned Alder Hey; I had ministerial responsibility at the time, and it was very traumatic meeting the parents of children who, in the end, had body parts buried up to three times or more because of the dreadful way in which both the hospital and university managed the situation, as well as the pathologist himself. On the other hand, the reasons put forward by the noble Baroness seem very persuasive, and I hope there will be a continuing debate on this with the Government.

As far as my two amendments are concerned, I am very grateful to the noble Lord, Lord Cormack, the noble and right reverend Lord, Lord Sentamu, the noble Baroness, Lady Finlay, and my noble friend Lady Thornton for their support. As the noble Lord, Lord Ribeiro, said, the concession given by the noble Baroness, Lady Penn, on behalf of the Government during discussions on the then Medicines and Medical Devices Bill was highly significant both for this country and for the message it gave globally. The debate today, and the amendments, are as much about global messages as UK legislation.

As the noble Baroness, Lady Northover, said, we cannot say that we do not know; we do know. The noble Lord, Lord Alton, sat through many of the harrowing sessions of the Uyghur Tribunal and the evidence—before a hard-headed panel—is absolutely convincing. There can be no doubt that this is an abhorrent practice and, as my noble friend Lady Thornton said, it may not be on the same scale but these wretched exhibitions that take place are a product of those abhorrent practices. She has persuaded me that my amendment is rather soft and needs to be hardened up. I look forward to her helping me to get the wording right.

The noble Earl, Lord Howe, referred to the HTA code of practice; I think we need to go further than that. On organ tourism, I will obviously study very carefully the issues that he raised about my amendments, but we have the figures from NHS Blood and Transplant: I think 29 people have come to the NHS for help following a transplant abroad, which gives us some clue as to the numbers but clearly it is not the whole picture. At the end of the day, you come back to the issue of ourselves and China. Clearly, there is huge ambiguity in our policy, whether that is to do with security, trade or human rights. Some of that ambiguity is understandable, given the scale and size of the Chinese economy—we understand that—but I do not think there is any room at all for ambiguity about this country making a strong response to these appalling practices. Having said that, I beg leave to withdraw my amendment.

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Key to this is looking closely at the work of NHS Resolution, as the amendment stresses. Underlining everything is the importance of the system being able to learn from common failures—medical, procedural, training, managerial, policy or technology. The priority of better safe care must be paramount. That is why the messages of the report of the noble Baroness, Lady Cumberlege, as we have again heard today, are so crucial to today’s deliberations. We strongly supported her determination to establish the post of patient safety commissioner. We also support her Amendment 288, which calls for schemes to be established for the care and support of victims who suffered avoidable harm from hormone pregnancy tests, sodium valproate and pelvic meshes. Her work on the rapid redress system provides a way forward in dealing with some of the issues raised by noble Lords. I look forward to the Minister’s response.
Earl Howe Portrait Earl Howe (Con)
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My Lords, this has been an important and moving debate. We should recognise that, behind the technical aspects of the topic, there are stories of real harm and life-changing events for people and families.

Amendment 267 would establish an independent judge-led review into the operation of the Vaccine Damage Payments Act 1979. I appreciate the spirit behind this amendment and agree that we need to ensure the vaccine damage payment scheme works as effectively as possible. We recognise that the scope and scale of the scheme has significantly changed since 1979; it has expanded from the original eight diseases to cover 18 and the payment value has increased from the original value of £10,000 in 1979 to the current level of £120,000.

Most recently, responsibility for the operation of the scheme transferred from the Department for Work and Pensions to the Department of Health and Social Care on 1 November last year. The NHS Business Services Authority has now taken over the operation of the scheme. It is looking to improve the claimant journey on the scheme in three main ways: increasing personalised engagement; reducing response times; and making more general support available to claimants. It has also allocated additional resource to the operation of the scheme. I can tell the noble Lord, Lord Hunt, that the department will further engage with the NHS Business Services Authority to progress service improvements and, in particular, greater digitalisation.

Our focus now must be on completing the transfer of the scheme, getting support to those who are eligible as quickly as possible and improving the claimant experience. Against that background, I am not convinced that an independent review at this stage would support these goals. Indeed, it might risk delaying progress.

I shall just comment on a couple of detailed points made by the noble Lord. The first is on the disablement threshold. The 60% disablement threshold is aligned with the definition of “severe disablement”, as per the DWP’s industrial injuries disablement benefit. It is not clear that this is a significant barrier to claimants. In 2019 and 2020, just one claim out of 151 was rejected due to the 60% disability threshold not being met. Of course, there is also the option for claimants to appeal the decision.

The noble Lord also expressed concern about the length of time that it was taking to settle claims. NHS Resolution aims to get to the right answer as quickly as possible in every case but, equally, each case has to be considered on its own merits, and it is important that a proper investigation is undertaken. The department keeps NHS Resolution’s performance under regular review and is satisfied that its approach to settling claims strikes the right balance in delivering timely resolution. Recent performance on time to resolution has been influenced by the pandemic—that is not meant to be an excuse; it is just a statement of fact—and the need to relieve pressure on front-line NHS staff. To mitigate this, NHS Resolution worked with a range of industry stakeholders to introduce a specific Covid-19 clinical negligence protocol to support the management of claims during this time. This collaborative approach has been widely welcomed in the written evidence to the HSCC inquiry on NHS litigation reform.

On Covid-19 vaccines in particular, clearly, they are new, and establishing a causal relationship between the vaccines and their purported side effects is not a straightforward matter and takes time. So, while we would like to have an accelerated process, it was vital that we did not make assessments before the scientific evidence reached a settled position, to avoid payments being made in error, or those who qualify potentially missing out on payments. The NHSBSA will be writing to claimants when there is an update on their claim, and we appreciate the continued patience of claimants at this difficult time.

I turn now to Amendment 268, also tabled by the noble Lord, Lord Hunt, and supported by my noble friend Lady Hodgson of Abinger. The Government already have robust arrangements for reviewing public bodies such as NHS Resolution. Our assessment is that NHS Resolution is a well-run organisation. The National Audit Office noted in its 2017 report the efficiency gains it has achieved, including significant progress in reducing unnecessary litigation through the use of mediation and alternative dispute resolution. In 2020-21, 74% of claims handled by NHS Resolution were resolved without formal court proceedings. In fact, very few cases—0.3% of litigated claims—actually go to trial. Of the 56 cases that went to trial in 2020-21, NHS Resolution achieved a judgment in favour of the NHS in 38 cases: roughly two-thirds.

I also draw the Committee’s attention to the work under way to manage rising clinical negligence costs—a topic very appropriately raised by the noble Lord, Lord Hunt. The department is working intensively with the Ministry of Justice, other government departments and NHS Resolution, and we will publish a consultation to address this issue. An independent review would duplicate this work and, in any case, legislation would not be necessary to establish such a review.

In 2017, the NAO identified the main drivers of the cost rise as, first, compensation payments; secondly, claim volume increases; and, thirdly, legal costs. Since then, the picture has changed: payments for compensation now drive the increase and are growing at rates above inflation. We share the noble Lord’s concern that existing legislation may mean that the state pays twice for care. While from our analysis we do not think it is likely to be a significant driver of increasing costs, we remain open to evidence. Furthermore, the Government recently submitted evidence to the Health and Social Care Committee inquiry on NHS litigation reform. We welcome the inquiry and look forward to its recommendations.

Turning to Amendment 288, I thank my noble friend for her and her team’s diligence and dedication and the brave testimonies of those who contributed to the Independent Medicines and Medical Devices Safety Review. Anyone who has read that review cannot fail to be moved by the evidence submitted to my noble friend’s team. I assure your Lordships that the review has been a powerful call to action. The Government have accepted the majority of the report’s nine strategic recommendations and 50 actions for improvement.

I understand my noble friend’s point about redress, but, at the same time, I believe it is important that we focus government funds on initiatives that directly improve future safety. For this reason, the Government have already announced that redress schemes will not be established for people affected by hormone pregnancy tests, sodium valproate or pelvic mesh. However, as my noble friend knows, in order to put patient safety at the heart of the system, we have established— thanks to her recommendation—the new patient safety commissioner. The appointment of the commissioner will put the patient voice at the centre of patient safety and deliver improvements in how the system listens to and responds to concerns raised by patients.

We are also improving the safety of medicines and devices and embracing the new opportunities to reform regulatory frameworks following the UK’s departure from the European Union. The Medicines and Medical Devices Act delivers further on our commitments to patient safety, embedding reform and delivering an ambitious programme of improvements for medicines and medical devices.

I hope I have provided at least some assurance and that noble Lords will feel able not to press their amendments.

Baroness Cumberlege Portrait Baroness Cumberlege (Con)
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My Lords, I very much welcome my noble friend’s response. Of course he is right: we must always look to the future safety of our services. I am really grateful to Ministers and the department for what they have done in response to our report. It is not 100% yet, but we are nearly there, and I thank them for that.

But I am not talking about the future. I am talking about the people who are suffering now as a consequence of the treatment they received, not knowing that it would do them harm. So I ask my noble friend to take this away and think further on it. As I tried to explain, we have devised in the amendment a system that is not, as we said, an open cheque. It is not huge amounts of money; it is not huge numbers of people. It is to help those who are struggling with their lives as a consequence of the harm that has been caused to them. I just ask my noble friend to take this away and think further.

Earl Howe Portrait Earl Howe (Con)
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I appreciate of course my noble friend’s remarks, and I undertake to bring them to the attention of my right honourable friend the Secretary of State.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, this has been a very good debate, again, and I am grateful to the noble Earl, Lord Howe, for his sympathy. I really support the plea from the noble Baroness, Lady Cumberlege, for more thought to be given to the specific area of redress for the three groups of patients she mentioned. Any of us who have met some of the women involved—I think in particular of the women I have met who have been affected by surgical mesh issues—will be taken with the huge damage that has been done to their lives and well-being. I think they deserve listening to.

I will also say that I was very grateful to the noble Baroness, Lady Hodgson, for her support and for the information she brought to your Lordships, and to the noble Baroness, Lady Walmsley, and my noble friend Lady Wheeler, who pinpointed the need for action in this area.

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However, having said that, I was hoping I could just tempt the noble Earl to say a little something about how those affected by vaccines—particularly by the Covid vaccine—might be brought into the system of discussing it.
Earl Howe Portrait Earl Howe (Con)
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My Lords, I rather wish it were my noble friend Lord Kamall handling this group because he is the Minister, and I am not. However, what I can do is undertake to bring the request of the noble Lord to his attention—I am sure I do not have to—and I am sure he, in turn, will wish to respond as soon as possible to that request.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, I know how generous the noble Lord, Lord Kamall, has been with his time. I can but hope for a sympathetic response and beg leave to withdraw my amendment.

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Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, this has been an interesting debate, and we have heard various views. I thank my noble friend Lord Faulkner for leading on this group of amendments, and I thank noble Lords for putting forward their amendments and views so that we can explore how we respond to the challenge of smoking.

My first point leads on very neatly from the comments of the noble Lord, Lord Crisp. Smoking remains the leading preventable cause of premature death. As the noble Lord observed, it is a matter where we should consider the scale of the effect and the fact that this is about addiction. It is not about free choice but is something that we must assist people to overcome. While rates are indeed at record low levels, there are still more than 6 million smokers in England, and the need to reduce this number is particularly important now, as smokers are more at risk of serious illness from Covid.

The economic and health benefits of a smoke-free 2030 would be felt most keenly among the most disadvantaged. However, as we heard from the noble Lord, Lord Young, at current rates we will miss this target by seven years on average, and by at least double that amount for the poorest groups in our society. So it is vital that we motivate more smokers to quit while reducing the number of children and young people who start to smoke.

Within this group of amendments, noble Lords have suggested a broad raft of anti-smoking measures, including information inserts and warnings printed on rolling papers, a consultation on raising the age of sale to 21 and a “polluter pays” approach which argues that tobacco companies should pay for smoker treatment programmes. All these measures can be underpinned by broad cross-party support and public support. Certainly, the All-Party Group on Smoking and Health is very supportive of this group of amendments.

The pandemic has posed new challenges to us, and there is a new group of people who started smoking but who otherwise would not have done so. We have been promised a new tobacco control plan, and I hope that the Minister tells your Lordships’ House when we can expect it. The labelling and information interventions contained within this group of amendments have a strong evidence base from other countries, as well as from research in the UK. I hope that the Minister will be amenable to them.

Picking up on a few of the points raised within this group, it is very shocking to note that more than 200,000 11 to 17 year-olds who have never smoked previously have tried vaping this year. It is a very strange situation that e-cigarettes and similar products can be given free to somebody under 18 but they cannot be sold to them. We do not want to see a situation where young people are brought to smoking by smoking substitutes.

In reference to the amendment that proposes a United States-style “polluter pays” model to fund all these interventions, including the restoration of lost smoking-cessation services, the noble Lord, Lord Young, described practical ways in which this could come about. Certainly, the Minister in the other place did not close the door to this idea in Committee. I hope that we will hear from the Minister some agreement towards this.

Amendment 270 promotes a consultation on raising the age of sale, because we know that the older a person gets, the less likely they are to start smoking. If this is to happen, it requires proper consultation with relevant stakeholders, not least young people themselves, including those who are underage. It must be rigorous in checking what will work. Attitudes to the incidence of smoking have changed over the years, but the direction now is firmly one way, and that is to prevent ill health and premature death. This group of amendments contains proposals to keep us moving in this direction, to assist those who smoke and to prevent those who seek to smoke, particularly those at the younger end of the scale. I hope that this group of amendments will find favour with the Minister.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am grateful to the noble Lord, Lord Faulkner, and other noble Lords for bringing this discussion on tobacco control before the Committee today. In responding to these amendments, I begin by emphasising the Government’s commitment to the smoke-free agenda. Over the past two decades, successive Governments have successfully introduced a strong range of public health interventions and regulatory reforms to help smokers quit and protect future generations from using tobacco. Our reforms have included raising the age of sale of tobacco from 16 to 18, the introduction of a tobacco display ban, standardised packaging for tobacco products and a ban on smoking in cars with children.

The Government are committed to making this country smoke free by 2030, and we will outline our plans in a new tobacco control plan to be published later this year. As part of our Smokefree 2030 programme of work, I am pleased to announce that we have launched an independent review into smoking. The review, led by Javed Khan OBE, will make a set of focused policy and regulatory recommendations to government on the most impactful interventions to reduce the uptake of smoking and support people to stop smoking for good. I am sure he will consider many of the policies raised by noble Lords in today’s debate as part of his review, which is expected to report in late April.

The action I consider vital for the Government is to conduct research and build a robust evidence base before bringing any additional measures forward, such as those outlined in Amendment 276, which would impose a duty on the Secretary of State to make regulations requiring tobacco manufacturers to print health warnings on individual cigarettes and rolling papers. This evidence-base principle also applies before raising a proposal, even through a consultation such as that outlined in the requirement in Amendment 270 to consult on raising the age of sale.

Several amendments that have been put forward by noble Lords are not required, because relevant legislation is already in place. For example, legislation is already in place that prohibits the sale of tobacco and e-cigarettes to under-18s, including proxy sales, as outlined in Amendment 271, and provision to enable this to be extended to all nicotine products. While we support proposals further to protect young people from these products, we do not have the evidence base at present to suggest that free distribution is a widespread problem. We challenged the industry on this, and it claimed that it is targeting only smokers who are over 18 when it gives free samples. Whatever one may say about that, there would undoubtedly be reputational damage to businesses if they did give out samples to minors. I am sure that evidence in this area will be gratefully received by the department.

When looking at further regulation of e-cigarettes, we need to assess which policies provide us with the best opportunities to reach our bold Smokefree 2030 ambition. Once we have fully considered the evidence, the most ambitious policies will be included in a new tobacco control plan. I do not in the least intend to sound complacent, but it is worth noting that in 2018 regular use of e-cigarettes among 11 to 15 year-olds remained very low, at 2%.

The noble Baroness, Lady Finlay, referred to nicotine pouches. There are existing powers in the Children and Families Act 2014 which allow us to extend the age-of-sale restrictions to include any nicotine products, such as nicotine pouches, so the proposed new clause is not strictly needed in relation to sales.

We recognise the need to address disparities in smoking across the country and we are committed to helping people quit smoking and to levelling up outcomes, as referenced in the recent levelling-up White Paper. There is already a lot of good work going on within both the NHS and local authorities in this area, but it is a theme that we will be developing in our tobacco control plan.

Health and Care Bill

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Wednesday 9th February 2022

(2 years, 2 months ago)

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Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, the Green group would like to throw its considerable weight behind the two noble Lords who have just spoken. What we saw last night was disgraceful, and I hope we never see it again.

Earl Howe Portrait Earl Howe (Con)
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My Lords, in the absence of my noble friends the Leader of the House and the Chief Whip, I will respond very briefly to the noble Lords who have spoken by saying that I shall ensure that the comments and questions do reach the Leader, and are treated with appropriate seriousness. We have all heard propositions from both noble Lords on the Front Benches opposite with which there would be wide agreement in the House as to the way we should conduct ourselves. In a spirit of sympathy with many of the comments made, I hope noble Lords will agree that it is appropriate that we discuss this in the usual channels.

Amendment 284

Moved by
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Baroness Wheeler Portrait Baroness Wheeler (Lab)
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My Lords, I thank the noble Baroness, Lady Finlay, for this amendment and other noble Lords who have contributed to this highly emotional and compelling debate about the welfare, care and medical treatment of critically ill children. I also thank Emma Hardy MP for ensuring that this key issue was debated in the course of the Bill’s passage through the Commons and the work that she, other MPs and noble Lords have undertaken with parents and medical staff to help build and develop the framework that is set out in the amendment where care and treatment are disputed: Charlie’s law, in memory of Charlie Gard.

The amendment seeks to mitigate conflicts at the earliest stages, provide advice and support, and improve early access to independent mediation services to prevent the traumatic and bitter legal disputes that we have all seen all too often. Noble Lords have highlighted these, as well as the benefits that the step-by-step processes set out in the amendment would provide for parents and doctors, which are of course central to the consideration of the child’s welfare and best interests. In particular, providing families with access to legal aid if court action takes place would, as the noble Baroness, Lady Finlay, pointed out, ensure that they do not have to rely on raising funds themselves, or on the financial support of outside interests.

Today’s debate has been powerful but has also demonstrated the difficulties with trying to address and resolve such deeply complex issues within the context of an already overloaded and skeletal Bill. Like other noble Lords, I have received the excellent briefing from the Together for Short Lives charity, which does such remarkable work on children’s palliative care to support and empower families caring for terminally ill children. While supportive of much of the amendment, the charity has what it terms “significant reservations” about proposed new subsection (4) on the issue of amending the court’s powers in relation to parents pursuing proposals for disease-modifying treatment for their child after the final court decision.

So, while there is obviously considerable support for the measures set out in the amendment, as we have heard today, the reservations about this and other provisions in the amendment, from Together for Brief Lives and other organisations, emphasise the need for the continued dialogue and discussion that we are not able to have today but which noble Lords have made clear is needed. This has been an excellent debate and I hope the Minister will be able to find supportive ways of taking this vital issue forward.

Earl Howe Portrait Earl Howe (Con)
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My Lords, the noble Baroness, Lady Finlay, has brought a vital and sensitive debate before the Committee, for which I for one am very grateful. At the heart of each of these difficult cases is, as she said, the well-being of a child, and that principle has to remain uppermost in everyone’s mind. While the views of parents and guardians are routinely considered in everyday care, occasionally difficult disputes will arise. When they do, we should carefully consider how best to protect the interests of the child. I will start by saying that I fully agree with the noble Baroness that any failure to listen to the concerns of parents or a guardian would be bad practice.

However, I have a concern about the practical impact of this amendment. In cases of the care of children with life-limiting illnesses, the amendment would place the views of parents and guardians above those of clinicians and—let us be clear—the courts, which have a statutory obligation to act in the best interests of the child. Establishing a default presumption in favour of the parents’ views would fundamentally change the current balance. It would move away from the impartial assessment of the individual child’s best interests being paramount based on all the evidence in each specific case.

I understand the view that parents know what is best for their child and their wishes should be paramount. Sadly, though, I am afraid that I cannot fully agree with the proposition advanced in the amendment. It is sometimes the case that desperate parents in these tremendously difficult circumstances are subject to the flattering voice of hope and, as a result, are not acting in a way that is necessarily in the best interests of their child.

To protect the child, it is right that when every effort at resolution has been unsuccessful there is recourse to a judicial process that can impartially assess all the evidence as to what treatment is best for the child. I also fear that it would be difficult for a clinician to determine, in the wording of the amendment, “anyone else” who has an interest in a child’s care. In considering the provisions of the amendment, I note that a child’s medical data can already be provided to parents following a subject access request, so we do not feel that legislation here is necessary. I absolutely agree that specialist palliative care teams should be part of the multidisciplinary team for any child or adult with a complex life-limiting illness; their involvement is an integral part of good practice, and I would expect referrals in such situations. However, I do not agree that it is necessary to put that into law.

Let me say something about mediation. I listened with care to my noble friend Lord Balfe. We know that mediation can and often does play a vital role in facilitating better communications and creating a space where voices on both sides of a dispute can be heard in a non-adversarial way. Unfortunately, that does not provide a solution in every dispute. The Government are supportive of the many excellent mediation schemes already available, including through charities and the private sector. We agree that parents and clinicians should be able to access such schemes where they wish to do so. However, we are not convinced that legislation is the answer to these thankfully rare but nevertheless tragic cases.

The current lack of statutory prescription means that mediation can be tailored specifically to meet the individual needs of families and their children, clinicians and hospitals, reflecting the unique circumstances of each case. There is currently a wide range of work and research into avoiding such protracted disputes and improving the approach to managing conflicts, with the aim of promoting good, collaborative relationships between parents and healthcare professionals to seek resolution without lengthy and costly legal battles. Furthermore, on those rare occasions where disputes are heard before a court, the amendment seeks to extend legal aid. Legal aid is already available for best interests cases, albeit subject to a means and merits test.

I understand the strong views on the amendment across the Committee. I understand that these issues are ethically charged and I take them seriously. However, I also believe that the current approach properly balances the views of parents and guardians with those of clinicians and, above all, with the paramount importance of the best interests of the child in question. The sensitivities around this subject are acute but I hope that what I have said has clarified why I do not feel able to accept what I know is a well-intentioned amendment.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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My Lords, I cannot hide my deep disappointment at the response from the Government, because I think this situation will only get worse unless we recognise the difficulty of decision-making when you are faced with a child whose prognosis is poor, who has a very rare condition, where nobody has a test to predict what will happen, and where the parents feel that they are not being listened to.

Currently in the NHS we have clinical teams that change rapidly. The one person—often—who has continuity and has seen the child day after day is the mother; sometimes it is the father who is with the child all the time. But you get different clinical teams, and you may have a gap of five days between one doctor visiting and coming back, and they may say: “Oh my goodness, what a change.” But when you have a handover, you do not get a complete picture.

Health and Care Bill

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Tuesday 1st March 2022

(2 years, 1 month ago)

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Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 114-II Second marshalled list for Report - (1 Mar 2022)
Moved by
3: After Clause 4, insert the following new Clause—
“Duties as to reducing inequalities
In section 13G of the National Health Service Act 2006 (NHS England’s duties in relation to the reduction of inequalities)—(a) in paragraph (a), for “patients” substitute “persons”;(b) in paragraph (b), after “services” insert “(including the outcomes described in section 13E(3))”.” Member’s explanatory statement
The amendment extends NHS England’s duty in relation to the reduction of inequalities in access to health services to cover people before they are patients. It also makes it explicit that the duty to have regard to the need to reduce inequalities in outcomes for patients covers outcomes such as the quality of experience undergone by patients.
Earl Howe Portrait Earl Howe (Con)
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My Lords, in moving Amendment 3 I will speak also to the other government amendments in this group, in the name of my noble friend Lord Kamall. Of the many critical topics we discussed in Committee, our debate on health inequalities stands out as one that prompted unanimous and emphatic agreement from all Benches on the need for us to recognise in the Bill the centrality of the inequalities issue. My noble friend Lord Kamall and I took it as our mission to respond to the compelling points raised by noble Lords by bringing forward government amendments on Report, which I now do. These are issues and points of principle about which the Government—not least my noble friend the Minister—feel very strongly.

As the House will know, we think it important to empower local health and care leaders to pursue new and innovative ways to tackle disparities in the most appropriate way for their area. However, we should not miss the opportunity to ensure that this Bill reinforces those intentions in other ways. The amendments are designed to ensure that the Bill fully reflects the strength of the Government’s ambition to address disparities by levelling up every area of the country.

First, we will put beyond doubt that tackling disparities should be an integral factor when making decisions across the NHS. This was something that NHS England’s four purposes for ICSs made clear. The triple aim duty was always intended to support achieving those purposes, and these amendments strengthen the duty on NHS England, NHS trusts and ICBs so that, when decisions are made by NHS bodies, consideration will always be given to the effect of those decisions on disparities. What does that mean? It means that NHS bodies should consider the wider effects of their decisions on the inequalities that exist between the people of England with respect to their health and well-being and the quality of the services that they receive.

We are also going further by strengthening the more specific duties that complement the triple aim. Disparities are not limited just to health outcomes or access; they relate also to the experience of the care that is received. For example, the independent Commission on Race and Ethnic Disparities reported that Asian patients are more likely to report being less satisfied with GP services than their white, black African and black Caribbean counterparts. These amendments seek to strengthen existing duties as to reducing health inequalities on NHS England and ICBs by explicitly including patients’ experience of care, the safety of services and the effectiveness of services to create a more holistic duty that addresses how disparities manifest themselves in health and care.

When it comes to inequalities in access to health services, we can go further. The duties currently focus only on people who are already using or accessing health services. This fails to address those who do not or cannot access health services—and, as we powerfully heard in Committee, these include many socially excluded and marginalised persons, who are more likely to have preventable health conditions. The point is fully taken, and we have therefore tabled an amendment to ensure that the duties placed on NHS England and integrated care boards as regards reducing health inequalities require the consideration of inequalities in access for “persons”, rather than simply “patients”. The intention here is to improve outreach, as well as access by socially excluded and marginalised groups.

Lastly, we recognise the crucial importance of information on which to base targeted action. The Covid vaccination campaign was unprecedented in the way that it focused activity on every community across the nation, especially where there were disparities in the uptake of the vaccine. Fundamental to that success was the ability to collect and analyse data from across the system so as to target resources in the most effective way.

Our amendment will require NHS England to publish a statement describing certain NHS bodies’ powers to collect, analyse and publish information relating to disparities in health, together with NHS England’s view on how these powers should be exercised. Those bodies will be required annually to review and publish the extent of their compliance with that view. We hope and believe that this will power the evidence-based drive to reduce disparities in health across the country.

I hope that, together, these amendments provide the reassurances that noble Lords sought from their various amendments tabled in Committee. In conjunction, these changes will strengthen the ability and the resolve of the health and care system to take meaningful and impactful action. I commend them to the House and beg to move.

Lord Kakkar Portrait Lord Kakkar (CB)
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My Lords, in thanking the Minister for having introduced so thoughtfully and elegantly this important suite of government amendments that address the question of inequalities, I would like to pass to the Minister and the Front-Bench team the thanks of my noble friend Lord Patel, who regrettably is unwell, recovering from Covid-19, but who of course spoke with great insight and passion in Committee on this matter, and indeed has engaged actively with the Front-Bench team subsequently in ongoing discussions.

The noble Earl has done something quite remarkable and absolutely essential. There is no need to rehearse the very strong arguments that were made in Committee around the necessity at this particular time to ensure that every element of the National Health Service is able not only to focus its resource and thought quite clearly at the elements of the triple aim but to ensure that, in a tension with those important pan-NHS objectives, the system is never allowed to forget the importance of addressing the inequalities and disparities that regrettably continue to be an abject failure of the delivery of the healthcare system.

Her Majesty’s Government, in proposing these amendments, deal not only with questions of access and outcomes but ensure that data is appropriately collected and all NHS organisations are obliged to pay attention to those data and to act accordingly; that is a very powerful statement and a powerful act of leadership. But beyond that, in ensuring that the patient’s voice and the public’s voice is heard in these matters, this will set a new tone and new direction for the delivery of healthcare in our country, and Her Majesty’s Government are to be strongly congratulated.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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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 Portrait Earl Howe (Con)
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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.

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 2 & Report stage
Tuesday 1st March 2022

(2 years, 1 month ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 114-II Second marshalled list for Report - (1 Mar 2022)
Moved by
16: Clause 16, page 13, line 42, at end insert—
“(ga) such other services or facilities for palliative care as the board considers are appropriate as part of the health service,” Member’s explanatory statement
This amendment would specifically require integrated care boards to commission such services or facilities for palliative care (including specialist palliative care) as they consider appropriate for meeting the reasonable requirements of the people for whom they have responsibility.
Earl Howe Portrait Earl Howe (Con)
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My Lords, on behalf of my noble friend Lord Kamall, I beg to move Amendment 16 in his name.

The passionate and emotive speeches made on palliative care in Committee left a deep impression on me, as I am sure they did on all noble Lords. Since that debate, the Government have carefully considered the compelling points made by noble Lords from across the House, which we seek to address through this amendment. In moving it, it is right for me to pay particular tribute to the work of the noble Baroness, Lady Finlay, who has done so much to drive this issue forwards.

We recognise that there are variations in access to palliative care services across England. Although we are clear that clinical commissioning groups have always been required to commission appropriate palliative and end-of-life care services as part of the comprehensive health service, we recognise the value of making that clear in the Bill in relation to integrated care boards. We know how important it is that people receive high-quality, personalised palliative care that is built around their individual needs and takes account of what matters to them and those important to them.

These services often include the support of a range of health professionals. For those with more complex needs, this will include access to multi-professional specialist palliative care. These teams provide the essential education and training in the field, supporting research and rapidly disseminating what works. Advice and support need to be available at all hours, wherever patients are, working in an integrated way with other services to ensure that patients can access the support they need early to avoid unnecessary distress.

To make this clear, Amendment 16 would add palliative care services to the list of services that an integrated care board must commission. The amendment clarifies that the commissioning of palliative care is integral to the duty of integrated care boards to commission their part of the comprehensive health service. I am especially grateful for the helpful and constructive way in which the noble Baroness, Lady Finlay, has worked with Ministers and officials to develop this amendment. Without wishing to anticipate her remarks in relation to her Amendment 17, may I just say that, in our view, the kind of detailed provision contained in it would be better covered in statutory guidance, where it can be more fully explained and described? I beg to move.

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Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, from these Benches I am very glad to continue our support for palliative care being part of a comprehensive health service—literally from the cradle to the grave—no matter who you are, your age or where you live. I join other noble Lords in paying tribute and giving appreciation to the noble Baroness, Lady Finlay, for her assistance and professionalism over many years. I hope that the real tribute to the efforts of the noble Baroness will be in the delivery of real change to the quality of people’s lives—and their deaths. I add my appreciation to all the charities and hospices that have also been a force for good in seeking this change.

I welcome the government amendment in this area and, in so doing, I simply say to the Minister that I hope the Government have heard the number of questions asked today. Clearly, there is concern about the words “appropriate” and “reasonable”, and I will add a few questions to those already put to explore that further. I am sure the Minister understands that noble Lords are simply trying to ensure that what is intended will actually be delivered.

Can the Minister confirm how the Government’s expectations will be conveyed to ICBs, and how they will understand what is expected of them in terms of the nature of palliative care services that they would be required to commission? It would also be helpful if he could commit to providing a definition of “specialist palliative care” services, referring to the amendment tabled by the noble Baroness, Lady Finlay, so that we can see a consistent standard in provision of services across the country. My final question is: can the Minister confirm that it is the Government’s intention to communicate to all ICBs that they should fulfil the true requirements of this amendment, and can he tell your Lordships’ House how this will be monitored?

The right reverend Prelate the Bishop of London and other noble Lords have made it clear that we would like the matter settled by the amendment, but it is not entirely. I hope that the Government will not lose the opportunity to really make the transformation so that we can all expect, and have, a good death, as we would want to have a good life.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am very grateful to all noble Lords who have spoken in this important short debate, but, in particular, I express my thanks to the noble Baroness, Lady Finlay, for the illumination that she shed on the reality of well-functioning palliative care services from her personal perspective.

Without repeating what I said earlier, the Government recognise and understand the strength of feeling on the issue of variation among access to palliative care services. I understand the line of questioning posed by a number of noble Lords on the strength of the imperative implicit in the government amendment. The noble Baronesses, Lady Brinton, Lady Meacher and Lady Walmsley, and the noble Lord, Lord Hunt, all had questions on that theme.

The first thing for me to say is that I agree with the noble Baroness, Lady Finlay: this is a game-changing amendment because it would specifically require—that is the word—integrated care boards to commission such services or facilities for palliative care, including specialist palliative care, as they consider appropriate for meeting the reasonable requirements of the people for whom they have responsibility.

Questions have been asked about the word “appropriate”. I do not think any other word could be fitted into this context; you have to talk about what is appropriate when the extent of need and the requirements of the local population inevitably vary according to the locality. It is for the board to judge what is appropriate to meet that need in the local area and what is appropriate to the nature of the palliative care provision that may exist in an area: for example, whether it is a hospital, a hospice, social care hospices or hospices at home—all the panoply of palliative care provision that noble Lords will be familiar with. My noble and learned friend Lord Mackay of Clashfern made a very helpful intervention on that issue, for which I thank him.

We therefore expect palliative care to be commissioned by every ICB. It will be for them to allocate resources to meet the needs of their population that they identify but, on funding more broadly, the House will know that there is a multifaceted funding pattern in the palliative care field. Palliative and end-of-life care services are delivered by services and staff across the NHS, social care, the voluntary and community sector and independent hospices.

We recognise the vital role that hospices and other voluntary organisations play in the delivery and funding of palliative and end-of-life care and continue to engage proactively with our stakeholders on an ongoing basis to understand the issues they face. Those are not bald words; as part of the NHS Covid response, over £400 million has been made available to hospices since the start of the pandemic to secure and increase additional NHS capacity and enable hospital discharge.

The noble Baroness, Lady Brinton, asked me about statutory guidance. A range of guidance is already available to commissioners about the provision of palliative and end-of-life care, including detailed, evidence-based guidance from the National Institute for Health and Care Excellence. We will continue to keep the guidance under review. NHS England and NHS Improvement have also made funding available to seven palliative and end-of-life care strategic clinical networks, which will support commissioners in the delivery of outstanding clinical care, with sustainability of commissioning as a guiding principle.

The noble Lord, Lord Howarth, and my noble friend Lady Fraser touched on transparency and reporting. I point to our later amendments requiring ICBs to set out how they intend to commission services and report on that in their annual reports. That will of course include palliative care. I can also give an assurance that we are not only looking at the guidance currently but will continue to keep the range of guidance available to commissioners under review.

In answer to the noble Baroness, Lady Merron, on the Government’s expectations in this area, I can say only that our expectations as of now are set out in this amendment and in the guidance we will issue, and the assurance that we will engage with in our dealings with NHS England.

I hope I have been able to reassure the House that the Government are absolutely committed to ensuring that people receive high-quality palliative care if and when they need it. I invite the House to support Amendment 16.

Amendment 16 agreed.

Health and Care Bill

Earl Howe Excerpts
Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022

(2 years, 1 month ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 114-III Third marshalled list for Report - (3 Mar 2022)
Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, this group contains a number of helpful amendments. I welcome the amendments that the Government have tabled in response to the many and varied discussions we have had. I am grateful for this positive and constructive approach, which proposes transparency at the heart of procurement.

We have discussed with the Government at some length why the NHS has to have its own bespoke procurement regime, which the Bill paves the way for. We have seen two consultation documents about the scope, scale and nature of this bespoke regime. Although they seem quite sensible, we have been assured that the Government feel that the regulations will be based on a sound foundation.

The noble Lord, Lord Warner, is quite right about patients not knowing their right to choose. It is a hole in the provision. The right to choose is very important. People absolutely do not know that they have it.

While not being explicit, the new providers’ selection regime will actually get us to where Labour tried to get in 2010 with the NHS as the preferred provider, at least as far as the many complex and expensive services provided by NHS trusts, FTs and other core patient-facing services are concerned. Therefore, the principle is fine. The problem is that it does not extend across everything that the NHS procures, and that is partly the nub of what my noble friend said in his amendments, which I will return to in a moment.

Our view is that in any circumstances where competitive procurement is to be used, the national rules apply, so why does the NHS need a bespoke system for all non-clinical stuff? We have never actually had an answer to that, except that the NHS comes up with wider regulations, and we feel that that it is a waste of time and effort. However, we have had ample assurances from the Government that the NHS bespoke regime will be properly documented and all the rules set out, with some route to enforcement and challenge. We are assured that there will be no award of contract without applying the process that is set out—no back doors and no flexibility when contracting with private companies. With those assurances in mind and the knowledge that campaigners and trade unions will be vigilant and might even stump up for judicial review, and because of the ICB amendments agreed earlier in the week, we will get more or less what we wanted and we will not try to remove Clause 70 from the Bill.

I turn to the remarks of my noble friend Lord Hendy, who has our sympathy and approval. Had we been discussing this at a different time of day, we may have sought to support some of his amendments, and certainly the spirit of them. He has posed a legitimate question to the Minister: why do the Government not insist on good employment of staff as a criterion for their procurement regime?

We on this side of the House remain opposed to the outsourcing of NHS-funded services such as cleaning, catering and many others because we can see that it has led to staff being transferred into the private sector, corners being cut and standards dropping. It has been a symptom of chronic underfunding and it is a terrible long-term strategy. It has of course been completely counterproductive because it has sometimes meant that our hospitals have not necessarily been cleaned, serviced or looked after as we might have wished them to be. We have tried at various stages to introduce safeguards and to outlaw altogether the NHS’s tax-dodging habit of setting up SubCos, but those are probably matters for another day.

I would say to my noble friend that I am not sure that changing the procurement regime is the best way forward for this issue, although he has our support in the politics and context in which he introduced his amendments.

Earl Howe Portrait Earl Howe (Con)
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My Lords, before addressing the amendments in the name of my noble friend Lord Lansley and the noble Lords, Lord Hendy and Lord Warner, it may be helpful if I speak to the six government amendments in this group: Amendments 101 to 104, 106 and 107. The first five of these amendments would amend Clause 70, which inserts a new regulation-making power in relation to the procurement of healthcare services, Section 12ZB, into the NHS Act 2006. They amend the clause so that regulations, when they are made under this power, will have to include provision for procurement processes and objectives, for steps to be taken when competitively tendering and for transparency, fairness, verifying compliance and the management of conflicts of interest. Amendment 106 also requires NHS England to issue guidance on the regulations.

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Moved by
101: Clause 70, page 63, line 35, leave out “procurement by relevant authorities” and insert “processes to be followed and objectives to be pursued by relevant authorities in the procurement”
Member’s explanatory statement
This amendment changes the principal regulation-making power in relation to procurement so that regulations under the power will have to include provision for procurement processes and objectives.
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Moved by
106: Clause 70, page 64, leave out lines 7 and 8 and insert—
“(4) NHS England must publish such guidance as it considers appropriate about compliance with the regulations.” Member’s explanatory statement
This amendment requires NHS England to publish guidance about compliance with any procurement regulations that are made.
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Moved by
107: Clause 71, page 64, line 31, at end insert—
“(b) in section 272 (orders, regulations, rules and directions), in subsection (6), after paragraph (zzd), insert—“(zze) regulations under section 12ZB,”.”Member’s explanatory statement
This amendment means that regulations made under new section 12ZB of the National Health Service Act 2006 (as inserted by Clause 70 of the Bill) will be subject to the affirmative procedure rather than the negative procedure.
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Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, it is impossible to turn away from the connection between procurement of products and services and the message and support that such procurement may give to those who seek to exploit, oppress, damage and murder.

I thank the noble Lord, Lord Alton, for introducing this amendment, in the name of the noble Lord, Lord Blencathra, who we wish well. Genocide and the abuse of human rights do not respect the imposed boundaries of government departments, and that is why it is appropriate that these amendments, which have extensive support both inside and outside your Lordships’ House, have been tabled today. Amendment 108 has cross-party support and if the will of the House is tested, we on these Benches will support it.

The NHS is the biggest single procurer of medical products in the world. It has a huge amount of leverage to be a force for good or otherwise when it comes to ethical procurement. It can starve abusive regions of resources. It can also remove a veneer of acceptability from those regions.

If we are serious about being global Britain and a force for good in the world, we need to act as such. It is surely wrong that, for example, we are using bandages which have been produced by forced labour. We must hold the Government to their commitment to provide guidance and support to UK government bodies to use public procurement rules to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. As expressed by my noble friend Lady Kennedy, this is about giving the Minister the opportunity to act. It is about focusing minds. I hope that the amendment will find favour with the noble Earl.

In Committee, my noble friend Lord Collins spoke of the need not to be tied down by a very strict legal definition of genocide. He also emphasised that we must focus on broader human rights issues. As the noble Lord, Lord Alton, said, we need to take a comprehensive, joined-up approach. Amendment 108 gives us this opportunity.

I thank my noble friend Lord Hunt for continuing to press home the need for action, as outlined in Amendments 162 and 173. We heard explicitly and movingly about the realities of how this affects people’s bodies, alive and dead, and the distaste and abuse related to it. It is surely right that UK citizens are safeguarded against complicity in forced organ harvesting as the result of genocide. Countries such as Spain, Italy, Belgium, Norway and Israel, among several others, have already taken action to prevent organ tourism in respect of China. We have the opportunity to do so today.

I hope that the noble Earl will feel able to accept these amendments. I am grateful to the noble Lord and his officials for the opportunity to discuss these matters. I hope only that your Lordships’ House can assist in improving this aspect of the Bill by taking action, as we should, about genocide and the abuse of human rights.

Earl Howe Portrait Earl Howe (Con)
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My Lords, the amendments in this group bring us to three discrete topics which are nevertheless linked by a common thread—that of human rights. Because they engage us in issues of great sensitivity, I begin by saying something that may sound unusual. There is probably no one in this Chamber who is not instinctively drawn towards these amendments. All three are honourably motivated. In pointing out any shortcomings, I would not want noble Lords to think that the Government did not understand or sympathise with why they have been tabled.

I will start with the issue of organ tourism. Like the noble Lord, Lord Hunt, I find it abhorrent that individuals exist who are in the business—often the lucrative business—of sourcing human organs from provenances that are both illegal and supremely unethical. They then entice desperate and seriously ill people to go to a foreign country to have such organs transplanted within them. This idea is unconscionable. As far as we can, we should have no truck with it. The Human Tissue Act already prohibits the giving of

“a reward for the supply of, or for an offer to supply any controlled material”

in any circumstance where a substantial part of the illicit transaction takes place in England, Wales or Northern Ireland.

The Modern Slavery Act makes it an offence to arrange or facilitate another person’s travel, including travel outside the UK, for the purposes of their exploitation, which includes the supply of organs for reward in any part of the world. The law as it stands addresses a substantial element of potential criminality. How widespread is this criminality? What do we know about the scale of organ tourism as it relates to UK residents? I have obtained some figures from the department. In 2019-20, the last reporting year before international travel was curtailed by the pandemic, a total of 4,820 organ transplants took place in this country. At the same time, NHS Blood and Transplant data shows that only seven UK residents received a transplant abroad, many if not all legitimately, and had follow-up treatment in the UK.

Therefore I am thankful to say that the scale of the problem of illicit organ tourism, as it relates to UK residents, is small. If the noble Lord, Lord Hunt, were to say to me that one such case is one too many, I would agree, but the House should not support this amendment, because it is not right to support an amendment that could cause vulnerable transplant patients who receive a legitimate transplant overseas to face imprisonment because they may not have the right documentation. That is what the amendment could lead to. Checking such documentation and creating individually identifiable records for every UK patient who has received a transplant overseas would put healthcare professionals in an invidious and inappropriate position by blurring the line between medic and criminal investigator.

More to the point, it could also prevent those who legitimately receive an organ transplant abroad—particularly those from minority-ethnic backgrounds—from seeking follow-up treatment, for fear of being treated as a criminal suspect. Following that thought through, I say that the effect that this amendment could have in exacerbating health inequalities is likely to be far greater than its effect in deterring transplant tourism, especially, as I have emphasised, because there are already legal provisions in place covering most cases of organ tourism.

I listened with care to the noble Baroness, Lady Finlay, particularly regarding her examples of the exhibition that she went to. I join her in being somewhat incredulous that there could be consent to some of the exhibits that she witnessed. However, where consent has been obtained, it must be unequivocal. As I emphasised, the law as it stands now prohibits the exhibition of bodies or body parts where express consent cannot be fully demonstrated. I undertake to speak to the Human Tissue Authority, to see that, should there be another exhibition of this kind proposed, there is full transparency in the form of labels under each exhibit making clear how consent was obtained and what it consisted of.

Targeting those who receive an organ, rather than the traffickers and their customers who initiate or negotiate the arrangements, risks imprisoning vulnerable patients who may have been misled as to the provenance of their organ. That would be disproportionate. The Government’s view remains that the best approach is to continue targeting traffickers and their customers, while doing all that we can to help UK residents who are in need of an organ by focusing our efforts on improving the rates and outcomes of legitimate donations.

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Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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Before the noble Earl sits down, may I apologise to the House? I should have declared that I am the UK chair of Commonwealth Tribute to Life, which aims to establish a memorandum of understanding across the Commonwealth over ethical transplantation.

The Minister, in his reply, spoke of seven patients who are known to have travelled abroad for organs. Most of those were legally arranged, so the numbers are very small; yet the clinical services in the UK are not aware that it is illegal to arrange to purchase an organ abroad if most of that transaction happens in the UK, or to procure the travel to go. I wonder whether the Minister would be able to undertake to work with us in NHSBT to ensure that all the clinicians working in the field are aware of this and can brief patients appropriately at the time they sign up to be on the transplant list, so that they understand that, although they are eligible for a transplant, they should not be seeking transplants in other countries, even when tempted to do so. It can look quite alluring, and I am concerned that, within the profession itself, there might be some misunderstanding. I realise this is a difficult question and the Minister might prefer not to answer it now; it might be something we could discuss later.

Earl Howe Portrait Earl Howe (Con)
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My Lords, that is a perfectly valid question from the noble Baroness, and I would be happy to take that back to those in the Department of Health and Social Care who have direct responsibility in this area.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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My Lords, I know that this is a complex and long Bill, and that the House will want to move quite quickly to the next business. I will end by simply thanking every noble Lord who has participated in today’s debate, especially the noble Baronesses, Lady Walmsley and Lady Merron, from the opposition Front Benches, and the noble Lords on the Government Benches who have supported the noble Lord, Lord Blencathra, and the noble Baroness, Lady Hodgson, at every stage of the progress of this amendment.

I know that when the noble Earl, Lord Howe, said that he was instinctively drawn to these amendments, and that he found many of these practices abhorrent, he was speaking as he feels. I am grateful to him, not only for the meeting that we had yesterday with the noble Lord, Lord Kamall, but for his promise to look at this further. Among those to whom I would like to introduce him is a Uighur surgeon I have met, who has given evidence here in the House about being forced to remove organs and to kill the patient in the course of that. This is the ethical issue here. If people profit from that in any way whatever, even if inadvertently, we must not be complicit.

A year ago, we were promised that there would be an urgent review of exports to Xinjiang and fines for businesses which failed to comply with the Modern Slavery Act, when parliamentary time allowed. Those things have not happened. The urgent review has just been completed, but it ended up dealing only with military exports and there have been no fines applied one year later. It is never the right Bill or the right time. The noble Lord, Lord Forsyth, and I were told this on the telecommunications Bill, we were told it again on the then Trade Bill. We are told it on every Bill. That is why it is inevitable that we come back with amendments like this until the comprehensive plan, to which the noble Earl referred, actually happens.

The House really needs to send this amendment further. We have had between Committee and now for the Government to help us redraw it, if there are any defects or flaws. I am unaware of what they may be; they have never been pointed out to us. The noble Earl also knows that the Government could say to us, “Bring this back at Third Reading and we will help to draw up such an amendment.” However, I am told that this is not possible either. Therefore, the only way for us to ensure that this amendment can proceed and be perfected is to send it to another place. I am glad to be able to tell the House that a former leader of the Conservative Party, Sir Iain Duncan Smith, has agreed that he will personally promote this amendment if it is passed in your Lordships’ House today and take it further there. He says that he is with us 100%. I would like to seek the opinion of the House.

Health and Care Bill

Earl Howe Excerpts
Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, I am grateful to the noble and learned Lord, Lord Etherton, for so forensically and carefully introducing this group of amendments. The debate on the subject today, as on previous occasions, has been both rich and constructive. I hope it will lead to improving this clause; as we have heard, there are multiple issues in respect of its drafting. The main issue and debate today focused on coroners having access to protected information which has been shared in confidence under safe space conditions. Therefore, I will make my brief remarks in respect of Amendment 124, tabled in the name of my noble friend Lord Hunt and supported by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Patel. We are all pleased to see the noble Lord, Lord Patel, back in his place.

It cannot be right, on the one hand, for someone to be compelled to give information and to do so on the understanding that they act within a safe space and would be committing an offence if they did not give information, yet, on the other hand, to enable that very information to be made publicly available. It is not the purpose or duty of HSSIB to act as a branch of the coroner. The coroner has multiple other avenues of access to information and powers of investigation. It does not need the access to this protected material simply because of the convenience of the existence of HSSIB. Therefore, I hope the Minister will understand this point and take it on board. If not, and if noble Lords are so minded to test the opinion of your Lordships’ House, these Benches will support the relevant amendment.

Earl Howe Portrait Earl Howe (Con)
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My Lords, every day, the vast majority of NHS patients receive safe, effective and world-class care. Sometimes, though—and very sadly—errors occur which lead to harm. This is what the HSSIB will help us to address. The HSSIB will be an independent arms-length patient safety investigation body, with a statutory safe space and powers to discharge its investigative functions effectively across the NHS and the independent sector. This body will be one of the first of its kind in the world. Its independence will give the public full confidence that it will arrive at impartial conclusions and recommendations. The aim will be to drive improvements by learning and not blaming.

The provisions in the Bill were developed after considerable thought and scrutiny. We have had extensive stakeholder engagement, including an expert advisory group. The clauses, broadly in their current form, were scrutinised by a specific Joint Committee comprising Members of both the House of Commons and the House of Lords in December 2018. We accepted many of the Joint Committee’s recommendations—for example, to include independently funded healthcare within scope and to exclude local maternity investigations. The HSSIB had widespread support across both this House—when it was introduced in a previous Session and again during earlier debates—and the other place. I know that many noble Lords here today, having heard some of them, are enthusiastic about the prospect of a fully independent investigation body. I very firmly believe that we need to continue with the same enthusiasm and see this new body through to fruition. We should not delay this important work by rejecting this part of the Bill.

I honestly think that removing Part 4 would be a backward step. It would be greeted with dismay by those patient safety campaigners who have argued so eloquently for the creation of this body. The current investigation branch does not have the necessary independence or the range of powers to truly drive change as a world-class investigation body. This is what we are trying to address by creating a new body with all the tools it needs to thrive. By the way, those noble Lords who think that removing Part 4 and keeping things as they are will prevent access to information by coroners are wrong: coroners currently have such access, but without our proposed restrictions. Key to the HSSIB’s function is the creation of a statutory safe space, whereby non-compliance with those safe space protections can result in criminal sanctions.

I turn to the issue of access to safe space, which I recognise has caused concerns. We firmly believe that the only way to bring about a cultural shift in the NHS, so that people feel confident to share information and concerns are addressed promptly, is that there be a robust safe space. The current investigation branch does not have a statutory safe space. The Bill would create one, with tight restrictions. There are very limited circumstances when protected material can be disclosed—for example, if the HSSIB discovered information which demonstrated there was a serious and continuing risk to the safety of a patient or to the public—but this disclosure would occur only to the extent necessary to address those risks.

I know that direct access to protected material for senior coroners, as raised in Amendments 124 and 125, is an area of concern, but coroners have a unique role. A coroner’s investigation is an independent judicial process that aims to provide bereaved families with the truth regarding the death of their loved one—who has died, where, when and how—and enable society to learn from any mistakes that may have caused or contributed to a death. When a death occurs, and when that death requires coronial investigation for the sake of families and of the public, that work should not be hampered. It is an important principle that we should trust our judiciary. I am confident that coroners will take seriously their responsibilities to safeguard any safe space material that they may see. They are used to doing this; they already routinely handle sensitive, confidential material.

It is most unlikely that senior coroners will need to access safe space information on a frequent basis. Of the 57 national investigations conducted by the current investigation branch, 10 were investigated by the local coroner. However, only one gave rise to a request from a coroner for material held by the current investigation branch. Having said that, even though we expect requests for protected material will be rare, the principle of coroners having access when they need it is an important one.

Baroness Walmsley Portrait Baroness Walmsley (LD)
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In the case the noble Earl has just mentioned, could not the coroner have obtained the information by another means?

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am afraid I do not know the answer to that. I can, of course, find out and let the noble Baroness know, if those details are available.

I know there have been concerns that inquests can seem to be adversarial, and that protected material passed on to the coroner could be used in them. Inquests are, by definition, designed to be inquisitorial; statute prohibits inquests from determining criminal and civil liability, and interested persons are prevented by the inquest rules from making submissions on the facts. Coroners seek to obtain the objective truth—how and not why someone has died. I submit that not allowing coroners to see relevant safe space material could prevent justice being done and seriously undermine public confidence in the coronial system.

I turn to the important issue of funding, raised by Amendment 123, although I do not know that noble Lords have spoken to that. The noble Lord is shaking his head so, to save time, I will not cover that point.

Finally, let me just say that an independent HSSIB is an excellent concept that has wide support. In my submission, it would be a terrible pity if noble Lords rejected it because of doubts about how well it would work. I believe that it will give patient safety a valuable boost and hope that the House will support it.

Lord Etherton Portrait Lord Etherton (CB)
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I am extremely grateful to the Members of the House who have spoken, and to the Minister for his reply.

The Minister appears to accept that, if it is necessary to ask HSSIB for its material to reach a proper verdict or conclusion on the cause of death at an inquest, the material ought to be supplied and be made known to the families so that they have the benefit of what I described as the legal test: a full, fair and fearless investigation of the facts, in public. That is the problem.

Although the Minister referred to the extensive past consideration of safe spaces, I have not yet heard from any Minister, not even in the long letter we were helpfully sent on 3 March by the noble Lord, Lord Kamall, an explanation of how the safe space would operate in a coronial setting—in practice, that is, not in theory. As I said, I have not heard any explanation of how the information obtained by the coroner, which can be obtained only if it is relevant to the inquest, can be kept secret from the participants in the inquest. It cannot be; it is simply not possible. That is the fundamental problem with this particular provision relating to disclosure to coroners.

Having said all that, I heard what the noble Lord, Lord Hunt, had to say. In view of what he and others said, I beg leave to withdraw my amendment.

Health and Care Bill Debate

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Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, I am grateful to the noble Baroness, Lady Bennett, for returning us to this issue because I have reflected on the noble Earl’s remarks when we discussed this in Committee. He made an impressive contribution in that it listed many of the safeguards that the Government say are in place to deal with what are clearly very unsatisfactory situations in the care sector, which affect the most vulnerable in our communities.

My question to the noble Earl is: does he really believe that the Government are dealing effectively with the problems that face this sector, which is dysfunctional—I thank the noble Baroness for reminding me that I said that—and places insecurity in the hearts of some of the most vulnerable and eldest members of our communities? If all the things that he listed the previous time we discussed this were working, why would we return to this and say that those safeguards are clearly not working? Asset stripping is clearly still taking place. There are huge dangers to this sector and the noble Baroness has brought this back to the House because of them.

Earl Howe Portrait Earl Howe (Con)
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My Lords, the noble Baroness, Lady Bennett, has brought us back to issues that we debated in Committee and I understand her concern about propriety in the deployment of public funds. I have no problem with the idea that Ministers and public servants should do all they can to ensure that public money is used effectively for the greater good. That is what they are obliged to do anyway. However, I do not feel that this duty is best served by accepting the amendment, even though it has been newly worded.

In my answer in Committee, I described how during the pandemic we learned about the importance of speed and flexibility in the way that we respond to a crisis. I suggest that this amendment would impede the Government’s ability to provide emergency support to critical providers. That does not mean handing out money willy-nilly. Any use of the power will be subject to the usual scrutiny and safeguards around the use of public funds, as set out in Treasury guidance on Managing Public Money and Accounting Officer Assessments.

There is a fundamental problem with the proposition that the noble Baroness has advanced. The amendment refers to “day-to-day operations” but there is no single accepted definition of that term. Any company could find itself excluded from receiving critical funding depending on how its accounts and finances are structured. For example, there are potential scenarios where the Government could ask providers to carry out activities at pace which may involve them in creating unavoidable debts, for which they would need reimbursement. In that situation there would be nothing improper in any government funding being used to repay that debt, but even if there were no such debts involved, the problem remains that any private company would be prevented paying dividends, as it would be logically impossible to disassociate the long-term effects of the assistance from the ability of the company to pay such dividends. I understand the concerns of the noble Baroness about unscrupulous people and fraud, but the amendment as worded is not well conceived.

Turning to Amendments 146 and 147, again, nobody can be comfortable with the idea of rogue investors or unscrupulous care providers. However, I made clear in Committee that the Government are committed to ensuring that we have a sustainable care market. We have already set out a number of planned actions, most notably in the People at the Heart of Care: Adult Social Care Reform White Paper, to achieve this objective. Noble Lords are aware that the adult social care sector is complex, as it contains both the public and the private sector. One thing that the two sectors have in common is the need to maintain not only quality of care but financial stability. To ensure that these businesses provide the care that they are required to, local government and regulators, such as the Care Quality Commission, monitor, regulate and support the sector.

As I mentioned in Committee, the CQC has market oversight responsibility, and in discharging those responsibilities, it performs comprehensive financial sustainability analysis for each provider in the scheme, including some private equity ownership structures. Debt leverage and capital structure are important components of this work, but consideration is also given to current and future trading trajectories, cash headroom and market positioning.

We also have in place the CQC-operated market oversight scheme, which monitors the financial health of the largest and most difficult-to-replace providers in the adult social care sector, ensuring that people’s care is not interrupted due to provider failure, which must be a proper concern. Since its establishment in 2015, there have been no major business failures of care providers that have resulted in the cessation of care.

We have always been clear that fraud is unacceptable. We are acting against those abusing the system; 150,000 ineligible claims have been blocked on the Covid-19 schemes, and £500 million was recovered last year. The HMRC tax protection task force is expected to recover an additional £1 billion of taxpayers’ money. Therefore, even if cash is diverted fraudulently, there is still the ability of the authorities to recover such cash.

I assure the noble Baroness that the Government will continue to keep the measures which I have outlined under review but, at present, we do not believe that the proposed and very prescriptive amendments are either proportionate or necessary. I hope she feels that she can come back to this matter at a future date. With that, I am clear that these amendments should not be accepted.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I thank all noble Lords who have taken part in this debate, and the Minister for his typically comprehensive response. It is interesting that the Minister very much focused on the issue of fraud and fraudulent transactions. I go back to the words of the noble Lord, Lord Howarth of Newport, who referred to what is happening as “legalised theft”. None of these amendments seeks to deal with things that are illegal; they seek to deal with things that are now an established part of our financialised, privatised system, which has all this simply built in.

I thank the noble Baroness, Lady Brinton, particularly, who provided a pre-answer in advance of the Minister’s response to Amendment 145, by saying that it was very difficult to separate out day-to-day operations and debts versus financialised debts. In demonstrating what the Charity Commission has done, the noble Baroness showed an effective example of how that can be done and different kinds of debt can be identified. The Minister said that you might need to create some special new financial structure to deal with an emergency situation. I think we know the practical reality of the financial-type structures that we are talking about, and that they are not created under those sorts of situations; they are created in a way to hide where the money is going—to ship the money offshore. That is not something that you would do in a situation where you are simply trying to rescue something.

The point made by the noble Baroness, Lady Tyler, about the inherent instability really brings home the point that what we are talking here, with regard to care homes, is people’s homes. I am glad to see that the noble Lord, Lord Kamall, is in his place, because in another discussion I raised with him the fact that people who are forcibly moved when homes are closed can actually die as a result of it happening. I hope he has made himself more aware of that situation and the risk it presents to people’s lives.

The noble Baroness, Lady Tyler, focused on some of the difficulties that the National Audit Office has had in scrutinising this whole situation. She highlighted the facts that I was talking about—how, when the National Audit Office is able to scrutinise situations, all we get is complaint. The noble Baroness highlighted how it is not even able to conduct scrutiny in this sector because of the kind of financialised structures that we have.

I am pleased that the Minister finished by noting that I am likely to come back—he perhaps even invited me to come back on these issues. It is something that I certainly intend to do. These are very complex areas, as I acknowledge, and this is an attempt to take on some extremely well-funded organisations and professional groups. Just to conclude, it is interesting that the noble Lord, Lord Howarth of Newport, as I did, contrasted the Russian kleptocrats we will talk about on Wednesday versus what we are talking about here. Of course, it is possible that they are not two groups and there might be some overlap. I invite any investigative journalists listening to have a look at whether we might be able to see an overlap there.

At the moment, it is my intention to withdraw the amendment, but I do not regard this issue as in any way dealt with or finalised. I beg leave to withdraw the amendment.

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Baroness Merron Portrait Baroness Merron (Lab)
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I thank the noble Baroness, Lady McIntosh, for moving this amendment. I feel that we have discussed these issues at considerable length at previous stages of the Bill, so I do not wish to go over old ground, other than to say that the Royal Society for Public Health, the British Dental Association, the Chief Medical Officer and many others are very much in favour of greater fluoridisation because, on balance, there is strong scientific evidence that it is an effective public health intervention. In other words, it is the single most effective way to reduce oral health inequalities and tooth decay rates, especially among children, and it is, as your Lordships’ House knows, recommended by the World Health Organization. On all these positive points, I am very much inclined to agree, and do not feel that the amendment before your Lordships’ House would be helpful to support that intervention.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I thank my noble friend Lady McIntosh for her clear introduction to Amendment 156. The first thing for me to underline is the point she made: the water fluoridation provisions in the Bill will simply transfer the power to initiate fluoridation schemes from local authorities to the Secretary of State. The Bill does not compel the expansion of fluoridation. Any future proposals to establish new schemes would be subject to funding being secured and public consultation, and I will come on to both those things in a second.

The noble Baronesses, Lady Finlay and Lady Merron, are quite right that the evidence is strong that water fluoridation reduces the incidence of tooth decay for both adults and children, but nobody is complacent about public health. We will continue to be under a legal duty to monitor the health effects of water fluoridation on populations with schemes and to report no less than every four years. Monitoring the evidence is a continuous process and involves colleagues from multiple disciplines, including toxicology.

The law here is explicit. Water companies are required to comply with legislation to protect employees, consumers and the environment from harms. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and other legislation set out the thresholds and criteria for which an environmental impact assessment is already required in relation to developments. The installation of water fluoridation plants in some areas may fall within scope. Furthermore, the Environment Act 2021 will, when brought into force, place a duty on Ministers of the Crown to have due regard to the policy statement on environmental principles in our policy-making; hence new and revised policies will need to take into account their impact on the environment. I would like again to reassure your Lordships that the evidence is kept under review.

My noble friend referred to the case of McColl v Strathclyde, in which I think she said she was involved. Perhaps I could just state for the record that the plaintiff’s arguments in that case about the safety and effectiveness of fluoridation were all explicitly rejected by Lord Jauncey, who found that there was no convincing scientific evidence supporting that position. Since that ruling by Lord Jauncey, 38 years ago, it remains the case that there is no convincing scientific evidence of water fluoridation being harmful to health. Indeed, were we not to have any fluoridation, there would still be areas of the country where fluoride is naturally present in drinking water at a similar level to that achieved by a fluoridation scheme.

Health and Care Bill Debate

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Earl Howe Portrait Earl Howe (Con)
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My Lords, I am grateful to all noble Lords who have spoken in this debate and in the informative debate we had in Committee, on which I have reflected carefully. Let me first remind the House of what we are doing in this area.

We are committed to making England smoke free by 2030 and will set out our approach in a new tobacco control plan to be published later this year. As part of that work, we are exploring a number of regulatory proposals and have launched an independent review into smoking. The review, led by Javed Khan OBE, will make a set of focused policy and regulatory recommendations to government on the most impactful interventions to reduce the uptake of smoking and support people to stop smoking for good. It is in that context that I turn to the detail of these amendments.

As mentioned in previous debates, while I speak for the Government as a whole, tobacco taxation matters are ones for Her Majesty’s Treasury. As noble Lords will know, the tobacco industry is already required to make a significant contribution to public finances through tobacco duty, VAT and corporation tax. Through these finances we are able to fund local authority stop-smoking services through the public health grant and provide extra resources as part of the NHS long-term plan commitment to help smokers quit. As part of the annual Budget process, Her Majesty’s Treasury will continue the policy of using tax to raise revenues and encourage cessation through continuing with above-RPI duty increases on tobacco products. It is a proven and effective revenue-raising system.

I am as keen as anyone to find new ways in which to bear down on the prevalence of smoking and I am proud to have been instrumental in bringing some about. However, I am afraid that I cannot accept the amendment as it stands. The proposal may look simple on the surface but it is complex to implement. It may also take several years to materialise. Our strong preference is to continue with high tobacco taxation and excise as the best means and the most efficient process through which to generate revenue that can be put back into public services. However, I can tell the noble Lord, Lord Crisp—I hope that this will at least be of some reassurance to him—that the department’s officials will continue to work with Her Majesty’s Treasury to explore whether there are other innovative financing models that can be applied to the tobacco industry to support Smokefree 2030 and be as effective and efficient as the current taxation system. It may be—I do not know—that Javed Khan will come forward with recommendations in this area. We should allow him the necessary time to conduct his independent review.

I realise my reply will be disappointing to the noble Lords, Lord Crisp and Lord Faulkner, and my noble friend Lord Young, who are understandably passionate about this issue. I hope they will realise that we are very much on the same page regarding the overriding objective to reduce and eliminate the practice of smoking in this country. I hope I have provided some reassurance that the Government have listened and thought carefully about this proposal, even if we have not felt it right to proceed with it, in the end. As the noble Lord, Lord Crisp, would expect, we will set out our financial plans to support smoke-free 2030 in our new tobacco control plan. For those reasons, I ask him to withdraw his amendment.

Lord Crisp Portrait Lord Crisp (CB)
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My Lords, first, I thank those noble Lords who added their names to this amendment and spoke so eloquently in this debate, which covered a range of important issues that between them present a compelling argument for what is only a consultation. Secondly, I thank the other noble Lords who spoke during the debate, including those who spoke against the amendment, because having a proper debate allows us to pull out some important issues. I will return to that in a moment. Thirdly, I thank the Minister for the time that he and his colleagues gave to meet with us, and for our helpful discussions. I very much accept the noble Earl’s statement about us being on the same side and pushing in the same direction, but we need to get there.

That takes me to picking up some of the points that were made. I thought the contribution from the noble Lord, Lord Naseby, was very helpful. The point he made about how the numbers are coming down was terrific. It is great news—so let us accelerate it. We can get behind that and really shift it. There is a problem here, as with so much in public health, in that people talk about aggregates and averages. There is a real trap in aggregates and averages. The aggregate could come down to 5%, but 20% of people in the lowest socioeconomic group could still be smoking. That is the problem when you deal in gross numbers. I said in the debate that, according to Cancer Research UK, which is a reasonably reputable body, it would be 2047 before we saw that level of achievement among the lowest socioeconomic group in the country. Aggregates and averages are real traps in public health.

I understand the good faith of the Ministers in this House. However, and I think I speak for my colleagues on this amendment, we note that the Green Paper in 2019 promised to consider the idea of polluter or perpetrator pays—whatever is the right language for that. Almost three years on, we have not yet seen that happen. Not surprisingly, we are rightly suspicious of how these things can be kicked into the long grass and continue for a long time. If we are to achieve the 2030 outcomes for all the people for whom we want to achieve them, we need to accelerate. I believe the proposals put forward here are practical and implementable, as the noble Lord, Lord Young, spelled out.

In our discussions with Ministers, we offered a number of concessions, including the idea that it did not have to be precisely this scheme that was implemented, as they could consult on others. I am sorry the Government have been unable to accept that. On the basis of everything that has been said today, I would like to test the opinion of the House.

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Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, this was debated two weeks ago, but I know that the noble Earl, Lord Howe, wishes to say a few brief words to your Lordships’ House. With the permission of the House, I will say very briefly, without seeking to open the debate, what the amendment does. It is to amend the Human Tissue Act to prohibit UK citizens from travelling to countries such as China, although the wording in the amendment is not country-specific, for the purpose of organ transplantation. The restrictions are based on ensuring that there is appropriate consent, no coercion and no financial gain.

Forced organ harvesting in China is the crime of forcibly extracting organs from prisoners of conscience, killing the victim in the process. The harvested organs are sold to Chinese officials, Chinese nationals or foreigners for transplantation. This is a very modest amendment, doing our bit to try to prevent this obnoxious habit. I beg to move.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am very grateful to the noble Lord, Lord Hunt, for allowing me to say in a few sentences why the Government advise noble Lords not to support the amendment.

Reason number one is the effect on patients. In my submission, very sick patients who may be taken overseas for a transplant but are not fully made aware of how their organ was sourced should not have to face prosecution when they return to the UK. The existing legislation rightly targets those who buy and sell organs, not recipients who may have been quite unaware of any commercial dealing taking place. If we target the organ recipient, we will find that those who legitimately receive organs overseas—incidentally, individuals who are more likely to come from ethnic-minority backgrounds—will be deterred from seeking follow-up treatment for fear of being treated like a criminal suspect.

Reason number two is that the mischief the amendment seeks to address is dwarfed by the considerable burdens it would impose on the NHS. All the information indicates that we are dealing, at worst, with tiny numbers of illegal transplants performed overseas. The amendment would require officials, whose focus should be on promoting legitimate donation, to research and write a report every year on the status of every other deemed consent system in the world and on the public understanding of each scheme. That is not a drafting criticism but a necessary consequence of what the noble Lord seeks to achieve. In my view, it is an unreasonable ask and a hugely disproportionate use of resources.

To address the issue at first base, we will take forward the excellent suggestion from the noble Baroness, Lady Finlay, to work with NHS Blood and Transplant. My noble friend Lord Kamall has already instructed officials to engage with it on how we can help clinicians make their patients aware of the health risks, the risk that they may be exploiting others and the risk of breaking the law if they travel abroad in search of an illegitimate transplant. I truly think that is a better way forward, and I invite the noble Lord to change his mind about pressing his amendment.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, I will not detain the House. It is time for the House to make a decision. I am very grateful to the Minister for picking up the point made by the noble Baroness, Lady Finlay, in relation to NHS Blood and Transplant. In the end, it may be a small gesture but it is an important gesture—a mark against this obnoxious habit. I would like to test the opinion of the House.

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Lord Winston Portrait Lord Winston (Lab)
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My Lords, as a doctor and a wine drinker, I have serious concerns about this amendment, particularly, for example, when it comes to the use of fine wine—I think there is broad understanding in the House of what that is—where, in every case, those bottles are labelled with the amount of alcohol. One has to accept that labelling bottles in this way does not change behaviour. We have had committees looking at behaviour change, and the only time we managed to induce behaviour change was with smoking—certainly never with labelling. That is the only time it happened and there were all sorts of reasons for that.

Much of the evidence for alcohol being harmful in minor doses is still dubious and, more importantly, there is real concern that a lot of the so-called evidence is not being put to the real test of whether it makes a difference to behaviour. I must say to the House that I think the noble Lord—I am afraid I do not know his name; my eyes are bad enough not to have been able to see his name on the screen—is right that this is unworkable. It would probably do all sorts of untold damage to what is, for me and no doubt many others, a very fine drink. We need to look seriously at whether we can simply label all bottles.

I just remind the House that there is one amendment that I could have put down. In in vitro fertilisation, embryos are cultured in culture media, which are in fact commercially made and a commercial secret—nobody knows exactly what the composition of those media is. My laboratory is looking at this at the moment. It is really interesting, because some of the products in those culture media may indeed be quite dangerous in terms of epigenetic effects. To me, that seems far more important to regulate than what we are trying to do here with bottles of wine, which is probably not really workable.

Earl Howe Portrait Earl Howe (Con)
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My Lords, this is an important topic, so let me start with an immediate reassurance to the House, which I hope will enable to the noble Baroness to consider withdrawing the amendment. The amendment calls on the Government to publish a report on alcohol labelling. The Government already plan to report on alcohol labelling, as it is a key part of our overall work on reducing alcohol harm. In no sense do we propose to ignore it and I undertake today that we will report on it. Part of what is taking the time is formulating what the proposals should look like, but I will come on to that.

As part of the Government’s tackling obesity strategy, published in July 2020, we are committed to consulting on whether mandatory calorie labelling should be introduced on all pre-packed alcohol as well as alcoholic drinks sold in the out-of-home sector. In addition, as part of our public consultation, respondents to the consultation will be able to provide suggestions and evidence for additional labelling requirements that they would like the Government to consider, including warning labels and nutritional information. In that sense, the consultation will be even more of a two-way process than perhaps noble Lords might have been expecting. Naturally enough, we make no assumptions in advance about any such proposals; they will have to be looked at on their merits. The consultation will be launched in due course and I can assure noble Lords that the Government will feed back the results to this House. Although, for reasons beyond my control, I have not been able to provide definitive news on the timing of the consultation—much as I would like to—I hope nevertheless that the firm commitment that I have given on the Government’s intention to carry out the consultation and on its scope will have provided the noble Baroness with sufficient reassurance to enable her to question whether she wishes to press her amendment.

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Baroness Wheeler Portrait Baroness Wheeler (Lab)
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My Lords, my noble friend has returned with his amendment on the need for an expert-led review on the 40 year-old Vaccine Damage Payments Act, and I am pleased that the meeting he sought with the Ministers has taken place. The amendment is a timely reminder for all of us that while the vaccination programme against Covid has been hugely successful, for a small group of people suffering very serious adverse effects and deteriorating health as a result of having the vaccination, the experience has been devastating, as the noble Baroness, Lady Brinton, underlined. The current legislation dealing with compensation arrangements is not fit for purpose: in the words of my noble friend, it offers too little, too late and to too few people. I hope the Minister acknowledges the need to meet and engage with the families of those affected, and that he looks urgently at the ways in which claims under the current system can be speeded up, and he also accepts the need for the review of the scheme and the next steps that have to be taken on this.

My noble friend has also added his name to Amendment 180 from the noble Baroness, Lady Cumberlege, on her unrelenting campaign for separate compensation schemes to meet the cost of care and support for the victims highlighted in her First Do No Harm report. Once again, we have heard convincing and forceful contributions from the noble Baronesses, Lady Cumberlege and Lady Brinton, which we on these Benches strongly support, calling for an independent redress agency for the three patient groups covered by the First Do No Harm report. The Government’s positive response to another key aspect of the First Do No Harm report, to improve patient safety for the future, including establishing the patient safety commissioner, is a welcome and necessary development. But the redress agency needs to be there to provide care and support for the thousands of women who suffered, and whose needs will not be met by the healthcare system, social care support or social security benefits support.

I hope the Minister has considered the matter carefully since Committee, and will report positively to the House on the ongoing discussions and progress which will ensure the strongest recompense possible for the people we are concerned about.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I will turn first, if I may, to the amendment in the name of the noble Lord, Lord Hunt of Kings Heath, on the Vaccine Damage Payment Scheme, and start by thanking him for his campaigning on this issue, and for the informative debates we have had today and in Committee.

As we discussed in Committee, since the NHS Business Services Authority took over responsibility for the Vaccine Damage Payment Scheme from the Department for Work and Pensions in November 2021, we have started to find ways to improve the operation of the scheme. The most important thing the NHS Business Services Authority is looking do to is to improve the claimant journey on the scheme, and that means making engagements with claimants more personalised, as well as giving claimants access to more general support. The crucial part of this drive is to reduce response times, which the authority knows has been a cause of dissatisfaction, particularly during Covid; in other words, the whole process is being modernised.

The NHS Business Services Authority has done its best to hit the ground running. Since taking over in November, it has already contacted all applicants to update them on their cases and it has also allocated additional resource to the operation of the scheme. I can assure the noble Lord that the department will further engage with the NHS Business Services Authority to ensure that these service improvements, greater digitisation in particular, really do make headway. There is already regular dialogue on this.

With all this enhanced activity happening, I do not think this is right time to establish an independent review into the VDPS. As the noble Lord will know, reviews take significant time and they carry substantial costs to the organisation, not just financial but in terms of leadership focus and energy. Instead, we think it is a better use of resources to focus on making the changes that we know need to happen; that is, to improve the claimant’s journey, and to modernise the process for claimants, as well as scaling up the capacity of the VDPS. We will keep the progress on these under regular scrutiny, and I am sure we will report regularly to this House as we do so.

I will address the noble Lord’s three key questions. First, I should be happy to facilitate a meeting with representatives of the families, and my honourable friend Maria Caulfield, who is the Minister with direct responsibility for the scheme, will be pleased to see them. Secondly, as I have already indicated, reducing response times is one of the NHS Business Services Authority’s key objectives. Thirdly, the noble Lord asked whether the Government would undertake a review of the scheme. I simply remind the noble Lord that the scheme has been revised many times since its inception, which shows that it is reviewed regularly as a matter of course, but perhaps it is worth my making the point that the VDPS is not a compensation scheme; nor is it designed to cover all expenses associated with severe disablement, which are catered for from the public purse in other ways. I hope that is helpful to the noble Lord, and that on the basis of those assurances he will feel able to withdraw his amendment.

Before I address the detail of Amendment 180, I would like to again put on record my thanks to my noble friend Lady Cumberlege for her continued commitment to the issues she has so powerfully spoken about, and the diligence and dedication of the IMMDS team, and the brave testimonies of those who contributed to the IMMDS review. As my noble friend knows, the Government have accepted the majority of the report’s nine strategic recommendations and 50 actions for improvement, and are taking forward work to improve patient safety. This includes establishing specialist mesh removal centres, the ninth of which opens in Bristol this month, and work to improve the care pathways for children and families affected by medicines during pregnancy.

We remain committed to delivering improvements in patient safety across the board. We are focusing government funds on initiatives that directly improve future safety. For this reason, the Government have already published their decision that redress schemes will not be established for people affected by hormone pregnancy tests, sodium valproate or pelvic mesh. I realise that was a disappointing decision for my noble friend, and I am always very sorry to disappoint her, but, for the reasons I have given, I ask her not to move Amendment 180 when it is reached.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, I am very grateful to the noble Earl, Lord Howe, the noble Baroness, Lady Brinton, and my noble friend Lady Wheeler for their support. I empathise with the comments of the noble Baroness, Lady Cumberlege, and her report, which was far-reaching. Having met some of the women who were affected, I know how keenly the noble Baroness, Lady Cumberlege, feels about these issues. It is disappointing that the Government have rejected this particular request, although they have accepted many of her recommendations. It leaves the groups of women whom we have met to continue with their long, hard campaign, but they will continue, and one day a Government will agree to give them some of the support that they deserve.

On my own amendment, I pay tribute to the work of the NHS Business Services Authority. I am very glad that it took over responsibility for the scheme, and I wish it well in speeding up the process of claims. I am grateful to the noble Earl for facilitating a meeting between representatives of the families and the Minister—that is very welcome indeed. All I would say is that as the Business Services Authority continues its work, it is bound to come across issues in relation to the operation of the scheme, and I hope the Government will reflect on that and look at further improvements to the scheme. Having said that, I beg leave to withdraw my amendment.

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Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, I have listened very closely to the many passionate, informed and often personal contributions from noble Lords this evening. This debate has inevitably been about not only parliamentary process and legislative approach but consideration of assisted dying. I thank the noble Lord, Lord Forsyth, for opening the debate on Amendment 170, which proposes, as your Lordships’ House is more than aware, a new clause to bring forward a draft Bill on what the noble Baroness, Lady Campbell of Surbiton, described as a complex and difficult issue.

However, for me, the challenge of this debate is encapsulated in the contributions in the middle of it. The first, from the noble Baroness, Lady Davidson, was that not allowing time for discussion is not a neutral act. This was followed swiftly by my noble friend Lord Hunt taking a different tack, saying that allowing for this amendment is also not a neutral act, and it is that which your Lordships’ House has wrestled with this evening.

It is indeed a matter of profound moral, personal and legislative importance that we find ourselves dealing with in Amendment 170. The noble Lord, Lord Forsyth, will be seeking a Division and these Benches will approach this on free votes. It is a shame that this is not the case on the Government Benches. Your Lordships’ House heard from the noble Lord, Lord Baker, about the importance of principle, whereby matters such as this should be subject to nothing other than a free vote. I certainly share that view. I know that noble Lords will exercise their vote this evening with the greatest of care.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I must tell my noble friend Lord Forsyth that I am not with him on this amendment and nor are the Government. That has nothing to do with the issue of assisted dying, about which we each have our own views, but is about the proper process for bringing forward legislation and the roles and responsibilities of government on the one hand and parliamentarians on the other.

Governments are elected. The electorate then expect the Government to bring forward their programme of legislation, which Parliament then decides on. If alongside that process there is an issue that the Government do not choose to legislate on, but which happens to be close to the heart of an individual parliamentarian, that parliamentarian has the privilege of being able to bring forward a Private Member’s Bill for Parliament to consider. In each of those two legislative processes the roles, rights, responsibilities and privileges of the Government and of individual parliamentarians are separate. It is no more appropriate for a Government to force an MP or Peer to bring forward a particular Private Member’s Bill than it is for an MP or a Peer to force a Government to bring forward a government Bill. That includes a draft Bill. As my noble and learned friend Lord Mackay of Clashfern observed in Committee, draft Bills are brought forward by Governments only when there is an intention to legislate.

The Government have no intention of legislating on assisted dying; it is not part of our programme, nor was it part of our election manifesto. Equally, it is no part of our agenda to prevent an MP or a Peer bringing forward a Private Member’s Bill on assisted dying. The noble Baroness, Lady Meacher, has done just that because it is something that she feels strongly about. It is for her to persuade Parliament and the Government that her Bill is a good thing.

That is the proper process, and surely that is how it has to be. If it ever became possible for an MP or Peer to use a government Bill as a vehicle for obliging the Government to publish a completely separate Bill, even one on a subject which was in tune with the Government’s thinking, the due process of legislating would thereby be subverted. I ask noble Lords opposite how they would react if under a Labour Administration, an MP or Peer proposed to use a health Bill as a vehicle to oblige the Government to publish draft legislation, the purpose of which was to place all NHS hospitals into private ownership—or one might find an MP trying to use a criminal justice Bill as a vehicle to oblige the Government to publish legislation to bring back capital punishment.

My noble friend might say, “Well, in that circumstance, it would be for Parliament to decide whether or not to accept such an amendment”—but that is not the point. The point is that if one House of Parliament were to approve such an amendment and the other House were to follow suit, Parliament would thereby usurp the role of the democratically elected Government. The noble Lord, Lord Howarth of Newport, and my noble friend Lord Cormack were 100% right: it is for the Government to say what their legislative programme should be, not Parliament.

As the late Lord Simon of Glaisdale might once have said, this amendment is constitutionally offensive and it should be rejected on those grounds.

Baroness Meacher Portrait Baroness Meacher (CB)
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Before the Minister sits down, does he believe that limiting debate on a crucial human rights issue to Fridays—when, as he knows, certainly in the House of Commons, very few MPs are around, and in the House of Lords too, many Peers are not available—is an appropriate way to consider a matter of very great importance?

Earl Howe Portrait Earl Howe (Con)
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My Lords, we gave a full day’s debate to the noble Baroness’s Bill. That is surely not ungenerous.

Lord Forsyth of Drumlean Portrait Lord Forsyth of Drumlean (Con)
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My Lords, it is late; we have had a very good debate. I have to say, I shall long remember being accused of leading a coup in Parliament.

My purpose was very simple. My noble friend has explained the Government’s position very clearly. I say to my noble friend Lord Baker, who was very kind in his remarks about me, that the Chief Whip made it perfectly clear to me from the beginning what the Government’s position would be. It has been set out by my noble friend Lord Howe. However, there is a problem here. It is all very well for my noble friend to stand at the Dispatch Box and say, “Well, we have the private procedure, and we have the government procedure”, but on a matter of huge importance, Parliament is completely unable to reach a view. My amendment was really an attempt to do that.

There has been some nonsense talked, I have to say, about how we are getting above ourselves and that we are instructing the House of Commons. If this amendment is passed tonight, it will go to the House of Commons and, under our procedures, it will be for the House of Commons to decide.

I have made it absolutely clear to my noble friend the Chief Whip and the Front Bench that if the Government say, “We don’t like this procedure; we think it’s a bit too novel, but we’ll give a commitment that we’ll make time available at some point in this Parliament for the purpose of discussing this really important issue”—I agree with the points made by a number of people that it is a complex and difficult issue; that is why it needs time for everyone to put their point of view and for a result to emerge, which might very well be a conclusion that we do not want to change the law—then I would withdraw my amendment. But, for some reason, the Government are refusing to do so. They seem to think that it is more important to discuss ending the lives of lobsters than addressing this hugely important issue of the end of life for people. There is time for the former, but not for this.

The Government are entitled to their programme, but having listened to the response, I would like to test the opinion of the House.

Health and Care Bill

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Lords Hansard - Part 2 & Report stage
Wednesday 16th March 2022

(2 years, 1 month ago)

Lords Chamber
Read Full debate Health and Care Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 114-IV Marshalled List for Report - (14 Mar 2022)
Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, this eminently sensible amendment sets out various considerations aimed at ensuring that there can be effective mediation when there is a dispute over children’s palliative care. There has been considerable discussion to bring this amendment to its current iteration and I pay tribute to the noble Baroness, Lady Finlay, for her efforts around this, having already secured a meaningful amendment to ensure that ICBs must commission the palliative care services they consider appropriate.

Your Lordships’ House is aware that this amendment and debate come out of the heartbreaking situation of Charlie Gard and multiple other cases like his. I therefore know that this issue has to be handled and considered incredibly delicately, taking into account the best interests of the patient receiving care above all others.

Balancing the views of clinicians and parents is intrinsically and incredibly difficult, and particularly challenging to codify in legislation. This amendment is a rational measure to move towards achieving a better balance and keeping matters out of the court, as the noble Baroness, Lady Finlay, referred to in her opening. We certainly support its intent and I therefore hope that the Minister’s response gives it due justice.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I first thank the noble Baroness, Lady Finlay, for having brought forward this important issue for debate and for introducing it in her characteristically informed and professional way. I assure her that I understand the issues she has highlighted and why she has done so. There is no doubt in my mind that the kinds of case that she has cited are extremely distressing and stressful for all involved, and can, on occasions, be contentious.

The Government agree that mediation is often a good route to take when there is such contention. Parents and clinicians should have access to high-quality, independent mediation schemes where they wish to do so. There are many mediation schemes available and we are very supportive of them.

The NHS already ensures access to mediation in many cases, and we strongly encourage it to continue doing so. But, at the same time, we need to ensure that those schemes are effective in the different contexts in which they are needed. Currently, organisations have the flexibility to offer mediation services earlier in a dispute or to prevent such disputes arising. They have the flexibility to tailor services specifically to the unique circumstances in which they are needed.

I hope the noble Baroness would agree that each case is unique. It is essential that everyone is able to have their voice heard, that there is a good understanding of different perspectives and that there is appropriate involvement of parents in decisions about the care and treatment of their child. Naturally, in that process, differences of opinion can and do arise.

The key to progress in this area is something deeply nuanced—human relationships. That is why I believe that, rather than legislation, our efforts are better directed at working together to develop systemwide solutions about how disagreements can be avoided or recognised early and, most importantly, sensitively managed. We need to ensure that in these difficult situations NHS trusts and staff are well equipped, well prepared and well supported to make that sure parents’ feelings and concerns are fully considered and supported, and that the relationship remains positive and constructive. We know that there are already examples of best practice and guidance but we need to do more.

To improve the outcomes of these difficult cases, we need to look at the whole process. We need to look at how best practice can be shared across the system to ensure that parents’ voices are heard throughout the process, not just in mediation, and how we can prevent disputes arising in the first place. In the rare cases when a dispute does arise, we need to focus on the quality of mediation schemes and not just prescribe that mediation is offered by default.

To look at how best we can embed best practice, training and advice on shared decision-making and dispute resolution across the system, the Minister for Patient Safety and Primary Care has agreed to chair a round-table event facilitated by the Nuffield Council on Bioethics. This will build on the work already being done by bringing together key stakeholders to agree actions that support the creation of healthcare environments that foster good, collaborative relationships between parents and healthcare staff. I have also offered to meet Connie Yates and Chris Gard to hear their experiences and discuss how we can support better collaborative relationships between parents and healthcare staff. I hope this demonstrates that the Government understand the importance of this issue and that we are committed to addressing it.

It is the Government’s view—I say this with some regret—that putting this amendment or another in the Bill will not help improve the outcomes of the very difficult, rare situations in which an unresolvable dispute arises. This is because efforts need to be focused on a holistic approach to dispute resolution to improve the process as a whole. Merely allowing for mediation to be available at the end of a dispute will not do this; either party could refuse it and allowing mediation will not, we think, drive the careful, sympathetic and considered work with parents and carers that this topic so urgently demands.

I recognise that these are difficult matters, but I think progress will best be made through practical, down-to-earth work across the system and by bringing in a wide range of perspectives. This is what I am now offering and I therefore hope that, in reflecting on that offer, the noble Baroness, Lady Finlay, will feel able to withdraw this amendment.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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I am most grateful to everyone who has spoken. I realise that the time is late so I will try to be very brief in responding. I appreciate the offer of Nuffield to host another round-table event. I believe it held one recently and it had its previous inquiry. The sad reality, however, is that over recent decades of trying to teach communication skills, things have not improved as much as they should. One of the reasons is high staff turnover, which means you educate one group and it moves on. Yes, things have to be sensitively managed, but the role models come from the seniors. We are not talking about the vast majority, who are doing really well. The problem is that the people who are not doing well are the very ones who do not take up the education and do not want to change. I believe we have now got to the point where we need to send a very clear message and put this in the Bill. I beg leave to test the opinion of the House.

Health and Care Bill

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Moved by
Earl Howe Portrait Earl Howe
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That this House do not insist on its Amendment 81, to which the Commons have disagreed for their Reason 81A.

81A: Because it could affect financial arrangements to be made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.
Earl Howe Portrait Earl Howe (Con)
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My Lords, on behalf of my noble friend Lord Kamall, who has already spoken to Motion H, I beg to move.

Motion H agreed.