Health and Social Care Bill

Earl Howe Excerpts

Monday 19th December 2011 Lords Chamber

Moved by

[Earl Howe]

327ZC: Clause 187, page 188, line 15, at end insert—
“( ) In subsection (5), for “this section, section 245 and section 246” substitute “this section and section 245”.”

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, unusually, it falls to me to introduce this group of amendments. In moving Amendment 327ZC and speaking to Amendments 327ZD, 327ZE, 327ZF and 327ZG, I confine myself to saying that these are minor technical amendments to Clauses 187 and 188. For the most part, they ensure consistency between the scrutiny provisions in the Bill and in the Localism Act. I hope that they will receive the support of the Committee. I beg to move.

[Baroness Massey of Darwen]

My Lords, I speak to Amendments 330, 333 and 334 in this group. I draw attention to issues important for strengthening integrated working in children’s health and well-being. Of course, integration is important for all consumers of health, but services for children have often been fragmented and disconnected, sometimes with tragic results, as we all know. I spoke last week about the importance of listening to the voice of the child. If children had a voice, they would say—as they do when we speak to them—that integration of services is not good in many areas. It should be, for effectiveness and efficiency.

My amendments require all health and well-being boards to promote close, integrated working between health, social care, and health-related services in their area. Specifically, Amendment 330 requires that they “must,” rather than “may”, include in their joint health and well-being strategy,

“a statement of their views on how arrangements for the provision of health-related services in the area of the local authority could be more closely integrated with arrangements for the provision of health services and social care services in that area”.

Amendment 333 requires, again, that they “must,” rather than “may”,

“encourage persons who arrange for the provision of any health-related services in its area to work closely with the Health and Wellbeing Board”.

Amendment 334 requires that they “must,” rather than “may”,

“encourage persons who arrange for the provision of any health or social care services in its area … to work closely together”.

As the Bill stands, health and well-being boards’ role in bringing health and social care together with health-related services is optional. The National Children’s Bureau and its Every Disabled Child Matters campaign believe this role must be strengthened so that there is a clear duty on all health and well-being boards to promote joined-up commissioning and delivery of services in their area. This is particularly important for children and young people for three key reasons. One reason is that joint working across local agencies is crucial for children’s and young people’s health and well-being. Integrated planning is particularly important for children and young people, for whom some of the most effective interventions are those delivered through non-health settings and services, such as schools and colleges, children’s centres, and youth services. For example, the national evaluation of Sure Start found that a child with access to a children’s centre—formerly Sure Start local programmes—had more immunisations and fewer accidents than young children living in other areas. School health initiatives can have a positive impact on pupils’ health and behaviour—I am thinking of health-promoting schools, for example.

However, evidence suggests that health, social care, education, early childhood, youth and other services are not always working in partnership to secure good outcomes for children and young people. The Marmot review identified the lack of consistent partnership working between such bodies as the barrier to delivering services that reduce health inequalities. Similarly, the Kennedy review highlighted the fact that the requisite links between the NHS, social care, education and criminal justice services to support juvenile people are not always made. His report recommended that local partnerships covering all services for children should have,

“a duty to ensure that local organisations work together”.

Close working between local partners is particularly vital for children with complex needs, such as disabled children or looked-after children, who need co-ordinated interventions from a range of services. A recent report from the Every Disabled Child Matters campaign found that families of disabled children often report experiences of fragmented service delivery and have been caught between services that do not communicate well. One parent has said:

“As a parent, you just want a service, but it’s like health, education and social care are all separate and they don’t really like working together. What you need as a family is one system—not three”.

The Government have expressed aspirations for better partnership working across a broad range of children’s services. For example, Support and Aspiration, the special educational needs and disability Green Paper, states,

“we want to make it easier for professionals and services to work together, and we want to create the conditions that encourage innovative and collaborative ways of providing better support for children, young people and families”.

I believe that unless the Bill strengthens the framework for local integration, the ability of local areas to implement these aspirations will be undermined.

The Bill contains many key measures promoting joined-up working on health and social care, through relationships between local authorities and NHS commissioners. However, many of the services that promote the health of children and young people, such as schools and colleges, children’s centres and youth services, are or will be provided by bodies which are independent of the local authority or NHS. Health and well-being boards should have a mandatory and not an optional role in promoting the involvement of these health-related services in joined-up commissioning and delivery.

Schools need to be encouraged and enabled to play their part. Schools are key partners in securing the health and well-being of children. The public health White Paper, for example, recognises the role that schools can play, stating that:

“Good schools will be active promoters of health in childhood and adolescence”.

This is crucial for reducing health inequalities. The Marmot review, again, recommends that schools should take a “whole child” approach and they will be unable to do this without routine engagement with partners from other agencies.

Over 1 million children and young people now attend academies, which are independent of local authority oversight and will not be represented by health and well-being boards. According to the Department for Education, more than 40 per cent of all secondary schools are now open or are in the process of opening as academies. The Government have taken a step towards promoting joint working by dropping proposals in the Education Act to remove the duty to co-operate under the Children Act 2004. However, this Bill does not create the structural environment within which co-operation with education providers will be possible. Health and well-being boards have the potential to act as a forum for schools to fulfil this duty to co-operate. A clearer role for health and well-being boards in bringing a broader range of services together beyond health and social care, as provided by these amendments, should help to secure this.

Finally, health commissioners should be supported to meet their new duties on integration. Duties were introduced, following the listening exercise, for the NHS Commissioning Board, clinical commissioning groups and Monitor, whereby they are required to carry out their functions with a view to securing that the provision of health services is integrated with the provision of health-related services. As the Bill stands, the role of health and well-being boards in securing this integration remains an optional part of their remit and the scope of their local strategy. Health and well-being boards are expected to play a role in holding health commissioners to account for securing services that fulfil priorities set out in the joint health and well-being strategy. Furthermore, health commissioners will need a forum through which to drive forward better joint working and integration with health-related services. Without a guarantee that health and well-being boards would prioritise encouraging this close working across health, social care and health-related services, there is a serious risk that health commissioners’ new integration duties will be ineffective.

I hope that, in this Bill, the Government will take note of issues which will affect children. I know that the noble Earl, Lord Howe, is listening and I hope that on Report we can reach some agreement on children’s health and well-being.

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[Lord Beecham]

Rubbish is the responsibility of district councils, as the noble Baroness, Lady Jolly, would point out—at least its collection is.

We clearly do not agree about this. The Bill does not go sufficiently far to underpin democratic accountability. It goes too far to entrench professional and bureaucratic interests, whose voice should certainly be heard but who should not be able to vote on these decisions, just as they are not in central or local government.

[Earl Howe]

My Lords, this group of amendments has prompted a very worthwhile debate. They all relate to health and well-being boards, and in particular their statutory minimum membership, their responsibility for preparing joint strategic needs assessments and joint health and well-being strategies, as well as their role in promoting integration. On the first of these issues, concern has been expressed about the membership of health and well-being boards. I am sympathetic to the very important points that several noble Lords have raised. We are all keen to ensure that health and well-being boards access the best expertise and professional advice on the myriad complex challenges facing the health and well-being of their local populations. However, taken together these amendments would significantly increase the minimum membership of each health and well-being board, making the requirements substantially more prescriptive. We want to preserve local discretion and flexibility in these arrangements and the ability of boards to shape wider membership in a way that reflects local priorities. These amendments would severely limit that flexibility and discretion. Their other big downside is that they could lead to larger and somewhat unwieldy boards, making meaningful dialogue and decision-making more difficult. My noble friend Lady Cumberlege was absolutely right to sound the note of warning that she did.

In general, we want to avoid being too prescriptive. The Bill sets out a minimum membership for health and well-being boards, but members can be added by either the local authority or the health and well-being board. I would say to the noble Lord, Lord Beecham, in particular that following the Future Forum report, we made a commitment that it will be for local authorities to determine the precise number of elected representatives on their board. We fully recognise that health and well-being boards will want to draw from a range of expertise beyond the statutory membership, such as clinicians, allied health professionals, police, probation service and voluntary sector groups. However, in deciding who to invite, they will need to consider local needs and priorities and the delicate balance between having the right people and having too many to make it an effective board.

The noble Baroness, Lady Finlay, was quite right to emphasise that the right people needed to be there. It is perhaps worth highlighting in that context that we have retained the power for the Secretary of State to issue guidance on the preparation of joint strategic needs assessments, and there will be power to issue guidance on the preparation of joint health and well-being strategies, particularly when it comes to defining what best practice looks like.

The noble Lord, Lord Beecham, asked how the NHS Commissioning Board would fit in with health and well-being boards. The NHS Commissioning Board will be required to send a representative when asked by the health and well-being board and where the discussions touch on the proposed exercise of local commissioning functions of the commissioning board, for example when discussing primary care commissioning. It will also be required to send a representative to participate in the health and well-being board’s preparation of the JSNA and a health and well-being strategy. With the agreement of the health and well-being board, the Commissioning Board may appoint someone to represent it who is not its member or employee, such as a clinical commissioning group representative.

[Lord Beecham]

Does that mean that it will be the local outpost, if that is the correct phrase, of the national Commissioning Board that will have that relationship, or will this in effect be directed from London?

[Earl Howe]

It will almost certainly be the local outpost that will have direct responsibility for those matters.

A number of amendments would introduce specific requirements in relation to the JSNA, but before I move on to that I have been informed of something that I think I probably implied, if not stated. It would be up to the board to decide who would be most appropriate to attend at a particular health and well-being board meeting.

I agree that the JSNA must be a full analysis that covers the current and future health and social care needs of the local population. It will be a framework to examine inequalities and the factors that impact on health and well-being. This could include aspects such as deprivation. Its scope will naturally include health and social care needs that are related to a wide range of areas, such as alcohol harm, disability or older people.

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[Baroness Massey of Darwen]

Could the Minister tease out for us the difference between the words “may” and “must”? Is he saying that the word “may” will refer to issues that will be in guidance and the word “must” will be in the Bill, or is it more complicated than that?

[Earl Howe]

I hope the noble Baroness will have sensed from my remarks that we want to avoid being overprescriptive. On the other hand, we are clear about what best practice looks like, and in framing JSNAs and the health and well-being strategies we have provided for statutory guidance which can set out what best practice looks like.

I think that that is the appropriate balance, rather than putting “must” in the Bill all the time. Local authorities are autonomous bodies and we must hesitate before directing them too closely. I very much agreed with the points made by my noble friend Lady Cumberlege on this. It is not, of course, that we regard these as unimportant; it is a question of how much we mandate and how much we leave to local discretion.

[Baroness Finlay of Llandaff]

My Lords, I will build slightly on that because I have my name on the same amendments. I understand the Minister’s response regarding the need not to be over-prescriptive, and not to have boards that are burdensome and cannot take decisions easily. He has referred to guidance. It would be very helpful if he could assure us that the contents of this debate and the trends and themes that have come through will inform that guidance, and that the health and well-being boards will be asked to particularly consider and consult with the broad range of professionals and prisoners, and the particular needs of children—which I emphasise. This will ensure that their strategy is broad and really meets the needs, so that there is not, inadvertently, a small board taking narrow decisions.

[Earl Howe]

My Lords, I can assure the noble Baroness that the substance of this debate will most certainly be fed in. We will be revising the statutory guidance on the joint strategic needs assessment in due course to reflect the changing system. As a result of the Future Forums recommendations, we will also be issuing statutory guidance on the joint health and well-being strategy. There is therefore plenty of scope to build in the very salient and important points that noble Lords have raised.

Amendment agreed.

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[Baroness Thornton]

My Lords, I will be very brief because my noble friend and other noble Lords have pretty much covered the territory here. This small group of amendments is rather important and significantly improves the Bill. I realise that they are probing amendments, but they do three things. The first amendment is about changing culture. It talks about the manner of the integration of services, not just an integrated manner. The second one says that we need to define integration. This must be perhaps the third or fourth debate that we have had on integration in the past however many weeks. It seems quite clear that there needs to be some definition of integration in the Bill. My noble friend Lord Warner explained that. Given that many parts of the Bill offer a list of different ways in which things can be described and done, I see no reason why the same list on integration cannot be included. The third point in the amendment to which I was pleased to be able to put my name is about encouraging co-operation across the piece. Having the national Commissioning Board mentioned in that is rather important.

Those three points about changing the culture, defining what you mean and encouraging co-operation seem to me to be the type of message that any health and well-being board will look to as it starts up its work. It will look to what is in the Bill, what is in guidance and what is in statutory instruments to help it to work out what to do. To have something that defines the kind of culture that is expected, defines integration and the way the bodies should work, lists the bodies that should work together, if not in the Bill then certainly in guidance, and explains the manner in which they are expected to work seems to me to be a very helpful way forward.

[Earl Howe]

My Lords, these amendments from the noble Lord, Lord Warner, are primarily concerned with strengthening the role of health and well-being boards in promoting integration between health and social care and wider aspects. I completely understand why noble Lords have felt moved to support these amendments. They are undoubtedly well intentioned, but I am afraid that I have a problem with them.

Amendment 336, which I will speak about more fully in a second, could be seen to enable changes to be made to the fundamental responsibility for functions, which we are clear would not be right. Amendments 332 and 335 would also introduce a prescriptive definition of integration. I resist that idea not just because it would be counter to the principles of localism, which we believe are very important, but because it could act as a diversion from effective integrated working between commissioners. I do not see the need for a definition beyond what the clause already says, which seems quite clear.

We have a shared intent on the importance of integration, but I cannot agree that this cause would be aided by pinning down a definition in primary legislation. I see no need for that. Apart from anything else, having a definition set in primary legislation would risk creating inflexibility as times and practices change. We should focus on removing barriers on the ground to ensure integration. That is where the Government’s response to the Future Forum’s work will, I hope, make a difference. We aim to publish our response to the Future Forum’s report before the Report stage of this Bill.

I am sure that Amendment 336 is intended to be helpful, but it might create confusion between the arrangements mentioned in the amendment and those made under Section 75 of the NHS Act, which would enable local authorities and CCGs to enter into partnership arrangements such as lead commissioning and pooled budgets. Existing provisions in the Bill are designed to encourage and enable the NHS and local government to improve patient outcomes through more effective co-ordinated working. The Bill provides the basis for better collaboration, partnership working and integration across local government and the NHS at all levels. I hope that that, in part at least, answers the question posed by the noble Lord, Lord Patel.

Indeed, health and well-being boards will have a strong role in promoting joined-up commissioning between health, public health and social care. Through their duty to promote integrated working between commissioners, they will also be in a good position to promote more integrated provision for patients, social care service users and carers. They will also be able to encourage close working between the commissioning of social care, public health and NHS services and aspects of the wider local authority agenda that also influence health and well-being, such as housing, education and the environment. Through statutory guidance on preparing the joint health and well-being strategy, and the Government’s mandate to the NHS Commissioning Board, we will be encouraging lead commissioning and integrated provision.

There are enough levers and mechanisms in the system to encourage every part of the system to look for ways of joining up services, and the commissioning of those services. I hope that I have reassured noble Lords of our intentions, and that the noble Lord feels able to withdraw his amendment.

[Baroness Thornton]

If a new health and well-being board got in touch with the Minister, or perhaps with the Commissioning Board, and asked whether it would please say which form of integration it should be using or how it should be doing this, would he tell it to work it out for itself?

[Earl Howe]

My Lords, we have to give credit to people on the ground to be the professionals that we know them to be. Integrated working can take many forms, as we have discussed quite often in Committee. I will not rehearse the various manifestations of integration. Once we have mandated the duties in the Bill and issued statutory guidance on what good practice looks like, I really think that it will be up to people on the ground to decide how best to set about fulfilling the duties and expectations placed on them.

[Baroness Williams of Crosby]

I will pursue for a minute mechanisms for an early decision. I do so because the health and well-being boards will obviously be new and will be moving into a relatively new structure in their relationships with the medical and clinical CCGs, and they might not realise that this could happen rather quickly. No one is thinking of laying down the law, but a mechanism under which they are reminded that this could arise quite suddenly at an early stage and that they therefore need a structure that enables them to react quickly is an important feature of what the noble Lord, Lord Warner, was arguing.

[Earl Howe]

This is exactly why we have established the early implementer health and well-being boards. These cover virtually the entire country; a very small number are not yet in existence. I can tell my noble friend that local authorities have seized this opportunity with alacrity and are getting to grips with just the kind of issues that she has in mind.

We have a lead-up time available to enable the boards to consolidate the learning that is undoubtedly going on and the dialogue that is taking place with the pathfinder clinical commissioning groups. We are supporting that process from the centre. I hope and believe that by the time the health and well-being boards go live they will be in a very good position to hit the ground running.

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[Earl Howe]

My Lords, the amendment relates to an important issue: the concerns among pharmacists about the risk of prosecution where they normally follow good professional practice but make an inadvertent dispensing error. I am very grateful to my noble friend for raising this issue. I warmly welcome the opportunity to discuss it and have been listening carefully to the points made.

We are on the record as saying that we intend to take legislative action to address the issue. We want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. The noble Baroness, Lady Finlay, was quite right about that. However, we need to make any changes in ways that continue to protect patients under the law. The noble Baroness, Lady Pitkeathley, drew our attention to that aspect.

Section 64 of the Medicines Act 1968 provides that,

“No person shall, to the prejudice of the purchaser, sell any medicinal product which is not of the nature or quality demanded by the purchaser”.

This is a strict liability offence, and contrary to what my noble friend stated it does not relate only to pharmacists. Various other healthcare professionals could be affected, as well as other parties who are not subject to professional regulation. Guidance issued to government prosecutors in 2010 has been helpful, but we recognise that it does not remove the underlying problem.

My noble friend is to be commended for raising this issue, but the terms of the proposed amendment present a number of problems that we would need to work through before an appropriate drafting solution could be found. It does not cover other healthcare professionals affected by the current legislation, and in relation to pharmacy it covers only a proportion of pharmacy activity—retail pharmacy—and only where a pharmacist is responding to a prescription. The amendment does not address the different arrangements for the professional regulation of pharmacists that apply in Northern Ireland. There is also some ambiguity as to how it would be determined in practice: that is, whether a pharmacist would be subject to the revised provisions in this amendment. The amendment extends beyond Section 64 and would also change Section 58, on prescription-only medicines, and Section 85, on the labelling of packages and containers of medicinal products, of the Medicines Act 1968.

The legislative ramifications of the issue are therefore quite complex, and I am sure my noble friend will appreciate that we need to get this right. However, let me assure him that we have listened very carefully to the debate and the representations made to us, and that we will continue to work with all relevant parties to find a solution. I also wish to reiterate our commitment to bring forward a suitable legislative change at the earliest possible opportunity. I hope that with those assurances my noble friend will feel able to withdraw his amendment.

[Lord Clement-Jones]

My Lords, I thank the Minister for his response. I also thank all noble Lords and noble Baronesses who have spoken in the debate. I should at the outset have declared an interest as chairman of the council of the School of Pharmacy. My noble friend the Minister has pointed out, quite rightly, that the amendment as drafted only covers the pharmacy profession. He has also pointed out a point picked up by almost all the speakers in the debate, namely that the essence of the provision is the ability to admit and correct error, which is vital in these circumstances.

I welcome very much the forensic way in which the Minister responded to the amendment. I did not think that it was the kind of amendment that would cause Ministers to throw their hands up in the air and say, “Wonderful! We will put this in the Bill”. It needs refining. One of the key issues is that it currently only relates to retail pharmacy. Obviously, it should cover hospital pharmacy as well. There are also issues about Sections 58 and 85 in Northern Ireland.

The Minister has assured us that he has listened very carefully and that he intends to legislate at the earliest possible opportunity. That phrase was very carefully chosen, I am sure, as my noble friend always chooses his words extremely carefully. If the Minister would indicate that, if humanly possible, this will be inserted either on Report or at Third Reading—as the Bill provides a very good opportunity to include reform—I think that the pharmacy profession and others which, as he said, are subject to this kind of disproportionate criminal liability will be extremely happy. I am sure that they would be very grateful to the noble Lord if he could make sure that that was the case. The Minister is not indicating that he is going to say anything further—but maybe he will.

[Earl Howe]

My Lords, let me simply say that my noble friend’s exhortation has been very firmly registered.

[Lord Clement-Jones]

My Lords, the Minister chooses an even more felicitous phrase. I thank him, and I look forward to further progress during the course of this Bill. In the mean time, I beg leave to withdraw the amendment.