NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Earl Howe Excerpts

Tuesday 5th February 2013 Lords Chamber

[Baroness Cumberlege]

My Lords, I suspect that my noble friend has got the message now that we are not totally enamoured of these regulations. I think back to when we had the White Paper, which was published in July 2010. I remember, as my noble friend Lady Jolly has said, how excited I was then by the fact that in local Healthwatch we were to have an organisation that really would be the collective voice of patients. There was a mechanism so that it would have a very strong infrastructure at the local level.

So far so good, but throughout the passage of the Bill Members of your Lordships’ House fought strongly to get that policy enacted. We were given assurances, as noble Lords have said, and they were given in good faith. Yet now we have the regulations in this statutory instrument, we are not only disappointed but deeply concerned. I share the grave concern of the House’s Secondary Legislation Scrutiny Committee, which says that there is a very real possibility that local Healthwatch is in danger of being manipulated, but our concerns do not stop there.

The Government are right to want local people to have control of local Healthwatch but there is a genuine fear about it being subjected to such complex and draconian restrictions on what it will be able to say and do. It is not entirely clear to us what value local Healthwatch can add to the accountability framework of the NHS. This view is shared by Healthwatch England which, as the noble Lord, Lord Collins, has said, suggests that this could be dealt with by guidance. However, the trouble with guidance is that it does not have any statutory force. However, it could use its powers to sharpen the way in which local Healthwatch operates—as an independent champion through the trademark which all local Healthwatches must have and have to own. I have not given my noble friend any notice of this, but perhaps he might like to think about that and take it away.

Paragraph 36 of the regulations prohibits local Healthwatch from opposing or promoting changes to any national or EU law, any national policy, any policy by a local public authority—including both local authorities, the NHS or “any organ or agency” of either—and any planned or actual changes in any of these. In addition, it prohibits influencing,

“voters in relation to any election or referendum”.

These prohibited activities may be undertaken only if they are incidental to what could be called the core purpose of local Healthwatch—that is, giving people a say in local health and social care—unless that core purpose is incidental to the prohibited activities. This is mind-stretching. That seems to be something of a circular definition whereby X is allowed if it is incidental to Y, unless Y is incidental to X. This is pretty difficult. I have said that it is mind-stretching but I really fear that it will be unworkable. What is certain is that it will be incomprehensible to local people, who are expected to participate in local Healthwatch.

The impact of this provision is likely to have a chilling effect and to negate the aims of Healthwatch. Why should any committed volunteer get involved in local Healthwatch, giving freely of their time and energy to try to influence things for the better, if they risk being penalised for doing so?

I shall describe three situations to the Minister to test this with him, and I hope that he will reassure me on these points. First, say that there was a controversial policy to close an A&E department in order to save money. Would local Healthwatch be permitted to provide evidence to campaigners of how good the patient experiences had been at that threatened department? Would that be banned under Regulation 36 as the promotion of changes to a policy that a public authority proposes to adopt? If the Minister says no, how could local Healthwatch be confident that the local NHS decision-makers would share this view?

Secondly, could people who had been active in a national campaign to improve quality and accountability in the NHS be decision-makers in local Healthwatch? Would local Healthwatch have to avoid any connections to an organisation seen as intending,

“to affect public support for a political party”,

that was in power? Again, if the Minister says no, and decisions on such matters are to be delegated to local authorities, how could local Healthwatch be confident of that?

Thirdly, during a local election campaign, would local Healthwatch be subject to purdah, like democratically elected bodies such as local authorities or the Government themselves? Would that apply even if it discovered serious abuses of vulnerable people with learning disabilities in a residential home during this period? Such a discovery would not reflect well on the local authority commissioners, who are “an organ or agency” of local government under the regulations. Would the local Healthwatch have to keep such concerns secret or risk being penalised by that very same local authority?

The very fact that we have to ask these questions demonstrates that we do not have the right set of safeguards for the independence of local Healthwatch. The fact that local Healthwatch is funded and controlled by local authorities, which it is supposed to be scrutinising, is pretty uncomfortable. The added constraints of Regulation 36 threaten its freedom to speak and to act in the interests of patients and the population. These very complex restrictions seem designed to protect those in politics or in the provision of services who have something to hide. They impoverish the debate on health and social care, whether it is about controversial reconfigurations or a Baby P tragedy. Patients could not care less about politics and just want someone to speak up for them when they themselves cannot.

I urge my noble friend to consider modifying, redrafting or, if possible, removing these restrictions, or to find a mechanism to ensure that they are not implemented in the way that I have outlined and the way that I fear. To me, it is not clear whom they are really designed to protect, but I fear that it is certainly not patients.

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

My Lords, I thank the noble Lord, Lord Collins, for raising his concerns and other noble Lords for following in his footsteps in sometimes very trenchant terms. A number of concerns have been raised about these regulations during the course of the debate and I will now do my best to address them in turn. A number of noble Lords reminded us of the critical importance of lay involvement in local Healthwatch and questioned why the wording of the regulations does not therefore prohibit employees of a local authority or indeed of the NHS from taking roles in the leadership and governance of a local Healthwatch. Indeed, your Lordships’ scrutiny committee suggested that this might leave a local Healthwatch in some way vulnerable to manipulation or threaten its independence. That concern was picked up by one or two noble Lords. I can, I hope, provide reassurance on this. Indeed, I am sorry that despite the department’s clarificatory submission to the scrutiny committee, it still remains a source of concern.

We completely recognise the importance of local Healthwatch being truly local organisations that are led by local people and involve volunteers. That policy aim is reflected in the way the regulations are drafted. They impose explicit requirements relating to the involvement of lay persons and volunteers. Both those terms are defined. The definitions of “lay” and “volunteer” are designed to be as inclusive as possible. Essentially, they aim to cover those who wish to give up their time for something they feel passionately about to influence change and service improvement. In practice, very often lay people and volunteers are the same group of people, but we thought it important not to frame a definition in a way that would exclude other people who might not define themselves in precisely those terms. The definition should, and does, apply as much to those who have paid jobs but who wish to do their bit for the community in their spare time as to those who do not work or who are retired.

--- Later in debate ---

[Lord Harris of Haringey]

The noble Earl has been extraordinarily helpful in telling us what Regulation 36 is meant to mean. My first question is: why does it not say that, as opposed to producing a formulation? Your Lordships are used to this sort of stuff. If every noble Lord who has spoken in this debate apart from the noble Earl has found it difficult to follow, I find it difficult to see how people around the country are going to be able to interpret this with the clarity with which the noble Earl has provided us.

Secondly, the noble Earl then said what local Healthwatch organisations can do. He said that they can campaign provided it is evidence-based and draws upon the opinions of local people. Who is to decide that? Is it, for example, the local authority, which might not like the campaign that is being mounted? Is it then going to say, “Well, you are not actually speaking on behalf of the communities you claim to be”?

[Earl Howe]

The noble Lord’s first point is a fair one. I was coming on to address it as it is quite clear that at least part of the wording of these regulations has seemed complicated and unfathomable to many noble Lords. I have to acknowledge that that is the case.

To address the noble Lord’s other point, we are talking about the difference between being a genuine voice for local people and simply being an adjunct of a political party. Local Healthwatch organisations should not be swayed or influenced by the activities of any political party. They must act independently. The only influence that matters to them is that of local patients and the public in seeking ways to improve the quality of care for people.

In that sense, the regulations tie down a local Healthwatch no more and no less than any other social enterprise. The wording of the regulations has been constructed in a very similar manner to the wording applied to other social enterprises in regulations. Regulations 36(1) and (2), against which so many missiles have been hurled this evening, are designed simply to reflect the standard community benefit test.

[Lord Collins of Highbury]

My Lords, if I have read Healthwatch England’s briefing correctly, it says that social enterprises are being treated differently in this statutory instrument, particularly as regards the 50% that could be retained. Perhaps the Minister could clarify that.

[Earl Howe]

I am surprised to hear that. My understanding is that that is not so and that local Healthwatch, as a social enterprise, is being treated on the same footing. My advice is as any other, but if I am wrong about that, naturally I will write to apologise to the noble Lord and copy all speakers into my letter. As I have said, I completely understand that the wording of parts of these regulations appears complicated. In answer to the noble Lord, Lord Collins, I should say that for that reason I can commit to my officials working with Healthwatch England and the Local Government Association to publish clarificatory material on this.

Having said that, I was slightly surprised that the noble Lord, Lord Warner, cast aspersions on Regulation 41. He asked how small organisations could understand the requirements set out in it. The matters set out in Regulation 41 are matters to be included in local authority contracts with local Healthwatch. In fact, these are based largely on the existing regulations on LINks. I have to say that it has not been previously suggested to us that these have been difficult to understand or are disproportionate.

The noble Lord, Lord Collins, asked me who was consulted before the draft regulations were published and whether Healthwatch England was consulted. We consulted a range of stakeholders, including LINks, local authorities, voluntary and community organisations, NALM, Social Enterprise UK, the Charity Commission and providers on the issues relating to the drafting of the local Healthwatch regulations. That included the Healthwatch England interim team.

[Baroness Farrington of Ribbleton]

I have listened very carefully to the Minister, who I know is trying to be helpful to your Lordships’ House. But I still do not understand who exactly judges, in the cases to which he has referred, whether particular campaigns are appropriate, local or acceptable, or whether it would refer to anyone apart from those who may have a role in funding or developing policy to which Healthwatch may object.

[Earl Howe]

The activities of Healthwatch will be governed by a contract with the local authority. The local authority’s duty will be to hold the local Healthwatch to account according to that contract. If the local Healthwatch were to stray outside the boundaries that I have set out as to what a reasonable person would interpret as legitimate activities and stray into the territory of being a political party adjunct, it would be the duty of the local authority to make a judgment about that. It would be a matter of judgment, but it would be important for the local authority to make its views rapidly known to the local Healthwatch to ensure that it retained the role that it should have, which is a role that primarily involves community benefit. There are checks and balances in the system, and those responsibilities are held primarily by the local authority.

[Lord Warner]

I am sorry to interrupt the Minister, but I must follow up my noble friend’s comments. The noble Earl seems to be saying that if the local authority takes agin what a particular Healthwatch is doing locally, the local authority can say, “Hey guys, your contract’s up and we’re going to retender”.

[Earl Howe]

That is not what I am saying. As I said earlier, it will be important for a local Healthwatch in any campaigning or public statements to assure itself that it is truly representing local people and patients, and has the evidence to back that up. If it does, and if it can show that what it is saying is genuinely supported by local people, it has nothing to fear. It is only where the Healthwatch may latch on to one or other political party without reference to local people that it may be vulnerable.

[Baroness Farrington of Ribbleton]

I am sorry, my Lords, but the noble Earl is not answering the point about who makes the judgment. The noble Lord, Lord Greaves, and I have served on the same local authority. I can think of occasions when, had he or I joined Healthwatch and formed a campaign, it is quite possible that either he or I on the local authority could have taken a totally different view about what was happening. I want to know who the independent arbiter is of whether the local Healthwatch is actually doing something that it should not do, or something that the noble Lord, Lord Greaves, or I did not happen to like, because they are two very different things.

[Earl Howe]

They are two different things, and I say to the noble Baroness that we are dealing here with a relationship that she may characterise as overly arm’s length. It is in the direct interests of a local authority to make sure that it has a good, thriving relationship with its local Healthwatch but that it is not tarnished by party political considerations that are irrelevant to the concerns of local people. The very fact that a local Healthwatch comes out with a political statement is not to damn its activity. What makes it vulnerable is if that local Healthwatch cannot show that it is truly representing local people as it speaks out. That is a matter of evidence and of fact.

The independent arbitration that the noble Baroness talks about should not be necessary. The matter could, in the final analysis, be decided in a court, although one hopes that that would never happen. However, in the end, the local authority has to exercise its judgment, and in doing so has to act reasonably and in good faith as a public authority. If it does not, it is acting unlawfully. I hope that that is of help to the noble Baroness.

I was asked a number of other questions by my noble friends Lady Jolly and Lady Cumberlege. My noble friend Lady Cumberlege asked me whether, if there were a controversial policy, say, to close an A&E department, a local Healthwatch would be permitted to provide evidence about patient experiences to campaigners on that issue. Yes. In that scenario, we would envisage a local Healthwatch taking those very views and evidence of good standards of service directly to the commissioners or decision-makers. A local Healthwatch can also make a referral to the health scrutiny function of the local authority, which would be required to keep a local Healthwatch informed of any action taken. If a local Healthwatch thought, as part of its Section 221 activities—patients’ public involvement activities—that local people need to know what their community’s experience of its A&E is, we would certainly expect the local Healthwatch to be transparent and make that evidence known.

My noble friend asked whether people who had been active in a national campaign could be decision-makers in local Healthwatch organisations. The regulations do not set out membership of a local Healthwatch, so it will be down to the local Healthwatch to decide whether such people can add value to the outcomes that it wishes to achieve for its local people. Local Healthwatch has to be different; it has to build up its reputation and credibility in order to secure the public’s confidence that it can have a mature relationship with local authorities, which was the point that I made just now. The regulations seek to ensure that local Healthwatch does not carry out the relevant political activities as its only or main activity. That would not meet the community benefit test.

Would local Healthwatch be subject to purdah? No, it would not. I repeat that it has been set up to be the local consumer champion, and as such its role becomes very important in getting people’s serious concerns listened to and acted upon.

My noble friend Lady Jolly asked me several questions. She expressed the fear that the regulations would render local Healthwatch a mere proxy voice. I emphasise to her in the strongest terms that that is not so. As I have explained, we have sought through the regulations to be as inclusive as possible of people who may wish to give up their time to do what they feel passionately about doing. To be frank, LINks, which is the arrangement that we have at the moment, have all too often been associated with white, middle-class men, and we need local Healthwatch to embrace diversity much better.

Could the manager of a care home sit on its local Healthwatch? Yes, he or she could get involved in their local Healthwatch, but it would be good practice for the Healthwatch in its governance arrangements to have procedures for a code of conduct, and, as set out in Regulation 40, it would be required to have and publish procedures before making any relevant decisions. That is essentially about transparency.

Could a local profit-making provider of primary care be a local Healthwatch contractor, and could its manager sit on the local Healthwatch decision-making group? Again, it would be up to the local Healthwatch whom it wishes to contract with for their expertise to help it deliver its statutory activities.

On the role of local Healthwatch to provide information and signpost people to choices, the decision rests with that individual seeking out the options available to them. We would expect local authorities’ arrangements with local Healthwatch to be robust so that it acts effectively. The local authority will be under a duty to seek to ensure that the arrangements are operating effectively and provide value for money.

My noble friend suggested that the department’s interpretation of lay involvement boils down simply to the foot soldier role. I do not agree. It would be a wrong picture to paint to the public about how a local Healthwatch discharged its obligations. The obligations are quite clear. Engagement, consultation and participation are all words that can be used to describe different types of involvement activity. Referring to “involvement” therefore provides for flexibility, as I indicated earlier.

Could the decisions listed in Regulation 40(2) be made by a decision-making body within a local Healthwatch composed of a majority of people who happen to be health or social care managers? No. Regulation 40(2) must be read with Regulations 40(3), 40(4) and 40(1)(a). The requirement to be imposed on local Healthwatch in the contracts is to have and publish a procedure for involving lay persons or volunteers in such decisions. As stated in the advice to the Secondary Legislation Scrutiny Committee, the plain provision of information would not in most cases comply with the obligation to involve; the involvement has to be in the making of the decisions.

I hope that I have covered satisfactorily all the questions put to me, and I hope that the noble Lord, Lord Collins, will be sufficiently reassured to withdraw his Motion.

[Lord Collins of Highbury]

I thank all noble Lords and particularly my noble friends for their comments. I also express my appreciation to the noble Baronesses, Lady Jolly and Lady Cumberlege, who drew attention to some fundamental issues here. They are fundamental in relation to the conflicts of interests, particularly in local authorities. The noble Baroness, Lady Cumberlege, referred to the draconian restrictions and reminded us that guidance does not have statutory force. Here I take the words of Healthwatch England: the Department of Health could and should have done better with these regulations. In my opinion, they have failed. I am afraid that the Minister has not given me satisfactory reassurances, certainly not in relation to the issues that the noble Baronesses, Lady Jolly and Lady Cumberlege, raised. In the light of that, and of the briefing we had from Healthwatch England itself, it is important that the department should think again. The only way I can do that is to ensure that we pass this Motion of Regret, and therefore I would like to test the opinion of the House.