Health and Care Bill

Earl of Kinnoull Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

If we get this right, we can disrupt the pathway from first fracture through to devastating hip fracture, preserving people’s independence and making Britain a safer place in which to grow old. I hope that this amendment will find support on all sides of the Committee and, indeed, from the Government. I beg to move.

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

My Lords, the noble Baroness, Lady Masham of Ilton, is taking part remotely. I invite her to speak now.

[Baroness Masham of Ilton (CB) [V]]

My Lords, I have put my name to Amendment 50 and will speak also to Amendment 57. I am a member of the All-Party Parliamentary Group on Osteoporosis and Bone Health. I thank the noble Lord, Lord Black of Brentwood, for leading on this cross-party amendment.

Osteoporosis is a condition which can cause much pain and debilitation to many people, mainly women. Prevention is important and this is a condition which needs treating by a fracture liaison service. This service should be available to and in easy reach of patients who can be frail and elderly and whose bones can be easily fractured.

I would like to bring to your Lordships’ attention the case of the local hospital which serves the north part of North Yorkshire, a very rural area: the Friarage Hospital, Northallerton, which, sadly, over the years has been downgraded. It used to have an excellent orthopaedic unit; the senior consultant was a brilliant surgeon who unfortunately had to go back to South Africa. He was the brightest and the best. The health service needs leaders, and both staff and patients need up-to-date equipment for satisfactory outcomes. Now there is a visiting consultant, who wanted a DEXA scanner to save his patients the long journey to James Cook University Hospital in Middlesbrough. Many of the patients are elderly and frail. Transport can be a problem. The consultant did not get his DEXA scanner, which diagnoses osteoporosis. I thank the Minister for looking into this case after I tabled a Parliamentary Question.

The problem is upgrading with new equipment. This generally goes to the large hospitals. Women’s orthopaedic wards always seem to have to fight for what they need. A good fracture liaison service, which patients can reach, helps prevention of ill health and without doubt has benefits for everyone, especially the frail and elderly. If they are to be treated in an accessible clinic, near their homes, it must have the correct equipment and well-trained staff. I think it was Winston Churchill who said, “Give them the tools and they will do the job.” The big need at the moment is finding and retaining trained, dedicated, enthusiastic staff. They are the National Health Service’s biggest asset; without them, the job will not be done.

Amendment 57, in the name of the noble Lord, Lord Farmer, follows on well from Amendment 50, and I would like to say a few words on that amendment. It requires that

“health services are available in a community setting where possible, in order to improve access.”

At the moment, weekends are becoming very difficult in rural areas, such as the one where I live. From Friday afternoon to Monday, there is no GP service. On a Sunday, a young woman I know went with an eye infection to the nearest A&E department only to be told that it was not an emergency and she should wait and go to her GP. She did so and was given some eye drops, which were not the answer. When the eye infection worsened, she rang 111. They sent an email to the GP, as the infection had spread to both eyes. She was then sent to the eye clinic at the same hospital that had sent her away from A&E. She was off work for two weeks. Only if the correct treatments are available quickly can infections be treated and days off work saved.

The correct antibiotics for infections are so important to stop resistance to drugs. We also need a first-class pathology service, with test results coming back quickly. I do not think the public always realise what an important job these services do. I hope the failing health service in rural areas can be revived, where it is desirable to have a service in the community near where people live. We need the specialist health services as well—which may be miles away from rare diseases, serious accidents and illness. Wherever the best treatment is, the relief of being treated by experts who know what they are doing is unbeatable.

Will the Minister agree that there is a lot to do to get the health service back on the road post Covid-19? We all want to see it thrive. Thank you.

Health and Care Bill

Earl of Kinnoull Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Sharkey (LD)]

My Lords, it is a pleasure to follow and to agree with the noble Baroness, Lady McIntosh. I will cover some of the same ground in my remarks.

I start by declaring my interests as chair of the Association of Medical Research Charities and of the Specialised Healthcare Alliance. The alliance campaigns on behalf of those 3.5 million of us who have rare or complex conditions. The members of the AMRC spend around £1.7 billion a year on medical research, mostly through universities in the United Kingdom. That is more than is spent by the Government via either the Medical Research Council or the National Institute for Health Research.

I will speak to Amendments 79 and 196 in my name and the names of the noble Lords, Lord Kakkar and Lord Patel, and the noble Baroness, Lady Blackwood. It is a privilege to have the support of such extremely distinguished and expert Members, and I am very grateful to them. The amendments also have the support of much of the medical research sector. Both amendments concern research within the NHS. This subject is a long-standing preoccupation of the medical research community, the NHS and the Government.

As long ago as 2011, the Academy of Medical Sciences published an influential paper setting out some key findings, prominent among which was the difficulty in attaining NHS permissions for research. In fact, this was identified as the single greatest barrier to health research. In 2017, the NHS and NIHR published a joint paper called 12 Actions to Support and Apply Research in the NHS. The NHS Long Term Plan, published in 2019, was generally received positively but actually had little to say about research. As your Lordships would expect, the NIHR did have something to say about research in its work of March last year, “Embedding a Research Culture”, which rehearsed the benefits of a research-intensive NHS. Three of the main actions called for were:

“Improving visibility and making research matter to the NHS … Making research more diverse and more relevant to the whole UK … Strengthening public, patient and service user involvement in research.”


These are obviously very important goals, but setting them out as clearly as the NIHR does makes it clear that the NHS’s performance in this vital area really does need improvement.

Also in March last year, the Government published a ministerial paper focused entirely on the delivery of UK clinical research. The paper set out the value of clinical research and our world-leading position. It made the assertion that

“research is the single most important way in which we improve our healthcare—by identifying new means to prevent, diagnose and treat disease.”

It concluded that that meant

“embedding clinical research at the heart of patient care and the NHS, making participation as easy as possible and ensuring all health and care staff feel empowered to support research.”

I strongly agree with both these assessments, and I am very glad to see them as firm policy goals. I welcome the clear and directive language and the signals of intent, which is why I was extremely disappointed to see such a very weak obligation as regards research in the Bill.

New Section 14Z40, inserted by Clause 20 on page 17, sets out what it describes as a duty in respect of research for ICBs. It simply says:

“Each integrated care board must, in the exercise of its functions, promote— (a) research on matters relevant to the health service, and (b) the use in the health service of evidence obtained from research.”


This is essentially the same kind of duty as imposed by the 2012 Act, and it is extraordinarily weak. The word “promote” is not really meaningful. What would satisfy this condition? Mere exhortation would probably qualify. Imposing a duty to actually do research would be much clearer, much simpler and more likely to have an effect. This would also be consistent with the Government’s view of the critical importance set out in the ministerial paper. That is what our Amendment 79 seeks to do. It is a “must actually do something” obligation rather than a “promote the doing of something” obligation. It requires that ICBs must ensure that those eligible organisations for which the ICB is responsible conduct research on matters relevant to improving patient outcomes and healthcare delivery and promote the use in health and care of evidence obtained by research.

The amendment has two additional parts. The first is to impose a requirement for ICBs to co-produce research aims with local place-based partnerships and to ensure diversity of participation. This acknowledges both the benefits and the necessity of place-centred research and close partnership in the production of research aims. The second additional part of our amendment is simply a requirement that the ICB publishes via its annual reports and joint forward plans the steps it has taken or plans to take to deliver clinical research.

Our Amendment 196 is also in this group. It deals with research directly in trusts and foundation trusts. As things stand, Schedule 4(16) of the 2006 Act says only that

“An NHS trust may undertake and commission research and make available staff and provide facilities for research by other persons.”


This is clearly permissive and not directive. Our Amendment 196 would remove this paragraph and replace it with a requirement for both trusts and foundation trusts to actually carry out research, as in Amendment 79. The amendment would also preserve, from the 2006 Act, making available staff and providing facilities for research by other persons.

I strongly believe that both amendments—all parts of them—are in keeping with the ministerial paper, Saving and Improving Lives: The Future of UK Clinical Research Delivery. I hope that the Minister will recognise the cross-party and not adversarial character of our proposals. We really agree with the Government about the paramount importance of research in the NHS—we just need to make it happen. I look forward to the Minister’s reply and to further discussions between now and Report.

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

The noble Lord, Lord Howarth of Newport, is participating remotely. I invite him to speak now.

[Lord Howarth of Newport (Lab) [V]]

My Lords, if, as I hope, the Bill will be amended to establish a quadruple aim for the NHS—the fourth aim being the reduction of health inequalities—then it will follow that we must have systematic research into the origins and remedies of health inequalities. In this connection, we need to understand options for using cultural, natural and community assets within the changing structures of health and social care, in particular at ICS level. Research should lead to better understanding the relationship of such assets to health inequalities, with a view to health systems mobilising those assets in prevention and intervention strategies, particularly to benefit people living with complex needs in deprived areas. The spectrum of research receiving public funding needs to run from laboratory-based clinical research to public health and community-level action research. The system needs to build capacity at that latter end of the spectrum, training and providing funding and opportunity for new cohorts of such researchers.

Let me give a few instances of the kind of down-to-earth research that needs to be funded. How are improvements to well-being, including staff well-being, to be measured, valued and integrated most effectively with policy at ICS level? More research is needed on the cost-effectiveness of community-based programmes. More research is needed on the cost and health benefits of the link worker model in social prescribing and on financial models for integrating community assets into health systems. Social prescribing needs to be underpinned by robust research on what we might call dosage. How much of such activities should be prescribed, and for how long, to bring about measurable behaviour changes and health outcomes? More evidence is required regarding the sustained, longitudinal effects of engaging in non-clinical programmes across specific health conditions such as cancer, stroke, dementias, diabetes and heart disease.

Such needs are being recognised by UKRI and, under its umbrella, the ESRC, the NERC, the MRC and the AHRC. What is also striking is the growing international interest and evidence base for this kind of research, as demonstrated by the World Health Organization scoping review by Daisy Fancourt and Saoirse Finn, entitled What is the Evidence on the Role of the Arts in Improving Health and Well-being?, and the establishment of the WHO Collaborating Centre for Arts & Health, based at University College London. The aims of this centre are to carry out world-class research into how the arts, culture and heritage affect mental and physical health; to work with world-leading researchers in the UK and internationally to develop and improve arts and health policy globally; and to provide training opportunities, toolkits and resources to support development in the field, including facilitating opportunities for early career researchers.

Health and Care Bill

Earl of Kinnoull Excerpts

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

[Baroness Thornton (Lab)]

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

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

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

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

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

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

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

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

[Baroness Brinton (LD) [V]]

My Lords, I too will be extremely brief on this, given the hour and the number of groups we have to go through.

I am very interested to hear the response of the Minister on this; it feels as though there has been a sort of gentle relaxation, and it would be good to understand the boundaries for foundation trusts around how much they can increase their income from private patients at exactly the time when we have a phenomenal NHS waiting list and people are becoming more seriously ill as a result of the pandemic and there are delays in getting their treatment.

I say this particularly in the light of two recent comments—as I will call them—by the Secretary of State for Health. One was about increasing the amount of contracting from the NHS to private hospitals to perform large numbers of investigations as part of the backlog, but this is becoming habit now in this exceptional time—we have bad flu winters as well, but this is an exceptional time. Perhaps slightly more worryingly, the other concerns proposals that were outlined, informally, by the Secretary of State a couple of days ago to change entirely the nature of contracts with GPs. I am concerned that some of the structures, particularly for foundation trusts, are being loosened without Parliament being aware. I look forward to the Minister’s response.

Health and Care Bill

Earl of Kinnoull Excerpts

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

[Lord Kamall (Con)]

My Lords, I will speak to two minor technical amendments, Amendments 232 and 312. These amendments, which are made to Clause 111, in relation to HSSIB, and Clause 136, in relation to international healthcare agreements, do not impact the policy of either clause. They simply amend the drafting so that references are made to an Assembly Bill rather than an Assembly Act in relation to Northern Ireland. I beg to move the first of these minor technical amendments, Amendment 232.

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

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I think now would be a convenient moment for her to speak.

[Baroness Brinton (LD) [V]]

My Lords, along with the noble Baroness, Lady Thornton, and other noble Lords, I was involved in the passage of the Bill that started off life as the Healthcare (International Arrangements) Bill, and which, by the time it was passed, had been renamed the Healthcare (European Economic Area and Switzerland Arrangements) Bill—a name almost as long as the Bill itself, and after some of the worst Henry VIII powers had been removed, including the power of Ministers to sign international trade agreements that could include preferential access to NHS contracts without the formal scrutiny and decision-making powers in Parliament.

The frustration with the remote arrangements is that I am speaking before my noble friend Lord Sharkey. I know that he will speak about the delegated powers in Clause 136. I wish I could hear his contribution before I speak, but I want to say that it seems the Government have forgotten, in nearly three years, the roasting that they got from your Lordships’ House during the passage of the Healthcare (International Arrangements) Bill. The noble Lord, Lord Wilson of Dinton, said:

“The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on.”—[Official Report, 12/3/19; col. 926.]


The then Health Minister, the noble Baroness, Lady Blackwood, when conceding on those Henry VIII powers later that day on Report, said:

“I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances … we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).”—[Official Report, 12/3/19; col. 963.]


One of the reasons that your Lordships’ House is so concerned is that it looks as if the provisions in that Bill are being resurrected in Clause 136 of this Bill. I will give two brief examples: “2 Healthcare agreements and payments” on page 110 of the Bill, among other clauses, gives the Secretary of State the powers to make a healthcare agreement with another country and for Parliament to only comment on it by the negative resolution. For those of us who worked on a previous Bill, that sounds horribly familiar. It also gives the Secretary of State the power to give directions to a person about the exercise of any function, which is familiar not only from that Bill but from other parts of this one.

In “2B, regulations under Section 2A: consent requirements” on page 112, it says at (5) that the consent of the Secretary of State is required for a

“healthcare agreement”

which means

“an agreement or other commitment between the UK and either a country or territory outside the UK or an international organisation, concerning health provided anywhere in the world”.

Any type of “agreement” or “commitment” brings us full circle back to the Healthcare (International Arrangements) Bill as first drafted. This would include international treaties, as was planned back in 2019, to include that access to providing major parts of healthcare in the NHS, but without the consent or knowledge of Parliament, because the detail of the agreement would not need be seen before it was signed, including by the NHS, its stakeholders and the staff who work in the sector.

Lest we think that this is just words, the Chancellor of the Exchequer and the Secretary of State for Health and Social Care have both talked extensively in America to healthcare providers in recent months. What is different about this clause is the breadth of definition of a healthcare agreement, the powers that are held only by the Secretary of State, and the total lack or paucity of consultation or scrutiny by Parliament and other stakeholders before the Bill came to your Lordships’ House.

Why has Clause 136 reinstated some of the key elements of the Healthcare (International Arrangements) Bill that were removed because Ministers recognised that the scope was too wide, the Henry VIII powers were egregious, and Parliament, the NHS and other stakeholders were being totally disregarded?

Should my noble friend Lord Sharkey wish to propose on Report that the clause do not stand part, I will support him.

--- Later in debate ---

[Lord Kamall (Con)]

My Lords, I will speak to Amendments 232A, 232B, and 234A to 234L in my name, made in relation to Clause 140. In the course of the detailed work on the operational guidance on charging reform in partnership with local authority representatives, it has become apparent that the existing legislative framework leads to unfair treatment of local authority-supported individuals in some areas and proffers incentives for self-funders in others. The intention of these amendments is to remove this. This applies even before this Bill, or whatever charging scheme we come up with, comes into effect.

Noble Lords may be aware that everyone who wants to meter towards a cap on personal care costs must have a needs assessment to ensure they have eligible needs. If there is a delay in the needs assessment through no fault of the person requiring care, they may wish or need to begin to pay for care before the local authority is able to intervene. At present, Clause 140 would enable self-funders to start metering from the point they request an independent personal budget, but the clause does not contain an equivalent provision for those whose needs are expected to be met by the local authority. These amendments will make the position the same for those whose needs are met by a local authority as for a self-funder, as well as clarifying that metering for those whose needs are being met by a local authority will be at the amount the local authority charges.

The amendments will also decouple how a local authority decides what meters towards a cap from the personal budget and independent personal budget. There are several practical benefits of this. Among the most important is ensuring that, having had an independent personal budget set by a local authority, nobody has a perverse incentive not to meet their needs. Without the amendments, somebody would meter the amount they are expected to spend set out in their independent personal budget even if they then purchased less care in order to save money.

The amendments also mean that any spending to meet agreed eligible care needs would meter towards a cap at the amount it would cost the local authority to meet those needs, where they are met by the local authority at the amount charged by it. This would happen even if it was omitted from the personal budget or independent personal budget for some reason.

Finally, there is an amendment to make a minor clarification of the circumstances in which an independent personal budget must be provided by a local authority and what the personal budget and independent personal budget must include.

I look forward to this debate and I am grateful to many noble Lords who, I am sure, wish to speak on this important matter.

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

My Lords, the noble Baronesses, Lady Brinton and Lady Campbell of Surbiton, will be speaking remotely. I invite the noble Baroness, Lady Brinton, to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I thank the Minister for introducing the large swathe of government amendments, trying to provide small changes to clarify and to remove unintended consequences of the current system. I will speak to Amendments 235, 236A and to Clause 140 standing part of the Bill.

Amendment 235 in the name of the noble Baroness, Lady Greengross, is an attempt to replicate and update the Dilnot cap. It is certainly better than the current system, and I think that many noble Lords across all parties in this House have said that it is a shame that the new system does not emulate Dilnot better. The amendment from the noble Lord, Lord Lipsey, reduces the rate at which those on low incomes lose benefits if they have assets above the means test threshold.

However, Clause 140 as a whole is a problem. It was added to the Bill later and was not considered by the Commons Bill Committee. Under Amendment 234, “persons entering the care system at or under the age of 40 will have their care costs capped at £0. This would apply to new applicants as well as existing care users who, while over the age of 40, have been accessing care and support since before the age of 40.” It is a huge form of injustice that we have an NHS that is free at the point of use and yet young people with learning disabilities and life-limiting health conditions are being charged for their essential care. One survey of respondents with disabilities in April last year found that 81% said that they had faced cuts in care packages or increased charges during the pandemic, with over half of them specifically reporting increased charges. The survey found that

“charges had forced people to stop care they needed or make difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.”

The National Audit Office reported on local government finance in the pandemic and found that 41% of councils with social care responsibility said that they needed to make “substantial” service savings to balance their budgets, including by increasing charges and further use of their reserves.

Mencap’s response to the national insurance levy was that

“we can’t see how the proposed cap on care costs will benefit people with a learning disability … People who need care are missing out, others are having their support cut and some are being asked to pay towards their care which they simply can't afford.”

Further, BBC research has found:

“Some adults with learning disabilities are paying thousands of pounds extra a year, with six councils doubling the amount of money collected in charges. In half of 83 areas that responded to a BBC request, bills across all users have risen at least 10% over two years.”


One example is Saskia Granville, who was shocked when, earlier this year, her care charges increased more than 400%, from £92 to £515 a month. She has a learning disability and lives in supported accommodation in Worthing, west Sussex, but fears the charges will curtail her independence. Some 94% of people with learning disabilities are not in work so they just cannot find that extra cash.

I look forward to hearing from the Minister how on earth he thinks that the current system is either justifiable or equitable. While there may be change trying to sort out some of the minor anomalies, what remains is a system that is deeply unjust. I hope that the Minister is able to consider both Amendments 235 and 236A. I remain to be convinced by the arrangements that he has outlined and if brought back at Report, I am likely to support Clause 140 not standing part of the Bill.