Health and Social Care Bill

Earl of Listowel Excerpts

Tuesday 25th October 2011 Lords Chamber

[Baroness Morgan of Drefelin]

My Lords, there is nothing like suggesting to a House of Lords Committee that we move on to encourage one to stand up and contribute.

The noble Baroness, Lady Thornton, mentioned the debate that took place at the start of the Committee stage of the Apprenticeships, Skills, Children and Learning Bill, now an Act, in 2009. I remember sitting behind the Dispatch Box next to my then noble friend Lord Young listening to the noble Lord, Lord Hunt of Wirral, make a very convincing case for the Opposition on the need to set out a clear definition of apprenticeships and the importance of a well thought through, principled preamble. I remember listening to my noble friend take the Committee through a detailed and well argued explanation of how all those issues were carefully covered throughout the very long Bill. However, both Her Majesty's Opposition and the Liberal Democrats were united in saying that they needed to be stated clearly at the start of the Bill. They won the day and there that statement is in the apprenticeships Act.

When I saw the amendment of the noble Baroness, Lady Thornton, it made me think about all the important legislation of the past, and it led me to the Children Act 1989, which I am sure the Government are still very proud of. An important aspect of that Act is the principle of paramountcy, whereby the interests of the child are paramount in any decisions taken about their health and welfare.

Listening to debates on this Bill, I have felt genuine concern about how we resolve issues around conflict of interest. The relationship between a health professional —a doctor, nurse or physiotherapist, but principally a doctor—and their patient is based on an extremely high level of trust and is one of the cornerstones of our NHS, and I was wondering how the importance of that trust and that relationship could be incorporated in some principles. Have the Minister or the noble Baroness, Lady Thornton, thought about whether it would be appropriate to have a principle under which the needs and interests of the patient should be paramount when decisions are made about them? Obviously, there are a lot of ways of thinking about that from a legal perspective, but it is something that we need to be very concerned about. How is the conflict of interest to be carefully managed where a GP refers a patient to a service that they own and profit from? How can patients—whether as individuals or a population—be absolutely sure of the decisions being made about them, at every level throughout the system, including commissioning? It is very important that we think about the principles underpinning the health service. This is a very important debate.

[The Earl of Listowel]

My Lords, I am most grateful to the noble Baroness for this debate on the primacy of patient care. It is very important. All noble Lords may well agree that this is fundamental, so I hope they will forgive me if I raise one concern with the Minister, which has been raised by people who practise in the NHS. The constant changes to the National Health Service over many years, particularly in England, have undermined, to some degree, our efforts to deliver the best to our patients. It is something I am familiar with from speaking to child mental health professionals in the past. They have complained that constant change undermines their ability to make relationships with other professionals work effectively around the child. Also, they get to know a commissioner who then changes. It is a different area, but social workers have also raised with me the issue of local authority changes. I remember speaking to a local authority social worker on a Friday evening who was despairing at yet another structural change to social service provision within the local authority.

In its briefing to Members of your Lordships’ House on the Bill, the Nuffield Foundation also expressed concern at the constant changes to the NHS and the short horizons. One Secretary of State may make changes but then a new Government arrive and there is another upheaval. I recognise what the noble Baroness, Lady Williams, says: flexibility and changes are needed, but my sense from speaking to the professionals and expert think tanks is that there has been too much change over a continual period. This was reinforced in the briefing that the presidents of the royal colleges gave to Members of your Lordships’ House this week, in which the president of the Royal College of General Practitioners finished with a very powerful plea: “Please, give us some stability; please stop changing the NHS”. She particularly alluded to the experience in Scotland. If I remember correctly, she said that for about the same investment Scotland has better productivity. She lays this at the door of the fact that over several years there has been some stability within the health service there. I take this opportunity to ask the Minister whether, in future, he will keep in mind the need to allow important changes to bed down. Perhaps we could build a bit more of a consensus on what needs to be done, recruit and retain the best professionals on the ground and allow them to evolve the best practices. Then we will see better outcomes for our patients, with a similar input.

[Lord Mawhinney]

My Lords, the noble Lord, Lord Hennessey, started by reminding us that preambles have somewhat gone out of fashion. Personally, that does not bother me one way or the other: if there is value in a preamble, we ought to get serious about that value, whether or not it is a common occurrence. However, I want very gently to take issue with the noble Baronesses, Lady Williams and Lady Jolly. I do not think we should be rushing on; this amendment requires serious consideration, not least because it is headed:

“Principles of the Health Service in England”.

I have been in this place, at both ends, for long enough to know that if we nod this preamble through so that we can get on to the meat of the Bill, for 10 or 20 days in Committee, or whatever it takes, noble Members will keep reverting to the fact that we have already established the principles in the preamble and that will determine how we should proceed. That is not helpful, certainly not if we have nodded this through as a “God, motherhood and apple pie” type of procedure.

I was struck by the introductory comments of the noble Baroness, Lady Thornton. I liked her phrase “borrowed and blue”—that was very imaginative. Whether it was meant to detract or distract from the substance of the words we will never know, because she did not spend much time talking about the substance of the words. However, I put it to her: how can you have a principle when the person who is moving it says, “I am a bit worried about the words ‘not the market’ but, hey, we all know what it means”? The truth is that we do not know what it means and I hope that the noble Baroness, Lady Williams, will not take it amiss if I say that if this is borrowed from a motion to a Lib Dem conference, we are probably even less likely to understand what it means. We cannot have a principle when nobody knows what its words are actually saying, including the noble Baroness who moved them.

Proposed new subsection (3) talks about:

“The primacy of patient care”.

I am an extremely privileged individual: I have served in this building for 32 years, as a Health Minister for a few of those years. No matter who is in government and who is in opposition, I have never heard anybody promote a proposal on the health service that is not predicated on the words “the primacy of patient care”. It is one of those phrases that we all use to reassure everybody, particularly those who do not agree with us, that actually, deep down, we are all right when it comes to the NHS. I have done it; I see others in this Chamber who have done it in my hearing, and I say to the noble Baroness, Lady Thornton, that I do not know what it means as a principle. It has to have some meat attached to it to have any substance, which it does not.

Since I have taken issue with the noble Baroness, Lady Williams, let me now agree with her comment about the reference to structure. I can hear us nodding this through and then saying, when we get into the meat of the Bill, “Of course, we have already dealt with the principle that the structure must not be changed, so we cannot have this particular amendment and we cannot pursue this particular idea. Let us move on”. Therefore, I have serious reservations about this; not the principle of a preamble, but the substance of what it is we are being asked to accept and the lack of clarity in the amendment. My concern is that this lack of clarity will then be used, unhelpfully, to shape our detailed consideration of the Bill when we get to the principles and the meat—to which I look forward.

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This is not an internal market. It is an external market. If we do not, in this House, start to dismantle some aspects of it and see some merits in the structure of the health service as it currently is—economic merits, benefits of having the strength to use your market power as a large purchaser—then, in my view, we will not only destroy the National Health Service, but we will make health care in this country a great deal more expensive than it currently is. You have only to look at the percentage of GDP which the United States spends on overall healthcare and the return it gets, and then compare that with this country, to realise that we have a jewel which we are in great danger of throwing away.

[The Earl of Listowel]

Is the noble Lord aware of the report commissioned by the Government and published last year, led by Sir Philip Green, which looked at improving government efficiency? He argued very strongly for improved procurement practices and, in particular, for using the collective strength of all government departments together to improve procurement, perhaps appointing two or three very senior civil servants to procure this. Does the noble Lord recall that, and does that not support what he has been saying?

[Lord Phillips of Sudbury]

My Lords, I shall not detain you long. I cannot resist—given that the noble Lord, Lord Owen, was in reminiscing mood—recollecting that my Welsh father was personally appointed by Aneurin Bevan to be responsible for the inauguration of the health service in what was then the county of West Suffolk. My infancy was taken up with traipsing around hospitals and surgeries in his wake. I am as totally committed to the National Health Service as any man or woman on earth. Indeed, one of my daughters was admitted last night as an emergency patient to an NHS hospital.

Perhaps I may echo the words of the noble and learned Lord, Lord Mackay of Clashfern, because I think that he spoke from great experience and with great wisdom. I am sorry that that flies in the face of what the noble Baroness, Lady Thornton, said, in what was one of the most radical charm offensives towards these Benches in the history of charm offensives. However, as others have said, the notion of incorporating resolutions of party political conferences into legislation is a short road to legislative anarchy. I want to make two points in relation to that.

First, I absolutely concede that an upfront statement of principles makes legislation more comprehensible and more friendly to the layperson. I do not deny that for a second, and that very much draws me to such a statement. But then one comes to the hard, unaccommodating realities of construing statutes. We already have here a Bill of 445 pages, with at least that number of pages to come in secondary legislation, with—as I counted the other night—DHS documentation in support of the Bill in excess of 1,000 pages. I put it to the noble Baroness that principles, however well drafted, may give even more room for manoeuvre and obfuscation to my profession. There is room enough already in this Bill.

If noble Lords do not know what I am talking about, I offer an example. There is no reference in the amendment as drafted to an absolutely fundamental principle of this Bill, which is the subject of an amendment in the name of the noble Baroness, Lady Finlay, the noble Lord, Lord Kakkar, and myself—namely equality of clinical treatment and care for NHS patients with private patients. That is but one example of an omission in the present statement of principles. I am sure that many Lords in other parts of the House could say, “What about this?” or “What about that?”. We could argue until the cows come home. All the while, as the noble and learned Lord, Lord Mackay of Clashfern, reminded us, we have that historic, catholic and satisfactory statement in the 1946 Act of what it is all about. Therefore, I add my voice, with a degree of reluctance, to the voices of those who feel that the amendment, although good in intention, might not achieve its purpose but sow inadvertent mischief.

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[Lord Alderdice]

My Lords, as I say, I understand the sentiments that the noble Baroness is trying to convey, but one has to be careful about generalising from one’s own experience, which might not necessarily fit everywhere. For example, a noble Lord said earlier that in a lifetime of clinical work, only a couple of patients had ever said that they did not want a trainee sitting in. I am afraid that psychiatry and the psychological services are a wholly different ball game. Whenever we were setting up for trainees, we had to warn them in advance that one in every three patients would not allow them to sit in on an assessment because of its personal nature. When you are living in a smallish community, as mine is, where people know people who know people, these things are much more of an issue.

It you make demands of some of the NGOs and smaller community services—demands that may be completely appropriate in a larger setting such as hospice care—that is quite a different thing. I accept absolutely what the noble Baroness is saying, but please let us not make a rule for everybody which may detract from some provision that is entirely appropriate.

[The Earl of Listowel]

My Lords, I am reminded by this debate of my experience 10 years ago when visiting a hostel for young drug abusers in Kings Cross and speaking with the mental health nurse there. She said, “I was placed here nine months ago with three other mental health nurses. We were given no support and I am the last mental health nurse working with these very needy young men”. She was doing an immensely important and demanding job. I do not know if she was not getting her line supervision from the NHS, although I imagine she should have been. I know that there is a concern that when health professionals are placed away from the mainstream of the NHS, they do not necessarily get the support they need. One issue that I would like some clarification on, perhaps in a letter, is that of continuing professional development and the supervision of professionals even when they are working in outreach services. When they are away from the mainstream health service, they should still be getting the proper supervision and support they need.

I said at Second Reading that one cannot legislate for the NHS to care for patients, but what one can do is nurture the people who work in the health service—the doctors, nurses and physiotherapists. One can give them the best training and the best ongoing support so that they are capable of caring and being considerate. What was happening with the mental health nurse I mentioned was that she was caring in the most adverse circumstances. She had everything stacked against her. She said, “We just did not get the support. It was not thought that we needed support to do this important work”.

Concerns have been raised about future pressures on the training and development of healthcare professionals. There is also the Nicholson challenge: a lot of money has to be shaved in a short time. There is concern about fragmentation. As my noble friend Lord Kakkar said, training is an expensive process and costs professionals’ time. It might be helpful to consider for a moment what has happened in the social work arena over the past 20 years or so. One has seen a lowering of the thresholds of entry into the social work profession and a diminution in quality. Many good people are working extremely hard, but it is widely recognised that there has been a diminution in quality. I am thinking particularly of child and family social workers. They have to assess a family and decide whether a child stays in the family or is removed, a decision that will quite probably have consequences for the rest of that child’s life. But the thresholds have been lowered so far that, until recently, one could get on to a social work course with two Ds at A-level. Current social workers talk about “old school social workers” who knew the law and were methodical in their approach, and how they regret their passing.

I am grateful that this amendment has been tabled and it is right that it has been given such priority. There must be no diminution. Indeed, we must strive to improve training and support for the development of our care professionals. A particular area of concern has been that of psychiatry. We have had difficulty recruiting sufficient psychiatrists, and I understand that nowadays most psychiatrists do not have English as their first language, which is a matter of concern. I would cite the area of child mental health professionals as well. I know that the Royal College of Psychiatrists has been working hard on this, but I wanted to light this up as an area of concern.

Finally, I recently visited midwives working in a hospital in central London. I was advised that they received only one supervision session per annum. That seems an extremely poor amount of supervision. Normally in the health service it is provided every one to two months. Supervision sessions provide an opportunity to discuss, among other things, the continuing professional development needs of practitioners. I may have misunderstood the position and there may be some other context for midwives, but I would be grateful if the Minister could write to me with a bit more information about how midwives are given the continuing professional development they need.

I look forward to the Minister’s response. This is a tremendously important debate that is key to ensuring that, in the future, patients in the NHS get the quality of care they deserve.

[Lord Cotter]

My Lords, like others, I should declare an interest. My father was a GP and my wife an occupational therapist. I have taken an interest in the NHS for the past 12 years in Parliament, but I feel more intimidated than the noble Lord, Lord Mawhinney, for good reason. However, I see great merit in Amendment 2 and the other amendments in the group. As many colleagues have said in their speeches, there is a big issue here that needs to be addressed in a specific way. To be specific, at Second Reading I raised the issue of healthcare assistants. A concern has been expressed to me by others—and I read in the newspapers—that a voluntary code for healthcare assistants may just not be enough.

This morning I was speaking to a nurse and she made a very clear point. She said: “We are directing healthcare assistants in nursing and we give them the jobs to do but I do have a concern that if they do not have sufficient training they may carry out the job I have given them not particularly well and that is a responsibility which goes back upon my shoulders.”. To quote from the papers,

“It is amazing that healthcare assistants, caring for patients in uniforms indistinguishable from nurses, are completely unregistered”—

That may not be quite correct, I do not know—

“and can start work with as little as an hour’s training”.

I have highlighted this issue for later in the Bill. I hope the Minister will consider this and have time to look at it at a later stage.

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[Lord Hunt of Kings Heath]

I return to my noble friend Lord Warner’s intervention. In the case that he mentioned, it was I who was summoned before the Health Select Committee to explain what we were going to do about the problem. We intervened and told the SHAs that they jolly well had to sort this out. I do not see, under the arrangement that he is proposing, who on earth is going to be able to intervene.

As the noble Lord, Lord Owen, suggested, I suspect that an intervention against Health Education England will be very rare indeed, in terms of being able to be comprehensively assured that HEE had failed in its duty. Indeed, there is surely a risk that if you have a narrow quango, such as HEE, solely concerned with education and training, it will not be concerned about resource issues or about the duty of the Secretary of State to promote or assure a comprehensive health service; only the Secretary of State himself can come to conclusions about the overall direction of the health service; only the Secretary of State can balance the conflicting demands of education, service provision and resources. There is a great danger of seeking to push all these responsibilities offshore, because when trouble comes—and trouble will come—it will be the Secretary of State whom the public and Parliament will expect to intervene. At the moment, I cannot see how, under this system, if things go wrong, they are to be put right.

[The Earl of Listowel]

I take the noble Lord’s point, but I also think of the case of the Youth Justice Board, which has been a very successful non-departmental body and has improved outcomes for young people in the criminal justice system significantly. There has been concern from the Secretary of State responsible for criminal justice about the accountability of the Youth Justice Board, which is shortly to be wound up—well, depending on the views of your Lordships. The virtue of the Youth Justice Board is that it is a great centre of expertise in the area of youth justice. Its chair and board have great experience: one member of the board is a judge in the youth court, another is the chief executive of a children’s charity. The point is that there is great virtue in distancing the Secretary of State to some degree—for instance, the education, perhaps, of health professionals—and giving it, if the board is chosen well, to people of the right calibre.

The other side of that is that sometimes the Secretary of State will intervene too often and detrimentally to the education of health professionals. In fact, vesting authority in a board which is well chosen and has the full support of health professionals and keeping the intervention of the Secretary of State to the minimum may ensure better continuity in the education and training of the workforce and better outcomes.

[Lord Hunt of Kings Heath]

My Lords, surely there is a very great difference between the Youth Justice Board, the abolition of which is greatly to be regretted, and Health Education England. The Youth Justice Board has to embrace the whole of the responsibility for youth justice. What the noble Earl, Lord Howe, is suggesting with Health Education England is establishing a quango which will have a very narrow focus on education and training. The Youth Justice Board is concerned with that, but is also concerned with the provision of custodial places within our prison system. That is very different.

[The Earl of Listowel]

I thank the noble Lord. I can see the difference and I thank him for that helpful correction.

[Baroness Finlay of Llandaff]

Before the Minister resumes his speech—I am sorry to do this, but I would like clarification. From what he has said, I understood that under this amendment the Secretary of State will not have a comprehensive duty, so that if Health Education England finds that the National Commissioning Board and the clinical commissioning groups are not making provision for education within the commissioning process that they set in place, the appeal would not go to the Secretary of State. I am not sure who the educational providers would appeal to if Health Education England found that it could not function because the commissioning process was not allowing for education.