Health and Care Bill (Second sitting)

Edward Argar Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[Karin Smyth]

Q I hope that this is in scope, Mr McCabe. I have just come from the Chamber, where the Prime Minister is still on his feet. He talked about integrated care records, but I am not quite sure if we are discussing the same thing. This may not be news to you, Mr Madden, but could you clarify whether we are all talking about the same thing? I appreciate that you were not there to hear the Prime Minister, but is it your understanding that what we are hearing today about social care is the same as the conversation we have been having about integrated care records, personal care records and so on?

Simon Madden: Forgive me, but I will take full advantage of the fact that I was not there and have not seen the statement that the Prime Minister made. A feature of our plans set out in the data strategy—not so much in terms of the Bill itself—is for each integrated care system to have a basic shared care record, so that throughout their whole health and care journey a patient or citizen does not have to do simple things like repeat test results or repeat their prescriptions, and so that their care journey between health and social care, with provisions for safeguarding and safeguarding information, is seamless.

[The Minister for Health (Edward Argar)]

I will ask a couple of questions, if I may, Mr McCabe, and then perhaps the hon. Member for Nottingham North can come back in if we have time. Moving away from what has been explored by colleagues so far on the extremely important protections around data sharing and data use, can you set out how the changes set out in the Bill relate to and will help you deliver the data strategy that you have in place?

Simon Madden: It is important to set out that these provisions alone, while they do much within the Bill, must be seen in the context of that wider data strategy. They support our ambitions, and the integration and collaboration that is described in the Bill will be a huge enabler for the ambitions set out in the strategy itself.

The provisions themselves focus to some extent on tidying things up and providing a degree of clarification. I mentioned the provisions for clarifying NHS Digital powers: currently, there is sometimes confusion around what data NHS Digital can share and in what circumstances it can share it. Sometimes, that leads to problems when data may need to be shared for very good reasons—for justifiable reasons—but NHS Digital is sometimes not convinced that it has the legal power to be able to share the data. This puts beyond doubt its ability to share data appropriately.

Another provision is on information standards. We are making a provision in the Bill to mandate standards for the storage and collection of data. That is important to ensure that data can flow between different IT systems and organisational boundaries in the health and care system. That will then help individual patients and improve health outcomes. We want to ensure that providers of health and care services purchase only technology that adheres to that set of standards, so that we have that interoperability, and those improved outcomes for patients, through that mandation of information standards.

We have also put in clauses around sharing anonymous health and care information, which help to essentially set a duty to share anonymous information when it is legally permitted to do so. One of the lessons that we have learned over the pandemic has been that, although it is perfectly permissible for data to be shared—it is legally permissible to do so—the shift from “can” to “should” has a great impact within the system.

Our invoking of the control of patient information regulations under existing legislation, to enable that sharing of data and to say, “You should share data in these circumstances,” has significantly helped the free flow of data safely and securely within the health system. That has had an impact on patient care. I think that the duty to share anonymous data will help to put on a more permanent footing some of those provisions that we have seen during the pandemic.

[Edward Argar]

Q To what extent would you consider it a fair characterisation that this is, in a sense, evolutionary, and that, actually, to a large extent, the provisions related to data—to go back to what you said—add greater transparency and legal clarity around some things that may have had to happen during the pandemic, and give them a longer-term basis in statute, as debated by this place? Do feel entirely free to disagree with that characterisation, I hasten to add. I am not leading you in any way, but to what extent would you consider that to be a fair reflection of these provisions?

Simon Madden: I think it is a fair reflection, to a certain degree. I think that the thing that we must always be conscious of, particularly in the field of data and technology, is that we see advances but legislation often does not keep up with those advances. It is about ensuring that everyone understands their responsibilities—not just that the public understands the responsibilities of organisations that are safeguarding data, but that those organisations themselves have the right powers to be able to share data safely and securely. I think it is evolutionary in that sense, but it is also about making sure that the provisions in the Bill are keeping pace with the development of technology and how data is used in the real, modern world.

[Alex Norris]

Q I will ask two questions in finishing, if I may, Mr McCabe. The first is a final one on the GPDPR promise. Mr Madden, you said that that is a separate process to the one in part 2 of the Bill—which I completely agree with—but that in the public’s mind, the two are likely to be conflated, and that now would be a good moment to reset the relationship between people and their data. Again, I completely agree with that. Is there any technical reason why we could not run those two processes not as two but as one?

Simon Madden: I should perhaps caveat my previous comments by saying that they very much are, in our mind; it is all about health data. The focal point for us at the moment, which we are working through with Ministers, is the formulation of the final version of the data strategy. Of course, the legislative provisions are within the data strategy. It is very much the case that the publication of that document, I think, is the right moment for that reset where we have more intensified engagement with the public and we really step up the narrative around how health data is used. As one of your colleagues said, the real detail comes in regulations, if there are any regulations around that; and of course there would need to be consultation before the regulations were put in place.

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[Justin Madders]

Q On the Secretary of State’s powers of intervention on reconfigurations, is it your understanding that a local system could agree across the board that particular changes were necessary and actually that it was important for reasons of patient safety that those changes were made but that the Secretary of State could intervene at any time to stop them?

Matthew Taylor: Yes, unfortunately that is our understanding, and we think that it would be a retrograde step. It is not a power that I would want if I were a Secretary of State and I wanted to focus on strategic policy questions. I would not have advised the Secretary of State to want those powers.

Our view would be that we should remove the extension of the Secretary of State’s power entirely, but, failing that, we should put some guard rails on in relation to hearing the views of local health overview and scrutiny committees, getting local clinical advice on what is best and having a public interest test that should be passed. If those guard rails were in place, we could cope with this.

What we do not want is a chilling effect on the capacity of local leaders to make the decisions that they need to make to use their resources effectively. The third element of the triple mandate is the effective use of resources, and that involves making decisions at a whole variety of levels around how you configure services. If you feel you are going to go through that process and potentially engage local populations in difficult conversations, and then at the end of the day a local MP, for whatever reason, is going to kibosh that by appealing to the Secretary of State, why would you embark on the process in the first place? That is why, while we are very supportive of the Bill, as you have heard from both Saffron and me, we do think that the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.

Saffron Cordery: I wholeheartedly support what Matthew says, and it speaks to a point I made earlier about adding to existing structures in a way that really is not necessary. I notice that you have representatives from the Local Government Association as witnesses later on. I am pretty sure that they will have some strong views about what these measures do for the powers of local health overview and scrutiny committees, because they already have the power to refer to the Secretary of State should they need that to happen. The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.

[Edward Argar]

Q I have just a couple of questions, because a lot of the issues have been explored. My first one is something that we have not touched on yet in our questioning of witnesses. I welcome both your thoughts on the proposals in the Bill to delete and replace section 75 of the 2012 legislation, around procurement, and your reflections on the opportunities or challenges that that presents.

Saffron Cordery: As we see a change in the system, obviously the nature of how we have procured services in the past does have to change. It is obviously a complex area, but one of the things that we really need to look at is the effectiveness of the current contracting regime, which for certain parts of the provider sector in particular is incredibly burdensome. If you sit in a mental health or a community trust, you are subject to a whole host of retendering, which can have a potentially far-reaching impact on your trust’s sustainability or the future operation of key services. For many bits of the system, that will be very important.

The procurement regime is fundamental. It underpins how this will operate. We need to make sure that the elements of fairness are upheld and that it does not disproportionately put a burden on any one part of the system in particular.

[Edward Argar]

Matthew?

Matthew Taylor: I agree with that. It is important to remember that one of the goals of the Bill is to reduce the weight of bureaucracy in the system. If we can reduce the weight of bureaucracy as it applies to procurement, that is only a good thing.

[Edward Argar]

Q My second question—I think this has come through in what both of you have said, but feel free to challenge it when you answer if I have misrepresented what you have said—involves one of the key things I have detected, which is that we must be careful not to forget that no one size fits all in this context. Back in the dim and distant past when I was a councillor, I sat on a primary care trust board as a local authority representative, and I found that joint working could be highly effective, so what is the right balance? You have touched on this in some of your previous answers. Recognising that it is sometimes as much about relationships as about formal structures, what do you think is the right balance between permissive and prescriptive in what we are trying to do here? How do we strike that balance appropriately, and have we struck it appropriately?

Matthew Taylor: Of course, one of the most challenging questions in all parts of central Government is to get that balance right. The one point that I want to make is about the nature of system leadership. If you lead an organisation—I lead an organisation—the parameters of what you do are reasonably well defined and you lead that organisation as best you can, and you can be regulated as an organisation in relation to its objectives. The thing about system leadership is that it involves developing a concrete and specific account of how you want to add value in a particular local circumstance—how is it that, working as a system, you will make a difference?

By looking towards population health and engaging local people, that proposition will vary from place to place. It is important that, when we look at how systems work, we allow them to develop a value proposition that is specific to their local circumstances and their local needs. That is why, for example, we would be very resistant to any kind of Ofsted inspection regime for systems, because systems are not the same as hospitals or as schools; they are very different and their aspirations will be very different.

When you look at the Bill, the reality of central-local relations is that rules are set out in legislation, but then there is the custom and practice of how Departments and other bodies actually work. Sadly and inevitably, the drift of custom and practice tends to be towards centralisation. That is why it is important to avoid things in the Bill that create an opening—this is why we can have our concerns about reconfiguration—which can get ever wider and thus undermine the key principles that lie at the heart of the Bill. So we are happy with the intentions of the Bill, but we are worried that there are certain elements of it and certain elements that might be involved in the operationalising of it that could undermine its intentions.

[Edward Argar]

Thank you. Saffron?

Saffron Cordery: I go back to a point that I made earlier in this session, which is that this balance between permissiveness and prescriptiveness is critical. The August 2019 agreement, when all the stakeholders came together to look at how we might legislate for an integrated care system that got that balance right, I think is there. You have to remember that what sits around a set of proposals will have a massive impact on it, so the Secretary of State’s powers as we have seen them, and the operating environment overall, will have an impact on how these proposals will be implemented, and how effectively they will be implemented.

We cannot forget covid in this. We cannot forget the extreme financial pressures that we are seeing. We cannot forget demand. We cannot forget an incredibly tired workforce. That is not going to change any time soon; that is going to be for the next few years, so we are implementing something against that backdrop. But if we go back to the slightly lighter touch of the August 2019 proposals, we will probably get to a place that would hit the spot, as it were. I reiterate that we support collaboration in systems and the direction of travel.

[The Chair]

Given the time, we will leave it there. I thank our witnesses, Saffron Cordery and Matthew Taylor.

Examination of Witnesses

Ian Trenholm and Keith Conradi gave evidence.

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[The Chair]

Do have anything further you want to add? No. Minister.

[Edward Argar]

Q Thank you both for your evidence. I have one question for Mr Trenholm, two for Mr Conradi and then one for both of you, if I may, time permitting, Mr McCabe.

You will have heard in the evidence just before, Mr Trenholm, the comments by Matthew Taylor about the difference between assessing a system versus a provision. How do you see how the CQC would square that circle, because he highlighted the very different approaches and his reservations about some of that? How do you see that issue being resolved, or what would you like to see in that space?

Ian Trenholm: If I compare one large hospital with another large hospital as a comparison in terms of what we do now, one would argue that they are quite different enterprises, differently run and serving different communities. There are some common themes, but equally there are some differences. We built a methodology that was able to be applied to both of those very separate entities and to provide a common rating at the end of it.

I would see a version of that at a system level: there would be things that we would want to see that would be common and necessary— decent quality governance, for example—as well as a lot of things that many of you were raising as questions and concerns. But equally we want to see some evidence that the partnership board was cognisant of its local community and it was genuinely delivering a suite of services that its local community genuinely wanted and that was consistent with the needs of that community.

Over the next 18 months or so, we will be building our methodology in collaboration with the people who are also building the ICS boards and frameworks. I am hopeful that we can get to a point where we have a methodology that gives you, as parliamentarians, and local people the assurance that things are working well locally. However, it is not just about what is not working, but about looking for really good practice and looking to accelerate that. Previous people have made the point that doing things differently often leads to good practice and innovation, so how can we help accelerate that innovation through the work that we do. That is broadly how I see it working.

[Edward Argar]

Q Thank you. Mr Conradi, the first question is probably a relatively quick and simple one, but I will not prejudge your response. Given that the HSSIB aspects have been in preparation for quite some time—I am alluding to the work that Dr Whitford and other colleagues did some time ago—what would your view be on the appropriateness of getting this done and the timeliness of bringing these measures forward? I am asking a number of witnesses whether this is the right time to be doing what we are proposing. In the case of HSSIB, is it the right time?

Keith Conradi: Absolutely.

[Edward Argar]

Q I suspected that might be the answer, but I did not want to prejudge. My second question goes to a slightly knottier area, and one that you have already alluded to. I think you have said—by all means correct me if at any point I misinterpret what you have said—that ideally you would prefer the safe space to be as absolute as possible, given the nature of what you are seeking to do. There is, as we recognise in the Bill, a challenge about the specific statutory rights of coroners as members of the judiciary; I note what you have said about that. Would it be fair to say, first, that notwithstanding that, you would not want that safe space to be eroded further for other groups? I think you have been clear that you would prefer it not to be eroded at all, but you would not want its erosion to go further. The second element is this. Although you would prefer it to be preserved intact, do you think that if there is going to be that exception in the case of coroners, for example, the High Court is the right level of arbitration in something like that? I know you suggested that it might be.

Keith Conradi: I certainly think so. My previous experience in aviation is that we had a similar space, and only the High Court could overturn or order disclosure. It was used on a handful of occasions, and it produced very interesting debate. The balancing test—testing whether the benefits of the disclosure outweighed the adverse reaction that there might be to future investigations—was well argued in each of the cases. I think that is the appropriate place to do it.

[Edward Argar]

Q Thank you. My final question is to both of you. Your organisations are separate but key elements focused on patient safety and the safety of outcomes for individual patients. How do you see the work of your two organisations fitting together and complementing each other, while recognising that they are both very distinct?

Ian Trenholm: We do work at the moment in terms of registering and regulating individual providers, and we do that right across the country, so we have a picture of health and social care right across England. Part of the Bill will give us enhanced powers looking at the way in which individual systems and individual ICSs work. Our view is, if you like, a broad and moderately shallow view, whereas I think Keith’s team do more in the way of specific investigations. I am sure Keith can talk to that.

Keith Conradi: I would characterise the relationship as a healthy tension. We make very few recommendations to the CQC, but the vast majority of recommendations we make will, we hope, have an impact on the work that is going on across the system. The ideal people to have a look and see whether that is having an effect will be the CQC, from time to time, as it comes across things that have changed as a result of what we have done. I think the relationship works very well, in that respect.

[Edward Argar]

Thank you very much.

[The Chair]

Mary, did I see you trying to come in with another point?

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[The Chair]

I am going to go to the Minister now because of time.

[Edward Argar]

Q Good afternoon, Councillor and Professor. I have two or three questions; we will see how we do on time. I will get through as many as I can, and if I do not get through them all, I do not get through them all.

Back in the day, I served as a councillor and cabinet member for public health, adult social care and health, and worked very closely with my then local PCT, which probably shows you my vintage. One of the things that I found was that the structures were important, but the relationships and how it worked on the ground, and the ability to be flexible and build up the trust between the two organisations was more effective in getting better outcomes. We have heard from previous witnesses about the importance of local flexibility to adapt to local work arrangements and conditions. Do you think we are striking the right balance between being permissive in allowing that flexibility and not being too prescriptive, or do we need to go a little more in a different direction?

Professor Maggie Rae: In my experience, with the way that the ICS has been set up, we very much hope that we will not start from scratch again, because those organisations have been working on this agenda for quite some time. I think there would be cries of horror if we said, “We are going to throw out the work you’ve already done.” Many of them have been on this journey for a while, and the leaders in those systems have indeed made some good progress. I think it is a delicate balance.

I will not repeat the points I have already made about strengthening the links to public health and making sure that is not forgotten. We will have 600 public health people going back into the NHS, but we very specifically have not changed the legislation that put directors of public health in England into local government. Of course, directors of public health in the three devolved nations are currently in the NHS. If you do not give people flexibility, you run the risk of your system not working. If we ensure that the framework and assurance process are right, the legislation takes us part of the way, but we want some checks and balances in relation to those freedoms, to make sure that there is a basic minimum standard across the country. If you have an ICS that is not working with its local authority, that is not a level where the ICS should be signed off. The ICS should be asked to go and demonstrate the commitment that the flexibility has allowed them. There is a statement in the framework that was released a couple of months ago, which said that the directors of public health will have an official role on both boards. I found that a pretty good statement to have, but it is only a statement that is effective if there is some assurance that that can be delivered on, and there need to be some checks and balances in order to make sure that those kinds of things are not ignored. Because of the variety—some ICSs cater for 2 million or 3 million people, and some for 1 million—you need the flexibility. If you want them to own and deal with the problems of their population, having a little bit of flexibility is the right approach, provided that the minimum standards are met across the whole country.

[Edward Argar]

Q Thank you. Councillor Jamieson, I have seen that councils can often be at the forefront of leading innovation and driving change in a dynamic way. From the LGA’s perspective, do you think that we are striking the right balance between permissive and prescriptive, and is the approach to the ICP board and ICB an appropriate balance?

Cllr James Jamieson: From a legislative perspective, largely yes. I reiterate the point that I have made a couple of times already: the statutory and non-statutory guidelines will be critical in this area. We need to get them right and ensure that there is real embedded consultation. There are a couple of things that we are concerned about. I have not mentioned them yet, so I will use this opportunity to do so. One is the increase in the powers of the Secretary of State to call in NHS reconfiguration proposals and so forth, and the risk that that would undermine the existing local government influence, overview and scrutiny, so we would ask for a change to schedule 6 of the Bill in order to ensure that there is consultation at a local level before those powers are enacted.

The second area—it is probably not what you are asking about, but it is important that we raise it—is assurance around social care. It is good to have assurance around social care, but we need to make sure that that assurance is proportionate and is in context. Bearing in mind how stretched social care is from a financial perspective, it would be unreasonable to expect social care to do more than its budget allows it to do. In the same way, social care is also very dependent on the performance of the NHS, community care and so forth. We have some concerns around that assurance framework, which needs some work.

[Edward Argar]

Thank you, both. Mr McCabe, I am conscious of time and our programme motion, so I will pause there.

[The Chair]

Thank you, Minister. I thank both our witnesses for their evidence.

Examination of Witnesses

Eluned Morgan, Lyn Summers and Mari Williams gave evidence.

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[Alex Norris]

Q That is helpful, thanks. To change tack slightly, in 2016 the Welsh Government brought in legislation around safe staffing levels. Are you able to talk us through that and say, five years on, what impact that has had?

Eluned Morgan: This is in relation to nursing. We have a law on safe staffing levels in nursing. Not only has it been implemented, but it has been extended since we brought in that Bill. It is something that the Royal College of Nursing is hugely appreciative of, and something that we are keeping an eye on. It has made a difference to patient safety, and we in the Welsh Government take it very seriously.

[Edward Argar]

Q Good afternoon, Minister and colleagues. Thank you for your evidence and answers so far. By my reckoning, of the nine issues on which we had a discussion, we reached an agreement on seven. I think there are two outstanding, which are the ones you have highlighted in your evidence. I owe you an answer to your letter, but I think we are meeting shortly to further discuss that.

I want to pick up on something that colleagues have touched on and which you have highlighted around the model of integration in Wales—the unitary model, for want of a better way of putting it. I acknowledge that you said it was early days, but I would like to get a sense of how you feel that model is delivering a national system but allowing local flexibility, and of the extent to which it is delivering, even in its early days, improved health outcomes for patients in Wales. As we look at ICSs and closer working between local authorities and the NHS in England, it may be instructive for us to learn from your experience, even if it is not a direct parallel, and from what you are seeing, even in these early days.

Eluned Morgan: We had a parliamentary review that looked at our NHS and care system, and went into a lot of detail about what we could change. A lot of it was about the need to integrate—[Inaudible.] What we have done as a result is take an interim step towards better integration. We not only set up the legislative framework for that, but put significant funding into driving these health and care systems to work together. We had an integrated care fund and a transformation fund. We found that both the health service and the care service really liked the new approach. They really have engaged. We have kind of allowed a thousand flowers to bloom here, and there have been some really innovative ideas and work. How do we get people out of hospital quicker? How do we drive that change? There have been some great examples.

What we are still struggling with, if I am honest, is that we are still finding difficulty getting both the health service and the care service to understand that what they have changed and what works well now needs to be mainstreamed. There cannot be additional funding forever. The purpose of that additional funding was to give the confidence to do it in the mainstream. We are finding that they have pocketed that money, saying, “This is great. Can we have more, please?” We have tried to make it clear to them that that was never the idea. The idea was for them to have that transformation funding to drive change.

That is our next challenge, and that is what we are working on now, but there are ways of doing that. Clearly, this is a difficult time to be doing it, but some health boards are frankly being driven into closer working relationships, because there are so many examples of delayed transfer of care given the infrastructure at the local government level. Do not forget that in Wales we have not seen anything like the cuts that have happened in England, but even we are feeling the pressure in quite a significant way, and we are having some real issues in relation to recruitment to the care workforce in particular. That is the biggest challenge for us at the moment.

[Edward Argar]

Q That is really helpful, thank you. As ever, I am grateful for your candour, because that will help us to learn from your experience. I am always frank with colleagues about the fact that we will look around to see whether we can learn from Cardiff, Edinburgh or Belfast. That is what we should be in the business of doing. You mentioned using transformation funding to allow local flowers to bloom. That goes to the heart of something we have discussed in a number of sessions today. To what extent, in how you are approaching this greater integration or joint working, have you adopted either a permissive or a prescriptive approach? How have you sought to balance those two ways of doing things to get the best outcome?

Eluned Morgan: It has been quite interesting. With care, for example, we have found that a lot of competition was going, such as between the independent care providers and the local authority—they were poaching from each other. All of that was damaging to the public purse and to the provision that we could give. Now we are in the process of developing an all-Wales framework within which people who want to provide care in Wales will work. That is what we are working on—a new legislative framework that will provide the infrastructure and give the minimal standards that they will have to meet. It is also making sure that we are driving quality through the system.

[Edward Argar]

Q I am conscious of time, but I have a final question that refers back to my first one. Do you have any evidence, whether anecdotal or that you will not share with the Committee, on how the approach is improving or changing health outcomes for NHS patients in Wales, quantitatively or qualitatively? What benefits are you seeing? Is there any evidence behind that? That is something we have explored with other witnesses—how ICSs will seek to do that—but given that you have started down this road already, is there anything you can share?

Eluned Morgan: What is difficult is that we started this process pre-pandemic but, clearly, with the pandemic we are in a very different situation. It is difficult to say what the model would look like in normal times, because we have had 18 months of something very different. It is hard for us to assess that evidence in the light of our circumstances at the moment, if I am honest.

[Edward Argar]

That is fair. Thank you, Minister.

[The Chair]

No one else? As there are no further questions, I thank you, Minister Morgan, and your officials for the evidence that you have provided today.

Eluned Morgan: Diolch yn fawr.

Ordered, That further consideration be now adjourned. —(Maggie Throup.)