Health and Care Bill (Fourth sitting)

Edward Argar Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[The Chair]

I had better move on at this stage. I am really sorry, Nigel. Minister?

[The Minister for Health (Edward Argar)]

Q Thank you, Mr McCabe. I will only ask the one question, because I am conscious of time and keen that Opposition Front Benchers have their time. My question goes to the heart of this, and I am afraid it is a subjective question, but with all your expertise in this space, your answers will be instructive. In framing this legislation, we sought for it to be both evolutionary in reflecting the changes that are already under way, and permissive rather than prescriptive. Do you feel we have struck the right balance in terms of permissive versus prescriptive? If not, where is that balance missing? Shall we start with Nigel, and then work along?

Nigel Edwards: I think we have shared our anxieties about the reconfiguration and direction powers. In terms of what this does to the organisational architecture, it seems to me to strike the right balance between permissive and directive.

Nick Timmins: I would echo that. I have major reservations about the new powers of direction and, I think, major reservations if you build in reconfiguration service changes. The good thing about this—it has been the good thing about the development of the integrated care system so far—is that it is quite flexible. That is unusual in the NHS’s history: we tend to come up with very prescriptive solutions for what the system should look like everywhere, when in practice the circumstances are different, so I think the balance is pretty good.

Richard Murray: You could easily criticise the degree of permissiveness; you could criticise the degree of direction in there. The question should be, “Can anyone come up with a better one?” We have not been able to do so, so I think it is a balance well drawn. Of course, a lot will then rest on the behaviours that are shown after the Bill is through—whether people live up to that kind of core belief around that permissiveness and the freedoms that have been given.

[Edward Argar]

Thank you all very much. No more questions, Mr McCabe.

[The Chair]

We have time to squeeze in one very quick one, if anyone has something else to ask.

--- Later in debate ---

[Alex Norris]

Q So in your modelling it would be a partnership of the two.

Louise Patten: It is both/and.

[Edward Argar]

Q I only have a couple of questions, Mr McCabe. I welcome the witnesses and thank them for their evidence so far. One question will be one that I have asked witnesses in previous sessions. We are seeking with this legislation to recognise the existing evolution of the system and the limitations of legislation in driving implementation and behaviours on the ground, as opposed to people finding their own ways of working within a framework. We have therefore focused on a permissive as opposed to a prescriptive approach. Do you believe that we have got the balance right in seeking a permissive framework rather than a prescriptive one? Are there any examples that you would add to what you have already said to illustrate your perspective on that?

Dame Gill Morgan: Yes, I think you have got the balance, and that is the joy of working with a Bill team. I think the balance is right. You have tried not to be prescriptive and tie our hands, but you have been clear in the sense of setting a direction and focus that we will all take into account, so you do not have to tell us things to make the NHS do it. We do it because we pick up the runes.

On the issues that we would be more concerned about, I personally am concerned about the ability of the Secretary of State to call in changes. In part that is because the one thing I think the NHS has learnt in the time that I was out and came back is how to do relatively good consultations. We have just finished a massive consultation. Patients have gone with us. The local communities have gone with us, mostly. We have had citizens juries and all sorts of things to reach a consensus about the direction of travel. The worst thing in the world would be that people say, “There is no point in engaging in those mechanisms locally because, at the end of the day, we will just complain to the Secretary of State and it will not happen.” If that becomes the way people manage that part of the Bill, it will take us backwards, not forwards, in terms of proper citizen engagement.

Louise Patten: On balance, it is about the Secretary of State’s powers of reconfiguration, and NHS leaders in general are concerned about that. It is not so much about the Secretary of State having an early understanding of the reconfigurations or the intent, but about the fact that that decision could be taken at a point where all the evidence is not ready to be properly considered.

Building on Gill’s point, patients and the public would be very frustrated if they felt that they had not had an opportunity to be answered, so we are asking, if not for the clause to be removed, for at least the clinical case for change to be considered from the ICB. Coming back to clinical decisions about clinical services, we want that accountability to local communities, not just up to Whitehall, and some transparency about why the decision was made, and on what basis and information it was taken.

[Edward Argar]

Q Thank you. My next question follows on from that, acknowledging that point about reconfiguration powers, and builds on your clear answer to Karin that you think that what is framed here strengthens local accountability and engagement, and relates to something that you may have mentioned earlier, Gill, in some of your answers. Do you think that it is the right approach, in terms of ICB membership and others, to set a de minimis core membership and then allow that local flexibility to reflect local needs, local accountability and local engagement, to expand it as the local system and local people feel appropriate? Do you think that strikes the right balance?

Dame Gill Morgan: I think you are absolutely right: de minimis. What I have argued throughout is that if the centre, if you and then NHS England, which issues guidance, are clear about the principle that we have a proper engagement mechanism with our local authorities and citizens, they need to ask us how we are doing that, and to ensure that our constitution meets that. There are plenty of checks to ensure that it happens without you telling us that we have to have this, this and this.

In our case, we will have mental health and social care around the table, not because we are told to but because we could not imagine how we could do our work at a local level without having those people feeling that they are full partners and sitting around the table. There is a set of concerns about having local government involved in making decisions about the expenditure of large amounts of NHS money. I do not care; they are the local people who need to be involved in the decision making. Actually, if they see the deliberations and challenge first hand we will get better-aligned budgets. At the end of the day, that is to everybody’s benefit.

Louise Patten: There are already five mandated board positions in the legislation. A further five will be in the mandated guidance from NHS England. We are up to 10 already. I think the most important thing here is: where do you stop? There is a risk that there is a perception of two tiers—that those who have a mandated position on the board are of more importance than others. That flies in the face of partnership working.

[Edward Argar]

Q A final question, if time allows. I entirely take on board your point about the aim, the underlying point about implementation being key here—almost more so than the legislative framework—and the point about a single pot and sense of ownership. I remember the old section 75 of the National Health Service Act 2006, rather than the Health and Social Care Act 2012, being the mechanism that I used when I was a councillor to work with the primary care trust. It worked, but it was a bit clunky at times. My question is one that I have asked other witnesses, so I suspect that it will not come as a surprise to you. Do you think that this is the right time to be introducing these changes and legislation and, if not, when would be?

Dame Gill Morgan: My view is that we are where we are and we need to progress. Going backwards would be a problem, but actually I am a bit more positive than that. Covid has demonstrated to people that if they think innovatively, out of the box and in partnership ways they can get solutions that are quicker than they would have been before, so in the system as a whole there is a recognition that partnership has offered more. We will all retrench as the world moves on from where we are, but there is real learning from covid on which we can capitalise. Many systems have done reviews of what worked and why, looking for the silver linings in that learning. I think the Bill goes with the analyses that have come out.

Louise Patten: At the NHS Confederation, we have that sort of umbrella view. We must not forget that, on collaboration and integration, people have been working to this for some time. There are some great examples of it, and this legislation moves that opportunity to really accelerate it. People recognise that it is a tight timescale, but they are absolutely committed to doing it.

[Edward Argar]

Thank you both very much. No more questions, Mr McCabe.

[The Chair]

Dr Whitford, did you have anything else?

--- Later in debate ---

[Justin Madders]

Q I have one more question, Mr McCabe. One of the consistent points we have heard from witnesses is that they are not convinced that the provisions in the Bill on workforce are sufficient to deal with the workforce challenges that the NHS faces. Would that be something that you feel is also the case for mental health professionals?

Andy Bell: This is incredibly difficult. We have some very ambitious plans now—the NHS long-term plan ambitions for mental health. There is, quite rightly, an awful lot of money going into that, because we have a very big gap in our ability to meet people’s needs. The only way that is going to succeed is if we have a very significant expansion in the mental health workforce.

We need to remember that that workforce is not just what people think it is. It is obviously nursing and obviously psychiatry, but it is also social work—a lot of really important mental health provision is in local government under social care. We need to think about the importance of advocacy and the importance of peer support, the importance of employment and housing rights workers, who we know make a big difference to people’s lives. There is also the key role of the voluntary sector in providing forms of support that may not come under traditional clinical headings, but none the less make a huge impact in people’s lives. We need to build the workforce.

The Bill gives some steps forward and summary assurances. In some ways, it is not quite the right place to be dealing with this. This is about whether the various parts of the system—the health education system, the NHS itself and its partners in local government—have the resources and the right ways to encourage people to come and work in mental health. It would be great to see the kind of recruitment campaigns we have had for the NHS as a whole to really help bridge that very big gap in the mental health workforce. At the moment, I think the Bill is probably neutral on it. It would be good to see some stronger assurances, at the very least holding the Secretary of State to account for how they are achieving the workforce ambitions set out in the long-term plan and future policies that will have to come.

[Edward Argar]

Q Good afternoon, Ed and Andy. Andy, in my first question, can I pick up on something you said there, before I broaden out to a question to you both? You talked there, quite rightly, about the importance of parity of esteem for mental health. As a local councillor years ago, I saw how important local councils and the NHS working hand in glove on mental health provision is, because if we get one half right but not the other half, it just does not work.

Building on what you have already said about the legislation, what would you identify as the opportunities of the legislation, if properly implemented or interpreted in the right way, for furthering that linkage and that joined-up mental health provision? Obviously, that goes beyond local council services and the NHS. There are a whole wraparound series of services that impact on someone’s mental health. What do you see as the opportunities in the legislation that we either need to draw out further or at least not lose sight of?

Andy Bell: This is about building real, sustainable, long-term partnerships. One of the things I know colleagues in the NHS and local government find very frustrating is that they just find a way of working with each other and then the legislation changes again and they have to start all over, so it is about having a system that actually works and stays working, that builds on the best of what is there already. I think there is some frustration in places where they spent a long time building relationships between clinical commissioning groups and local authority colleagues, sometimes with jointly employed staff, and now they have to start all over again because we are moving to a different thing. That will be immensely frustrating for many folk.

If we take the principle that this is about integrating care and equal partnerships between different players, including the voluntary and community sector, and if we give that time to work, we will enable partnerships to form with a clear voice for people—for example, in the case of mental health, for people living with mental health difficulties—so that decisions are being made with and in partnership with the people who use them rather than remotely by professional experts on their own.

Collaboration is incredibly important too. One thing we really welcome about the Bill is that it is moving us away from a system of competing providers to providers working collaboratively—literally, in providing collaboratives. There is a slight risk that all the power will be vested in one organisation and there will not be that check and balance between commissioner and provider. But some of the early provider collaboratives working in children’s mental health services that we have looked at have made really huge strides really quickly to reduce, for example, the number of children forced to go to hospital outside their local area in a mental health crisis. They have come together, looked at what support is needed for children in a crisis and put community services, in particular, in place to achieve that.

One further thing that will be important is that there is some positive provision in the Bill to ensure that ICBs—I think it is ICBs, yes, it is—have to take into account inequalities in access and outcomes. That is great, but there is not that requirement to pay attention to inequalities in health and to go out and identify which groups of people are experiencing health inequalities and what the system can do to deal with that upstream rather than waiting for people to need formal healthcare. That would be the other part that would really help in the Bill—to build on some of the positive noises and moves in the right direction in collaborating at the level of prevention and on the things that determine our health as well as in the provision of services when things have reached a point where people need care.

[Edward Argar]

Q In the two and a bit minutes I have, in order not to get cut off by Mr McCabe, I will direct my question to Ed and will bring you in, Andy, if I have time. We have heard about how what is proposed in many ways enhances local accountability and local authority involvement in decision making, but to go back to your earlier comments, would it be fair—you are entirely entitled to say that it would be unfair, and that I am misinterpreting—to say that alongside that your request was a request that in enhancing that we should not lose the local accountability mechanisms and processes that have already grown up over the years in local authorities, be that health and wellbeing boards, joint overview and scrutiny committees, or whatever? Is that a fair characterisation? Feel free to correct it.

Ed Hammond: Broadly speaking, yes, that is fair. My central point would be that those structures and the opportunity that local government has through this Bill for more direct and active involvement in health and care decision making are good, but there still needs to be that separate independent source of accountability that we feel sits properly at a local level with democratically elected local councillors who have powers through health scrutiny committees to talk to local people about their needs. That needs to be there and needs to be strengthened. In respect of the Secretary of State powers I was talking about, my worry would be that we would see ICBs and ICPs looking over their shoulder at what the Secretary of State might want to do rather than looking down to local communities to understand where local need lies, with decision making being led somewhat by what people think national priorities should be.

Part of the solution to that problem is the things we have proposed around, for example, requiring the Secretary of State to consult with local scrutiny committees before exercising those powers, having the powers for local scrutiny committees formally to escalate things to the Secretary of State to act on, and what we have suggested for more effective joint scrutiny by multiple councils of the ICB at system level as well. Those are all part of that strength and accountability framework. It is about saying, “Okay, we have involved local government in decision making through the ICPs and through continuing the health and wellbeing process, but in doing so we also have to enhance and build on our existing health scrutiny arrangements.” As things stand, the Bill removes elements of those by removing the power of referral. It is about having a balance of accountability arrangements and ensuring that that strong external accountability continues.

[Edward Argar]

Thank you.

[The Chair]

We had better leave it there. We are out of time. I thank you, Andy and Ed, for your evidence today.

Examination of Witness

Sir Robert Francis QC gave evidence.

--- Later in debate ---

[Alex Norris]

Q Thank you.

We will move on to something else that you said in your written evidence. On Tuesday, we had a very good conversation about data, but the whole thing was about quantitative data. In your written evidence, you talk about qualitative data, and it is very easy for us, as Members of Parliament, to conceive of the importance of that, as it is something that we routinely draw on. With your insight from leading Healthwatch, how can we develop systems that properly trap that, use that and prioritise that just as much as the quantitative data?

Sir Robert Francis: Technically, these days, that is no problem at all. You will not expect me to explain that to you, but the qualitative data—comments from the friends and family test, or similar things—is easily mined these days. You can develop a view of the sentiment that comes through it, and you can then dig down more closely into specifics if you need to. That information is extremely valuable to Healthwatch in determining what people think about a particular subject or services, and we feel that there should be a recognition that that data, in that form, should be capable of being shared with a statutory body like Healthwatch, and possibly others.

We also think that—I am sure others might agree—while quantitative data is extremely important, it is informed by qualitative data. The personal impact—good or bad—of things that happen in the service are best described by the people who have received that service. If you just look at figures—I am afraid that this was a problem at Mid Staffs—you lose a great deal, and the trigger for change and improvement is lost.

[Edward Argar]

Q I will try to be brief in the five minutes that we have left. Sir Robert, I have two questions: one with your Healthwatch hat on; and one in your personal capacity—and also as an eminent lawyer.

We sought with this Bill to be permissive rather than prescriptive; behaviours, and how things work on the ground, are often as, if not more, important than the framework. Notwithstanding your on-the-record comments about Healthwatch participation in ICB levels as a formal member, what else would you draw out as opportunities within the framework to build on patient participation and accountability to those who pay for, and use, the service? Are there other opportunities, that, with a small tweak either in guidance or in the Bill, we could seize more effectively?

Sir Robert Francis: I suspect that there is something around reporting, particularly with the oversight of quality, inequalities and matters of that nature, which would be of assistance. I agree that flexibility of engagement is really important, and Healthwatch claims no monopoly over this. I see it taking place in guidance. If the emphasis is to change culture to one where the service is being responsive to people’s needs, as opposed to providing them with what the service thinks they need, there could be greater emphasis in the Bill on ensuring there is a strategic plan for engagement. There could be more emphasis on how the ICS is going to engage with local people and communities, and an actual requirement that it provides comprehensible information to the community about how people should be able to communicate with it. I know they sound like matters of detail, but if there is an obligation to make such things clear, it does not prevent flexibility, but it does oblige organisations to actually do it—and mean it. There will be lots of other ideas, I am sure.

[Edward Argar]

Q That is useful, and builds on your written evidence. What do you think in a personal capacity? This builds on Dr Whitford’s questions and acknowledges Keith Conradi’s preference that the safe space be not qualified. If one accepts that it is qualified in respect of aspects of the judiciary—he acknowledged in those circumstances that he would accept that—would you consider that a High Court judge is probably the most appropriate person to make such a judgement on whether something should be taken out of the safe space and made available to a coroner?

Sir Robert Francis: In relation to a decision of whether information should be capable of being used in legal proceedings, there is no better qualified person than a High Court judge—so, absolutely. My advocating that there should be some qualification in relation to the family does not mean, in any way, that I suggest they should then be able to use that for litigation or other purposes. Indeed, some of the conditions you might impose on them in order for them to get the information are that they do not do those sort of things. There will be areas where it can be said that it is too sensitive for that. Of course, there may need to be a balancing of people’s rights of privacy. It is really about ensuring that families feel that they are not being excluded or that something is being hidden from them. We need to build trust. I do not think that that decision needs to be taken by a High Court judge, because it is not about legal proceedings; it is about something really quite private.

[Edward Argar]

That is extremely helpful, thank you very much.

[The Chair]

Thank you, Sir Robert.

Examination of Witnesses

Stephen Chandler and Gerry Nosowska gave evidence.

--- Later in debate ---

[Jo Churchill]

Q Thank you. Gerry?

Gerry Nosowska: Prevention is always undermined by the resources moving into urgent and acute needs. In practice, social workers are not able to do therapeutic, restorative support work that they would be able to if they had the time to spend with people who need that. There is a fundamental resource issue that the Bill does not address directly, but it may help with the potential for pooling resources. Again, people in the community do not care whether it is a health or social care resource. If there is a need emerging that can be responded to, and preventive work can be done, it should happen without health and social care arguing about exactly whose purse it comes out of.

There are some really successful examples of reablement and preventing avoidable hospital admissions. We know it is possible. Scarcity does breed competition rather than collaboration, so that is something to think about. As for what the Bill might also do, the partnership strategy ought to have a very strong preventive element to it, and that needs to be dug down into locally—into particular communities, neighbourhoods and streets. That is where you really need lived experiences. I have a question about the regard that the integrated care board would have to that, and the potential for a wonderful, collaborative partnership strategy around prevention to be disregarded because of an acute need. I was listening to Robert Francis, and I think his suggestion that there be a written explanation to a local community if that happens is very good.

[Edward Argar]

Q Just one question to both of you, if I may. First, thank you for all that you and your members have done and continue to do. I say that as a former council cabinet member for adult social care and health and public health. I know the shadow Minister will share that sentiment. When I was doing that job some years ago and I was not quite so grey, the director of adult social services with whom I worked was a lady called Marian Harrington, who had been working in adult social care for a long time. A key point that she always emphasised to me was the importance of a close working relationship between the NHS locally, social care and the local council, particularly on discharge, but also on the ongoing care of people with multiple needs who were receiving social care. She would always say to me that although the framework was important, equally important were the culture, the behaviours, and trusting relationships between organisations in the framework.

I will turn to Stephen first and then to Gerry. We have sought to be permissive rather than prescriptive in this Bill. Have we struck broadly the right balance, or are there areas where it might need to be tweaked, either in legislation or in guidance?

Stephen Chandler: Your director colleague was absolutely right. I think that you have got the balance right in relation to permissiveness. I worry that the guidance does not prescribe directly how we should develop that culture, but having worked as long as I have, I realise that you cannot prescribe how relationships are formed and how cultures work. You have to create the conditions for success. Some of those conditions are in the Bill. I have talked about some of them in relation to the pooling, the boards and the assurance methodology. What has to be absolutely clear—and I am hearing it clearly, so it is not that I have not heard it—is the importance of seeing this as a vehicle for meaningful change to people’s lives, not a restructuring of health and social care. Rather, this is a vehicle for improving the lives of people in communities and systems, and for allowing health and social care professionals to maximise their individual abilities for that collective good. In a way, there is a duty on me as a leader in the system to create that culture and environment.

You have not gone into the area of assurance, but for me it is really important that when assurance looks at a system, it looks at the leadership and how that leadership translates the freedom, the permissiveness, but also the accountability, clearly. The feedback I am hearing from our members is, “We favour the permissive approach that is taken in this.” We would not say that the tolerance should be changed one way or the other.

[Edward Argar]

Gerry?

Gerry Nosowska: Apologies, I think I lost my connection for a moment, so I might repeat some of the things that Stephen said. On the balance between permissive and rigid, we have an interest in the consistency of opportunity and outcomes for members of the population. Areas face different challenges, so it is important that locally there is flexibility around how those challenges are met. What will hold those models together are the principles of ensuring transparency around decision making; the involvement of lived experience and clinical expertise in both social care and health; and real local accountability. Certainly, more local community decision making, planning and work, and less centralisation, is much more in tune with responding to the lived needs of people and their day-to-day priorities.

[Edward Argar]

Thank you, Gerry and Stephen. I have no further questions, Mr McCabe.

[The Chair]

May I thank our witnesses for their evidence? That brings today’s oral evidence sessions to a close. The Committee will meet again on Tuesday in Committee Room 14, with Mr Peter Bone in the Chair.

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