Health and Care Bill (Second sitting)

James Davies Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[The Chair]

I will come to you if there is time, but I want to move on. Dr Davies.

[Dr James Davies (Vale of Clwyd) (Con)]

Q Thank you. I have a general question about the key feature of the Bill: integration of services. What is the experience of your members with regard to that and have those views changed thanks to the pandemic? Perhaps we can hear from Saffron first.

Saffron Cordery: The experience of the pandemic, which is a seismic and far-reaching event, really put the frontline of the NHS and other local public services in the frame for delivering for their local communities, and for supporting each other and helping each other out with mutual aid. What we saw there was one very good and important example of how local partnership working, local collaboration and local integration was working in very different ways up and down the country.

We had some common features of all integration, something you would expect at a time of crisis, where there is a lot of command and control and procedures that go on in a state of civil crisis such as this one. We also saw different communities responding in different ways. That is one of the most important points that I want to make about this legislation. In terms of collaboration, we have to see a piece of legislation that is as enabling and permissive as possible. Obviously, legislation has choices. You go down different routes. Really prescriptive legislation will not help in this situation, though. We have to reflect the progress made in some areas and the need for encouragement and support in other areas to get where we want all ICSs to be: that is, really effective and delivering what local populations need. A permissive framework is critical. Going back to your question, it is right that the pandemic has shone a light on both the potential of ICSs and collaboration in particular and the challenges we face right now in implementing any new proposals due to the operational pressures facing the NHS, local government and other public services.

Matthew Taylor: I agree with Saffron. There have been some very good examples of local collaboration, such as the vaccination programme and reaching out to communities where initial take-up may not have been what we had hoped. There is some really impressive work there. That work presages the wider commitment within the health service to a strategy of population health, which addresses not only those people who express demand but those who do not. We wish that they would, because that is one of the things driving health inequality.

I have been at the confederation only three months, so I look at the legislation from the perspective of a wider interest in public policy over 30 years in government and outside it. This is a very interesting and innovative example of policy making. We have these integrated care systems in large parts of the country, so the policy has already been enacted ahead of the legislation. Though that may raise democratic issues, it enables us to see in practice how people are taking the principles of service integration and focusing them on population health. Despite the challenges of covid, a challenging funding context, and the issues around social care—which are hopefully being addressed in one way or another—we see across the country that there has been a whole array of interesting bits of innovative, collaborative work around issues of population health, prevention and addressing health inequalities.

I want to emphasise a point Saffron made. If you look around the country, you see some systems that are well advanced in their collaboration and other systems that are not. This is for a variety of reasons; in some cases there are issues to do with boundaries and such. Like Saffron, I think it is really important we have a permissive regime that allows these systems to evolve at a pace that is right for them and the places in which they operate. Over time, the systems will move forward, but it is actually a really effective way of working. It would be a mistake to try to impose exactly the same way of working on every part of the country. It would mean those who were ahead will be pulled back and those who are not quite ready to make integration work will be compelled to tick boxes, as it were, rather than work on the development of the relationships that we need.

[Edward Timpson (Eddisbury) (Con)]

Q I want to build on that point about permissiveness and take it a step further in terms of the specification in the Bill around ICBs and ICPs—the boards and partnerships. A lot of us on the Committee have been requested to look carefully at individual parts of the healthcare system. That does have a generality to it, covering mental health, children, palliative care and so on, and their representation is very clear within partnerships and boards. Based on your views around permissiveness and flexibility and the different paces ICSs are currently at, how do you see this? How do we reassure people that their views and the particular parts of the health system they represent will get a fair hearing and that the accountability structures will be in place to make sure they are able to come back if they feel they are not being addressed properly?

Matthew Taylor: That is an important point. Let me be completely open about the conversation within the confederation about this issue, for example. We have a mental health network representing mental health providers. Their preference would be to specify the need to have a mental health leader on the board. We as a confederation recognise that view and represented it, but that is not our view overall. Our view is that, partly because configurations differ from place to place—in some places, mental healthcare and community are together, for example—but for a variety of reasons, we would not want to specify further the membership of those boards. Again, that is to maximise local flexibility.

If people feel their voice is not being heard, then that is something they are going to say. We will have to see how this system evolves, but let us start with—going back to a word used earlier—the permissive regime and see how that goes, because after all it is in the interests of everybody in the local health system that they hear the voices they need to hear.

Saffron Cordery: I agree. This is a thorny issue but I suppose it is one of either, depending on how you look at it, the opportunities or the casualties of creating another level of governance in a local system. When you are thinking about putting collaboration on a statutory footing, you have to surround it with some kind of governance to ensure the effective operation of that body.

It is a tricky issue. You cannot have an integrated care board—the board that will govern how funding flows through and how priorities are agreed, decided and implemented—that is so enormous that it becomes unworkable, but there has to be a clear balance between making sure it is not only the big and the powerful who are represented there, but also all the rights and appropriate interests. There are a number of positions specified in the ICB board arrangements, and it will be interesting and important to see how different ICSs use those roles, particularly the non-executive or wider partnership roles that are specified, in order to have a broad range of voices around the table.

It is worth remembering that many other organisations and structures will be taking part in the ICS arrangements. You will have things like provider collaboratives, which are not in the Bill but feature heavily in the guidance that comes from NHS England and NHS Improvement, which are precisely about organisations working together to deliver on local priorities. Many of those are led by mental health organisations focusing on what they need to deliver.

There are other structures within these arrangements, but no one would say it is ideal. It is not the most ideal solution, but it is very difficult to get to a final configuration that is both workable in terms of numbers and reflects the multiplicity of voices in a locality. It is important to have the right engagement at every single level and the right channels feeding up information and priorities, and to understand what is really important in a system.

Matthew Taylor: Today the Government have been talking about the importance of integration in the context of its announcement on health and social care. One of the big questions is going to be about the powers that are devolved within systems to places, and I think it will be at the place level that we will see service integration. The evolution of place level forms of accountability is an important part of that, and again a reason why it is really important to allow these structures to evolve locally. I suspect that in some areas more power will be held at the system level and less at the place level. In other places, it will be the reverse, with most of the action taking place at place level. That reflects the nature of places, the legacy of those places and the relationships that have built up.

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[Karin Smyth]

Q Mr Conradi, could you talk a little about what the branch will be doing in relation to maternity cases and how that is seen to be investigated? You have talked about systems, but will there be a look at all maternity cases in a system? Could you elaborate a little on that? If I may have a second bite, you could also talk a little about discussions now as to where we think the relationship lies with the health service ombudsman and being clear on the roles within this Bill and how that might look in the future.

Keith Conradi: We currently have a maternity programme that investigates about 1,000 cases a year, based on quite specific criteria. At the moment, the Department is deciding what it wants to do with that programme—where its future lies. As far as we know, it will stay with us, certainly until the HSSIB—the health service safety investigations body—starts, but I think a decision has yet to be made on whether it will actually just fall into the work that the HSSIB does, or whether it will do something separately with it, so I am not aware of that at the moment.

On the second point, I am aware that the ombudsman would like the same power to access the statements that we take under safe space. I think that is a major concern. Over the last five years, the ombudsman has been able to investigate any complaint brought against us in our current guise. It has not seen fit to do so, so I would suggest that on the rare occasion that might be necessary, the provision for the High Court to carry out the balancing test and decide whether to disclose information or not is the appropriate way ahead.

[Dr Davies]

Q Mr Trenholm, you referred to the fact that the CQC will be assessing ICSs in future, which was a recommendation of the Health and Social Care Committee. You also referred to oversight of social care provision. Can you clarify whether that is by virtue of your assessment of the ICSs as a whole, or is it through a local authority-targeted assessment that the Health and Social Care Committee has also called for in an Ofsted-style rating?

Ian Trenholm: Can we not call it a CQC-style rating? There are two separate things. The Bill currently contains an explicit provision about providing assurance on how a local authority is discharging its responsibilities in relation to the Care Act. That is important because the way in which care is commissioned is as important for outcomes as the way in which it is delivered. That is one part and that is a discrete piece of work. There is a broader piece of work that we are expecting Government to ask us to bring forward on assurance on ICSs. It will look at the ICS partnership board, how that works, the ICS strategy and so forth. They are two complementary pieces of work, but they are separate, as you describe.

[Dr Whitford]

Q Mr Conradi, you have talked about this coming from Air Accidents Investigation Branch, where the safe space is very tightly protected. That is very much as has been put forward. The key concern is the fact that coroners are listed in the Bill. The ombudsman is already lobbying and many of us are being lobbied to get access to safe space testimony. The Campaign for Freedom of Information is also lobbying for that. Will that not just kill it dead, in that you can compel people to come and give you testimony, but you cannot compel them to talk about all the soft weaknesses within a system that contributed to that tragedy or failure? Should it not be that maybe we need to define more tightly what is protected? All these bodies should be able to investigate as they do now. They are not losing anything because you would have safe space.

Keith Conradi: I totally agree with you. I think it will have a major impact on people’s wish to speak to us. It is not just me that thinks that; the medical unions have said that their members are concerned. The whole idea is that you want people to talk about, as you say, the “soft” things. They tend to be things like the culture of an organisation and the pressures that are brought upon them to do various pieces of work. In the past that has been a bit of an Achilles heel in terms of safety in the NHS. People have often been blamed for these things. They have been disciplined for speaking out—we talked about whistleblowers earlier.

Anything that we can do to bring that information up to an investigation body, which is not about blame and liability, is going to help patient safety in the long run. They will find their way into our final reports—that is the whole idea of getting this information. We want to encourage that as much as possible. I do not think this helps. I think a previous Joint Committee looked at a similar piece of legislation, and that came to exactly the same conclusion. As you say, what is the problem with other bodies such as coroners conducting their own interviews to get the same piece of information or any information they require?

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[The Chair]

Thank you.

[Dr James Davies]

Q First to Councillor Jamieson on the changed procedures during the pandemic for the discharge of patients into social care, do you welcome the embedding of those changes into legislation for the future?

Cllr James Jamieson: Certainly, we are very pleased that we have repealed some of the legislation, which basically made people focus on targets rather than what is best for the patient. Focusing on discharge to assess at hospital led to some at times frankly perverse incentives just to get people out, often into care homes, when the right solution was to assess after they had left hospital, in their normal setting, not in the setting where they were in maximum need. That change has given much better solutions and outcomes for our residents, which is what we want.

[Dr Davies]

Q Very good. Thank you. As a follow-up question to both panellists, could you comment on the benefits arising from the preventive measures in the Bill on the fluoridation of tap water and obesity?

Professor Maggie Rae: Obviously, from my position as president of faculty, I want more emphasis on prevention, so I am very pleased to see that focus on it, but I do not think it is quite enough yet. I think we would all recognise that part of the reason why we seemed to take the biggest hit on covid in terms of deaths and the effects of the virus was the ill health of our population. We are recognised as having one of the most unhealthy populations in Europe now, and that was not always the case. Yes, it is very pleasing to see the measures on obesity, but we need to recognise that most of the influence could come from the very local level.

I am sorry to say to colleagues and this eminent Committee that we could probably spend the whole meeting talking about fluoridation. I recognise the attempt to tackle the problems of oral health. Children’s teeth being extracted under general anaesthetic is a national disgrace; that money is so wasted in the NHS when we desperately need it to be spent on other health matters, and the time it takes for that operation is so dangerous for children. It is good to have this recognised, but I think it will be quite a slow burn, even with the legislation.

Some areas have tried to implement fluoridation. It has taken them years and they still have not succeeded. Could we perhaps persuade people? As well as focusing on fluoridation, could we have just a small investment in other methods to tackle oral health? One that is really effective, which I used myself as DPH, is simple toothbrushes and toothpaste. Sometimes we think public health measures take a long time, but I can guarantee that if that measure were implemented effectively you could see the changes within 12 months and would also end up saving the NHS a lot of money. I work closely with Councillor Jamieson in his role at the LGA and I hope that he would agree with me.

Cllr James Jamieson: I am going to agree with Maggie. I think that that is a general point we would make. Better healthcare does not start in a hospital; it starts in the community and it starts before you are born. It is about prevention, early intervention, public health, good food and all those things. We welcome measures to support that.

On the point about obesity, I would particularly say that although, yes, it is nice to be able to produce advertising, there is so much more we would like to do. This is not necessarily within the scope of the Bill, so I am not suggesting that, but, for instance, in licensing legislation, being able to take account of public health, which at the moment is specifically excluded, as well as being able to do so in planning legislation as regards where fast food places are and so forth, would be immensely helpful. This is a start; it is a small but positive step.

[Mary Kelly Foy (City of Durham) (Lab)]

Q One of our earlier witnesses touched on the social determinants of health—housing, green spaces, good jobs—being the greatest factor in a person’s healthy life and life expectancy. I am disappointed that there is nothing in the Bill that addresses those fundamental issues. Do you think that there is scope for them to be touched on, as well as in working with local authorities?

Even more remarkable as regards reducing health inequalities is the absence of any detail, duty or provision to tackle alcohol harm and tobacco control, which of course are the greatest factor in determining a person’s life expectancy—and further down the line they have the greatest impact on local authorities’ social care bills. Do you think they should be included in more detail in the Bill, with a duty to reduce health inequalities rather than just having “regard” to reducing them?

Cllr James Jamieson: I think we need to be cognisant of the fact that this is a Bill providing a framework. I completely agree with the comments made about health inequalities, good housing, green space and all those things—absolutely. I am a full advocate of the idea that health is three quarters determined by somebody’s environment and choices, and probably only a quarter by what the NHS does. That is really important. My slight concern is that if we get very prescriptive in legislation, it limits the ability to do the right thing.

The really important thing about this legislation is all the guidance and so forth that will come out of it, and where the funding goes. Our preference is to say, “Try not be too prescriptive in the legislation, but really engage with local government and public health on the guidance that comes out of this legislation.” A real priority has to be better places, better communities, better jobs, less pollution and all those things, but I do not think that that is something for legislation; I think it is very much about getting the guidelines right, and they will be different in different parts of the country. The issues that might be faced in a rural area are very different from those faced in an urban area. I do worry that if legislation is too prescriptive, it hampers rather than helps.

Professor Maggie Rae: Would you mind if I added some comments please, Chair?

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[The Chair]

We will now hear from Eluned Morgan, who is the Minister for Health and Social Services in the Welsh Government. I hope that I have pronounced your name properly. We will also hear from Lyn Summers, head of health and social services central legislation team, and Mari Williams, senior lawyer (health)—both from the Welsh Government. All witnesses are remote, and we have until 5.15 pm for the session.

[Dr James Davies]

Q Minister, would you outline your understanding of how the Bill will impact the people of Wales? I believe the areas to be the UK-wide medicines information system and social care discharge to assess measures, which may well be relevant in border areas, but there may be other points.

Eluned Morgan: Thank you very much for inviting me to give evidence this afternoon. Obviously the Bill mainly relates to England, but I want to say that I understand what the Bill is trying to do and achieve and I am pleased that it represents some moves towards removing market competition from health and care. I am very pleased to say that we have never had that in Wales because we have our system of unitary health authorities.

There are a number of areas of the Bill that impact Wales. I have set out the significant concerns I have in a letter to Minister Argar. I would be very pleased to present the letter if that is helpful to the Committee. To summarise that letter, there are nine areas of the Bill that I think require the legislative consent of the Senedd. I have set out these areas in a legislative consent memorandum, which has been laid before the Senedd. We are currently in a disagreement with the Department of Health and Social Care UK regarding some of the clauses that the Welsh Government consider to fall into the areas that require the legislative consent of the Senedd. There are a few where we both agree that legislative consent is needed.

In response to your question, Dr Davies, the aspects of the Bill will impact Wales are special health authorities; accounts and auditing; clause 78 on hospital patients with care and support needs—that is the one you referred to, I think, with the border issue; clause 85 on a UK-wide medicine information system; clauses 86 to 92 on transfer of functions between arm’s length bodies; clause 120 on international healthcare agreements; clause 123 on regulation of healthcare and associated professions; and clause 127 on food information for consumers. We consider clause 125 on advertising of less healthy food and drink an important point for us. Clause 130 is also really important to us. The power to make consequential provision also falls within the legislative competence of the Senedd. I think that is something that is worth looking at. I am happy to go through some of the detail on those if that would be helpful to you. Should I continue with that, Dr Davies?

[Dr Davies]

Q Is it a fundamental objection to the content of those elements of the Bill or is it a procedural matter?

Eluned Morgan: Interesting. We do not necessarily have an issue with the policy of some of them, but we are very concerned with some aspects of the constitutional shift and power grab that is happening here from the UK Government’s point of view. For example, the provision on arm’s length bodies is going to impact Wales in several ways. The UK Government are suggesting a requirement to consult the devolved Administrations before those powers are exercised. Frankly, that is just not good enough, because that memorandum of understanding, which the UK Government offered to present to alleviate some of our concerns, is a passing thing. It cannot be enforced by law and it does not bind future Governments, so we are very keen to see all the areas that impinge on our powers move from a duty to consult to a duty to get the support of the Senedd. There is a fundamental shift that we would like to see because we feel that our powers are impinged on.

The other point, which is quite interesting in the context of what is happening with Brexit, is that a number of clauses contain powers that enable the UK Secretary of State to make consequential amendments to provisions in a Senedd law. That is absolutely constitutionally unacceptable. It is fascinating when you think that part of the reason for the UK leaving the EU was to remove an outside institution’s ability to legislate in relation to the UK, yet the irony seems to be completely lost on the UK Government when the same consideration is not applied to legislation in the devolved Administrations in areas where it is absolutely clear where the power should lie. Those are the two fundamental issues that I am concerned about.

[Dr Davies]

Can I have one further question?

[The Chair]

Why not?

[Dr Davies]

Q Thank you very much. Minister, we met recently about the NHS in north Wales and you very kindly sent a detailed response. I am very appreciative of that. One of the things we discussed was interoperability —the fact that the health service in a lot of Wales interacts with that in neighbouring parts of England. We have talked today about data sharing in general, and I wonder what your thoughts are about the importance of comparable and interoperable data between England and Wales.

Eluned Morgan: There is clearly merit in having a system where data can be shared. We do not have a fundamental objection in principle to that and we would be very keen to set up systems that can speak to each other. I guess our objection would be where we are forced to share information that we do not necessarily feel should be shared. Why is that information needed and for what purposes? We would have to be very clear on that. It is not an objection in principle. In our discussion, I was very clear that I think it makes perfect sense for us to get those systems to be able to speak to each other. Again, it is more about the constitutional issues that have been thrown up and the UK Government’s ability to work in our NHS system and to gain information that is not theirs to have. If we want to give it, we are more than willing to do that.

[Dr Davies]

Thank you.

[The Chair]

Before I move on, do Ms Williams or Ms Summers want to add anything to the questions that have been asked so far?

Eluned Morgan: I do not think they have got anything to add.