Health and Care Bill (Fourth sitting)

James Davies Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[Jo Gideon]

Q How might we implement the changes that you suggest?

Richard Murray: I would really ensure that local government is part of this. It is an independent voice, and has already been a useful counterweight to some of those centralising forces, as local government comes closer to the NHS. Ensure that people from the voluntary sector are there. They do not follow the orders that come out of NHS England, so you are putting people directly into the system who carry some of that independence and are looking out fundamentally to their local communities. That really is the strength of some of the ICP structures—that you have those people round the table and, indeed, some of them on the ICB itself. Really invest in that place-level work. That is where a lot of the excitement will come from working with local government, and again with the voluntary sector and primary care. Do not get too focused on the ICS as this interim middle step, because it is quite distant from where a lot of the action goes on.

Nigel Edwards: It is not just upper tier local authorities that have an important voice in this. I think that Richard is right: a lot of the most interesting and bigger changes are likely to happen at the place level. It is probably the case that quite a lot of legislation has not really affected how patients are cared for or how professionals work. In some senses, that is not a bad thing. I think this does remove some of the behavioural oddities of the hybrid market and other systems that we had.

It will introduce some other hazards, in particular—Richard sort of referred to this—the slight danger of ICSs becoming inward looking, and some organisations, and the independent and voluntary sector, being excluded and not feeling that they have a voice. The challenge that local authorities can bring to that will be important, as will behavioural change from NHS England and some of the regulatory machinery, but you cannot legislate for that. That is a cultural change that is probably beyond the scope even of legislators.

Nick Timmins: Yes, and you can see that in evidence that you have already heard about the construction of the board and the partnership. It seems clear to me—you have heard from the Local Government Association—that some local authorities were happy to join a single board and others felt that that was too much of a loss of sovereignty, which is why we have ended up with this slightly complicated system of an NHS board and a partnership board. Probably, in an ideal world, it would have been better if it was one, but you have to live with what people are prepared to do.

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

Q Nigel Edwards, you mentioned the word “reconfiguration” earlier. In an ideal situation, from your point of view, how would you see a reconfiguration decision being reached, and how do you balance that with the need and expectation for ministerial accountability?

Nigel Edwards: The current system dates back to Andrew Lansley, who set up four tests. Do not ask me what they are. I can look them up, but I cannot remember them. However, they were good. They involved local people and clinical support. You had to make an evidence-based case. Then there was a process that involves local stakeholders, and then there was the opportunity for review by the Secretary of State and referral by local authorities and the independent reconfiguration panel, which has been a remarkably longstanding innovation, given the way that NHS organisations are formed and then abolished. It has done, I think, a very good job.

The current system seems to me to work quite well. The Secretary of State still has a say, particularly around controversial decisions, but they do not get sucked into every small reconfiguration and change. You also do not have a point where there is an opportunity for local participants to say, “I’m not going to contribute to this conversation any more. I’m going straight to the top,” and undermine people working together locally. I am of the view that the current system works quite well. I think we said to the previous Secretary of State, “You need to be really careful what you wish for. You may think that your intervention is going to help to move things along and improve innovation. It’s quite likely, from both previous experience and experience in other similar types of systems, to have the opposite effect.”

Richard Murray: I would not disagree with anything that Nigel said. Also, the clauses in the Bill as they stand at the moment are really, really unhelpful. There may be things you could do to make reconfiguration easier, but I think they would be working around the margins of what Nigel said. It would not be wholescale intervention without limit by Ministers in local decisions—that would mean any change, of any service, could go up to the Secretary of State. Also, if you need to make an emergency move for an operational reason, you would need to write to the Secretary of State in advance—you kind of think the clue is in the fact that it is an operational crisis. I think that the legislation as drafted would not give Ministers what they want, so I really think it is not helpful at all.

Nick Timmins: Can I just add to that? I think it is really dangerous for both Ministers and the NHS. Not many people know about the Independent Reconfiguration Panel. It has worked very well. It has dealt with about 80 controversial cases. It quite often suggests some amendment, and the Secretary of State does not have to take its advice, but the Secretary of State almost invariably does take its advice. I think that if we end up with lots and lots of reconfigurations hitting Ministers’ desks, Ministers will come to regret that. If you listen to the views of previous Secretaries of State, they almost always say, “It’s ludicrous we ended up having to make a decision about what was going to happen”—in Nether Wallop or wherever—which was the case before the Independent Reconfiguration Panel was around.

[Chris Skidmore (Kingswood) (Con)]

Q I want to touch on the King’s Fund’s comments in its own white paper in which it welcomed the Bill’s removal of the “cumbersome competition rules” that were introduced in the 2012 Act; and to discuss some of the consequences of competition and why it is welcome that we remove that; and to ask this question. Are there are any unintended consequences from also introducing the duty on the triple aim in commissioning decisions?

Richard Murray: There are a couple of things around competition. Probably the most obvious one is that it never really worked. A lot of care, particularly urgent or emergency care, is not an area for choice in the first place, so you are already dealing with a fairly specific part of the health service and drawing an awful lot of attention into that one element of the service when a lot of the interest is in care for people with long-term conditions and how you stop overuse of A&E and emergency services. There are lots of examples of things, particularly uncertainty around competitive procurement. Commissioners were anxious about where they stood in law so they used, and probably overused, competitive procurement.

I know from speaking to some commissioners that they sometimes felt slightly powerless to influence the provider side so they would put it out to procurement instead. There was very little sign that all the effort and bureaucracy that went into that really did any good at all. Let us step away from that and enable more co-operative working, to try to get the kind of change that we need for long-term conditions, for the real health conditions that this country faces. I should say that a lot of the academic evidence has found no benefits of competition, so not only was it not a helpful thing, it just did not seem to work—probably reflecting the fact that we have such shortages in this country. Competition works only when there is a meaningful choice.

On the triple aim, you would not want the system to get tied up in a new round of bureaucracy, form filling and ticking boxes, to show that it has duly considered the triple aim. I think it is also important to make sure you do not lose the issue of inequalities from the triple aim. I would not want to exaggerate: does legislating a grand vision make people do things differently on the ground? I think it is helpful to remind NHS providers and others that absolutely they should be thinking about the quality of care; absolutely they should be thinking about value for money and making sure they are efficient. But they also have a duty to the health of the wider population. You can then, through that triple aim, bring the different parties in this system closer together, and I think that for some non-executive directors and for governors, it is quite helpful to know that they are all working in the same direction. So I would not exaggerate the kind of change it would bring, but I think it is a move in the right direction.

Nigel Edwards: Can we just nuance the competition point? Actually, there were two elements to the competition regime. One was the very formal going out to tender and big, bureaucratic procurements—often resulting in the reappointment of the previous provider at significant expense. But the other component was patient choice—for diagnostics, for maternity and for elective surgery. I think that dynamic has benefits. One of the slightly worrying things in some of the plans produced by the ICSs’ predecessors—the STPs or strategic transformation partnerships—was a wish to “repatriate” work, as they called it, which meant to bring work back from providers outside their patch into their own. That was not necessarily a good thing; patients should have the opportunity to have a choice of provider and, particularly in the case of specialised services, one would be concerned about people saying, “Let’s grow our own services locally,” rather than, “Let’s use centres of excellence.”

The maintenance of patient choice, and ensuring that ICSs do not act to limit patient choice, particularly for those patients living on their margins, is quite an important dynamic; almost all ICSs have borders with someone else, and patients naturally flow across them. People want to be able to make choices, because they have an existing relationship with a provider or because they have a relative who lives nearby and could care for them while they are there. There is international evidence that that dynamic has a beneficial effect on providers’ behaviour.

--- Later in debate ---

[The Chair]

Q We will hear next from Ed Hammond, who is the deputy chief executive at the Centre for Governance and Scrutiny, who is appearing in person, and from Andy Bell, who is the deputy chief executive at the Centre for Mental Health, who is appearing remotely. I will just remind Members: if you are directing your question at Andy, can you make that clear, so that he is aware of it?

Good afternoon, both. Can you both introduce yourself for the record, starting with Ed?

Ed Hammond: My name is Ed Hammond and I am the deputy chief executive at the Centre for Governance and Scrutiny.

Andy Bell: I am Andy Bell and I am also a deputy chief executive, but at the Centre for Mental Health.

[Dr James Davies]

Q Andy Bell, how do you think this legislation can help to address current mental and physical health inequalities in this country?

Andy Bell: It is a really good question and I think that, on its own, the legislation certainly has some potential to assist with that. Of course, there also need to be a number of other things and I can talk about those if that would be helpful.

The first positive thing to say about this legislation is that the idea of integrated care—the practice of providing care that actually links across between mental and physical health, NHS and social care, and prevention and treatment—undoubtedly is the way to go. I think we have a number of areas within the system where we know that people at the moment get very poor support for their mental and physical health, as a result of the lack of integration in the system.

Examples would be people who have both alcohol and mental health difficulties at the same time; people living with long-term physical illnesses, such as diabetes or kidney disease, who get really inadequate and often very poor emotional support, if indeed they have any emotional support at all; and, indeed, people living with long-term mental health conditions, whose physical health is very often very badly neglected, and they have very little support. Integrating care—actually doing that on the ground—and achieving a real change in the way that services are organised around people’s needs would undoubtedly make quite a significant difference and reduce some of those inequalities.

I think the way that the Bill and the various bits of guidance are written gives us some hope that that may happen; it certainly does not answer all of our questions about it. In and of itself, I think it is potentially a step in the right direction, but we need to give some thought to a number of caveats around that.

[Dr Davies]

Q That is very promising. Can you just give an indication of those caveats, if that is possible?

Andy Bell: Yes, sure. Again, “integrated care”—we like the words; they are good—but the difficulty in a way is, first of all, the fact that this is very much an NHS-dominated set of proposals. It was written by NHS England for NHS England. I think that if we have a genuinely integrated system, where people will get support across the whole range of services, we need this to be an equal partnership between the NHS, local government, and voluntary and community organisations.

If you look at the proposals, in a sense what they are doing is taking decision making and power within the health and social care system further away from local communities into what are effectively sub-regional groupings. There is not anything very local about integrated care systems in many places, and that gives us some pause for thought. It is very much NHS dominated. If we look at the current health and care system, public health and social care are often the less well-funded and less well-resourced parts of the system. From what we see from the spending plans, it looks like that will become even more the case if you have legislation that, in a sense, reinforces the power of the NHS over other partners. I worry we are not going to get that real shift.

[Dr Davies]

Q Ed Hammond, on the same agenda of scrutiny of outcomes, how do you think those are best measured, and how does the Bill assist with that?

Ed Hammond: In terms of scrutiny generally, it is a challenging picture, as Andy said. There is a challenge around the need for effective local accountability. That scrutiny is best exerted at a local level. Local scrutiny is much more able to assess and make accurate conclusions about what outcomes have been reached. We do a lot of work as an organisation supporting local councils in their formal health scrutiny functions. The past 20 years of that has demonstrated a significant degree of success in local government being able to lead with local healthwatch in, alongside and on behalf of local people, seeking to understand how local health services design and deliver effective outcomes, challenging, where necessary, through the referral power for substantial variations.

My worries echo Andy’s in that the Bill as it stands moves a lot of decision making, commissioning and direction activity up to system level. Depending on the character, relationships and personalities of the key individuals involved, there is a risk that decision making therefore becomes remote from local accountability, making effective scrutiny of outcomes more challenging to achieve.

[Karin Smyth]

Q That leads neatly on to my point. We have just heard a great defence of ICSs as the system of accountability, and you have said that system level is where decision making is happening. The chief executive told us very clearly on Tuesday that accountability for decision making was clearly located in the ICB. The ICP—the partnership—is formally a committee of the ICB. I think each of our witnesses—very experienced people—have actually confused those three acronyms. They have also confused the accountability, which NHS England has told us is very clearly in the ICB. The finance director, the accountable officer at the ICB, carries the can. The other person will ultimately be fired, should the accounts not balance and there be some sort of health and safety patient scandal. I think that is clear. First, do you think that is clear? Secondly, how can we encode the good direction of travel in the Bill around local accountability to somebody who could oversee it in a more independent way and better hold that accountability locally?

Ed Hammond: In answer to your first point, I think it is clear. As we become more familiar with what is a complex system—and health governance is complex—some of this confusion will dissipate. As we start to operate practically within these systems, familiarity will breed a degree of confidence in understanding whose roles relate to what. As with all complex systems, it is vital that everybody understands their individual and collective responsibility for governance within those systems and accountability.

It is great when you have a partnership-led framework, in which everybody in the system is working together, and everybody has some stake in the system and in decision making. It is not a hierarchical, dictatorial system; it is one based, hopefully, on dialogue and, to an extent, consensus. The risk of that is that it necessarily dilutes accountability. Where everybody has a stake in decision making, you need some kind of external source of local accountability. That leads on to a second question. I think there is a need for a distinct and separate form of local accountability within these new arrangements at system, place and neighbourhood level. That role is currently performed at a local level in two main places: through local Healthwatch, from whom you will be hearing later, and through local health overview and scrutiny committees.

For me, the risk of these new arrangements is that, first, the removal of the power of referral to the Secretary of State by health overview and scrutiny committees on matters of concern relating to substantial variation of local health services is a worry for us, as it is for NHS colleagues. Also, the focus on system-level decision making will, by definition, make it more challenging for local health overview and scrutiny committees to co-ordinate to form, where necessary, joint committees to effectively oversee, scrutinise and hold to account ICS, ICB and ICP activity at system level.

--- Later in debate ---

[The Chair]

Dr Davies.

[Dr James Davies]

Q My point is also about patient choice. I work as a GP in England and know that many patients enjoy being able to access secondary and tertiary care throughout England, if they wish to do so—something that my constituents in Wales do not generally have the opportunity to do. Are you satisfied that the Bill protects that opportunity to its maximum?

Sir Robert Francis: I do not think it prevents it, but the extent to which it allows for it will depend, as I understand it, on the strategic decisions being made locally within the system. The answer is that I am not quite sure.

[The Chair]

Karin Smyth.

--- Later in debate ---

[Karin Smyth]

Q But, clearly, accountability is with the ICB and not with the partnership. We have heard that very clearly from NHS England.

Stephen Chandler: Yes, indeed. Without giving away too much personal information, my wife and I have a joint account. We each have our own accounts. She is not here, so I will say that I think I have the authority on the joint account, but if she was here she would probably say that she has.

The point I am trying to make is that a lot of this works on the formal agreement, but as much of it also works on the trust and confidence you build in those relationships. However, you cannot take away the facts, as you said. Equally, my elected members are very clear with me that I am responsible for ensuring that Oxfordshire County Council’s resources are being managed and used in the way that they have approved.

[Dr James Davies]

Q Stephen Chandler, what are the principles that underlie the successful discharge of a patient from hospital, and does this Bill support that?

Stephen Chandler: The principles that underpin successful discharge are, quite simply, a person-centred, strength-based approach to enabling that individual to get back, preferably and ideally, to their own home, in a timely manner, with the level of support that they need to continue the recovery that will have started in the hospital but will not have finished in the hospital.

Where we have got that process right—I think the discharge to assess arrangements have really helped us in this—is by clarifying that the destination for discharge, for the majority of patients, has to be home. It is pathway 1—“Home First”, as it is often described—with the appropriate reablement support to maximise the recovery. That is good for the patient; it is good for us in local government, because it reduces the level of ongoing care needs in many cases; and it is good for the NHS, in that it frees up acute hospital beds. Those are the principles.

The way you successfully do that is by ensuring that the focus is on the patient and getting the patient—the citizen—to their home, not on the organisational form and who is responsible for it; in fairness, we all are. Discharge to assess has helped us to clarify “Home First” or pathway 1, and it has provided for some of those systems where one of the stumbling blocks was the resources to make that happen.

The challenge we have, though, is that we have introduced “Home First” at a system level nationally at a time when demand, linked to covid and the unintended consequences of covid, has really impacted. I reference my first meeting this morning, looking at acute pressures in Oxfordshire. We pride ourselves on getting people home, and “Home First”, but when I was chairing that call I heard myself saying, “We need to move people into some interim beds”, because I needed to create capacity in the acute system. I am hearing that coming through from director colleagues up and down the country; we are making less than ideal decisions for people because of just how much demand there is in the system. Let us be very clear: good discharge is discharge home, to your bed, with the support to enable you to maximise your recovery.

[Dr Davies]

Q Gerry, do you have any comments to add?

Gerry Nosowska: Yes, please. I completely agree with Stephen on the principles behind discharge to assess, and we have good experience within social work of it working when there is clear shared responsibility and the person is kept at the centre of it. We also have evidence from our members of the potential for rapid discharge to assess, without real advocacy and potentially without the involvement of social work, to lead to some undermining of people’s rights around potentially being placed in a more restrictive environment and potentially struggling to have access to their family. It is partly about resourcing, but it is also about the ethos of human rights and people’s right to be heard and to have choice, and then having the practical backing to follow things up well.

I think that people with experience of social care and health want to have a really clear and transparent process. For that to happen well, we still need some safeguards around that transition. It is a complex moment in people’s lives, and I would want to see social work involvement in the guidance around that. But we also need to be thinking, if we want people to have more of their care closer to home, about how we rebalance resources—this relates to the previous question—by making sure that there are incentives for the resource to be put into community and local support and not just into the most urgent matters.

Stephen Chandler: Could I come back in? One thing that I omitted—it was remiss of me—was that we also need to never forget the importance of the support for carers, particularly around hospital discharge. All too often we are focusing on the individual in the hospital bed and the need to get them out, but we also need to ensure that we are not overlooking or not giving due regard to the role of the carer in that. If I could ask you to do anything, it would be this. Can you just ensure that the emphasis on the role of carers and how all of this is going to help the role of carers is brought through? Without carers, the health and care system would disintegrate rapidly.

[Chris Skidmore]

Q What confidence do you have in the discharge to assess model? Obviously, there have been pilots since 2016, but a lot of this was accelerated through the pandemic. That may be a good thing, but it might also be a bad thing, in that we have now to look at data in a very short timeframe. I served on the Health Committee over a decade ago, and during those discussions around tables like this, we used to talk about the Liverpool care pathway and how that was a good model to be following, until it unwound spectacularly and its local delivery was not as was thought in Committees like this. I wanted to ask what your view is on discharge to assess. You have mentioned carers and ensuring that we take into account the need for carers to be able to cope with any rapid discharges. Are there any other concerns that you might have about the model that should be taken into account?

Stephen Chandler: You are right: discharge to assess and, indeed, the “Home First” model of three pathways is not new. It has been around and used up and down the country for a decade or so now, so there are some well established services that you can draw some really good data from. Before I was in Oxfordshire, I was in Somerset, and we did a lot of work in the Somerset system to develop “Home First”, because our delays were really poor. We saw significant improvement in the outcomes for patients in the first instance. We then saw significant improvements in the flow from the acute hospitals, and I would say we also saw some significant benefits to the local authority in relation to the commitment it had to individuals on an ongoing basis.

I have been out of that system for over two years, but the work that it has done since then to take that even further is phenomenal, and I would encourage you to talk to some of the health and social care professionals in that system. One of the hallmarks of the system is that it does not rely solely on health and social care professionals. It has brought what it refers to as community agents and village agents into the hospital to help with discharge. It has got the voluntary sector as an equal partner. It is helping the individuals beyond the health and care needs that they have in leaving hospital.

I personally believe that discharge to assess is a robust and positive model, and I am hearing nothing to the contrary from director colleagues. What I am hearing from director colleagues, though, is real anxiety about conclusions that might be being drawn from the very point you made, which is that we have tried to evaluate discharge to assess in a very short period of time, and at a time when demand and pressure on the service has been at its most acute. Remember that it is not just the physical demand on those services that we have been experiencing; we have been working on an assumption that there is likely, at any point, to be an immediate surge in the demand for acute services, so we have been working to try to ensure that there is always capacity behind us should a further wave—either a local or a national wave—occur. We have been, up and down the country, operating systems at a pace that I have never seen before, as a result of covid. I would be cautious about drawing out any strong opinions around discharge to assess from an evaluation that was done during that covid period. For me, it is the only model that really helps people leave hospital in a timely manner.

I do not know about any of you, but as I get older and hospital admission becomes more likely, I want that hospital admission to deal with the acute need that requires it, but I want to go back home as quickly as I possibly can and to be able to continue to regain the independence I had. I do not want to become reliant on the local authority for all my support, which is why that reablement support at discharge is so critical.

Gerry probably wants to add to this, but the multidisciplinary approach that has a social worker and the local authority at its heart, building upon not just the professional expertise we bring but the relationships with our communities, our voluntary sector and our social care providers, is critical to that success.