Health and Care Bill (Second sitting)

Justin Madders Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[The Chair]

We had better move on.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

Q Good afternoon. Obviously, you have the ICB and the ICP both within an ICS. If there is a disagreement between them about the direction of travel on a particular policy issue, who arbitrates? In your opinion, who is likely to be sided with in such a dispute?

Matthew Taylor: I defer to Saffron on that one.

Saffron Cordery: I think this is one of those elements that we have seen quite a lot of throughout the legislation in terms of where is the recourse—that is not the right word, but I cannot think of another one right now—if things go wrong. Collaboration by its very nature is a positive process where willing parties come together to reach agreement. Everyone’s hope and aspiration is that that is how ICSs will work overall, and that is how the ICB and ICP will work together. It is not currently clear how there will be recourse to arbitration or dispute resolution, if you like, in the process of this legislation. We have seen an optimistic approach to how this legislation has been brought together—rightly in some senses—and of course we do not want a situation where we are anticipating that the evolution of a new way of working will not be functional. At the same time, the role of legislation is to anticipate what can go wrong, as well as to support what needs to be done. It is not yet clear how some of this will shake out in terms of where ICBs and ICPs need to turn to should there be challenges, issues and disagreements. We have to remember that those bodies, once they have their independent chairs and accountable officers and chief executives, sit within the NHS system, so they sit within the regional NHS England system and within the overall NHS system. Routes will be pursued, but at the moment it is not clear to me how disputes, for want of a better word, will be resolved.

Matthew Taylor: The only thing I would want to add is that during covid, we have understood the scale of health inequalities. The evidence has been that those inequalities are growing. That has demonstrated that we need a conversation between the health service in relation to how it deals with the demand that is presented to it and the wider question about how we address population health. In some cases, that might mean that you have some creative tension between those two levels. As Saffron said, it will come down to the quality of relationships, and if those relationships break down, I am sure that the centre will need to intervene to address that because the system cannot work if it breaks down. But the fact that those two bodies might have a slightly different emphasis and focus is probably a good thing because this debate about how we best use our health resources to address population health and health inequalities is an important debate for us to be having nationally and locally. Let us face it, we have not got this right up till now.

[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.

--- Later in debate ---

[Dr Whitford]

Thank you. In the interests of time, I am happy with that.

Ian Trenholm: If I could make just one point, I think you are absolutely right: the broader responsibilities of an individual provider, particularly around such things as duty of candour, would still stand. Therefore, at an institutional level, people will still need to do the things that they always needed to do, but there is a very specific set of circumstances that Keith was describing where safe space may apply.

[Justin Madders]

Q I have a couple of questions for Mr Trenholm. You mentioned the importance of co-operation with other agencies. At the moment, are there barriers that the Bill could help with in terms of identifying people who may provide inadequate care under the guise of a company and then dissolve it, move on and create another? Is there anything in the Bill that will help you to track those people?

Ian Trenholm: I do not think that there is at an individual provider level. What you have just described is our normal registration regulation process at an individual provider level. As we start to look across individual places and ICSs, we might be able to talk to individual partnership boards about people who are operating locally, but I do not think the Bill explicitly gives us more powers to look at individual providers in any more detail than we already would as part of our normal registration process.

[Justin Madders]

Q In terms of what you are required to do under the Bill, have you made an assessment of what additional resources you will need to deliver that?

Ian Trenholm: Not yet. Obviously, as the Bill goes through Parliament the breadth and size of what we will be asked to do will become clear. We are talking to a range of different stakeholders at the moment. The NHS Confederation and NHS Providers are on our list, as are the Local Government Association, the Association of Directors of Adult Social Services and, of course, various representative groups that represent people who use services, so we are having those conversations now around what they would expect from good-quality assurance at a system level—but no, we have not really got to the point of assessing this in any detail.

[Justin Madders]

Q Mr Conradi, in your submission to the Committee you mentioned a concern about the powers of the Secretary of State to order investigations. You used the term “undue political influence”. I wonder whether you could expand on what you mean by that exactly, and what your concerns are.

Keith Conradi: We see ourselves as very much an independent and impartial investigation body that can sit outside the system and look into it. We would not want to have any barriers really on where we might look to see where patient safety could be improved. As I mentioned earlier, we tend not to dwell on the incident at the trust level, but try to work our way up through the system. Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit. That independence of the system is crucial for the success and the credibility of the organisation.

[Justin Madders]

Q In terms of recommendations, how are they monitored to ensure that they are actually implemented?

Keith Conradi: At the moment, they are monitored fairly informally. There is a part of NHSEI—a patient safety team—that looks at whether the actions that were promised in the response to the safety recommendation have actually been carried out. We believe that that might sit more appropriately with this body in the future—NHSEI receive a rather large number of our safety recommendations, so I do not know whether they are the right body to monitor the actions that are taking place, whereas I think that could sit with us. It is important that that is just monitoring the actions, not judging the outcome, and I think that there needs to be a separate, probably pan-regulation-type body that looks at whether the outcome at the end of the day mitigated the patient safety risk that we first went out to investigate.

[Justin Madders]

Q So in terms of what NHSI do at the moment, presumably you are interested in their investigations and ongoing work, but there is no formal method by which they can report back to you so that you can be satisfied that things are progressing?

Keith Conradi: Informally, we have a good working relationship, so we are interested. We get the response to the safety recommendation and we internally look at that and consider whether we are happy with it. If we are not, we would send out letters to say that we would like further information. We want to put this on a more formal footing to see that in the future.

[The Chair]

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