Health and Care Bill (Third sitting)

Justin Madders Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[The Chair]

Thank you very much. I now turn to Justin Madders, the shadow spokesman.

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

Q Thank you, Mrs Murray. Good morning to the witnesses and thank you for coming today. Dr Nagpaul, you talked earlier about unequal arrangements for private sector provision. Could you expand a little on what you mean by that?

Dr Chaand Nagpaul: Yes. If you repeal section 75 but do not allow the NHS to be a preferred provider, we believe that opens the door for contracts to be handed out to the private sector and undermines the NHS.

Although it may fall out of scope, the point is that there is every reason for the NHS to be a preferred provider. The point I am making is that the NHS really is effective and cost-effective, and allows for a population approach from providers that have accountability to local populations.

The other problem we have at the moment, unless you put in legislation to make the NHS the preferred provider, is that at the moment a lot of contracts are going out to the private sector and are affecting workforce training. In some areas, cataract operations have been moved en bloc into the private sector, meaning that ophthalmology trainees are not even seeing them, and the providers that are providing cataract operations are being paid the same sum of money but not providing the full service.

Another problem we have at the moment is cherry-picking. It has been there since 2012 and nothing in this Bill is legislatively addressing that. It means that you pay the same amount to a hospital—I am a GP and there is a list of exclusion criteria for any patient who has co-morbidities or complex conditions, so I cannot refer them there—but when something goes wrong in the middle of the night or on a weekend, they end up in the A&E of our local hospital.

That is why we believe it is really important that the Bill is amended to make the NHS the preferred provider; that is what we are referring to. We believe it will allow for a much more co-ordinated, accountable, locally focused and population-approach health service.

[Justin Madders]

Q We will see what we can do about that. In your written submission, you raised concerns about private providers sitting on ICS boards. Could you just say a little more about what your concerns are there?

Dr Chaand Nagpaul: If we have a Bill that is designed to support the NHS, we just feel that it does not make sense to then allow a private provider to sit on a commissioning board. We believe that there is an inherent conflict of interest. It is really important to understand that there is a difference between the private provider and the NHS. The private provider is ultimately driven by its financial motives, and to be sitting on a board influencing the spend of money where it may have an interest is a conflict of interest. That does not apply to the NHS. A doctor from a hospital does not have any financial gain to be made. I come back to the fact that we need to support the NHS, not as an ideological principle, but because it actually works.

[Justin Madders]

Q That is very clear, thank you. To play devil’s advocate, can you think of any positive reason why there would be a need for private companies?

Dr Chaand Nagpaul: No, I do not. If the NHS cannot provide a service—if it does not have the capacity—and there is a private sector contract, the private provider needs to be held to account to deliver. As I say, I think the same rules should be applied, so that if there is a complication, they need to be accountable for that complication, rather than the patient going back to the NHS, which picks up the pieces. There is a need to hold private providers to account where they are contracted to provide care, but we do not approve of them sitting on the commissioning board, which is about the use of public resources in the interests of local populations. That should be a commissioning decision, and commissioners who are accountable to the NHS and providers of the NHS should be sitting as part of that arrangement.

[Justin Madders]

Q Thank you. In your submission, you also referred to concerns about some of the Secretary of State’s powers proposed in the Bill. Could you say a little more about what those concerns are, please?

Dr Chaand Nagpaul: Sure. One is the NHS mandate, which spells out how the NHS functions. At the moment, the powers allow the Secretary of State to amend the mandate. We would like that to be affirmative. We would like it to be approved by Parliament, and therefore Parliament would vote to agree changes to the mandate. That is one area.

The other concern is about the local reconfigurations. We know how politically sensitive these things can be. We would not want the Secretary of State to have disproportionate powers in those arrangements, which will often be more susceptible to political influence. We think that those need to be safeguarded by mandated clinician involvement, so that we make the right decisions about local services. It is a counterbalance: we want a health service that has local clinician leadership, but on the other hand the Secretary of State can intervene. We think that is an amendment that needs to be made.

[Justin Madders]

Q Thank you. Ms Gorton, good afternoon—it is afternoon now. You obviously represent a huge range of employees within the NHS. What role do you see ICBs having in direct negotiations and consultation with the workforce?

Sara Gorton: There are a couple of points to raise here. First, we would like to see in the legislation confirmation of what we have been given assurances of in guidance and conversation—that there is no intention for any new parts of the system to undermine the existing collective arrangements and that, for the workforce I represent, the collective agenda for change agreement would apply for their staff. There is a very clear amendment that could be supported to ensure the new bodies are listed as what are called annex 1 employers in the relevant terms and conditions documents. That is one aspect.

The other aspect is the role that the provider selection regime can play—sorry, not the provider selection regime; what are called the people responsibilities, which are set out in some of the guidance materials that have only been recently published to support the legislation. They set out 10 areas relating to workforce over which the new bodies may have scope. We would like to see those areas of scope clearly defined within the legislation. That is why what I said earlier about the commitment to involve staff through the constitution promise is so important. We want to ensure that, if decisions are made at system level that undercut the role that staff have in making decisions within providers—if there are overarching decisions made about workforce—staff have an opportunity, through their representatives, to understand what the impact might be and to influence that conversation.

[Justin Madders]

Q Thank you. That is very helpful. You have probably seen quite a lot of media coverage today about the possible salaries of the chief executives of the ICBs—up to £270,000. What do your members, who have had 10 years of pay restraint, feel about those kind of figures being bandied about?

Sara Gorton: We are supposed to stick to polite language in here, aren’t we? You can all probably imagine what most of our members feel. Sticking within the scope of the Bill, as we have been asked to, the relevant segue is to go back to the extension of the provider selection regime to the non-clinical services. We are strongly supportive of the measures that have been put in place to ensure that service sustainability and social value are taken into account. Clearly, however, extending those provisions to non-clinical services would create a culture of in-sourcing, of valuing all members of the healthcare team equally, and place those on an equal footing.

[Justin Madders]

Q Moving on to the proposals in the Bill regarding professional regulation, do you see any risk or have any concerns about that, as it is set out?

Sara Gorton: As you have hopefully seen in our briefing, we are calling for that to be either explained in much more detail in the guidance, or dropped from the legislation. We are already seeing concerns from regulated occupations that this could lead to a sort of “regulation-lite” scenario, and there are concerns that, without it being clear exactly what the proposals would entail, this could be a hostage to fortune. We would very much like to see some clarity on that, or have it taken out at this stage.

[Justin Madders]

Q I will ask the same question that I asked Dr Nagpaul about the involvement of private providers on ICBs. Is there, in your mind, any possible argument as to why it might be a good idea?

Sara Gorton: What we are more concerned about is the potential risk that, if involved in the ICBs and in the partnerships, they could exert influence over the exploratory stage of discussions, which could tilt the balance their way. That seems out of kilter when we do not have clarity that staff of the NHS will have the opportunity to be involved at the same sort of level. We are very keen to ensure that we support amendments making any of the processes, and the way that the boards meet, more transparent, and, clearly, subject to the freedom of information process.

[Justin Madders]

Q Just one final question: at the moment, do you feel that there are enough avenues for trade union staff representation to feed into the boards?

Sara Gorton: At the moment, there is no explicit route through. What is set out in the published guidance documents is that the route for trade unions to be involved will be through the regional structures of NHS England and NHS Improvement. That is at a distance, and potentially after decisions have been made. Putting in a clear link, through that staff pledge in the NHS constitution and having that underpinning in the legislation, would really make clear the principle of staff involvement and engagement at the earliest stage of decisions.

[Justin Madders]

Thank you very much.

[The Minister for Health (Edward Argar)]

Q Sara and Chand, welcome. I will try to get through three questions, but, if I run out of time, I will settle for two. We heard from a significant number of witnesses on Tuesday; you will have seen or read what they said. The overwhelming majority said that now was the right time to do this. Sara, I noticed that, in your evidence, notwithstanding the challenges you posed about some of the content that you would disagree with, you highlighted that this was due in 2019, on the basis of the original consultation, and asked why it had taken so long.

To both of you, do you think that now is the right time? I know that Chand has answered that, but this second part might apply to him: if it is not, when is the right time?

Sara Gorton: We were strong opponents of the 2012 legislation, so, in our view, the right time to do this would have been to not put that legislation through. However, we have been waiting for this batch of changes for some time. It has been evident, from 2013-14, and certainly since the “Five Year Forward View” was published, that what we were doing was having a structural workaround with people tacitly agreeing to almost ignore legislation. That is just not acceptable in the system.

Certainly, for my members who have been moved into new arm’s length bodies, moved around those bodies, and are now subject to another change, they want the security of knowing who is going to be employing them this time next year. In our view, the changes, both to the competition and procurement regime, and to clarifying how the new bodies will operate and what powers they will have, cannot wait. There are lots of other aspects that, as you can see from our briefing, we suggest could wait for future debate.

Dr Chaand Nagpaul: I want to be clear: we do not support the status quo. There is a pressing need to repeal much of the 2012 Act. However, I cannot overestimate how much the pandemic has affected us. We have not been able to be engaged, so it has to be asked: why do we need the Bill at this moment in time, when we are all absolutely overwhelmed? We know that any reorganisation of the health service means that people get distracted from their core work. The process of reorganisation takes human resource time. We have not been able to engage with this as we should, so we do not think that this is the right time.

The right time would be decided by two factors: first, when we are through the worst of what we are going through at the moment, and secondly, when the legitimate concerns we have are addressed, and there are the amendments that we would like to see. This Bill can shape the future of our health service. Get the right Bill, at the right time.

--- Later in debate ---

[The Chair]

Thank you very much. We are making excellent time.

[Justin Madders]

On a point of order, Mrs Murray. On the Minister’s question to the BMA witness about previous Acts that the BMA may have endorsed, that would clearly be out of scope as evidence. I would not want Dr Nagpaul to waste time researching an answer that the Committee could not take into account.

[Edward Argar]

Further to that point of order, Mrs Murray. Would it help if I set out the context in which I believe that question relates directly to the content of the Bill? Much of what is discussed in the Bill relates to previous legislation that has grown up over time; understanding which pieces of legislation the BMA supports will help us to better understand the evidence it has put forward on this legislation, and its context.