Draft Employment Rights Act 1996 (NHS Recruitment-Protected Disclosure) Regulations 2018

Justin Madders Excerpts

Wednesday 25th April 2018 General Committees

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

It is a pleasure to serve under your chairmanship, Ms Dorries. We welcome the Government’s implementation of one of the key recommendations of Sir Robert Francis’ “Freedom to Speak Up” report on whistleblowing. The report shone a light on the completely unacceptable treatment that hard-working and committed NHS staff experienced when making protected disclosures. One individual told the Francis inquiry that

“finding employment is proving very difficult and I question whether any of it was worth it”.

Another said:

“I have often been so depressed by this experience that I have often considered suicide.”

It is important that we give those who want to speak out the confidence that doing so will not harm their future employment prospects. The way workers are treated, simply for raising concerns to prevent harm to patients, is shocking and unacceptable. We welcome the offer of additional protections, but we have a range of concerns about the approach taken, and I will welcome the Minister’s comments on those.

Although we understand that the draft regulations stem directly from the Francis inquiry report, we struggle to understand why they are limited to one sector. Other sectors have identified a need for such protections—for example, financial services, and we know that in social care a number of people have felt the need to blow the whistle on various issues. There is a case to be made for these protections to be extended to all job applicants.

Not only do the draft regulations leave employees in other sectors without these important protections, but, as we understand it, they provide only partial protection for NHS workers. They would not protect an NHS whistleblower applying for a job with an employer outside those covered in section 49B(6) and (7) of the Employment Rights Act 1996, as amended. Although that is a long list, it is by no means a comprehensive one. It appears, for example, that neither NHS England or the Department of Health and Social Care is included in that list; nor are other bodies such as GP surgeries or agencies supplying staff to the NHS, including the NHS staff agency, NHS Professionals.

It also appears that private companies supplying services to the NHS are not included. As we know from the Westminster Hall debate on Monday—leaving aside the merits of private involvement in the NHS—there are many private providers embedded within the health service and other bodies in the wider health sector that do not appear to be covered, including academia, private health organisations, pharmacies, medical research and public health. Agency workers in particular raise an important issue: we know that many staff working in the NHS choose to work through agencies, rather than be directly employed by a trust, and often move from workplace to workplace.

Often, those coming into a workplace with a fresh pair of eyes can spot problems that may not be readily visible to those who spend all their time in a specific work situation. Does the Minister think it sends the right message to those who may want to blow the whistle that there are potentially hundreds of providers in the NHS that are not covered by the draft regulations? Whether there is full protection depends on which part of the NHS receives the job application.

Also, the regulations fall short in terms of future-proofing. We are all aware of new models of care, with accountable care organisations, integrated care systems and so on. While these may not yet be formal legal entities, the lack of legislation on that emerging framework is a matter of great concern. We simply do not know at this stage whether the new organisations will ultimately become NHS employers, but we do know that limiting what the regulations cover may create more gaps where NHS staff will not have the same protection as others.

There are developments now, for example in relation to wholly owned subsidiary companies, where it is anticipated that under current plans around 8,000 NHS staff will see their employment transferred to the new companies. Is it intended that the regulations will cover wholly owned subsidiary companies? If, as I suspect, the regulations will cover the rather narrow remit I have set out, will the Government look at widening their scope in due course?

In common with many of the respondents to the consultation, we are concerned about the complexity of the regulations. Simplifying legislation is something I think we all want to achieve and that could have been done. Concerns about employees who might be missing out because of the narrow scope of the employers and suppliers covered could have been dealt with by amending the definition of “worker” to include applicants for employment under section 49B of the 1996 Act. Will the Minister explain why she took this approach, instead of the one I just outlined? Will she also respond to comments made by the National Guardian’s Office, which said that the regulations could cause more litigation and make it more stressful for the applicant, which would

“inevitably have a negative impact on their relationships and family life”?

In “Freedom to Speak Up”, Sir Robert Francis wrote:

“When asked for advice by NHS organisations about issues around public interest disclosure, legal advisors have tended to be influenced by an adversarial litigation—and therefore defensive—culture.”

That is a description that I think applies across a range of issues in the NHS. Does the Minister recognise that, by drafting the regulations in this way, the Government risk continuing rather than challenging that culture?

Although we welcome the fact that regulation 3 removes any restriction to action being available only in cases where a protected disclosure has taken place, we are concerned that the use of the phrase

“because it appears to the NHS employer”

might have the unintended effect of opening up a range of technical defences to NHS employers. Will the Minister consider, for example, the instance where a protected disclosure has taken place, but the employer is able to argue that it did not appear to it to be a disclosure, or even that it simply did not consider whether a disclosure had taken place at all?

There seems to be an anomaly involving the original whistleblowing legislation, where an employee is dismissed or suffers a detriment as a result of protected disclosure, and the regulations before us. The employee could find themselves without any protection if it turns out that they have not made the disclosure, although the employer has mistakenly concluded that they have. This appears to be at odds with the draft regulations, which suggest that it is irrelevant whether that individual has made the disclosure. The only consideration under the draft regulations is whether it appears to the trust that the disclosure has been made. I would welcome any comments the Minister has about whether there are plans to regularise this situation in the future. Given that it will be for the court to interpret the employer’s belief and how the test is applied, would not applicants be placed at a clear disadvantage, requiring them to take expert legal advice?

We are also concerned that, unlike discrimination protection provided by the Equality Act 2010, the legislation provides no whistleblowing protection for a worker who is victimised for supporting another worker who made a protected disclosure. It may be, for example, that two workers are known to have investigated a concern together, but that only one of them makes the disclosure. What protection will be offered to those who are associated with or give evidence in support of a whistleblower under the regulations?

It is also unclear what position an employee will be in if they believe that they are being discriminated against, based on matters that are subject to an existing settlement agreement. In the Minister’s view, could bringing an action under the regulations leave an applicant in breach of such a settlement agreement?

We welcome the confirmation in regulation 4 that the burden of proof will apply to the employer rather than the employee,

“in the absence of any other explanation”.

Will the Minister confirm that a high bar will be set for the kinds of explanation that a tribunal would consider reasonable?

Regulation 5 applies a three-month time limit on making a claim, consistent with existing rules on applications to an employment tribunal, but there are clear differences between cases brought by an employee and those brought by an applicant. The applicant will know that they have been rejected for the position, but they may not know for some time—if at all—that that rejection is connected to their having previously made a protected disclosure. For example, in response to the consultation on the regulations, the British Medical Association raised concerns that the applicant might be able to obtain the required information about the conduct that might give rise to a claim only by using the Data Protection Act 1998, which is often a time-consuming process. Given how long it can take an applicant to understand that they may have been discriminated against, a better time limit might start the clock from the claimant first becoming aware of the conduct, as is the case for negligence claims.

Regulations 6 and 7 relate to compensation. We welcome the fact that there is no upper limit on compensation, consistent with existing practice on the settlement of whistleblowing claims, although the Department has a self-imposed limit on compensation claims made to employees upon loss of office. However, I have a concern about regulation 7(5), which relates to the conduct of the applicant. It is difficult to see, if a tribunal finds that a job application was wrongly rejected on the grounds of a protected disclosure, how an applicant’s actions could have contributed to the rejection. I would welcome some guidance from the Minister about the types of situation in which that might apply, as it seems to give employers an opportunity to water down the amount of compensation that they may pay, perhaps on spurious grounds.

In effect, regulation 8 includes injunctive relief, restraining employers from imposing detriment or requiring any detriment to be brought to an end, which seems akin to an interim relief application in respect of an existing employee. As a number of the consultation responses highlighted, the costs of bringing actions in the county court and the High Court are significantly higher than in the employment tribunal. Will the Minister therefore consider making representations to her colleagues in the Ministry of Justice about whether the costs regime used in employment tribunals could be applied in those cases? Will she also comment on whether there are any plans to reintroduce employment tribunal fees, which act as a barrier to justice?

There are also concerns about injunctive relief from the perspective of NHS employers. There is clearly a prospect that the injunction process could cause recruitment exercises to be delayed, disrupted or abandoned altogether, which could have a significant impact if there is an urgent need to fill a vacancy, or if a very specialist role is vacant. As we all know, there are significant vacancies across the NHS in a range of disciplines. Putting a process on hold would also have an impact on other applicants for that position.

If the applicant is successful in obtaining injunctive relief, that gives rise to a question: what if they would not have been offered the job in any event? Having been ordered by the court to disregard a protected disclosure, would the employer then feel obliged to employ that candidate, even if they did not consider the candidate to be the best person for the job? Is it realistic to think that an employment relationship that starts on the basis of a court order can last?

Subject to the Minister’s response, we are minded to support the draft regulations. Although they are piecemeal in many ways, and do not go far enough in their scope, they still represent a significant improvement on the current position and, I hope, the start of further improvements to protections for whistleblowers.

[Caroline Dinenage]

I am grateful to the hon. Gentleman for his support in this important matter. For too long, we have failed to protect those who are brave enough to speak out when others do not. We learned from the Mid Staffs case about what happens when there is a defensive culture and people cover up mistakes. We want to make the NHS the safest healthcare system in the world, so we must build a culture of openness and transparency. If we are to do that, healthcare professionals need to feel that they are safe to speak out about problems in the workplace. We want them to feel safe in raising problems, so that speaking out becomes the norm and not the exception. These important measures should ensure that staff can raise concerns, knowing that they are protected by the law and that their career in the NHS will not be damaged as a result of doing the right thing.

The hon. Gentleman asked a number of important questions and I will attempt to answer as many as I can, but I will respond in writing on any that I omit, if that is acceptable. We need the draft regulations, in addition to the Employment Rights Act 1996, to protect people from detriment when they have spoken up in the public interest when they reasonably believe that they witnessed wrongdoing. “Worker” has a wide meaning in this context: the original legislation does not include job applicants, so the draft regulations address that. In addition, they provide that discrimination against a job applicant by an NHS employer is actionable as a breach of statutory duty. That gives job applicants additional protection and includes the right to bring a claim in the civil courts for a breach of statutory duty—for example, to prevent discriminatory conduct.

The draft regulations also treat the discrimination of an applicant by a worker or agent of the prospective NHS employer as if it were discrimination by an NHS employer. NHS staff who are prepared to speak out are an important asset, and workers who have previously had the courage and the compassion to do this should also be considered a valuable asset by the NHS body that is considering whether to employ them. I am sure that the hon. Gentleman agrees.

The draft regulations give NHS job applicants a right to complain to an employment tribunal if they feel that they have been discriminated against. The draft regulations set out a timeframe of three months, as he identified: that is consistent with the time limit for employment claims generally. The draft regulations also make it clear that, in the case of a decision by an NHS employer not to employ or appoint an applicant, the three-month time limit starts from the date that the decision was communicated to the applicant and not the time that the decision was made by the employer. The draft regulations enable the tribunal to consider a complaint that is otherwise out of time, if it considers it just and equitable in the circumstances.

[Justin Madders]

I know that the Government want to reduce the number of tribunal applications made. Does not the hon. Lady feel that there is a risk that, if employers are putting in applications not in possession of the full facts, more litigation would actually be encouraged rather than less?

[Caroline Dinenage]

The Government will keep that under review. It is important that we keep this as consistent as possible with the time limits for general employment cases, but if there do appear to be any issues along those lines, they can be reviewed.

The draft regulations also set out the remedies that the tribunal may or must award if the complaint is upheld. The employer may be ordered to pay compensation or the tribunal may recommend that the employer take other specified steps or make a provision on the amount of the compensation that may be awarded.

The application to an employment tribunal under the draft regulations is subject to the early conciliation regime, which provides an opportunity to resolve the claim via ACAS. We often find that, when people are able to resolve their differences via ACAS, it helps to alleviate the problem of someone who has had tribunal experience to the detriment of their future employment. It should also help to ensure that only cases that cannot be resolved through other methods actually reach the final step of an employment tribunal.

The draft regulations enable an employment tribunal to order compensation to be paid where there has been an actual breach of the prohibition on discrimination. The power to award damages is discretionary. Ultimately it is for the court to decide whether damages should be awarded, and we expect the court to take into account all the relevant factors when deciding whether that is appropriate, and to act fairly.

The hon. Gentleman is right to ask why the measures focus specifically on NHS employers. That was the original reason behind the legislation. The freedom to speak up is important, though, and we shall keep the regulations under review and assess their impact on the NHS before we assess the possible impact on other employers, such as social care providers.

[Justin Madders]

It was not just the fact that it is applied only to NHS employers, but that it is applied only to some NHS employers. I gave examples of various organisations within the NHS that are not covered by the regulations.

Privatisation of NHS Services

Justin Madders Excerpts

Monday 23rd April 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Hosie. I congratulate my hon. Friend the Member for Hartlepool (Mike Hill) on the eloquent and knowledgeable way in which he introduced the debate on behalf of the Petitions Committee. He took us through a brief history of the health service and private sector involvement in it, and talked about the fears that have been expressed about the future of private involvement, particularly through the tendering process and the potential trade deals with other countries. I was very sorry to hear about his constituent, Connor McDade, and I would like to send my condolences to his family. I join my hon. Friend in paying tribute to the staff who looked after Connor and to all staff in the NHS, who make it the institution we feel passionately about.

That passion is demonstrated by the fact that, by the time we finish the debate, more than 20 Members will have spoken. Unfortunately, because of the number who have spoken, I am not able to go through every single contribution, but I want to draw attention to some of them.

My hon. Friend the Member for Hyndburn (Graham P. Jones) made an excellent speech in which he told us in detail how Lancashire has fragmented under the Health and Social Care Act 2012, and said that a High Court judge has blocked a £4 million Virgin Care contract. Later, I will talk about some of the adverse consequences of the 2012 Act in terms of litigation.

My hon. Friend the Member for Warrington South (Faisal Rashid) rightly raised concerns about the fact that the pursuit of profit can put patient care at risk. He gave a number of examples of the litigation that has been forthcoming, and he was ably assisted by my hon. Friend the Member for Dewsbury (Paula Sherriff) in that regard.

My hon. Friend the Member for Stroud (Dr Drew) talked about the wholly owned subsidiary that is proposed for his area. He is right that such a major change should not be proposed without being referred to hon. Members or members of the public. He asked a number of pertinent questions, and I look forward to hearing the Minister’s replies.

Similarly, my hon. Friend the Member for Leeds North West (Alex Sobel) talked about the wholly owned subsidiary company in his constituency. I was pleased to hear that his trust has at least responded to hon. Members’ concerns and is taking stock before moving on. I agree that there needs to be equality across all trusts in respect of the funding base upon which they make such decisions. He was absolutely right to say that it is not only clinical staff who make the NHS what it is today. Sometimes we do not recognise the valuable contribution that those who work behind the scenes make to the smooth running of our services.

My hon. Friend the Member for West Lancashire (Rosie Cooper) gave a tour de force of a speech. She is a greatly experienced health campaigner and described three fundamental problems with how the health service is run at the moment: transparency, accountability and the prioritisation of shareholder gain. How can it be right for a publicly funded service to refuse to answer questions from an hon. Member on the basis of “commercial confidentiality”, a phrase that can cover a multitude of sins? My hon. Friend is absolutely right to continue pursuing such matters, as she has done in many areas.

My hon. Friend the Member for York Central (Rachael Maskell), as always, gave a formidable speech about the issues affecting our national health service. She set out clearly how the cherry-picking of some services by the private sector damages the NHS as a whole and loads risk on the public sector.

[Richard Graham]

I was struck by how the hon. Member for York Central (Rachael Maskell), while talking about the need to find cross-party consensus on these issues, took no interventions from anyone on the Government Benches—[Interruption.]

[Richard Graham]

Furthermore, she made no recognition of the fact that issues such as subsidiary companies and so on are separate from the points she was making and absolutely not about privatisation.

[Justin Madders]

Members are indicating that my hon. Friend the Member for York Central did take interventions. It is not for me to comment on that, but I thought her speech was superb, and it came from many years of experience in the health service. However, on the contribution of the hon. Gentleman himself, I have to say that I disagree with him—this debate is about not a local election or weaponising the NHS, but about the 240,000 members of the public who signed the petition, which was launched some five months ago.

The hon. Gentleman also challenged us to find Conservative Members in support of privatisation—they may not express that support publicly, but we need only look at what has happened to the health service under a Conservative Government to see that privatisation has accelerated since 2010. There is also the famous 2005 pamphlet that advocated privatisation of the NHS. The Health Secretary has, I know, disowned his comments as one of the co-authors, saying that the pamphlet no longer represents his views, but at least five other current Conservative Members were co-authors, so there are questions to be asked about it of those on the Government Benches.

As other Members have said, private sector involvement has of course always been an element of the NHS, but since the Health and Social Care Act came into force there has been a step change in that involvement. After the Act became law, the amount of cash going to private sector partners went up by a staggering 25% in the first year alone. That is part of a broader trend identified by House of Commons Library research—the equivalent of £9 billion a year of NHS funds now goes into the private sector, which is double the figure under the previous Labour Government.

As we have heard, there are also huge problems with litigation arising from the 2012 Act. Money should not be spent on lawyers, procurement processes, tendering and court cases; it should be spent on patients. Given the longest and most sustained financial squeeze in the history of the NHS, we can ill afford money to be used in that way. The financial squeeze has also had consequences for how NHS hospitals are forced to use the private sector. Elective procedures in the private sector have gone up by 58% in the past year alone.

[Kevin Hollinrake]

Will the hon. Gentleman give way?

[Justin Madders]

I am sorry, I shall take no more interventions, because I am struggling for time.

Patients are voting with their feet. Owing to the deterioration in waiting times, over three years the number of patients going abroad for treatment has trebled to 144,000 last year. With the Government abandoning the 18-week waiting time target, and the widespread rationing of some treatments, that figure will surely get worse. Does the Minister accept that those figures are a matter of concern, and does he expect them to increase or decrease in the next 12 months?

[Kevin Hollinrake]

Will the hon. Gentleman give way on a matter of record?

[Justin Madders]

Okay.

[Kevin Hollinrake]

I am grateful. The hon. Gentleman will correct me if I am wrong, but I think he said that the growth rate in outsourcing has increased under this Government and the coalition. Full Fact, however, states that the growth rate was similar under both Governments—the Governments since 2010 and the previous Government.

--- Later in debate ---

[Justin Madders]

I am familiar not with those particular figures but with the House of Commons Library research, to which all Members have access and which was available in the brief for this debate.

A number of Members talked about wholly owned subsidiaries, and how they can undermine terms and conditions and open a back-door route to potential privatisation of the NHS. So far, the Government have kept that back door open. There are no guarantees that such companies will not end up in private hands in future, or that the recently announced and much welcomed pay rise for NHS staff will apply to those employed by those subsidiaries. Will the Minister agree that, as a matter of fairness, staff working in the subsidiaries should also receive the pay rise proposed by the Government?

In recent years many NHS trusts have set up those private companies, and up to 8,000 posts could potentially be affected—some reports have suggested that up to 40 trusts are now considering such arrangements. If completed, that would represent one of the biggest transfers of NHS staff and resources. We know the financial pressures that trusts are under, and some have sought to justify such moves as a way of saving VAT, so we can understand the dilemma facing trusts—the funding restrictions in the NHS have been some of the most difficult in living memory.

The overall position, however, is that there would be no saving to the taxpayer—although individual trusts may make a saving—because whatever is lost to the Treasury has to be made up elsewhere. It is incumbent on the Government to take action to ensure that all trusts are on a level playing field. The fact that they have done nothing so far adds to the suspicion that they are allowing, whether by accident, design or indifference, the fragmentation and privatisation of the NHS. I have some sympathy with the trusts making those proposals, but when one looks at the amount spent on management consultants to come up with the changes, the sympathy dries up.

Near my constituency, for example, the Clatterbridge Cancer Centre has spent more than £661,000 establishing a wholly owned subsidiary. The figures show wholly owned subsidiaries to have been extremely profitable for consultants in recent years and, despite a 2010 ministerial pledge to reduce managerial costs by 45%, annual expenditure on management consultants increased by 104% between 2010 and 2014. A study by the University of Warwick evaluated the expenditure, and the principal finding was that the use of management consultants was associated with a small decrease in efficiency. Has the Minister considered that report by Professor Kirkpatrick, and will he look again at the role of management consultants in the NHS?

I appreciate that I am running up against the time limit, so I will conclude. The people who have signed the petition are clearly articulating a concern about a hostile environment created by this Government. They wish to see a return to a properly funded, comprehensive, reintegrated and public NHS that is of course free at the point of use. It is time for there to be a Labour Government to deliver that vision.

Leaving the EU: NHS

Justin Madders Excerpts

Thursday 22nd March 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Davies. I join other Members who have expressed their remembrance and condolences to the families of those who died last year, particularly PC Keith Palmer. There was a very moving service in Westminster Hall this morning, which was a very fitting tribute to those who lost their lives this time last year.

I thank the Backbench Business Committee for securing this extremely important debate on one of the aspects of our exit from European Union that has not received the attention that I believe it warrants.

I congratulate my right hon. Friend the Member for Exeter (Mr Bradshaw) on the extremely clear way he introduced the subject. As someone who has served in the Foreign Office and as a Health Minister, before becoming a member of the Health Committee, he is perhaps more qualified than most to address many of the issues that we have discussed. He talked about the Select Committee report and how the wrong deal or no deal at all will be extremely damaging to the NHS in a series of ways, most of which I will touch on. It was also clear from his comments that there is a need for the Government to have a strategy in place to deal with the potential impact of no deal. It would useful to hear from the Minister on that.

I agree with my right hon. Friend about the loss of the European Medicines Agency to Amsterdam. It was a matter of great regret that we lost that wonderful institution. The fact that there were so many countries bidding to take it over shows how important it is to individual member states. My right hon. Friend set out some of the risks of no deal, leaving us on World Trade Organisation arrangements, with the potential risk of the seizing up of the medical supply chain. He also talked about staffing, which most hon. Members touched on. He gave the stark example of the number of midwives from the EU. If the current rate of attrition continues, we will have no EU midwives left in a decade. I remind hon. Members that we already have 3,500 midwife vacancies. He also talked about research and gave some clear examples of how investment is being lost now, before we have actually left the EU, and the impact on reciprocal care.

My right hon. Friend also touched on several things that were not in the report, but which are also important, such as the fiscal impact of our leaving, the potential risk to food standards and, of course, the risks from future trade deals. It is ironic that the NHS and other public services are specifically exempted from trade deals at the moment, as a result of agreements that we have with the EU.

We also heard from the hon. Member for Bosworth (David Tredinnick). I commend him for the ingenious way he got subjects of great importance to him into the debate, but I think that is probably the best I can say about the contribution, so I will move on. I am sure he will continue to fight for those things that are extremely important to him.

My hon. Friend the Member for Hammersmith (Andy Slaughter) spoke from his experience as a passionate campaigner on health issues in his constituency. He set out the importance of the NHS is in his constituency and his pride in what it has achieved. I would characterise what he said about the current situation for services in his constituency as a damage limitation exercise. He gave a startling figure about the number of EU staff who have already taken legal advice on their positions. That should be a very clear warning that uncertainty is still very much in the forefront of people’s minds. He set out well how staffing will be affected in London more than in other regions.

The hon. Member for East Kilbride, Strathaven and Lesmahagow (Dr Cameron) set out powerfully how important the NHS is and how people feel strongly about it in their hearts. She is right that we need to show staff how much we value them. She also set out the importance of reciprocal arrangements for qualifications and, indeed, for healthcare. She raised the importance of clinical trials, particularly in relation to rare diseases. I am sorry I did not get the chance to hear her singing the other week. She was absolutely right that there are particular risks for rare diseases and the development of new medicines. She was also right when she said that Brexit can seem a little abstract to people, but she and other hon. Members have set out in tangible ways how Brexit will affect many of the things that we hold dear.

It was a pleasure to hear from my hon. Friend the Member for Stockton South (Dr Williams), as always. He is one of those people whom we rely on in the NHS to keep the service going, and he rightly paid tribute to the whole range of professions, and the services provided by NHS staff. Of course, it is the staff who make the service what it is. He was right to say that the message is not getting through to EU staff about the future. We need to do more to reassure them. He clearly set out the gravity of the situation, in relation to the impact on staff. He was right to say that some impacts of Brexit are being felt now. GlaxoSmithKline provides evidence of that: about £70 million that could have been spent on cancer research being spent on preparations for Brexit was certainly a startling figure, and not one that we might expect to see on the side of a bus.

The right hon. Member for Carshalton and Wallington (Tom Brake) raised an important point about protections that we need to maintain against bogus medicines. I hope that the Minister will be able to provide reassurance about the falsified medicines directive. The hon. Member for Motherwell and Wishaw (Marion Fellows) talked about the importance of the Scottish life sciences sector and, in particular, its distinctiveness in relation to the sector in the rest of the UK. She also raised important issues about staff.

I want to say something about those from whom we have not heard today. As several hon. Members have observed, not one Back Bencher who campaigned to leave has come to speak in the debate. That is the same as in November when we discussed the future of the European Medicines Agency. No Back Benchers who advocated leave came along and spoke. There is a lack of ownership, candour and realism from people who campaigned to leave about the consequences of the vote and I would have welcomed a contribution from those Members.

The issues are, as we have discussed, of central importance. We have heard today how almost every aspect of the NHS could be affected by Brexit. Those issues were not articulated in the referendum, but whatever side of the debate people were on, no one, I believe, voted with the intention of causing damage to the NHS. It is our duty to vote according to our conscience, but we must make sure that when we leave the EU we do so in a way that protects and defends the NHS, which is so valued by so many, and that the Government will be held to account for the decisions that they take in the process.

Last year, more nurses and midwives left the profession than joined. Much of that is attributable to the way morale in the health service has plummeted in recent years. The exodus is even more pronounced among staff from the European economic area. As Members have mentioned, according to the Nursing & Midwifery Council, the number of EEA nurses and midwives joining the register decreased by 89% in the past year, while the number who left increased by 67%. That is exacerbating an already parlous situation. The NHS has about 40,000 nursing vacancies at the moment. To put things in terms that the Foreign Secretary might understand, we are missing enough nurses to fill 450 double-decker buses.

It is not just in nursing and midwifery that we face those issues. Figures from the Royal College of Physicians show that 9.3% of doctors working in the NHS are from EU member states, while, according to the General Medical Council, the number of new doctors coming from the EU fell by 9% last year. As the hon. Member for East Kilbride, Strathaven and Lesmahagow said, a survey of doctors showed that 45% of EU doctors were now considering leaving, with a further 29% saying they were unsure about the future. Given that 60% of junior doctors already report working on a rota with a permanent gap, and 45% of advertised consultant posts are not being recruited to, that is an extremely worrying position. A number of surveys have shown that one of the key reasons EU citizens are leaving is that they believe there is uncertainty about their future status. It is simply not good enough that the Government’s plans for migration will not be available until the end of this year.

I would be grateful if the Minister updated us, if he is able to, about when the immigration White Paper and Bill will be introduced. I also urge him, as I am sure other Members will, to be as loud and as clear as he can in reassuring EU staff in the NHS that they are valued and have a right to stay.

We welcome the fact that EEA citizens and their family members will be able to apply for settled status. How that will work in practice remains unclear and it is concerning that the new system will have issues, because when we look at the way the current tier 2 system operates, we see that it is hardly an exemplar of perfection. The Royal College of Physicians has stated that it is aware of 44 examples under the existing system whereby junior doctors have had certificates of sponsorship refused, due to increases in salary requirements. Will the Minister let us know what representations he is making on this particular issue and what the Government will do to try to solve this particular difficulty? Can he also reassure us that the new system that we have for EEA residents will not have similar problems?

In addition to the issues that I have raised about the potential impact on recruitment and retention, many hard-working NHS workers have also spoken about their concerns about impacts on their terms and conditions. As the Minister knows, at Health questions recently we discussed the increasing trend in NHS trusts setting up subsidiary companies. Of course, staff in those companies should be protected by TUPE regulations—legislation that is, of course, derived from the acquired rights directive. So I hope that the Minister can reassure those staff that there are no plans or intentions to water down TUPE regulations, and that they will be implemented in UK law in the form that they take now.

There is also a concern about other EU legislation and the possible threat to the working time directive, which provides safeguards not only for staff but for patients. I understand that last December various royal colleges wrote to the Prime Minister, asking for assurances that the directive would be implemented in UK law, but they have not had any such assurances.

We know from the most recent survey that around 60% of staff have concerns about their work-life balance, and they said that they were working unpaid additional hours, along with the increasing reliance on overtime in hospitals. It is important that we get a clear and unambiguous statement that the working time directive in relation to weekly hours will not be amended or watered down in any way.

Of course, the impact of Brexit will not just be on staff. If we do not secure the best outcome in the negotiations, there could be implications for access to treatments and reciprocal healthcare. As I said earlier, last November I spoke in Westminster Hall in a debate on the European Medicines Agency and it is fair to say that at that time there was some way to go before we had clarity about what the future arrangements will be, so I would be grateful if the Minister updated us today on any progress in that regard.

The Office of Health Economics recently set out just how stark the impact could be if a solution is not found in this area, because it warns that the average lag in submission for a marketing authorisation in the UK could be up to three months, that up to 15% of applications could be submitted more than a year after the EEA submission, and that some products may not be marketed in the UK at all. At the time of its analysis in January, the OHE found that 45% of applications had not been submitted to Australia, Canada or Switzerland following submission to the EMA, so can the Minister give us assurances that we will not be left behind when it comes to gaining early access to medicines and technologies?

In November, I also asked the Minister to confirm that Department of Health budgets would not be used to fund any additional Medicines and Healthcare Products Regulatory Agency costs. Again, we have not had any confirmation of that and again I would be grateful if the Minister provided reassurance in that respect today, as we know that NHS budgets are already extremely stretched.

As we also know, there are risks arising from the decision to withdraw from Euratom, simply because it falls under the jurisdiction of the European Court of Justice, because of course Euratom facilitates a free trade in nuclear material, including radioisotopes, and, as my right hon. Friend the Member for Exeter said, those materials degrade very quickly. They cannot be stockpiled, so it is essential that there are no delays to imports.

[Mr Bradshaw]

Is my hon. Friend able to say whether we will support the Euratom amendment that was passed in the House of Lords two days ago when it comes back to the House of Commons? That would be warmly welcomed on both sides of the House.

[Justin Madders]

That is slightly outside my brief, but I understand the intention behind the question and hope that we will be able to come back on it positively.

There are concerns about the risks to patient care. Will the Minister set out how he expects us to address those?

The free movement of people was presented very much as a one-way street during the referendum. We know that about 1.2 million UK citizens live in other EU member states. There is a risk that if a similar arrangement on reciprocal healthcare is not implemented after we leave, that could impact on the arrangements those people enjoy. This could cause a huge amount of disruption for patients and health services. It will probably affect those with the most serious conditions most, in particular those with kidney failure who may not be able to travel in future if assurances are not gained. I would be grateful if the Minister updated us on that.

Finally, I would like to say a few words on the impact on social care. According to NHS Digital, it is estimated that about 7% of people in the social care sector, or 95,000 people, are EU citizens. That figure varies for different parts of the country. Recent estimates suggest that the social care sector will face a considerable staff shortage if EU migration is limited, particularly if visas are restricted on the basis of income. Projections from the Nuffield Trust suggest that there could be a shortfall of as many as 70,000 social care workers by 2025. Again, will the Minister set out what steps the Government plan to mitigate the potential impact on social care and staff? Can he assure us that we will have an immigration system that addresses staffing needs in the future?

Nobody voted to leave the NHS worse off. Nobody voted to reduce their access to treatments. Nobody voted to make themselves less safe if they require treatment. Nobody voted to reduce the number of staff in our hospitals. Yet all those scenarios are possible if the Government do not get the negotiations right. Members of all parties have expressed their concerns and the need for clarity. I hope that the Minister can now provide that.

Oral Answers to Questions

Justin Madders Excerpts

Tuesday 20th March 2018 Commons Chamber

[Stephen Barclay]

Had the hon. Lady been able to attend the recent Westminster Hall debate on this issue, she would have heard that in the trust under discussion the staff survey showed an improvement in responses as a result of the subsidiary because many staff valued the flexibilities in the new contracts that the subsidiary could offer.

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

The Minister may be in denial about privatisation, but is it not the case that the question-and-answer document from North Tees and Hartlepool Hospitals NHS Foundation Trust said that its subsidiary organisation could be taken over by a private company in the future? If the Minister wants to put these privatisation stories to bed, will he rule out the possibility of any of the subsidiary companies’ being taken over by private organisations in the future?

[Stephen Barclay]

The party that is in denial is the Labour party, which, in 2006, passed the legislation through which subsidiaries could be offered. If the hon. Gentleman does not believe me, perhaps he should listen to NHS Providers, which says:

“It is…inaccurate and misleading to say that the establishment of wholly owned subsidiaries is a new phenomenon or being pursued to avoid VAT, privatise the NHS, or to reduce terms and conditions for NHS staff.”

Labour Members should stop scaremongering over legislation that their party actually passed.

East Midlands Ambulance Service

Justin Madders Excerpts

Wednesday 21st February 2018 Westminster Hall

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

Thank you for calling me to speak, Mr Davies. Perhaps the hon. Member for Mansfield (Ben Bradley) had a call from his lawyers.

[Geraint Davies (in the Chair)]

He has called an ambulance, I should think.

--- Later in debate ---

[Justin Madders]

I congratulate my hon. Friend the Member for High Peak (Ruth George) on securing this debate. She has again shown that she is a strong advocate for issues in her constituency. She described the ambulance service as the glue that binds the NHS together; I would go further and say that all the staff are that glue who bind the service together.

My hon. Friend reeled off a whole range of statistics about performance in EMAS. The ones that stuck out for me were the nine-hour wait for an ambulance and the queuing times at hospitals, which were also mentioned by a number of other hon. Members. She talked about the risk-averse approach of 111; although clearly no one wants that to go too far the other way, I know that more clinicians are now working for 111. I will be interested to hear whether the Minister feels the balance between clinicians and non-clinical staff in that service is now right.

We heard from a number of Members, but unfortunately I will not have enough time to go through all the contributions. In a very thoughtful and relevant speech, the hon. Member for Sleaford and North Hykeham (Dr Johnson) made some interesting points about whether staff are utilised as effectively as we might like.

My hon. Friend the Member for Bassetlaw (John Mann) made some interesting points about geography—he should look at some of the sustainability and transformation plans too, to see whether the geography there makes any sense—and privatisation, which probably got a fairer hearing from Members on our side of the Chamber than those on the Government Benches, but that is something we need to examine closely.

We also heard from my hon. Friend the Member for Lincoln (Karen Lee), who spoke movingly and passionately from her personal and professional experience. We heard about people with chest pains waiting two and a half hours for an ambulance—we can only begin to imagine how stressful that must be.

As a number of hon. Members said, geography is clearly a big issue. As we also heard, the trust is one of the most poorly performing in the country. The sparsity of population is clearly driving that problem. The staff are not to blame. Last year the Care Quality Commission report expressed serious concerns but also commented on

“caring, professional staff delivering compassionate, patient focussed care in circumstances that were challenging due to the continued demand on the service.”

It is important to remember that across the whole of the NHS, providers struggle to meet the demands.

The financial squeeze has been pointed out on more than one occasion, not only in this debate but by many politicians, patients and staff, and by the assistant coroner for Nottinghamshire, Heidi Connor, in her comments in the regulation 28 reports to prevent future deaths, all of which have been sent to the Department of Health and Social Care, NHS England and NHS Improvement. As Members know, the reports are made when a coroner believes that action should and can be taken to prevent future deaths. In May 2016, in the second of two reports expressing concern, she said:

“The issue in this case…was essentially a matter of resource. In essence, I found that there is only so much an ambulance service can do where they simply do not have an ambulance to send. Demand is clearly greater than the resources they have most of the time”.

We have heard that echoed by Members.

We know that there will be occasions when demand peaks, but Heidi Connor makes it clear that that is not an exceptional spike in demand but a situation that exists most of the time. She goes on to say:

“I consider that there is a risk of future deaths...unless an urgent review of resources is undertaken”.

Will the Minister confirm what specific steps were taken by the Department in response to the regulation 28 reports issued on 11 and 26 May 2016?

Those statements are not the only ones we have heard about the resource situation. After the 2017 CQC report, the chief executive of the service said:

“EMAS was not commissioned to meet the national performance targets during 2016/17, and therefore was not resourced to do so”.

As my hon. Friend the Member for High Peak said, there can be no doubt that finance is the root cause of the issues we are hearing about today. We are in the longest and most sustained financial squeeze in the history of the NHS, and that is having real consequences. The fact that EMAS receives the second lowest urgent and emergency income per head of population in the country is a challenge, in particular given the sparsity of the population and the geographical challenges, as we have heard.

Despite the pressing need to invest more in frontline services, I am concerned that EMAS is having to service debts that have increased from £35,000 to £376,000 in the past year as a result of a loan taken out from the Department of Health in 2015-16. How can the service deliver the improvements we all want when it has to divert money to repay debts, just to keep things on the road?

It is true that EMAS’s performance is below average; it is also true that trusts have deteriorated significantly in their performance since 2010. The same is true of all targets in every part of the NHS. This Government have failed to hit any of their NHS ambulance targets since May 2015. The truth is that underfunding of the NHS has pushed ambulance services to the brink and left record numbers of patients everywhere suffering in discomfort and in terrifying circumstances, as we have heard today.

New performance standards are an opportunity to build a system that has the support of paramedics and patients alike. I conclude by asking the Minister to give an assurance that the new series of standards are based on the best clinical evidence and not just designed to obtain what is achievable with the money that the Department has allocated.

[Geraint Davies (in the Chair)]

Minister, we will end at a quarter to, so you will have time to allow a couple of interventions should you wish.

NHS Staff: Oxfordshire

Justin Madders Excerpts

Tuesday 20th February 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Evans. I congratulate the hon. Member for Oxford West and Abingdon (Layla Moran) on securing the debate and on the powerful arguments she made about the recruitment and retention crisis affecting NHS services in her area and across the country.

As the hon. Lady said, the NHS has been a frequently raised issue in recent times, certainly since her election. I join her and the other right hon. and hon. Members who have spoken today in praise of the dedication and commitment of the staff who work in our health service. She said that we are close to a crisis in the NHS. I believe that only the dedication and commitment of staff prevent a crisis from turning into a complete catastrophe. She was also right to say that the good will of staff is propping up services at the moment. That is something that, I am sad to say, I have to keep repeating every time we have a debate: it is the good will of staff that keeps the show on the road.

I was concerned to hear that some staff had approached the hon. Lady to say that some of the levels of experience in particular wards were raising concerns about patient safety. She highlighted in particular the shortage of mental health specialists. She is right to say that the good intention to try to achieve parity of esteem will be extremely difficult to meet when there are so many shortages.

The hon. Lady diagnosed a number of issues that have contributed to causing the crisis. Uncertainty around Brexit has certainly accelerated some of the staffing challenges already in place. The abolition of the nursing bursary has also created issues, and I will come back to that later on. I agree with her that reliance on agency staff is unsustainable, and we can talk about that in a little more detail later. She mentioned the pay cap, as I think every hon. Member did; that is something else I will come back to later, but I remind her that when her party was in government it enacted that policy for a full five years.

The hon. Lady also mentioned staffing shortages in social care. It is sad to hear that those doing one of the most valuable jobs in society feel that they have a better prospect of earning a decent living in retail. That brings home the challenge we face. The issues she raised about training and professional development are also particularly relevant.

The hon. Lady was right to mention that behind all of that is the funding challenge we currently face. We are in the longest and most sustained financial squeeze in the history of the NHS, and it is inevitable that those kinds of issues will come up until we reach a sustainable funding settlement. She also raised the question of housing and the cost of living in Oxfordshire. I think most hon. Members touched on that point. She said she was concerned that unless the issues are tackled in a comprehensive way, services will be rationed. I am afraid to say that services up and down the country are already being rationed, as we have discussed here on a number of occasions.

It was a pleasure, as always, to hear from the hon. Member for Banbury (Victoria Prentis). She always speaks strongly and passionately about NHS services in her area. She said that staffing issues were a major factor in the proposals to downgrade the maternity unit at Horton. It is a sad fact that half of all maternity units up and down the country have had to turn expectant mothers away at some point in the last year, often due to staffing shortages. We currently have a national shortage of about 3,500 midwives. It was interesting to hear some of the possible initiatives to attract new obstetricians in particular. Certainly, the prospect of free beer is something that works for me, but I do not know whether the hon. Lady can wait quite as long as it will take for me to train in that profession. I think we will have to do without my particular skills in that area.

The hon. Lady raised the issue of transparency and openness. It is disappointing to hear the difficulties she has had with her local trust on that issue, but it is clear from what she has said today that she has a lot to contribute to the wider health economy in her area. She is not alone on that issue. The Government have been pushing through policies on sustainability and transformation plans, accountable care organisations and the capital expenditure processes, which are all done under a veil of secrecy. There are wider issues in play there.

My hon. Friend the Member for Oxford East (Anneliese Dodds) described the current situation as a perfect storm—an apt description. I am impressed at the way in which she has engaged with staff in the health service in her constituency to get to the real meat and bones of the issues. It was sad to hear that staff feel they are forced to leave the profession and go to work for an agency; she was absolutely right to say that forcing staff to go and work for an agency to make ends meet costs us more in the long term. There are ways in which that could be a saving for us if the pay cap was lifted.

The problems with the nursing bursary were again highlighted, particularly how they are exacerbated in the Oxfordshire area by the cost of living. Has the Minister done any analysis of the cost of living in different parts of the country and the income streams available to those undertaking nursing degrees, who, because of the way the degree is structured, do not have the option of supplemental employment?

My hon. Friend explained very well how the proximity to London creates recruitment difficulties. The stark image of staff living in a corridor highlighted to me the impact of eight years of pay restraint. She also highlighted the bureaucratic nature of recruiting overseas staff. I know immigration policy is outside the Minister’s remit, but I hope he is making representations to the Home Office about how we tackle those issues in future. My hon. Friend highlighted how, despite the Government’s various initiatives for getting people on to the housing ladder, it is still too big a leap for many. We need much more genuinely affordable housing to be built.

We also heard from the hon. Member for Henley (John Howell). I agree with him that the problem did not start in the last year. He raised the question of challenges in GP practices, particularly younger GPs not feeling able to make the financial commitments to buy into practices, but also the restrictions on operations. He was right to mention that GPs need to move with the times on technology. A number of interesting initiatives are doing that up and down the country, although we have concerns about some of them and how they may exclude patients.

Finally, we heard from the right hon. Member for Wantage (Mr Vaizey). He painted an impressive picture of how healthy the Oxfordshire area is, but a report by the Oxfordshire clinical commissioning group shows a gap in life expectancy of nine years between different parts of the county—something about which the Opposition feel passionately.

It is fair to say, from the right hon. Gentleman’s comments, that the local NHS leadership are not on his Christmas card list. He gave a pretty damning assessment of their ability to engage, but of course the structures we are currently working under were brought in under the Health and Social Care Act 2012, which led to the removal of the Secretary of State’s responsibility for much of the system and to the fragmentation with which we are all grappling. I applaud the right hon. Gentleman for his efforts to try to bring everyone together, but he should consider whether the legislative framework we currently work under is fit for purpose. The way in which he has brought people in the NHS together is important and we should be doing more of that. In this particular area, that should be not just on the health economy, but on the wider issues, particularly those relating to cost of living and housing.

As we have heard, the potential impact of the recruitment and retention crisis was brought into stark focus by the issue that sparked the debate: the leaked email from the head of chemotherapy at the Oxford University Hospital’s NHS Foundation Trust that found its way on to the front page of The Times. That memo confirmed to staff that the trust was down on nurses at the day treatment unit by approximately 40%, and as a consequence that the hospital was having to delay chemotherapy patients’ starting times to four weeks. It also stated that there was no prospect of an improvement in the situation for 18 months to two years.

More worrying was a proposal to reduce the number of chemotherapy cycles available to dying patients, which is totally contrary to National Institute for Health and Care Excellence guidelines, as well as the national cancer strategy. We were therefore relieved to hear that the trust has now backed down from those suggestions.

[Anneliese Dodds]

To be clear, as other Members have mentioned, those were not live proposals. The problem was that the trust had to scope out the full range of potential action, given the challenge it was facing. However, the proposals were not something that it wanted to do—quite the opposite. I just wanted to underline that.

[Justin Madders]

I thank my hon. Friend for that point. I was not trying to imply that the proposals were live, but the fact they were being considered is of huge concern, which Members have rightly raised. It will be helpful if the Minister could look at what caused the proposals to even be discussed, because they are contrary to so many of the principles and guidelines that we want in our NHS. I hope he will be able to assure us that those kinds of dramatic measures are not being considered in other areas.

The impact of recruitment and retention issues at the trust extends far beyond chemotherapy. In January, 2,159 patients waited for longer than four hours to be seen in A&E, falling well below the 95% target—a measure that the Health Secretary described as “critical for patient safety”. Even more worryingly, since December eight cancer operations and 26 heart operations were cancelled either the day before or on the day itself. Although that is at the upper end of operation cancellations, it is sadly a story that we now hear up and down the country. Cancelling an appointment at short notice causes immense frustration. It is sometimes unavoidable, but we know that it can have devastating consequences and put patients at unnecessary risk, not to mention the emotional impact. On the practical side, cover has to be arranged, spouses and family members have to arrange their own time off, and sometimes even national or international travel is required.

Staffing shortages are not behind every cancellation, but they will be a factor in many, and the vacancy rate at the trust tells us that it is an increasing problem. As we heard, vacancies at the trust for nurses, midwives and nursing support workers have almost doubled in the past year, from 5.99% in October 2016 to 10.8% in October last year, leaving about 400 whole-time equivalent vacancies. As we have heard from hon. Members, local factors have undoubtedly contributed to that. A 2017 study by Lloyds bank listed Oxford as the most expensive city in the UK, with average house prices 10.7 times average annual earnings. As we have heard, there is some support for the introduction of an Oxford weighting-type arrangement.

There is also a national context to look at, with housing costs being exacerbated by the pay cap. It is clear that, although that is probably at the sharper end of the pressures, Oxford’s issues are being repeated up and down the country. We now know that, after eight years of this Government, more nurses are leaving the NHS than joining. That position is particularly sharp in the Thames valley area, where there were 39% more leavers than joiners between September 2016 and September 2017.

While almost all trusts up and down the country have been unable to fill vacancies, Oxford’s is probably one of the more acute situations. However, much of it was completely predictable. One of the first decisions the Government took in 2010 was to cut the number of nurse training places by 3,000, which has led to about 8,000 fewer nurses nationally. We then had the Health Secretary’s farcical decision to take on the junior doctors, which has led to a demoralised workforce.

Then, to cap it all, as Members have said, came the decision to scrap nurse bursaries, which is possibly the most ill-conceived decision the Government have made—and there is plenty of competition for that particular award. We warned at the time that, far from providing more nursing places, the move would lead to a drop in the number of applications, with the biggest impact being on mature students, who bring a huge amount of experience from outside the profession.

As we have heard, statistics show that there was not only an 18% drop in applications in 2017, but a 2.6% decline in England in the number of students accepted on to courses. Among mature students, 13% fewer of those aged between 21 and 25 were accepted. That decision is discriminatory and stands in stark contrast to the Government’s aims on social mobility. Those are not just my words—they are in the equality assessment undertaken by the Department for Education. However, instead of learning from that lesson, Ministers have decided to scrap NHS bursaries for postgraduate students as well.

Alongside that disastrous decision, we have had the counterproductive capping of pay, which has led to hard-working NHS staff losing money in real terms at the same time as their workload has increased. We have heard encouraging noises from the Government recently, but we have seen no firm action. Perhaps the Minister can provide some clarity when he responds. The Nursing Times reported this week that the Treasury apparently still needs convincing that a rise in wages should be “meaningful”. Will the Minister send his Treasury colleagues a transcript of the debate, to persuade them that a strong case is being made for an increase?

Across Oxfordshire and the whole of our NHS, a recruitment and retention crisis is exacerbating a situation that has already reached crisis point. The Government need to act, realise their mistakes and urgently give hard-working NHS staff the belief that their work is valued and the confidence that their concerns are being listened to.

Acute and Community Health

Justin Madders Excerpts

Thursday 8th February 2018 Commons Chamber

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

May I start by adding my appreciation for the tenacity my hon. Friend the Member for West Lancashire (Rosie Cooper) has shown in pursuing this matter over a number of years? She has led the way in tackling this injustice fearlessly and relentlessly. In that respect, she is an example to all right hon. and hon. Members in this place. I agree with the Minister that the report is a vindication of her courage, but is it not shameful that this scandal only came to light because a Member of Parliament was prepared to give a voice to those who were afraid to speak out?

Today’s independent report on the Liverpool Community Health Trust lays bare a catalogue of failure that caused harm to patients across Merseyside between 2010 and 2014. It is a grim example of a repeat of the regulatory pressures and board management failures at Mid Staffs. What is of huge concern is that some of the failures came after the final publication of the Francis report. As we have heard, incidents identified in the report include the deaths of inmates at HMP Liverpool, patients having the wrong tooth extracted by trust dentists, and patients on intermediate care wards suffering repeated falls and broken bones or ending up with pressure ulcers. We have to make sure that the pain experienced by so many patients and their families is properly detailed and recognised. We must make sure the NHS is able to learn from these events and that systems are put in place to ensure they never happen again.

I put on record our thanks from the Labour Benches to Dr Bill Kirkup and his team for the work they have done in carrying out this investigation and helping us to understand what has gone wrong. Today’s report says that patients of community services suffered unnecessary harm because the senior leadership team was “out of its depth”. Let us be clear what lies at the heart of this: unrealistic cost-cutting by the trust without regard to the consequences that led directly to patients being harmed. The report exposes serious problems around the scale of cost-cutting being imposed on NHS trusts. In the case of Liverpool Community Health, the motivation was the drive to achieve foundation trust status. The trust disciplined and suspended staff who blew the whistle about poor care and its controversial plans to slash staff to save money. What guarantee can the Minister offer that trusts are no longer being allowed to prioritise financial savings over patient care? What protections have been put in place for staff who raise concerns about cost-cutting?

Today’s report notes the irony of staff reductions being agreed at the same board meeting that had earlier considered the implications of the Francis report. That alone should have raised alarm bells about the capacity of board members to challenge the trust. The NHS still faces huge workforce shortages, so what update can the Minister give us on how the 10-year workforce strategy has been received? What additional measures will the strategy include to guarantee safe levels of staffing in all areas of the country, in community as well as acute services?

I am pleased that the Minister recognises concerns that managers responsible for these extreme failures can often go into leadership roles in other parts of the health service, or indeed for private providers to the NHS in another capacity. Will he advise the House how many people who refused to co-operate with the investigation are still employed in some part of the NHS? Is there anything in the existing terms and conditions or structures that can be used to require future co-operation? Is there any redress in existing policies and procedures that we can use against these people?

The report said that regulators were distracted by higher-profile services such as acute care. The Health Service Journal said today that oversight failures were partly attributable to organisational changes that were taking place under the Health and Social Care Act 2012, so what will the Government do to ensure that national priorities are not allowed to interfere with local oversight?

Finally, the report raises serious concerns about the quality of healthcare in prisons. HMP Liverpool still has significant challenges, and the new provider of the prison’s health service—the Lancashire Care NHS Foundation Trust—has just said that it cannot continue with the contract on the level of funding currently available. The Ministry of Justice will investigate these matters more generally, but will the Minister assure us that prison healthcare is properly supported and resourced in Merseyside and elsewhere across the country?

Paragraph 1 of the review’s findings sums up the devastating impact of these multiple failings:

“Staff were overstretched, demoralised and—in some instances—bullied. Significant unnecessary harm occurred to patients.”

In the unprecedented financial squeeze that the NHS currently faces, we need assurances from the Minister that patients and staff will come before finance and that today will be the last time we hear such a damning message about what is going on in our NHS.

[Stephen Barclay]

I thank the shadow Minister for his questions and the manner in which he put them before the House. His first key question was to what extent measures are in place to address this sort of issue, should it arise again. Post Francis, and following Sir Bruce Keogh’s review of 14 trusts with high mortality rates, a new regime has been put in place. There is a new chief inspector of hospitals, Professor Ted Baker, and a specific regime involving NHS Improvement, which commissioned this report. NHS Improvement has a new chair, Dido Harding, a very senior figure from the business community.

That regime has put 37 hospitals into special measures so far. The methodology that is used to alert regulators to areas of concern has also been revised. For example, far more importance is now placed on staff and patient surveys. However, it remains to be explained why a trust could pay so many compromise agreements, for example, in response to so many staff disciplinary issues. I assume that many concerns were raised by trade unions locally, as no doubt the hon. Gentleman is aware. We must also consider the extent to which earlier reports, such as the Capsticks report, raised concerns that should have been addressed. That is why, in my statement, I signalled my desire to look at those issues and ensure that they are addressed by the fit and proper person test in particular. As he will be aware, though, that test pertains only to board-level appointments in the NHS, not to all roles. We will need to look at that scope, at the effectiveness of the investigation and particularly at the revolving door element of the problem, which he recognised.

Turning to the other issues that the shadow Minister raised, we clearly need to ensure that due process is followed. I do not need to remind the House of the difficulties of any enforcement against for instance, Fred Goodwin in financial services or Sharon Shoesmith in child services. People rightly expect due process, and all hon. Members would ask for that. The victims will rightly ask, “How can the chief executive, with this catalogue of issues, move within the NHS rather than be fired?” I know that the hon. Member for West Lancashire (Rosie Cooper) has many concerns about that, as do the Health Committee and many other Members.

I look forward to working with the hon. Member for Ellesmere Port and Neston (Justin Madders) in the spirit in which he raised these issues. We share concerns, and I know the House as a whole wants us to get to the heart of them.

Oral Answers to Questions

Justin Madders Excerpts

Tuesday 6th February 2018 Commons Chamber

[Mr Hunt]

Perhaps I should set the record straight for the hon. Lady. We have 52,000 nurses in training—more than was ever the case under the last Labour Government, who were planning to cut nurse training places by 6%. We are planning to increase them by 25%. That shows our commitment to nursing.

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

Yesterday, the Royal College of Nursing reported on the total failure of Government policies to increase the nursing workforce. As we have just heard, the Government hoped to recruit 1,000 trainees to the nursing apprenticeship, but ended up with just 30. This year, the number applying to university to study nursing has so far fallen by a staggering 33%. We have a workforce crisis exacerbated by badly thought out policies, so is it not time that the Secretary of State admitted that scrapping the bursary was a mistake?

[Mr Hunt]

I have a great deal of respect for the hon. Gentleman, but that is not the first time that he has presented a somewhat incomplete picture of what is actually happening. In the last five years, we have 15,700 more nurses, and the reason for those vacancies and for the pressure is that, as he knows very well, under the last Labour Government we had Mid Staffs, which was a crisis of short staffing that this Government are putting right. That is why we want to recruit those extra nurses.

King’s College Hospital

Justin Madders Excerpts

Tuesday 16th January 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Hollobone.

I pay tribute to my hon. Friend the Member for Dulwich and West Norwood (Helen Hayes) for securing the debate. During her time in this place, she has developed a reputation as a real champion for her constituents on a range of issues. This is not the first time that she has raised concerns about the funding crisis affecting our NHS and her constituents. Back in June 2015, she used her first contribution following her maiden speech to raise concerns about the worrying financial situation at King’s College Hospital. That makes a mockery of attempts to pin blame for the current situation on the most recent chair, who started only that month. My hon. Friend showed great foresight and prescience when she warned:

“The deficit is kept from being significantly higher only by a series of creative accounting steps taken in a vain attempt to reduce the number of negative press reports about such disastrous performance.”—[Official Report, 23 May 2016; Vol. 611, c. 355.]

My hon. Friend described her constituents’ experience as a warning sign with respect to the wider issues across the NHS about which we have heard so much in recent weeks. She highlighted that King’s College Hospital provides a wide range of specialties as well as being a trauma centre and a district general hospital for her constituents. She reported that a clinician with 32 years’ experience had said that things have never been tougher. We have heard many NHS professionals make that comment in the past couple of weeks. It was disturbing to hear that the hospital has recently been at more than 100% capacity on a regular basis. Before we entered the winter crisis this month, we knew that bed capacity across a number of trusts was beyond recommended levels. Using meeting rooms for patient care, as we heard, is not a road we should be going down.

My hon. Friend said that four key issues were affecting the current situation at King’s College. The first was the funding allocation since 2010. As we know, an ageing population increases demands on expenses in terms of medication, which means that the NHS really needs a 4% settlement on average, but in the past eight years we have had about 1% a year. She is right that the increases in demand on the NHS have been entirely predictable, and that the challenges set out as a result of austerity have been exacerbated by the cuts to social care we have seen since 2010.

My hon. Friend’s second point, on which I will expand later, was that the trust took on two failing hospitals in 2013. Thirdly, there are competing responsibilities in the trust between emergency treatment funding and elective surgery. She gave the examples of tragedies such as Grenfell and the Westminster terrorist attacks in the past 12 months, which placed additional pressures on the trust but were not recognised by central Government in terms of funding or support. Fourthly—this point applies to the wider NHS—the capital funding allocations have not been there to allow the trust to plan strategically for the future.

We also heard from the hon. Member for Central Suffolk and North Ipswich (Dr Poulter), who has considerable experience—he has several hats to put on. He did not blame the individuals running King’s for the current situation. He also highlighted well the multiple issues that arise from an underfunded social care system, and was right that patient care can suffer when trusts are under financial pressure. That is not to say that anyone who works in the NHS is using that as an excuse—that is not where anyone wants to be.

The hon. Gentleman mentioned PFI debt. In a debate on another trust issue, the Minister’s predecessor but two said that the Department was looking at PFI debts in various individual trusts and whether anything could be done to ease the burden on them. I do not know whether that work has been completed. Can the Minister update us on whether the many trusts saddled with PFI debt will get any relief?

We also heard from my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), who made two central points. First, she did not want the situation to turn into a characterisation of a recalcitrant teenager who is overspending. I know a great deal about that from my own family—not because I am a teenager. She also does not want the situation to turn into a blame game. I will return to that later in my remarks.

My right hon. and learned Friend’s second point, which was pertinent, was that we must think about the people who are affected by the situation a little more. She said that when the Prime Minister described the cancelling of operations throughout January as planned, that underplayed the human consequences of such a decision and showed a lack of empathy and compassion for their implications. Cancelled operations can have a psychological impact and, as we heard, they can have financial impacts. People could lose their jobs as a result of delayed operations. She also gave the example of older people losing their social circle while they are awaiting cataract operations.

My right hon. and learned Friend was right to say that we do not want to drift back to a situation where patients spending all night on trolleys in corridors is part of people’s routine NHS experience. We do not want to see any more of that.

My hon. Friend the Member for Dulwich and West Norwood gave some interesting statistics about the amount of money spent on management consultants advising the trust and said that, at some points, £1 million a month was being spent on such advice. I would be interested to hear if the Minister feels that that has delivered value for money for the trust. Has any analysis been done about the savings derived from that advice? That gives us food for thought about whether the money has been best spent—perhaps it could have been better directed to the frontline.

My hon. Friend also said that the trust has recently been subject to enhanced regulatory oversight. Does the Minister believe that that regime has delivered particular benefits? She rightly requested assurances from the Minister in terms of funding, patient safety, treatments and capital allocations. We will hopefully hear from the Minister on that.

I join my hon. Friend in paying tribute to all the staff working across the trust who, as the public face of our service through the series “24 Hours in A&E”, make the nation proud of what the NHS can deliver. They are outstanding and committed individuals who go above and beyond the call of duty each day to deliver the best possible care for their patients. Indeed, their dedication is replicated by staff all over the country, and their good will is all that stands between a crisis and a complete collapse.

As we know, an urgent question was asked before the Christmas break, and I would like to pick up on a couple of comments made by the then Minister, the hon. Member for Ludlow (Mr Dunne). In his initial response, he said:

“There has been a consistent pattern of financial projections by the trust that have not been met during Lord Kerslake’s tenure as chairman.”—[Official Report, 12 December 2017; Vol. 633, c. 177.]

He also said:

“I am happy to look at the circumstances surrounding what happened in 2013, but they are not as relevant to today’s situation as the way the trust’s financial management has deteriorated in recent months.”—[Official Report, 12 December 2017; Vol. 633, c. 181.]

I put on record my appreciation for the constructive and respectful way the former Minister conducted our business. Although we disagreed on many things, we did not do so in a disagreeable manner. However, I must pick up on those comments, because it is a matter of fact that the trust’s financial issues predated Lord Kerslake’s involvement.

The root of the problems facing the trust can be traced back to the collapse of South London Healthcare NHS Trust back in 2013, as my hon. Friend said. I welcome the new Minister to his place, and I hope our exchanges will be equally as courteous. However, I hope that in responding he will correct the record, because there is the disturbing trend that has been referred to of blame being personalised, which encourages a “hire and fire” culture in the health service. At the bottom of it is financial and quality issues at the Princess Royal University Hospital, which were significantly worse than identified during the due diligence process undertaken at the time of transfer, and which led to a much poorer deficit position than forecast in 2014-15. Of course, that was a year before Lord Kerslake took up the role of chair. As a former Minister set out in a Westminster Hall debate in March 2015:

“At the time, South London Healthcare NHS Trust was the most financially challenged in the country…Repeated local attempts to resolve the financial crisis at the trust had failed.”—[Official Report, 25 March 2015; Vol. 594, c. 549WH.]

The trust’s 2015-16 annual report set out that £56.5 million in efficiencies were delivered during the financial year—a considerable amount—but despite that work a £65.4 million deficit remained. The report states clearly that the final figure was arrived at after taking actions, many of which were one-off in nature.

In 2016-17, the trust delivered savings of £92 million and was forecast to deliver a deficit position of £1.6 million. However, that was dependent on £30 million of funding through the sustainability and transformation fund and an additional £9 million of cover for external funding pressures being provided. Unfortunately, that Government funding did not materialise. The final out-turn was a deficit of about £48 million. The trust’s financial report for that year said again that many of the savings made during that year were of a one-off nature.

I point out at this juncture, as others have done, that despite starting each financial year with an extremely significant underlying deficit, the trust was still expected to deliver annual savings though the tariff, as with all hospitals, at a level that Chris Hopson, the chief executive of NHS Providers, has described as “impossible.” He also said that the amount of savings required

“risks the quality of patient care and places an intolerable burden on staff.”

The Nuffield Trust has pointed out that the savings that have been asked of trusts are

“the equivalent of spending…£750 in real terms on a patient that you would have spent £1000 on in 2010”.

Against that backdrop, is it any wonder that we are where we are now?

It is true to say that the forecast position at King’s has again deteriorated this year, but it is completely false to portray that as a story about one trust or a particular chairman. It should also be pointed out that King’s had cut costs by 8% to 2016-17 and was aiming for a 5.8% reduction in the current financial year. As we have heard, there are issues relating specifically to King’s, dating back to 2013, that have never been fully addressed, not least because the underlying deficit has been consistently understated. The trust, like so many others, is facing pressures from the top to massage the figures with one-off savings and accountancy wheezes. I believe that that short-term, illusory approach is endemic across the NHS. As the head of the National Audit Office, Sir Amyas Morse, told us:

“The NHS in England remains under significant financial pressure which is demonstrated in its accounts. It has again used a range of short term measures to manage its budgetary position but this is not a sustainable answer to the financial problems which it faces.”

He went on to say:

“The Department and its partners need to create and implement a robust, credible and comprehensive plan to move the NHS to a more sustainable financial footing.”

The Health Committee, the Nuffield Trust, the Health Foundation, the King’s Fund and many others have all reported on the one-off measures, including vast transfers of capital funding, that are being used to understate the true level of deficit. Will the Minister rule out using such measures again this year and commit to providing an honest picture of the state of NHS finances?

As the hon. Member for Central Suffolk and North Ipswich said, the trust deficits we are hearing about in this debate are replicated across many parts of the country. By September 2017, 83% of acute trusts were in debt, to the tune of £1.5 billion. Can the Minister tell us how many will be in deficit at the end of this year? How many will, like King’s, fail to meet the deficit level agreed with NHS Improvement, and what will the consequences be for them?

Before the November Budget, NHS leaders exercised their duty of candour to argue publicly for an extra £4 billion in revenue each year for the NHS. That was the minimum they said would be needed to maintain standards. It has been made clear that many of the NHS’s constitutional targets will not be met within the current funding envelope. Can the Minister explain whether, by failing to give the NHS the money it has asked for, the Government have accepted that the rights of patients set out in the NHS constitution have effectively been abandoned?

In conclusion, with King’s as with the rest of the NHS, the Government seek to abdicate responsibility and to blame the systematic failings over which they are presiding on individual parts of the NHS rather than on their own funding decisions. They are desperately seeking to characterise King’s as an outlier rather than what the Nuffield Trust has termed

“the canary down the coal mine”.

The truth is that, like every trust, it is struggling with the longest and most sustained financial squeeze we have ever seen in the history of the NHS, yet the Government are not facing up to their own culpability for the situation. The Secretary of State is behaving like the worst kind of football chairman—the kind who takes no responsibility for their own actions but instead calls for the manager’s head after a spell of poor results, when the underlying problems were there long before that manager started, because there had not been the required investment for many years. That kind of short-term, personalised approach has failed King’s, it is failing our NHS and it has to change.

NHS Winter Crisis

Justin Madders Excerpts

Wednesday 10th January 2018 Commons Chamber

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

We have heard some excellent contributions today. The depth of the crisis is reflected by the fact that no fewer than 38 Members put in to speak, and although we only managed to hear from just over 20 Back-Bench Members, they were from all four corners of England. Owing to the time constraints, I cannot refer to them all, so I will just pick out a few, particularly from those still working in the NHS, such as my hon. Friend the Member for Stockton South (Dr Williams), who said it felt like we were going back to the 1990s and that it did not have to be like that—this decline is not inevitable. I totally agree with him on that.

We also heard from my hon. Friend the Member for Wolverhampton South West (Eleanor Smith), who brought her 40 years of service in the NHS to the fore and made the valid point that cancelling operations now creates a backlog, which will cause problems later on. We know that many trusts are already failing to meet their 18-week target.

Perhaps the most compelling contribution was from my hon. Friend the Member for Tooting (Dr Allin-Khan), who worked in A&E over Christmas. She was absolutely right to say that many people attend A&E because they are not getting the treatment that they need from elsewhere in the system, due to a squeeze on funding. She also made the valid point that many people are not being discharged as quickly as we would like because of massive cuts to social care over the years. Her contribution was excellent, and she made the point that these conditions have arisen not by accident, but because a political choice has been made.

After two years in which the A&E target has been missed altogether, we now know that waiting times shot up in recent weeks. Some hospitals cannot see even half their patients within four hours at A&E. The Secretary of State knows a little about waiting: there was a gap of an hour and 42 minutes between his entering No. 10 on Monday and confirmation that he was continuing in his job. Perhaps he was left waiting in a corridor. I hope that he was at least offered a chair. He would have to double that time, and double it again, to begin to appreciate how long some patients are having to wait, often in great discomfort and pain.

Following the reshuffle on Monday, the Health and Social Care Secretary has had a rebrand, but if it took him over five years to work out that his actions might have some bearing on social care, how much longer will it be before he learns that the message that he hears about underfunding in the NHS is so consistent because it is true? How long before he realises that, on his watch, standards have deteriorated by almost every measure? How long before he realises that the decisions that his Government have taken have led to the litany of woe that we have heard today?

[Andy Slaughter (Hammersmith) (Lab)]

I do not know whether my hon. Friend has seen that an emergency consultant at Charing Cross Hospital has said that staff were practicing “battlefield medicine” there. By that, he meant that when a blue-light ambulance arrived, staff had to decide whether to take someone out of the resuscitation room to put the arrival in, or to leave the arrival in the corridor until a bed space was free. That same hospital faces losing all its emergency beds and its blue-light A&E. Does he agree that we have to rethink further reductions in beds and A&E capacity, given the crisis that we are in?

[Justin Madders]

I thank my hon. Friend for his contribution. He is absolutely right. Those working on the frontline have made many statements about just how acute the problem is. Bed numbers have dropped rapidly in recent years. The worry is that under STPs, even more beds may be lost.

The Health Secretary today denied there is a crisis, but he admitted it on Twitter, where he asked of Tony Blair,

“does he not remember his own regular NHS winter crises?”

If the House wants to make a comparison with Tony Blair, I will help it: in the last winter under Tony Blair, between October and December 2006, one in 50 patients spent longer than four hours in A&E. In November, under this Health Secretary, one in 10 did.

Of course, behind every single figure is a vulnerable patient who is being let down—a patient like 87-year-old Esme Thomas, who, according to the BBC, waited 22 hours to be admitted to a ward at Weston General Hospital, or the patients at Pinderfields Hospital in Wakefield, who, as we have heard, were photographed lying on the floor, some still attached to drips. If the best that we—one of the wealthiest nations in the world—can offer people who are ill is an uncomfortable metal chair, something has gone badly wrong. What do the Government say to the nurse who told “ITV News” that there had been times when she had spent whole days treating patients in the hospital car park? Those stories should shame the Government into action.

Of course, it is not just those attending hospital who are suffering; so are those who are not able to go to hospital at all: 55,000 operations have been cancelled this month. When asked about this, the Prime Minister said that it was all “part of the plan.” If it was all part of the plan, why were the operations arranged in the first place? This is not a plan; it is a shambles.

The human cost of this crisis is devastating. Even before the worst of the winter had reached us, a one-year-old baby with a hole in her heart had her life-saving operation cancelled five times. Her parents were told that their daughter could go into cardiac arrest during the operation, so I cannot begin to imagine the anguish that they must have gone through in preparing themselves for the operation five times. Or what about the 12-year-old autistic girl from my constituency whose operation to remove her tonsils has been postponed? She has had at least eight bouts of infection in the past year, and because of her autism, the delay to her operation has caused her anxiety. It was a huge deal to build her up for the operation after her pre-operative assessment, particularly given the prospect of spending a night in hospital, but after the cancellation, she is anxious that when she gets her new operation date, that will be cancelled as well. If leaving these children anxious and in pain was part of the plan, it is a plan this Government should be ashamed of.

Across a whole range of indicators the NHS has experienced its worst performance since records began, and that was before we headed into this winter. Let us be clear: I do not for a second hold the people who work on the frontline responsible for this. Indeed, it is only through their dedication that the health service keeps going, despite the best efforts of this Government to destroy staff morale—whether an entire generation of junior doctors alienated, the next generation of nurses deterred from entering the profession by tuition fees, or the thousands of staff up and down the country who are frankly fed up of rota gaps, pay restraints and meaningless platitudes from this Government.

Only this afternoon we hear that the Care Quality Commission is postponing routine inspections, presumably because it knows a winter crisis is on. This is an unprecedented step that sends a huge signal to the Government that this is not just normal winter pressures.

Let us hear from some of those staff working on the frontline. A&E doctor Adrian Harrop said the claims that the NHS had never been better prepared were “misleading, disingenuous nonsense”. He also said:

“The system I’ve been working in in recent days and weeks seems under-resourced, underfunded and understaffed.”

Tracy Bullock, chief executive of Mid Cheshire Hospitals NHS Foundation Trust, said:

“I’m 34 years in and I’ve never seen anything like this.”

These are honest, hard-working professionals—the lifeblood of the NHS—and Conservative Members know full well we could have repeated dozens of similar comments from NHS staff, because at the bottom of all this is the unescapable, indisputable fact that under this Government the NHS is in the middle of the longest and deepest financial squeeze in its entire history, and it is a squeeze that, as we have heard today, is having devastating consequences.

We warned time and again that, unless early and substantial action was taken, we faced another severe winter crisis, and that is exactly where we are today. We have had an apology but no action from the Government. Patients deserve to know when this crisis will be solved and when their cancelled operations are going to take place, and this country deserves a Government fit to run the NHS. I commend this motion to the House.