Health and Care Bill

Justin Madders Excerpts

Report stage
Tuesday 23rd November 2021 Commons Chamber

[Edward Argar]

I am grateful for the manner in which the hon. Lady puts her points. She is right; we have debated this previously. We have been publicly clear that we do not believe that the exemption or exception should be extended to the ombudsman. She is right that there are campaigns saying we should have no exceptions or that we should widen the exceptions. We believe we have struck the right balance with this measure, while respecting the fact that a coroner is a judicial office holder and has a very specific function to perform, as set out in legislation in—this is where my memory may fail me—the Coroners and Justice Act 2009, which recognises their particular and special status. I suspect that she and I may have to agree to disagree on whether the appropriate balance is struck, but that sets out why we have done what we have done.

How best to achieve an effective safe space is complex and the current drafting has been arrived at through years of detailed policy work, including pre-legislative scrutiny before the Health Service Safety Investigations Bill was introduced in the other place in autumn 2019. The issue was also debated at length in Committee, and I look forward to hearing contributions from Members on that, particularly the hon. Member for Central Ayrshire.

Turning to the two minor and technical Government amendments to the health service safety investigations body provisions, amendment 24 is a technical amendment to clarify the definition of “investigation” that applies to part 4 of the Bill. Investigations carried out by HSSIB by agreement under clause 114, which relate to Wales and Northern Ireland, were never intended to be part of the main investigation function of HSSIB and therefore will not be covered by the safe space or other investigatory power provisions provided for in the Bill. The amendment ensures that the drafting of the Bill fully reflects that original policy position. I hope that hon. Members on both sides of the Chamber will be content to pass this technical amendment.

Finally, I turn to Government amendment 88 to schedule 13. Schedule 13 contains a regulation-making power which allows the Treasury to vary the way any relevant tax has effect in relation to associated transfer schemes. Regulations made under this power will be used to ensure that no unintended tax consequences arise. The amendment ensures that value added tax is included in the taxes which the Treasury can, by regulations, vary when considering the transfer schemes in this Bill. Without this amendment, it is possible that complications with VAT bills may arise when transfer schemes are made and transactions take place. It is for those reasons that I ask hon. Members to support this amendment.

I am conscious that other hon. and right hon. Members may wish to speak to their amendments. I look forward to addressing those that I have not directly addressed thus far when I wind up debate on this group of amendments. With that, I conclude.

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

I thank the Minister for his introduction. It seems like only yesterday that we were having a similar exchange across the Dispatch Box.

I will begin with our new clauses 28 and 29 and amendment 10. This discussion about workforce could well be the most important of all today. Just this weekend, Chris Hopson from NHS Providers was trying to get the Government to acknowledge the seriousness of the problem when he tweeted:

“93k NHS staff vacancies. £6bn spend on temporary staff to fill gaps. 55% of staff working unpaid extra hours each week. 44% saying they’ve felt ill with work related stress. NHS desperately needs long term workforce planning. Govt must make this happen this week.”

Everything comes back to workforce and the failure to invest in it consistently over a sustained period. Today we have a chance to correct that.

While we favour our new clause 29, it is obvious that amendment 10 has captured the attention of many and may well be put to a vote. In many ways, as the Minister said, it closely mirrors what we have put forward, so I will be making my general points on both the new clauses and the amendment. In supporting amendment 10, I pay tribute to the right hon. Member for South West Surrey (Jeremy Hunt), the Chair of the Health and Social Care Committee. Given his previous role, he is well placed to have an informed view on what needs to be done, and he has done that with this amendment without undue hype or drama. The support he has obtained more widely from stakeholders outside the House is impressive; indeed, the way he has united just about the entire sector shows not only his powers of persuasion, but the importance of the issue. He has come close to uniting the entire sector in the past, but that was usually in opposition to something he was proposing, rather than in support. There may be many other areas where we have disagreed in the past, but that does not diminish our support for his call.

[Jeremy Hunt (South West Surrey) (Con)]

May I just comment that it feels a lot better this time?

[Justin Madders]

Let us just say that the more I hear of the right hon. Gentleman, the more I like what he has to say—I will leave it there.

We all accept the urgent need to address the workforce crisis, but I cannot find anyone who thinks that what the Government have put forward in clause 34 is the solution.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

A doctor in my constituency, Dr Tom James, told me that he and his colleagues in the hospital were demoralised, exhausted and at the end of their tether, particularly after the covid crisis, in a building that was falling apart around them. He said there was no more goodwill, and the Government needed to grab hold of this crisis and resolve it. Are new clause 29 and amendment 10 not a minimum, rather than a maximum, for what we should be looking to achieve?

[Justin Madders]

New clause 29 and amendment 10 are the starting point, not the whole answer. They are a framework for getting this right in the future and offering the workforce, which, as the Minister said, has given so much in recent times, some hope that there will be better times along the way. I will refer later to the report by the Health and Social Care Committee on workforce burnout, which brought home just how demoralised the workforce have become and why they need to be given some positive news today.

[Rachael Maskell]

Anyone who on Sunday was on the March with Midwives will understand the real crisis now facing that profession—a particularly acute once since it is also about women’s health. Is there not a need to ensure that plans are not just on paper, but expedited, so that we are sure of seeing real delivery of those much-needed staff?

[Justin Madders]

Like just about every profession and sector in the NHS, midwives are under tremendous pressure and are understaffed. We need a clear plan, and a plan that is delivered. Of course, having a plan is not the whole answer, which is why it is important that we hear regular reports back from the Secretary of State on progress. That is why we hope amendment 10 will be supported.

[Emma Hardy]

One reason I want to emphasise the importance of new clause 28 is that we are anticipating a greater demand for mental health services, and therefore a greater demand for mental health professionals working in the NHS. Only by having regular reviews will we be able to anticipate what that demand will be and prepare accordingly.

[Justin Madders]

My hon. Friend is correct; we could not have anticipated what has happened in the past 12 to 18 months, but we can see what it means moving forward. Regular reviews of demand are critical, and we know that training these highly qualified and skilled staff takes time, which is why a longer-term view and approach are required.

[Richard Fuller]

I want to pick up on the increasing demand for mental health services. Does the hon. Gentleman accept that in general, it is utterly impossible to meet the expectation of increasing demand for health services without vast improvements in the efficiency with which people working in the health and care sector deliver that service? Is it not a shortcoming of both the Government and the Opposition that there is not an intense focus on solving that problem of labour cost productivity? Without that, we will not be able to meet current needs and we certainly will not meet future needs.

[Justin Madders]

We are always looking at ways to improve productivity, but we know that on the current figures there are 100,000 staff vacancies in the NHS. No amount of productivity gains will cover for that.

[Munira Wilson (Twickenham) (LD)]

The hon. Member for North East Bedfordshire (Richard Fuller) talks about efficiency, but the figures show that in 2019-20, some £6.2 billion was spent on bank and agency staff. If we are talking about efficiency and using all the extra money the Government are saying they will put in to catch-up, we need to provide value for money for the taxpayer. Therefore, long-term planning to recruit the right skills is critical.

[Justin Madders]

I thank the hon. Member for her intervention. The point about agencies and locum spend is not a new one. It will be interesting to see the figures for the last 12 to 18 months when the Minister has finally ratified them, because I suspect they will be even higher than those we have heard recently.

[Dr Whitford]

Having spent over three decades in the NHS, I know that this is not just about senior staff and what are called frontline staff. It is said, “We’ll protect frontline staff, but we’ll cut administrative staff or backroom staff.” However, if I am not in a clinic with the right results with the right patient at the right time, I am a waste of space. In actual fact, we need to look at the whole team. There is a sweet spot where I am working flat out but I have a team who are helping me. If we cut any of those, then we lose efficiency, and as the hon. Member for Twickenham (Munira Wilson) said, costs are going up, so we are becoming not more productive, but less productive.

[Justin Madders]

I thank the hon. Member for her intervention. Indeed, this actually covers some of the debate we had in Committee. There has been a rhetoric coming out of Government in recent months that managers are somehow a cost burden and that administrative staff do not actually help deliver the services. Of course, as the hon. Member has just pointed out, they are a vital source of support for those on the frontline.

[Dr Murrison]

The hon. Member is being generous in giving way. Would he avoid the temptation to suggest that productivity is in some way simply a demand for hard-pressed people in health and social care to work harder? It is not that at all. It is just doing what they want to do, which is to work smarter and thus get more out of the system, which I think is what the hon. Member for Central Ayrshire (Dr Whitford) has just said.

[Justin Madders]

I accept what the right hon. Member has said. There has been a gap in investment in IT and other things that make people’s jobs easier and more efficient, and that has been a characteristic of NHS spending over the last decade.

With your permission, Madam Deputy Speaker, I will try to make some progress, but it is important, as we have talked about the staff, that we pay tribute to all those who make the NHS what it is today. On Nursing Support Worker Day, I pay tribute to all those who work in wards, clinics and community settings to support our nurses and provide that essential hands-on care to patients.

Our care system does indeed face a crisis—over waiting times, over recovery—but as with all other crises, the root cause is inadequate funding. The most visible and significant symptom is an inadequate workforce, plus the scandal of social care provision. There is no plan at the moment; it is just a plan for a plan. When we talk about a workforce crisis, that cannot be in any way a reflection on the huge value and contribution of the workforce we have now.

There are particular positive aspects to amendment 10 to which I would like to draw attention. Explicit recognition of the need to consult with the workforce through trade unions is very welcome. The planning covers health and social care, which is also absolutely essential. Given the scope of the review, the timescale is about right—every two years is demanding, but not too onerous—but a regular update each year might be preferable. However, the main point, which I have made already, is to compel a regular report and review of demand. The central role is that the Secretary of State has a duty to get planning done, and we hope that will be a crucial lever for the change we need to see.

If the amendment has a weakness, it is probably the one we have touched on already, which is that it does not ensure that the plan is feasible or delivered. A plan that shows the gap is not a plan unless it has a credible funding solution alongside it. Even if that is not explicit in the amendment, we assume that funding would follow any such assessment and plan that is set out. Our suggestion would be that any such financial projections in a plan are subject to the same level of independent expert verification as we see with the Office for Budget Responsibility. Since all the various think-tanks are going to do an assessment anyway, we may as well have a built-in process for verification.

[Rachael Maskell]

Does my hon. Friend agree with me that many of the recruitment challenges often sit in outsourced services in the private sector, and as a result it is really difficult to find the complement of staff required because people want to work in the NHS? That needs to be taken into consideration in any workplace plan.

[Justin Madders]

I thank my hon. Friend for her intervention and I will later talk a little about outsourcing and the role it has to play. We believe that plans should be built from the bottom up, not from the top, and that implies the involvement of ICBs, NHS trusts and foundation trusts. ICBs and their strategic arms, integrated care providers, will not be functional for some time. That is a shame, but it does not mean we should not proceed with the amendment.

The scale of the workforce challenge is well established: high rates of vacancy, inadequate levels of retention, and much more. It goes far deeper than numbers and structures, to issues of workforce terms and conditions, particularly in social care. It must also cover cultural issues, as there is a clear indication that all is not well in the NHS in terms of diversity. There is also whistleblowing, and aspects of how staff are nurtured and supported. At its very best, the NHS is very good, but unfortunately that is not the story across the board. It should be good in every part.

On that theme, let me mention the continuing disgrace in the way that some members of the NHS workforce are treated. I find it unacceptable that cleaners, porters, catering and IT staff are still being outsourced by trusts that are trying to make tax savings or outsource services to the lowest bidder. Perhaps the Minister can look into the current dispute at South Warwickshire in that regard, as we do not think that is a template to follow. Workforce planning is not a problem that can be solved quickly, although increased funding in social care could help that. For the NHS, the long term is indeed a long time—for example, the time needed to develop and train GPs and consultants. More money is not the only answer; technology and reform of the way we work must all be part of the mix. However, the labour-intensive nature of care will not fundamentally change, so we must look at workforce numbers as the priority. It is often said that failing to plan is the same as planning to fail. Some colleagues believe that a failure to plan is exactly that—a route to ending the NHS as we know it by showing that it fails. However, the Bill suggests an acceptance that a plan is needed, and work is under way. Hopefully that work is not being handed out to more consultants, of whom we see enough already.

Labour will support the amendment tabled by the Chair of the Health and Social Care Committee, which we hope will be pushed to a vote. I hope I have not been too effusive in my comments about him—I have a reputation to maintain after all—but I will refer to the excellent report done by his Committee on workforce burnout, which in many ways is the cornerstone of what we are debating. In its conclusion, the Committee said:

“The emergency that workforce burnout has become will not be solved without a total overhaul of the way the NHS does workforce planning. After the pandemic, which revealed so many critical staff shortages, the least we can do for staff is to show there is a long term solution to those shortages, ultimately the biggest driver of burnout. We may not be able to solve the issues around burnout overnight but we can at least give staff confidence that a long term solution is in place.

The way that the NHS does workforce planning is at best opaque and at worst responsible for the unacceptable pressure on the current workforce which existed even before the pandemic.

It is clear that workforce planning has been led by the funding envelope available to health and social care rather than by demand and the capacity required to service that demand. Furthermore, there is no accurate, public projection of what health and social care require in the workforce for the next five to ten years in each specialism. Without that level of detail, the shortages in the health and care workforce will endure, to the detriment of both the service provision and the staff who currently work in the sector. Annual, independent workforce projections would provide the NHS, social care and Government with the clarity required for long-term workforce planning.”

That conclusion shows what we are trying to achieve today. That is the nub of it: if not now, when? When will the Government finally accept the obvious that has been staring them in the face for years?

New clause 29 would require the Secretary of State to lay before Parliament a fully funded health and care workforce strategy to ensure that the numbers, skill and mix of healthcare staff are sufficient for the safe and effective delivery of services. It builds on other amendments, and seeks further assurances by putting patient safety and safe staffing levels at the heart of workforce planning, by setting out how the Government will be required to act to assess and rectify shortages. It seeks to ensure that the workforce will be on a sustainable footing in future. Patient safety should be our primary concern. We have the evidence base: when there are not enough registered nurses, mortality rates change and health outcomes are worse. I accept that the level of detail in the new clause is significant, but we consider that necessary to underscore the importance of setting out how this will be delivered.

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[Mr Richard Holden (North West Durham) (Con)]

I thank the hon. Member for giving way, and I apologise to the Minister for not being here at the very start; I was on a train back from a ministerial visit in my constituency. I would just like to pay tribute to some of the campaigners who are in the Public Gallery at the moment, particularly those from Karma Nirvana, the Iranian and Kurdish Women’s Rights Organisation, the Middle Eastern Women and Society Organisation, and the Royal College of Obstetricians and Gynaecologists. Does the hon. Member agree that it is those campaigners and charities who have worked on this issue for a very long time who have really brought it to the fore—they have just been supported by some Members of this House—and that it is they who deserve the credit?

[Justin Madders]

I thank the hon. Member for his intervention. I think he is being very modest, but he is absolutely right that these things do not happen by accident. It is often the hard work, over many years, of campaigners and campaign groups who being these issues to the fore and do the diligence and the hard work behind the scenes that leads us to the sort of outcome that we will hopefully get today—an end to this abhorrent practice.

On the hon. Member’s other amendment, new clause 22, we also want to see hymenoplasty ended. It has no medical benefit whatsoever. As the Minister said, there is currently an expert panel looking at the issue, and he is waiting on its recommendations. I think the outcome is in little doubt, to be frank. However, I wonder whether the Minister can give us an assurance that, should those recommendations turn out to be as we would expect, he will be able to act on them quickly and get something down in statute as soon as possible so that we do not miss the boat.

Turning to the amendments on the health services safety investigations body, much of the proposed legislation is the same as that proposed in the other place, and there were extensive debates on this matter in Committee. There are, however, issues that remain, which are covered by amendments we will be debating today. I can imagine the other place having quite a lot to say about some of these issues. In general, we support the move to the new body, but over time attention must be applied to some aspects of the way it will function in practice. Our major reservation is, yet again, with the involvement of the Secretary of State. Our amendment 74 would have the effect of leaving out clause 115, which is another clause that gives the Secretary of State extra powers to interfere.

Our general observation would be that there is far too much extra power going to the Secretary of State in the Bill anyway, but we are particularly concerned at the powers set out in clause 115, which give him what we consider to be wholly unnecessary powers to direct. It is pretty much a blank cheque to enable him to step in and interfere any time he likes as long as he considers that there has been a significant failure. Under subsection (2), the Secretary of State can direct the HSSIB in whatever manner he determines, which I would have said is about as far away from independence as we can get—until we get to subsection (4), which means the Secretary of State can also effectively step into the HSSIB’s shoes and undertake the duties himself. I can do no better than refer to the evidence Keith Conradi gave to the Public Bill Committee, when he said:

“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60.]

We also support the amendments put forward by the spokesperson for the Scottish National party, the hon. Member for Central Ayrshire (Dr Whitford), which are important in preserving the principle and status of protected spaces. We feel it is important that they cannot be nibbled away at, as the Bill currently allows.

The purpose of amendment 57, which we also tabled in Committee, is simply to delete clause 127, which deals with the role of the Secretary of State in professional regulation. So far, we have had no convincing explanation of why the Secretary of State needs these powers. If there are no professions that he wishes to remove, we do not need the clause. If there are, he should say so, so we can have a debate now on whether it is appropriate to hand over those powers to him.

Finally, on new clause 1, I pay tribute to the all-party parliamentary group on beauty, aesthetics and wellbeing, whose work in this area has been influential in producing it. Many of the group’s members have put their name to it. As we know, cosmetic treatments can include a wide range of procedures aimed at enhancing or altering appearance. Many of those procedures are becoming increasingly popular and new clause 1 speaks to the well-articulated concern that non-medically and medically trained practitioners are performing treatments without being able to provide evidence of appropriate training, and without required standards of oversight and supervision.

I hope the Members moving new clause 1 will have the opportunity to speak to it, as there are far too many stories of people suffering horrific, life-changing injuries. There would undoubtedly be a saving to the NHS in reduced visits to accident and emergency and GPs to correct mistakes made by poorly trained and unregulated practitioners. We therefore think the new clause has value. Some of the impacts on the NHS from the lack of regulation include outbreaks of infection at a skin piercing premises, resulting in individuals being hospitalised; disfiguration and partial removal of an ear; second and third-degree burns from lasers and sunbeds; allergic reactions due to failures to carry out patch tests or medical assessments, which led to hospitalisation; and blindness in one eye caused by the incorrect administration of dermal filler.

New clause 1 seeks to put the protection of the public at the forefront by giving the Secretary of State power to bring into force a national licensing scheme for cosmetic procedures. Clearly, given that this is a departure from the wild west we face at the moment, we recognise that significant research and engagement with stakeholders will be needed to develop a scheme, as well as the provision of a practical and efficient system for people to become regulators and practitioners. If that does not make it on to the face of the Bill today, we hope this is an issue the Government will return to shortly.

[Jeremy Hunt]

I rise to speak in support of amendment 10 but, before I do, I also want to express strong support for amendments 40 to 43, tabled by the hon. Member for Central Ayrshire (Dr Whitford), which will make a big difference in making the new health services safety investigation body a success. I strongly encourage the Minister to listen to what she says later not just with the deference due to an experienced surgeon, but with the enthusiasm to follow a doctor’s advice, because what she says is extremely important.

I also thank the hon. Member for Ellesmere Port and Neston (Justin Madders) for his generous comments about me. Having sat opposite him at the Dispatch Box on many an occasion, I realise how difficult they must have been for him to say. He must have wrestled with those thoughts for a long time, and I am delighted that he has been able to unburden himself today.

The hon. Gentleman was absolutely right to focus on burnout in the NHS workforce. All of us would agree that NHS and care staff have done a magnificent job looking after us and our families in the pandemic, but right now they are exhausted and daunted. They can see that A&E departments and GP surgeries are seeing record attendances. They can see nearly 6 million on waiting lists, which is more than one in 10 of the population. They also have the vaccine programme and covid patients.

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[Mr Deputy Speaker (Mr Nigel Evans)]

Fantastic. I am grateful to the Minister for his brevity; he can see how many people are trying to catch my eye.

[Justin Madders]

Thank you, Madam Deputy Speaker—[Interruption.] It has been a long day, Mr Deputy Speaker, but we will get there.

I will speak to the amendments tabled in my name and those of my right hon. and hon. Friends. As the Minister said, this group of amendments covers a large range of important areas, so I will be brief.

New clause 27 flags up the issues around waiting times. Passing any amendment requiring a report is, of course, not a total solution, but it might be a source of focus. As Labour has said many times since 2010, winter pressures, waiting times and the flight into private healthcare to get earlier treatment have exacerbated the issues.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Many of my constituents find it increasingly difficult to book an appointment with an NHS GP or dentist, forcing them either to go private or to suffer without treatment. Does the shadow Minister agree that, after a decade of failure and misguided policies, the Government must take urgent remedial action? However, the term “waiting time”, to which he has just referred, is not mentioned once in the Bill.

[Justin Madders]

My hon. Friend is right that one of the criticisms we have levelled against the Bill is that it does not address the issues and challenges facing the NHS. I will take no further interventions, because I am conscious that many Members have contributions to make.

I will move swiftly on to our two amendments dealing with inequality and to new clause 64 in the name of my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams). To show that this is an NHS and social care Bill, not just an NHS Bill, local authorities need to be more involved and more emphasis must be placed on wellbeing and better outcomes. We support the NHS triple aim—improving health, quality of care and cost control are, of course, important functions. Nevertheless, we live in a country where significant inequalities remain, and narrowing those gaps should be a national priority.

Research from the IPPR last month highlighted the 10-year gap in life expectancy between a person living in the poorest community and a person in the best off. That gap doubles when we talk about healthy life expectancy. Tackling that disparity must be a priority in the Bill. The Secretary of State for Health and Social Care said in his first speech that said he wanted to tackle the “disease of disparity”, so why is that missing?

Turning to clause 39—one of my favourites—why it remains in the Bill is a mystery given that the previous Secretary of State, the right hon. Member for West Suffolk (Matt Hancock), who requested these powers, is no longer in the role. Perhaps he will give us his insight into that later on. It is the absolute antithesis of the Lansley view that politicians should be distanced from NHS operational issues and makes a mockery of the overall thrust of this Bill, which is about encouraging local decision making. It is no exaggeration to say that, taken literally, clause 39 and its accompanying schedule 6 require the Secretary of State to be told if there are, or even if there might be, proposals to vary service—even moving a clinic from one location to another nearby.

As has been pointed out by wise heads, the power is not one that many Secretaries of State should want to get involved in. A Secretary of State who used it could be accused of favouring certain areas or decisions for political purposes. The well-articulated fear is that it will be used to block necessary but unpopular changes and that expediency will rule. Such decisions should be left to the clinicians or maybe the health economists but not politicians. Labour opposes this new power and would gently say to the Minister, “Be careful what you wish for.”

Finally, the issues around discharge to assess are complex. As we worked our way through in Committee, we heard evidence from many stakeholders, and it is fair to say that views on the matter were polarised. We are led to believe, and have some confirmation, that this development is working well for some acute settings, helping ease the perennial and disruptive issues around delayed transfers of care, but in other places we hear voices calling for much greater caution and for tougher safeguards or even, as amendment 60 requests, to stop it altogether. While we have sympathy with amendment 60, it would only pose more problems for the NHS if it was passed, so we have opted in our amendment 73 just to tighten up on safeguards.

Of course the real solutions are far more complex and would require higher investment both in the NHS and in social care. It should be mandatory that all aspects of ongoing care have been properly discussed and agreed with the patient and carers prior to discharge. An assessment should include carers with special attention if a child carer is involved, and there is a concern that unpaid carers will not be identified and consulted at the point of discharge.

The system for step-down care outside acute hospitals must be adequate, and there must be sufficient high-quality and funded places in care settings of all kinds. We are literally a whole generation away from having that kind of system, even if the funding started to become available today. On a related point, new clause 63 from the hon. Member for St Albans (Daisy Cooper) also deserves support.

I will leave my comments there, as I know many hon. Members want to speak.

[Mrs Theresa May (Maidenhead) (Con)]

I rise to speak in support of amendments 93 to 98, whose purpose is very simple.

The Health and Social Care Act 2012 established parity of esteem between physical and mental health in their treatment in the national health service. The Bill is silent on the issue. I know that Ministers have given assurances, in a variety of ways, that it is not the Government’s intention to move away from that parity of esteem, but if that is the case, the answer is simple: accept the amendments. The Government do not even have to write them; they have been written for them. There would then be absolutely no doubt about the continued commitment to ensuring parity of esteem between physical and mental health.

Mental health was clearly in the long-term plan for the national health service that I was pleased to see introduced. It was there because of the need to accept, as Members across the House do, that for too long mental health has not been given the attention that it deserves. People who were suffering with mental health problems were not getting the services that they need.

It will take time to ensure that we can provide for all, but sadly the issue has been exacerbated by the pandemic. In March 2021, there were 26% more referrals for mental health services than in March 2019, before the pandemic. The Centre for Mental Health reckons that 10 million additional people will need mental health care as a result of the pandemic. I am particularly concerned about the impact on young people; I am sure that Members across the House are seeing young people in their constituencies whose mental health may have been suffering anyway, but has suffered even more as a result of the pandemic.

More people now require mental health services. The Government talk a lot about dealing with the backlog that is a result of the pandemic, but it is only ever spoken about with reference to surgery or operations. The great danger is that in their focus on dealing with that backlog, which we all accept is necessary, the Government will push the issue of mental health services to one side.

The amendments stand in the name of my hon. Friend the Member for Broxbourne (Sir Charles Walker), in my name and in the names of Members across the House—there is cross-party concern. I say to the Minister once again: it is very simple. If the Government wish to maintain parity of esteem between physical and mental health and ensure that people with mental health problems are given the services and care that they need, they must put uncertainty to one side, accept the amendments and make it clear that physical and mental health will be treated with parity of esteem in our national health service.

Health and Care Bill

Justin Madders Excerpts

Report stage
Monday 22nd November 2021 Commons Chamber

[Edward Argar]

I am afraid I am about to conclude. I suspect that the hon. Gentleman will come back in with a speech and I will endeavour to pick up on that in the wind-ups.

There are a number of similar amendments, such as amendment 101 in the names of the hon. Members for Wirral West (Margaret Greenwood) and for Brighton, Pavilion (Caroline Lucas). I hope they might feel, to some degree, reassured by our amendment and the intent behind it, but that is obviously for them to say. We believe that the Government’s amendment puts beyond doubt what we believe was already entirely clear but were determined to put beyond doubt—that ICBs will not and cannot be controlled in any way by the private sector, as NHS-accountable bodies guided by the NHS constitution and with NHS values at their heart. These principles, I believe, irrespective of other debates we may have this evening, command respect from both sides of this place. I therefore commend the amendments to the House.

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

A wide range of issues that are part of this group of amendments demonstrate the cold reality of this Bill. It is a jumble sale of bits and pieces. Of course a Bill can be wide-ranging, but having breadth is not the same as having coherence, or indeed clarity. Such are the issues within scope in this grouping that I will not comment directly on every new clause and amendment but hope to have time to say at least a few words on those emanating from the Opposition Front-Bench team, as well as on any Government new clauses or amendments that we oppose. Some amendments refer to matters that have been dealt with in Committee where we have expressed our views and put forward amendments that failed to persuade the Government. Sadly, we have insufficient time to go over the same ground again, particularly given the rapid shifting of the goalposts we have seen in the past week.

I turn first to integrated care boards, or ICBs, and, more widely, the issue of governance. The question of governance and accountability remains an important matter to us and needs greater clarity than currently appears in the Bill. For Members who may not be familiar with the detail, the Bill proposes yet another reorganisation of the NHS, creating 42 new integrated care systems where decisions on how NHS and care spending will be made. The decision-making bodies within these systems are the ICBs, replacing the CCGs, which fall away into the annals of history alongside the primary care groups, the primary care trusts and all the other permutations that we have seen.

Our discussions on these matters in Committee showed that our disagreements tended to centre around an intention by Government to limit what is in statute and to leave maximum flexibility at local level, as opposed to our desire to ensure that safeguards and protections were in place for those matters we felt were too important to be left out. It is wholly ironic, therefore, that the Bill proclaims, on the one hand, local freedoms and flexibilities, yet on the other proposes sweeping top-down powers for NHS England and the Secretary of State. Our view remains that some flexibility is fine to allow shaping to local needs, but that some key principles need to be put into the Bill to ensure that there are no misunderstandings or unintended consequences.

We know that the genesis of this Bill has been the realisation that increasingly large parts of the NHS were ignoring the 2012 Lansley Act. Along with changes to procurement and pricing, this grouping deals with the main elements of reversing parts of that Act. We could spend all our time referring to what we said 10 years ago, and how the Health and Social Care Act 2012 has proved to be the disaster that we said it would be, but we will spare the Government the “We told you so” lectures, because even those on the Government Benches are now aware that the 2012 Act has been among the worst policy mistakes in the history of the NHS. Whether that damage was worse than the damage done by a decade of austerity remains to be seen, but repairing the damage done by austerity is not for today, as there is little in the Bill to address the ongoing consequences of a decade of underfunding, particularly the wholly appalling waiting times that we now see across the board.

--- Later in debate ---

[Geraint Davies]

Perhaps my hon. Friend can illuminate me. I was going to ask the Minister who owns the assets of the ICBs. Can the ICBs sell some of those assets and rent them back as a service? What constraints are there to stop people on the board enabling that, because they have some strange link to the people buying the assets?

[Justin Madders]

At the moment, ICBs are not a legal entity, so they do not own anything. When the Bill comes into force, they will effectively take over mainly administrative buildings from the CCGs, and the trust will hold ownership of most of the assets. We hope that there will not be the risks that my hon. Friend outlines, although it is not impossible for ICBs to set up their own trusts at some point in the future.

We do not believe that the question of private providers sitting on the place-based boards can be left open in this way, because this is really about who runs the NHS. There is a complete and utter incompatibility between the aims of private companies and what we say should be the aims of the NHS and the ICBs. I can do no better than refer to the evidence of Dr Chaand Nagpaul from the Bill Committee. He identified the concern perfectly:

“We forget at our peril the added value, the accountability, the loyalty and the good will that the NHS provides. We really do…I am saying that it does matter. Your local acute trust is not there on a 10-year contract, willing to walk away after two years. It is there for your population; it cannot walk away.”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 90, Q113.]

Those final words sum it up perfectly. Put a company on the board, and its interest lasts as long as the contract, and those interests will of course not be the same as the NHS’s anyway. A company’s primary concern is the shareholders, not the patients. With that clear and unanswerable concern about conflicts of interest, we invite the Government to withdraw their amendment and support ours.

We have already had some discussion of who goes on the ICB. Apparently, the answer is not the most appropriate people chosen by an independent external process or individuals directly accountable to the public; the answer is left to guidance that leaves open the risk that voices we think need to be heard will slip through the net. Our amendment 76 deals with that by setting out the requirements for ICB membership. Allocating scarce NHS resources should be robustly debated and will always be political. Tough choices have to be made, so we need people on the ICB who will be there to cover all the necessary interests for the wider good.

If Members look at what amendment 76 suggests, I hope nobody would argue that those interests do not have to have some voice. The public, patients, staff, social care, public health and mental health—which of those can be safely ignored and which has no part to play? As I have already mentioned, there is a major area of uncertainty because of the complete absence of anything that sets out how the much-vaunted place-based commissioning will work. Who will sit at the place-based table is, I am afraid, still completely opaque.

The next major area covered in the Bill is a further deconstruction of Lansley with the removal of compulsory competitive tendering for clinical services. We have seen the NHS proposals for a provider selection regime to replace the regulations under section 75 of the 2012 Act. That is to be regarded as a work in progress, so our amendment 72 covers the issue and would reintroduce some safeguards into how our money is spent. Since its inception, the NHS has always relied on some non-NHS providers, with the model developed for GPs being an obvious example. However, in recent decades there has been an increase in the use of private providers of acute care, most notably in diagnostics and surgery.

To be clear, we on the Opposition Benches believe that the NHS should be the default provider of clinical services. If it is not the only provider, it should be the predominant provider in geographical and services terms. Where a service cannot be provided by a public body because the capability or capacity is not there, there is still the option to go beyond the NHS itself, but that should be a last resort and never a permanent solution. Amendment 72 therefore sets out a clear framework for how we could achieve that. We hope that extra transparency and extra rigour would mean we avoid buying stuff that is unsuitable and sits in container mountains, stuff that does not meet specifications, and stuff made by companies that have no experience, but are owned by friends and family. In short, we would stop the covid crony gravy train.

The use of private sector capacity in the covid emergency turned out to be a farcical failure. It became very clear, very quickly that it was not there to support the NHS; it was there just to make profits. Use of private providers through dodgy deals during the PPE scandal has highlighted the need for greater transparency and greater capacity in the NHS. We can never allow a repeat of what we have seen there. We need the rigour set out in the amendment to be put into legislation, rather than left to guidance. We need to be able to challenge NHS bodies that do not comply, as well as Ministers who try to flout the rules.

I will now deal with new clause 49, saving the best—or more accurately, the worst—until last. Because of how Report stage works, it has fallen to me to express our opposition to this measure, rather than my expert colleague, my hon. Friend the Member for Leicester West (Liz Kendall), who shares my dismay at what has been produced and how it has been presented to us. Starting with the process, it is wholly wrong to bring such a fundamental change forward as a last-minute addition to this Bill. That means it cannot be debated properly today. There is no impact assessment and, as we have already heard, this change was not discussed in Committee at all. In fact, in 22 Committee sessions spanning some 50 hours, we never once heard mention of this amendment coming forward or discussion on the care cap. Indeed, when this Chamber was busy debating the social care levy, we were beavering away in Committee on the Bill, oblivious to the fact this measure was coming down the track. If the Government cannot even get their decision-making processes integrated, what hope is there for integrating health and social care?

As we know, the aim of the new clause is to remove means-tested benefits from the costs that count towards the care cap. As has been pointed out far and wide by Members from all parts of the House, that change adversely impacts some more than others. It is a wholly regressive measure, to say the least, to give support through means-testing, but then to penalise people later for receiving it in the first place. We will vote against this iniquity, and I hope many Conservative Members will vote with us. They should be used to the Prime Minister’s broken promises by now; this is their chance to make the point that he should stand by what he says.

[Mike Amesbury]

Does my hon. Friend agree that it is Robin Hood in reverse? I encourage Conservative Members who wax lyrical about levelling up, particularly in the north, to do the right thing.

[Justin Madders]

My hon. Friend must have sneaked a look at my speech, because I will say later that it is Robin Hood in reverse.

[Barbara Keeley]

The proposal is grossly unfair. I gave the example earlier that in our region, 15% of people with dementia will reach the cap, whereas 34% would have under the Dilnot proposals. The cap also does not protect working-age adults who are accessing social care, or people with a disability, but Sir Andrew Dilnot’s proposals would have done. It is the second major area in which the proposal is grossly unfair.

[Justin Madders]

Again, my hon. Friend must have read my speech because I will make that point later. The proposal shows that the Bill is not a plan to fix social care but a very thin attempt to change parts of the system. There are many other elements that clearly need dealing with.

In case Conservative Members need reminding, in the Prime Minister’s first speech on taking office, he promised to,

“fix the crisis in social care once and for all, with a clear plan that we have prepared”.

We are still to see that plan. What we have is a new tax and a broken promise.

[Alison McGovern (Wirral South) (Lab)]

My hon. Friend and neighbour is making an excellent speech. We should be talking about a plan for social care, but we are actually talking about a tax on the people who have lost out over the past decade and more from the excessive house price growth in the south compared with other parts of the country. This is a tax that doubles down on inequality, rather than addressing it.

[Justin Madders]

I thank my hon. Friend and neighbour—I am getting all my neighbours in tonight. She makes a brilliant point: the proposal exacerbates regional inequalities through an unfair tax and is certainly not a plan to fix social care. Hon. Members should look at what my hon. Friend the Member for Leicester West has said about what needs to be done to tackle the social care crisis in this country; it is an awful lot more than putting in place a cap that benefits only some people in certain parts of the country.

Not only will the proposal not stop people having to sell their home to pay for their costs, but it will bake in unfairness for a generation. It does nothing for working adults with long-term care needs, who seem to have been completely missed out, as my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) said. It is not what was promised, but hon. Members do not have to take my word for it. Let us listen to the experts. Age UK says:

“The change the Government has announced makes the overall scheme a lot less helpful to older people with modest assets than anyone had expected. It waters down Sir Andrew Dilnot’s original proposal to save the Government some money, but at the cost of protecting the finances of older home owners…This feels like completely the wrong policy choice and we are extremely disappointed that the Government has made it”.

The King’s Fund says of people with more modest assets that,

“the Prime Minister’s promise that no one need sell their house to pay for care…doesn’t seem to apply to them.”

Instead, it will only “benefit wealthier people”.

[Barry Gardiner]

My hon. Friend referenced the Prime Minister’s statement that nobody would have to sell their house to pay for social care. I know that my hon. Friend would never seek to call the Prime Minister a liar in this Chamber, but does he wonder, as many hon. Members do, why the Bill appears to be turning the Prime Minister’s words into a lie?

[Justin Madders]

I thank my hon. Friend for his intervention—I think. What I can say here and what I might say outside are not the same, and I do have to finish my speech, so I will leave it there. I am sure that the public will make up their own minds about the veracity or otherwise of comments made by the Prime Minister.

Sir Andrew Dilnot said that the proposals will create a north-south divide, that those with assets of £106,000 will be hardest hit and that anyone with assets under £186,000 will be worse off than under his proposals. According to the Health Foundation, assuming care costs of about £500 a week, those with assets of £150,000 will take a year and a half longer to reach the cap than they would have under the Dilnot proposals, those with assets of £125,000 will take four and a half years longer, and those with assets of under £106,000 will never reach the care cap. Contrary to what the Minister has said, people with assets of £106,000 or less will not benefit from the proposal at all.

Chronic Obstructive Pulmonary Disease

Justin Madders Excerpts

Wednesday 17th November 2021 Westminster Hall

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

It is pleasure to see you in the Chair this morning, Ms Nokes. I would like to add my congratulations to those already offered to my neighbour, my hon. Friend the Member for Weaver Vale (Mike Amesbury), for securing this debate on COPD on World COPD Day, when awareness should of course be raised of the condition. Debates and days such as this are important in ensuring that people with COPD have access to the care and information they need to manage their condition well.

My hon. Friend gave an excellent introduction and raised many issues, which many other hon. Members raised in various guises, and which I will return to during my contribution. He wanted to focus on public health issues, to avoid our constituents contracting COPD in the first place; improving diagnosis rates, to ensure that it is caught at an earlier stage; transforming treatment, to help patients manage their condition; and investing more in research, so that we can develop groundbreaking diagnostics and treatments. I think we all agree that those are worthy aims that we ought to cover in the debate.

We also heard from my hon. Friend the Member for Newport West (Ruth Jones). She rightly raised the link between lung conditions and air pollution, and she provided some shocking statistics about the number of maternity units that exceed WHO air quality guidelines, particularly after recently updated guidelines were issued. She also raised a whole series of other statistics that set out the scale of the challenge that we face in improving air quality.

My hon. Friend the Member for Blaydon (Liz Twist) spoke about her region and how the staggering levels of health inequality in this country mean that the north-east has much higher rates of COPD than many other areas. She rightly highlighted the importance of helping people to stop smoking as part of this battle. As Members referred to, a decade of cuts to public health grants has led directly to a reduction in smoking cessation services. She also raised the importance of spirometry testing and how this needs to be conducted in primary care; otherwise, issues related to a failure to diagnose conditions early, which we have talked about, will continue.

It was a pleasure, as always, to hear from my hon. Friend the Member for Halton (Derek Twigg), who talked about the prevalence of COPD in his constituency and the various factors that have led to that. He rightly mentioned how the condition leads to many more unplanned emergency admissions; as we know, pressure on A&E at the moment is immense, and that is before we even get into the depths of winter. He also spoke about the excellent work of the community rapid response teams, which can help reduce that pressure on A&E, which will ultimately deliver better patient outcomes. He was right to highlight the additional demands on GPs and the additional numbers of patients they now see, which of course contributes to the difficulty of getting those early diagnoses that all Members referred to.

COPD is the name for a group of lung conditions, including emphysema and chronic bronchitis, that cause breathing difficulties and a permanent narrowing of the airways. Symptoms include shortness of breath when doing simple, everyday things such as going for a walk or housework; a cough that lasts longer than a week; wheezing, particularly in cold weather; and producing more sputum, or phlegm, than usual. My hon. Friend the Member for Weaver Vale highlighted the case study of Chris, which highlights how we sometimes take good respiratory health for granted; only when we lose it do we realise how critical it is.

As we heard, a significant number of people in the UK—more than 1.3 million—have a COPD diagnosis. As many Members said, at least a similar number are estimated to have the condition but are currently undiagnosed. In 2016, the National Institute for Health and Care Excellence estimated that 3 million people in the UK had COPD, of whom around 2 million remain undiagnosed. As we heard, numbers are higher in the north of England and in areas of deprivation. It is estimated that prevalence in the most deprived 10% of areas is almost double that in the least deprived 10%.

My hon. Friend the Member for Blaydon referred to the British Lung Foundation’s survey of 8,000 people with COPD between December last year and May this year. It found that, before the pandemic, around 70% of people diagnosed with COPD said they faced barriers in getting their diagnosis, 14% experienced an initial misdiagnosis, and others had symptoms mistaken for a chest infection or cough or were sent away by their GP after raising COPD symptoms. Worryingly, the Government’s own figures show that diagnosis rates, which I think we accept were too low to start with, have plummeted—understandably—during covid, and so far show little sign of recovery. This month, the British Lung Foundation reports that diagnostic tests such as spirometry have not yet resumed, which many Members touched on.

My hon. Friend the Member for Halton mentioned that there was a 51% reduction in COPD diagnosis in 2020 compared with the previous year, meaning that around 46,000 people in England alone missed out on a diagnosis. Over two years, that is around 92,000 people missing out on a diagnosis. As we know, receiving a diagnosis late means the disease has progressed, which means there is a greater risk of early mortality, never mind the impact on quality of life. Later diagnosis is also linked to higher levels of COPD exacerbations, which can result in lung damage and longer hospital stays. In fact, COPD is currently the second largest cause of emergency hospital emissions, which have risen three times faster than general admissions, putting enormous strain on our NHS, at an estimated cost of £1.9 billion every year.

As we have heard from other Members today, not only late diagnosis impacts hospital admissions; the BLF survey found that those patients who reported receiving the basic standard care—the five fundamentals of COPD care—had fewer flare-ups and better understood what to do when their symptoms worsened.

It is not acceptable that current levels of care mean that, even when a patient has a confirmed COPD diagnosis, they are likely to struggle to access the care they need, resulting in people needlessly ending up in hospital. When national guidelines are in place, it should not be the case that over three-quarters of those who responded to the BLF survey said they were missing out on some aspect of this care. Those with a recent diagnosis were the most likely to receive the lowest levels of care and there was a clear relationship between the length of time since diagnosis and receiving the five fundamentals of COPD care, so we can see that the situation is deteriorating. The BLF report suggests that this may be because people with COPD have to learn how to navigate the NHS to get the care they need. The report also finds that those who received the basic standards of COPD care had fewer exacerbations, were able to manage their condition, and better understood what to do when their symptoms worsened than those who did not, so it simply is not good enough that that group only received the right care eventually, leaving them vulnerable to a deterioration in their health as a result.

We already know that an estimated 420,000 people in the UK may have had their working lives cut short by COPD, and more than half who responded to the BLF survey said their mental health had worsened since suffering a COPD diagnosis. Clearly, we need to do better than this. As Members have said, it is absolutely vital that the right support and treatment are put in place at the right time.

The NHS long-term plan includes commitments related to respiratory disease, including to detect and diagnose respiratory problems earlier and increase access to pulmonary rehabilitation. Will the Minister update us on what progress has been made towards meeting those commitments? It is important to note that the plan was written before covid-19 struck. As my hon. Friend the Member for Weaver Vale said, this plan is very good for sitting on the shelf, but what happens on the ground and how it is delivered are what really matter.

The Minister will know that services were already severely strained before covid-19. We went into the pandemic with the NHS already on its knees, with 17,000 fewer beds, 100,000 full-time NHS staff vacancies, hospitals crumbling, public health services cut and GP numbers down. Members have picked up on all these things today, so we know that the crisis we are in is not simply the result of covid.

We know that NHS waiting lists are now at a record high, with 5.8 million people waiting for treatment. Hospital leaders have warned in recent days that our services are at breaking point, and we know that the coming winter weeks are going to be some of the most challenging in the history of the NHS.

We need to see a plan to get the NHS through the winter without compromising patient care. We need a realistic plan to tackle the backlog in non-covid care and a dedicated plan to tackle the huge backlog in respiratory care. In a written answer in January this year, the Government said they were working with partners to develop and implement policy on the provision of pulmonary rehabilitation services in England. Almost a year on, I hope the Minister will be able to update us on what progress has been made on that plan.

Hospital Building Programme

Justin Madders Excerpts

Wednesday 3rd November 2021 Westminster Hall

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

It is a pleasure to see you in the Chair, Mr Sharma. I congratulate the hon. Member for Crewe and Nantwich (Dr Mullan) on securing the debate. As a fellow Cheshire Member, our paths will no doubt cross as we get involved in the megalithic integrated care system that covers our area, and it is good to see healthy representation from Cheshire Members, which shows the interest and passion that we have for improved health services in our area. He mentioned that he volunteered to use his medical skills on the frontline during the pandemic, and we thank him for his efforts, just as we thank everyone who contributed to the fight against covid, be it in the NHS, in social care or in any of the other many sectors that played their part. We recognise and value the commitment that was made by so many people over such a long period of time.

As the hon. Member for Crewe and Nantwich set out, hospitals are more than the buildings themselves. It is the staff who make hospitals, and he brought that to the fore in his comments. He said that the site of Leighton Hospital has exceeded its original lifespan—I think it is as old as I am, which is a concern. Hopefully, I will not be up for a rebuild any time soon. It was a common theme of contributions to the debate that a lot of the buildings in Members’ constituencies have reached the end of their natural lifespans. It would be useful to hear from the Minister whether any assessment has been made of how many hospital buildings, and buildings across the wider NHS, have already exceeded their original lifespans. The hon. Gentleman made a compelling case for why a new hospital needs to be built in Crewe, and he mentioned that the local population has grown considerably.

[Mike Amesbury]

I thank my hon. Friend and constituency neighbour for giving way. Of course, Leighton Hospital is part of the Mid Cheshire Hospitals NHS Foundation Trust, which also includes Victoria Infirmary in Northwich. This would be a real opportunity to capture investment across the campuses, which serve a number of our constituents, and I would certainly welcome my hon. Friend’s support on that. As a Cheshire MP, it would certainly be very welcome indeed.

[Justin Madders]

My hon. Friend probably needs to direct his pleas to the Minister more than me—at this stage, of course—but I would be delighted to visit the facility with him. I am sure that he will make a strong case for investment, as other Members have done. There is an issue with how the interplay works between some of the competing bids for what is obviously a very competitive process, which I will return to later. Like the hon. Member for Eddisbury (Edward Timpson), my hon. Friend the Member for Weaver Vale (Mike Amesbury) has shown that there is cross-party support for the case for a new hospital that was made by the hon. Member for Crewe and Nantwich, who also set out why this is good for patients. He talked about some of the issues around privacy, dignity and infection control, and he said that a new build gives us an opportunity to invest in modern digital infrastructure. Of course, he also mentioned important stuff to do with COP26 and the energy efficiency of a new build. Those were all well-made points.

We also heard from the right hon. Member for Hemel Hempstead (Sir Mike Penning), who made a persuasive and passionate case as to why the current plans need to be reconsidered. He made a very interesting point about the accountability of trusts. He is probably not aware that the Minister and I have been debating this issue in Committee for a number of weeks, and it is fair to say that we have differing views as to how accountable the current system is and whether it will actually change at all when the Health and Care Bill receives Royal Assent. There is an issue with how large trusts have their own priorities, which are not necessarily in tune with the rest of the wider population and healthcare system.

The hon. Member for North West Norfolk (James Wild) made a very strong case for the Queen Elizabeth Hospital in King’s Lynn; he highlighted the critical nature of the maintenance issues there, which are clearly having an effect on patient care now. The Minister will not be surprised to know that I will be referring to the maintenance backlog during my comments today. The hon. Member also set out very well how new builds can not only improve infection control, but enhance the patient experience. We should always remember that the patient journey is central to these things. A new hospital always has to have the interests of patients, and their perspective, at the heart of its plans.

The hon. Member for Keighley (Robbie Moore) made a strong case for why a new hospital is needed in Airedale. Again, it is a building that is past its original lifespan; it has critical infrastructure issues. Describing it as the “leakiest hospital is the UK” is not something the hon. Member will want to repeat for much longer. It shows again that many of these issues have been building up for some time.

I was very interested in what the hon. Member for Hartlepool (Jill Mortimer) said about health inequalities; it was an important point, and perhaps a broader one than some of the others that have been made. She is absolutely right that the pandemic has shone a light on the existing health inequalities in this country. I agree that if we are serious about levelling up, reducing health inequalities has to be central to any policy.

The right hon. Member for Basingstoke (Mrs Miller) made a compelling case about how investment is needed for her new hospital, and how the change and growth in local population has created additional demand. It is an important point that, because of the way that her town has built up, there is more demand from an increasingly ageing population.

All the Members have made very good cases today; if it was based on the commitment and passion of individual Members, the Minister’s job would be quite straightforward. However, I know there will be many other demands on the departmental budget. There is a serious point here. We need to have transparency on the criteria that will be applied when the decisions are made. It would be fair to say, if we look at levelling-up bids, there has been some consternation that the decisions are not always made on the merits of the case. It is important that the Department is crystal clear on why particular projects are getting the go-ahead, and why others may have to wait a little longer.

I am sure that the Minister would be disappointed if I did not make a reference to whether the Prime Minister’s claim to be building 48 new hospitals is in fact an accurate one. We take with a large pinch of salt the definitions from the Department’s playbook that the following count as a new hospital: they say this includes

“a new wing of an existing hospital (provided it contains a whole clinical service, such as maternity or children’s services).”

They also say this includes

“A major refurbishment and alteration of all but the building frame or main structure, delivering a significant extension to useful life which includes major or visible changes to the external structure.”

That may well be investment in buildings—which is of course welcome—but it stretches credibility to say that those are new hospitals. I will not repeat the whole debate again on whether those descriptions can be classed as new hospitals, except to say that the Minister will no doubt rely on his VAT notices to reach that figure of 48: we will rely on the good sense of the British public to judge whether a new hospital is indeed a new hospital. When we get to 2030, we will see how many new hospitals we actually have—although it is possible that both the Minister and I will have moved on by that point.

Let us return to the present day, move away from the headlines and the spin, and ask some specific questions about the programme. I will start with the cost issue. It is my understanding that the projects identified in phase 1 have been promised a total of £2.7 billion, although some reports suggest that a £400 million price cap is being applied to each scheme, even though some of the published plans for those schemes have exceeded that limit already. Could the Minister comment on whether there is in fact an upper cash limit on particular projects, and whether it is indeed £400 million?

Almost exactly a month ago, the Prime Minister made an announcement on round 2 of the health infrastructure plan, in which, incidentally, only three out of the 25 hospitals are in the whole of the north of England. I think that says something about the Government’s commitment to levelling up and bolsters the case made by the hon. Member for Crewe and Nantwich to push forward for a new building in Crewe. Could the Minister advise what period and how much of the total programme the £3.7 billion mentioned in that announcement covers? Could the Minister also advise if the £4.2 billion, announced in the spending review last week in relation to new hospitals, is the same money as the Prime Minister announced on 2 October or is in addition to that? If it is additional, what period does that £4.2 billion cover? We want a little clarity on how much has actually been allocated and the period that it covers. I am sure the Minister realises that, even if we add up all those figures, it would not be the total cost of all those projects moving forward to 2030.

We have had three separate announcements over the last year. I make that point because the foreword to the health infrastructure plan talks about ending the “piecemeal and uncoordinated approach”. We have an investment plan spanning a decade, but the necessary investment has been announced for only the first half of that decade, at best, to come out in dribs and drabs. I suggest that the Minister might need to read the foreword to the plan again to see whether the ambitions set out there are being met.

NHS Providers has said that the actual cost of the planned building projects would be around £20 billion, most of which will need to be found in the next few years. Even building an average-sized new hospital costs around £500 million, which rather puts the spotlight on the supposed £400 million cost limit I referred to earlier. I wonder if the Minister could put a total cost—

[Sir Mike Penning]

I think we have to be slightly careful when referring to costs such as that £500 million. Built into that is inflation, because of the way the Green Book works, because of the risk. I had to deal with this on the roads programme as roads Minister: what happens is that a figure is set out, but it is not the same as the actual cost of the build project. That is probably where some of that cost anomaly comes from. The Treasury Green Book insists on inflation of that price when the build price is much lower; in my case, £500 million was £420 million in the Birmingham build. We have to be careful of trusts that do not want to do that; for example, my trust—the West Hertfordshire Hospitals trust—inflates the cost into £600 million because it does not want to do it.

[Justin Madders]

I will reflect on the right hon. Gentleman’s comments. That leads on to another point I wanted to raise with the Minister: we are aware that the economy is currently in something of a flux in a whole range of sectors, in terms of finding the right people and the right skills, and construction is not immune to that. Do the plans include any wiggle room to take account of the fact that the cost of labour and materials is unfortunately going up quite rapidly at the moment?

NHS Providers said that

“there are still significant questions on whether the NHS will be able to meet the government's manifesto pledge to upgrade 70 hospitals and build 40 new ones given the lack of clear, long term, funding commitments beyond 2024/25.”

It also said that it awaits

“confirmation of the money that will be available to providers to tackle the £9.2bn maintenance backlog that has built up.”

The Minister will know that that has shot up in recent years, leading to cancelled operations and a 23% increase in treatments being delayed or cancelled in the last year because of infrastructure failures, and yet we are hearing very little on what is being done about that. I think the hon. Member for Eddisbury mentioned something in the region of £400 million being identified as the maintenance backlog costs at Leighton Hospital alone. We have also heard from other Members on infrastructure issues causing difficulties in their own trusts.

These problems are not new; they are the result of a decade of underfunding on both capital and revenue, with the Health Foundation reporting that

“the UK is investing significantly less in health care capital as a share of GDP compared with most other similar European countries.”

Of course, we have also seen frequent revenue raids on capital in the last few years. If these plans are to be successful, those raids must stop. I hope the Minister will be able to guarantee that there will be no revenue raids on capital for this programme in the next decade. I would also be grateful if he could set out the Department’s plan to tackle the maintenance backlog.

A few moments ago, I mentioned the interplay between large infrastructure projects and other capital requirements at a system level, particularly around how we get capital investment into primary and community care. Taking my own patch, Ellesmere Port, which I know best, we have several GP premises in the town centre that are past their best—past their useful life, perhaps—they are not really suitable in these covid-conscious times. We are not short of more modern, available premises in the town centre, where there might even be greater potential for integration with other services

However, these projects take time and money, and some decision must be taken at a system level to prioritise them. I think that would be an important step forward for improving access in my community and dealing with some of the health inequalities we have talked about. I recognise that sometimes it is a fact of life that the bigger players—the acute trusts—will always be higher profile than individual practices for attracting funds and investment. In many ways, this is an echo of the debate that the Minister and I have had in recent weeks on the Health and Care Bill Committee. I mention it again because, particularly with capital investment, there is a danger that primary and community services will struggle to have their voices heard against some of the bigger players in an extremely large integrated care system.

I will end with a few comments from stakeholders regarding the Chancellor’s statement last week. The King’s Fund said that

“the real game changer would have been clear funding for a workforce plan. Chronic workforce shortages across the health and care system heap further pressure on overstretched staff who are exhausted from the pandemic. Yet despite pledges, promises and manifesto commitments, the government has failed to use this Spending Review to answer the question of how it will chart a path out of the staffing crisis by setting out the funding for a multi-year workforce strategy.”

The Health Foundation said that

“new money for technology and buildings, although vital, is of limited value without additional staff. A workforce plan backed by investment in training are critical and we await details of both so that the NHS’s recovery can be secured.”

The Nuffield Trust said:

“It is striking that there is a lack of strategic workforce investment alongside this boost in funding for facilities. Staffing is recognised as the number one issue for the sustainability of the health service. Recovery from the pandemic not only rests on investment but on hard-working staff as well.”

Finally, the NHS Confederation said that

“to ensure the extra money delivers for the public, a strong and supported NHS workforce is needed. This is why training and increasing the supply of doctors, nurses and other health and care professionals is so important at a time when public polling recognizes that staffing is the biggest problem facing the NHS.”

While we welcome the investment in new buildings, we hope that none end up being a white elephant, because the elephant in the room is that we could find ourselves in the remarkable position by 2030 that brand new hospitals, extensions, or refurbishments are delivered, but are not fully operational because of a failure over the preceding decade to tackle the workforce crisis. That is here and now, and it needs to be tackled in the short, medium and long term. That is the final plea I make to the Minister: these investments are welcome, but we must ensure that we have a plan so that these buildings are fully staffed when they are up and running.

[Mr Virendra Sharma (in the Chair)]

Before I ask the Minister to contribute, I will just say that I will be joining that long queue very soon to lobby for Ealing Hospital’s future, but not this morning.

--- Later in debate ---

[Edward Argar]

My hon. Friend, quite wisely, presses his advantage. I can give him some reassurance on that, as I did to the shadow Minister when talking about the criteria, that safety and risk will not be the only criterion, but that will be a key factor in the consideration.

I turn now to the contribution of my hon. Friend the Member for North West Norfolk. The other day in the Chamber, I inadvertently paid tribute to my hon. Friend the Member for North Norfolk (Duncan Baker) for the work being done by my hon. Friend the Member for North West Norfolk in one of my responses. I pay tribute to my hon. Friend for North West Norfolk, who has quite rightly raised with me on several occasions the Queen Elizabeth Hospital King’s Lynn and the challenges posed by RAAC planks there. I know he is campaigning both in Parliament and locally on that issue. Courtesy of him, I have met his trust in the past and we have provided more than £20 million in this financial year for critical risk remediation. I know that, quite understandably, my hon. Friend is saying very clearly that that is welcome and will help, but it will not solve the problem. He will continue to press the case for a new hospital. He, too, has kindly invited me to his constituency, so I think I am due to go on tour around the country at some point, visiting various hospitals and colleagues.

Turning to some of the broader underlying themes that have emerged in the debate, I will seek to answer some of the questions posed by the shadow Minister. He gently tempted me on definitions. I am clear that the definitions we have—the three key elements he alluded to—not only pass the common-sense test and the understanding of what the reasonable person in the street would consider a new hospital. Equally, he teased me gently about VAT notice 708. I mentioned that at the Dispatch Box because—he says that we should be transparent and have a logical reason for how we define, do and choose things—our starting point was that there can be a VAT exemption for new builds, but not necessarily for refurbishment. I took that as a starting point for developing the common-sense definition. A lot of what he sees in the definitions is reflected in the same one used there, so there is consistency.

The shadow Minister talked about skills and inflation and whether we will have the people to build the hospitals. He is right to do that, because, as we have seen following the bounce back after the pandemic, builders and construction firms are very much in demand. There is pressure on materials as well, not just inflationary pressure, but on quantities. That is one of the reasons why, even before the impact of the pandemic, this is a phased programme. These hospitals will be built over a period of years up to 2030, allowing for market capacity.

Equally, one of the reasons why we have set out this long-term plan is so that we can make the market aware of what our plans are. If there is certainty in the market that the hospitals will be coming through, we will see firms investing, because they know there is potential for long-term business and work for them. That is one of the ways in which we have helped to handle that.

The shadow Minister asked about funding, and what would be available for what period. He will be aware of the initial £3.7 billion that has been allocated to this project, which takes us to 2024. Future funding will be subject to future spending reviews for that period. Between the 2024 period and 2030 there will be a general election at some point, and I suspect that may play a part in the spending review as well. We have the funding up front to get going with this programme, and off the top of my head, I think we already have eight hospitals in construction. The Cumberland Cancer Hospital has already been opened by my right hon. Friend the Health Secretary. Over this period, we will continue to start further construction of new hospitals.

The shadow Minister also alluded to geography and the distribution of the hospitals. Off the top of my head, 30 of the 40 are outside London and the south east, so we have sought to achieve geographical spread for the new hospitals and, equally, will seek to do that with the new eight. He also asked about the quantum needed for a new hospital, and he had a particular figure in mind. If he looks at the list of 40, many of them are very different hospitals, from the major acute district general hospital to a community hospital with in-patient beds; it is clearly a new hospital. The costs vary in the nature of what is built, its scale and size.

The shadow Minister also asked whether there would be a cap and whether trusts have complete freedom. No—as he would expect, there is a balance is to be struck between delivering what a trust wants for its plans and the need for financial prudence and recognition of the need to safeguard taxpayers’ money; it is not a limitless amount. Conversations are going on between the national team and local projects to ensure that their schemes are affordable and not hugely over budget. That is a pragmatic, ongoing process.

The shadow Minister also touched on some of the criteria for the scheme and how we are making the national scheme work. We include in this modular build modern methods of construction. We have a national set of standards for what we would expect from a new hospital, but a degree of local flexibility for the delivery of that. We recognise that each trust is slightly different, but we want to standardise where we can, because that keeps costs down and provides certainty in the market and speeds up construction. We have also built into our plans, since they were originally announced, even more ambitious green targets and energy efficiency targets for those trusts.

[Justin Madders]

I am grateful to the Minister for giving way. He has made a valiant attempt to answer all my questions.

[Edward Argar]

I thought the hon. Gentleman would lob another one at me.

[Justin Madders]

No, but there is one that the Minister has overlooked, on the sum announced in the spending review last week. Was that additional money on top of what had been previously announced?

[Edward Argar]

I omitted to mention two things to the shadow Minister: the spending review and backlog maintenance—he always avails himself of the opportunity to gently raise that issue. We have seen a confirmation of the money already in place for the new hospital programme, but we have also seen further moneys announced for capital in the spending review—new money—for example, just over £5 billion for community diagnostic centres, surgical hubs and the IT infrastructure around that. We have therefore seen a reconfirmation of money, plus new money in the capital space.

I turn now to maintenance, which the shadow Minister rightly always highlights. He will know—he occasionally quotes it at me at the Dispatch Box—that backlog maintenance across the entire estate is around £9 billion-worth. That is pretty constant from the previous financial year; it has not particularly increased. It may have gone up by a tiny fraction, but it has remained broadly constant.

Health and Care Bill (Twenty Second sitting)

Justin Madders Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Karin Smyth (Bristol South) (Lab)]

I beg to move, That the clause be read a Second time.

It is a pleasure to see you in the Chair, Mr McCabe. I will not delay the Committee too long on this new clause, but it is an important one to consider. We had a good discussion last week on the needs of carers, although I am not sure we resolved it satisfactorily. Carers do a huge amount of work on behalf of their families. As my hon. Friend the Member for City of Durham so eloquently said, they want to do that work, but many of them essentially keep our services going. Without them, the demands on our services would be so much greater.

[Mr Peter Bone in the Chair]

All of us who have met or who know young carers recognise the particular stresses and strains on them from caring for their relatives. They do astonishing work. Again, as my hon. Friend said, many feel that they are doing it because these are their loved ones; they do not feel like they are carers in many cases, but they are. Often people then do not come forward, if they are not known to the authorities, to make that clear. That is often because of fear of what that might mean for the family set-up they find themselves in.

The new clause draws attention to the needs of young carers, particularly following hospitalisation. It would require trusts and local authorities to be cognisant of who is caring for a person when they are discharged, particularly where young carers are involved. When the issue was first drawn to my attention—particularly the need to highlight the different needs of young carers—I must confess that I thought that these things were routine in good care settings. Obviously, the situation into which someone is being discharged should be fully known and recognised, and their needs met. We had a good discussion about that and we know that that does not happen, but the pressure on young carers is particularly acute. As part of that discussion last week, I almost intervened on the Minister to ask that when we are considering carers more generally, we highlight young carers separately. A hospital needs to know and understand that the person going back home will be in the charge of a young carer, and the local authority needs to make sure that a needs assessment is conducted.

The new clause suggests that should happen before the patient is discharged. Clearly, the Bill is instigating a new process, which will look at post-discharge. We had a good debate about that. As my hon. Friend the Member for Nottingham North said from the Front Bench, doing that assessment differently may be better in the long run—we do not know. In particular, when it comes to young carers taking up that role, it is even more acute that it is recognised in the new arrangements.

I will not move the new clause to a vote, but I would like the Minister to be cognisant of young carers and assure us that these needs will be highlighted to hospital trusts and local authorities in the discharge planning process.

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

It is a pleasure to see you in the Chair, Mr Bone. I thank my hon. Friend the Member for Bristol South for introducing the new clause. She set it out very well and she is right to highlight the interplay with the section 78 provisions in the Bill, because there is a risk of some jarring if we do not get this right.

As we know, the 2011 census reported that there are almost 166,000 young carers between the ages of five and 17 in England. However, research carried out by the University of Nottingham and the BBC in 2018 suggested the figure could be much higher, with around 800,000 children providing care. It is estimated that nearly 260,000 of those carers are providing high levels of care, so there is certainly an issue out there.

As we know, being a young carer has a significant impact on children and young people. Caring for other family members inevitably affects school attendance and exam results, with many young carers paying a heavy price for their dedication to their families. It often limits their ability to take up their full academic options. On average, young carers achieve a grade lower than their peers in their GCSEs and are less likely to go to university. Every single classroom in the UK is likely to have at least one young carer.

As my hon. Friend said, the new clause would ensure that arrangements for discharging patients without a care needs assessment do not unduly impact on young carers. Their needs must still be identified when an adult is discharged from hospital. But the new clause goes further than that: it applies to all discharges, so there must always be a check to see if a young carer is involved. One might think that a check ought to done anyway, but evidence shows that it is patchy at best. Before covid, hospitals were struggling with the many issues we have discussed in relation to staffing. It is not always easy for people to do everything they would want to do before discharge. The new clause would put into law what is already being done in the best-practice examples.

There is already, in theory, a general right to an assessment under the Children and Families Act 2014 and the Care Act 2014. The Children and Families Act states that all young carers under the age of 18 have a right to a needs assessment as a responsibility of the local authority, which

“must take reasonable steps to identify… young carers within their area who have needs for support.”

However, Barnardo’s 2017 report “Still Hidden, Still Ignored” identified that young carers were “slipping through the net.” The report led to many recommendations, including Barnardo’s calling for hospital staff to actively ask questions to identify young carers at the point of discharge. Hospital staff are in a key position to ask questions to ensure young people do not slip through the net, and it is clear that more needs to be done in this area. The new clause offers one way of reducing the possibility that young carers slip through the net.

As my hon. Friend said, young people are often reluctant to identify as young carers. They do not want to get their parents into trouble sometimes, and it can be a difficult conversation. The new duty would take a lot of that pressure away because the responsibility would sit with the hospital professionals to ask the patients on discharge. That would stop the young person feeling responsible for involving official services in family life. Of course, we want local authorities to be able to identify these people to ensure the right support is in place.

--- Later in debate ---

[Karin Smyth]

The Minister will not be surprised to hear that I do not think that is sufficient. I will not press the matter to a vote, but, as my hon. Friend the Member for Ellesmere Port and Neston said, when it comes to things being on request it is problematic, and that is the crux of the matter, as in the guidance that the Minister read out. I understand the need for hospitals to not have lengthy discharges—and it is not good for the patient—but sorting out the hospital’s problem on the backs of young people and carers is not a good message that we want to send from here.

I appreciate that the Minister in his final comments said that this would be very much part of the thinking about discharges, but we should also remember that these young people have really had the most shocking experiences in the last two years with covid, and are already—again, as my hon. Friend said—falling massively behind. Added to the destruction from covid, many young carers live in some of the most disadvantaged families, really keeping those families together, so they are further left behind.

On the Minister’s exhortations to the service and local government, it would be helpful to further underline the strength of those, and I am sure that most of the Committee feel that. Young carers have had probably the worst of times during covid and for them now to have to shoulder more responsibility because of the discharge problem and the need to get people out quickly would further exacerbate the situation. They need more help, not less, and I hope that that will be communicated back to the service. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 65

Review of the surgical consultant appointment process

“The Secretary of State must review the National Health Service (Appointment of Consultants) Regulations 1996 and its most recent guidance and, within six months of the passage of this Act, publish a report on the surgical consultant appointment process.”—(Justin Madders.)

This new clause requires a review of the legislation which governs the NHS surgical consultant appointment process.

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss new clause 70—Appointment of surgical consultants—

“(1) The National Health Service (Appointment of Consultants) Regulations 1996 (S.I. 1996/701) are amended in accordance with subsection (2).

(2) In paragraph (1) of regulation 2, in the entry for ‘relevant college’, in sub-paragraph (d), for ‘and its associated Faculty of Dental Surgery’, substitute ‘, the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and each of their associated Dental Faculties’.”

This new clause would add the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and each of their associated dental faculties to the colleges who may be involved in the appointment of NHS consultants.

[Justin Madders]

The proposed new clause was inspired by the Royal College of Surgeons of Edinburgh, who made representations about what we think is a lacuna in the current regulations that needs filling. According to the National Health Service (Appointment of Consultants) Regulations 1996 and subsequent guidance issued by the Department in 2005, only the Royal College of Surgeons of England is permitted to review surgical consultant job descriptions and send a Royal College representative to the advisory appointment committee. Although the process applies only to non-foundation trusts, the 2005 guidance encourages foundation trusts to follow that process as it provides a structured, quality approach to consultant appointments. Given that the 2005 guidance remains the most up-to-date advice available to trusts, the Academy of Medical Royal Colleges continues to recommend that foundation trusts follow the process.

The net effect of the regulations and guidance has been to formally exclude the Royal College of Surgeons of Edinburgh from the entire surgical consultant appointment process. Given its size and the distribution of its fellowship throughout England, it is keen to help trusts, whether they are foundation trusts or otherwise, in their ability to appoint and retain senior surgical professionals. I understand the Royal College of Surgeons of Edinburgh has raised this anomaly with the Department on a number of occasions—I can see the Minister nodding—and it has been told that any changes to the regulations or the guidance would require legislative approval, so the opportunity has been taken today to slip the new clause in to try to resolve that.

As we know, we have record waiting lists of some 5.7 million—probably rising. It is clearly an important priority for everyone that the backlog is tackled, and the new clause would go some way to ensuring that the NHS is a resilient and sustainable surgical body to be able to meet the challenge. We see it as a tidying-up exercise that is long overdue.

New clause 70, tabled by the Scottish National party spokesperson, the hon. Member for Central Ayrshire, goes a little further than new clause 65 in terms of the requirements put on the Department. I hope the Minister understands the sentiment behind our tabling the new clause. This long-standing issue needs legislative remedy, and I hope that this is the opportunity to put it right.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I rise to speak to new clause 70 and in support of new clause 65. I agree with the shadow Minister that these are very much technical new clauses to correct an anomaly. There are three royal colleges of surgeons in the UK: the Royal College of Surgeons of England, the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow. Consultant surgeons may be appointed from among the fellows of any of the three colleges. The exams they sit and the qualifications they carry are considered absolutely equal.

The challenge when recruiting a new consultant, as the shadow Minister highlighted, is that the appointment panel, which must review the job description and take part in the interview, is limited purely to those who have graduated with their fellowship from the English college. The appointment panels have a mix of representatives from local organisations, specialty bodies, if it is a specialty surgical appointment, and the royal colleges, so while fellows of all the royal colleges may be involved in appointments to English trusts as specialty representatives—such as breast cancer, which was my specialty—some are excluded from being college representatives. It is often really challenging to bring these panels and committees together.

The aim of the new clause is simply to widen the pool of assessors available to trusts in England and, indeed, as the shadow Minister highlighted, to foundation trusts. It is simply an anomaly that two of the colleges in the UK are not included. The new clause aims to correct that and to make the appointment of new consultants easier for trusts and foundation trusts in England. I hope that the Minister will accept both the spirit and the detail of new clause 70.

--- Later in debate ---

[The Chair]

I call Dr Justin Madders.

[Justin Madders]

Thank you, Mr Bone, but I am sure you would not want me to attempt any medical procedures.

I have heard what the Minister has said; clearly it is still under active consideration by the Department. As we know, there will be many more legislative opportunities in the coming months and years—I hope we will get an opportunity to crack this. I beg to ask leave to withdraw the clause.

[Dr Whitford]

I accept the Minister’s reassurance that they will finally look at correcting this anomaly; I hope that he will take that forward. It is something that we will be looking for. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 66

Support provided by the NHS to populations at risk of malnutrition

“(1) Each integrated care board must—

(a) assess, or make arrangements for the assessment of, the need for support for patients and/or populations at risk of malnutrition, including social and clinical/disease related malnutrition, using their services;

(b) prepare and publish a strategy for the provision of such support in its area;

(c) monitor and evaluate the effectiveness of the strategy; and

(d) designate a malnutrition lead.

(2) An integrated care board that publishes a strategy under this section must, in carrying out its functions, give effect to the strategy.

(3) Before publishing a strategy under this section, an integrated care board must consult—

(a) any local authority for an area within the relevant Integrated care board’s area; and

(b) such other persons as the relevant local authority considers appropriate.

(4) For the purposes of subsection (3), ‘local authority’ means—

(a) a county council or district council in England; or

(b) a London borough council.

(5) An integrated care board that publishes a strategy under this section—

(a) must keep the strategy under review;

(b) may alter or replace the strategy; and

(c) must publish any altered or replacement strategy.

(6) The Secretary of State may by regulations make provision about the preparation and publication of strategies under this section.

(7) The power to make regulations under subsection (6) may, in particular, be exercised to make provision about—

(a) the procedure to be followed by an integrated care board in preparing a strategy;

(b) matters to which an integrated care board must have regard in preparing a strategy;

(c) how an integrated care board must publish a strategy;

(d) the date by which an integrated care board must first publish a strategy; and

(e) the frequency with which an integrated care board must review its strategy or any effect of the strategy on the provision of other provision in its area.

(8) Before making regulations under this section, the Secretary of State must consult—

(a) all integrated care boards; and

(b) such other persons as the Secretary of State considers appropriate.” —(Alex Norris.)

This new clause would require integrated care boards to publish a strategy for the provision of support for patients and/or populations at particular risk of malnutrition using their services, and designate a malnutrition lead.

Brought up, and read the First time.

--- Later in debate ---

Ahead of last week’s Budget, the British Dental Association warned of a “last-chance saloon” for NHS dentistry, stressing that Government spending on NHS dental services has fallen by a third in real terms over the last decade. Sir Robert Francis QC, the chair of Healthwatch England, who gave evidence to the Committee, joined the BDA in urging the Treasury to commit adequate funding to ensure the recovery and long-term sustainability of our dental services, highlighting that it would take an additional £879 million just to restore resourcing back to 2010 levels. That, of course, was the theme of the Budget, was it not—pretending that the last decade had not happened? Yet in this area there was no new funding, and we have not heard a commitment that a single penny of the billions pledged for the recovery of NHS services will go to dentistry.

[Justin Madders]

As my fellow shadow Minister quite rightly points out, this is a huge issue for most constituency MPs. I am not surprised to hear what he said about this being the No.1 complaint to Healthwatch, because behind GP access, dental access is now a huge issue. Before the pandemic, dental services in the Cheshire area were contracted to attend to 55% of the local population’s dental health needs. Clearly, that is insufficient, but the challenges of the pandemic have only made matters worse. I encourage my hon. Friend to continue to raise this very important issue.

[Alex Norris]

I am grateful for that intervention. It is sobering to hear that 55% was what we started with; we know that it will be less than that now. That rather picks away at the idea of a universal healthcare service.

To finish where I was going with my previous point, if I am wrong about where recovery funding for the NHS is going, and there is to be investment in dentistry, I hope that the Minister will correct me. I would be delighted if that was the case, because the BDA is warning—again, this is something that we will have picked up on in our constituencies—that morale among NHS dentists is at an all-time low. Almost 1,000 dentists in England have stopped providing NHS services in the last financial year. There was the failed contract—I know there is enthusiasm for contract reform in the Department and we will support the Department on that, but we are running out of time to have anything ready for April. In fact, we are probably already too late in that regard. The shambles of the negotiations before Christmas last year that led to the breakdown and the imposition of targets really whittled away at good will and caused a lot of upset.

Almost half of NHS dentists are saying that, unless things change, they intend to hand back their contracts or reduce their NHS commitment. This exodus of dentists from the NHS will have a disastrous and lasting impact on our ability to access NHS dentistry. If 55% is the summit of our ambition, goodness me, where will we go from there? The British Dental Association talks about the last-chance saloon; it is not hyperbole to say that we will not have NHS dentistry in the medium term if we do not have a course change.

More and more people are being pushed into the private sector. That creates market forces that mean that it is almost a self-fulfilling prophecy that dentists—both new ones entering the profession and those who have come to the end of their tether with their NHS contract—go into the private sector. We are seeing significant growth in that space as people living in pain seek drastic action. We will see more pushed on to dental insurance if people do not want to be worried about their finances. That is what privatisation looks like. We will not have NHS dentistry in the medium term unless we do something about this issue—that is the wrong way forward.

New clause 68 makes a very modest ask; it asks the Secretary of State to do what any Secretary of State should want to do: commit to universal access to NHS dentistry and say how it will practically be achieved. At the moment, we have a yawning gap. In that lack of leadership, we will see the drip, drip, drip of the loss of NHS dentistry, until we no longer have it.

--- Later in debate ---

[The Chair]

Thank you for that bogus point of order.

[Justin Madders]

Further to that point of order, Mr Bone. I echo the Minister’s thanks, not only to you and the other Chairs, Mrs Murray, Mr McCabe and Ms Elliott, but to the Clerks, who have been described to us as very patient and helpful—great qualities in such a long Bill Committee—and to the other parliamentary staff, the Doorkeepers and the Hansard Reporters. As the Minister said of his officials, we too have a great team—though probably a smaller one—of researchers who have been fantastic in giving us the information that we need to make the arguments. I also thank the Whips—it would be remiss of me not to—without whom none of this runs as smoothly as it does. On that note, I thank the Committee for its indulgence.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Health and Care Bill (Twenty First sitting)

Justin Madders Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Alex Norris]

I certainly did not intend to add complexity; I was hoping for clarity and consistency. Nevertheless, as the Minister says, those roles are currently functioning effectively, so I will not divide the Committee.

I would say to the Minister and his colleagues, however, that we need a real watching brief on this matter, because assuming that the Bill continues its onward journey and establishes those ICS footprints, there will be a range of different outcomes and organisational cultures. The stronger systems will be those in which the DPHs are at the heart of insight and decision making, and the reverse will be a defining characteristic in systems that are not as good. I certainly hope that we consider the Care Quality Commission reviews that were included in an earlier new clause, and any sector-led improvement, as well as the work those systems do to reflect on what they do and do not do well.

One of the criteria for both streams of improvement ought to be what the DPH does, how central they are, and how sighted they are on decision making. As I have said, in good systems that will be good, and in weak systems it will be weak. Those criteria would be a bellwether of how good the local ICS footprint is. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 45

Duty on integrated care boards to have regard to net zero commitment

“(1) The National Health Service Act 2006 is amended as follows.

(2) After section 14Z43 (inserted by section 19 of this Act) insert—

“14Z43  Duty to have regard to net zero commitment 

When procuring or commissioning goods and services on behalf of the NHS, integrated care boards must have regard to NHS England’s commitment to reach net zero by 2040.””—(Justin Madders.)

This new clause would place a duty on integrated care boards to have regard to NHS England’s commitment to reach net zero by 2040.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

It is a pleasure to see you in the Chair, Ms Elliott. I will be brief in speaking to the new clause. What we are seeking to achieve is pretty clear: for integrated care boards procuring or commissioning goods and services on behalf of the NHS to have regard to NHS England’s commitment to reaching net zero by 2040.

We can assume that the Government fully support the commitment made by NHS England. We were all transfixed by the goings-on in Committee yesterday, so we may have missed the part in the Chancellor’s statement about investment in net zero and in the NHS, but perhaps the Minister will say a little more on that. I suspect that although he will accept that ICBs should have regard to the overall commitment, he will say that the new clause is unnecessary as NHS England already has a commitment that will percolate down to ICBs. We would say that NHS England can achieve that target only by working through ICBs, which will, of course, have the ability to commission more than £100 billion-worth of services.

We may end up yet again in the realms of the permissive versus prescriptive debate, but the power of public sector procurement is a massive issue, and there is no bigger part of the public sector than the NHS, which is the responsibility of the Minister’s Department. We should be very much on the front foot in using that to deliver the commitment to net zero.

Of course, we have yet to see what will replace the public contracts regulations in Government procurement as a whole. It is hoped that the same commitment to green issues will be in the mix somewhere, but until we know what that looks like, the new clause presents an opportunity to enshrine in law a commitment that I think most if not all Members want to see delivered.

[Edward Argar]

There is no doubt that the climate emergency is also a health emergency. Climate change threatens the foundations of good health, with direct and immediate consequences for our patients, the public and the NHS.

The NHS accounts for around 4% to 5% of UK emissions, and the hon. Member for Ellesmere Port and Neston is right to highlight the critical role the NHS has to play in achieving net zero. Although I have some sympathy with the intention of the new clause, I remind the Committee of the commitment. The commitment to be net zero by 2040 applies only to NHS direct emissions, such as those from building energy and does not apply to supply chain emissions that are the target of the new clause. While ICBs should and will consider the environmental impact of their procurement, that consideration must go wider than the commitment made by NHS England to net zero direct NHS emissions.

To support that work, NHS England is already leading the way on the agenda through a dedicated programme of work, which includes ambitious targets for achieving net zero for the NHS carbon footprint plus by 2045 and for its direct emissions by 2040. We fully welcome and endorse those ambitions. As part of that programme of work, under the 2021-22 NHS standard contract, every trust is expected to have a green plan. As NHS England has made clear in its guidance on green plans, published in June 2021:

“Every trust and every ICS is expected to have a Green Plan approved by that organisation’s board or governing body. For trusts, these should be finalised and submitted to ICSs by 14 January 2022. Each ICS is then asked to develop a consolidated system-wide Green Plan by 31 March 2022, to be peer reviewed regionally and subsequently published.”

On the question of procurement, the NHS is already publicly committed to purchasing only from suppliers who are aligned with its net zero ambitions by 2030. Earlier this year, NHS England set its road map giving further details on the expectations of suppliers to 2030. That work is supported by a broad range of additional action on NHS net zero. NHS England will publish the world’s first net zero health building standard; it will apply to all projects being taken forward through the Government’s new hospital programme, which will see 48 new hospitals built across England by 2030—I can almost see the slightly cynical smile through the hon. Gentleman’s mask.

I know the shadow Minister will argue that the new clause would give impetus to the NHS to move towards net zero in the work it is already doing. I am afraid I am not convinced that it is necessary, given the substantial work already under way. The NHS is already showing its commitment, backed up by clear plans.

[Justin Madders]

I wonder whether the Minister’s nickname in the Department is Steady Eddie, given his consistent responses to many of my new clauses and amendments—consistent, but not always correct. It is very important that the commitment is delivered. We are clearly going to have a disagreement about the best legislative framework in which to do that, but I am not going to push this to a vote. It is clearly an issue that all Members are very keen to see delivered.

I am sure that we will debate the new build programme on a number of other occasions—we may get beyond how many new hospitals it is and on to some of the wider issues. It is a matter we will come back to on a number of occasions.

I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 46

Exclusion of NHS bodies from ability to withhold information requested under the Freedom of Information Act 2000 on commercial grounds

“(1) Section 43 of the Freedom of Information Act 2000 is amended as follows.

(2) After subsection (3), insert—

‘(4) Subsection (2) does not apply to information held by NHS England, integrated care boards, NHS Trusts and NHS Foundation Trusts except to the extent that subsection (5) applies.

(5) Subsection (2) applies to information held by NHS England, integrated care trusts, NHS Trusts and NHS Foundation Trusts relating to another organisation if disclosure of the information would in the opinion of the organisation pose a real and significant risk to the commercial interests of that organisation.’” —(Justin Madders.)

This new clause would prevent NHS bodies from withholding information on commercial grounds unless the information related to another organisation and that organisation considered that its disclosure would pose a real and significant risk to the commercial interests of that organisation.

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

New clause 46 would amend the Freedom of Information Act 2000. It is a recognition that, as a result of the move to integrated care systems, the whole concept of the NHS being run as individual businesses really ought to go. We have already pointed out in our discussions the apparently contradictory duties placed on NHS bodies in this regard. Some consider themselves as quasi businesses and refuse to disclose their business plans or provide information about their business dealings under the Freedom of Information Act. That makes it difficult for staff to understand the precise nature of proposals. I will come to some examples of that later. I have to say that they take their lead from the Government a bit in that respect. As we are no longer in the era of markets and competition, and NHS bodies no longer have to compete with one another, commissioners really do not need to enter into complicated contractual arrangements. So there is not really the need for them to cite commercial confidentiality as a reason not to comply with FOI inquiries. The interests of trusts, the public and patients should be aligned. They should not be subservient to wider commercial interests.

The Minister may say that this is not an issue, that the NHS is already open and transparent and that everything is sweetness and light in the garden. It certainly should be, but we think there are occasions when that has proven not to be the case. It might also be argued that NHS trusts and foundation trusts have to have some protection from FOI requests so that they can conduct their affairs properly when they are properly engaged in commercial activities such as procurement. That might well be the case, but we can illustrate from the experience of trade union colleagues, especially in the case of contracts for clinical services placed with private providers in the outsourcing of facilities to subcos, that the reality is somewhat different. We often hear that the staff representatives hear that the trust they work for is considering outsourcing some service. Of course, these are the staff who carry out that particular work. Rumours and leaks slip out before there have been any discussions with trade unions, but the trust has already made the decision to outsource and starts talks on TUPE transfers before any real dialogue has taken place.

There is a great deal wrong with that approach, given the requirements that we have talked about previously with regard to the NHS constitution. The point here is that, where management have refused to discuss anything other than the results of a decision that they have already made, staff and trade unions often have to resort to FOI to get answers to the questions they are asking. They put in their FOI request relating to how the trust has made its decision to outsource the service. Then they get the reply, “We’re not going to tell you, because it is commercially confidential.” I think the fear of trusts is not that a commercial interest is endangered but that its reputation is going to be damaged. They are not confident about negotiations with staff representatives and know that the cases that they have built are painfully weak and will not stand up to rigorous external examination.

Staff, understandably, are anxious and curious because they know that their terms and conditions are often tucked away in the business case under the heading “Savings”, which is where the debate really ought to be. That is why we never get to the truth of these things. So it is not really an issue of commercial confidentiality. It is about refusing to be open and transparent about the true intentions. This has been well documented with the subco sagas. In around 20 cases, trusts had decided to form subcos to deliver facilities management services. We could look at all the tax implications of that and the ducking and diving that follows, but we are not going to do that. We need to point out that in those cases the subcos are fully owned by the parent trust. There is no intention for them to procure anything, because that is what forming the subco delivers. There is no information or collection of details on bids from other organisations. There is no commercial competition aspect to this at all. In many cases, trusts are asked by the staff to provide the business case for going down the subco road and the answer they get back is, “Well, we are not giving you that because it is commercially confidential.” The trusts may have at least pretended to look at options, and even scored them, to arrive at the decision they have already made, but why is that process secret? Who would receive a commercial advantage from seeing that information? The trusts might argue that disclosure of the financial case might give the bidders information that they could exploit, but if there is a proper competitive tendering process, that should not be an issue at all. Even if it were, the recourse is to redact the numbers in the one or two places where they are most sensitive. The rest of the business case ought to be disclosed, but that is not what happens.

Let us assume for a moment that the trust has made a strong case, as it will have to do under the new provider selection regime. Will the new regime set out disclosure requirements in respect of business cases and so on? Looking at what NHS trusts do, are they actually put at a disadvantage by having to disclose their business case? We know what will be in those business cases, as the Treasury sets out guidance as to what is required, and most of the cases are about a rationale for change. That should not be a secret, and the old Office for Government Commerce set out guidance that covered how FOI requests were to be dealt with during the various stages of a public procurement. That guidance said clearly that business cases can and should be disclosed.

I will briefly address the wider issue of FOI requests. As the Minister may or may not be aware, I am a regular submitter of FOIs to his Department—indeed, all Government Departments and the wider NHS—and I have to say that over the past few years I have been more disappointed than delighted by the responses I have received. Many are rejected for a variety of reasons. It seems I am not alone in that respect: only this week, openDemocracy issued a new report on FOIs, called “Access Denied”, so I think we can all guess what they found. I will run through a few highlights from that report anyway: it said that 2020 was the “worst year on record” for FOI transparency. The Government exploit legal loopholes to deny access to information and, most controversially, the clearing house that openDemocracy reported on last year does not simply advise Departments on their responses, but plays a much more hands-on role, which includes drafting responses to FOI requests. I do not think that is because they want to help Departments to be as transparent as possible, but because they want to help them to avoid revealing the truth. Transparency and a commitment to the principles of freedom of information start at the top with the Department, and it should be leading on this subject.

On a slightly more positive note, there are better examples. There are trusts that work with their staff and even with the wider public and patients. They have open discussions. They do not hide their case; they make their case. If they have to engage in a tender process, they involve staff in specifications, options appraisals and questions to bidders at every stage of the process. If they can do it, why can’t every trust do it? The answer is that trusts can wriggle out of their obligations by using these loopholes in the Freedom of Information Act request procedure, and nobody is able to challenge that. It is time that changed, which is why I ask the Minister to support this new clause.

[Karin Smyth (Bristol South) (Lab)]

It is a pleasure to see you in the Chair, Ms Elliott. I rise briefly to support my hon. Friend and echo everything he has said. I have spent a great deal of my time in this place looking at the issue of wholly owned companies, trying to stop them from happening and questioning why they are happening. I think I remember sitting opposite the Minister in an Adjournment debate talking about the excitement of VAT rules and tax exemptions, a subject that is beyond the individual ken of most of us, but once we dig into it we find that the mixed messages the Government gave were not very helpful, and that underlying this problem is the culture of secrecy.

We have alluded to why this is so important: we need the openness provided by agenda meetings and locally accountable people—people we can actually talk to about our health services—and setting that culture from the top is really important. Ultimately, this is about patient safety, because once we have a culture in which there is a presumption of denying information and having to jump through hoops to get it, that permeates the entire organisation. That, sadly, is why we continue to revisit problems with patient safety. This issue is therefore really important, and I hope the Minister will look favourably on the new clause.

[Edward Argar]

I can reassure the shadow Minister, the hon. Member for Ellesmere Port and Neston, that I am not aware of how many FOIs he tables, which is possibly as it should be; it suggests that they are handled in the appropriate way by officials, and not by me. I am sure he keeps officials busy with those requests.

I think we can all agree that transparency and openness are of key importance but—this is where the hon. Gentleman and I may diverge slightly in our views—it is also vital that genuinely commercially sensitive information is adequately protected. Section 43 of the Freedom of Information Act recognises the balance that needs to be struck. It exempts from disclosure any information that would, or would be likely to, prejudice the commercial interests of any person, including the public authority holding the information. It is, however, as he will be aware, a qualified exemption. Merely identifying that the information is commercially sensitive is not enough. The public authority holding the information must weigh up the “genuine public interest” arguments in favour of and against disclosure.

I remind the Committee that there is a robust system in place for testing such decisions. We have an independent commissioner who can scrutinise the decisions, who has the right to see the information in question and who is more than capable of challenging public authorities where he believes that disclosure is in the public interest. Beyond that, of course, those requesting the information have a right of appeal to the tribunal.

There genuinely needs to be a level playing field between public and private contractors, but the new clause would, I fear, place NHS bodies at a disadvantage in some commercial negotiations. It could mean that the NHS was not able to protect its commercially sensitive information, whereas other parties could. I struggle to see how an uneven playing field would benefit the general public and protect taxpayers’ money. I fear that the new clause would also place a significant additional burden on NHS bodies at a time of real strain and, as I have highlighted, there are already remedies in place that meet its stated aim.

I am also concerned about the power the new clause could place in the hands of those conducting commercial negotiations with the NHS. It would be for them, not the public authority, to decide if and when the release of information would pose a real and significant threat. It is difficult to see how the opinion of the organisation could be tested or challenged through the usual route of appeal, as they would not be a public authority within the scope of the Act. The Information Commissioner’s Office would be assessing an NHS body on the basis of judgments reached by a third party. I also point out that

“pose a real and significant risk”

is not a test used elsewhere in the Freedom of Information Act, and so could be open to novel interpretation by the originator of the material. For those reasons, I do not think that the new clause would achieve in a fair way what the hon. Gentleman seeks.

[Justin Madders]

I am relieved to hear that the Minister is not personally dealing with my FOI requests. I know he is very busy dealing with all the foundation trust applications in his in-tray. He made some fair points about ways in which the new clause might cause unintended consequences, but we wanted to put on record our concern about the way the Freedom of Information Act has been used by some trusts to avoid proper scrutiny. As my hon. Friend the Member for Bristol South said, this is unfortunately part of a pattern in patient safety issues, and that is obviously something we have discussed in this Committee. I will not put the new clause to a vote, and I beg to ask leave to withdraw it.

Clause, by leave, withdrawn.

New Clause 49

Protection of the title of “nurse”

“(1) A person may not practise or carry on business under any name, style or title containing the word “nurse” unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation ‘veterinary nurse’, ‘dental nurse’ (for which see section 36K of the Dentists Act 1984) or ‘nursery nurse’.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.”—(Justin Madders.)

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

This is another Ronseal new clause: it does exactly what it says on the tin—it seeks to create legal protection for the use of the title “nurse”. The title “registered nurse” is protected, but “nurse” is not, meaning that, legally, anyone can call themselves a nurse. Under current legislation, people could operate under that title even if they had no nursing qualifications or experience, or had been struck off. To protect the public, the title should be limited to those, such as registered nurses and dental nurses, who are registered with professional regulators. That would put it on a level with other titles, such as paramedic and physiotherapist, which are limited to those on professional registers.

The issue of the title of nurse not being protected in law has long caused concern to the profession. There are many examples where the title has been abused. We have seen people campaigning for election calling themselves nurses when they were not—I appreciate that that is outside the Minister’s responsibility, but it shows the power of the title, its significance and the risk we are trying to deal with through this new clause.

Earlier this month, an anti-vaccination campaigner who denies the existence of covid-19 told Nursing Times that she planned to continue to call herself a nurse despite having been struck off by the Nursing and Midwifery Council for putting the public at risk of harm. Professor Judith Ellis, chair of the Tropical Health and Education Trust and former interim chair of the NMC, has campaigned for years for protection of the nurse title, and we commend her for her work. She said:

“It is totally unacceptable that when someone in the UK describes themselves as a ‘nurse’, the patient or their relatives have no way of knowing, or indeed checking, if that individual has the knowledge or skills to safely care for them or their loved ones. The title ‘nurse’ needs to be protected.”

Nursing is the most trusted profession in the UK, yet someone ill or vulnerable could trust a person calling themselves a nurse and that person might be nothing of the sort. NHS England’s chief nursing officer, Ruth May, has committed her support to protect the title of nurse in UK law. She said:

“The protection of a professional title provides assurance that someone using that title is competent and safe to practise”,

adding that she is

“committed to doing all we can to strengthen protection of the public.”

I welcome anything the Minister can say about this issue; I do not know whether the Department is considering it, but I have heard rumours that it might be. We have talked on a number of occasions about patient safety, transparency and openness, and this measure would be entirely consistent with those aims. Can the Minister give us some comfort or confidence that we might be able to make some progress on this important issue?

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I rise to support what the shadow Minister said. It has indeed been an area of contention for many years not only that nurses who have been struck off can use the title but that the title is used loosely. We touched on the same issue when we talked about regulation and about aesthetic procedures: when these titles of doctor, and particularly nurse, are used the public have a perception of what that means. They assume it means a registered and regulated practitioner, and therefore the patient is given far too high a degree of trust in the person simply from the use of that title. It should be a protected title.

--- Later in debate ---

[Edward Argar]

I go back to the point I made: there are some perfectly legitimate professions—where there is an expectation and understanding of what they do and a respect for what they do—who use that title, as she alluded to. That is why we have to think a little more carefully about how we might do that, and whether it is the most effective way of assuring and enhancing patient safety.

Protection of title is only one part of the protection regime; it is important, of course, but there are other parts. We should also look at prosecutions of protection of title offences, which are extremely rare; we need to look at that in the context of how that might be enforced. Part of the reason for that is the availability of offences such as fraud by false representation that carry more substantial penalties including custodial sentences, which, I suspect, are sometimes the mechanism used to prosecute in such cases. Depending on the context in which the title is used, other legal action could be taken against a person, including criminal proceedings, civil proceedings and employment disciplinary proceedings, particularly where the person used the title to gain work or employment. There is also the opportunity to prosecute employers who hold their staff out to be regulated healthcare professionals when they are not.

To give some succour to the hon. Member for Ellesmere Port and Neston, we are committed to reviewing the protection of titles as part of the ongoing Government review of the regulation of healthcare professionals.

[Justin Madders]

rose—

[Edward Argar]

Just one more sentence, then I will give way to the hon. Gentleman before I sit down.

We need to gather further evidence to better understand the case for change and whether it represents the most effective and enforceable way to promote patient safety. However, I will certainly carefully consider the proposals he has put forward, in that context, as will my colleagues. I have a few sentences left, so I will give way while I can.

[Justin Madders]

The Minister is sympathetic and has highlighted why the issue needs careful consideration throughout the debate. Are we able to get a formal commitment to public consultation on the issue from the Minister today?

[Edward Argar]

The shadow Minister pushes me a little further than I can go today. However, what I can say is that I have considerable sympathy with what he has said. I will undertake to look at what he and the right hon. Member for Leicester South have said in the context of that review.

Any subsequent change from that review and from consideration thereof probably sits most effectively, in terms of legislative reform, as part of the reform programme for the Nursing and Midwifery Council, which is most effectively taken forward via secondary legislation under section 60 of the Health Act 1999. In the context of that review, and any secondary legislation flowing from it under section 60, we will look at what he set out in his new clause.

[Justin Madders]

I am grateful to the Minister for his positive comments. We were probably pushing our luck with getting a formal commitment from him, but it sounds like we are probably as close as we are going to get to progress on the matter without pushing the new clause formally to a vote. We will keep a close eye on the issue and will, no doubt, come back to it if progress is not made in orderly time. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 50

Access to innovative medicines and medicinal products review

“(1) The Secretary of State must undertake and publish a review of the use by the NHS of innovative medicines and medicinal products.

(2) The review must—

(a) conclude before 31 December 2022;

(b) consider ways to improve the use of innovative medicines and medicinal products within the NHS in England.

(3) The review may consider—

(a) the creation of a specific pathway to assess medicines and medicinal products for rare and less common conditions;

(b) improvements to the way in which patient and clinical experience is accommodated when considering the adoption of new medicines and medicinal products.”—(Alex Norris.)

This new clause would require the Secretary of State to carry out a review of the assessment and use of innovative medicines and medicinal products, and to consider how to improve access to medicines and medicinal products for people with rare and less common conditions in particular.

Brought up, and read the First time.

[Alex Norris]

I beg to move, That the clause be read a Second time.

The new clause would put a helpful requirement on the Secretary of State to undertake a review of the assessment and use of innovative medicines and medicinal products, which I believe would be a positive step forward. Medical innovation, including new drugs and cutting-edge treatments, produces life-saving and life-changing results, and those benefits are particularly felt by those with rare and genetic diseases.

Health and Care Bill (Twentieth sitting)

Justin Madders Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss new clause 40—Definition of carers—

“(1) The National Health Service Act 2006 is amended as follows.

(2) In section 275 (Interpretation) insert—

‘“carer” includes carers as defined by Section 10(3) and 10(9) of the Care Act 2014; parents of disabled children with reference to Section 97 of the Children and Families Act 2014; unpaid carers of disabled children as in Section 1 of the Carers (Recognition and Services) Act 1995; young carers with reference to Section 96 of the Children and Families Act 2014; and young carers with reference to Section 63 (6) and Section 63 (7) of the Care Act 2014.’”

This new clause inserts a definition of carers into the National Health Service Act 2006 which includes parent carers and young carers as well as adults caring for adults.

[Justin Madders]

It is a pleasure to see you in the Chair this morning, Mr Bone.

The NHS needs to have a core duty to have regard to carers and to promote their health and wellbeing. New clause 39 would put on a statutory footing the requirement for integrated care boards to collect information on carers and their families, and then to use it to develop strategies to promote their health and wellbeing. This is an attempt to ensure a strategic approach to the need for the NHS to demonstrate that it has considered carers in its policies and practice. In other words, all parts of the NHS would have to think carer.

The new clause would avoid situations arising in which carers had been omitted from consideration, for instance in hospital discharges, by ensuring proper care-proofing throughout the entire NHS. We believe that could help integration. Social care sees carers as an equal partner in care and very much part of the system, but sometimes there is a less favourable experience in the health service.

There would also be benefits to the NHS overall, through improved health and wellbeing, improved satisfaction with services, reduced admissions and readmissions, reduced crisis and reduced need. The new clause would avoid the significant omission of carers in recent guidance and improve the general approach to carers. It would also be good for NHS staff, one in three of whom couple working in the NHS with unpaid caring for family members and friends. Research shows increased job satisfaction when employers recognise carers, and the Minister will know how important it is to improve retention rates.

There is definitely an issue here. Surveys have consistently shown a problem, with 55% of carers saying that they agree or strongly agree with the statement, “I feel invisible to the NHS”. They are often providing more than 50 hours of care a week, which is more than a full-time job, and are essential to the NHS, yet that goes unrecognised. There are a range of other statistics on how carers feel about the recognition of their role; 56% agree or agree strongly with the statement, “Health services and professionals do not share information with me, even if it is essential for me to be able to care”. More than half are not involved in decisions on hospital discharge, two thirds of carers do not feel listened to by healthcare professionals about their willingness and ability to care, and a majority are not given enough information and advice when a person they care for is discharged from hospital to care for them safely. Most carers—60%—say that at the point of hospital discharge, they receive insufficient support to protect the health and wellbeing of the patient, or their own health.

Under the Health and Social Care Act 2012, carers have parity of esteem, and an equal right to receive information and advice and to have their needs considered. The Government accept that that is right for social care, so we think it should apply equally in healthcare. The NHS has very few responsibilities towards carers when compared with the social care sector. Carers were left out of the original Joint Committee on Vaccination and Immunisation decision on vaccination, even though they were in the green book. They were completely left out of the White Paper that underpinned this Bill; they were left out of two versions of the “Discharge to Assess” guidance; and they barely get a mention in integrated care partnership guidance—there is one reference in there to unpaid carers.

Several organisations are keen to support the approach set out in the new clause, including the Patients Association and the MS Society. The new clause would serve as an important marker in laying out the importance of carers, and it would help us work towards proper strategies to ensure that their value is recognised and that they are supported.

Turning to new clause 40, carers are mentioned in clauses 5 and 19, but are not defined anywhere. They could in theory include carers of any age. The new clause seeks to ensure absolute clarity about who the term “carer” refers to: it would refer to unpaid carers only—not volunteers or paid staff, but friends and family, commonly, who provide care. This keeps the definition consistent with other legislation, and includes parents of disabled children and, most importantly, young carers, who are particularly vulnerable to being forgotten. Young carers face more health inequalities than other children of the same age, and that persists into young adulthood. Every GP patient survey has shown that it is essential that it is made clear and explicit in legislation that provisions on carers include young carers.

In conclusion, we want to acknowledge the vital contribution that carers make, which can be quantified as running into billions of pounds. The NHS could not function without the daily support of unpaid carers, and during the pandemic the extra caring responsibilities that carers took on stopped the NHS being completely overwhelmed. These new clauses ensure carers’ needs will be at the heart of NHS decision making and polices. That is why we hope the Minister is sympathetic to them.

[Edward Argar]

New clauses 39 and 40 focus on carers. First, I join the shadow Minister, as I suspect all hon. Members wish to, in recognising and paying tribute to the enormous amount of work that carers, both formal and informal, do. We want to strengthen the system by which carers are supported, and ensure that those receiving care have choice and control over how they access services.

New clause 39 would create an obligation on integrated care boards to collect information, and understand and respond to the needs of carers with regard to their health and wellbeing. The Bill provides an opportunity to ensure the views of carers are properly embedded in integrated care boards. The Bill confers a duty on integrated care boards to promote the involvement of carers, along with those who access care and support, in decisions relating to the prevention, diagnosis and treatment of illness, and care. There are equivalent provisions for NHS England-commissioned services.

Furthermore, the joint strategic needs assessment, prepared by health and wellbeing boards, will continue to have to consider the needs of carers, and that will shape the strategy developed by the integrated care partnership and the plans of the ICB. That means the services commissioned through these routes in the area where a carer lives will have considered the impact on carers in that community. Carers UK has welcomed the clauses for recognising

“the crucial role carers play day in, day out supporting their relatives’ health”,

and it says the clauses

“give carers more of the visibility they need within health legislation.”

--- Later in debate ---

[Mary Kelly Foy]

For those who do not know, I should say that I was a carer for my severely disabled daughter for 27 years. Maria died six years ago; she suffered with cerebral palsy. I was very fortunate to be in a local authority that recognised the need for respite for carers. I was lucky enough to have a very generous package of six weeks, and that allowed me to engage with public life, have a social life and just recharge my batteries. However, other local authorities do not give such generous packages; it is a postcode lottery. When carers can no longer look after their loved one and that person has to be placed in social care, the cost to the public purse is huge.

On young carers, the issue is not just the caring role of young children. My children were classed as young carers, and the package they had was to enable them to enjoy social activities with other young people. They felt very left out of normal activities, because I was spending most of my time looking after Maria. It is very important that carers recognise that there is help out there, and help has to be consistent. As we know, local authorities have had their budgets cut massively, so what was once perhaps a gold star service for carers is down to a much lesser service.

A lot of carers I knew did not think they were carers and did not really want anything from the state. They said, “We’re just doing it because this is our loved one, and this is what we need to do.” However, the needs, health and wellbeing of unpaid carers are so important if we want them to continue doing the fantastic job that they do.

[Justin Madders]

I am grateful to my hon. Friend for relaying her family’s experience. She has articulated far better than I could why it is so important that we support carers, and young carers in particular.

I have listened to what the Minister said about the new clauses. I think he is keen to support this agenda, and there is clearly quite a lot of change happening in the Department over the next few months. We will keep an eye on how the issue of carers sits within that, and how ICPs work in practice, and will not push our new clauses to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 41

Review of implementation of NHS continuing healthcare by integrated care systems

“(1) Chapter 3 of Part 1 of the Health and Social Care Act 2008 (quality of health and social care) is amended as follows.

(2) After section 46A insert—

‘46B  Review and performance assessments: integrated care systems

The Commission must, each year—

(a) conduct a review of the implementation of NHS continuing healthcare by integrated care systems,

(b) assess the performance of these systems following the review, and

(c) publish a report of its assessment.’”—(Justin Madders.)

This new clause would require the review and assessment of NHS continuing healthcare systems.

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

Continuing healthcare ought to be something that we do not need to think about in a truly integrated care system. Hopefully, when the next White Paper comes along, it will address some of our issues with continuing healthcare—no doubt the Minister will tell us whether that is correct.

We all know that continuing healthcare is a huge source of contention between the NHS and local authorities. Arguing about who pays for what is not productive or efficient, and of course it is always the patient who is stuck in the middle. I have numerous examples, as I am sure other hon. Members do, of constituents who have been wrangling, for years after the care was provided, about who is picking up the bill for what. It seems a highly bureaucratic, unfair and at times deeply distressing experience for the families involved.

It has been clear for decades that we are moving into a world where many people will have multiple long-term conditions, with both health and social care needs. The new clause was tabled with that in mind, and with the assistance of the Motor Neurone Disease Association. As one would expect, those with MND often fall into the CHC web. I cannot allow a reference to MND to pass without paying tribute to Rob Burrow and the many other magnificent campaigners who have put the spotlight on the challenges that those diagnosed with MND face. I had the privilege of knowing Rob when he was a professional sportsman, and he has taken equal vigour, determination and courage into this field. He has been an absolute star in campaigning on these issues.

Under the current complex and poorly understood rules, some qualify for free social care—in other words, the NHS pays for it, rather than the local authority—but it is for adults only, and in order to qualify there has to be an assessment by professionals of all a person’s needs. If the needs change, the eligibility can change, and of course there are endless arguments about what the needs are at any particular time. That demonstrates why the integration of care is very important and will probably be more efficient in the long run. Those in receipt of, or possibly eligible for, continuing healthcare should be fully involved in the assessment process and kept informed. Carers, who we have already discussed, and family members should also be consulted. There are the personal experience aspects of the process to look at, as well as the arguments about who pays for what.

The new clause accepts that we cannot fix all these things overnight. It suggests that in some cases someone should be responsible for ensuring that the system works properly in the interests of those with continuing needs. This is all part of the wider application of proper openness, and of transparency being the strongest and best form of good governance.

Clinical commissioning groups have a legal responsibility to meet the assessed health and care needs of every person in their area who is found eligible for continuing healthcare. Their responsibilities are laid out in the national framework and supporting guidance, but I am afraid there is extensive evidence that they do not always fulfil those responsibilities, and that the monitoring of delivery of continuing healthcare is inadequate. In 2018, a Public Accounts Committee inquiry on continuing healthcare found:

“NHS England is not adequately carrying out its responsibility to ensure CCGs are complying with the legal requirement to provide CHC to those that are eligible.”

It also found that

“there are limited assurance processes in place to ensure that eligibility decisions are consistent”,

and that existing measures

“may not go far enough to address the variation in performance”

across CCGs. These findings were echoed in a November 2020 report by the Parliamentary and Health Services Ombudsman, which warned that

“people continue to be seriously let down by failings in the way…healthcare is handled by CCGs.”

Patient organisations, represented collectively through the Continuing Healthcare Alliance, have reported a wide range of significant problems in CHC delivery, including CCGs not adhering to the national framework or associated guidance for assessment and care delivery, leading to significant inconsistency and variation across the country. Not enough data is collected about who receives continuing healthcare and multidisciplinary teams are frequently not used to conduct assessments, which leads to them sometimes being carried out by individuals with no knowledge of that person’s history or their medical condition. Care packages are frequently inadequate to assess needs, particularly when individuals require complex care or specialist care input. There is no effective system or process in place to monitor the quality of delivery across the country, to address that unwarranted variation and to take action when commissioners fail to live up to their legal responsibilities in respect of CHC.

We are seeking to address some of those issues through the new clause. We have what we would describe as an accountability gap, where there is no effective mechanism to monitor delivery of CHC and hold to account those who are meant to be responsible for delivering it. It goes without saying that people in receipt of CHC are sometimes the most vulnerable in the population, by definition, and it is surely unacceptable that a group of individuals continue to be let down by a failing system with no mechanism to identify and address those failings.

We hope that the new clause will address that issue and support better patient experience and outcomes with CHC. I do not intend to press it to a vote, but I would appreciate some responses from the Minister. The issue is not going to go away, so I would like his thoughts about the future of the whole idea of continuing healthcare and how we best monitor and ensure consistency and compliance throughout the country. Any thoughts on how we can make the system better would be most welcome.

[Edward Argar]

I am grateful to the hon. Gentleman and join him in paying tribute to the work of the MND Association and other campaigners who do so much to bring these issues to our attention, both as individual MPs and in debates such as this.

The new clause would impose a new duty on the Care Quality Commission to conduct a review and assess the performance of NHS continuing healthcare, or CHC, by integrated care systems each year. It would also require the CQC to publish a report of its assessment. Again, as with many of the hon. Gentleman’s proposals, I understand and have a degree of sympathy with the intention behind what he seeks to do with the new clause. It is right that clinical commissioning groups, as they are currently called, are held accountable for NHS continuing healthcare within their local health and social care economy. That will also be the case with the national move to integrated care boards, where the board will discharge those duties and be accountable for NHS continuing healthcare as part of its NHS commissioning responsibilities.

I am grateful to the hon. Gentleman for suggesting that the new clause is, in essence, a probing amendment to highlight the issue, because I am not convinced that it is necessarily the most effective way of doing that, although it certainly airs the issue in Committee. I reassure him that the Government share his view about the importance of ensuring adequate oversight in how health and social care services are delivered, including in this space.

First, by way of some reassurance, NHS England has a core role in overseeing ICBs in the exercise of their functions. The Bill requires NHS England to assess the performance of each ICB every year and ICBs are required to provide NHS England with their annual report, which will include oversight of NHS commissioning and thus, in that context, continuing healthcare.

In addition, as Members will be aware, we have debated an amendment to give the CQC a duty to assess integrated care systems at a system level. The intention is for these reviews to provide the public and the system with independent assurance of the work within the ICS and, in particular, the effectiveness of joined-up working and integration. They, too, will be a valuable way to improve the services provided. The scope would include NHS commissioning and NHS continuing healthcare. We also intend for the CQC to work closely with NHS England, which will be conducting its own assessment of integrated care boards. We therefore think that those are the most effective vehicles for that oversight.

However, I share the hon. Gentleman’s view and suspect that we will all, possibly with a degree of regularity, have constituency cases about continuing healthcare payments and whether the system is working efficiently or otherwise. Local healthcare systems must continue to focus on this and seek to do what they can to make the system as smooth and efficient as possible. We believe that the mechanisms in the Bill are an effective way of doing that, but that in no way implies that individual systems should stop looking at ways of continuing to improve that provision and the mechanism by which continuing healthcare funding is delivered to individuals.

[Justin Madders]

I am grateful to the Minister for his comments—it seems that the message has been received. Obviously, if the ambitions in the Bill to improve integration, collaboration and joint working are to be delivered, this will be one area where we would expect to see significant improvements. I have no doubt that we will return to this in future, but I beg to ask leave the withdraw the motion.

Clause, by leave, withdrawn.

New Clause 42

Alcohol product labelling

“The Secretary of State must by regulations make provision to ensure alcoholic drinks, as defined by the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or in future versions of that guidance, display—

(a) the Chief Medical Officers’ low risk drinking guidelines,

(b) a warning that is intended to inform the public of the danger of alcohol consumption,

(c) a warning that is intended to inform the public of the danger of alcohol consumption when pregnant,

(d) a warning that is intended to inform the public of the direct link between alcohol and cancer,

(e) a full list of ingredients and nutritional information.”—(Alex Norris.)

This new clause requires the Secretary of State to introduce secondary legislation on alcohol product labelling.

Brought up, and read the First time.

Health and Care Bill (Eighteenth sitting)

Justin Madders Excerpts

Committee stage
Wednesday 27th October 2021 Public Bill Committees

[The Minister for Health (Edward Argar)]

Ah, a promotion—almost.

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

Mrs Murray, it really is a pleasure to serve under your chairmanship this morning. I echo the comments from the Scottish National party spokesperson. She is correct that the Bill gives the Secretary of State extensive powers—almost carte blanche in some areas—to change the law. We think that taking back control means Parliament taking back control. Elected politicians are meant to serve the people, not the other way round. Some very valid points have been made about the themes and issues across the Bill, and we echo those.

[Edward Argar]

It is a pleasure to see you in the Chair again, Mrs Murray, and to hear of the inadvertent promotion of the shadow Minister. I am sure it is only a matter of time, certainly if his longevity in his current post and being master of his brief are anything to go by.

I am grateful to the hon. Member for Central Ayrshire for raising this matter. I will address amendments 114 and 115 together, as one is consequential on the other, and then I will address the clauses. As the hon. Lady rightly says, she has raised this matter with me not only in this Committee but outwith it. I would have been surprised had she not wished to air it in Committee, which is exactly what we are here for.

The amendments would require the Secretary of State to seek the consent of Ministers of the relevant devolved Administrations before making a consequential amendment to any matter that falls within the competence of the devolved legislature. Provisions such as clause 130—she suggested I might say this—are perfectly common in UK Acts of Parliament, and we believe they remain within the spirit of the devolution settlement. The UK Government’s clear position is that, in and of itself, clause 130 would not give rise to the legislative consent motion process, for reasons that I will set out. We deem that a requirement for the consent of the DAs for its use would therefore be inappropriate.

This power will enable the UK Government to make consequential amendments that might be necessary following the passage of the Bill. That includes most of the amendments that need to be made to secondary legislation as a consequence of the Bill’s provisions As such, amendments were not included in the Bill. There may also be minor changes, such as amendments to names of particular bodies—the hon. Lady knows me and the position that Her Majesty’s Government take on these things extremely well—as a result of measures in the Bill.

It is also prudent to retain the power to amend legislation in the event that anything has been missed. It is important for everyone concerned that we have the ability to make such amendments should they be needed to ensure that the legislation works as intended and that we are able to do so quickly, as required.

As I said, this power is quite common in UK legislation, particularly in a Bill as large as the Health and Care Bill, which—as we know, as we reach the end of the current set of clauses—comprises 135 clauses and 16 schedules. There are many examples of similar powers to clause 130 in existing legislation. Perhaps the one with the greatest relevance, giving the most directly analogous example, is section 303 of the Health and Social Care Act 2012.

As a general principle, it is appropriate that the authority passing the legislation makes the consequential provisions that flow from it, as that authority will be most familiar with the provisions of the legislation and the changes to other legislation that it necessitates. We are seeking legislative consent from the devolved Administrations in respect of a number of provisions in the Bill and we have debated those in recent days, but clause 130 does not, in and of itself, give rise to the LCM process. It is the substantive provisions in the Bill, on which any amendments under clause 130 would be consequential, that do or do not, as the case may be, give rise to the LCM process.

Finally, although this power will enable the UK Government to make consequential amendments to devolved legislation, in practice, any amendments would be discussed with the DAs, officials and legal advisers prior to and throughout the drafting process. These arrangements follow wider good practice and expectations of collaborative working.

--- Later in debate ---

[Alex Norris]

Let me come back briefly on a couple of issues. First, I am grateful for the contribution of the hon. Member for Central Ayrshire and, in particular, her point about non-medical practices dressed up as medical practices. That is a particularly insidious way to inflict abuse on another person, and I completely agree with her that that is an absolute violation—it is as totemic as that.

We will all have taken great encouragement from the Minister’s response. I am grateful for that. I associate myself with the comments he made about the hon. Member for North West Durham—I should have said that in opening. Between us, we will ensure that he sees a copy of the proceedings, and he can take great encouragement from what the Minister said.

It was particularly welcome to hear that the Government intend to legislate in this space, with the intent for that to be at the earliest opportunity. That is good news, and the Opposition will support them in that process. I gently say—I know he enjoys these exchanges—that we are currently considering primary legislation, so this is definitely the earliest opportunity. If there are moments for the Government to revisit this issue on Report or in the other place, he will find colleagues very welcoming of that.

I do not want to shatter the consensus that has grown by dividing the Committee, so I do not intend to press either new clause to a Division. However, on new clause 2, we will look at what the expert panel says. I will be interested to see the divisions in opinion—I have not been able to find them. We look at these things on their merit, but the commitment to see the report before Christmas was welcome and will give great heart to campaigners in this space. The Opposition look forward to seeing the proposals and will be keen to support them if they can achieve the goals that we seek. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 3

Annual parity of esteem report: spending on mental health and mental illness

“Within six weeks of the end of each financial year, the Secretary of State must lay before each House of Parliament a report on the ways in which the allotment made to NHS England for that financial year contributed to the promotion in England of a comprehensive health service designed to secure improvement—

(a) in the mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of mental illness.”—(Justin Madders.)

This new clause would require the Secretary of State for Health and Social Care to make an annual statement on how the funding received by mental health services that year from the overall annual allotment has contributed to the improvement of mental health and the prevention, diagnosis and treatment of mental illness.

Brought up, and read the First time.

[Justin Madders]

I beg to move, that the clause be read a Second time.

The Minister referred to my longevity in post, which gives me the advantage of having had this debate with him previously. That does not make it any less important; in fact, the subject has only risen in importance in the intervening period. That is why the Opposition were pleased to put our name to the new clause, which was tabled by the hon. Member for Newton Abbot (Anne Marie Morris).

In March, the Centre for Mental Health reported:

“There are…many areas where parity of esteem has not yet been realised. Mental health problems account for 28% of the burden of disease but only 13% of NHS spending.”

Parity of esteem is the principle by which mental health must be given equal priority to physical health. Many of us assumed that it had always been there, but debates have gone on over the years and, as that figure suggests, it is still some way from being achieved. The founding National Health Service Act 1946 spoke of a comprehensive health service, securing the improvement of both physical and mental health, and the National Health Service Act 2006 said the same. That principle was enshrined in the Health and Social Care Act 2012—at least, the parts of it that remain.

In operational terms, the Government require NHS England to work for parity of esteem for mental and physical health through the NHS mandate. However, there are reports that this requirement falls down at a local level. Certainly as a constituency MP, I have a whole range of stories of people not being able to access treatment in a timely manner, or being pushed around the system with very little effect and discharged from care before it was appropriate, with consequences we can all imagine. It is difficult to overestimate how challenging that is, not just for the individuals, but for the local commissioners when they face competing pressures.

We are not suggesting that the 20% to 30% gap should be closed entirely, but we should be looking to at least get on the road towards delivering true parity. There was a missed opportunity earlier in this Bill when we suggested that one of the mandated positions on the integrated care board should be a mental health representative. Should that have been accepted, the ambitions behind the new clause would have been much easier to achieve. It is about not just getting on the road to financial parity, but actually changing the culture so that disparities can be addressed. It does sometimes seem that mental health is the Cinderella service: the one that gets cut first at the expense of the more visible services where people, understandably, can see if a particular service is shut down.

It should go without saying that it is part of the Secretary of State’s normal duties to promote mental health care, but that is something that has been sadly missing. While we do not want to get into an exact science on spending, we do think that much more can be done in terms of delivery and outcomes. Looking at some of the hard facts, it is clear how far we have to travel. One in four mental health beds has been cut since 2010; just last year, 37% of children referred by a professional to mental health services were turned away. That is a shocking statistic, and I am sure most Members will have similar stories from their own constituencies of people in desperate need of help—young people whose entire lives could change by getting the right help at the right time, but who are not able to access services despite there being an obvious clinical need.

That must change. We need parity to mean something in practical terms. We hope that the new clause would create a shift in culture by requiring the Secretary of State to lay a report before Parliament addressing whether the aim of parity of esteem has been delivered.

[Dr Whitford]

The shadow Minister speaks about people who have been referred to mental health support but are not able to get it. Is there not a need to be moving that further upstream? Young people in particular struggle to access child and adolescent mental health services, and often that is because there is not resilient support within schools and there is no counselling at an early point when they are struggling that might mean they do not need to go to a specialised service. As there is none of that, their mental health may deteriorate until the only option is to join a long queue to attend a hospital unit. Therefore, should we not shift to looking at wellbeing—both physical and mental wellbeing—and the resilience of children and young people who have suffered over the past 18 months?

[Justin Madders]

I am grateful for the intervention—that is a very fair point. I recently spoke to a CAMHS worker who made that very point. One of their frustrations was that problems were not being addressed by early interventions, which only stores up more difficulties for later. Again, that is a symptom of the fact that we do not have parity of esteem, because early interventions can ultimately make a huge difference. We would like to see better access to services and appropriate waiting times being established for a wider range of mental health services, so that people with mental health problems know the maximum time for treatment, as is the case for people with physical health problems. I know the Department has been consulting on that fairly recently, and we think it would be a step change in how we assess and prioritise mental wellbeing.

Parity of treatments is required. Psychological therapies that are approved and recommended by the National Institute for Health and Care Excellence should be delivered as per the NHS constitution, and they should be put on a par with NICE-approved drugs. People need 24/7 access to mental health teams. The A&E presentations that we hear so much about have to be considered—that is probably not the optimum way to deal with such issues. There is a whole range of matters that really could make a practical difference in delivering parity of esteem, and we think that the report proposed in the new clause would be a way to drive through some of those changes.

I will not push for a vote on new clause 3, but we wanted to highlight the urgent need for more support for mental health services throughout the UK. Hopefully, the Minister will at least acknowledge that more needs to be done in this area.

[Edward Argar]

I welcome the spirit in which the shadow Minister brings this issue to the Committee. He is right to highlight not only the words “parity of esteem” but what they mean in practice, the importance of mental health services—particularly after the past year and a half with the rise in people suffering from mental health problems—and the challenges posed every day to our mental health services, irrespective of the pandemic. I suspect that throughout their time in this place, all Members present will have had multiple pieces of constituency casework relating to this issue, and particularly to CAMHS.

It is absolutely right that the shadow Minister has focused our debate on ensuring that mental health services are sufficiently funded to improve access, care and outcomes for patients. We know that, historically, mental health services under successive Governments have not received the same level of funding as NHS-funded services for physical health. By virtue of section 1(1) of the National Health Act 2006, which was inserted by the Health and Social Care Act 2012, the Secretary of State has a “duty to promote comprehensive health service” in England

“designed to secure improvement—

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of physical and mental illness.”

Although there may be many things in the 2012 Act that I suspect Opposition Members do not agree with, I suspect they will agree with that clear objective. Given what the shadow Minister said, I am sure they do.

In line with that duty the Secretary of State, through the NHS mandate, ensures that NHS England must seek to treat mental health with the same urgency as physical health. That is monitored through three metrics: mental health services’ real-term expenditure growth, the number of people accessing Improving Access to Psychological Therapies services, and the number of children and young people accessing NHS-funded mental health services. The Secretary of State has a legal duty to keep under review the progress in meeting mandate objectives. NHS England and NHS Improvement provide reports on the above metrics for the Government’s review on a regular basis, and they have governance mechanisms in place to monitor both mental health spend and service delivery.

--- Later in debate ---

[Justin Madders]

I am grateful for the Minister’s comments. If the investment standard is being met across the board, perhaps it is the investment standard that needs looking at rather than the services themselves. We are all aware that there is a lot more to do in this area. As the Minister rightly says, no doubt we will return to it, so I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 5

Support provided by the NHS to victims of domestic abuse

“(1) Each Integrated Care Board must—

(a) assess, or make arrangements for the assessment of, the need for support for victims of domestic abuse using their services;

(b) prepare and publish a strategy for the provision of such support in its area;

(c) monitor and evaluate the effectiveness of the strategy;

(d) designate a domestic abuse and sexual violence lead; and

(e) publish an annual report on how it has discharged its duties relating to the provision of services to victims of domestic violence under the Care Act 2014.

(2) An Integrated Care Board that publishes a strategy under this section must, in carrying out its functions, give effect to the strategy.

(3) Before publishing a strategy under this section, an Integrated Care Board must consult—

(a) any local authority for an area within the relevant Integrated Care Board’s area;

(b) the domestic abuse local partnership board appointed by the local authority for an area within the relevant clinical commissioning group’s area under section 58 of the Domestic Abuse Act 2021; and

(c) such other persons as the relevant local authority considers appropriate.

(4) For the purposes of subsection (4), “local authority” means—

(a) a county council or district council in England; or

(b) a London borough council.

(5) An Integrated Care Board that publishes a strategy under this section—

(a) must keep the strategy under review;

(b) may alter or replace the strategy; and

(c) must publish any altered or replacement strategy.

(6) The Secretary of State may by regulations make provision about the preparation and publication of strategies under this section.

(7) The power to make regulations under subsection (7) may, in particular, be exercised to make provision about—

(a) the procedure to be followed by an Integrated Care Board in preparing a strategy;

(b) matters to which an Integrated Care Board must have regard in preparing a strategy;

(c) how an Integrated Care Board must publish a strategy;

(d) the date by which an Integrated Care Board must first publish a strategy; and

(e) the frequency with which an Integrated Care Board must review its strategy or any effect of the strategy on the provision of other provision in its area.

(8) Before making regulations under this section, the Secretary of State must consult—

(a) all Integrated Care Boards; and

(b) such other persons as the Secretary of State considers appropriate.”—(Alex Norris.)

This new clause would require Integrated Care Boards to publish a strategy for the provision of support for victims of domestic abuse using their services and designate a domestic abuse and sexual violence lead.

Brought up, and read the First time.

[Alex Norris]

I beg to move, That the clause be read a Second time.

For Opposition Members in Committees of this type, as we assemble the issues that we prioritise in proceedings, we have to be a bit of a magpie and pinch things along the way, so I want to recognise that this new clause is pinched from the hon. Member for Newton Abbot. I am grateful to her for tabling this and for the level of thought that she put into the amendment, which is a very good one.

Earlier in the proceedings, we discussed integrated care board plans and their responsibility to engage with the Domestic Abuse Commissioner. I was grateful for the commitments that the Minister made. There was a common understanding that the health and social care system has a crucial role in both preventing and tackling domestic abuse and in supporting victims and survivors. That sounds self-evident, but we are not in that position in this country yet, and we could do much better. I hope we can build on that consensus with the new clause, which requires integrated care boards to publish a strategy for the provision of support for victims of domestic abuse using their services and to designate a domestic abuse and sexual violence lead.

I will not repeat the arguments that I made earlier regarding the scale of domestic abuse, but it is worth reiterating top lines, particularly the global statistics from the World Health Organisation, which show that 30% of women have experienced some form of physical and/or sexual violence by an intimate partner in their lifetime. In this country it is one in four, so it is of a similar order of magnitude. The Government’s own estimate is that it costs health services £2.3 billion annually. A common refrain from the sector, with which I meet a lot, as I did before coming to this place, concerns the impact it could make with a fraction of that money if it was put into statutory services or the services that it provides. We should think about that investment model.

In discussing the new clause, I want to take the opportunity to cover something that we have not previously considered, namely domestic abuse, which tends to be against women but also concerns people with disabilities. According to Stay Safe East, disabled people and, most specifically again, disabled women, experience higher rates of domestic abuse than those who do not have disabilities. Abuse against women with disabilities is likely to be more violent and to happen over a longer period before the victim discloses it or can access help. The really sad thing is that if the victim––who is living with a disability––is not heard, there is a significant risk that they will then be sent home by the system to be cared for, in the very loosest sense, by their abuser. None of us would want that but it is the sort of thing that happens at the moment because we do not have a strong enough grip. I hope that we can use the new clause and the Bill generally to take more active steps to address that problem.

There is clearly a significant need for specialist domestic abuse services, which are crucial to enable women’s recovery in particular. Often, such services take on the work of statutory services and provide vital advocacy for women facing health exclusion, particularly in respect of services supporting black and minoritised women. It came out strongly in the debate on what is now the Domestic Abuse Act 2021 that we need specific and specialised services for those who are at greatest risk of being excluded. We did not quite get there in those provisions. I confess to using every legislative and parliamentary opportunity to keep pushing at this because it is really important and we can do much better.

We know that medical staff receive some training in adult safeguarding and, in a few hospitals, even on domestic abuse and sexual violence. But the skills and time to communicate with people with, say, learning disabilities or cognitive issues, with deaf survivors or with very elderly people who might be less likely to disclose personal information are not always available, and certainly not universally. The new clause seeks to put the onus on the integrated care system to get organised around this, to specialise and to prioritise it. It should be a priority across the system.

--- Later in debate ---

[Justin Madders]

It is a pleasure to follow my hon. Friend the Member for Bristol South, who said what should not really need saying, but still needed to be said, because being open and transparent is the highest form of accountability. Given the history of the NHS as the archetypal public service, one would expect it to be the model of openness and transparency. Maybe it was at one point, but we are a long way from that now. In a public service on the scale of the NHS one would expect the sharing of best practice to be the norm and openness to be the standard. Unfortunately we know that it is not, and one has to ask what it is people want to hide from others.

We know of classic examples of how a secretive approach has made matters far worse than they were. The various inquiries have shown that these methods have not only prevented things from being released, but have actively protected colleagues, units and even trusts from what might, at the very least, be considered reputational damage. Many have said that the best disinfectant is sunlight—or words to that effect—and the best governance comes when things are open and transparent. The best checks and balances are only possible if all information is shared properly.

I will quote from the code of conduct for NHS boards, agreed two decades ago between the NHS Appointments Commission and the Department of Health. I believe it is as valuable today as it was then. It says,

“Health needs and patterns of provision of health care do not stand still. There should be a willingness to be open with the public, patients and with staff as the need for change emerges. It is a requirement that major changes are consulted upon before decisions are reached. Information supporting those decisions should be made available, in a way that is understandable, and positive responses should be given to reasonable requests for information and in accordance with the Freedom of Information Act 2000.”

I think we all understand what that seeks to achieve: be open and transparent, listen and engage. History suggests that this has been applied patchily at best.

One of the inevitable consequences of the shift to a belief in the markets was the idea that bits of the NHS were only semi-attached to the greater body and had their own paths to travel and own priorities. Some of these bodies were expected to behave like businesses and were given the illusion of having a bottom line or a surplus. They were told that their incomes depended on how many customers they had through their doors and that they would win more through competition with other providers in a quasi-market. That led them to become more insular, self-serving and closed. Why would they want to share information with their competitors? That may sound a little extreme, but there are plenty of examples of that kind of behaviour, which tips over into, essentially, reputational management—being seen to be good and one of the best, but actually covering up some of the worst.

Openness and transparency have been eroded as a result. We saw in the Francis report a renewed focus on openness and transparency, which was meant to lead to better patient outcomes—in theory, at least. The renewed interest in openness gave rise to this statement from the report:

“It is a basic and just expectation of the public that organisations are open, honest and transparent about their performance standards, about the rights of patients and about what happened, and why, if things go wrong. This is the only way to begin to restore full public trust in the NHS.”

Sadly, that was not the end of the matter.

The Lansley Act—the Health and Social Care Act 2012—pushed, I am afraid, many trusts in the opposite direction. Despite the Francis report and talk of duties of candour, we still have horrific reports of failures within the NHS. Those failures often illustrate a refusal to be open and honest, showing a scant regard for whistleblowers and a culture of denial and refusal to accept the challenges. In part, this is another remnant of the Lansley Act. Once the emphasis is on competition, reputation management and business-like behaviours and away from public services, we begin to lose openness and transparency.

Let us go back to the key principles of the NHS as a public service that is accountable to us all, as public services should be. NHS business should be conducted in a way that is socially responsible. The NHS is one of the largest employers in many communities, and it should be forging an open, positive relationship with local communities, working with staff, partners and stakeholders to set out a vision for the organisation in line with the expectations of their communities, patients and the public. None of that can be done in secret, behind closed doors. NHS organisations should not only discuss but demonstrate to the public that they are concerned about and determined to deal with the wider health of the population, including how it relates to the organisations’ own impact on the local economy, the local environment and so on. They should reflect the values of engagement, which should be at the forefront of all decision making, and transparency, which should be there in all dealings.

Health and Care Bill (Seventeenth sitting)

Justin Madders Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Dr Whitford]

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

The amendment brings us back to a knotty problem I have raised previously: although the Bill was brought forward as predominantly a Bill for England, it does have an impact on the devolved Governments, who saw it the day before it was launched. There is absolute support in Scotland, and I am sure across all the devolved nations, for strong healthcare agreements with other nations outwith the EU, particularly Switzerland and the European Free Trade Association countries, which are not currently covered, but it has to be remembered that the delivery of healthcare is a devolved issue. We are trying to ensure that that is recognised in the Bill, so that the UK Government, who absolutely have the right to negotiate international agreements, work much more closely than we have seen them do so far on how the technicalities should work in the devolved health services.

Amendments 110 and 111 relate to the same issue: the fact that the devolved nations, and certainly the Ministers concerned, were not involved in the development of these clauses. There is no mention of them, and no mention of how they will be involved in shaping any healthcare agreements or health insurance card. That is what we are now calling for.

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

It is a pleasure to see you in the Chair, Mr McCabe. I shall speak in support of amendment 146, which stands in my name and the name of other Opposition Members. There is a temptation to get teary-eyed and reminisce about the 2017-19 Parliament; it is almost overwhelming, but I will resist and battle on.

What we are discussing in this clause amounts to a significant amendment to the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, on which I had the pleasure of leading for my party, opposite not one but two of the Minister’s predecessors. I hope that the same fate will not befall this Minister as befell his predecessors who dealt with this legislation—although one of them actually got a promotion. Clause 120 renames that Act the perhaps more snappily titled Healthcare (International Arrangements) Act 2019, which is what the original Bill was called until Parliament, in its wisdom, decided that as this was a Brexit Bill, it was better to have it deal with matters associated purely with Brexit, and not to slip in wider powers almost wholly unrelated to our decision to leave the EU.

The clause gives the Secretary of State power to make regulations to pay for healthcare provided outside the United Kingdom where the payments give effect to a healthcare agreement. In the context of what has come before, that is no surprise, and it is certainly something we would expect to be pursued. It also means that the Secretary of State will be able to make regulations on the payment of healthcare provided in another country where the healthcare is outside the scope of healthcare agreements if he thinks that payment is justified by exceptional circumstances and the healthcare is provided in a country with which the UK already has a healthcare agreement. This discretionary power could, for example, be exercised to pay for a specific treatment that falls outside the scope of an existing healthcare agreement.

Not content with giving himself the power to enter into further healthcare agreements outside the EU, by doing this, the Secretary of State effectively gives himself another power to make further payments if he later discovers that there was another matter that he thinks we should have been paying for that had not been covered by those agreements. It may be that that situation would only arise in exceptional circumstances, but the whole genesis of the original Bill was that it was considered sensible to retain reciprocal healthcare arrangements with countries in the EEA, whereas the clause implies that things may not be quite so reciprocal in future. I wonder what the dynamic will be in negotiations with third countries if, on our side at least, we can just authorise further payments outside any agreement anyway.

These are potentially extraordinarily wide powers, and the regulations would be subject only to the negative procedure. Our amendment is not only consistent with the importance of parliamentary scrutiny, but would ensure value for money. The original Bill contained a similar power to that in the clause and was considered by the Delegated Powers and Regulatory Reform Committee in the other place. It set out clearly the power’s potential impact:

“If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure.”

[Interruption.] The Minister is chuckling. He may well know that I have used that quote before, because it highlights the extreme examples that are possible under the Bill. The Committee continued:

“Of course, these examples will not be priorities for any Secretary of State in this country.”

We should hope not. While the Minister may be able to rule out those two specific examples today, we have to consider how the powers could be used, and not just how they might be expected to be used.

The concern that this is a very broad power has been further strengthened by the inclusion of the power to make payments outside healthcare arrangements. We have to ask what the Secretary of State is trying to solve by giving himself these additional powers. Let us look at what the powers do. There is no limit to the amount of payments he can make. There is no limit on who can be funded worldwide. There is no limit to the type of healthcare being funded. Such powers without qualification or any criteria being applied in the Bill are simply unacceptable, so a resolution of both Houses should be required, alongside an impact assessment of the costs and demands any regulations might place on the NHS.

On the costs, there is no limit on what the Secretary of State might pay. If we are to assume that this will come out of existing departmental budgets, who will receive less? I mention this not just in the context of extra payments that the Secretary of State may make for things not covered by agreements, but in terms of the burden on the NHS of delivering any new obligations, because, to be blunt, cost recovery has been suboptimal. As the Law Society of Scotland said:

“As the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”

The Government need to raise their game on cost recovery, and if there is an additional administrative burden on the NHS in setting up new systems of cost recovery because of new agreements reached, we need a commitment from the Minister to adequate resources to ensure that those services are delivered and the cost recovered.

We support the concept of reciprocal healthcare arrangements. They are a very good thing for our citizens and for visitors to the country, but it cannot be right to give the Secretary of State such a blank cheque. Amendment 146 will ensure transparency, accountability and a proper assessment of the obligations entered into by virtue of regulations under the clause.

[The Minister for Health (Edward Argar)]

The hon. Gentleman alluded to being shadow Minister during the passage of the previous piece of legislation, and that reflects once again his longevity in his post. I am grateful to the hon. Member for Central Ayrshire for amendment 110, and for bringing the issue before the Committee. It is right that we debate and air it in this forum. I am aware of the concerns, which she expressed extremely clearly, about the Secretary of State’s ability potentially to confer functions on, or delegate functions under the 2019 Act to, Ministers from the devolved Administrations. She highlighted the perfect example: the challenge that we inevitably face with elements of the devolution settlement. Delivery may rest with the devolved Administration, and is therefore a devolved power; concluding international agreements is a reserved matter and therefore one for the UK Government.

Understandably, the point of principle on both sides is not to concede consent but, from our perspective, to consult. I will come on to that in a minute. I appreciate the perspective brought by the hon. Lady and her colleagues in the Scottish Government. Let me reiterate the UK Government’s strong commitment to meaningful and ongoing engagement with the DAs on reciprocal healthcare. There is already a statutory obligation under section 5 of the 2019 Act to consult the devolved Administrations before making any regulations under the Act in areas within the competence of the devolved legislatures.

We are working with officials in the devolved Administrations on the development of a memorandum of understanding setting out how we will fulfil that duty in practice. Indeed, the memorandum goes further in undertaking to engage and consult the devolved Administrations, not just at the end of the implementation stage but from a much earlier stage. I appreciate that the hon. Lady may say that, although that is progress, it does not go far enough. I believe that good progress is being made, but I suspect that on Report, I will have to report back on where we have got to, and whether we have managed to find a way forward. The work continues to be done.

Turning to amendment 110, the regulation-making powers in HEEASAA—I was going to say that was a shortened version of the Act’s title; I might just refer to “the aforementioned Act”, which may save us a little time—are important as they provide the UK Government with the ability to implement international reciprocal healthcare agreements. The Government fully support the devolution settlement and, as I say, we would not normally confer functions on the devolved Administrations under the Act without their agreement and consent.

To date, we have used the power only to ensure that Ministers in the devolved Administrations can have a role in authorising planned treatment applications if they wish, but we need to ensure that when negotiating agreements and committing to international obligations we can be confident that we can implement them. Further, we are keen to ensure that Ministers in the devolved Administrations can continue to have a role in devolved planned treatment applications. I reassure the hon. Lady that we continue to explore the issue with the DAs. I do not want to pre-empt what may emerge from that. For that reason, I encourage her not to press the amendment to a Division at this stage. She may reserve her right to do so at a subsequent stage in the passage of the legislation.

Amendment 111 would introduce a duty to seek the consent of the DAs before making regulations relating to international reciprocal healthcare agreements that contain a provision within a devolved competence. Reciprocal healthcare agreements benefit all our residents across the UK, providing safeguards and support for our most vulnerable, as well as greater opportunities to travel, for work or leisure. Where an agreement is in place, those living in the UK can access affordable healthcare when they need it when travelling abroad.

As I have said on multiple occasions, we recognise the need to work with our friends in the devolved Administrations, but we cannot include a statutory consent requirement. That would risk the UK Government not being able to comply with our international obligations, and it would, in a sense, give the devolved Administrations a veto over a reserved matter. I do not understate the complexity of the way the constitutional settlement works in this context.

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[The Chair]

Does the hon. Member for Ellesmere Port and Neston wish to press amendment 146?

[Justin Madders]

I thought at one point that the Minister was going to accept the amendment, given the way he was talking about the importance of parliamentary scrutiny and impact assessments. He will not need to be reminded that on a number of occasions in the past 18 months the Department has not produced those impact assessments when regulations have been produced. As he has clearly become a full-blooded Brexiteer, given his comments today, I am minded to press the amendment to a vote because it is about Parliament taking back control.

Question put, That the amendment be made.

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[Dr Whitford]

We have had a lot of debate over recent years about whether we are aiming for lowest common denominator or to achieve the highest standard. The concern is about delegating or creating new grades of staff who are not expected to have the same level of qualification or training as the people they may be replacing within the health service. That is not always to the benefit of patient safety. We are really calling for meaningful engagement, which is not what we have seen before. It is important to recognise the impact that it would have on the devolved nations.

I totally recognise that professionals need to be able to work across the UK, but it should be about aiming for people to have the training, professionalisation, standards and regulation that they require and which is comparative to the job that they are doing and the service they are delivering for patients. We spent the whole morning on patient safety. The standard of the staff who deliver the care is the most important thing for patient safety. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Justin Madders]

I beg to move amendment 142, in clause 123, page 105, line 13, at end insert—

“(f) After subsection (2B) insert—

(2C) The regulation of health professions and social care workers must be used where possible to raise professional awareness of rare and less common conditions.”

This amendment would require professional regulators to support improved awareness of rare and less common conditions amongst health and care professionals.

May I clarify that there will be a debate on the substantive clause afterwards?

[The Chair]

There will be, if you so wish.

[Justin Madders]

I do so wish. I will not detain the Committee long on amendment 142. We are seeking to find ways of increasing awareness of rare and less common conditions among healthcare professionals. I readily accept that the amendment may not be a perfect vehicle for doing that, but the recent UK rare diseases framework included increasing awareness of rare and less common conditions among healthcare professionals as one of its four priority areas, partly due to the challenges that people within the community face in receiving accurate and timely diagnoses in primary care.

What mechanisms can be introduced to help to raise awareness of rare and less common conditions among healthcare professionals? Will the Minister consider introducing reforms to workforce training and resourcing to facilitate that because among the raft of the entire professional regulation process and a range of development issues, continuing development about and awareness of rare conditions is at the heart of proper and effective regulation?

[Edward Argar]

Amendment 142 would introduce a legislative requirement in section 60 of the Health Act 1999 for health and care professional regulators to raise professional awareness of rare and less common conditions where possible.

The purpose of regulating healthcare professionals is to protect the public. Regulators set the standards that registered professionals must meet; they also set standards relating to education and training. By ensuring that the standards are met, the regulators ensure that on an ongoing basis professionals have the right behaviours, skills, knowledge and experience to provide safe and effective care.

Section 60 of the Health Act 1999 provides powers to make changes to the professional regulatory landscape through secondary legislation. Each professional regulator has its own legislation that can be amended under the powers in section 60, which provides the framework for its establishment and remit. Although I have sympathy with the amendment’s aim and the points made by the hon. Member for Ellesmore Port and Neston about the need to ensure that health and care professionals are aware of rare conditions, I do not believe that writing such a requirement into section 60 of the 1999 Act is quite the right approach to achieve that.

All the healthcare professional regulators have the same set of objectives, which were placed on a consistent footing by the Health and Social Care (Safety and Quality) Act 2015. Those objectives are to protect, promote and maintain the health, safety and wellbeing of the public; to promote and maintain public confidence in the professions regulated under the Act; and to promote and maintain proper professional standards and conduct for members of those professions.

A key part of delivering those objectives is setting standards that require professionals to have the necessary skills and knowledge to practise safely. That includes knowledge and awareness of rare conditions where that is necessary for an individual’s practice. Regulators set the standards that healthcare professionals are required to meet in order to practise. Professionals have a duty to ensure that they provide a good standard of practice and care, which includes keeping their professional knowledge and skills up to date. That is set out in the guidance issued by the regulators.

For example, the General Medical Council’s “Good medical practice” sets out the standards required of a registered doctor. It specifies that a doctor must keep their professional knowledge and skills up to date, must be familiar with guidelines and developments that affect their work, and must recognise and work within the limits of their competence. That provides a clear framework that requires doctors to have knowledge of rare conditions where that is necessary for their practice.

The exact knowledge and skills required for each healthcare professional cannot be known or set by the regulator, but the current legislative requirements put in a place a framework that requires each professional to maintain the skills and knowledge needed to practise safely, including knowledge of rare conditions.

As experts in regulation, it is the responsibility of the regulators to determine what role they need to play in raising issues such as awareness of rare and less common conditions among their professionals. For those reasons, I encourage the hon. Member for Ellesmere Port and Neston to consider withdrawing his amendment.

[Justin Madders]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause provides additional powers that will widen the scope of section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation.

The powers will enable the abolition of an individual health and care professional regulatory body where the professions concerned have been deregulated or are being regulated by another body; the removal of a healthcare profession from regulation where that is no longer for the protection of the public; or the delegation of certain functions to other regulatory bodies through legislation which previously had not been allowed. The powers will enable the regulation of group of workers concerned with physical and mental health, whether or not they are generally regarded as a profession, such as senior managers and leaders.

The UK model of regulation for healthcare professionals is rigid, complex and needs to be flexible and to change to better protect patients, support our health and care services and to help the workforce meet future challenges. The case for reforming professional regulation has long been acknowledged. Stakeholders have long expressed concern that having nine separate professional regulatory bodies is inefficient and confusing to the public. Our 2019 public consultation response reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system. In addition, an independent review of the regulatory landscape, in particular the existing roles of regulators, has been commissioned and is due to report by the end of this year.

The powers in clause 123 will enable future changes to be made to make the professional regulatory landscape more streamlined and work more flexibly. The powers will also make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public.

--- Later in debate ---

The policy decisions underpinning the powers also take into consideration the Government response to the Law Commission’s review of UK law relating to the regulation of healthcare professionals and the recent review, led by Tom Kark QC, of the fit and proper persons test. This clause forms part of a wider programme aimed at creating a more flexible and proportionate regulatory framework for healthcare professionals that is better able to protect patients and the public, and I commend it to the Committee.

[Justin Madders]

As the Minister has told us, the clause seeks to amend section 60 of the Health Act 1999 in relation to making changes to the professional regulatory landscape through secondary legislation. It will simultaneously widen the scope of section 60 and extend the Secretary of State’s powers. Members may have picked up a theme by now: whenever there is a chance for the Secretary of State to seek more power, he uses this Bill to obtain it.

At the moment, the Government have powers to bring new professions into regulation or make modifications through secondary legislation, but can remove a profession from regulation only through primary legislation. This clause will enable the removal of a profession through secondary legislation and makes it clear that a profession would be removed from regulation only when that was no longer required for the purpose of protecting the public—but then I would hardly expect a statement from the Government about deregulating only where there is a risk.

While at one end of the spectrum one could argue that virtually all interactions with patients might have some element of risk, the more balanced view might be that while not all interactions carry the same risk, it is likely that all professions at some time undertake acts where the consequences of mistakes for the patient will be significant.

I am left wondering exactly what the yardstick will be and what criteria will be used to determine when there is no longer a need to protect the public. Is that the only criterion to be applied? Does professional regulation not also help to facilitate consistent common standards? What is lacking at the moment is any sense of the principles that will be followed to inform decisions to bring professions into regulation or to remove them. Will patient organisations, representative bodies and regulators be consulted on any new criteria to be applied?

I appreciate that, as the Minister said, section 60 of the Health Act 1999 already contains requirements that legislation should be published in draft, subject to a three-month consultation, specifically with affected professionals and service users, but it would be helpful if he confirmed that that is the absolute minimum. I have to say, though, that even if the answer to that is yes, it seems a fairly minimal procedure for abolishing an entire profession. I am not sure that will cut it in terms of Parliament, never mind the public being satisfied that due diligence has been done to assess the overall risk profile of any particular role in the system. I am concerned about where that would leave matters such as professional indemnity insurance, as well as about any knock-on effect on the reassessment of bandings under agenda for change.

The more one looks at this, the harder it is to see how it could be done properly in the timescales envisaged. There are just under 700,000 registered nurses in the UK. One can see how resource-intensive it would be if every one of them responded to a consultation to abolish their profession. I suspect the Minister will tell us that he has no plans to abolish professional regulation for doctors and nurses, but imagine if he did. This process would be wholly inadequate, which leads to the question: what exactly does the Minister, or more accurately the Secretary of State, have in mind when it comes to these powers? If we got some answers on that today, it might help us to decide whether these procedures were adequate and also whether the powers are necessary at all.

Moving the power to abolish professions to secondary legislation is not putting scrutiny and transparency at the forefront, and doing so without putting any indication on the record of which professions are being considered for derecognition under this power does not instil confidence that this power grab has been considered properly or is in fact needed at all. The implications for the devolved nations, particularly Scotland, are also important. There are differences in regulation and it is not clear what would happen if there were a difference of opinion between England and the devolved nations.

Clause 123(2)(d) inserts new subsection (2ZZA) into the Health Act 1999. I would welcome the suggestion that the scope of regulation could be extended to others who might not necessarily be regarded as professionals. It remains to be seen who or what this power will be used for, but I question whether the vehicle proposed is sufficient. More needs to be done. The 2019 Interim NHS People Plan states:

“It cannot be right that there are no agreed competencies for holding senior positions in the NHS or that we hold so little information about the skills, qualifications and career history of our leaders. A series of reports over the last decade have all highlighted a ‘revolving door’ culture, where leaders are quietly moved elsewhere in the NHS, facilitated by ‘vanilla’ references. These practices are not widespread, but they must end.”

I do not know whether this will be the right vehicle for tackling this issue, but it certainly needs tackling.

On clause 123(3) and the power to abolish regulatory bodies, the case has been made rather better—most notably by the Health and Care Professions Council, which sees this as an opportunity for some much needed modernisation, with a multi-professional regulatory model that would allow regulators to retain their individual identities and independence. That would see each regulator continue to operate its own register, oversee fitness to practise processes, liaise with relevant professional bodies and set its own educational standards relating to the professions they regulate, but there would be greater collaboration, with shared back-office services and other resources, which would presumably improve efficiency.

That approach has some benefits although I am also mindful of the evidence submitted by the Professional Standards Authority, which warned:

“Any mergers would be likely to lead to a period of turbulence of three-to-five years.”

It may be of interest that the authority also said that in the coming five or so years, it expected turbulence in the NHS and referred to the Bill as part of that turbulence. Of course, there are also the issues that we have discussed many times in this place about the pandemic’s impact.

On the overall impact of clause 123, I am sure that we can all agree on the need for robust, independent processes to ensure that any decisions made are in the public interest and based on a clear assessment of the risk of harm arising from practice. It is an obvious thing to do. It is important that individuals belong to a profession because that provides a framework of standards to uphold, encourages expertise and respect, and brings a higher level of professionalism, and, crucially, accountability to the public. However, it is far from obvious how the clause will assist those aims or why in going down the road of deregulation we would want to put those important principles at risk.

[Edward Argar]

I am grateful to the shadow Minister. His points coalesce around a number of key themes that I shall seek to address. He highlighted his concern about why we would do this and the potential disruption of either a lack of regulation in some spaces were we to abolish regulators or of that caused by moving functions. The key point here is that this is about creating a power that enables flexibility in the system that is not currently there. It is not that we have any direct or immediate plans to do this but about creating, in the context of the opportunity provided by the legislation, a framework whereby we could move powers around. There are some points sitting underneath that which I shall try to address.

The current section 60 powers are limited in terms of the changes they can deliver in the professional regulatory framework. We can use secondary legislation to bring a new profession into regulation and create a new regulatory body, but we do not have equivalent powers to remove a profession from regulation or close a regulatory body and move functions without primary legislation. Widening the scope helps us to ensure that professional regulation delivers public protection more consistently and efficiently, recognising the dynamic, to a degree, nature of evolving professional regulation.

On his concern about abolishing regulators, I know the hon. Gentleman will appreciate that there is no intention of doing that. But he rightly asks, “But what if?” It is the role of the Committee to look at that. Were a regulator to be abolished, that would not necessarily mean that the professionals they regulate would cease to be regulated. Current legislation allows a number of professions to be regulated by a single body, and that creates the mechanism to allow those movements and transfers.

To give an example that some might raise, would that mean that the GMC could be abolished? It is an extreme example, but hopefully it illustrates the point. The scope of the power to abolish a regulator covers all health and care professional regulators. However, the key point is that a regulator will be abolished only if the professions have either been moved to another regulator or removed, or deemed to be removed, from regulation altogether. Any use of this power is subject to existing legislative provision, namely a public consultation and the affirmative procedure. However, to take the example I gave, there are no plans to abolish the GMC, because clearly there would always be a need for continued regulation of medical practitioners. Therefore, given that the GMC regulates them, it would continue to do so.

Underpinning that concern is whether the removal of a specified profession entirely from regulation would increase in any way risks to public safety. Again, a profession would only be removed entirely from regulation following an assessment that showed the profession no longer required regulation for the purposes of public protection and that risks could therefore be safely managed, effectively and efficiently, outside statutory regulation. Given the nature of the professionals that we are talking about here, that would be highly unlikely in any of those spaces and I do not anticipate it. Any use of the power to remove a profession from regulation would be subject to consultation and, again, the affirmative parliamentary procedure.

The counterpoint could be why more professions are not included in regulation. From time to time we debate particular professions as new treatments, such as cosmetic treatments, emerge. Given the risks that some may pose, the question of whether there should be greater regulation then arises. Although statutory regulation is sometimes necessary where there are significant risks in the use of services that cannot be mitigated in other ways, we believe that it is not always the most proportionate or effective means of assuring the safe and effective care of service users. Therefore, each situation needs to be assessed carefully on its own merits. We have seen colleagues from the across the House making the case for regulating different aspects of professions, or service providers that have effectively become professional or are providing a service that is regularly used. Rather than a blanket approach, we believe that remains the right way.

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[Justin Madders]

I beg to move amendment 116, in clause 124, page 106, line 34, at end insert—

“(4A) In subsection (4) in paragraph (e), after “examiners” insert “including the requirement to investigate stillbirths and deaths related to childbirth”.”

This amendment would extend the medical examiner remit to look at still births and maternity cases.

This place has come a long way in recognising, discussing and acting on the tragedy that is baby loss. It has taken us a long time to get there, and there is still a long way to go, but we hope that this amendment will help us to continue on that journey.

The Minister will be aware of the November 2017 announcement on the possibility of coroners being asked to conduct inquests into stillbirths and the subsequent consultation—I believe he was the Minister who initiated that consultation, which was needed. In 2017 the Court of Appeal highlighted the need for reform. It said that the law relating to coronial investigations of stillbirths had not changed since 1887, and:

“Still-birth is a tragedy that continues to befall many families in advanced societies but it was a phenomenon more common in the past… The public interest in establishing whether a child was or was not stillborn, and if it was not how it came by its death, is apparent and continuing.”

I am sure those words will resonate with all Members, who will recognise that during the tragedy of stillbirth, parents will want to know why it has happened to them. Although a coronial investigation is no guarantee that answers will be forthcoming, it may relieve the sense of loss that they feel and may help in some small way.

The Government response to the consultation has been delayed somewhat, and they have said that they are not seeking to replace the role of the NHS in investigating stillbirths, but coronial investigations would

“supplement and support those investigations and ensure that coroners can contribute to the learning and play a role in reducing the stillbirth rate.”

Any update on when the response to the consultation will be published would be appreciated.

In essence, the amendment seeks to build on the comments made by the Royal College of Pathologists, which stated when that announcement was made back in 2017 that medical examiners should in fact play a far greater role in investigating stillbirths, as

“medical examiners are ideally placed to identify trends relating to deaths”

and to highlight areas for further improvement. The Government’s roll-out of medical examiners so far has not included investigations into stillbirths. The purpose of the amendment is to get underneath the rationale for that and to press for the issue to be reconsidered. If we are to have a separate debate on clause stand part, I will leave my comments there in order for the Minister to respond.

[Edward Argar]

I am grateful to the hon. Gentleman for giving us, through amendment 116, an opportunity to debate and discuss this issue. Every stillbirth and death related to childbirth is a tragedy, and it is only right that we remain absolutely committed to supporting parents and families during such a difficult time. However, we are not convinced that this amendment is necessary in order to do that, and I will explain why in due course.

Following the passage of the Bill, the Secretary of State will make, in relation to England, regulations underpinning the medical examiner system, which will set out that the functions of medical examiners include confirming the cause of non-coronial deaths as stated by the doctor on the medical certificate of cause of death. The intention is that that will include confirming the cause of deaths of mothers in childbirth. As part of proposals to improve and digitise the medical certificate of cause of death, we are proposing the introduction of a new section on the certificate that will allow information relating to pregnancy at the time of death to be recorded. Recording information relating to pregnancy on the medical certificate of cause of death will provide a more accurate way to measure maternal deaths, and bring the certificate used in England and Wales in line with certificates used in other countries.

On stillbirths specifically, it is the case that between March and June of 2019, as the hon. Gentleman alluded to, the Ministry of Justice—I was in the Department at the time, as he set out—and the Department of Health and Social Care jointly consulted on proposals for coroners to investigate term or post-term stillbirths. The proposals are intended to improve the independence and transparency of reviews through independent investigation by coroners as judicial office holders outside the NHS. Work on analysing the responses to the consultation was delayed during the covid-19 pandemic, but the Government hope to publish the response to the consultation as soon as possible.

The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 also requires the Secretary of State to make arrangements for the preparation of a report on whether and how the law ought to be changed to require coroners to investigate stillbirths, and provides a power to make those changes within five years. At such a time as the response to the consultation on proposals to provide coroners with new powers to investigate term stillbirths is published, it will be appropriate for the position on medical examiners also, potentially, to be considered.

There are existing processes for investigations of stillbirths, including the perinatal mortality review tool, introduced in 2018, and investigations by the Healthcare Safety Investigation Branch. I would like to highlight the importance of parents having the opportunity to be involved in the reviews and investigations. In early 2018 the perinatal mortality review tool was introduced to support NHS maternity and neonatal units in England, Wales and Scotland to undertake high-quality, standardised reviews of the circumstances and care leading up to and surrounding each stillbirth and neonatal death. The aim of the perinatal mortality review tool is to support objective, robust and standardised reviews to provide answers for bereaved parents about why their baby died, as well as ensuring local and national learning to improve care and, ultimately, prevent future baby deaths.

Since April 2018 the Healthcare Safety Investigation Branch has been responsible in England for all NHS patient safety investigations of maternity incidents that meet the criteria for the Royal College of Obstetricians and Gynaecologists’ Each Baby Counts programme, of which there are approximately 1,000 cases each year. That includes all cases in which a term baby was considered to be alive and healthy at the onset of labour but the birth outcome was severe brain damage, intrapartum stillbirth or neonatal death, and maternal deaths, to identify common themes and influence system change.

Both the perinatal mortality review tool and the Healthcare Safety Investigation Branch provide the opportunity for parents’ involvement in the investigation of stillbirths, which is essential to help provide answers for bereaved parents and to improve care.

I will not prejudge what the response might be to the consultation that we spoke about earlier, but I invite the shadow Minister to perhaps draw his own conclusions about my thinking on this, given that I believe it was my signature on the front of that document and I was the Minister who fought to be able to launch it. On that basis, I gently encourage him to consider not pressing his amendment to a vote on this occasion.

[Justin Madders]

In the light of the Minister’s encouragement, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 124 will amend the statutory medical examiner system in the Coroners and Justice Act 2009 so that English NHS bodies may appoint medical examiners to scrutinise deaths, instead of local authorities. Appointment of medical examiners by NHS bodies will facilitate their access to patient information in order to scrutinise the proposed cause of death while remaining clinically independent of the case. The medical examiner system will introduce a level of independent scrutiny, improving the quality and accuracy of the medical certificate of cause of death and thereby informing the national data on mortality and patient safety.

The medical examiner system will increase transparency and offer bereaved people the opportunity to raise concerns. It will provide new levels of scrutiny to help identify and deter criminal activity and poor practice. New duties on, and powers for, the Secretary of State to ensure enough medical examiners are appointed by English NHS bodies and are provided with sufficient resources and monitoring will help to facilitate and develop this system. As a result of the introduction of the medical examiner system, all deaths would be scrutinised by either a medical examiner or coroner, irrespective of the decision to bury or cremate, thus bringing the system on to an equal footing. I therefore commend the clause to the Committee.

[Justin Madders]

As the Minister has outlined, the purpose of medical examiners is to provide greater safeguards to the public by ensuring proper scrutiny of all non-coronial deaths; to ensure the appropriate notification of deaths to the coroner; and to provide a better service for the bereaved and, importantly, give them an opportunity to raise any concerns to a doctor who was not involved in the care of the deceased. It will also hopefully improve the quality of death certification and mortality data. These are all worthy aims that we can support, so the challenge for the Minister is to set out how the Government will benchmark the success or otherwise of medical examiners in achieving those aims. For example, can he tell us what improved quality of mortality data will actually look like? Does he envisage this leading to further system changes down the line, or is it too early to tell?

Another area I would be grateful for a little more detail about is set out in proposed new section 19(A3) of the Coroners and Justice Act 2009, which gives the Secretary of State the power to

“give a direction to an English NHS body—

(a) requiring the body to appoint or arrange for the appointment of one or more medical examiners,”

setting out the funds and resources that should be made available to such employed medical examiners, or setting out the means and methods that may be employed to monitor the performance of those medical examiners. Can the Minister tell us exactly who that body might be? Does the Secretary of State have a view on how many medical examiners might be needed, and what the appropriate level of funding might be?

I also want to ask about clause 124(8), which amends section 20 of the 2009 Act. That section provides a power to make regulation to require a fee to be payable in respect of medical examiners’ confirmation of cause of death. The clause will require any such fee to be payable to an English NHS body, rather than a local authority. Does the Department have a position on fees? Are they desirable? Has a level been set for them? What consultation has taken place about that level, and indeed the principle of charging a fee? It would be a shame if medical examiners were not accessible to the majority of people because of a barrier being created by a fee. If the Minister could answer those questions, it would be appreciated.

[Dr Whitford]

The recommendation to introduce a medical examiner system was one of the strongest recommendations from the Shipman inquiry, and Shipman was convicted in 2000, over two decades ago. As a professional, we saw an entire industry of appraisals and various other systems introduced to the NHS that took up hours and hours of clinical time, whereas there was nothing to actually review death certificates—either their accuracy or who was issuing them—and to spot unusual patterns. Obviously, it can be the case that a GP practice covers a hospice or some other setting where there are likely to be increased numbers of deaths and, therefore, death certificates, but it has taken an awfully long time to get to this point. Scotland introduced its medical examiners six years ago, in 2015.

The Minister has talked about all certificates being reviewed, but I would be interested to know the degree of depth to which they are going to be reviewed. It is unlikely to be possible to have a detailed inquiry on every death certificate, so in what way will they be streamed for further intervention, review or interaction with clinicians to understand what happened? That may not be clear from just looking at the certificate. Clearly, patterns of certification and patterns of death would become obvious to a medical examiner and may produce very interesting and useful information.

Health and Care Bill (Sixteenth sitting)

Justin Madders Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Dr Whitford]

We are now discussing the health services safety investigation body, and I rise to speak to amendments 86, 91 and 88, which are the main substantial amendments, with amendments 87, 89 and 90 being consequential on those three. HSSIB will not apply in Scotland, but having been a surgeon for over three decades and having been involved in quality improvement and the Scottish patient safety programme, I will be watching it with interest. We want it to succeed, and I am sure the other nations in the UK will want to learn from it, so it is important that it is not simply drowned at birth and that we get it right at this stage.

HSSIB is based on the principles of the air accidents investigation branch, and we on the prelegislative Committee felt that the most central and important part was the safe space protected materials. The main priority is learning from incidents, mistakes and errors and looking at how to prevent them from happening in future; it is not about blaming individuals. That is because most incidents in the NHS are system-related, rather than individual-related. Errors and mistakes will happen, particularly when NHS staff face workforce shortages and are covering more patients than normal. The pandemic might mean that they are working outside their comfort zone. They also work long hours, and sometimes the system will cause a mistake. We should be designing a system that prevents a simple mistake or error from delivering harm to a patient. That is the critical aim, and that has been the focus of the Scottish patient safety programme, which was introduced in operating theatres in 2007, when I was still working as a surgeon.

That programme made the World Health Organisation checklist compulsory. It involved a discussion at the beginning of operation lists and time out with the whole theatre team before the operation started, so that patient safety and the responsibility to prevent wrong site surgery, which the shadow Minister raised previously, is made everyone’s responsibility. The whole team stops and is quiet, and everyone goes through that final check before the operation starts. A former Health Minister from this place visited Scotland but never made that checklist compulsory in England. I do not understand why not.

This issue is not in need of investigation by HSSIB, but it does demonstrate that it is necessary for someone learning from an incident to recognise and admit candidly that they have made a mistake. Such mistakes could include putting the wrong mark on a patient, putting the wrong side on the consent form, or putting the X-ray up the wrong way around. Whatever led to the error, we need people to be willing to completely admit to their mistakes, and to then create systems to prevent that mistake from resulting in harm to the patient. That is why the safe space is so critical—otherwise NHS staff, clinicians, and anyone else involved will not be candid—and it is why the prelegislative Committee felt it was important to be absolutely focused on protecting it. The aim is to design safety nets to protect the patient.

Amendment 86 seeks to change the orientation of the Bill. The Bill defines protected materials very widely and creates exceptions. It implies that other organisations cannot get on with their investigations because HSSIB is getting in the way. The amendment seeks to define protected safe space materials very narrowly. HSSIB would only hold copies of records. That means that the originals—the safe space testimony of witnesses or others —would still be held by the NHS. Patients and families could still give permission for their testimony to be disclosed, thereby avoiding the need to repeat it to another agency, but evidence could not be forcibly disclosed. Other bodies could not use HSSIB as a substitute and say, “Oh well, if you’ve investigated it, we won’t bother. We’ll simply copy what you’ve found.”

Amendment 88 to clause 107 would remove the potential for the Secretary of State to simply expand the disclosure exceptions later on. There is a big list in clause 107 of what could be changed. Schedule 14 lists the authorised reasons and persons who would access disclosure. Amendment 91 seeks to remove coroners from that list. If coroners are given access to testimony, other people do not understand why they should not be given access, too. We have probably all been lobbied about that by the ombudsman and the freedom of information bodies. If that happens—if more people access the safe space raw testimony—it will no longer be a safe space and the system will simply not match the achievements of the air accident investigation branch in getting such frank and candid evidence. People can be summoned and made to respond to factual questions, but will they discuss poor interpersonal relationships in a team, people not working together and all the things that could contribute to a bad atmosphere or system?

In the prelegislative Committee we felt that there were two key reasons for disclosure to go ahead regardless. The first obvious one is if there is an ongoing significant risk to patient or public safety, and the other is if there is a criminal prosecution because of someone’s actions or because they have breached the disclosure rules. The Bill states that access can be granted to safe space materials via the High Court. That is how it is for air accident investigations. It is felt that the High Court will weigh up the importance of admitting the disclosed materials versus the chilling effect that could have on future investigations and people giving evidence to them. It is important to keep the High Court provision in place and to trust it as the main route for other bodies or individuals seeking access to safe space testimony or records.

It is important to recognise that aviation is among the safest industries because of the safe space provided when investigating air accidents. It is not always a matter of investigating catastrophes; it is also about investigating near misses and working out why an accident did not happen. Was it by the grace of God, or did something kick in, and should processes and procedures be changed?

The amendments would strengthen the safe space, help ensure the willingness of NHS staff to come forward to give honest testimony, and protect that testimony so that it could be used to reduce any future harm to patients.

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

It is a pleasure to see with you in the Chair, Mrs Murray. I will speak to amendment 136, as well as the other clauses and amendments in the group. I will not repeat the points made by the Scottish National party spokesperson, the hon. Member for Central Ayrshire, in her excellent introduction, but I will draw the Committee’s attention to a few salient points.

First, amendments 86 and 87 seek to create a new definition of protected material. We support the amendments because, as the SNP spokesperson said, it is important to turn this around and try to create as much certainty as possible by defining protected materials as far as possible. I suspect that the Minister will tell us that the amendments are unnecessary, but we certainly feel that it is better to over-prescribe now than to undercook the Bill and find out in two or three years’ time that some loophole ends up having the chilling effect that we have discussed several times.

I am aware of the counter-argument that there should be no restrictions or protected material if an individual is not capable of being identified, but that is a rather risky strategy. It would not remove the risk of people being able to identify someone simply by working out who was doing what at a particular time and what evidence they gave. It also does not help to build the confidence necessary to deliver the safe space that the Bill is trying to achieve. Certainty and clarity are needed wherever possible, and defining materials that are to be considered a safe space and protected will assist in that aim.

Turning to clauses 106 to 108 on disclosure, it is appropriate to make clear in clause 106 that the disclosure of protected material is prohibited, but we think that clear statement is rather undermined by the ability of the Secretary of State in clause 107 to make regulations to change that. As I have said, the parameters of safe space should be clear, consistent and constant. That is why amendment 86 in particular ought to be supported. The Secretary of State is once again giving himself more powers—a theme we have picked up throughout the Bill—and that is of concern.

Let us not forget that this Bill has been floating around in various guises for about five years, so we do not think it is acceptable or, indeed, necessary for the Secretary of State to reserve for himself greater ability to move the goalposts at some later date. If we do not know now what protected material and safe space are, we are never going to know. Amendment 88 commends itself on those grounds alone. Any ability for the Secretary of State to change the boundaries risks undermining trust and confidence. If those taking part in investigations do not have trust in the safe space provided, it is likely that they will not feel confident enough to be as candid as we would like them to be. If the Minister feels that exceptions are needed, they should be on the face of the Bill; they should not be slipped in by regulations at a later date.

The independent advisory panel of the Healthcare Safety Investigation Branch has also offered a view and stated that staff would not speak up if there was a risk of exposure of identity, and any issues regarding the limits of disclosure are best dealt with by the High Court, not by the Secretary of State in further regulatory procedures.

A related concern on disclosure is that an HSSIB employer who reveals information showing that the organisation itself is failing to properly discharge its responsibilities would commit an offence if he or she knew or suspected that what they were disclosing was protected information. Given the work that they are likely to undertake, I think we can all see that that is likely to be the case. It would not be needed to show that the disclosure had caused, or was likely to cause, harm, and there would be no reasonable excuse defence and no protection under whistleblower legislation. Yet under clause 108(4) a reasonable excuse defence is available to third parties that disclose information to them provided by HSSIB. Will the Minister explain that discrepancy and what protections might be available to whistleblowers who work for HSSIB?

Turning to amendment 91, it is right that considerable concern has been raised about the proposal to allow coroners to access protected material, because it could mean individual coroners routinely requesting material from HSSIB investigations. I hope it is clear to members of the Committee the ramifications that could have on healthcare professionals’ willingness to be fully engaged and open with HSSIB investigations.

Another consideration—and another reason why we think this is a bad idea—is that there is variation in coronial practice around the country. There is a risk that one coroner or region could be more proactive than others, and could undermine confidence in the system as a whole. It is right that coroners have their own discretion and powers, but the chilling effect would be obvious should only one coroner make a stand on a particular issue.

There is also the question of cost. If HSSIB needs to challenge these decisions, which I am sure it will want to from time to time, it will have to spend considerable amounts on legal fees to do so. Surely its resources would be better spent on delivering its core objectives, rather than on trotting off to the High Court every five minutes to deal with inquisitive coroners.

The Joint Committee on the Draft Health Service Safety Investigations Bill concluded:

“We recommend that the draft Bill be amended to put beyond any possible doubt that the ‘safe space’ cannot be compromised save in the most exceptional circumstances, and therefore that the prohibition on disclosure applies equally to disclosure to coroners.”

That is why we believe that amendment 91 should be supported.

I also refer to the evidence submitted by the independent advisory panel of the Healthcare Safety Investigation Branch, which said of the proposal that there is in fact no parallel in the transport sector—from which the idea for this body was originally conceived—and nor is there any evidence from its experience of the transport sector that such an approach would be necessary. Obviously, we are dealing with different orders of investigations. Certainly, the number of people who would die in an air accident is very different from an incident in the NHS, and we would also expect there to be a significant number of patient safety issues that do not apply to the air sector. However, HSSIB has been going for a considerable time and it has not had any circumstances or incidents where it thinks this power would have made any difference.

HSSIB’s approach to protective disclosures does not limit the powers of coroners to conduct investigations in their own way—there is nothing in there that takes away from their current situation. The independent advisory panel also said that areas of prohibited disclosure should be highly specific and as limited as possible, and expressed the view that disputes regarding the prohibition of disclosure should be determined through an independent judicial process in the High Court, which is already provided for in the Bill.

Finally, I will say a few words on our amendment 136, which is a probing amendment. We want to raise the concern articulated to us that, although it is important that any evidence gathered by HSSIB remains protected, for the reasons we have been discussing, there may be occasions when it would be appropriate for some information to be shared with a patient, or the family of a patient, who has been involved in any qualifying incident. I certainly would not envisage such a power being used routinely. Indeed, the amendment places the discretion entirely in the hands of the chief investigator, who may decide not to use that power at all. However, there may be occasions when certain information, handled correctly—and at the very least on condition of confidentiality, and quite possibly with the consent of the individual or organisation that has provided the evidence—could be passed on to those with a direct interest in the matter, whose knowledge and understanding of what had gone wrong would be improved by the disclosure of the information.

That would still not be considered to be admissible evidence for any proceedings. Given the chief investigator’s desire to keep the concept of safe spaces as secure as possible—which should always be the primary consideration—we can see why that might be put at risk, but I want to flag up this as an issue. Patient groups have long-running concerns that the defensive culture that so often pervades the NHS when something goes wrong does little to aid the ability of patients and their families to get to the bottom of what went wrong. There are always concerns about medical negligence or professional competence proceedings, but rarely do families go into these situations looking for compensation. They are far more likely to want an explanation and an assurance that measures are being put in place so that nobody else will have to go through what they have. In any event, the proposed powers are not too dissimilar to those set out in paragraph 2 of schedule 14.

[Dr Whitford]

I want to echo that. I have been involved as an external for significant adverse event reviews, and it has always been my experience that what the family wants to find is that it will not happen again. I therefore feel that we have to trust HSSIB that the duty of candour will mean that there is discussion with the family as we go. That should be the culture across the NHS. The problem is that the more threatened clinicians feel by litigation, the more defensive they become. If the whole orientation can be changed to be about learning and preventing rather than blaming, we will probably get better relationships with families and better, open duty of candour discussions.

[Justin Madders]

I thank the hon. Lady for that intervention, which articulates well what we are trying to highlight. It is a question of culture, which legislation can go only so far in addressing. As a Parliament, we need to address what more we can do to engender greater openness in the NHS. When things go wrong, there are better ways of handling that than what happens at the moment. When we have an £8 billion a year clinical negligence bill, it is incumbent on us all to look at ways that we can reduce that as well as assisting patients and their families to gain a better understanding of what has gone wrong.

[Edward Argar]

It is, as ever, a pleasure to serve under your chairmanship, Mrs Murray.

I am grateful to the hon. Member for Central Ayrshire not just for her amendments but for the opportunity to debate the issue, which goes to the heart of the challenges we face. I think there is broad consensus on clauses up to clause 119, perhaps with a challenge or a tweak here and there, but the provisions that we are considering are the one bit, as I know from the hon. Lady’s work on pre-legislative scrutiny and when the Bill was previously considered, that remains challenging. It is a matter of striking the appropriate balance to ensure the proper functioning of judicial authorities at the same time as achieving the overall objective of what we are trying to do with HSSIB: foster that learning culture, understand what goes wrong and avoid a repetition of it. It ultimately comes down to a subjective view of where that balance is most appropriately struck.

Clauses 106, 107, 108, 109 and 117, and schedule 14, address how HSSIB will protect the material it holds and outline the concept of safe space. Before getting into the detail of the clauses, I want to acknowledge that there has of course been extremely good and well-informed debate outside the Committee about how broad or narrow safe space should be; whether it should be as defined in the Bill with exceptions, or, to use the suggestion of the hon. Member for Central Ayrshire, flipped around to be the converse of that; and the merits of HSSIB sharing or not sharing information with other organisations. I feel it is important to set out how we came to the balance we propose.

The hon. Lady mentioned a previous Minister who visited Scotland. I am very conscious that I have a kind, outstanding invitation to visit from her and I look forward to taking that up at some point soon, I hope. I also spoke to the Scottish Cabinet Secretary for Health and Social Care, who endorsed that invitation. I therefore look forward to being able to come not only to Edinburgh, but possibly to Ayrshire, and finding a way to shoehorn that into the visit.

Key to our vision for a new model for investigations is that they are conducted in a safe space so that patients, families, NHS staff and other participants in an investigation are encouraged to speak freely and candidly and have the confidence that the information they provide will be protected, save in the most exceptional circumstances.

The objective is to encourage that open flow of information and get to the bottom of what may have happened with the best possible information available. Without guarantees that that information will not be shared—again, save in very limited circumstances, which I will come on to—we risk, as the hon. Lady said, eroding the confidence of all those who candidly trust HSSIB with that information.

We propose that information, documents, equipment or other items held by the new body in connection with an investigation will be considered protected material and must not be shared, apart from in certain limited circumstances, such as when necessary to address a serious and continuing risk to the safety of a patient or to the public, and then only to the extent necessary to allow a person to address the risk.

It is also important that people have certainty that the information they provide will not be used for the purposes of blame or liability. The current investigation branch does a good job under the current legislative framework but can only operate a weakened form of safe space. In addition, it has no powers to impose sanctions. We need to address that and put the HSSIB on a par with similar investigation bodies in the transport sector, as colleagues have said. Non-compliance with safe space protections may result in criminal sanctions.

[Edward Argar]

My hon. Friend is absolutely right. I should say that, even now, I am sure that many people in the health sector co-operate voluntarily, even when it is potentially challenging for them to do so. They do so because they want to foster that culture. This proposal will take that a step further forward and make it even easier for people to do so with confidence and to overcome any reticence that might exist because of, as she said, the fear of blame, the fear of opening up about something and the need to protect their sector and organisation, as they see it. She is absolutely right, and the key is to try to create a learning, rather than a blaming, culture. That is why the balance we strike in the definition of the safe space and exceptions to it is so important. We may or may not reach a consensus on where the balance should be struck, but this debate goes to the heart of the efficacy of the new body and how it will operate.

The Bill therefore sets out, on a statutory footing, a much stronger and more robust form of safe space. Clause 106 is the cornerstone of that. It is key to ensuring that all participants are completely candid with the information that they share, and it enables more thorough investigations and the development of meaningful recommendations. Investigations where protected material is held in the safe space should improve openness and co-operation between all participants and identify risks to the safety of patients, so that patients, families and the wider public can benefit from the experience of better investigations, and improvements can be made to the systems and practices in the provision of healthcare in England.

We believe that we have reached the right, balanced position after a lot of careful thought. In dealing with this legislation, my predecessors and I, along with my right hon. Friend the Member for Mid Bedfordshire (Ms Dorries), who is now Culture Secretary, wrestled a lot with the question of how to strike the right balance. I therefore turn to amendments 86 and 87. I am pleased that there is, I think, a consensus among all Members across the Committee that we need to protect materials, and about the value attached to protecting materials in the safe space, which is a key part of our approach to improving patient safety by allowing individuals to feel able to speak candidly.

Amendment 86 seeks to list in detail the types of material that will fall under the definition of protected material, while amendment 87, as the hon. Member for Central Ayrshire set out, is consequential on that. The definition given in clause 106(2) is intentionally broad. HSSIB will carry out a range of investigations, and it would be impossible to identify prospectively, in advance, all the material that will need to be gathered and should be protected by the safe space. By having a broad definition, we can give greater confidence to those who speak to HSSIB that all the material that it collects will be appropriately protected. There are very specific exceptions, which I will come on to.

As a future-proofing mechanism, the materials that are protected have not been listen in detail in the Bill. New technologies and ways of recording data are developing at a rapid pace. It is vital that HSSIB is able to adapt as these developments reach the frontline, rather than having to rely on returning to this House for further amendments to primary legislation. Listing the types of material in detail would have a number of practical implications. If we had a specified list, we could inadvertently leave out material that should be protected, when the vast majority of material the HSSIB will gather would be protected under the current definition. The Government endeavour to get everything right, but, as we all know, often do not.

[Justin Madders]

rose—

[Dr Whitford]

rose—

[Justin Madders]

Does the Minister think that there is anything missing from the amendment that ought to be included?

[Edward Argar]

I will take the intervention from the hon. Lady, and I will address both together.

--- Later in debate ---

The shadow Minister raised a concern about inconsistency in how different coroners in different areas might approach the matter. In a past life at the Ministry of Justice, I had responsibility for the coroners system as a Parliamentary Under-Secretary. Over the past decade, we have seen considerable modernisation of the current coronial system in this country, with the appointment of a Chief Coroner—a role that is assumed by a High Court judge. They have sought to bring much consistency, and there has been training and work with coroners—performance management is the wrong word—from the centre to ensure greater consistency of decision making and approaches. That will reduce the potential for significant inconsistencies or differences of approach—for example, a particular coroner may decide to take a very liberal approach and request all sorts of things, while another may say, “I do not need any of that”—which I think is what the hon. Gentleman is concerned about. A lot of work is being done to secure greater consistency and greater clarity, with guidelines promulgated by the Chief Coroner to deliver that. In this space, I would similarly expect the Chief Coroner to take a very close interest in guiding coroners.

[Justin Madders]

I appreciate the work that has gone into ensuring greater consistency among coroners. The fact remains, however, that, as the Minister said, these are independent judicial positions, and coroners are entitled to make decisions as they see fit. I do not think that that concern has been adequately addressed yet.

[Dr Whitford]

rose—

--- Later in debate ---

I have heard concerns—I think they were behind what the hon. Member for Ellesmere Port and Neston was saying—that the regulation-making power could be used as a way of disclosing information in relation to a particular investigation, or that the Secretary of State could exercise it—arbitrarily is the wrong word—in a way that caused that concern to arise. For the avoidance of any doubt, clause 107(3) provides that the regulation-making power cannot be used in that way. The regulation-making power uses the affirmative procedure, so to would of course be subject to debate by this House and the other place before it was made law, providing a degree of democratic scrutiny.

[Justin Madders]

I understand what the Minister is saying: we need the ability to make regulations to give us some flexibility. Equally, the definition of protected material is broad, to give Ministers and HSSIB flexibility as well. It seems that there is a bit of cakeism going on here.

[Edward Argar]

I think I know what the shadow Minister means by cakeism. I see his point, but I think the Bill strikes the right balance by building in a further degree of flexibility, but with the safeguard of the affirmative procedure. As he knows, because he has debated such things with me in the past, the affirmative procedure is not always a friend to Ministers in obliging them to come to this House and debate and explain everything. It is, however, an important democratic safeguard when regulation-making powers are inserted into primary legislation, and that is why we have adopted the affirmative procedure in this context. I hope that that gives him a degree of reassurance that the Secretary of State’s regulation-making power is simply a future-proofing mechanism, with sufficient parliamentary and democratic safeguards attached to it.

It is crucial, of course, that the integrity of investigations is protected and that we take a careful approach to how information is protected, so that there is public confidence in the work of HSSIB. That goes to the heart of what we are seeking to achieve with this part of the legislation. To ensure that confidence, the Bill provides for the creation of offences for unlawful disclosure. That is the backbone to the creation of statutory safe space. Clause 108 creates three offences of unlawful disclosure. The offences extend to HSSIB and connected individuals, individuals who are no longer connected with HSSIB, and persons who are not connected with HSSIB but receive certain protected material. It is important that we send a robust message that there will be consequences if protected information is disclosed unlawfully. It will be a criminal offence, and the person who commits an offence will be liable on summary conviction to a fine.

Clause 109 prevents a power in any other legislation from being used to require the disclosure of any protected material by HSSIB, or to seize protected material from HSSIB. That is, as we have debated, with the exception of certain parts of the Coroners and Justice Act 2009, which allows coroners to require disclosure in some circumstances due to provisions made in schedule 14 of the Bill. However, that provision respects the devolution settlement agreement and therefore does not apply to any provision that is within the legislative competence of the devolved Administrations. The clause will help to enhance HSSIB’s safe space protections by prohibiting the unauthorised disclosure of protected material. It is important to ensure that safe space cannot simply be breached by the use of a power elsewhere in another part of the statute book, and this provision makes that position entirely clear.

As we have debated, safe space encourages all participants to be completely candid with the information that they share with HSSIB, enabling more thorough investigations into what went wrong. That will also help more widely to protect the “learning, not blaming” culture that hon. Members have spoken about and that HSSIB is hoping to embed.

--- Later in debate ---

[Edward Argar]

The clauses address HSSIB’s relationships with other bodies, including with the devolved Administrations.

Clause 110 places a requirement on HSSIB and a number of listed bodies, including the Care Quality Commission, NHS England and the commissioner for patient safety, to co-operate with each other when they carry out investigations into the same or related incidents. The duty to co-operate relates to the practical arrangements for co-ordinating those investigations.

Clause 110 would not require the sharing of any protected material held under the safe space. It will also require HSSIB to publish guidance regarding when an incident may be considered related to another incident. That will ensure that there is the necessary clarity across all organisations as to when co-operation is required in often complex investigations. HSSIB will, of course, still be able to co-operate with bodies that are not listed in clause 110, and the current investigation branch has already established many strong relationships with bodies not covered in that list.

However, clause 110 is crucial if we are to ensure that there is a consistent and cohesive approach to investigations in the same area or related areas. It is important that we encourage organisations to co-operate in this way so as to ensure that multiple investigations touching on the same incident can be delivered in the most stream- lined way. For example, the clause would compel two organisations that wished to interview the same individual to co-ordinate. Similarly, if two organisations need to visit a clinical area, it is important that they co-operate to minimise the impact on the day-to-day running of that clinical area.

Clause 110 helps to ensure that information is accessed effectively and efficiently. It ensures that organisations can carry out the important but different roles that they have in an efficient manner and also minimises disruption to patients and to others involved.

Clause 111 places a requirement on HSSIB to comply with any request for assistance from a relevant NHS body. That assistance would be in connection to an investigation into any incident that may have occurred during the provision of NHS services or at premises at which NHS services are provided. NHS England or the Secretary of State may also request that HSSIB provides a relevant NHS body with assistance. Assistance can be provided to trusts, foundation trusts, NHS England and the newly formed integrated care boards. Such assistance may include advice, guidance and training for those organisations in connection with an investigation.

The purpose of HSSIB’s investigations is to identify risks to the safety of patients and to address those risks by facilitating the improvement of systems and practices in the provision of NHS services or other healthcare services in England. HSSIB is designed to encourage the spread of a culture of learning within the NHS, and clause 111 allows HSSIB to support others in undertaking investigations and to share knowledge gained from its own investigations. The clause will help HSSIB to promote better standards for local investigations and improve their quality and effectiveness. To this end, HSSIB will disseminate information about best practice and standards to be adopted.

Clause 111 will also enable HSSIB to provide assistance to bodies other than relevant NHS bodies if they request assistance in relation to any matter connected with the carrying out of investigations. That will help to encourage the spread of learning and enable HSSIB to share its expertise across the wider healthcare sector, both within the UK and abroad, if requested. It will be able to charge a fee for such activities. Of course, we would not expect HSSIB to provide such assistance should doing so significantly interfere with the exercise of any of its investigative functions, and protections are included in the clause to ensure this.

Finally, clause 112 enables HSSIB to enter into agreements to carry out certain investigations relating to Wales and Northern Ireland, a provision that the Welsh Government and the Northern Ireland Executive were keen to see included. Those investigations would identify risks to the safety of patients and help to facilitate improvement of systems and practices. Investigations would not assess blame or involve the determination of any civil or criminal liability. It is important that HSSIB has the opportunity to share its expertise and help facilitate greater learning and improvement outside England. The clause allows HSSIB to charge for such investigations in Wales and Northern Ireland but only to cover the costs incurred through the course of the investigation. Of course, we would not expect HSSIB to provide such assistance should it significantly interfere with the exercise of its core investigative functions and, again, protections are included in the clause to ensure that.

These clauses are crucial to ensure that HSSIB has strong working relationships with NHS bodies, as well as regulators and, where requested, the devolved Administrations. I therefore commend the clauses to the Committee.

[Justin Madders]

As we have heard, the clauses deal with the requirement to co-operate and I will not go over the ground that we have already trodden on in respect of degrees of co-operation and how that might make a material difference to ultimate success. We hope that the many organisations listed in clause 110 will respond not simply because of the legislation but because the no-blame culture to which this body aspires is just as relevant to them as it is to individuals.

Is the long list of organisations in clause 110(3) the totality of NHS bodies or bodies associated with the NHS, or with running NHS services? I think the Minister mentioned that there may be others that have been involved but that are not in this list. Has any of them been excluded from the list and, if so, why?

The power to levy charges on NHS bodies for assistance shows why our amendment requiring the creation of the post of chief finance officer would have been sensible. While there are sanctions for individuals who block investigations and there is a debate about where co-operation ends and obstruction starts, I am unclear whether there is a similar sanction that could be imposed on the bodies listed in clause 110. Has the Minister considered that? Is there a process whereby the buck will stop with a named individual in any of these organisations or is that dealt with later in the Bill?

[Karin Smyth]

My point concerns the practical implementation, given the examples where the organisations currently do not work together or share, and the issues about real accountability. I have a case that I have dealt with since 2016, which preceded me by some four years, involving an individual going through the complaints system. It resulted in the parliamentary ombudsman’s report wanting details to be shared between the trust, NHS Improvement and the Care Quality Commission. In August this year, the trust admitted that it had not provided any such details to NHS Improvement or the CQC. There seems to be no recourse in respect of that lack of communication and accountability between the existing organisations.

My concern on co-operation is about adding HSSIB to a system that does not work now in terms of ensuring that recommendations are shared and acted upon. The intent on co-operation in clause 110 is welcome, but what assurance can the Minister give that that wider culture of co-operation, delivery and implementation of recommendations will be improved by the addition of HSSIB? There is an opportunity for HSSIB to do that, but that would require all those other organisations, named and perhaps unnamed, to also look to their own house to make sure that in the interests of those patients the recommendations are acted upon.

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[Edward Argar]

The clauses relate to the oversight of HSSIB’s functions. Clause 113 enables the Secretary of State to direct HSSIB to exercise its functions within a specified time period and in such a manner as the direction prescribes. That direction-making power, on which I suspect the shadow Minister the hon. Member for Ellesmere Port and Neston will question me, will apply only in the event that the Secretary of State considers that HSSIB is failing or has failed to exercise any of its functions, and that that failure is significant. Directions must be in writing and will ensure that appropriate action can be taken by the Secretary of State in the event of any failure on the part of HSSIB to exercise its functions.

Independence as a concept is fundamentally important, and indeed at the heart of HSSIB, and will be a crucial way to ensure that patients, families and staff have trust in its processes and judgments. However, the clause serves to help to safeguard the trust placed in HSSIB by patients and families in the event of its significant failure to exercise its functions. We believe this is a sensible and proportionate provision, which ensures that HSSIB is performing its vital functions. To maintain the independence of the investigatory process, such directions made by the Secretary of State will not be able to influence the outcome of any HSSIB investigation.

We do not expect to use the power—in fact, I hope that we will never have to use it—but it is right that the Secretary of State has the power to act in the event of significant failure. That is consistent with similar existing powers available to the Secretary of State in relation to other non-departmental public bodies, including the Care Quality Commission. Should HSSIB fail to comply with such directions, the clause enables the Secretary of State to choose to make arrangements either to undertake the exercise of HSSIB’s functions themselves or for another body to undertake them. That will ensure that the important investigatory work is sustained and delivered at the appropriate high standard, should HSSIB have experienced significant failures in achieving that.

Clause 114 requires the Secretary of State to undertake a review of and prepare a report on the effectiveness of HSSIB in undertaking its investigation function. That report must be prepared, published and laid before Parliament within four years of clause 94 coming into force, which sets out its investigation function. Given the trust that patients, families and staff will place in HSSIB’s processes and investigations, it is vital that Government is transparent to the public and parliamentarians regarding the performance of the new body. That report will be key to ensuring such transparency and to helping to facilitate learning and improvements within HSSIB. I therefore commend the clauses to the Committee.

[Justin Madders]

As the Minister has anticipated, clause 113 troubles me somewhat. We have talked extensively about the importance of independence and the need for HSSIB to have the confidence of those with whom it interacts so that it is fully effective. Once again, in common with much else in the Bill, we see that the Secretary of State gets to hand himself extensive powers to interfere with HSSIB. Subsection (1) basically places judgment about the exercise of that power in the hands of the Secretary of State. It is his opinion that counts, and no attempt is required to evidence-proof a failing. HSSIB is apparently unable to challenge that judgment. Subsection (5) states that that failure only has to be a failure to exercise its functions properly. That is qualified a little by subsection (1)(b), which says that the failure has to be significant, but unfortunately that is what the Secretary of State considers significant, nobody else. With all that together, the Secretary of State has pretty much a blank cheque to step in and interfere any time he likes, so long as he considers that there has been a significant failure.

However, it gets worse. Subsection (2) allows the Secretary of State to direct HSSIB in whatever manner he determines, which I would have said is about as far away from independence as we can get—until I read subsection (4), which allows the Secretary of State to step into HSSIB’s shoes and do its job himself. I am sure he has other things in his diary at the moment, but the idea that he can come in and undertake the functions of what is meant to be an independent body is simply unacceptable. I can do no better than refer to the evidence that Keith Conradi gave to the Committee:

“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60, Q78.]

The Secretary of State having the power to effectively step in and start running the body, either directly or indirectly, at a moment’s notice, will not help with that freedom. Why does that need to be in the Bill and hanging over the body the whole time?

There is a suggestion that the Health and Social Care Committee would be better placed to administer this function, or at the very least that the Secretary of State should require its agreement before exercising this function. I agree that that Committee might be better placed than one person to have oversight of HSSIB. Perhaps we should consider which group will be best placed to have oversight of HSSIB, to ensure that it is truly independent.

The Secretary of State is tasked with carrying out a review of HSSIB. I am pleased that any subsequent report would be laid before Parliament, but again it is the Secretary of State undertaking that review—his judgment alone. Clause 114 says that the report must be laid within four years of the Bill’s passage. Is there a particular reason why four years was chosen? I am sure the Minister anticipated that question, so I hope he will be able to answer. My reading of the clause is that a report is required after four years, and after that there is no further requirement. It seems rather remiss for there to be no ongoing commitment to review HSSIB.

On clause 113, there are concerns that the oversight of HSSIB will be carried out by the same person who appoints its members, can remove them at a whim, sets remuneration, directs investigations, sets the funding and consents to the criteria of processes. There appears to be a clear conflict of interest. While I accept that there is a role for the Secretary of State, it is not necessary for this role to be so far reaching and overbearing. HSSIB is meant to be an independent non-departmental public body, but the role given to the Secretary of State throughout the Bill suggests that that will not quite be the case. The Bill firmly situates its functions under the Health Secretary, which is far from the definition of a non-departmental public as separate body from the sponsoring Department. Non-departmental public bodies tend to be responsible to Parliament, rather than the Government. Placing scrutiny powers with Parliament and ensuring that a framework document is in place to inform the basis of performance monitoring, rather than placing all the power in the Secretary of State’s hands, would be the best way to achieve this.

I have to say that the fact that the Secretary of State can pretty much pick all the main players in HSSIB does not say much about his confidence in his own judgment about these decisions, if he needs these sweeping powers up his sleeve just in case. I suspect that he was not the person responsible for these appointments, but the point remains that there are still questions over whether this is needed. I know the Minister said that this power would hopefully not be used, but if that is the case, why does it need to be in the Bill?

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[Edward Argar]

I am grateful to the shadow Minister for his comments. I semi-predicted where I thought he might be going with his challenges, and I hope I can offer him reassurance.

First, at the heart of this is the fact that with an NDPB, an executive agency or any other public body, ultimately the Secretary of State is accountable, quite rightly, to this place for the operation of that—not for the operational decisions, but that it functions as an effective public body. Therefore, we never know, but I suspect that there may be a day—not necessarily in the immediate or near future—when the hon. Gentleman is sitting in my office or the Secretary of State’s office, and he would want, quite rightly, where there is a significant failure of an organisation, to be able to take action to address that. That is what the clause provides for.

Those powers would be used only in extremis, and only where

“HSSIB is failing or has failed to exercise any of its functions, and…the failure is significant.”

These are terms of which there is a legal understanding. It is not carte blanche for the Secretary of State, as I think the hon. Gentleman suggested in a debate on a previous clause, to get up one morning and say, “Do you know what I feel like doing? I feel like exercising these powers.” It is not possible to do it in that way. These are understood terms that set a very high bar for interventions.

Secondly, these powers are analogous to similar powers that the Secretary of State has over other NDPBs, or the CQC, as I said in my opening remarks, and other organisations in this space.

[Justin Madders]

I am not suggesting that anyone might wake up in the morning and decide on a whim to do this, but the fact of the matter is that, as the clause is drafted, if the Secretary of State was minded to do that, there is nothing that would stop them being able to do it, is there?

[Edward Argar]

I come back to the point that I have just made to the hon. Gentleman. Terms such as “the failure is significant” are understood terms, and of course public law principles would apply to decisions made by the Secretary of State, such as reasonableness and proportionality. I do think that this is both analogous to powers that the Secretary of State has over similar bodies and also proportionate.

Similarity, I do not believe that the clause questions or brings into question the independence of HSSIB. We recognise that that is fundamental to its success, and that is why it would be used only if the body

“is failing or has failed…and…the failure is significant.”

I come back to those understood terms, and that is a very high bar that would be subject to public law principles.

On the report that the hon. Gentleman mentioned, why is it four years—why not three, two or five? We think that four years is an appropriate and reasonable length of time for the new body to become established and to show what is working and what is not, so that we can see a meaningful report on how it has functioned over a number of years. As he said, the House would have the ability to debate that report, if it chose to do so. The report would be laid before the House and he could call a debate, if he was still in the same role at that point. Given that he has served in his Front-Bench role even longer than I have served in mine, I suspect that, much though he enjoys doing so, he may be hoping for a change by then.

The other point is that, just because this is the only report that is formally specified, it does not mean that there would not be the opportunity for other reports or reviews to be undertaken regularly. As the hon. Gentleman knows, we do that with other public bodies from time to time. It is right that Governments of whichever complexion review the NDPB landscape. We talked about ALBs earlier in our consideration of the Bill, and about the ability to move functions around depending on whether they are best exercised by the existing body or elsewhere, which reflects the same point.

I hope that gives the hon. Gentleman some reassurance that there is no desire on the part of the Secretary of State or me to add to our current workload, or indeed, should the day come, to add to the hon. Gentleman’s workload, were he to occupy this office—or indeed to that of the hon. Member for Nottingham North, whom I would not wish to exclude. The words used and the public law principles that apply would mean that the provisions would be commensurate with the powers over other bodies, and proportionate. I commend the clause to the Committee.

Question put, That the clause stand part of the Bill.

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[Edward Argar]

These clauses cover further detail regarding offences created in part 4 of the Bill and interpreting part 4 of the Bill more generally. Clause 115 specifies that when an offence created by part 4 is committed by a company, an officer of that company may also be liable for that offence. This would be the case where it could be proven that such an offence was committed with the consent or involvement of an officer of the company or that such an offence could be attributable to neglect by an officer of the company. Hence the officer and the company who commit the offence are both liable and can be punished accordingly. Company officers who are liable in such a way would include any person who would purport to act in that capacity, including any directors or managers in the company.

It is important that any offences set out in part 4 of the Bill are capable of being fully enforced, and this means ensuring that the right actors are held to account and are therefore also deterred from committing such offences in the first place. Ensuring that both an individual and an organisation can be held to account shows clearly the commitment to maintaining a high standard of investigation and information protection, and to protecting the principles of safe spaces more widely.

Clause 116 specifies that when an offence created by part 4 of the Bill is committed by a partnership, a partner may also be liable for that offence. This would be relevant in an instance where, for example, a GP partnership commits an offence. The clause allows proceedings to be brought in the name of the partnership as well as the individual partners. Similarly to clause 115, where an offence is committed by an partnership and it can be proven that such an offence was committed with the consent or involvement of a partner or could be attributable to neglect by a partner, the partner and the partnership that commit the offence are both liable and can be punished accordingly. The clause also provides that where a fine is imposed on the partnership, it must be paid out of partnership assets. However, should a fine be imposed on a partner, that fine would be paid by the partner as an individual.

The committing of offences set out in part 4 of the Bill would reduce trust in HSSIB’s investigatory processes, and therefore it is important that the right actors are held to account should such offences be committed. Ensuring that both the partnership and individual partners can be so held to account is important for the same reasons I have discussed in relation to company officers under clause 115. The corporate structure itself should not make any difference: we want to ensure that the investigatory process and the principles of safe space are always upheld and protected. Both clause 115 and 116 are common provisions in relation to offences. They ensure that the appropriate actors are covered, but also add a further deterrent effect that can help avoid offences being committed in the first place.

Clause 118 inserts schedule 15 into the Bill. Schedule 15 makes the relevant consequential amendments to other Acts of Parliament to ensure that HSSIB, as a new non-departmental public body, is referenced in relevant legislation. This includes relevant public body, health, employment and equalities legislation and means that HSSIB must comply with the relevant legislation, such as the Freedom of Information Act.

Finally, clause 119 sets out the defined terms used in part 4 of the Bill. The clause is crucial to ensuring that the HSSIB provisions are correctly interpreted and provides the necessary clarity on key terms. I therefore commend these clauses and this schedule to the Committee.

[Justin Madders]

I am not going to spend an awful lot of time on these clauses and this schedule, because the Minister has set them out very well, but I want to come back to his reference to clause 110 and the obligations on those who hold senior positions in NHS bodies. Regarding offences committed, the Minister said that there would not be the same need for punishments to follow failure to co-operate. I wonder whether that is consistent. Could he set out how offences committed by officers of a body corporate could be equated to offences committed by those who are running NHS bodies, or whether there is any discrepancy there that he would like to address?

[Edward Argar]

I will also endeavour not to detain the Committee for too long. I do not believe there is any discrepancy; I believe there is consistency there. The shadow Minister has highlighted what is essentially a technical point in the read-across between the two, and over the next couple of hours I will quickly check on that to make sure that I am right. I do not think there is any inconsistency there, but he has raised an interesting technical point, and I will review it. I hope he will forgive me if I do not give a technical answer right now, but I may shoehorn it in somehow this afternoon, keeping it in order by relating it to a clause that we will discuss subsequently. That will be a challenge, because we are about to finish the HSSIB clauses, but if there is anything to add to what I have just said, I will endeavour to work it in later this afternoon.

Question put and agreed to.

Clause 115 accordingly ordered to stand part of the Bill.

Clauses 116 to 118 ordered to stand part of the Bill.

Schedule 15 agreed to.

Clause 119 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)