Health and Care Bill (Sixteenth sitting)
Justin Madders ExcerptsTuesday 26th October 2021
(4 years, 3 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 October 2021 - (26 Oct 2021)
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
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.
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.
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.
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.
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?
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.
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.)
Health and Care Bill (Seventeenth sitting)
Justin Madders ExcerptsTuesday 26th October 2021
(4 years, 3 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 October 2021 - (26 Oct 2021)
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.
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.
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?
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.
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.
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 (Fourteenth sitting)
Justin Madders ExcerptsTuesday 19th October 2021
(4 years, 3 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
Edward Argar
I am grateful to you, Ms Elliott, and I challenge colleagues to remember what I was saying just before the Division.
On amendment 130, having the non-executive members remove one of their own members—essentially, their colleague—could very likely create a conflict between board members, because I would not expect that to be an easy decision for any of them. Of course, we want an effective, cohesive and united board with the Secretary of State stepping in only when a real issue needs to be addressed.
We would not expect those powers to be used very often, and ideally they would never need to be used. However, it is important to have those safeguards, which would allow action to be taken quickly should there be concerns about a non-executive member of the board.
Finally, I will speak about amendments 129 and 132 to 135, which look to mandate the creation and role of a chief finance officer for HSSIB. If I have understood the wording of amendment 129 correctly, the intention is to ensure that the chief finance officer of HSSIB is one of the executive members. As HSSIB is an independent NDPB, the recruitment of the executive members will be led by the non-executive members. It will be for them to take decisions about the composition of the executive members of the board, taking into account the balance of skills and experience required to lead the organisation in its vital work.
If the non-executive members were of the view that a chief financial officer’s skills would help the board’s work and complement the knowledge, skills and experience held by the existing non-executive and executive members, this would be a board role. There is nothing in the Bill, as it is currently drafted, to prevent the non-executive members from doing that.
It will be important for HSSIB, as an independent body, to be fully on top of finance and accounting decisions, and that is already reflected in the Bill. The constitution, which is set out in part 1 of schedule 13, includes a number of requirements in relation to funding and finance to ensure that that is managed correctly by HSSIB. For example, paragraph 12(1) of schedule 13 expressly states that HSSIB must exercise its functions economically, as well as effectively and efficiently. Paragraph 16 relates to the use of income from charges, and paragraphs 18 and 19 relate to the accounts of HSSIB. It is for HSSIB to decide how best to ensure it fulfils these duties, but I hope it is reassuring that the constitution underlines the importance of running HSSIB economically and the requirements for annual accounts, as would be expected of a public body.
Amendments 132 to 135 look to remove from the Secretary of State the responsibility to set the remuneration for non-executive members of HSSIB, and to give that power to the chief finance officer instead. The amendments present some challenges, which I will outline here.
In respect of public appointments, the governance code for public appointments states that
“Ministers must be consulted before a competition opens to agree the job description for the role, the length of tenure and remuneration.”
A number of non-departmental public bodies follow this code, such as the Care Quality Commission, the Human Tissue Authority and the Human Fertilisation and Embryology Authority, to name a few. There is no reason why the arrangements for HSSIB should differ from those of other non-departmental public bodies.
We wish to ensure the independence of HSSIB’s board, and I know that hon. Members feel strongly about that, too. Giving a chief finance officer control over the remuneration of non-executive members means that the Secretary of State and, via the Secretary of State, Parliament would not have full oversight of how public money is spent. Although I am sure that the non-executive board members would act with the utmost integrity, we must ensure that the legislation supports them to do so as far as possible, and that we do not deviate from standard practice in public appointments. For those reasons, I ask hon. Members not to press their amendments, and I commend this clause and schedule to the Committee.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this afternoon, Ms Elliot. I am grateful to the Minister for setting out the Department’s position on the clause and the accompanying schedule. The proposed amendments relate to the establishment of HSSIB. As he has said, it builds on the work carried out by the Healthcare Safety Investigation Branch, which was established without statutory basis in 2016 and became operational in April 2017.
The Public Administration and Constitutional Affairs Committee identified in April 2016—more than five and a half years ago—that this legislation was necessary, and I am pleased to see that it is finally being brought forward. The Health Service Safety Investigations Bill, which was introduced in the House of Lords in 2019, did not proceed because of the calling of a general election, on which the Opposition do not wish to linger.
As other members of the Committee may have done, I have raised with the Healthcare Safety Investigation Branch both system-wide issues and individual matters on behalf of constituents. My experience has suggested that there are wider issues that need investigating, so we welcome this opportunity to discuss and set out in legislation the powers and remit of the body.
Unfortunately, some details are lacking from part 4 of the Bill, which we think represents a missed opportunity to set them out a bit more precisely. We should not miss the opportunity to ensure that this body can truly improve healthcare, as we will demonstrate with our amendments, notwithstanding what the Minster has said. We are trying to do our utmost to ensure that HSSIB has the independence, the resources and the influence it requires to operate at its maximum potential. Lessons must be learned from the experience of the Healthcare Safety Investigation Branch, which has undoubtedly had some impact. However, in many ways, its work has not had the impact it might have had, because its reach has been limited for a variety of reasons that are entirely out of its control.
Keith Conradi, the chief investigator of the Healthcare Safety Investigation Branch, touched on that during the second sitting of this Committee, when he commented on how the branch had been operating in shadow form, without any real powers. We have discussed the powers of HSSIB, especially in terms of access to information and compelling people to co-operate with investigations. However, it is what happens after the final report, and ensuring that those recommendations are acted on, that will have the largest impact on patient safety and driving through improvements.
A recent example of the work of the Healthcare Safety Investigation Branch is its investigation into wrong site surgery, through the wrong patients being identified in outpatient departments. The reference for the investigation was evidence from the NHS national reporting and learning system that the incorrect identification of patients is a contributing factor in patients receiving the wrong procedure. The safety recommendation to NHS England was to lead a review of risks relating to patient identification in out-patient settings, and to assess the feasibility to enhance or implement systematic controls such as technological options or the use of the NHS unique identification number. NHS England responded by stating that the work would require an understanding of the true scale and impact of the risks through observational study, which would be resource heavy. It said that, without evidence of the risk, that would did not justify the cost. Hence, the recommendation was considered but not acted on.
The Chair
We now come to amendments 127 to 135, which have just been debated. Does the hon. Gentleman wish to move any of these amendments?
Justin Madders
The Committee will be relieved to know that I will not move every single one of them. What the Minister said about the pre-appointment process is helpful. As my hon. Friend the Member for Bristol South said, it is not a perfect solution—
The Chair
Mr Madders, the opportunity to debate was before. You just need to indicate which amendments you wish to move.
Justin Madders
I wish to move amendments 130 and 131, and I will not press amendments 127 to 129 and amendments 132 to 135.
Amendment proposed: 130, page 204, line 32, leave out “The Secretary of State” and insert
“A majority of non-executive members following a vote”.—(Justin Madders.)
This amendment would give a majority of non-executive members the power to remove a person from office following a vote.
Justin Madders
I beg to move amendment 131, in schedule 13, page 204, line 37, leave out sub-paragraph (4).—(Justin Madders.)
This amendment would remove sub-paragraph 4 from schedule 13 of the Bill, which confers powers on the Secretary of State to remove a person from office in HSSIB.
Edward Argar
This clause sets out what HSSIB will be doing. Its remit will be to investigate qualifying incidents in England occurring in the NHS and also in the independent sector. Its aim is to improve learning from events of harm and reduce the risk of reoccurrence for future patients across the whole health system. The Bill defines qualifying incidents as incidents that occur in England during the provision of healthcare services and that have or may have implications for the safety of patients. Based on its findings, it will be for HSSIB to recommend improvements to systems and practices.
I want to come on to an important point about the role of investigations. The aim of the investigations will not be to apportion blame but to foster a strong learning culture and make sure that, ultimately, patients get the best care they rightly deserve, wherever they are patients. For that reason, we have specified that HSSIB’s investigative function is not for the purposes of assessing or determining blame, civil or criminal liability or action to be taken by a professional regulator in respect of an individual. That important point is reflected throughout the HSSIB provisions, including in respect of the requirements and admissibility of HSSIB reports. I will expand on those points when we reach those specific provisions. I hope that being clear on those points in legislation will foster a culture of openness and continuous improvement and learning, so that the whole of society benefits.
Justin Madders
As we have heard, the clause covers investigations of incidents with safety implications, confirming that qualifying incidents must take place in England during the provision of healthcare services, with the investigations identifying and addressing risks by
“facilitating the improvement of systems and practices”.
I do not know whether the Minister can neatly sum up what “facilitating” actually means in this context, but as we will cover in other clauses, there are certainly some concerns about how exactly improvements will be delivered—some have been touched on already.
Keith Conradi confirmed during his appearance before the Committee that currently, recommendations are monitored “informally” by NHS Improvement, and he suggested that a “pan-regulation-type body” might be needed to consider
“whether the outcome…mitigated the patient safety risk.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 61, Q79.]
That sounds like a suggestion that needs consideration, because it would ensure that recommendations made by HSSIB and the responses from NHS England, or whichever appropriate body is required to respond, are acted on and assessed.
If we are to improve patient safety, it seems unusual not to have any provision or mechanism to follow up on recommendations. Earlier, I referred to the recent investigation into the identification of outpatients, where, sadly, the recommendation was not acted on, largely because of the cost of complying with it. The Bill does nothing to clarify how funding will be made available to act on recommendations from HSSIB on improving patient safety. What mechanism will be in place for when recommendations are not followed, or for when they are followed but do not have the desired effect?
We must avoid the scenario in which HSSIB is essentially a toothless body whose well-intentioned recommendations are simply kicked into the long grass. In response to the Select Committee’s investigation into the safety of maternity services in England, the Healthcare Safety Investigation Branch stated that
“for various reasons, some trusts have struggled to recognise the information we are presenting to them or to prioritise the actions necessary to address the risks. We understand the many pressures on trusts and that maternity services are a product of systems not all within the full control of individual organisations; sometimes solutions do not appear easily achievable.”
In a nutshell, the Bill fails to set out how that very real problem will be addressed under HSSIB, which demonstrates why we have been arguing for further consideration of how monitoring and assessment of recommendations is to be delivered.
Justin Madders
I beg to move amendment 101, in clause 95, page 86, line 37, at end insert—
“(10) Following any direction under subsection (2) the HSSIB may—
(a) request additional funding in order to carry out the investigation; and
(b) at the discretion of the chief investigator, decline to carry out the investigation.
(11) Following any direction under subsection (2) the Secretary of State—
(a) must have no further involvement with how the investigation is pursued;
(b) may not give a direction which directs the outcome of an investigation; and
(c) must have no involvement in the formulation of the investigation’s recommendations.”.
This amendment would ensure that HSSIB would maintain its independence following any direction from the Secretary of State to carry out an investigation and can request additional funding in order to carry out the investigation.
I hope my voice holds out, although I hope I will not be speaking for quite as long on this amendment. It addresses a familiar theme. It seeks to preserve the independence of HSSIB’s decision making, with particular reference to clause 95 (2), which gives the Secretary of State the power to direct HSSIB to carry out investigations.
The Joint Committee on the Draft Health Service Safety Investigations Bill raised concerns about the role of the Secretary of State in making representations about investigating an incident. The Government agreed to remove the mention of the Secretary of State to make it clear that the role would not amount to a direction by a Minister. In that light, it is difficult to understand why the Government have now decided to install a power on the Secretary of State to direct investigations. It is questionable whether such a power is even needed, if HSSIB falls into line with the practice of the Healthcare Safety Investigation Branch, which can accept referrals from anyone. If the Secretary of State has concerns relating to patients, he should surely be able to put those matters to HSSIB anyway, as anyone who has safety concerns can. HSSIB can then reach a decision based on the criteria that it has set out on whether to investigate, which we will return to later.
If HSSIB becomes the investigatory body for the Secretary of State, depending on how often the power is used, that could downgrade other safety concerns and also erode public, patient and staff confidence that HSSIB is a truly independent body. The Joint Committee on the Draft Health Service Safety Investigations Bill commented:
“Our witnesses were united in stating that HSSIB will be neither trusted nor effective unless it is, and is seen to be, independent of both health service bodies…and the Department of Health and Social Care. Only this will provide confidence that HSSIB will neither cover up failures by clinicians and trusts nor conceal issues that might cause political embarrassment.”
By allowing the Secretary of State the power to direct the investigations, trust in HSSIB is brought into question. The amendment would make it clear that if the power is needed—the Minister can try to convince us that it is—HSSIB could request additional funding in order to carry out that investigation, and the chief investigator would have the power to decline to carry out the investigation. It would also ensure that if the investigation does proceed, the Secretary of State has no further role once it has started. If this power is needed, we think the amendment would create sufficient safeguards to ensure the independence of HSSIB, by ensuring that the chief investigator cannot have its own judgment and decisions superseded by the Secretary of State.
Edward Argar
I am grateful to the shadow Minister for bringing this discussion before the Committee today. [Interruption.] I will talk for a little while to allow him enough time to have a glass of water to try to preserve his voice and mine for another few hours at least. As he set out, the amendment seeks to ensure that HSSIB would be able to make its own decision on whether to pursue an investigation requested by the Secretary of State and ask for funding; it would also ensure that if an investigation went ahead, the Secretary of State would have no influence on the detail of that investigation.
I reassure the hon. Gentleman that, as I said earlier, we remain fully committed to the independence of HSSIB, which is of course the reason why we want to establish it as a non-departmental public body with its own statutory powers. Under our approach, the Secretary of State would be able to direct HSSIB to carry out an investigation, but only if there has been an incident that has caused particular concern. The power to direct at subsection (2) is only in relation to carrying out an investigation; it is not about directing the outcome for an individual. That is an important distinction—we can ask them to do it, but it is not about directing the outcome. I believe that is right for the Secretary of State with responsibility for the health of the nation to have a power to direct the carrying-out of an investigation, so that he is able to respond to emergent or ongoing safety priorities or issues of concern, asking that they be considered.
The measure will ensure effective and proportionate accountability between the Department and its arm’s-length bodies, and between the Department and the House and the other place. However, while the Secretary of State may request an investigation, as I have said, he cannot direct the body on how to conduct any particular investigation and will have no role in it, as he does not have any such power. I hope that offers some reassurance to the shadow Minister. The measure therefore does not encroach on the independence of HSSIB’s findings, which are one of the key concerns that the amendments seek to draw out or shine a light on, so I hope I have provided some reassurance.
In addition, should HSSIB wish to discontinue an investigation, it may determine to do so, setting out the reason why it will not be investigating an incident. That would include any investigation, including one requested by the Secretary of State. HSSIB could discontinue an investigation, but would have to explain its thinking, which is not an unreasonable balance to seek to strike.
To turn to the question of funding, the amendment seeks to ensure that, in the case of a request by the Secretary of State to carry out an investigation, HSSIB may ask for additional funding. We have estimated, in our current analysis of workloads, HSSIB is likely to carry out up to 30 investigations a year, which allows sufficient flexibility to ensure that in the event that an investigation requested by the Secretary of State goes ahead, adequate resources remain.
On the process for the Secretary of State requesting an investigation, the limitations on the Secretary of State’s ability to be involved in the investigation, and the ability of HSSIB to determine whether it will pursue an investigation further, I hope that I have offered sufficient reassurance to the Committee. Therefore, I hope that the shadow Minister will consider withdrawing his amendment.
Edward Argar
I take the hon. Lady’s point. That is not the intention, to prejudge or predetermine. It is what is sought with the investigation. I take the point about the language, which is important. The measure in essence requires HSSIB to notify the public that it is looking into a particular circumstance or complaint. I think “issues” still works, but I take her point that we cannot prejudge, and nor should HSSIB, where its investigation is going, which rabbit hole it will take it down, what it might find, but that is a point of language. I hope that I have reassured her, but I accept that we always need to be careful about the language.
Justin Madders
I am grateful for the Minister’s investigation, but I am still not clear why an additional power needs to be set out in the Bill. My understanding is that anyone can make a referral anyway, so why this has to be set out in black and white is a mystery to me. Despite what the Minister has said, it is important to have the amendment in the Bill, because it will give patients and the public confidence that there will not be interference or challenges that undermine the notion of independence. We will press the amendment to a vote.
Question put, That the amendment be made.
Justin Madders
I beg to move amendment 122, in clause 95, page 86, line 37, at end insert—
‘(10) The Secretary of State must by regulations lay out a process to challenge a decision made by HSSIB not to investigate a qualifying incident.”
This amendment would require the Secretary of State to put in place a mechanism through which any decision by HSSIB not to investigate a qualifying incident could be challenged.
We have had some discussion about the matters that may be chosen by HSSIB to be investigated, but it is probably more pertinent for the purposes of considering this amendment that we discuss what happens when HSSIB decides not to investigate. Amendment 122 would require a mechanism to be put in place so that any decision by HSSIB not to investigate a qualifying incident could be challenged. If the independence of the body and faith in its purpose are to be protected, it is essential that there is a mechanism whereby HSSIB decision making can be challenged. That is especially true when we consider the role of families in the investigation process.
My experience with HSSIB came when a patient safety concern was raised by a constituent, and after that concern was not investigated it brought home to me the distress and feeling of being let down by a refusal to investigate. Without a mechanism to challenge such a refusal, faith in HSSIB could be damaged by effectively creating a dead end to further inquiries.
I should point out that in the particular circumstances that I have just referred to HSSIB agreed to a meeting and it set out in more detail its reasons for not investigating, but that might not be possible in all situations. That meeting aided my constituent’s understanding of why their request was refused, but it did not actually mean that they agreed with HSSIB’s decision. Consequently, our view is that there needs to be some sort of process—we do not intend to set out today what it should be—set out in regulations to ensure that those who make a referral have the opportunity to articulate their concerns if that referral should not go on to be investigated. In conclusion, if the purpose of HSSIB is to improve patient safety, we should ensure that collaborative approaches are enshrined in legislation, and we believe that a mechanism along the lines of what we have set out in the amendment would go some way towards achieving that.
Edward Argar
I am grateful to the shadow Minister for setting out the background to his amendment, with which he seeks to ensure that a process is set out in regulations to allow the challenging of a decision by HSSIB when it has decided not to investigate a qualifying incident. However, I have to say that I do not think that this measure would necessarily be proportionate. The Bill already sets out, in clause 95 (8) and (9), that where HSSIB makes a decision not to pursue an investigation, it may explain the reasons behind that decision and communicate those reasons to those people with an interest.
It may be that the Government or others want to understand more about how HSSIB reached a decision, but setting out within regulations a fixed process to challenge HSSIB’s decisions would again risk being disproportionate. If HSSIB discontinues an investigation that it has started, then it must publish a statement that reports that it has discontinued the investigation and give its reasons for doing so. I believe that gives a high level of transparency in that circumstance.
I do not believe that it would be proportionate to take the same approach when an investigation has not even been commenced. The key theme running through these discussions, which we have heard about in our consideration of previous clauses, is the independence of HSSIB, and its ability to determine these matters and make its decisions in an independent way. I fear that this amendment sits slightly uneasily with that principle.
As I said, we intend HSSIB to carry out an estimated 30 investigations a year, so there is not the intention, even at the outset, that HSSIB should investigate all qualifying incidents. It is for HSSIB to determine that, so I do not think it would be the best use of HSSIB and its expertise to go through a formal process to explain why it has determined not to investigate incidents. We want HSSIB’s resource to go into investigating the qualifying incidents that it has determined to investigate.
I suspect we will return to this theme again in the course of our discussions, but I believe it is important that, as the expert body, HSSIB is given the autonomy to make its own decisions about what to investigate. Any such decision would of course need to stand up to scrutiny, and of course, as part of our own arrangements, we will need to ensure consistency, while at the same time ensuring that HSSIB’s autonomy is respected as it should be. That is a difficult balance, but it is one we need to ensure we strike. I therefore encourage the shadow Minister to not press his amendment to a Division.
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
During our debate on amendments 101 and 122, we discussed a number of the key themes that run through clause 95. This clause sets out that, as an independent body, HSSIB will be able to decide its own priorities and determine which qualifying incidents it investigates. We would expect this to be the result of referrals it receives, but also its own intelligence. The clause also gives the Secretary of State powers to direct HSSIB to carry out an investigation when, for example, there has been an incident that has caused a particular concern, and it allows the Secretary of State to request a report to be produced by a specified date.
I appreciate that, as we have heard today, some could argue that the clause could be perceived to encroach on the independence of HSSIB. I hope I set out in my earlier remarks why I do not take that view, and why I believe it is right that the Secretary of State, who has responsibility for the health of the nation, has such a power and is able to respond to emerging, ongoing safety priorities or issues of concern. I believe that this measure strikes the right balance, providing the Secretary of State with that flexibility while ensuring effective and proportionate accountability. HSSIB is not bound to follow the instruction, but it is bound to explain why it deems it unnecessary, or why it has determined it should not pursue a particular investigation request.
Edward Argar
I am very grateful to my hon. Friend for making that point, and I put on record my gratitude—our gratitude—to him for his work, which he alluded to. He is right: one of the key things we would hope HSSIB would seek to do, where it was supported by the evidence, is to join the dots where there is a systemic issue—not just in an individual trust, for example, but an underlying issue for the Department or the NHS as a whole—and be able to reflect that in its decisions on what to work on and how to broaden the scope if it deemed that to be necessary.
Clause 95 provides that whenever HSSIB decides to undertake an investigation, it is required to make a public announcement, setting out briefly what it will be investigating and what it expects to consider during the investigation. I take the point made by the hon. Member for Central Ayrshire: that announcement should give the public an indication of the fact that something is being looked at, but it should not limit which leads—for want of a better way of putting it—HSSIB decides are worthy of investigation and of following. HSSIB will also be able to get in contact in advance with anyone who it thinks may be affected by the investigation. This may, for example, include patients, families or any individual who has referred the incidents to HSSIB, a trust or other healthcare provider.
Finally, there may be occasions when HSSIB decides not to investigate an issue or to discontinue with an investigation. Clause 95 covers those scenarios. If HSSIB decides to discontinue the investigation of an issue, we have set out that it should make a public statement explaining the reasons for doing so. If HSSIB decides not to investigate a qualifying incident, it will be able to give notice of the decision to those who it considers might be affected by it and to explain the reasons to those who have an interest in it.
I hope colleagues on the Committee will agree that the provisions are necessary for HSSIB to be in control of the qualifying incidents and to investigate and to ensure transparency about what investigations are being carried out or discontinued by the agency. We expect that the Secretary of State’s power of direction will be exercised extremely sparingly but it can ensure that crucial patient safety issues can always be focused on where appropriate. I therefore commend the clause to the Committee.
Justin Madders
These processes will be critical if HSSIB is to function properly. The Minister has had three or four attempts to explain why the Secretary the State needs the power to direct when he can make referrals anyway, but we are still to understand why that power needs to be there. If the Secretary of State asked HSSIB to undertake an investigation, it would jolly well get on and do it. That aside, we will not be voting against the clause.
Question put and agreed to.
Clause 95 accordingly ordered to stand part of the Bill.
Clause 96
Criteria, Principles and Processes
Justin Madders
I beg to move amendment 123, in clause 96, page 87, line 22, after “State,” insert—
“(aa) trade unions,
(ab) patients,”
This returns to the issue of the criteria for investigations. If they were set out in the Bill, that would perhaps allow the power to direct to be mitigated in some way. We would then at least know whether the directions given by the Secretary of State were reasonable, judged against HSSIB’s own criteria. There is a void in the clause because it should set out unambiguously what criteria are applied when decisions are made. It is silent on that, and the response might be that that is deliberately so in order that HSSIB be truly independent. That might be a slightly stronger argument if the Secretary of State were not hand-picking most of the main positions in the body.
We have been asked to give HSSIB a blank cheque, but clause 96 says:
“The HSSIB must determine and publish—
(a) the criteria it will use in determining which incidents it investigates,
(b) the principles which are to govern investigations,
(c) the processes to be followed in carrying out investigations”.
We think it not inconsistent with the body’s independence for Parliament to have a role in setting out what those processes will be, particularly if they result from consultations with stakeholders, patient groups, trade unions and so on.
Although I appreciate that subsection (7) requires consultation with the Secretary of State and
“any other persons the HSSIB considers appropriate”
for there to be any revision to criteria, principles and processes, it does not set out a statutory requirement for wider involvement to take place. During consideration of the draft Health Service Safety Investigations Bill, the Royal College of Nursing recommended that consultation on criteria take place with healthcare professionals, patients and families to ensure that any investigation remained patient focused. Given the importance of the criteria in HSSIB’s function and the reach it will actually have, establishing the body without any such framework does not allow it to be scrutinised in the way that we would like.
To return to the point made by the RCN on investigations being patient focused, subsection (1)(d) does allow some limited focus to ensure that patients’ families are involved in investigations
“so far as reasonable and practical”
and that anything published is easily accessible and understood. That is welcome, and it enshrines the recommendations made by individuals, Healthwatch and the Nursing and Midwifery Council to the Joint Committee on the Draft Health Service Safety Investigations Bill. Matthew McClelland, the NMC’s director of fitness to practise, said it was critical to do that to
“put patient voices right at the centre of investigations”.
We wholeheartedly agree. That position is also supported by Healthwatch England, which commented that
“you can learn only if you really engage people properly in that process.”
However, we can see no set role for patient groups in establishing criteria, principles and processes. The Opposition think that side-lining such groups in the legislation sets the wrong precedent for their future involvement. Our amendment would change subsection (7) to create a safety net, ensuring that the patient voice and staff views are at the heart of any further consultations on changes considered by the branch.
Edward Argar
Clause 96 outlines that HSSIB must determine and publish certain criteria, principles and processes, including the criteria that it will use when deciding which qualifying incidents to investigate. The hon. Gentleman’s amendment would require HSSIB specifically to consult trade unions and patients when considering or reviewing criteria, principles and processes. I am not convinced that that is the most appropriate approach.
The clause, which I suspect we will turn to immediately after the debate, includes a number of references to “patients and their families”. HSSIB will need to set out how it will involve them in investigations as far as is reasonably practicable. It will also need to ensure that such processes are easily accessible and understood by families and patients.
I am sure that families and patients will be very much part of HSSIB’s considerations, as they are for the current Healthcare Safety Investigation Branch. However, the decision about who is consulted is best left to HSSIB, which will be best placed to determine who is appropriate. Again, that goes to the point of independence and flexibility to follow the evidence and determine where it thinks is the most appropriate place to go.
Similarly, on trade unions, as I have said in the Committee, while on occasion I suspect I may not agree with them, I recognise the vital role that they play in our country’s democracy. Again, it is important that HSSIB can judge when or whether to consult with them, depending on the issue involved. An approach where some groups are specified in legislation as needing to be consulted but not others may give the impression that some organisations or groups carry greater weight. It is important that, as HSSIB looks at each qualifying incident, it can judge what is the most appropriate balance for consultation.
The amendment would also mean that specific groups would always need to be consulted when it may not be appropriate in each case, dependent on the circumstances under consideration. I therefore think it is right that it will be for HSSIB to make decisions as to who it considers appropriate to consult. I hope that, in the spirit of striking the right balance in preserving HSSIB’s independence, the hon. Gentleman might consider withdrawing his amendment.
Justin Madders
The Minister is right; it should be up to HSSIB to decide who it consults. That is why it is seems superfluous to have a requirement in the clause that it must consult the Secretary of State. However, I cannot imagine a circumstance in which HSSIB would not want to consult him or her. Indeed, I cannot imagine patient groups and trade unions not being part of the conversation in most circumstances. We think we will need to keep an eye on this as matters progress. However, we have made our point and will not press the amendment to a vote, so 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 96 provides that HSSIB determines and publishes the criteria it will use when deciding which qualifying incidents to investigate, as well as the timescales by which investigations will be completed. The clause therefore ensures that HSSIB will be transparent in how it will work and will have the flexibility to determine the most appropriate investigation methods depending on the type of inquiry. The current body, the Healthcare Safety Investigation Branch, has a wealth of experience and has been conducting investigations since 2017, so it already has a solid base to build on to inform the criteria, principles and processes for its future investigations.
Justin Madders
As the Minister said, this is an important clause as it will ensure some transparency in HSSIB’s operation. Like him, Opposition Members welcome the emphasis on patients and their families and on making sure that the body’s processes are accessible and easily understood by them, because that is at the heart of making sure that HSSIB is a success. It will not be successful unless people can see and understand exactly how things have changed. As we know from many tragic cases in the NHS, one of the most important things that families want is to know that things have changed, so that whatever terrible incident happened to them and their loved ones does not happen to someone else in the future.
Question put and agreed to.
Clause 96 accordingly ordered to stand part of the Bill.
Clause 97
Final reports
Justin Madders
I beg to move amendment 124, in clause 97, page 88, line 15, leave out subsection (7) and insert—
“(7) The final report must be sent to the Secretary of State.
(8) Within 12 months of each final report being sent to the Secretary of State under subsection (7), a report must be laid before Parliament setting out the steps the Secretary of State has taken as a result.”.
The amendment seeks to ensure that each investigation report produced by the HSSIB is sent to the Secretary of State, who must report to Parliament on what steps have been taken as a result.
The clause deals with the final reports of HSSIB, which essentially will be about the manner in which improvements to systems and practices can be facilitated by the body. While the provision requires a final report to be published, only in subsection (7) is there a requirement for the report to be sent to the Secretary of State, and only in those cases where a direction has been given by the Secretary of State to investigate. Given the role of HSSIB, and to ensure that its functions are met, the amendment would require all final reports to be sent to the Secretary of State, who must present them to Parliament within 12 months outlining what steps had been taken. That would offer a safeguard and ensure some oversight from Parliament in considering HSSIB’s effectiveness and the improvements being made on patient safety.
As the Joint Committee on the Draft Health Service Safety Investigations Bill commented:
“There was widespread agreement among our witnesses that there would be more confidence in HSSIB’s independence were it to be accountable to Parliament rather than to the Secretary of State. When asked whether accountability to Parliament might not also be seen as political influence, Professor Toft responded that accountability through a cross-party committee was more likely to inspire confidence than to a single Minister, and that a committee was more likely to scrutinise and not to give directions.”
If there is to be faith in HSSIB, we must heed the Joint Committee’s warnings and ensure that the reporting mechanism is sufficient to ensure confidence in the body and to prevent reports from simply being filed away without scrutiny. I hope that the Minister will agree that confidence in HSSIB and its effectiveness to improve patient safety are integral and that he will support the amendment. There has been a little concern about placing requirements on the Secretary of State throughout proceedings on the Bill, so I hope that a requirement for him to present a report once every 12 months would not be too onerous but will be considered an appropriate and acceptable measure.
Edward Argar
Clause 97 deals with HSSIB’s final report following an investigation and sets out what a report should include, such as the overall findings, with analysis of what has happened. If the report concerns an investigation that the Secretary of State directed HSSIB to undertake, HSSIB will be required to send a copy of the report to the Secretary of State. I understand that the purpose of amendment 124 is to require the Secretary of State to consider the report and then report to Parliament within 12 months on what action has been taken as a result. Although I can certainly see that the purpose of the amendment is to ensure transparency, accountability and follow-up, I am not convinced that it is the right way to achieve that understandable and legitimate aim.
We expect HSSIB to conduct about 30 investigations a year, which means that the Secretary of State would need to report on 30 separate reports. I worry that that would be unnecessarily burdensome without delivering significant improvements in patient safety. The final HSSIB report will be published, and we expect that the recommendations will most likely be directed at and actioned by others. Organisations are required to respond to HSSIB’s recommendations, and HSSIB may publish those responses. Therefore, it is not necessary for the Secretary of State to publish an additional report, particularly if there is no action for the Secretary of State to take following HSSIB’s recommendations.
Parliament will be able to use its normal routes to hold Ministers to account and ask what progress has been made following these reports, which of course will be published by HSSIB and open to public scrutiny. I do not consider it necessary for HSSIB to send the Secretary of State a copy of the report, as this will be available to everybody without that additional step. I will therefore encourage the shadow Minister to consider withdrawing his amendment.
Justin Madders
The Minister makes some fair points, and we are aware that there are other channels to pursue these matters. However, it did seem a bit incongruous that the Secretary of State would have certain requirements on him if he directed a report but not otherwise. Again, we will see, as the body moves forward over the next few years, whether the scrutiny arrangements in place are indeed effective, so we will not press the amendment to a vote. 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 97 deals with HSSIB’s final report following an investigation. It sets out that a report should include the overall findings, with analysis of what has happened. It is important that the emphasis of any such report is put on identifying risks to the safety of patients and addressing those risks by facilitating the improvement of systems and practices in the provision of NHS services or other healthcare services in England. Therefore, HSSIB should include recommendations about how any risks should be addressed. If an investigation has been commissioned by the Secretary of State, HSSIB will be required to send a copy of the report to the Secretary of State.
As I have mentioned previously, we are clear that the purpose of any investigation is to address issues so that we improve patient safety. We want to ensure that the NHS gains as much as it can from all investigations, even if they may not always relate to the NHS. The clause therefore sets out that if the investigation relates to an incident that has not occurred during the provision of NHS services, HSSIB must consider whether the systems and practices in the provision of NHS services could be improved.
The clause also sets out that there should be no assessment of blame, civil or criminal liability, or whether regulatory action should be taken against an individual in the report. That is not the role of HSSIB investigations, and any such assessment would discourage individuals from speaking candidly to HSSIB and could result in lessons not being learned. HSSIB plays a complementary but very different role from the police and regulators. Finally, the clause allows HSSIB to release protected material as part of the report if certain criteria are met.
The purpose of this clause is to set out the expectations on reporting from HSSIB following an investigation. I therefore commend it to the Committee.
Question put and agreed to.
Clause 97 accordingly ordered to stand part of the Bill.
Clause 98
Interim reports
Question proposed, That the clause stand part of the Bill.
Edward Argar
These clauses continue on the same theme as clause 97 and focus on HSSIB’s reports. I turn first to clause 98, which essentially allows HSSIB to publish an interim report with findings, recommendations and conclusions before the final report. The aim of the interim report is to address urgent risks to the safety of patients or issues that are known early in an investigation, so that swift action can be taken and lessons can be learned across healthcare systems as findings emerge.
Clause 99 requires HSSIB to share a draft of an interim report or a final report with those who are likely to be adversely affected by it, and to seek their comments—that might be NHS staff or other participants. HSSIB may also share a draft report with any other person who they believe should be sent a copy, which might include patients and families. That is to ensure that the interim and final reports are robust and an accurate reflection of what has happened, adding to the rigour of the investigation. It also gives individuals an opportunity to respond to adverse findings in advance of publication of the report.
Clause 100 describes what needs to happen once an interim report or a final report is published by HSSIB. It requires the addressees of the report to provide a response to the recommendations within the timeframe specified by HSSIB, and HSSIB may publish the response. The clause will ensure that it is clear and transparent what actions will be taken to address the recommendations. The clause is drafted to ensure that it does not encroach on the devolved competence of Wales. For example, the duty to respond to recommendations would not apply to any body that is or could be established by the Welsh Parliament. HSSIB may still make recommendations to persons in Wales, and certain types of organisations would be required to respond—for example, a private sector organisation in the health sector. The clause will ensure that there is follow-up to the recommendations in the report from HSSIB.
Finally, clause 101 sets out that unless the High Court makes an order to the contrary, final and interim reports prepared by HSSIB following an investigation, including drafts of the reports, are not admissible in proceedings to determine civil or criminal liability, proceedings before any employment tribunal, proceedings before a regulatory body—including proceedings for the purpose of investigating an allegation—and proceedings to determine an appeal against a decision made in any of the above types of proceedings. That is a demonstration of our commitment, as mentioned before, that we want the investigations to provide useful learning and foster a continuous improvement mindset for the benefit of all patients, rather than apportion blame.
There may be circumstances whereby a person involved in the above proceedings applies to the High Court for the report to be admissible. In that case, it will be for the High Court to determine whether it is in the interests of justice for such information to be made admissible, using the test set out in the Bill: whether the interests of justice are served by admitting the report and outweigh any adverse impact on investigations by deterring people from giving information to inform an investigation and any adverse impact on securing the improvement of the safety of healthcare services provided to patients in England. I suspect this is a theme that we will explore when we debate subsequent clauses and amendments. I know that the hon. Member for Central Ayrshire will wish to explore it further when we reach those clauses.
Clause 101 clarifies the circumstances under which a report can be used in legal proceedings. It is an important element of ensuring that safe space works in the way we intend, strikes an appropriate balance and encourages individuals to speak to HSSIB in a candid way. However, we rightly also provide the High Court order safeguard, so that the interests of justice can also be taken into account where appropriate. We believe that strikes an appropriate balance in this particular context, and that these clauses set out important provisions regarding HSSIB’s reports. I therefore commend the clauses to the Committee.
Justin Madders
I am grateful to the Minister for setting out the provisions here, and the ability to produce interim reports under clause 98 is welcome. We can all envisage circumstances in which such action would be of benefit. I note that the requirement to circulate the report to all interested parties in draft form also applies to interim reports. On clause 99, which is about draft reports, I agree that it is right that HSSIB should be able to judge for itself to whom it is appropriate for the draft report to be made available. Under clause 99(4), however, is there a need for comments that are not accepted in the draft stage to be published alongside HSSIB’s response, explaining why those comments have not been accepted at the same time as the final report is published? I do not think that is something that needs to be prescribed in legislation, but it may be something that HSSIB considers doing in some form, and I would be grateful for the Minister’s comments on the desirability or otherwise of such a move.
Edward Argar
I take the hon. Lady’s point. As I set out in response to earlier amendments and preceding clauses, I believe that we have struck the right balance on the obligation to respond and act, but I acknowledge, as I frequently do in these Committees, her expertise, particularly in this area, having sat on the Committee that previously considered the matter. I think that we have struck the right balance, but I am always happy to reflect further.
I can give the hon. Member for Ellesmere Port and Neston, within bounds, the reassurance, or agreement with what he is saying, that he seeks, with a caveat: I would hope that transparency and publication should be at the fore, but in doing that, and determining the other points that he raised, as he acknowledged that is for HSSIB to reflect on and consider within the context of its independence. I would hope, and expect, that it would consider extremely carefully exactly such points as those that he made, because they sounded like sensible points, as is often the case with him.
Question put and agreed to.
Clause 98 accordingly ordered to stand part of the Bill.
Clauses 99 to 101 ordered to stand part of the Bill.
Clause 102
Powers of entry, inspection and seizure
Justin Madders
I beg to move amendment 125, in clause 102, page 90, line 21, leave out subsection (6).
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 103 to 105 stand part.
Justin Madders
Clause 102 deals with power of entry, which amendment 125 seeks to qualify somewhat. There is no doubt that these powers are necessary. The evidence that Keith Conradi gave to the Committee was that HSIB would have liked to have had the powers already, so it welcomes their inclusion in the Bill. One would hope that the need for compulsion and the use of force, as set out in the clause, will be rarely needed, but time will tell. Of course, we would expect such powers to be exercised proportionately and reasonably in any event.
Our amendment would delete clause 102(6), which once again appears to place significant powers in the hands of the Secretary of State, effectively enabling them to block any investigations or inspections that HSSIB might want to undertake under the clause on the grounds of national security. Of course, we are not suggesting for a minute that national security issues are not a legitimate issue for the Secretary of State to be concerned about, but I really am struggling to think of a situation where investigations in the NHS on issues of patient safety could also properly be considered matters of national security. If the Minister can provide me with a list of patient safety incidents in recent times in which investigations have not been concluded because national security implications have intervened, we will reconsider our objections to subsection (6). On the face of it, however, it just looks like another unnecessary power grab by the Secretary of State that again risks compromising the independence of HSSIB.
It is also a concern that there appears to be only one person who can decide whether something is a matter of national security. That person is the Secretary of State. He and he alone decides what is a national security issue and members of the Committee will see how that means that we have to place a lot of trust in someone who should not really get involved in these investigations. Why is it this Secretary of State and not the Home Secretary or the Defence Secretary who might be better placed to judge matters of national security? Why have this power at all? We are asking what the real or imaginary problem is that this power is attempting to solve.
Clauses 103 to 105 provide a power to compel individuals to co-operate. We hope that, as time moves on, we see the need for that power to be used less and less. I hope that we all want to see over time a shift away from the defensive culture that sometimes pervades the NHS. The adage that one volunteer is better than 10 pressed men applies here. Some of the softer issues that may arise around the organisation may come out more easily in the context of someone being able to talk candidly and voluntarily about their experiences. I accept that not everyone will feel comfortable doing that, which is why the powers may be necessary, but the key is not the power to compel people to give evidence but the power to instil confidence that there is a safe space for discussions on patient safety.
Dr Whitford
Does the shadow Minister agree that this relates to the whole issue, which we will come on to shortly, of protecting the safe space and the protective materials that go along with that? Some of the discussions may involve someone revealing their own errors or weaknesses or talking about interpersonal relationships. They are very sensitive issues that we cannot compel someone to talk about. We can make someone turn up, but we simply cannot compel them to discuss things that make them feel more vulnerable.
Justin Madders
The Scottish National party spokesperson sets out very well why we do not want the power to have to be used any more than is necessary. The quality of the investigations would not be as good as we would want and lessons may not be learned that could otherwise have been learned.
I have a few questions for the Minister on some of the specifics in the clause. Under clause 103(1)(a), the requirement is that a person must attend
“at a specified time and place”.
I would expect such a request to be given with reasonable notice and to take place at a reasonable time. It does not state that in the Bill, but one would hope that that is a given. Anything that the Minister can say on that would be helpful. It also raises the question about whether such a request could be blocked by an employer requiring a person to be in work at the same time. Clearly in those circumstances, the employer may have an interest in the investigation as well. Will the Minister say something about guidance being issued on the importance of ensuring that individuals who receive such requests are in fact supported by their employers to comply with them?
If someone attends an interview, do they do so alone or do they have the right to be accompanied by a work colleague, a trade union rep or even a lawyer? They may not want any of those people there but, given that one of the grounds for refusing to comply with a request under subsection (3)(c) is that documents are protected by legal professional privilege, I suggest there might be a role for the legal profession. I am not trying to generate more work for my former colleagues when I say that.
Is there a reason to challenge such a request? If we are in the realms of compulsion, the person will probably be not the most useful person from which to obtain information. They may have health issues or other legitimate grounds for declining the request, so what do they do in such circumstances? If the Minister could provide any insight on that, it would be useful.
Finally, I want to ask questions about the criminal offences set out in clause 105. It is probably right that there should be a sanction on those who obstruct and those who refuse to comply or, indeed, provide false or misleading information. Subsection (5) says there will be a fine, but what level of fine does the Minister envisage it will be? Does he have a view on whether an act that leads to a fine might also constitute professional misconduct if the individual were a member of a royal college, for example? A referral to the regulator might have a more powerful effect than a fine. Those are a few matters for the Minister to consider and I hope that he will address them in his response.
Justin Madders
In the light of the Minister’s comments and his expectation that the powers will rarely be used—we will hold him to that—I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 ordered to stand part of the Bill.
Clauses 103 to 105 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned—(Steve Double.)
Oral Answers to Questions
Justin Madders Excerpts(4 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Edward Argar
The short answer is that it looks as though I may be going on tour in the coming months, and I am delighted to accept my hon. Friend’s kind invitation.
Justin Madders (Ellesmere Port and Neston) (Lab)
With a £9 billion maintenance backlog, examples of which we have heard this morning, it is truly mind-boggling that the Department’s priority has been to try to change the definition of what a new hospital is, so let us cut out the spin on 48 new hospitals. Can the Minister tell us, of those 48—if we take out all the projects under way before the announcement was made, and those that are new wings, extensions or refurbishments of existing buildings—exactly how many new hospitals will be built by 2030? It is not 48, is it?
Edward Argar
I am grateful, I think, to the shadow Minister. We have a very clear definition of a new hospital, which I believe is shared by the public. It also leans on VAT notice 708 and its definition of what constitutes a new build or a refurbishment. To his specific question, we are committed to our manifesto commitment of 40 new hospitals by 2030—we build, the Opposition complain.
Health and Care Bill (Twelfth sitting)
Justin Madders ExcerptsThursday 23rd September 2021
(4 years, 4 months ago)
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Karin Smyth
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 ordered to stand part of the Bill.
Schedule 11 agreed to.
Clause 68
Procurement relations
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move amendment 95, in clause 68, page 61, line 32, leave out “health care services” and insert “services required”.
The Chair
With this it will be convenient to discuss the following:
Amendment 99, in clause 68, page 61, line 35, at end insert—
“(1A) The regulations must provide that no contract for the provision of the services specified in subsection (1)(a) and subsection (1)(b) may be awarded other than to a relevant authority unless a formal competitive tendering process provided for by the regulations has been followed.”
Amendment 96, in clause 68, page 62, line 1, at end insert—
“(3A) The regulations must—
(a) include the power for integrated care boards to continue to commission the services provided by an NHS trust or Foundation Trust without any requirement for any re-tendering process,
(b) require that, prior to commencing any formal procurement process for a service provided by an NHS provider, where the contract value exceeds a threshold set by the relevant integrated care partnership, the integrated care board must conduct a public consultation and publish the business case for opening the service to a competitive tender process,
(c) require an assessment to be made of alternative ways of providing a service using NHS providers before a contract with a non-NHS provider may be extended or renewed,
(d) be based on the assumption that the NHS is the preferred provider of services, and
(e) require providers to pay staff in line with NHS rates of pay and to provide terms and conditions of employment at least equivalent to NHS terms and conditions.
(3B) NHS England must publish a report each year on the proportion of contracts subject to the regulations which are awarded to each of NHS, third sector, local authority and independent sector providers.
(3C) NHS England and each integrated care board must publish a plan every three years on reducing the provision of NHS services by private providers and increasing the capacity of NHS providers to provide those services.
(3D) Integrated care boards must publish, in full and without any recourse to commercial confidentiality, all—
(a) bids received for contracts,
(b) contracts signed, and
(c) reports of routine contract management.”
New clause 12—NHS as the preferred provider of NHS contracts—
“(1) The NHS is the preferred provider of NHS contracts.
(2) NHS contracts must be provided by NHS suppliers unless the NHS supplier is unable to fulfil the terms of that contract.
(3) Where the NHS is unable to fulfil the terms of a contract, a competitive tender must be held to identify an alternative provider.
(4) For the purposes of this section—
(a) ‘alternative provider’ means private companies and independent sector treatment centres, and
(b) general practice and GP-led community services are NHS suppliers.”
This new clause would establish NHS suppliers of services as the preferred providers of NHS contracts. Independent sector providers could hold NHS contracts after winning a competitive tender.
Justin Madders
It is a pleasure to see you in the Chair this afternoon, Mr McCabe. We have arrived back at the start: the need to end the bureaucratic, expensive and ultimately corrosive requirement for compulsory competitive tendering for health services, which led the drive from NHS England and its former chief executive to first ignore the Lansley Act and ultimately push for its repeal. It turned out that trying to implement the requirements of that Act gave rise to all the problems the Opposition foresaw a decade ago.
Has the Minister seen any impact assessment of the benefits to the NHS of removing the requirements? Is he able to give us a total amount of the cost to the NHS of this folly over the past decade? Is he able to quantify exactly how much public money has been spent on lawyers and consultants going through all the hoops that were laid down by Lansley? I am not just talking about the extra work in putting the contracts out to tender in the first place, never mind the millions that will have been spent on defending and justifying decisions taken from disappointed bidders, which is a big part of it as well. Let us not forget that, as a result of that legislation, we had the obscene spectacle of the NHS being sued by Virgin Care. That certainly was not one of the benefits trailed by the Government of the time back in 2012.
Justin Madders
I picked up some interesting points. There was, I think, some common ground with the Minister about the mistakes of the past. From the contribution of my hon. Friend the Member for Bristol South, I think we have found one positive aspect of section 75, which is that it brought her to this place. At last, there is something positive to say, because we do not mourn its passing. As she said, at the time, not a single ounce of support existed for those rules outside of the coalition Government, but we will not go over all the old ground again.
In his response, the Minister talked about the “any qualified provider” regime that was introduced in 2009. My understanding is that, had we been successful at the 2010 election, we would have moved to “a preferred provider”, but, of course, when we look at the commitments made in 2010, we can forget David Cameron’s promise not to reorganise the NHS. We will see whether the Minister’s promises in respect of that are as robust.
The Minister says that what matters is the best outcome for patients, and we absolutely agree with that. We think that the best outcome for patients will be stability and a regime in which the NHS is the preferred provider, because all the evidence points to better outcomes for patients.
I am grateful to the Minister for not characterising me as dogmatic, because I do not wish to be. I wish to be pragmatic. The idea of putting into the Bill some requirements about what we expect from the regulations is a perfectly reasonable position to take, but until we see those regulations, we cannot be sure about what they will include. By supporting the amendment, what we hope to include is a base position that injects a degree of transparency, which is what has been lacking over the past 18 months, and the Bill clearly fails to refer to any particular issues in that regard. Our view is that the purpose of this Bill should be to reinforce the NHS—to bolster it—by using a preferred provider, which is why we wish to put our amendment to a vote.
Question put, That the amendment be made.
Edward Argar
I will be brief because we covered key aspects of clause 68 in debates on the amendments. The clause inserts proposed new section 12ZB into the NHS Act 2006. Section 12ZB allows the Secretary of State to make regulations setting out the regulatory framework for the procurement of healthcare services, to better meet the needs of the NHS.
Section 12ZB provides further information about the content of those regulations. They may contain provision in relation to the objectives of procurement, and they may contain provisions ensuring transparency, fairness and effective management of conflicts of interest, as well as provision for the purpose of verifying compliance with the regime. The new section also allows for NHS England to publish guidance about compliance with the new procurement requirements to which relevant authorities, as defined in the section, must have regard.
The NHS has sent us a clear message that the current regime for arranging healthcare services is not working. It is confusing, overly bureaucratic and does not fully support the integration and efficient arrangement of services and collaboration in the best interest of patients, which, of course, run through the Bill like a golden thread. Through the clause, we will develop a new provider selection regime for the NHS and public health—a bespoke NHS regime that will give the NHS and local government more discretion over how they arrange healthcare services. Informed by the consultation run by NHS England earlier this year, it will aim to enable collaboration and collective decision-making—recognising that competition is not the only way of driving service improvement. It will aim to reduce bureaucracy on commissioners and providers alike, and to remove the need for competitive tendering where it adds limited or no value.
We recognise that in many cases competition can be beneficial for procurement. Where a competitive tender is the best way for an NHS commissioning body to secure value and quality in its healthcare provision, it will be used. However, it will no longer be the default that contracts in the NHS are automatically put out to tender. All decisions about provider selection will continue to be made in an open and transparent way, considering key criteria and applying them to decision making, in the best interests of patients and the taxpayer. I commend the clause to the Committee.
Justin Madders
I will not repeat all my comments from earlier, to save the Committee’s time. I have two remaining specific questions, which I hope the Minister can address. The clause says that regulations “may” be produced. Can he state for the record that there will be regulations? Can he also give us some indication of when they are likely to be made and when they are likely to take effect?
Edward Argar
I can reassure the hon. Gentleman that “may” is the technical language used in drafting such legislation, but we intend that they will be made. I am afraid I will disappoint him on the second part of his question, because I would not presume to say exactly when; that will be down to the passage of this legislation and then the usual wait and the discussions through the usual channels on securing an appropriate slot for the regulations. I hope I have given the hon. Gentleman a modicum of reassurance.
Question put and agreed to.
Clause 68 accordingly ordered to stand part of the Bill.
Clause 69
Procurement and patient choice: consequential amendments etc
Justin Madders
I beg to move amendment 97, in clause 69, page 62, line 26, at end insert—
“(1A) In the National Health Service Act 2006, in section 272(6), after paragraph (za), insert the following paragraph—
‘(zaa) regulations under section 12ZB,’”.
This amendment would require a draft of procurement regulations under new section 12ZB of the National Health Service Act (inserted by clause 68) to be laid before, and subject to approval by resolution of, each House of Parliament.
I will not detain the Committee long on this amendment. Following on neatly from our previous discussion, it requires that the regulations, which I am now assured will be produced, are subject to a resolution of approval by both Houses. I do enjoy spending time in Delegated Legislation Committees with the Minister, and I hope we will be able to do that again as a result of this amendment’s being accepted.
Edward Argar
I am, as ever, grateful to the hon. Gentleman. The amendment would require a draft of procurement regulations under new section 12ZB of the National Health Service Act to be laid before, and subject to approval by resolution of, each House of Parliament. As set out in our delegated powers memorandum, the powers created by clause 68 amend the NHS Act 2006. In line with the vast majority of regulations made under that Act, these powers will be subject to the negative procedure in section 272(4) of that Act.
As demonstrated by the passage of the Health and Social Care Act 2012, there is significant parliamentary interest, both in this House and the other place, in the rules for determining how healthcare services are arranged. However, it is vital that we strike the right balance between democratic scrutiny and operational flexibility. The negative procedure provides that balance, ensuring transparency and scrutiny, while also providing sufficient flexibility to ensure that the regulations continue to drive high-quality services and value for money.
We have consulted extensively on the proposals for these regulations to ensure that we are delivering the flexibility, transparency and integrated approach that the NHS has asked for. The engagement exercise undertaken in early 2019 collected views from across the health sector, and the proposals put forward by NHS England around procurement gained widespread support, with 79% of respondents agreeing or strongly agreeing with the proposals.
Earlier this year NHS England consulted on further detail of the proposed regime that should apply when healthcare services are arranged in future, following removal of the current requirements. NHS England received a range of responses from NHS national and representative bodies. In addition to written feedback, it met NHS colleagues and external stakeholders. We have been and continue to be as transparent as possible in our approach to these proposals. Therefore, I suggest that the hon. Gentleman amendment’s is unnecessary.
Justin Madders
In the light of the Minister’s comments, 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
I will be very brief. The clause will remove the specific healthcare procurement rules that currently apply to NHS commissioners when arranging clinical healthcare services. Specifically, it will repeal sections 75 to 78 and schedule 9 to the Health and Social Care Act 2012 and revoke the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013. It also makes other minor, consequential amendments in relation to these changes and the introduction of the power to make a new provider selection regime for procurement of healthcare services under clause 68.
Edward Argar
I will try to be as brief as I can, while giving the Committee the information it wishes to have.
This package of measures is aimed at promoting collaboration in the NHS, reflecting a shift towards integration between commissioners, providers and other partners as a way of improving the healthcare people receive. Clause 70 allows for the removal of Monitor and the Competition and Markets Authority’s duties to co-operate in the exercise of their functions as concurrent competition regulators. Instead, they are replaced with a duty on NHS England to share regulatory information with, and provide assistance to, the CMA where the CMA requires it to exercise its functions.
Clause 71 removes the Competition and Markets Authority’s role in reviewing mergers solely involving NHS foundation trusts, NHS trusts or a combination of both. The CMA has led a number of investigations into NHS provider mergers or acquisitions in recent years. Although it has approved all but one merger, the investigations have been costly and time-consuming for the organisations involved.
We recognise the CMA’s important role in investigating alleged infringements of competition law and particular markets if it sees issues for consumers with reducing competition. However, as has been alluded to, the NHS is not a true market, and it has become clear that the CMA is not the right body to review NHS mergers. Instead, NHS England will continue to review all NHS provider mergers to ensure they have clear benefits for patients and the taxpayer. The CMA will retain its merger control powers in relation to the private healthcare and pharmaceutical industries, where competition plays a greater role. The NHS should be able to make decisions about provider mergers itself. Without this clause, NHS provider mergers will still be subject to costly, time-consuming investigations.
Building on the experience of the last few years, the Bill will clarify the central role of collaboration in driving performance and quality in the system. As part of that, under clause 72, we are looking to remove Monitor’s role as a concurrent competition regulator. However, although we are removing Monitor’s competition regulation functions, it is right that NHS England should continue to share regulatory information with and provide assistance to the CMA so that the CMA can carry out its functions. The clause will ensure that the CMA has the information and assistance it needs to do that in respect of its competition functions to prevent anti-competitive behaviour in the wider sector. That will ensure that the CMA can continue to make sure that the healthcare sector works for consumers, patients and the taxpayer.
The clause removes Monitor’s competition functions, which it exercises concurrently with the CMA. It also inserts schedule 12, which makes consequential amendments in relation to the removal of Monitor’s competition functions. The Health and Social Care Act 2012 allowed Monitor to exercise some of the functions that the CMA holds under the Competition Act 1998 and the Enterprise Act 2002, but solely in relation to the provision of healthcare services in England. Those included powers to take action on anti-competitive agreements and conduct in the sector and powers in relation to mergers in the sector.
The Bill will enhance collaboration between different NHS commissioners, providers and local authorities. We therefore expect that NHS England’s primary role, following its merger with Monitor, will be to support commissioners and providers to deliver safe, effective and efficient care, rather than to act as an economic or competition regulator.
While competition will continue to play an important role, including through patient choice and the new provider selection regime, it is right that the duties and role of the merged NHS England give greater weight to fostering collaboration and integration rather than enforcing competition, and that competition regulation is left to the CMA. The concurrent competition duties and functions of Monitor should therefore be removed. Schedule 12, inserted by clause 72, makes the necessary consequential amendments to take account of the removal of Monitor’s competition functions. The clause allows NHS England to work collaboratively with organisations to deliver the best possible services to patients.
Finally, clause 73 removes the CMA’s role in reviewing contested licence conditions. The licence conditions have not changed substantially since they were first agreed in 2013. However, NHS England and NHS Improvement’s oversight of the NHS has changed significantly. Their primary role is to support the delivery of safe, efficient and effective care. The merged NHS England, as provided for under this Bill, should be able to set its own licence conditions for providers and regulate providers of NHS services without needing to refer matters to an external competition regulator such as the CMA.
NHS England will remain under duties to consult with local organisations on revised licence conditions. That, alongside the removal of the CMA’s review functions, ensures that any decisions remain in the interests of the NHS as a whole. In addition, NHS England’s accountability arrangements to the Secretary of State and Parliament offer a further safeguard against disproportionate changes to licence conditions. Sufficient safeguards, such as those that I have mentioned, ensure that providers have input into any proposed changes, without the need for oversight from a third party.
We therefore believe that these measures deliver the changes that the NHS has been asking for to help it deliver the long-term plan and recover from the pandemic. I therefore commend them to the Committee.
Justin Madders
I will not detain the Committee long, but perhaps we need a minute to pause, because, as my hon. Friend the Member for Bristol South said on Tuesday, this marks the end of an era. Monitor is gone, competition is no more, and procurement is gone—I think—and become bespoke, to be determined in more detail in the regulations. Perhaps even more stark is the fact that ICBs now have providers on the board, having jettisoned the GPs, and that NHS England is now both an actual commissioner and a systems manager for both commissioners and providers. It feels like we are going back to the future.
As the Minister said, these clauses end the role of the Competition and Markets Authority. This is the final nail; it is perhaps the final recognition that the wild promises made about the 2012 Act have failed to achieve what they said they would. The expectations that Lansley set out back then have failed to produce any desirable results. I do not know whether Government Members wish to shed a tear at this point for the end of these measures, but, for Opposition Members, health is not a commodity; it is a right. Health is not a product, and the NHS is not—and never can be—a market.
As we see the end of the ideological attempt to create a market, Opposition Members cheer the bidding into history of this failed experiment, which should never have occurred. Turning to the actual substance of the clauses, as the Minister set out, they do what is necessary to achieve that aim.
Question put and agreed to.
Clause 70 accordingly ordered to stand part of the Bill.
Clauses 71 and 72 ordered to stand part of the Bill.
Schedule 12 agreed to.
Clause 73 ordered to stand part of the Bill.
Clause 74
Special Health Authorities: removal of 3 year limit
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clauses 74, 75 and 76 repeal the three-year time limit on special health authorities, restate the requirements for special health authorities and NHS trusts to keep proper accounts and records, and repeal the powers of the Secretary of State to make a property or staff transfer scheme.
Together, along with the provisions in the Bill to merge NHS England and NHS Improvement and the powers we will discuss in part 3 of the Bill in a few weeks’ time, these technical changes will help ensure that we have flexibility in the arm’s length body landscape to support the delivery of a world-class healthcare system.
Clause 74 repeals legislative provisions that currently impose a three-year time limit on any newly established special health authority. When the three-year time limit was initially imposed under the Health and Social Care Act 2012, it was envisaged that any future special health authority would have time-limited functions and therefore be temporary in nature. This has not proved to be the case.
The NHS Counter Fraud Authority is the only special health authority created since the time limit was introduced. The Government consider it unnecessary for the NHS Counter Fraud Authority, or any other special health authorities that are established in future, to undergo the process of extending their lifespan every three years. As well as repealing the time limit, the clause sets out changes to the statutory instrument used to create the NHS Counter Fraud Authority, to reflect the fact that there is no longer an abolition date.
Clause 75 simply tidies up provisions in the current legislation in respect of requirements to keep accounts. It restates the requirements for special health authorities and NHS trusts to keep proper accounts and records. It also restates a number of requirements in relation to the auditing and publication of accounts. This clause does not create any change in existing arrangements.
Finally, clause 76 abolishes powers taken in the Health and Social Care Act 2012 to transfer property, rights and liabilities from bodies abolished or modified by that Act. Those powers are now spent, so we are removing the clause to ensure neatness of the statute book, especially as a number of bodies in the 2012 Act are being abolished by this Bill. However, we have retained the ability to make transfer schemes in respect of previously transferred property and rights.
The Bill allows property, rights and liabilities that have been transferred previously under section 300(1), to subsequently be transferred to a Minister of the Crown, NHS England, an integrated care board, an NHS trust or foundation trust, or a qualifying company. That will ensure clarity that rights, property and liabilities are properly allocated and maintained, and not lost to the NHS.
These technical changes will support the wider intentions of the Bill to have a flexible and responsive national architecture for managing the healthcare system. I therefore propose that these clauses stand part of the Bill.
Justin Madders
I will not detain the Committee for long. We are enjoying the Minister’s conversion as regards the folly of the 2012 Act, this being another example of things not turning out as originally envisaged. As he said, these clauses are necessary and we will not oppose them.
Question put and agreed to.
Clause 74 accordingly ordered to stand part of the Bill.
Clauses 75 and 76 ordered to stand part of the Bill.
Clause 77
Abolition of Local Education and Training Boards
Question proposed, That the clause stand part of the Bill.
Justin Madders
I have a couple of questions for the Minister. We would more accurately describe this as a reflection of the reality on the ground, and how local education and training boards have not really been the vehicle for change that they might have been. Their original rationale was to
“build a system that is responsive to the needs of employers, the public and the service at local level.”
It seems odd that this is happening, given that the thrust of the rest of the Bill is to increase local autonomy, but I understand that the regional people boards will be taking up the majority of the slack. It raises the question of how exactly the undoubted variation in recruitment and training needs within ICBs and regions will be addressed, and how ICBs will interact. I would like to hear from the Minister about that. There is also a concern from the British Medical Association that this could mean the loss of dedicated local support systems for GP trainees, and there is some need for clarity on how that function will be met.
Edward Argar
The shadow Minister is right in surmising that once LETBs are abolished, their functions will be discharged by HEE directly in the manner he has set out. On his specific questions, HEE will continue to have responsibility for workforce planning and will engage with regional people boards, integrated care boards and the regional directorates of NHS England to carry out this function. Those responsibilities will be set out in a report that we will publish describing the system for assessing and meeting the workforce needs of the health service in England, as debated in relation to clause 33—to which we may yet return, either on the Floor of the House or in the other place.
We are not removing local or regional workforce planning from the statute, as the hon. Gentleman suggested; HEE will continue to have responsibility for that workforce planning. The LETBs were sub-committees of HEE and reported to the HEE board in any case, so clause 77 just removes some of the rigidity in respect of how HEE had to operate. As is the theme throughout this legislation, this clause seeks to give a greater degree of flexibility and permissiveness to allow the system to adapt to changing needs. On that basis, I ask that it stand part of the Bill.
Question put and agreed to.
Clause 77 accordingly ordered to stand part of the Bill.
Clause 78
Hospital patients with care and support needs: repeals etc
Health and Care Bill (Eleventh sitting)
Justin Madders ExcerptsThursday 23rd September 2021
(4 years, 4 months ago)
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The Minister for Health (Edward Argar)
It is a pleasure to serve under your chairmanship once again, Mrs Murray. With your indulgence, I will speak to each of the clauses in turn.
Clause 51 amends section 88 of the Health and Social Care Act 2012. Section 88 requires that Monitor—or, in future, NHS England—treats an NHS trust that has become an NHS foundation trust as having made an application and met the criteria for a licence. The clause will require NHS England to apply that provision when that queue of NHS trusts waiting to become foundation trusts do so—[Laughter.] I hope the Committee will forgive my gentle reference to what the shadow Minister said last time. On a more serious note, the clause will also require NHS England to apply it when a foundation trust is created as a result of the merger of an existing foundation trust with an NHS trust or another foundation trust, or the separation of one foundation trust into two or more new foundation trusts.
Clause 51 clarifies the situation when new foundation trusts are created, merged or separated and ensures there is no unnecessary bureaucracy as a result. It is an important clarification for NHS England on how to exercise its licensing powers in such situations, should they arise.
We are investing record levels of capital expenditure into the NHS to help it build back better after the pandemic. We intend to set capital expenditure budgets at integrated care board level, and we expect providers to work with ICB partners to agree capital expenditure, in line with the ICB capital plan. To ensure that the interests of the wider system are taken into account at individual provider level, clause 52 provides a new power to allow NHS England to make an order imposing capital expenditure limits for NHS foundation trusts.
That narrow and reserved power will ensure that a limit can be set only for an individually named foundation trust for a specified period, and would automatically cease at the end of that period. The power relates solely to capital expenditure and not to revenue expenditure. NHS England must also consult the foundation trust before making the order. There will be clear transparency, as the order will be published.
In applying to an individual foundation trust in particular circumstances, the power stands in contrast to the capital limits that apply to all NHS trusts. The power is likely to be used where there is a clear risk of an ICB breaching its system capital envelope as a result of non-co-operation by that foundation trust, and when other ways of resolution have been unsuccessful.
NHS England must set out in guidance the circumstances in which it is likely to set a capital limit and how it will calculate it. NHS England intends to work closely with foundation trusts to develop that guidance. I want to make it clear to the Committee that the clauses are not intended in any way as an erosion of the autonomy enjoyed by foundation trusts. Unlike NHS trusts, foundation trusts will continue to have additional financial freedoms, such as the ability to borrow money from commercial lenders. However, the clause is crucial for managing NHS capital expenditure across a system and to ensure that all NHS providers operate within the ICB capital limits. Without that control, other NHS providers may have to reduce their capital spending to ensure that the NHS lives within its allotted capital resources and that resources are spent in a way that best delivers for patients and the taxpayer.
The provisions in clause 53 are largely a consequence of the merger of NHS England and Monitor, in this case reflecting Monitor’s oversight role in relation to foundation trusts. Subsection (1) gives foundation trusts greater flexibility in their forward plans. Paragraph (a) removes requirements currently in the National Health Service Act 2006 concerning the content of the forward plan. Paragraph (b) removes the requirements for the forward plan to be prepared by the foundation trust’s directors and for the directors to have regard to the views of the foundation trust’s governors when preparing the forward plan.
Foundation trusts will no longer be mandated to set out information in the forward planning documentation around non-health service activity and income. The clause also removes the requirement for governors to be mandated to determine whether the foundation trust’s forward plan interferes with the trust’s health service activity.
As the Committee will know by now, and as a consequence of the abolition of Monitor and its merger with NHS England, NHS England will formally become responsible for the support and oversight of foundation trusts, which includes taking on Monitor’s regulatory and intervention powers. That change will enable improved oversight and greater flexibility across the system. Provisions elsewhere in the Bill make the detailed changes, including formally giving NHS England responsibility for giving directions in relation to the content and form of foundation trust accounts. That includes specifying information to be included in the annual reports and accounts of foundation trusts.
The clause is simply part of transitioning the provider-based functions of Monitor into NHS England, ensuring continuity of oversight of foundation trusts’ accounting and forward planning. NHS England will be able to provide fundamental advice and guidance to foundation trusts in the exercise of their functions. Provisions elsewhere in the Bill will formally allow NHS England to monitor the performance of foundation trusts and to take steps to intervene where necessary, which may take the form of advice and support. As we discussed on a previous occasion, however, it may also involve NHS England requesting the trust to take action to remedy emerging issues. At the same time, the clause makes the requirements on annual plans more flexible, to reflect the direction of travel towards system-wide, rather than organisation-specific, planning.
I turn now to clause 54, which inserts proposed new section 47A into the National Health Service Act 2006 and allows an NHS FT to carry out its functions jointly with another person, should the foundation trust consider such arrangements to be appropriate. That would allow a foundation trust to exercise its healthcare delivery functions jointly with another foundation trust as part of a provider collaborative. The clause will make it easier for FTs to work with partners across the health system to develop integrated, seamless services in the best interests of patients.
Clause 55 amends sections 56, 56A and 56B of the 2006 Act, which relate to the merger, acquisition, separation and dissolution of NHS foundation trusts and NHS trusts. It removes the requirement that an application to acquire or merge an NHS FT with another NHS FT or an English NHS trust be supported by the Secretary of State if one of the parties is an NHS trust. NHS England will now consider each application, but the Secretary of State’s role has been strengthened, as he must now approve such applications. However, NHS England will consider the applications and provide advice. That is in keeping with the policy intention that the Secretary of State should have a strengthened accountability role for NHS foundation trusts, in the light of the transfer of Monitor and NHS Trust Development Authority functions to NHS England. NHS England replaces Monitor in the relevant sections of the NHS Act 2006.
Like Monitor, NHS England has a duty to grant the application to merge, acquire or separate if it is satisfied that the necessary steps have been taken to prepare for an acquisition or the dissolution and establishment of new trusts. Additionally, the clause adds a further requirement to each of the sections, which provides that NHS England must refuse an application if the Secretary of State does not approve it. That strengthens the role of the Secretary of State in the process, and it will be for NHS England to take note of the Secretary of State’s comments in taking forward its plans. The clause provides for enhanced oversight and places strategic decision making in the health system in the hands of NHS England, while also conferring a commensurate and important role on Ministers, in line with the direction of accountability set out in the Bill.
Clause 56 relates to the transitioning of the provider-based functions of Monitor and the NHS TDA into NHS England. That will allow NHS England to grant an application by an NHS foundation trust for dissolution. The clause confers the powers that rested with Monitor to transfer or provide for the transfer of property of an NHS foundation trust on its dissolution. Previously, on the dissolution of an NHS FT, Monitor had the power to transfer the property of the NHS FT to the Secretary of State. The clause amends that power so that, when making an order to dissolve an NHS foundation trust, NHS England now has the power to make an order to transfer, or provide for the transfer of, property and liabilities to another NHS FT, an NHS trust or the Secretary of State. The clause also includes a new duty for NHS England to include the transfer of any employees of a dissolved NHS FT in the transfer order.
Taken together, these clauses ensure that foundation trusts are able to play a central role in a more integrated and collaborative healthcare system. As part of that, the clauses also provide NHS England with the powers it will need to help support NHS FTs. I therefore commend clauses 51 to 56 to the Committee and propose that they stand part of the Bill.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this morning, Mrs Murray. I am glad you enjoyed Tuesday so much that you came back for another round. We will do our best to inform and entertain as we go along.
I am grateful to the Minister for setting out the Department’s position on the clauses. We really need to have another go, don’t we, at trying to understand the landscape for foundation trusts? I have already referred the Committee to the description of foundation trusts when they were first established, as vigorous, autonomous, business-like new organisations that would shake up the NHS and bring choice and competition into healthcare. As we know, there was no evidence that that model did any better than the previous standard trusts, once the high performers had been accounted for.
The Minister’s contention that the clauses do nothing to impinge on a foundation trust’s autonomy is quite the claim. The big change in the clauses is the stripping away of financial autonomy, as set out in clause 52, directly contradicting the many occasions when we have been told that the Bill is all about permissiveness, local decision making and accountability. In clause 55, we also see the Secretary of State giving himself yet more powers.
Clause 52(2) could, in effect, mean there was an indefinite block on foundation trusts using their own capital resources. Will there be any limitations on what is a broad power? I refer to the evidence from Dr Chaand Nagpaul, who touched on that:
“At the moment, we are seeing foundation trusts thinking about their budgets, community providers thinking about theirs, and general practice as well. There is not even collaboration between the community and the hospital. No foundation trust currently has the ability to say, for example, ‘We will go beyond our budget and invest in the community—it may actually reduce our hospital admissions.’ At the moment there is no structure or processes to enable collaboration even within the NHS.”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 93, Q120.]
Dr Nagpaul sets out very well the lack of clarity that we still have about how finances will work at a local level within an ICB, and clause 52 gives foundation trusts even less autonomy in that respect.
On that point, I noted with interest today yet another Health Service Journal article, which talked about how integrated care partnerships may not be up and running for some time after the ICB has been set up. That raises questions about what their role is going to be in helping to form those capital priorities for an integrated care system.
In other evidence, Richard Murray said:
“The bit that I think is really uncertain is how the big hospital schemes get picked. That is the bit that looks very different. Obviously, there is a manifesto commitment.”—
although we know that, in recent times, the Government have not been so keen to follow those commitments. He continued:
“There used to be a process by which it was determined whether providers could afford to repay—if they could do it through loans, or if there was a need system. That is now going off in a completely different place, and I think that is the bit that is not quite clear. How does that work within this system? Who gets to choose how those projects get picked, so to speak?”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 118, Q158.]
I appreciate that the point is slightly off-piste, but as we are talking about capital expenditure it is appropriate to raise it, and I am sure the Minister will take the opportunity in his response to set out that process in more detail. At the same time, can he set out in more detail what the guidance set out in proposed new section 42C would entail? Hopefully we will be able to set out some broad points in respect of that.
While we are on the Minister’s response, will he consider the broader point we made on Tuesday about foundation trusts’ focus on involvement of patients and the public and whether that needs to be strengthened across the board? He needs to think again about the whole question of accountability on ICBs.
To go back to the essential question, are foundation trusts now any different to plain, old-school NHS trusts? Is a foundation trust now a dodo? Is it extinct or on its way out? If an ambitious young chief executive of a trust were to approach the Minister and say they were thinking of putting in an application for foundation trust status, what would the Minister say to them about the benefits of such an application, both to their trust and to the wider healthcare system?
Edward Argar
I am grateful to the shadow Minister for his suggestion of a consolidation Act. I can tell just how much he enjoys the sessions we spend in Committee and how eager he is that, no sooner do we finish, than we are back in another Bill Committee together. In terms of his gentle gibe about reorganisation in another two years, there was roughly a two-year gap between the 1999, then the 2001, then the 2003 and then the 2006 reorganisations of the NHS under the previous Government. I fear this is something that affects Governments of all types.
Justin Madders
Indeed, but the point that we would make is that there was such a mess to clear up after 18 years of Conservative Government that we had to do a lot of reorganisations. If the Minister can state for the record that there will be no reorganisations within a specified timescale, we would all be delighted to hear that.
Edward Argar
We must always retain flexibility so that the legislative framework reflects the evolving nature of healthcare provision in this country and we can we deliver what all our constituents want us to.
The hon. Gentleman touched on the importance of licensing. The licence applies to anyone providing NHS services, including the independent sector. With the system oversight framework, it provides a tool that helps to ensure quality across all types of providers in a consistent way, hence the importance that we still attach to it.
At the heart of the hon. Gentleman’s speech were his points about foundation trusts, a 2004 innovation. The reason we are introducing these changes is that we recognise not only the ability of foundation trusts to be autonomous, but the need for them to collaborate and integrate. The aim is to create a framework that allows for local flexibility but brings together local services, recognising the synergies that need to exist between all healthcare providers in an area. With the ICB holding the ring, we get local flexibility, but we look at it the local system level rather than the individual provider level. I alluded to it jokingly, but as I promised in our last session I can confirm to him that I was correct that there are no current applications from NHS trusts to become foundation trusts. I said that I was relying on my memory, but I can confirm for the record that my memory was accurate.
The hon. Gentleman talked about the new hospitals programme and capital more broadly. While slightly stretching the scope of the debate, I think that is probably relevant because he was talking about capital, so I am happy to accept that—subject to your judgment, of course, Mrs Murray—as being in scope. In terms of investment in new hospitals, the bottom line is that this is capital provided by the Treasury—by central Government —to build new hospitals where they are most needed. He will have seen the criteria and the approach set out for the next eight schemes, which are currently being considered. An expression of interest is the first stage of that process. A number of criteria are set out—for example, are there safety issues? Is there an urgent need? Will this facilitate transformation and improve patient experience? The criteria are set out publicly.
The next stage, which will take place next year, is the whittling down of the applications to a shortlist and further consideration. I believe it is entirely right that, guided by advice from officials and local NHS systems, Ministers make those decisions, because it is central Government money that is being invested directly in the schemes, rather than the normal capital allocations from NHS England to local NHS systems that are decided at local system level. This is additional, over and above the normal capital allocations.
The hon. Gentleman mentioned proposed new section 42C and asked what it is envisaged the guidance will say, what it will cover, and how it will work. Essentially, we envisage it setting out how and when NHS England and NHS Improvement will exercise the powers—for example, where a foundation trust’s plans potentially put at risk the broader ICB plans for capital, unduly divert resources, or skew the capital allocation in a particular direction. We do not envisage their being used with any regularity, and hope that, as now, broadly, there is a collaborative approach. It is more informal now than envisaged under the provisions, but there is a collaborative approach.
In his broader remarks about the balance between autonomy and freedoms, the hon. Gentleman asked what I would tell a keen and ambitious NHS trust chief executive who was considering taking advantage of the spaces in the queue to become a foundation trust the advantages in doing so are. Essentially, I would say that they should consider what best reflects the local needs for their local healthcare system, because foundation trusts will of course retain freedoms around commercial borrowing and other existing freedoms. The powers that we are introducing act as a safeguard should they be used against the wider interest of the system. There are still advantages, but each NHS chief executive in that situation should consider carefully their own local circumstances and what is most effective in providing for their patients and service users.
My two final points go to what the hon. Gentleman said about the fear that the powers are significant and should be used only as the last resort, and his second point about whether there should be a greater willingness to allow NHS providers to decide how they spend their surpluses, rather than a regulator or central Government deciding. I might be paraphrasing, but I think those were his two key concerns. On his first point, the powers act as a safeguard to allow national-level intervention when local negotiation cannot resolve disputes. I have alluded to what we would use the guidance for, which is to add a bit of flesh to the bones. We think that is best set out in guidance rather than on the face of statute, as circumstances change over time and applying a narrow statutory test could hinder the aims of the clause, which would ensure that NHS spending overall is in the best interests of the public.
To the second point about whether it should be down to NHS providers and systems to determine how they spend surpluses or moneys that they have saved each year for a particular purpose, the hon. Gentleman is right that NHS trusts and foundation trusts operate as autonomous organisations that are legally responsible for maintaining their estates and providing healthcare services. That will continue, but only where there is a clear risk of a trust acting against the wider interest of the NHS system locally and an ICB would the controls be considered for application.
Justin Madders
The Minister is setting out the aims, but I am a little unsure what a foundation trust acting against the wider interest of the ICB would look like. Can he give us examples of where that might have happened?
Edward Argar
The hon. Gentleman tempts me to give a specific example. The reason we chose the flexibility of using guidance is that we cannot envisage every eventuality, so we will set out in guidance the process and approach. I will try to give him an illustrative example rather than a specific one, if he will allow me. If we have an ICB making collective decisions about where capital investment is most needed at a system level, and if we have a foundation trust with resources deciding to prioritise huge investment in one particular area, that might not necessarily reflect the broadly agreed local priorities in the ICB plan and the ICP plan for that area. I envisage such matters being resolved at an ICB level. I have certainly seen in this job and in a past life, as I suspect the hon. Member for Bristol South has, where informal resolution of these things is often the most effective way, so I would not envisage these powers being used often, but it is important that we have the flexibility that they bring. On that basis, I commend the clauses to the Committee.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 to 57 ordered to stand part of the Bill.
Clause 58
Transfer schemes between trusts
Edward Argar
As the Committee knows, one intention of the Bill is to create more flexibility, alongside the promotion of greater local integration. The clauses help to allow local bodies to work together in different ways to deliver effective health services.
Clause 60 enables NHS organisations, and any other bodies that may be prescribed in regulations, to commission and arrange services collaboratively, not only with other NHS organisations but with local authorities, combined authorities and other bodies that could be specified in regulations. Existing NHS legislative mechanisms make it difficult for the health and care system to work collaboratively and flexibly across different organisations, forcing local systems to adopt complex workarounds to be able to take joint decisions and pool budgets. In that context, back in the day, when I served in a local authority, we used section 75 of the 2006 Act as one mechanism for doing that with the local primary care trust.
In practice, however, those arrangements can sometimes be cumbersome and difficult to manage, and can delay making vital decisions. The new provisions inserted by the clause into the NHS Act 2006 will enable NHS organisations and any other bodies that may be prescribed in regulations to delegate functions to, or jointly exercise functions with, other NHS organisations, local authorities, combined authorities and other bodies as specified in regulations. Where functions are exercised jointly, the provisions will also enable those organisations to pool funds and form joint committees, facilitating partnership working and joint decision making at place and system level.
To ensure that delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards in the clause. The Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to delegation or joint exercise of functions, and specify the extent of such arrangements, for example. Furthermore, the parties will be able to agree terms as to the scope of the delegation arrangement. NHS England will have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under the provisions. The relevant body, as defined in the provision, must have regard to such guidance.
The provisions will replace those in existing sections 13Z, 13ZB and 14Z3 of the NHS Act 2006, which provide for the delegation of joint exercise of NHS England’s functions. The clause also amends section 75 of the 2006 Act, which I just alluded to. That section details arrangements between NHS bodies and local authorities so that where a combined authority, for example, exercises an NHS function as part of arrangements under the new provisions, it can be treated as an NHS body. That is in line with how combined authorities are treated for other, similar joint working arrangements.
Clause 61 and schedule 9 focus on the delegation of functions. Clause 61 inserts a new section into the NHS Act 2006 that makes express the assumption that a general reference in the Act to a person’s functions includes any functions that they are exercising on behalf of another person. That means, for example, that a reference in the Act to the functions of NHS England should cover any public health functions of the Secretary of State that NHS England may be exercising on their behalf under section 7A arrangements. The practical effect of this would be, for example, that any general duties that apply when NHS England is exercising its functions would also apply when it was exercising delegated functions. Until now, delegated functions have not been dealt with consistently in our health legislation. While it is not feasible, notwithstanding the suggestion of the shadow Minister, the hon. Member for Ellesmere Port and Neston, to remedy this issue across all health legislation in one consolidating Bill, this clause seeks to produce a more consistent approach.
Schedule 9 contains amendments to the NHS Act 2006 and other legislation to reflect the broader approach taken by clause 61 to delegated functions. Clause 61 also enables regulation to be made to create further exceptions where necessary to ensure that delegated functions are not covered by a provision where this would be inappropriate. Clause 61 addresses an important but technical legal issue in the Bill and is essential for enabling consistent and clear interpretation of our legislation.
These clauses are essential for ensuring that NHS organisations can collaborate effectively with each other as well as with other partners in the system. I therefore commend clauses 60 and 61 and schedule 9 to the Committee.
Justin Madders
Members will be relieved to hear that I will not detain the Committee long on this. Clause 60 does what the NHS itself has decided it needs. Over the last six years, we have had various iterations of this integration process, joining things up around joint working, joint bodies and delegation. The provisions try to put all that in one place.
A recurring theme is clarity about the extent of crossovers between local authorities and the NHS. In that respect, proposed new section 65Z5 suggests that local authorities can carry out any function of an NHS body. Could the Minister say more about that? Does it mean that we could see local authorities commissioning—setting up GP surgeries in wellbeing centres? We are assuming that this is one-way and there is no reciprocal arrangement for the NHS to take on local authority functions, so that a foundation trust could not take on an arm’s length management organisation or some other local authority function as a tax-efficient way of avoiding certain liabilities. Could the Minister respond on that?
I also wonder about care trusts, which were the original integrated working teams with the NHS and local authorities. They are rarely mentioned and were largely regarded as unsuccessful. Is there any intention to favour such genuinely integrated bodies? They were used in one recent case by an integrated care provider to get around some of the prohibitions on new trusts. Can the Minister tell us anything about where care trusts now fit into the landscape?
Given the joint nature of the provision, I would like to know why the guidance was published only by NHS England. Should it not have been a joint effort by the NHS and the Local Government Association? Was the LGA consulted and involved in the preparation of the guidance? That perhaps exposes that this is really about the NHS, not about integration across the board. As we have heard today, the ICPs will roll up at some later point, perhaps exposing the reality that this is going to be an NHS-dominated process.
Finally, on the pooling of funds, is there any limit on that? Is that envisaged to be an occasional opportunity, or will it be a more significant step down a road of full funding? Will the Minister set out whether the direction of travel will be quite as dramatic as possibly suggested by the clause?
Edward Argar
I am grateful to the shadow Minister for his support for the clauses and for the, as ever, perfectly sensible questions he poses. I hope to reassure him that the intention behind the clauses is not to create tax-efficient organisations or anything like that; it is to create the most efficient organisations for the delivery of joined-up care. I alluded to section 75 of the 2006 Act, which is an example of what many local authorities are doing already.
On guidance, I hope to reassure the hon. Gentleman that, throughout the genesis of the legislation, we worked collaboratively with the Local Government Association, reflecting local authorities more broadly. As we develop guidance, I am clear that the NHS, NHS England and the Government will continue to work with the association to ensure that local government’s view is reflected in the drafting. A number of conversations have already taken place between officials and the LGA. Notwithstanding the debates we may have in this House or how the legislation emerges, I am clear that we will continue to work collaboratively throughout with all the partners involved, even in areas where we may disagree. We will always seek to work with them.
The hon. Gentleman expressed concerns—he will shake his head if I paraphrase him unfairly—about whether the legislation will allow for unlimited or unfettered delegation without checks and balances. Will we be able to transfer anything from an NHS trust to a local authority, or vice versa? The short answer is no. There will need to be a clear line of accountability between the body ultimately exercising the function and the delegating body. Safeguards ensure that any onward delegation is appropriate. That said, there may be circumstances in which a local authority would commission a particular healthcare service linked to other functions of the local authority delegated from the NHS. We would expect that clear accountability to be in place where that is done. We do not envisage the power being used regularly in that way, but there might be circumstances in which it would be.
Regulations may restrict what, where, when and how—and, indeed, to whom—delegations occur. The delegation agreement may also prevent further onward delegation of functions beyond a certain level. In addition—this goes back to the hon. Gentleman’s point about the LGA—NHS England will, I expect, issue statutory guidance on delegation and joint committees, which would include scenarios, case studies, model delegation agreements and similar to show how, in practice, we envisage this working. The guidance would be statutory, and I envisage it being developed in concert with local authorities, represented by the Local Government Association—that is probably the most effective way of doing that.
I hope that I have given the hon. Gentleman some reassurance that there is nothing sinister—for want of a better word—intended in the clauses; they are merely meant to make things easier for local NHS bodies and local authorities, in particular, to co-operate more. That goes back to the integration at the heart of—the thread that runs through—all the legislation.
Question put and agreed to.
Clause 60 accordingly ordered to stand part of the Bill.
Clause 61 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 62 ordered to stand part of the Bill.
Edward Argar
Before I speak to clauses 63 and 64, I crave your indulgence, Mrs Murray: I should have said to the shadow Minister that the previous clauses were about delegation from the NHS to local authorities, not the other way around. I would just like to put that on the record for him, because he expressed a concern about that.
Clauses 63 and 64 have been included in the Bill to help support ICBs and ICPs and to enhance integration across the health and care system. Clause 63 allows NHS England to issue guidance about appointing an individual to roles simultaneously in NHS commissioners and NHS providers, or in relevant NHS bodies on the one hand, and local authorities or combined authorities on the other. We have seen a number of clinical commissioning group and local authority joint appointments that have supported integration and been successful, and we would be keen to see those continue.
The clause further sets a requirement for these NHS bodies to have regard to such guidance when considering making a joint appointment. Joint appointments between organisations can support aligned decision making, enhance leadership across organisations and improve the delivery of integrated care. However, we believe that greater clarity is required to support organisations in making appropriate joint appointments, to avoid conflicts of interest that can be difficult to manage. Before issuing any new or significantly revised guidance, NHS England would be required to consult with appropriate persons.
Clause 63 will allow NHS England to publish a clear set of criteria for organisations to consider when making joint appointments and ensure regard is given to such guidance. That will also provide a safeguard against any conflicts of interest that may arise in the process of making joint appointments.
Clause 64 amends sections 72 and 82 of the National Health Service Act 2006, which deal with the co-operation between NHS bodies and the co-operation between NHS bodies and local authorities respectively. The clause inserts a new power for the Secretary of State to make guidance related to the existing co-operation duties between NHS bodies and between NHS bodies and local authorities. While the existing co-operation duties in sections 72 and 82 relate to both English and Welsh NHS bodies and local authorities, the guidance relates only to England, and the requirement to have regard to guidance issued under this new power will apply only to English NHS bodies and English local authorities.
Our intention is not to produce a single piece of co-operation guidance, which would risk being too general or too wide-ranging to be effective. Rather, we are considering discrete pieces of guidance in specific areas such as delivery of alcohol and drugs services, sexual and reproductive health, or hospital discharge services, to encourage and facilitate co-operation and integration in their delivery.
The clause also amends section 96 of the Health and Social Care Act 2012, which concerns the setting of licensing conditions for providers of NHS services. The licence, as we touched on earlier today, was established in 2013 so that providers of NHS services must meet to help ensure that the health sector works for the benefit of patients. Currently, conditions can be set on co-operation, but these provisions can apply only in certain circumstances.
The clause goes further: it supports system integration, promotes greater co-operation by removing the limitation on setting licence conditions on co-operation, and expands the range of bodies with which co-operation can be required. That will strengthen and reinforce the requirements on providers to co-operate and further strengthens the ability for NHS providers to deliver the system plan.
Co-operation is central to the intentions and underpinnings of this Bill. New guidance and expanding the role co-operation plays in the licensing regime will give organisations greater clarity about the practical expectations for co-operation, help the NHS to build on the innovation, working relationships and positive behaviours that have been seen over the past year, and further embed these behaviours across the health and care system. I therefore commend these clauses to the Committee.
Justin Madders
I am sure the Minister will be unsurprised to learn that the Opposition are a little wary of the powers in clause 63. One person doing two jobs is never ideal. I make an honourable exception for the hon. Member for Vale of Clwyd, who, in his other role, plays an important part in contributing to the wellbeing of the nation. Such exceptions are rare, and we think that two jobs for one person is never a sustainable or long-term solution.
We draw a distinction between a secondment, which obviously means that the position is by definition time limited and allows the post-holder to return to their original position. It is often good for career development, and that kind of mobility and interchange between the NHS and local authorities may be a very positive development, particularly with ICBs. However, the idea that there can be a joint appointment of a commissioner and a provider sounds wholly contradictory. Although the Minister has tried to allay our concerns by referring to guidance, it is clear that an NHS body needs to only “have regard” to that guidance. The question remains: at what point does someone step in when there is a clear and detrimental conflict of interest? We will see what the Minister has to say, but it we may need to keep a very close eye on that.
Clause 64 is a rather less obvious power grab by the Secretary of State, but it is one all the same. Clearly, he is not satisfied with the extent of co-operation between NHS bodies, because the Secretary of State now wants to be able to tell them how to co-operate. The guidance is to be issued, and a duty is to be placed on NHS bodies to follow it, or else face the consequences. What of? It is good old-fashioned persuasion—the willingness to work together for the greater good. It is actually the case that the Secretary of State wants two goes at this, as there are further powers to issue guidance in respect of NHS bodies and local authorities, which currently have to co-operate in order to advance the health and wellbeing of people.
Surely it is the case that they are doing that already. I cannot think of any reason why they would not co-operate, but what would be the sanction if they do not? Can the Minister tell us who he thinks these errant councils are that are not co-operating? Between myself, my hon. Friend the Member for Nottingham North and the Minister himself, we must have over a quarter of a century of experience in local government, and I cannot think of any occasion when councils were anything other than co-operative with the NHS. That is my experience, but if the Minister can help fill in the gaps, I would be most obliged.
Edward Argar
The shadow Minister tempts me to name and shame. He may be tempting me in vain. He raised three key points. One was about one person doing two jobs. To paraphrase him, he asked how that would work and why it was appropriate. He also mentioned conflicts of interest and asked why it was necessary and appropriate for the Secretary of State should have these powers.
To his first point, the clause is about driving greater integration. During my time as a member of Westminster City Council many years ago, we had a joint appointment. Our director of public health, if I recall correctly, was also an NHS appointment and she sat in both organisations in the senior management structure. It was extremely effective. Conflicts of interest, as we would envisage here, were managed both within the system and in accordance with guidance and principles of appointments and appropriate governance. That worked extremely well. It was not so much one person doing two jobs, but where the job was needed and the job description fitted both organisations, it delivered a real synergy and better outcomes.
There are circumstances where it can work. I would not have envisaged it being used essentially so that one person has multiple roles and jobs, but there are occasions when there is a benefit from someone sitting jointly in two organisations to help drive that integration and shared understanding. We can create, as we are doing here, mechanisms and structures to help drive integration and co-operation, but as the hon. Member for Nottingham North will know, and as the hon. Member for Bristol South will know from her time in the NHS, we can have those structures, but ensuring that organisations work effectively often relies on individuals, personal relationships and the trust that builds up at that level.
Edward Argar
I am grateful to the hon. Lady, but those joint appointments have always gone on—they have existed for many years. The example I referred to was in about 2008 or 2009, and it worked extremely well, as both organisations benefited from that individual being a part of both. Our clauses seek to ensure that those joint appointments work well and effectively.
The hon. Member for Ellesmere Port and Neston asked why the powers sit with the Secretary of State rather than with the local NHS or NHS England. I am afraid that he will not tempt me into naming any particular local authorities or otherwise. The NHS is a critical part of our health and care system, but integration and co-operation need to go beyond the NHS itself, encompassing the role of local authorities in this space, which we all recognise. I hope that that co-operation will be consensual and voluntary, as the hon. Gentleman said, but it is important that the Secretary of State, with his accountability to this place and to the public, sits above that system. I would argue that he is in the best position to offer guidance on how that system can co-operate, and to help to resolve matters.
Justin Madders
One of the things that we have been told consistently is that integration and joint working are already well under way on the ground, and that the Bill is, in part, just putting a legislative seal on that work. If that is correct, why does the Secretary of State need those additional powers?
Edward Argar
Because we wish to take the opportunity to further drive forward the integration. The system has evolved, but we want to be more ambitious. The powers reflect the fact that the Secretary of State is able to take that wide perspective to most effectively see those two organisations coming together at a macro level—at the national level. That does not mean that I am denigrating in any way the evolution that is already occurring voluntarily in a whole range of areas around the country.
I sense that the hon. Gentleman is still unconvinced by joint appointments, so I will say a little more about them before I conclude, although I might still leave him unconvinced. There are already very few prohibitions on joint appointments, and we see an increasing number of them. In some cases, however, there could be a perception, or a reality, of a potential conflict of interest that could be difficult to manage or could lead to a perception of bias. We recognise that, which is why we have proposed the power to issue guidance to help organisations make the right joint appointments and to help them understand what factors to consider when deciding whether to proceed down the route of a joint appointment. The new powers for NHS England to issue guidance will ensure that there is a clear set of criteria against which to judge joint appointments when considering whether to make one. Bodies will have to have due regard to that guidance. I believe that the powers are proportionate.
Justin Madders
I am grateful to the Minister for giving way again. One of the critiques that we have developed —I hope that he has noticed—is that the Secretary of State has given himself an awful lot of powers and abilities to intervene. It seems highly incongruous that in the specific example of joint appointments, where there would be a clear role for the Secretary of State to intervene, he has not availed himself of the opportunity to do so.
Health and Care Bill (Ninth sitting)
Justin Madders ExcerptsTuesday 21st September 2021
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 September 2021 - (21 Sep 2021)
Justin Madders (Ellesmere Port and Neston) (Lab)
On a point of order, Mrs Murray. There have been quite a few changes on the Government Benches in the Committee. We congratulate the Under-Secretary of State for Health and Social Care, the hon. Member for Erewash (Maggie Throup), on her promotion and the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Bury St Edmunds (Jo Churchill), on her transfer. If there was a Sky Sports News transfer deadline day reshuffle pack, I can see Jim White in wheels of excitement about the number of changes at the Department of Health and Social Care. We are delighted that the star striker remains in his place.
On a more serious note, the composition of the Committee has changed. Was that in order? Was some kind of approval process from the House required before that could take place?
Justin Madders
Further to that point of order, Mrs Murray. Derek Wilton on “Coronation Street” used to say, “I shall be on the cocoa by the time Trevor McDonald has finished”—a reference to people retiring for the night at around quarter-past 10 or half-past 10. We got an email at 10.22 pm last night with an updated selection list from the Chair. I do not think there are any substantive changes, but in a case where there are dramatic changes to selections and groupings at short notice, is there any rule or procedure about how much notice must be given?
The Chair
There is no minimum notice requirement, but I am sure there will not be an issue in future.
Justin Madders
Further to that point of order, Mrs Murray; I have had a few days to think about these points. The Minister very helpfully said he would write to me about the workforce amendment we put forward last week. Over the weekend, I was talking to some members of the public who are very interested in the Committee’s proceedings. They asked when that letter might be published. I know the Minister is very busy and has a lot of new inductions for his colleagues to get through, as well as his work on the Bill, so I am not going to ask when he will release it, but would it be appropriate to add that letter to the page on the Government website where all the Bill information is contained?
Edward Argar
I am grateful to the shadow Minister for that question, which reminds me of some of the questions that he used to ask me in this room about what the future held when we discussed delegated legislation. I am always cautious not to predict the future, but hopefully it will be helpful if I set out the principles that I think should apply. I agree that unnecessary duplication that does not bring clear and tangible benefits to patient safety or improve outcomes is clearly undesirable. Therefore we will seek to streamline where appropriate, but without compromising patient safety or the outcomes that patients experience. While not predicting the future, I hope that gives him some reassurance of the direction of travel as I see it.
Clause 26, along with other provisions in the Bill, including clause 29, makes the legal changes necessary to bring these organisations together as one legal entity. Clause 26 abolishes Monitor and introduces schedule 5, which contains amendments that transfer Monitor’s functions to NHS England in order to fulfil the Bill’s intention to merge Monitor and the NHS TDA into NHS England to form a single body. The schedule transfers powers and duties from Monitor to NHS England and repeals provisions that are no longer necessary in the light of the merger. For example, Monitor’s functions in relation to NHS foundation trust mergers and acquisitions in sections 56 and 56(a) of the 2006 Act, and in relation to licensing providers in sections 81 to 114 of the Health and Social Care Act 2012, will all transfer to NHS England.
We acknowledge that bringing together the commissioning functions previously exercised by the NHS commissioning board, and the regulatory functions previously exercised by Monitor, under a single organisation could be perceived as giving rise to conflicts of interest. The Bill will therefore ensure the proper management of any such conflicts, and we will work with stakeholders on robust processes that will safeguard the separation of responsibilities and improve transparency. For those reasons, clause 27 seeks to insert new section 13SA, which deals with minimising conflicts between the body’s regulatory and other functions, into the National Health Service Act 2006.
The clause places a duty on NHS England to minimise the risk of conflict or manage any conflicts that arise between its regulatory functions and other functions. In the event that a conflict were to occur, NHS England would be under a duty to resolve or manage that conflict and to ensure appropriate transparency. NHS England must include within its annual report details of such conflicts and how it had complied with its duties to manage them under new section 13SA of the 2006 Act.
Clause 28 amends section 100 of the Health and Social Care Act 2012, which relates to the modification of licence conditions for providers. Licences are the basis by which NHS Improvement and, in future, NHS England set conditions on providers as to the terms on which they can operate. The clause requires that when NHS England makes a major change to the standard licence conditions, as permitted under section 100 of the 2012 Act, it must assess the likely impact of the change or publish a statement explaining why such an assessment is not needed.
The clause also provides that the impact assessment carried out by NHS England must be included in the notice of the modification that is sent to the relevant licence holder and others, as required by section 100(2) of the 2012 Act. This new requirement is intended to make it clearer why NHS England is altering a standard licence condition, which we think is in the interests of providers and the smooth running of the system.
Clause 29 abolishes the NHS TDA and works in harmony with clause 26, which abolishes Monitor and other provisions in the Bill that confer functions on NHS England in relation to providers, in order to merge the two organisations into NHS England to form a single body. In transferring functions that were formerly delegated to the TDA, we have considered the mechanisms and processes associated with those duties and assessed the best fit for the system, to ensure that the relationships already in place are not unduly affected. Clause 29 revokes the directions that established the TDA, and subsections (3) and (4) include consequential amendments that remove references to the TDA. They will no longer be relevant once the TDA is abolished.
Clause 30 makes a consequential amendment to NHS England’s general functions to reflect its oversight of NHS trusts and foundation trusts due to the merger of NHS England and NHS Improvement. The clause ensures a joined-up approach to decision making, allowing NHS England to understand the services required to best serve patients. It amends section 1H of the National Health Service Act 2006 so that for the purpose of discharging its duty to promote a comprehensive health service in England, NHS England must exercise its functions in relation to English NHS trusts and foundation trusts, as well as in relation to ICBs, which will replace the current reference to CCGs, so that services are provided for that purpose.
As part of the merger of NHS England, Monitor and the NHS TDA, and as a consequence of the abolition of Monitor and the NHS Trust Development Authority, clause 31 gives the Secretary of State the power to make schemes to transfer the staff, property, rights and liabilities from Monitor and the TDA to NHS England. These transfer scheme provisions follow a similar protocol used within the Health and Social Care Act 2012 for the transfer of assets, rights or liabilities on the abolition of the National Institute for Clinical Excellence and the Health and Social Care Information Centre. The transfer schemes used then proved effective and efficient, ensuring a smooth transition and no impact on the services they delivered.
Finally, clause 32 contains a regulation-making power that allows the Treasury to vary the way in which any relevant tax has effect in relation to the transfer scheme. Regulations made under this power can be used to ensure that no taxes arise, and that there are no changes to the tax positions of either the transferee or transferor body. It is appropriate to avoid unnecessary tax complications relating to a transfer scheme between public bodies. The types of taxes that can be varied are set out in the clause.
Without this clause, the transfer of assets or liabilities between the bodies mentioned in clause 31—namely Monitor, NHS Trust Development Authority and NHS England—could give rise to unintended tax liabilities. As I have highlighted, this merger has clear benefits and is central to the Government’s plans for establishing a more integrated, responsive and accountable health and care system.
Justin Madders
I am grateful to the Minister for his detail on those clauses, which have been very helpfully grouped. Although we have not put forward any amendments, we do want to raise some general concerns—mostly around what these clauses do not do.
As we have heard—although I do not think the Minister used quite the same terminology as we would have—these clauses have got rid of the worst trappings of the market architecture, which were characteristic of the Lansley Act. As we have heard, they enable the merger of NHS England and NHS Improvement, although I do not think that NHS Improvement is actually mentioned anywhere in the Bill. All references are to Monitor and the NHS Trust Development Authority. It is almost as if the Government want us to forget that NHS Improvement ever existed—or probably want us to forget who was chairing it.
The abolition of Monitor sounds another death knell for the Lansley Act, but does leave some of the market mechanisms in place. However, since they were ignored anyway, I can understand why the Government have not bothered to go the whole hog.
Clause 26 finally turns the Monitor off at the mains—although I think it is fair to say that it stopped working some time ago. NHS England is now the undisputed, supreme leader over commissioning and both flavours of providing, so the Bill not only tears up the Lansley reforms but quietly changes the 2003 amendments. Monitor was set up as the regulator of foundation trusts, and was to be the approver of applications to become a foundation trust.
Foundation trusts have had many incarnations, but were once heralded as the vigorous, autonomous new organisations that would shake up the NHS and bring choice and competition into healthcare. They were beyond the reach of those nasty bureaucrats who ran the rest of the NHS. However, as I think we have seen today, it has not quite turned out like that. There must be a clever saying somewhere that “All health service reforms end in failure”, just like all politicians’ careers—although the Minister is clearly an exception to that!
It is fair to say that we are seeing the end of the foundation trust experiment. There is no evidence that the new foundation trust model did any better than the old model. Of course, the first few anointed foundation trusts did outperform non-foundation trusts, but that was because they were already the best-performing trusts. That was why they were allowed to become foundation trusts in the first place. It was, really, a self-fulfilling prophecy, but, as time has moved on, it has been harder and harder for trusts to excel to the level originally envisaged.
Foundation trusts did have some good characteristics; they did have a better go at accountability to their governing bodies. Given this Bill’s focus on involving patients and the public in the wider health system, perhaps this system also has some positives—something to commend it. It might not have been a bad idea to have an equivalent model for the governance of ICBs, but I will not return to that now. I know the Minister has not warmed to our suggestions of greater accountability, but I will leave that for him to consider if he brings forward amendments on Report.
The Lansley Act favoured foundation trusts and made the optimistic—and what turned out to be highly inaccurate—assumption that, in time, all NHS providers would become foundation trusts. As so much happened with that Act, however, it turned out not to be the case at all. Foundation trusts are now no different from the old-school, old-style NHS trusts—a “distinction without a difference”, as Lord Stevens once quipped. For all relevant purposes, NHS trusts and NHS foundation trusts are performance-managed in exactly the same way.
Karin Smyth (Bristol South) (Lab)
My hon. Friend is right in what he says. Given Monitor’s role, NHS Improvement’s role and local scrutiny of what is happening within the system—it is almost independent in some cases—there is a real gap here now. I have called them cartels before, although my hon. Friend will perhaps not use that word. With the absence of Monitor, where is the transparent and independent scrutiny? What is the new regime, and how will that accentuate the patient voice? We have also been unable to highlight how many millions of pounds have been wasted in the intervening years from 2012 with regards to how the previous Act was pushed through, and the terrible waste that has arisen as a result. Surely the patient voice must be really important in holding trusts to account.
Justin Madders
I can assure my hon. Friend that I will not waste opportunities to refer to the waste of public money as a result of the Lansley Act, but the wider point is one that the Opposition have made already in Committee and will continue to make. There is clearly a gap where accountability ought to lie. It will be interesting to hear what the Minister says about why the governing model for foundation trusts cannot be expanded to all remaining trusts. We would particularly want to see far greater patient involvement in the integrated care systems in the Bill. Clearly, we have had that debate unsuccessfully, but I hope that we will perhaps have an opportunity to return to it once the Bill returns from the other place.
I will say a few words on the licensing scheme. Given that the Bill marks an end to the whole era of markets and competition and a move, at least in theory, to a model of collaboration and co-operation—not a cartel, as my hon. Friend the Member for Bristol South might call it—why is it necessary to license NHS bodies that are now fully under the control of NHS England and the Secretary of State? That does not seem to be a particularly good use of anyone’s time, and it will create more unnecessary paperwork and bureaucracy.
We will do our best to help the Minister in reducing obstacles to delivering patient care, so we will not oppose these clauses. However, we think that they have probably not gone far enough. They are clearly a necessary tidying-up job, but the Government should do the job fully and properly.
Edward Argar
As ever, I am grateful to the shadow Minister. He should be optimistic—perhaps not on this issue, but more broadly—about the reception of some of his suggestions. I think I managed to take him aback slightly last week with one suggestion, although it was perhaps not the one with which he expected me to be willing to engage. I always listen to and consider carefully what he says.
The shadow Minister made a number of points. He mentioned the references to Monitor and TDA and said there are no references to NHS Improvement. That is because NHS Improvement is not the named body in law—that is simply a legal distinction. The named bodies are the NHS TDA and Monitor, which we understand and know as NHS Improvement.
I gently chide the shadow Minister. His reference to the chair of NHS Improvement, Baroness Harding, was a little unmerited. She has worked tirelessly. Colleagues will have their views, as is entirely appropriate in this place, but his reference was uncharacteristically uncharitable.
Edward Argar
I believe that all appointments, including that one, are conducted entirely appropriately, in line with Cabinet Office guidance.
I move on to the shadow Minister’s substantive points, which he perhaps made more in hope than anything else. We are not resiling from the value that choice and competition can bring, but we recognise that it is not the only driver of improvement and that collaboration plays a key role, so the position is perhaps a little more nuanced than he might like to suggest or wish to see. What we are seeing here is a reflection of the reality. We are ensuring that the way the system has evolved in practical terms over time is reflected by updating the appropriate legislation.
The shadow Minister mentioned a number of specific points around foundation trusts, and I hope I can give him some reassurance. We are not abolishing foundation trusts or their rights. The licensing system that we are talking about allows for equivalent management of both types of trust in a consistent way, and the NHS will still have the power to authorise new foundation trusts in the future, if they meet the appropriate criteria.
Justin Madders
I think the Minister probably has the gist of what I was getting at in my comments. Can he tell us how many applications for foundation trust status are currently in the pipeline?
Chris Skidmore
I think there is a subsection here about how clause 33 relates to clause 19 and the duties on ICBs as the placemaking organisations that can provide the training opportunities for the future. I also think there are great opportunities in the Department for Levelling Up, Housing and Communities for potential further devolution of the skills budget through a mayoral system. That skills budget will already be devolved in some of the metro Mayor areas, so I hope that it will also be devolved across wider areas that do not necessarily have a city population. The Government are clearly looking to fill that gap. Those are also the skill needs of the healthcare population, which is why, when it comes to the duties for the ICBs, I am keen that they take on board the wider non-healthcare resident population, whether in universities, colleges or elsewhere, to bring in expertise on creating training pathways for the future.
Without going off-piste, I think there are future opportunities for more flexible qualifications. We have the lifelong learning allowance. We are looking at how to allow individuals to retrain for the future, creating apprenticeship opportunities, in-work opportunities and course-based opportunities. This is not just about providing nurses and doctors; it is also about allowing nurses to move up the scales and retrain when they are in the NHS, which would help to lower the attrition rate.
Retention is one of the greatest challenges we have—it is not only about training—and I am sure that the intention of clause 33 is also to get to grips with retaining the 20% of the workforce who leave over a five-year cycle. It would do so much better if it took into account statistics consistent with the Office for Budget Responsibility’s long-term fiscal projections and if we were able to look at the needs of the population. That is what subsection 2(b) of my amendment suggests—looking at workforce numbers
“based on the projected health and care needs of the population”
as well as the demographic numbers of the workforce.
The amendment suggests a number of organisations that should be able to contribute to the report, including health and care employers. I return to the point that the care sector is not reflected in clause 33, and it really should be. Trade unions also play a vital role in identifying needs; that may be strange coming from a Conservative MP and I may disagree politically with unions, but they have the data and the opportunity to provide feedback from their members, which is really important. I have mentioned the royal colleges in discussions on previous amendments. Universities are critical for identifying ways of integrating healthcare and education practices. I also suggest
“any other persons deemed necessary for the preparation of the report, taking full account of workforce intelligence…and plans provided by local organisations and partners of integrated care boards.”
The amendment would therefore allow for place-based opportunities, as the hon. Member for Bristol South has said, in delivering on the clause’s workforce planning.
I do not intend to push the amendment to a vote. It is a probing amendment, which I hope the Minister will take seriously, especially given the length of time the issue was discussed in the oral evidence sessions.
I am sure all Members have received briefing packs from various organisations. Clause 33 comes up as one of the priorities. The organisations’ intentions are not vexatious; they are not raising the issue to make a campaign point against the Government. The tone of the Bill is one of collaboration and partnership. As was mentioned in the oral evidence sessions and the early sittings of the Committee, the Bill is unique. It is not a top-down reorganisation—it is filling in the jigsaw puzzle that has been constructed from below upwards, providing the legislative cherry on the top of a cake that has already been baked by local healthcare communities who know what they need. What they need is certainty on workforce planning. The Bill provides the legislative certainty of consistency at national level that will trickle down to local level.
I urge the Minister to listen to the requests for more frequent reporting on workforce planning, better use of data in producing the report and a widening of opportunities to be partners in that report. The Minister and Department have done a fantastic job in allowing the partnership model to evolve. We have moved away from institutional top-down accountability, where there was a competitive spirit between institutions. We have broken that down; the ICPs and ICBs now provide an opportunity for greater partnership working, for the benefit of patients and the outcomes that need to be delivered. This is the missing piece in the legislation.
We need to move workforce needs to a partnership model and away from the top-down approach that clause 33 very much suggests. The Secretary of State holds all the cards on the planning of the report and does not even necessarily have to work with NHS England or Health Education England. In the spirit of the Bill, I urge the Minister to open up the clause and consider the proposal in amendment 94 on Report or in the other place. It is an important change that would make the Bill even better. I urge him to give it due consideration.
Justin Madders
I will speak to amendment 94 and the other amendments in my name and the names of my hon. Friends, since they are grouped together and we are clearly all talking about the same thing. There is probably only a cigarette paper between many elements of these amendments and, I hope, the Minister’s position when we get to the end of the debate.
One reason why there are so many amendments and they are all fairly similar is that it was clear from the evidence sessions that this is one of the few areas on which there was complete agreement among the witnesses. Clause 33 is simply nowhere near good enough. Given the importance of workforce issues, which is the most crucial issue facing our NHS and social care system—as the right hon. Member for Kingswood mentioned, social care must be included within this—it is strange that we have really quite a tepid offering in the Bill.
It feels as though the whole question of workforce is firmly in the Department’s “too difficult” box. It knows it has to do something; it knows that without the tremendous efforts of the staff the NHS would simply collapse, but rather than coming up with an effective strategy, it has produced this fig leaf of a clause to create the impression that the issue is being taken seriously and dealt with.
Justin Madders
It is now in the Minister’s inbox, and he will know that what is currently in the Bill does not cut it in terms of the challenges we face. As I often do, I place on record our thanks and admiration for the whole NHS workforce, for turning from theory into reality an organisation that demonstrates the benefits of collectivism and socialism and is one of the nation’s proudest achievements—I certainly expect the Minister to agree with the latter part of that sentiment, if not the former.
I have said this many times before, and I will say it again: without its workforce, the NHS is nothing. It is not only the doctors and nurses, but all the others who contribute to the delivery of a comprehensive and universal service, free at the point of use: the radiographers, the porters, the cleaners and the allied health professionals. I will not list them all, but we should acknowledge that a number of different people contribute towards even the most straightforward engagement with a patient, and we are grateful for each and every one of them and the service they give.
I briefly refer hon. Members to the report by the Health and Social Care Committee on workforce burnout and resilience. It conducted an inquiry into the issue and found that staff shortages were
“ultimately the biggest driver of burnout.”
It was presented with much evidence from staff about feelings of low energy or exhaustion, increased mental distance from or negative feelings about the job, and reduced professional effectiveness. Excessive workload was identified as the key predictor of staff stress, workers’ intention to quit and patient dissatisfaction, and was also highly associated with the level of errors.
I draw this Committee’s attention to some of the conclusions in the report. Paragraph 22 states:
“It is clear from our witnesses that although the People Plan presents comprehensive ambition to address the failings in the culture of the NHS, and address the needs and wellbeing of NHS staff, its delivery will depend on the level of resourcing allocated to these priorities. Without adequate funding the laudable aspirations of the People Plan will not become reality.”
Paragraph 23 states:
“We recommend that the Department publishes regular, costed updates along with delivery timelines for all of the proposals in the People Plan.”
That is something we are trying to turn into reality with our amendments.
Turning to the specifics of amendment 40, paragraph 24 of the Select Committee report states:
“The absence of a People Plan for social care serves only to widen the disparity in recognition and support for the social care components of health and social care. The Government should rectify this as a matter of urgency in their upcoming work to reform the social care sector; and it is essential that it is included in the social care reforms promised this year.”
Some reforms have been promised, but we still await the further White Paper on integration, which we have touched on many times.
“The adult social care workforce has stepped up to the plate during the pandemic. They deserve the same care and attention that the People Plan pledges to NHS colleagues.”
We wholeheartedly agree with the sentiments stated there.
Edward Argar
I am grateful to all the hon. Members for tabling the amendments. They relate to increasing the Government’s accountability for assessing workforce planning and setting workforce projections. Before I turn to their substance, as the hon. Member for Ellesmere Port and Neston suspected, I entirely agree with the latter half of his sentiment about the achievement that is the NHS. I am not sure I would necessarily attribute that to unbridled socialism, which tends to fail where it is tried. However, as Opposition Members will know and as set out well in the book written about Nye Bevan by their right hon. Friend the Member for Torfaen (Nick Thomas-Symonds), which I re-read over the weekend, the genesis of the NHS was a complex one, which owed much to all parties in the House.
Justin Madders
I am glad the Minister has time to be reading such excellent tomes over the weekend. Can he remind us what the Conservative party did when voting on the original National Health Service Act 1946?
Edward Argar
Could the hon. Gentleman remind me what the Labour party did when in government, resulting in the resignation of the architect of the NHS?
The point I make is a serious one. The genesis of the NHS which, quite rightly, we are all proud of and recognise as a great achievement, is far from as simple as sometimes it might be portrayed by both parties in the House. The hon. Gentleman is right to highlight the fact that while the new hospitals we are building, the developments in drugs and therapeutics, and the new technology and new kit are all hugely important, they are limbs of the NHS. Its beating heart is its workforce and he is right to highlight that. I join with him, as I often do on these occasions, in paying tribute to all those who make up that beating heart.
Continuing to grow the workforce remains a top priority for the Government. Although I may disappoint some hon. Members, I am genuinely grateful to those who tabled amendments and spoke to them today, because this is a crucial debate, and I suspect the matter will continue to be raised, not just during the passage of the Bill but, rightly, more broadly. As ever, I am grateful to my right hon. Friend the Member for Kingswood, who brings a high degree of expertise to this subject, as the only hon. Member or right hon. Member to have occupied both the office that I now occupy and that of Minister of State for Universities, Science, Research and Innovation. He brings to the Bill the perspective he has gained from both those offices.
When I got this job back in September 2019, which seems like an age ago, I was responsible for workforce for a few months, until that responsibility was taken on by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) at the beginning of 2020. One of my first visits was to the University of Lincoln, which had just opened its medical school. That medical school had been campaigned for very hard by my hon. Friend the Member for Lincoln (Karl MᶜCartney), who was out of office at the time, and by the then Opposition Member for Lincoln.
The hon. Member for Bristol South is absolutely right to highlight the importance of local medical schools. Lincolnshire, for example, has a challenge in attracting and retaining a workforce. We are already in the early stages of seeing a growing workforce of people there who are likely to start their careers in Lincoln. When I visited, my right hon. Friend the Member for Kingswood was remembered with fondness. I did not take it personally that they almost seemed disappointed to see me and not him, but that is a reflection of the affection in which he is held and the respect for him in this sector.
As the shadow Minister rightly said, yesterday I again resumed responsibility for the NHS workforce and I look forward to working with him constructively on these matters, which is the way we tend to work. We will consider the role that all stakeholders can play in identifying the needs and opportunities around the workforce. I always value input and I echo the words of my right hon. Friend, which I hope will find favour with the shadow Minister, that that includes input from professional bodies, think-tanks, NHS bodies and the trade unions. There may be times when we disagree, but I look forward to working with all of them constructively and courteously, as I do with the shadow Minister.
This year, we have seen record numbers of nurses and doctors working in the NHS, and the total number of NHS staff has increased to almost 1.2 million. There are over 17,800—2.9%—more professionally qualified clinical staff working in NHS trusts and clinical commissioning groups than in June 2020, including over 2,700, or 2.3%, more doctors and over 8,900 more nurses.
We continue to make good progress towards meeting our manifesto commitment of 50,000 more nurses by March 2024. Encouragingly for future workforce supply, applications for nursing and midwifery courses in England were up 21% this year compared with last year, and we have seen the highest number of students accepting places in the past 10 years. Through Health Education England, we will continue to invest in the NHS and social care workforces, and an additional duty is not required for this to happen.
I will not repeat the point that the shadow Minister very kindly made about the July commission. I will certainly look into the status of the response to that report. He will recognise that even when we do not agree, which is not that often, although there are such times, I endeavour to be efficient and courteous in responding to such matters, so I look forward to picking up on that with my new responsibilities.
Justin Madders
I certainly did not intend to upbraid him for not responding, given that he took over responsibility only yesterday. He will be aware of the importance of the report and of an official response.
Edward Argar
I am, of course, and I reassure the hon. Gentleman that prior to the reshuffle I was looking at a number of issues related to the recovery of our workforce. A fit, healthy and supportive workforce is crucial to that. I have read and considered the report, and, with my new responsibility, I will endeavour as swiftly as I can to ensure that the Government respond as appropriate to the Committee, and to Committee reports more broadly, in a timely fashion.
We believe that the proposed duty in clause 33, which inserts proposed new section 1GA into the National Health Service Act 2006 in order to require the Secretary of State to produce a workforce accountability report at least every five years, addresses one of the main issues in the current system: the need for greater transparency and accountability for the various bodies involved in the workforce planning process in England. The proposal in the Bill is to ensure that there are proper structures and accountability for ensuring that the necessary workplace planning and projections are carried out and co-ordinated effectively by the various bodies in the system. For example, the report will set out the role and responsibilities of the new ICBs and how they will support the delivery of effective local and national workplace planning.
Draft guidance issued by NHS England, which covers the role of ICBs regarding the workforce, sets out the direction of travel in that regard. It sets out the ICBs’ responsibility to develop system-wide plans to address current and future workforce supply for the local area, with demand and supply planning based on population health needs. The guidance also refers to their responsibility to provide workforce data to regional and national workforce teams in order to support aggregated workforce planning and to inform prioritisation of workforce initiatives and investment decisions.
I fear that my remarks may be a little more lengthy than usual, but I think that that reflects the importance and breadth of this issue. Turning to the other amendments in the group, amendment 2 would require the Secretary of State to publish the report on assessing and meeting the workforce need annually, rather than at a minimum of every five years. I acknowledge the witnesses’ comments, which the shadow Minister has rightly highlighted, but we need to be a little cautious. We cannot predict all future evolution and needs, which is why we have mandated the report to be published at a minimum of every five years. That flexibility allows us to provide an updated report in order to reflect any changes to roles and responsibilities earlier than the statutory required period, if necessary, but requiring an annual report would impose an unnecessarily prescriptive and, I fear, rigid arrangement on the production of this document and would be disproportionate to the level of change in roles and responsibilities that we expect to see in the system on an annual basis. I therefore suspect that it is a matter for debate as to what the most appropriate timescale is—we have therefore set a minimum period, rather than a maximum period.
Amendment 40 seeks to go further than our current duty on reporting workforce accountabilities, by requiring the report to set out the system in place for assessing and meeting workforce needs, both of the health service and of social care. As the shadow Minister has alluded to, and as he and I agree, our 1.5 million-strong social care workforce is an absolutely essential and valued part of the social care system and, indeed, our broader healthcare system in this country. Social care workers are on the frontline, caring for and supporting people at the heart of their communities.
I understand the intention behind the amendment, but I fear that we will not be able to accept it today. The scope of clause 33 as it stands has been carefully drafted to ensure that it reflects the statutory role and responsibility of HEE, which will assist in the production of the report. As a result, the workforce accountabilities report will cover the NHS in England, including primary, secondary and community care; the regulated adult social care workforce where sections of the workforce are shared between health and social care—for example, registered nurses and occupational therapists; and the regulated public health workforce, including doctors and other regulated healthcare professions. Regulated professionals in adult social care are therefore already included in the scope of the report, but HEE has no specific remit for the wider, unregulated adult social care workforce. I can reassure the Committee, however, that the Government are working hard to bring forward a White Paper for adult social care. As the shadow Minister rightly alluded to—he repeated his comments, so I will repeat mine—the proposal set out by the Prime Minister will build on the strong foundations for reform and integration that will be laid through the Bill.
Justin Madders
I will not tempt the Minister to tell us what will be in that, but his confidence that it will be an improvement on the current position is noted. Does he anticipate that the White Paper will also include a very clear commitment to a workforce strategy, along the lines that we have discussed?
Edward Argar
I do not know whether the shadow Minister has seen what I was about to say, but after two years of doing this together, he has become relatively psychic. I anticipate that the White Paper will set out in detail how we propose to fund social care professionalisation, as well as initiatives or plans to improve workforce wellbeing and further reforms to improve social care recruitment and support.
Justin Madders
I would just like to say a few words about amendments 40 to 42, if that is acceptable, Mrs Murray. We wish to press amendments 40 and 41 to a vote, with your permission. It is clear from the evidence that there is a demand for something to be done. It is interlinked with patient safety and cannot be ignored. Our main concern is: if we do not do this now, when will we?
Amendment, by leave, withdrawn.
Amendment proposed: 40, in clause 33, page 40, line 7, leave out ‘the health service’ and insert ‘health and social care services’—(Justin Madders.)
This amendment would require the Secretary of State to publish a report on assessing and meeting the workforce need for both health and social care services.
Edward Argar
I will endeavour not to be on my feet at that moment.
Clause 33 inserts new section 1GA into the National Health Service Act 2006, which sets out a duty on the Secretary of State to report on workforce systems. Under the duty, the Secretary of State is required to publish, at least once every five years, a report describing the system in place for assessing and meeting the workforce needs of the health service in England. A duty is also placed on HEE and NHS England to assist in the preparation of the report, if asked by the Secretary of State to do so.
As we have discussed this morning, the report will describe the workforce planning and supply system for healthcare workers, including those working in the NHS and public health, alongside regulated healthcare professionals working in social care and other sectors in England. The report will be published at a minimum—I emphasise in each of my remarks that word “minimum”, although the shadow Minister may feel that it is not sufficient—of every five years. However, I can commit to that publication cycle being kept under review by the Secretary of State, should circumstances change.
Clause 33 will provide greater clarity and transparency on how the workforce planning and supply system operates in England. The report produced under it will describe in one single document the workforce planning and supply roles and responsibilities of relevant national bodies, including the Department, HEE and NHS England, the new integrated care boards and individual employers, and how they work together in practice at national, regional and local levels.
Clause 33 will complement our ongoing non-legislative steps and investment in workforce planning in England. In July 2021, the Department commissioned HEE to work with partners to review longer-term strategic trends for the health and social care workforce. This important programme will review, renew and update the existing long-term strategic framework for the health workforce—HEE’s framework 15—and will genuinely help to ensure that we have the right numbers, skills, values and behaviours to deliver world-leading clinical services and continued high standards of care.
Alongside the work that we are already doing with NHS England and HEE, clause 33 will further improve accountability for all the bodies involved on the important subject of planning for and meeting future workforce supply and demand.
Justin Madders
I will not detain the Committee for long; I have said more than enough on the subject—not persuasively, clearly.
The Minister made the point that I did not think that a minimum of five years was sufficient for a report on the workforce, and that is absolutely correct—and I am not alone, by any stretch of the imagination. Every stakeholder and every person who gave evidence to the Committee said that five years was simply insufficient to deal with the magnitude of the challenge that we face. If the Department really wants to grasp the nettle, it should be taking heed of what those stakeholders said.
The workforce is a very complicated and ever-changing issue. It is part of a world market in healthcare staff. What the right hon. Member for Kingswood said about his amendment was important: simply to dip into other parts of the world when we are running short is not a solution. Not only is it morally difficult to justify, but it does not represent a long-term solution—we are as prone to losing staff to other parts of the world as anyone else. People will remember that the junior doctors’ dispute resulted in an exodus to Australia and other parts of the world. Going around the world and dipping into other countries’ healthcare resources is not a solution to the challenges that we face. We are not going to divide the Committee on clause 33, but we think that it is insufficient.
I repeat the Health and Social Care Committee’s finding that
“workforce planning was at best opaque and at worst was responsible for unacceptable pressure on staff.”
That really cannot be ignored. We cannot keep kicking the can down the road. I hope that when the clause gets to the other place, there is more success in putting the onus on the Government to deal with the challenge.
Edward Argar
I hear what the shadow Minister says, and I hope that I can give him some reassurance: the Government will continue to reflect very carefully on the points made both in the debate today and in our evidence session.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Health and Care Bill (Tenth sitting)
Justin Madders ExcerptsTuesday 21st September 2021
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 September 2021 - (21 Sep 2021)
Edward Argar
The shadow Minister has made a number of serious points—I am not sure how one spins the wheels when the car is stalled, but none the less I took his point. First, at the heart of this Bill is the fact that we seek to strike the appropriate balance between what is clearly a national health service, accountable to the Secretary of State and Parliament, and local flexibilities and local integration. The debate we will have for the next two hours or so will probably be about whether we have struck that balance appropriately, but that is the core of what we are seeking to do here.
The hon. Gentleman rightly talked about the importance of local authorities in this space. He and I share a common view on that, and he is right: one of the few things in the 2012 Act that I suspect he would have agreed with was the recognition of the public health function of local authorities. We are not seeking to do anything in the Bill to undermine that function in any way. It will not surprise the hon. Gentleman to know that I believe that the Bill provides for multiple layers of integration. Within a local NHS system, at an ICB level and then at an integrated care partnership level, there will be increased integration with local authorities and others, laying the foundations for the ambitious programme that the Prime Minister set out when he spoke earlier in this Session about the health and care levy.
The hon. Gentleman spoke about combined authorities. My recollection—I may be wrong—is that they date to about 2016, rather than 2012, and my understanding of the power is that it does not go against what he was saying, but provides for the continued evolution of the system and enables that delegation to take place. In practical terms, I would envisage that, where local authorities combine and work together, they would have their own arrangements, and we are not seeking to cut across those local working arrangements.
The hon. Gentleman also talked about the ICBs, saying that they are NHS bodies and asking whether this is a threat to local authority delegation of public health functions. My reading of that is that, as I mentioned in my opening remarks on these clauses, there are some public health functions that are NHS and delegated through CCGs, such as GPs participating in child immunisation programmes—hence the reference to ICBs, because they will be replacing CCGs in the new world.
Understandably, the hon. Gentleman talked about funding for public health. On his comments about the bigger picture on funding and spending levels more broadly, I simply remind him of the note left by a previous Chief Secretary to the Treasury:
“I’m afraid there is no money.”
We cannot get away from that context in this space, but more broadly he is right to highlight the importance of public health. The past 18 months have shone a light on public health; under Governments of all political complexions, public health has not always enjoyed that prominence in public debate, external media and other commentary. One thing that I hope will follow on from the terrible events we have endured over the past 18 months is a greater understanding and appreciation of public health and its measures, and for public health to enjoy the support it needs to do its job. I think all Members would agree that one of the few positives has been the recognition of the value of public health and prevention.
I think that those were the main points that the hon. Gentleman raised. I see these clauses as permitting a further evolution of the system and a recognition of the need, ideally, where we can, to further delegate powers from the Secretary of State to lower down within the system. On that basis, I hope the hon. Gentleman and his colleagues will feel able to support the clauses.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Clause 36
Power of direction: investigation functions
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move amendment 108, in clause 36, page 42, line 33, at end insert—
“(10) Nothing in subsection (2) supersedes Part 4 of the Health and Care Act 2021.”
This amendment will ensure nothing in new section 7D of the NHS Act 2006 about the Secretary of State’s powers to direct HSSIB supersedes what is in part 4 of the Bill.
It is a pleasure to see you in the Chair, Mr McCabe, and to see the Minister back again. We heard about his increased workload this morning; I also saw him on the Treasury Bench during the urgent question. I wonder where he finds the time—he should speak to his trade union rep if he feels there are too many demands being placed on his time. We will do our best to ensure that this afternoon is as stress-free for him as possible; if he accepts our amendments, that will go some way towards enabling that.
I will not speak for long on amendment 108 because we will be talking extensively about the Healthcare Safety Investigation Branch later on in the Bill. Concerns have been expressed in briefings received by the Committee and in evidence about some of the relevant provisions in the Bill, particularly on access to information. Clause 36 looks at the proposed power over bodies that have investigatory powers, which include HSSIB. It is difficult for us to accept the clause as it stands without having gone through all the details on HSSIB, because we cannot possibly know whether our concerns will be resolved about how it will operate in practice. That is why we have put forward amendment 108.
The amendment would ensure that the powers in clause 36 do not in any way impede the important principle that HSSIB will be an independent body established by the Bill. In conjunction with further amendments, which we will no doubt get to in part 4, we can all be confident that HSSIB’s independence is sacrosanct. That is important for not just us as parliamentarians, but everyone within the NHS who may have reason to come across HSSIB. It is also important for patients, of course, because they will ultimately be the judges of whether HSSIB has been a success. It would be helpful to understand what the approach will be in relation to maternity investigations. HSSIB has a potentially important role in identifying how providers can sustainably and systematically improve the quality of such investigations and then provide appropriate support. However, ensuring proper accountability, clarity and independence remain important, and this amendment seeks to ensure that those matters are enshrined on the face of the Bill.
Edward Argar
I am grateful to the hon. Gentleman; I made it in rather slower time down to the Chamber to listen to the statement. After one of our sittings last week, I think the hon. Member for Nottingham North was on his feet asking a question in the Chamber before I had even made it out of this room, which shows a certain speed that I can only seek to emulate.
I appreciate that the amendment is linked to the independence of the Health Services Safety Investigation Body. The Government are clear that HSSIB will be independent, which is why it is being set up as a non-departmental public body, with a chief executive—to be known as the chief investigator—and executive and non-executive members. I hope I can reassure hon. Members that clause 36 is a temporary measure to ensure that the current Healthcare Safety Investigation Branch can continue to exist in the interim phase before the new body is established.
As I am sure hon. Members are aware, the merger of NHS England and NHS Improvement means that the NHS Trust Development Authority, of which the Healthcare Safety Investigation Branch is a part, will be abolished. We need the important investigation function that the Healthcare Safety Investigation Branch provides to continue until HSSIB is fully operational which, subject to parliamentary approval, is planned for spring 2023.
The power set out in clause 36 is designed to enable the Secretary of State to direct NHS England, or another public body, to carry out the investigation function in the interim period. I reassure hon. Members that the HSSIB will be independent. Clause 36 is not designed to infringe upon its independence and cannot be used to direct the new HSSIB in how it exercises its functions; it is there simply to ensure the continuity of current investigations until the 2023 start date. For those reasons, I ask the hon. Member for Ellesmere Port and Neston to consider not pressing the amendment to a vote.
Justin Madders
I am reassured to some extent by the Minister’s words, but we have seen over the past 18 months that temporary powers do have a habit of becoming rather more permanent than was originally intended. I think it would be perfectly possible for the Government to include some sort of sunset clause to ensure that the intentions set out by the Minister are adhered to, but we may come back to that. As things stand, we maintain our criticisms, and it would be remiss of us not to push this matter to a vote.
Question put, That the amendment be made.
Alex Norris
The Minister rightly pointed out my mixed metaphor, so I will undertake to avoid metaphors in this contribution. It is hard not to feel like an undercard to the main event here—that is a simile, of course, rather than a metaphor, and I gave no such undertaking on similes.
I might surprise the Minister by agreeing with bits of what he said: we do not intend to divide the Committee on clause 37 and we do think that there is an important distinction between the powers in clauses 37 and 38, which I think will come out in the debate. However, if we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State.
Alex Norris
And of course the Minister, through appropriate delegation, and we are all the better for it. The Minister can quote me on that—but not on a political leaflet, as that would be very challenging for me.
Covid has shown that the public think that the politicians they elect are accountable for the decisions taken in the interests of their health, however they might manifest in ordinary life, so I think the repeal of the duty to promote autonomy, set out in clause 62, probably follows inevitably from that. We want an expert-run health service that works together and follows the best available evidence and science, not one that is unaccountable and diverges from the interests and expectations of the public at large.
That leads me nicely to clause 37. It is possibly a tautology to say that if someone is held responsible for something, they ought to have responsibility for it, as the clause set outs. To put that bluntly, with more than £100 billion of spending—40% of the Government’s revenue budget—going into that area, people will expect political accountability. If NHS England is not seen to be acting in the public interest at the highest possible levels, there ought to be a mechanism, by exception, to correct that. It is the exceptional part that is really important.
That is defined negatively in the clause by what the Secretary of State may not do—for example, hiring or firing an individual, which I think is right, or directing the healthcare of a specific person. I do not think the Secretary of State would want to be in that position with important cases of individuals who are in the public sphere, or have the ability to act outside NICE guidelines on drugs or treatment, as happens in such cases. I do not think that is a good system, hard though it may be when prominent cases come to our attention.
That gives us a common-sense reading of what these clauses provide for the Secretary of State. Yes, the buck stops with the Secretary of State and his political colleagues as a collective if there are major failings in the health service or major failings of Government and of leadership, but the clause does not give Ministers carte blanche to pick and choose—undoubtedly with political pressures in mind—whether to involve themselves in the detailed running of the service. I think that will be covered in clause 38.
A concern raised by the Nuffield Trust in evidence was that there should be a stronger mechanism by which such decisions can be scrutinised. Will the Minister address that? I heard what he said about publication of information about the Secretary of State’s decisions, but why not provide for a parliamentary mechanism by which decisions could be scrutinised? That would ensure public confidence that there is no Executive overreach or direction at a low level of how our healthcare service operates, which I do not think would be at all desirable. I hope that the Minister will address that in his remarks.
Karin Smyth (Bristol South) (Lab)
I would like the Committee to take a moment to mourn the loss of the principle of autonomy as a guiding driver of the health service over some 20-plus years. That principle is part not just of the Lansley reforms, but of previous Labour reforms, and indeed of reforms by the Government before that. The idea was that the system would become more efficient and responsive with more autonomous units, rather than a great mass of health authorities, hospitals and systems that are rarely understood by local people, and that the competition of autonomous units would drive financial and service efficiency, for example. This is quite a moment, and I do not think we should just let it pass.
When I was a member of a primary care trust, which I may have shared earlier, our local region had “earned autonomy.” That meant that if we did certain things particularly well—bringing waiting times and waiting lists down, or fulfilling financial balance requirements, for example—the local team, board and chief executive would earn more autonomy to do more. In modern parlance, things became more permissive, and they were trusted to do something.
Justin Madders
I am a little confused, because my hon. Friend is talking about the end of autonomy, but everything we have heard from the Government is about how permissive the Bill is and how it will leave people free to make their own decisions. I must be missing the point somewhere, mustn’t I?
Karin Smyth
I am grateful to my hon. Friend for making that point, which we will come on to when we discuss the following clauses. If there is no autonomy, but we are trying to be permissive, we come back to the vexed issue that the Minister alluded to earlier: where the balance lies between national and local accountability. We will come to that in further clauses.
I will not long mourn the loss of autonomy—I am not sure it really worked—but it is a principle for people to locally manage the units. As I said in relation to financial management in a previous session, if it is very clear that a chief executive or a finance director has responsibility for their bottom line, that drives a certain amount of focus and responsibility. I find it a little extraordinary for the Conservative party to be promoting the lack of autonomy. I hope hon. Members will take a moment to reflect on the seismic change we now have in the direction of our public services and the next era of the NHS.
Edward Argar
If I may, I will turn to the amendments first and then the substantive clause. I am grateful to hon. Members for tabling the amendments. I said that the previous clause was coming to the main business of the afternoon, but I now suspect that was but an hors d’oeuvre to the discussion we may have on this clause and this set of amendments.
Amendments 102 and 103 would require the Secretary of State to consult all relevant health overview and scrutiny committees before making a decision on a reconfiguration. Amendment 103 would also require the Secretary of State to have regard to, and publish, clinical advice from the ICB’s medical director. It is of course vital that local views are represented in any reconfiguration. However, although I understand the rationale behind these amendments, I do not think they are strictly necessary. The new power will not replace the important role that local scrutiny and engagement plays in service change decisions; we expect the vast majority of reconfiguration decisions to continue to be managed by the local system, and system players will be encouraged to resolve matters locally where possible.
The Secretary of State will continue to be advised by the Independent Reconfiguration Panel, which is being retained. The focus of the IRP is and will continue to be the patient and quality of care in the context of safe, sustainable and accessible services for local people. It has also provided the system with advice based on its experience to date around critical success factors.
If I may go down a slight rabbit hole here, I would like to put on the record my appreciation for the work of the IRP. Certainly during my tenure in this post, I have consulted it and seen its advice on a number of occasions, and I am grateful for the work its staff do, the speed with which they do it and the benefit I have gained from that advice in making decisions or advising the Secretary of State on particular decisions.
In practice, the Secretary of State will always need to seek appropriate advice from clinicians, local leaders or other experts before making any decision, and all decisions made using the powers inserted by clause 38 and schedule 6 must be published. This will ensure transparency and allow for proper scrutiny of the way the power is being used.
Schedule 6 also includes the requirement for NHS commissioning bodies, including integrated care boards, to give the Secretary of State any information or other assistance required to carry out any functions under the schedule. It is envisioned that the Secretary of State will obtain information from NHS commissioning bodies when making reconfiguration decisions. This will include any representations that an HOSC, stakeholder, patient group or any other interested party have made, if applicable.
All decision making on reconfigurations, at both local and ministerial level, will continue to be guided by the four tests laid out in existing guidance that reconfiguration should be assured against: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
As such, we believe that clause 38 and the guidance that the Secretary of State is required to produce under the powers in schedule 6 will provide sufficient safeguards to ensure that the Secretary of State receives appropriate advice before using the powers in this clause. As a result of not accepting amendment 103, we will also resist amendment 102, which is consequential on amendment 103.
Amendment 104 would require the Secretary of State to publish, alongside any decision they have made under this provision, a statement demonstrating that the decision is in the public interest. The Secretary of State is accountable to Parliament for all his or her decisions. Ministers are expected, as a core principle of the constitution, to act in the public interest, and this is reflected in the ministerial code. In addition, the Secretary of State’s scrutiny and direction-making process on this and any other matter must already take into account the public law decision-making principles, all relevant information and their legal duties, including the public sector equality duty, that adhere to such decisions.
The Secretary of State is also under a number of duties set out in the National Health Service Act 2006, including a duty to promote a comprehensive health service, to secure continuous improvement in quality of services, and to have regard to the NHS constitution. As I have already set out, the Secretary of State will continue to be advised by the IRP, and will seek appropriate advice from clinicians, local leaders or other experts.
As for paragraph 4 of schedule 6, the Secretary of State already has a duty to publish any decision they make on a reconfiguration and to notify the NHS commissioning body of the decision. For those reasons, I urge the hon. Member for Nottingham North to withdraw his amendment—I suspect that I will be unsuccessful in that plea, but I make it none the less.
I will now address clause 38 and schedule 6. The clause inserts proposed new section 68A and proposed new schedule 10A into the National Health Service Act 2006. It also introduces schedule 6, which includes a new intervention power to allow the Secretary of State to call in a reconfiguration of NHS services at any stage of the process, without the need for a referral from a local authority. A reconfiguration of NHS services is a change in service provision that has an impact on the manner in which a service is delivered at the point at which the service is received by the user, or the range of health services available to individuals. That could be, for example, a change in where a mental health in-patient unit is based, building a new stroke unit, or restructuring a whole hospital trust.
The new intervention power will enable the Secretary of State to act as a scrutineer and decision maker for reconfigurations, to intervene where, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is significant cause for public concern. We do not expect or intend to use the power with any regularity, and where it is used, it will be done so transparently. As I have emphasised, the Secretary of State must publish any decisions made about reconfigurations.
Schedule 6 sets out the scope of the reconfiguration powers as they pertain to NHS commissioning bodies, NHS services, NHS trusts and foundation trusts. It introduces a new duty for the relevant NHS bodies to notify the Secretary of State of any proposed or likely reconfiguration. The Secretary of State will be able to take any decision that could have been taken by the NHS commissioning body. That includes the ability for the Secretary of State to decide whether a proposal should proceed, the results the NHS commissioning body should achieve, and the procedural steps that should be taken. As I set out earlier, decision making will continue to be guided by the four reconfigurations tests. The new power will not replace the important role that local scrutiny and engagement play in service change decisions.
As the shadow Minister set out, the public expect Ministers to be accountable for the health service, which includes reconfigurations of it. The clause ensures that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, often coming at the end of a long local process. As now, he would not be alerted to a potential change in services until the change became an issue and he would remain powerless to intervene without a formal referral by a local authority.
I am conscious that that existing arrangement satisfies few in Parliament, including Opposition Members, on the occasions when they make representations about the process. However, it will be for this debate to see whether Members feel that the proposed new arrangement satisfies them—I will not prejudge that for a minute, looking at the faces of the Opposition Members. I therefore commend clause 38 and schedule 6 to the Committee.
Justin Madders
I congratulate the Minister on his valiant attempts to defend the powers that he wishes the clause and schedule 6 to give his boss.
The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.
We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.
Edward Argar
I fear we may not have consensus in Committee at this point, but none the less I will endeavour to answer some of the points raised. I am always grateful to the shadow Minister for his kind offers of help and assistance, and he will know that I always reflect carefully on the evidence we have heard and on the opinions of hon. Members on both sides of the House. I welcome his welcoming of the publication of the impact assessment in time for him to be able to quote it back at me. Finally, I thank him for his heartfelt and kindly offer of alternative approaches, given his concern for my workload were these proposals to be approved. I am touched on a number of levels by that, and equally by his suggestion that I and others have been engaged in the dark arts of spin—heaven forbid.
In the context of clause 38 and these amendments, right hon. and hon. Members, including my right hon. Friend the Member for Kingswood, have raised a number of important points that bear further reflection. As we have said throughout this process, the challenge with this Bill is striking the right balance between being permissive and ensuring accountability at a national level, and we believe this clause plays a key part in doing so. I disagree with the shadow Minister’s view—although I respect it—that the clause does not strike the right balance, and I do not believe that the powers set out in it are disproportionate, as he has suggested. He has highlighted the role of the IRP. I mentioned my gratitude for its work in my opening remarks, and I was very clear that that work will continue. The IRP will continue to give the valuable advice it has given thus far.
I do not believe that the notification requirements will prove unduly onerous: a notification can be a very simple process. To the shadow Minister’s point about timeliness, process and definitions, we are working very closely with the NHS and other partners to produce guidance that will set out clear expectations about how and when the powers will be used, and how they will be exercised. In his remarks, he touched on a concern that Ministers might be beset by lobbying from the public and others. I would argue that such lobbying would clearly point to greater public engagement with such matters and increased transparency, which are things that we might welcome. For fear of upsetting my hon. Friend the Whip, the Member for St Austell and Newquay, I will pass over the invitation that the shadow Minister and others have extended to my colleagues on the Government Benches to break the Whip. I saw the expression on my hon. Friend’s face when that was suggested, so I strongly discourage any of my right hon. or hon. Friends from contemplating that course of action. Even though a reshuffle has only just happened, there is always another one at some point.
The shadow Minister mentioned the Health Service Journal, which I enjoy reading. All I would say is that we continue to engage with a wide range of stakeholders, as we have done throughout the process. Indeed, I think that in her evidence, Dame Gill Morgan highlighted the collaborative nature of the genesis of this Bill. I intend to continue with an open and transparent approach, discussing with colleagues and engaging with them and others, because we know that we can always learn by listening.
Justin Madders
I am finding the Minister’s response very entertaining, but he really does need to tell us exactly what is wrong with the current system that this Bill is going to fix.
Edward Argar
I will come to the shadow Minister’s point, but I just want to get through the points he made earlier in his preamble. He mentioned the quote in the Health Service Journal article from a spokesperson for the Department of Health and Social Care, and I think that quote accurately reflects the nature of this Bill. I am grateful to those officials from the Department who ensured that the Health Service Journal got its quote.
I now turn to the substance of the shadow Minister’s argument and some of the gritter points that he, the hon. Member for Bristol South and others have alluded to. Fundamentally, he asked what challenge this Bill seeks to resolve. He asked a few other questions as well, which I will try to answer.
We believe that the Secretary of State should be able to intervene in reconfigurations for which they are ultimately accountable, and that this proposal will increase accountability to Parliament and the community by enabling intervention at an earlier stage. Too often, controversial proposals are referred at the very end of the process after a huge amount of work, effort and expenditure, rather than at an earlier stage when there is already a divergence of opinion in the local community. The Bill gives the Secretary of State an opportunity to take a view—based on advice and on the IRP’s four tests, which will continue to be the basis of that—and to get earlier intervention, where appropriate. That is one of the key reasons.
I will carry on, and the shadow Minister will nod if I am missing anything. He touched on local authority engagement, who can refer, whether there is a diminution in power—I think the hon. Member for Bristol South might have mentioned that—and what qualifies the Secretary of State to make those decisions. He also referred to local knowledge.
Edward Argar
We anticipate the guidance setting out what is proportionate, the criteria and the appropriate point at which an intervention can be considered. I come back to the point that too often, under the current arrangement, proposals come forward right at the end of the process, after huge amounts of expenditure, effort and time, only to be overturned—potentially at the very last moment—on the basis of the referral. Having a measured and proportionate intervention power at an earlier stage is the right approach to save a lot of angst and possibly money, although we do not anticipate that the power will need to be used on many occasions, because the vast majority of reconfigurations are broadly consensual, or reach a local consensus.
The shadow Minister alluded to local authority referrals, and the hon. Member for Bristol South has highlighted the importance of local authorities and local accountability in a number of previous speeches and interventions. The new call-in power will not replace the important role that local scrutiny and engagement play in service change decisions. Decision making on all reconfigurations, as I said, will continue to be bound by the four tests against which reconfiguration should be assured: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
The IRP will continue to provide the independent clinical advice to inform the Secretary of State’s decision making. His scrutiny and direction-making process must take into account the public law decision-making principles, all relevant information and all legal duties, including the public sector equality duty.
In that context, the Secretary of State will also continue to be bound by his duty on quality of service. That includes promoting the comprehensive health service and securing continuous improvement in the quality of services provided. The new call-in power for reconfiguration will allow the Secretary of State to support effective change and to be more responsive to the concerns of the public—and of Members of Parliament as their representatives—at an earlier stage.
Justin Madders
Reflecting on the Minister’s comments about why the provision is needed, my understanding is that the power to give the Secretary of State the opportunity to intervene at an earlier stage means that, in effect, local health systems will not spend an awful lot of time and effort coming to decisions that will ultimately be overturned. I wonder whether the Minister can give us any more detail or any thoughts about why, in a system that was generally thought to be working well, a decision could go all the way through that process and, at the end of it, be deemed to be wrong.
Edward Argar
One particular example comes to mind, but given that it is a live one, I will not use it. However, if I semi-anonymise it, there are decisions that are made locally and followed through, and only at that last moment is the process challenged—for example, whether a consultation was done properly—so it triggers a potential referral to the IRP, which could see that process overturned. An earlier power to intervene and an earlier opportunity to engage could in many cases avoid that problem and lead to a smoother process.
Let me make a final point. I would expect most reconfiguration decisions to be managed by the local system, and system players will be encouraged to resolve matters locally where possible and not to require any referral to the Secretary of State. Where cases are highly contentious and require ministerial input, our proposals will allow the Secretary of State to intervene. He is accountable in Parliament for reconfigurations. The shadow Minister made the broader point that if we ask who is responsible for the NHS, people will say the Secretary of State, or potentially the Prime Minister. That is already there in people’s minds. It is right that we have commensurate powers in the Bill to enable the Secretary of State to properly discharge that function and accountability.
I remain touched by the hon. Gentleman’s kind concern about the volume of work I may end up having to do as a result of the measure. I do not quite share his concerns, but I am none the less touched by the thought.
I urge the hon. Member for Bristol South, perhaps in vain, not to press her amendment to a Division, and colleagues on the Committee to support the clause.
Question put, That the clause stand part of the Bill.
Health and Care Bill (Eighth sitting)
Justin Madders ExcerptsThursday 16th September 2021
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 September 2021 - (16 Sep 2021)
Edward Argar
It is a pleasure once again to serve under your chairmanship, Ms Elliott. Government amendments 12 and 13 are both technical amendments that clarify the commissioning responsibilities of integrated care boards. Clause 15 introduces proposed new section 3 of the National Health Service Act 2006, which places a duty on integrated care boards to commission a range of non-primary health services. The duty to arrange for the provision of primary care is dealt with elsewhere in the Bill.
In the Bill as introduced, there was no specific reference to medical services. Instead, non-primary medical services were considered to be covered by the broad provisions of new section 3(1)(f) and (g), and primary medical services were dealt with elsewhere in the Bill. Similarly, there was no specific reference to ophthalmic services. Instead, non-primary ophthalmic services were considered to be covered by the broad provisions of new section 3(1)(f) and (g), and primary ophthalmic services were dealt with elsewhere in the Bill.
However, the equivalent duties for clinical commissioning groups specifically reference these medical services and ophthalmic services, so the removal of an express reference to non-primary medical services and ophthalmic services generated some concern, which I hope to reassure the Committee is misplaced. There is no change of policy in this area, but to avoid any potential confusion these amendments put beyond doubt the fact that integrated care boards are responsible for these services, and replicate the current language.
Justin Madders (Ellesmere Port and Neston) (Lab)
We will not oppose the amendments or, indeed, clause 15. I think it is important, as the Minister said, to make it very clear that the relevant provision in clause 15, proposed new section 3(1), on ICBs providing services that they consider necessary, does not mean that they can unilaterally withdraw services. That is the concern that has been raised, and I think it is important that it is on the record that that is not what is intended.
Jo Gideon (Stoke-on-Trent Central) (Con)
It is a pleasure to serve under your chairmanship, Ms Elliott. I seek some clarification. With demand for palliative care set to soar because of our ageing population, I would be very grateful for any assurances that my hon. Friend the Minister can give that the reference in clause 15, in line 30 on page 13, to “after-care” includes palliative care and end-of-life care services.
The Chair
We now come to clause 19, to which 15 amendments have been tabled. Although amendments 77 to 79, 4, 56, and 80 to 82 have not been selected for debate as no member of the Committee has signed them, if any Member wants to move those amendments, would they please indicate?
Clause 19
General Functions
Justin Madders
I beg to move amendment 45, in clause 19, page 16, line 2, at end insert—
“(c) make arrangements to ensure that patients can access services within maximum waiting times in accordance with their rights in the NHS Constitution.”
This amendment places a duty on each integrated care board, in the exercise of its functions, to meet maximum waiting time standards.
The amendment would insert in clause 19 a new requirement on integrated care boards, in addition to the many requirements set out in the clause, to ensure that patients could access services within the maximum waiting times as set out in the NHS constitution. I expect the Minister will tell us that those requirements are already set out in the constitution and that the amendment is therefore unnecessary, but if the answer is that that is an effective tool for ensuring compliance, by any account it has failed.
In every aspect of performance, the NHS has gone backwards in recent years and there can be no doubting the strength of connection between that going backwards and the decade of austerity that the NHS has endured. It is more than five years since the 18-week standard has been met, and that has led to the record waiting lists we see now. In case there is any doubt about this, let me put it on the record that waiting lists were already at record levels before the pandemic, and despite all the fanfare from the Prime Minister following the national insurance rise, we still do not have a guarantee that they will go down during this Parliament.
Let us not forget why the last Labour Government introduced the standards. Years of underfunding under the 1979 to 1997 Conservative Government led us to a dark place. People were waiting months—sometimes years—to access treatment, and that was rightly identified as a priority to fix by the last Labour Government, who wanted to let record investment into the NHS, but also wanted to ensure that that investment was targeted and effective so that the NHS could be judged on its performance. As a result, the targets were introduced.
Targets and funding combined proved to be effective, which is why, by the time the Labour party left office, the NHS had record satisfaction levels and waiting times that today’s Secretary of State can only dream of. Little wonder the rhetoric in recent months has increasingly been that of scepticism about the benefit of such targets, culminating in the Secretary of State’s words at the weekend that the targets are, in fact, “nonsense”. Well, I think we can see what is going on. Targets have got hopelessly out of reach and there is no real plan for to how to change that, so the Government seek to undermine and ultimately change—or remove altogether—the targets, so that poor performance is disguised or played down.
That does a disservice to the patients who are waiting months—in some cases, sadly, years—for the treatment that they are entitled to. Most of those people will be in significant pain. All will be unable to live their lives to the extent that they would like. Some may be unable to work or undertake other physical activities. We do not need to go through the full list; we can all understand the impact that waiting for treatment can have on individuals. In many cases, their lives are effectively put on hold. They deserve better. The amendment would make it clear that their rights as patients under the constitution meant something and that the ICBs should be expected to focus on delivering those standards.
Edward Argar
I am grateful to the shadow Minister for tabling the amendment and giving us the opportunity to debate it. Of course we understand the importance of reducing waiting times. The Government are committed to increasing activity, tackling backlogs and ensuring that patients can access timely healthcare, backed up by the record investment announced by the Prime Minister and the Chancellor—indeed, some might agree, to a degree copying what the Labour Government did in putting up national insurance.
For instance, to tackle backlogs and drive up activity, the Government are providing £2 billion of elective recovery funding, which is double our previous commitment, and we are working to encourage innovation to help patients to get the care they need. In his remarks, the shadow Minister highlighted funding. I would point out to him the fact that, despite inheriting a note saying “Sorry, there is no more money,” we have continued to increase spending on the NHS.
Justin Madders
I am grateful for the Minister’s vain attempt to persuade me to withdraw the amendment, although he rather missed the central thrust of its purpose, which is, of course, to point out that this is not just about funding; it is about focusing that funding. That is why the targets were introduced in the first place.
We believe it is important that ICBs are also given that focus; we could call it an incentive or a prioritisation. They should be keen to be seen to be delivering that. This is such an important part of the NHS—how are we to judge each ICB’s performance if we do not know how they are performing on waiting lists? This is an important area. We think the general tone and the rhetoric from the Government are that waiting targets are not of significance, so this is an opportunity for them to put right some of the stories that go around in respect of that by supporting the amendment. We will press the amendment to a vote in any case because we believe that this is an important matter, and it should be put on the record.
Karin Smyth
I will not repeat my comments of the other day with respect to an amendment that suddenly disappeared from the amendment paper without my noticing. The point I was making was that targets do drive behaviour, and we learnt something in that magnificent drive down from the Conservative Government’s target of 18 months to wait on a list, which seemed acceptable to them at the time. The wait is beyond that now for many services, which seems acceptable to the Government now, although it is completely unacceptable to everyone in my constituency.
We must consider the managerial and clinical effort involved in focusing on those waiting lists, which, as I have said previously, is about making contact with all those patients, assessing their condition and seeing how it has ordinarily deteriorated once on the waiting list. Sadly, many people have died while on those waiting lists. That effort is huge, and it will require focus.
The Government are asking us all to pay a bit more towards the health service, and most of us are conscious of the fact that that is needed. We can debate how it is being done, but we should know what it will get us. We should absolutely be clear to our constituents—given that they have suffered so much, particularly during the pandemic—that the previous standards were not acceptable, and were not being met, and that it is completely unacceptable to ask people to pay more without their having any idea of what that will bring, or indeed of the Government’s intent with regard to how long they think it is acceptable for people to be on a waiting list.
It is also hugely onerous on the clinical managerial staff to manage these waiting lists in the way that they are, which is hugely inefficient. This is a really bad sign of the flow through the system; we have bottlenecks throughout. It will come back to haunt the Government and whoever is speaking on their behalf at this time—I have no doubt about that. I say that with sorrow because it is miserable all round. The Government would be wise to make some kind of assessment of what they think is an acceptable time to wait for various treatments, so that would be clear to people. Supporting our amendment would give some indication of good faith, at the very least.
Justin Madders
My hon. Friend has described the amendment very well, and it would be good to know the Government’s intentions in respect of waiting lists, because we consider the rhetoric a distraction and a nuisance. It is politically convenient for them to have such headlines. We want to put the amendment to the vote.
Question put, That the amendment be made.
The Chair
That is absolutely fine. I thank the hon. Member for advising the Committee of that.
Justin Madders
I beg to move amendment 58, in clause 19, page 17, line 4, at end insert
“through working with innovation and life sciences ecosystems, facilitated by Academic Health Science Networks, to ensure patients and the public have timely access to transformative innovation.”
This amendment would mandate Trusts to work with AHSNs to promote innovation in health services.
Innovation has allowed us to conquer certain diseases and come up with better and more effective treatments for others. It is integral to societal progress and is a major source of inspiration, new opportunities and, indeed, new financial burdens for the NHS. Most importantly, it means improved outcomes for patients. Innovation needs to reach patients if we are to get the full benefit of the many incredibly talented people who make up our academic and research community.
Academic health science networks have an informal role in the NHS, and there is no obligation on any CCG to work with them to ensure that new, innovative medicines are available. There are 15 academic health science networks across England, which were established by NHS England in 2013 to spread innovation at pace and scale, improving health and generating economic growth. Each network has a distinct geography, covering a specific population in each region—it almost sounds like an integrated care system, but there are not quite as many. They are the only bodies that connect to the NHS and the academic organisations, and are catalysts that create the right conditions to facilitate change across health and social care communities with a clear focus, as we believe should be the case, on improving outcomes for patients. We think they are uniquely placed to underline and spread innovation at pace and scale, driving the adoption and spread of innovative ideas and technologies across large populations, but their effectiveness rests on their ability to bring people, resources and organisations together quickly, delivering benefits that could not be achieved if they operated in isolation.
Everything those bodies do is driven by two imperatives: improving health and generating economic growth in our regions. They are the only partnership bodies that bring together all partners across a regional hub economy to improve the health of local communities. They have a remit from NHS England to occupy what is effectively a unique space outside the usual NHS service contracts and performance management structures, enabling them to collaborate to foster important solutions.
Those bodies use local knowledge to harness the influence of partners to drive change and integrate research within health improvements. They are interested in seeing healthcare businesses thrive and grow, creating jobs, bringing investment and seeing the system improve. They have a different focus, but they share the following priorities: promoting economic growth; fostering opportunities for industry to work effectively with the NHS; diffusing innovation; creating the right environment; and supporting collaboration across boundaries to adopt and spread innovation at pace and scale. They improve patient safety by using knowledge, expertise and networks to bring together patients, healthcare staff and partners to determine priorities and to develop and implement solutions. They optimise medicine use—[Interruption.] Perhaps I have predicted what the Minister was about to say?
Edward Argar
I am envying the shadow Minister’s breath control as he runs through his list.
Justin Madders
I am merely trying to ensure we make good progress today.
Those bodies ensure medication is used to maximum benefit, including safety and making efficient use of NHS resources. They improve quality and reduce variation by spreading best practice—we often talk about the variation among outcomes across different parts of the country. They put research into practice, collaborate on national programmes, and have a unified focus on various initiatives, including the NHS innovation accelerator and patient safety collaborative programme.
The amendment would bake in that good work, some of which I have outlined, by including those bodies within the scope of proposed new section 14Z39 of the National Health Service Act 2006 regarding innovation.
Karin Smyth
I rise to support my hon. Friend. We have rightly criticised much of what has happened in the last few years, but we should also remember that some amazing partnerships and networks have developed, including in my area—Bristol, north Somerset and south Gloucestershire—with the universities and others in both primary and secondary care, bringing together clinicians, researchers and so on. They stumbled initially as things were difficult at the beginning, but they have come together very well. They are well regarded—variable but well regarded—and are a useful source of innovation coming together, so I fully echo my hon. Friend’s comments.
Justin Madders
I am grateful for the Minister’s comments. The Opposition would not want to be accused of being over-prescriptive—that is certainly not what we intend. I appreciate what the Minister said about not wanting to limit the role of ICBs and he made a good point about the vaccine roll-out being a pertinent example of how innovation can be of huge benefit. That may be at the forefront of his mind because there is now a vacancy in the Department in the role of Minister for Covid Vaccine Deployment; the Minister may be looking to add to his already extensive portfolio.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Skidmore (Kingswood) (Con)
I beg to move amendment 7, in clause 19, page 17, line 7, leave out from beginning to end of line 9 and insert—
“(a) support the conduct of research on matters relevant to the health and care system,
(b) work with universities and other research settings to support the development of the health research workforce and careers, and
(c) promote the use in the health and care system of evidence obtained from research.”
This amendment would require Integrated Care Boards to work with universities to support research in their local health and care systems.
Justin Madders
I am grateful to the Minister for that herculean effort in listing all the powers and responsibilities of ICBs. For a permissive Bill, the fact that it sets out 12 duties suggests that the pendulum has swung a little bit further than the Minister was perhaps prepared to admit on Tuesday. Of course, the number would have been even higher had our amendment been accepted, but there we go; a dozen is still an impressive amount. However, it is really about what that means in practice.
The Minister referred to the duty whereby ICBs are required to promote awareness of the NHS constitution. In the context of the debate that we have just had on NHS waiting lists, it strikes me as similar to the scene—it might be familiar to many Members—at the end of each “Bullseye” episode, when the speedboat that the unlucky contestant had not succeeded in getting was brought out, so as to say, “Look what you could have won!” In this case, it is, “Look what the NHS constitution says about waiting times. By the way, we are not delivering on that for you.” That is the nub of some of the duties—how will they be enforced in practice? The Minister referred to mechanisms for NHS England intervention, although we would have liked that to be further strengthened with specific reference to waiting lists.
I note that in proposed new section 14Z59(4), NHS England has retained the ability to terminate the appointment of an ICB chief executive, but also to direct the chair of the board as to which individual to appoint as their replacement and on what terms. That is quite a strong power. The way I read that, if NHS England decides to get rid of someone, it, and it alone, will decide who will replace them. That really goes against the spirit of what we have been discussing for the last couple of days. Would the Minister be able to allay my fears in that respect, or at least put into context the circumstances in which that clause might operate?
I was interested to hear what the Minister said about proposed new section 14Z47 and ICBs’ ability to offer grants and loans on whatever terms they see fit. It now seems that the “B” in ICB stands for bank, or possibly building society. Obviously, at the moment these bodies do not exist in law and so have no capital resources to draw on to create such grants or loans, but of course that will change in due course. Again, will the Minister advise the Committee in what kind of situations that might be a possibility?
Finally, I draw the Committee’s attention to the powers and responsibilities in proposed new section 14Z52, on health and wellbeing boards’ comments about forward plans. Like much of this, it is a process-driven, tick-box exercise where people have to “take regard” and explain why they are not doing something that everyone else has asked them to do. A whole lot of this raises the question: in a disagreement, what are the levers to get proper accountability and change that the whole of the system, apart from the ICB, wants to see?
Chris Skidmore
Although I entirely support clause 19 as an essential ingredient of the Bill that will provide certainty and legal confidence to ICBs, I wish to draw the Minister’s attention again to the duty to promote research. The past year has demonstrated the increased engagement, across all healthcare settings, in research and those activities relating to the pandemic.
Research demonstrates the enormous benefits not only to patients, but to organisations that see improved outcomes, lower mortality rates and increased confidence in care as a result of being research-led organisations. It also shows the staggering gross value added that is produced within the NHS—£2.7 billion in 2018-19, through the National Institute for Health Research clinical research network that supports clinical research activities. For every patient recruited on to a commercial trial between 2016 and 2018, the NHS in England received more than £9,000. When a drug is replaced by a new one—a trial drug—there is another saving of nearly £6,000.
Research not only improves lives; we know it saves lives. I am a passionate advocate for expanding our research and development capacity across society if we are to succeed as global Britain. That is one reason we have that cross-Government target of raising the amount spent on R&D, both public and private, to 2.4% of GDP by 2027.
I want to come back to this idea of the duty to promote research. I recall serving on the Bill Committee for what became the Health and Social Care Act 2012, when the duty to promote research was first written into legislation, with the duty on CCGs. That has now been transferred across in the text for ICBs, in proposed new sections 14Z39 and 14Z40 to the National Health Service Act 2006.
As my hon. Friend the Member for Vale of Clwyd mentioned, the duty to promote may not be strong enough. I do not have an amendment to hand, but I wanted to raise this point more generally so that the Minister and his Bill team might give it some consideration. Given that ICSs are established as the strategic system leaders for the NHS and partner organisations to deliver integrated care and take that whole-systems approach, research will have to be a core element of ICSs’ regional plans if we are to maximise the strengths of the NHS, our world-leading science capability and the opportunities I have spoken about.
I therefore urge the Government to consider whether there might be an opportunity to change the duty to promote into a duty to conduct and resource clinical research during the passage of the Bill. It is important to stress that a duty to promote has to be accompanied by the necessary infrastructure: staffing levels, research capability, digital resources, access to services, efficient trial approval processes, the ability to reliably recruit patients, guidance and dedicated staff time for research. The whole idea of “promotion” is doing a lot of heavy lifting. There might be an opportunity for us to be more detailed in creating a duty to conduct and resource clinical research.
Such a duty—this has been raised with me—would present the opportunity that research brings to highlight clinical inequalities within the NHS. We need to be able to measure research activity; we cannot manage or even promote research activity unless we are able to measure it effectively. With that comes the whole question of clinical auditing—making sure that there is an effective auditing process in place to ensure that research-led activities are able to be effectively measured and therefore effectively managed. I am sure that that will be raised in the other place during the passage of the Bill. I act as a canary in the coalmine to provide the Minister with due warning that I am sure these debates will come up during the passage of the Bill in the other place.
Edward Argar
I am grateful, as ever, to my right hon. Friend the Member for Kingswood for his comments. I hope I can reassure him that the issues he raised, and the issues that he has aired in the Committee today, will continue to be reflected on carefully by officials and Ministers during the passage of the Bill.
I will try to address the specific points raised by the hon. Members for Ellesmere Port and Neston and for Arfon. The hon. Member for Ellesmere Port and Neston touched on the appointment of chief executives and the termination of appointments. That power is broadly akin to the current power that CCGs have, and we are simply moving across the power that NHS England has over CCGs to reflect the new environment of integrated care boards.
Justin Madders
I am grateful for the clarification from the Minister, but does that not expose our fear that, really, ICBs are just bigger CCGs?
Edward Argar
No, because at the heart of ICBs is an enhanced integration and partnership-working model, which will be a significant step forward to facilitate improved patient care in our constituencies and localities.
The power to make loans is analogous to the power that exists for CCGs.
The hon. Member for Ellesmere Port and Neston touched on forward plans and health and wellbeing boards. The ICB will have an obligation to consult the health and wellbeing board, including in respect of whether it takes into account the latest joint health and wellbeing strategy and provides the HWB with a copy of its plan.
On Wales, I fear that I may have to write to the hon. Member for Arfon with some of the answers, but I shall try to give some now so that he has at least something today. We are seeking not to make a policy change or anything like that but to carry the existing situation for CCGs across into the new arrangement. We have been consulting and working closely with the Welsh Government. I suspect that, as we heard from the witnesses, some in the Welsh Government may suggest that we should consult more closely, while others will say the consultation is adequate. I believe I have a good relationship with the Health Minister in the Welsh Government—I spoke to her only yesterday about a number of aspects of the Bill—and at official level conversations are constantly ongoing.
The hon. Member for Arfon touched on joint committees, which will involve ICBs and their Welsh equivalents. We would not expect private providers to serve on them because they will in effect exercise an ICB function. On Tuesday, I made it clear to the Committee that it is not our intention that private providers should serve on ICBs, so they should not serve on joint committees either. We will have further discussions with the Opposition Front-Bench team and others as to whether we can find a way to make that clearer in the legislation.
Finally, accountability remains essentially unchanged. The NHS in Wales is accountable to the Welsh Government and ICBs will be accountable to NHS England and, therefore, to the Secretary of State. The hon. Member for Arfon touched on the challenge of divergence or disparity of provision. I suspect that, in a sense, it comes baked into a devolution settlement that when power is devolved down there is sometimes a divergence of approach or there are different services. That is in the nature of any devolution settlement where specific services or functions are devolved. For example, as we have seen in our exiting from coronavirus regulations, the devolved Administrations have the right, under the settlement, to pursue the approach that they deem to be most effective.
I hope that I have addressed a number of the points made by the hon. Member for Arfon. I see my officials frantically scribbling down his other questions; we will endeavour to check Hansard and write to him with anything we have missed.
I commend the clause to the Committee.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Integrated care partnerships and strategies
Dr Davies
I thank the Minister for that response. I know that my hon. Friend the Member for Eddisbury is particularly keen that these matters are covered within statutory guidance, but, with the leave of the Committee, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Justin Madders
I beg to move amendment 47, in clause 20, page 31, line 31, at end insert—
“(3) The Secretary of State must make regulations which set out the procedure to be followed should an integrated care partnership believe that an integrated care board has failed in its duty under this section.”
This amendment would require the Secretary of State to establish a procedure for the resolution of any dispute between an integrated care partnership and an integrated care board concerning the implementation of a strategy produced by the integrated care partnership.
The Chair
With this it will be convenient to discuss amendment 83, in clause 20, page 31, line 31, at end insert—
“(3) Where—
(a) in exercising its functions a responsible local authority or integrated care board diverges from an assessment or strategy mentioned in subsection (1), or
(b) in exercising any functions in arranging for the provision of health services in relation to the area of a responsible local authority NHS England diverges from an assessment or strategy mentioned in subsection (2),
that local authority, that integrated care board or (as the case may be) NHS England must—
(a) (i) within 30 days, make a public statement of its divergence from the assessment or strategy, and
(ii) within 60 days, publish its reasons for the divergence, together with any supporting evidence.”
Justin Madders
I will talk briefly about amendment 83 which has been grouped with amendment 47.
Amendment 47 focuses on the whole discussion that we have had, and that we will continue to have, around integrated partnerships and what they will be able to do to deliver for their communities. I do not know if “Marmotisation” is a word; if it is, this could be seen as the first step towards that, but we will see how it works in practice. We must be clear, however, that this is a first step. The names of the partners being bandied about shows that this Bill is about the integration of not just health and social care but the whole wider public sector and other partners, and shows, too, that health issues permeate almost every walk of life. This certainly does not, as evidenced by the Prime Minister’s comments last week, constitute a solution to the integration of health and social care.
Putting that aside, there is an opportunity here to do something different. However, for all the froth and grand statements about partnership working we fear we may be looking at giant CCGs with less GP involvement—we have made this point a number of times so I will not labour it. What we are presented with is a reorganisation of the NHS, not a panacea for integration. We have tried a couple of times already to elicit from the Minister what is missing from the Bill in terms of the integration that the Prime Minister believes necessitates a White Paper. I think the Minister might struggle sometimes to understand what exactly is going on in the Prime Minister’s head in relation to this—or indeed anything else that is going on in his head—but we await his response on that with interest.
I would like to make some general points on the relationship between the NHS and local authorities, because that is important. The Bill acknowledges that greater interaction is needed, but the big question is whether it actually delivers that solution. If there is to be a genuine generational shift from thinking of the NHS as dealing with sickness to contributing to overall wellbeing, that will be welcome, although if our amendment on patient outcomes had been accepted that would have been a better start. There have been some discussions around SDPs and ICSs in the Bill, and that gives us hope that there might be something here we can work with.
The need to bring services together and integrate is blindingly obvious, but it is also very hard to do as the following example demonstrates. A patient with a long-term condition such as chronic obstructive pulmonary disease, and with both healthcare and social care needs, has an acute episode and is admitted to hospital and is then discharged back into their home, which unfortunately suffers from a chronic damp problem—something many Members will know about from their constituency casework. The housing provider—a local authority, perhaps, or an arm’s length management organisation or registered social landlord—is doing its best, but it does not have enough resources to get to the root of the problem, so there is a liaison meeting where this case is discussed between the NHS and local councillors. The councillor for the area where the individual is located asks the chief executive of the trust whether it would be a good idea for some of the health budget to be invested in social housing so that people such as this individual would not be readmitted for a problem that is essentially caused by the property they are living in. The chief executive responds by asking why they would throw money away on something like that, even though a more holistic view shows that would be of benefit for everyone in the long run.
That illustrates why we need to work harder on integration, and it is not an isolated incident. As any councillor who has been in post for any number of years will know—if the Minister and I totted up between us how many years we have served, it would probably be quite a lot—sometimes it is difficult to have the level of interaction with the NHS that we would like. As an aside, I might add that children in care meetings or care around the child meetings are incredibly important, but often the GP does not attend because they have many other priorities.
We have talked about this many times, but the vaccine roll-out has been an exemplar of how local government and the NHS can work together. That was a specific task at the time of the national crisis. It is clearly more difficult to repeat that kind of synergy on a day-to-day basis, but it does show what can be done.
In Wales, the Government have a far-reaching strategy around the wellbeing of future generations. They have made a big leap, moving the NHS away from market thinking and focusing on the way it delivers its service to the public. Both Scotland and Wales have accepted the need for that approach, and their integrated joint boards, joint integration boards, health boards and local authorities have all been talking about integration for some time. Of course, they have the sense to make their health boards coterminous with local authority areas. That would have been a very wise move. We have already had some chat about devolved involvement and I am sure that we will return to that.
Justin Madders
The Minister has made some interesting points. I will have to come back on the reference to “weasel words”. I was a lawyer for a number of years, and when it comes to their use, I think that lawyers are probably second only to Members of Parliament in being able to use them.
There were many occasions when we were negotiating and drafting documents. Once, I wanted something to happen and another person said, “Well, we don’t want to actually make that an absolute commitment, but we intend to do it.” We always ended up with the compromise of reasonable endeavours. Best endeavours was another one. Often that led to one side being slightly disappointed, but that was usually the point of compromise. But that, I would suggest, is actually going further than what is in the current legislation, which is to “have regard”. That really is the nub of this, because we do not think that is enough to give the ICPs the teeth that they need and the strength and leverage that they might need if they are to be truly effective.
The Minister said that if there was a divergence, he would expect an ICB to put forward reasonable explanations as to why it was not going to follow a particular strategy. But that would then lead to the conclusion that if it was not able to do that, it was acting unreasonably, which of course could give rise to judicial review. That, I am sure, is a road that the Minister does not want ICBs and ICPs to go down. I do not think that would be in anyone’s interest, so we are actually, once again, trying to help the Minister out by coming up with a solution that avoids litigation and dispute and gives us confidence that we will not see a repeat of the lack of genuine engagement that we have seen in some areas in the past, but will see a real force, in legislation, to encourage the wider public sector to have real influence on the modelling of health policies and strategies in the future. Therefore we will—with your permission, Ms Elliott —press amendment 47 to a vote.
Question put, That the amendment be made.
Edward Argar
The clause introduces the integrated care partnership known as an ICP, as a joint committee of the integrated care board and local authorities in its geography. It gives the partnership its core function of preparing the integrated care strategy. The ICP was developed with the Local Government Association and NHS partners in recognition of the fact that the system has been calling for two different and important types of integration: integration within and across the NHS to deliver healthcare services within a defined locality, and integration between the NHS and local government and wider partners.
The ICP is intended to bring together health, social care and public health to develop a strategy to address the needs of the area also covered by the integrated care board. If the ICP wants to go further, it can also involve representatives from the wider system where appropriate, such as voluntary and community groups, and social care or housing providers. That will be up to the ICP, and we will welcome locally driven innovation to reflect local circumstances.
When preparing the strategy, the integrated care partnership must take into account the NHS mandate, any guidance from the Secretary of State and any relevant local joint strategic needs assessment. The ICP must also involve the local Healthwatch, as well people who live and work in the area. The strategy will need to look at how local authorities and NHS bodies can work together using arrangements under section 75 of the National Health Service Act 2006.
Local authorities, integrated care boards and NHS England, when providing services in the area, must have regard to the relevant integrated care strategy when exercising their functions, as well as, more locally, any joint strategic needs assessment or joint local health and wellbeing strategies. This will enable more joined-up planning and provision, both within the NHS and in local authorities. As a result, we would expect to see more integration of the services people receive, more efficient and effective commissioning, and closer working between local authorities and the local NHS.
The clause makes it a legal requirement for all ICBs and local authorities to establish an ICP for their area. These partnerships will promote and facilitate integration across health and care throughout England, thereby contributing to delivering on the ambitious aims put forward in the Bill to further integrate health and care systems.
Justin Madders
I will not detain the Committee as I have already said most of what I wanted to say. The Minister just talked about the ambitious aims to achieve integration. Obviously, they were not that ambitious; if they had been, we would not need another White Paper.
Justin Madders
We can never be too ambitious, can we? I will be interested to see those working practices. As hon. Members can probably gather, we are somewhat sceptical that the ICPs will really be the transformative and influential bodies that we want them to be. I will keep a close eye on what kind of partners end up on them. If we started involving every potential body in the Cheshire and Merseyside one, we would probably need to hire out Anfield to fit everyone in. It might be more entertaining than the football fare on there—we could have a Division on that. We will probably revisit this in future days, weeks and months. We will not oppose the clause but we wish to put on the record where we think its shortcomings are.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
NHS England’s financial responsibilities
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause provides for a number of financial responsibilities of NHS England and provides powers for the Secretary of State to direct NHS England in relation to those responsibilities. Clause 22 provides the ability to amend the provision in clause 21 that imposes a duty on NHS England to ensure that its expenditure, together with that of integrated care boards, does not exceed the sums received in a year.
On clause 21, proposed new section 223C of the National Health Service Act 2006 places a duty on NHS England to ensure that in each financial year, the expenditure of NHS England and integrated care boards does not exceed the aggregate amount received by them. It should be noted that that is in the context of the historic settlement for the NHS reached in 2018, which will see its budget rise by £33.9 billion by 2023-24. Proposed new section 223CA simply replicates a provision in the 2006 Act, which enables the Secretary of State to specify the banking facilities that NHS England may use.
Proposed new section 233D of the 2006 Act enables the Secretary of State to give directions to NHS England concerning resource use. Any directions given by the Secretary of State under that proposed new section must be published and laid before Parliament. Proposed new section 223E empowers the Secretary of State to direct that the capital and revenue resource used by NHS England and ICBs for specified matters does not exceed a limit set.
Clause 22 could be commenced at a later date than clause 21. It would expand the duty on NHS England to ensure its own expenditure, as well as that of ICBs and English NHS trusts and foundation trusts, did not exceed the sums received by those bodies in a year. The clause is essential to ensure that achieving financial balance is inclusive of the finance of NHS trusts and foundation trusts. It recognises that NHS England must be mindful of the need to ensure that public money is spent as effectively as possible and in the best interests of the public we serve. However, we recognise that the NHS is moving out of an unprecedented period, so we will not commence the clause until it is ready. The provisions will help to ensure that there is clear accountability for public spending and that the NHS lives within its means.
Justin Madders
I will talk briefly about clauses 21 and 22, although with your indulgence, Ms Elliott, I will step over into clauses 23 and 24, because we cannot really look at these points without having some regard to those clauses. I promise I will not repeat the same points when we get to them.
We know that ICBs and NHS trusts will have spending limits, and that in theory they cannot go into deficit in any year, but the combined deficits of trusts before the pandemic was several billion pounds. Foundation trusts are in a slightly different position. Monitor is going—clause 26, which I suspect we will not get to today, goes into that, and it reads quite brutally in isolation—so it needs to be clear in the Bill how performance management and financial oversight will work in its absence. We still have questions about that, particularly how accountability will work with those new systems.
We see in these clauses a basic tension that NHS England will apply totals to systems, but individuals within the systems all have their own duties and responsibilities. We might think it is the ICB plus all the providers that deliver the services required, which are paid for by the ICB, but I am not sure that is how it will work in practice.
If I am correct, an integrated system is not defined in the Bill, so how do we control something that does not exist in law? Where accountability lies is very vague. The terminology used in proposed new section 233M, which is where the Bill tries to constrain aggregate financial spending each year, is:
“Each integrated care board and its partner NHS trusts and NHS foundation trusts”.
That suggests some kind of joint responsibility, but where community health services are provided by Virgin Care, that does not appear within that wording. GPs and their spend are considered outside, even though they are commissioned by the ICBs, so how do their costs fit into this system? There have to be some answers on that.
Edward Argar
I will be relatively brief because I am conscious of the fact that we have agreed to get through quite a few more clauses today, although I will try to address the points that hon. Members have made. One of the key issues at the heart of what I think the shadow Minister, the hon. Member for Ellesmere Port and Neston, was saying is around what happens if an ICB or a foundation trust spends beyond its limit. How does that work? What is the process? I am pleased that this brings some welcome clarity, rather than the fragmentation we sometimes see in accounting cashflow, following the cash processes at the moment.
First and foremost, local systems will be informed of their resource envelope at the start of the year and will be required to agree a plan that matches, or is within, that envelope. Therefore, all will start the year with a plan that sets out what is being delivered and how much funding they will receive to deliver those services. However, if overspends emerge within year, that should initially be resolved within the system by the individual organisation either finding offsetting savings or securing savings elsewhere within that system envelope. Through the financial duties imposed by the Bill, the system is encouraged to be collectively responsible for managing its funding envelope, moving away from what we often see at the moment, which is fragmentation in understanding how the money flows, and each organisation considering itself to a degree in isolation.
If the overspend cannot be managed within the system, NHS England and NHS Improvement can use the powers in the Bill to hold the system to account through mechanisms such as the system oversight framework and providing support via the recovery support programme, as well as more informal support from the local region. Additionally, individual trusts or FTs that are not working collaboratively within the system can be held to account using the provider licence and enforcement options available for breaches. Finally, of course, in extremis the Department of Health and Social Care can provide cash support to NHS trusts and FTs to ensure that services continue to be delivered.
The second concomitant part of the shadow Minister’s question was what action NHS England or the ICB can take in response to financial difficulties. Financial performance will be monitored by both of them, and in the first instance any difficulties will be resolved locally. However, as I have set out, tougher mechanisms or sanctions can be imposed on trusts that are not meeting their reporting and financial accounting obligations under the clauses.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22 ordered to stand part of the Bill.
Clause 23
Financial responsibilities of integrated care boards and their partners
Justin Madders
I beg to move amendment 53, in clause 23, page 35, line 14, at end insert—
“(5) NHS England must publish guidance on the means by which an integrated care board, NHS trust or NHS foundation trust which believes its capital resource limit or revenue resource limit risks compromising patient safety may object to the limit set.”
This amendment would introduce an objection mechanism when an Integrated Care Board, Trust or Foundation Trust believes its capital resource limit or revenue resource limit risks compromising patient safety.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 24 stand part.
Justin Madders
With this amendment, we are probably having another bash at the debate we have just had to some extent, but we are also making an important point about patient safety.
Edward Argar
Clause 23 provides for NHS England to set overall system financial objectives for ICBs, NHS trusts and NHS foundation trusts, which must operate with a view to achieving these objectives. This includes the ability to set limits on local capital resource use and local revenue resource use for ICBs, NHS trusts and NHS foundation trusts.
Clause 23 removes the sections in the National Health Service Act 2006 relating to financial duties of CCGs and replaces them with new sections setting out the financial responsibilities of ICBs and their partners. Improving population health requires the breaking down of silos. Traditional financial control focused on individual providers and organisations artificially creates barriers and fragmentation that get in the way of high-quality care.
The new approach will help to break down those barriers by enabling NHS England to set joint system financial objectives for ICBs and partner NHS trusts and NHS foundation trusts, which must operate with a view to achieving these objectives. This includes the ability to set limits on local capital resource use and local revenue resource use for ICBs, and for partner NHS trusts and NHS foundation trusts. NHS England can also give directions to ICBs, NHS trusts and NHS foundation trusts on resource apportionment.
I turn to amendment 53, tabled by the hon. Member for Ellesmere Port and Neston. I am grateful to him for tabling it as it gives us an opportunity to air a number of issues. It would require NHS England to produce guidance to set out a process whereby ICBs, NHS trusts or NHS foundation trusts could object to their capital and revenue resource limits. Although I understand the motivation behind the amendment, which is about ensuring that the NHS has sufficient funds to deliver services safely, I do not believe that it is needed. The ability for NHS England to set system limits is important to enable systems to effectively plan their services and it enables NHS England to meet its obligation on delivering system balance and its broader obligation to taxpayers.
The decision to allocate revenue funding to systems is based on a weighted capitation formula, which produces a target allocation or “fair share” for each area, based on a complex assessment of factors such as demography, morbidity, deprivation and the unavoidable cost of providing services in different areas, meaning that systems will get funding linked to their individual needs. NHS trusts and foundation trusts will be represented on ICBs, so they will play a role in deciding how resources will be allocated within the system. They can raise concerns about proposals, including with regard to patient safety, as part of the decision-making process, although we do not consider that these clauses would put patient safety at risk. Capital allocations already include a funding element to address emergency or patient safety needs, based on planning information from systems. The funding element is intended to be used to address any issues that could arise, including in the context of patient safety.
Furthermore, clause 24 futureproofs the ICB financial duties provisions. It provides for some of the provisions in clause 23 to be replaced and is designed to be commenced at a later date. Once ICBs and their partner trusts are deemed ready to take on greater financial accountability, clause 24 can be used to replace clause 23 with a new joint expenditure limit duty on the ICB and its partner trusts. At a time when it is considered appropriate, the clause will require ICBs and their partner NHS trusts and foundation trusts to exercise their functions in a way that ensures their expenditure when taken together does not exceed their income. The intended effect is that each local area is mutually invested in achieving financial control at a system level, meaning that public funds can be spent in a more sustainable, joined-up and effective way. This should enable a nimbler approach to expenditure where needs across the system can be addressed more flexibly and holistically.
Should unexpected needs for funding arise, there is another safeguard in place to allow NHS services to continue operating safely, as the Department can issue cash to NHS trusts and foundation trusts. For example, if emergency support is needed to address patient safety issues, trusts can apply for additional cash funding to safeguard delivery of care. It is for those reasons that I invite the hon. Member for Ellesmere Port and Neston to withdraw his amendment. I commend clauses 23 and 24 to the Committee.
Justin Madders
I do not know whether it is too late on a Thursday afternoon, but I did feel like I had wandered into an episode of “Yes Minister” there. I will not press the amendment to a vote, but I will read the transcript of what the Minister has said with some care over the next few days. I am not entirely clear that he has addressed the central points that were made, but we will no doubt return to this at some point anyway. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 ordered to stand part of the Bill.
Clause 24 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Jo Churchill.)
Health and Care Bill (Seventh sitting)
Justin Madders ExcerptsThursday 16th September 2021
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 September 2021 - (16 Sep 2021)
Alex Norris
I am grateful for the contribution from my hon. Friend the Member for Bristol South. I completely agree that where we will see the worst practices across footprints, each and every one will be secretive and not invite scrutiny, so it is very important that we set arrangements to ensure that that cannot happen.
I am grateful for the clarification that the 1960 Act will apply, which assuages my first concern. On the second, relating to the notice of board papers, the Minister has essentially said that local footprints will have to set that element of the constitution themselves, but that the safeguards and schedules will mean that NHS England has to sign them off. In that sense, there cannot be wide divergence, because the centre would not permit it. I reiterate that there should be commonality. I cannot see why it would be seven days in one place and five days in another. I do not know how we could explain that, so I hope that in those conversations the Minister stresses the need for uniformity. Perhaps the guidance might include strong encouragement on that. On the basis of the agreement that we have in principle, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move amendment 43, in schedule 2, page 123, line 2, at end insert—
“(5) An integrated care board must apply all relevant collective agreements for staff pay, conditions and pensions.
(6) An integrated care board must ensure that all relevant collective agreements for staff pay, conditions and pensions are applied throughout the area for which it is responsible.
(7) Any integrated care board which wishes to employ anyone directly on an annual salary greater than £161,401 must receive approval from their integrated care partnership before confirming the appointment.”
This amendment puts into primary legislation the current practice that NHS bodies honour collective agreements over staff pay and conditions and gives the integrated care board a role in ensuring this remains the case.
It is a pleasure to see you in the Chair, Mrs Murray. I would like to say that it is a pleasure to see the Minister, although when I saw the headline that two Ministers from the Department had been promoted to the Cabinet, I had expected that he would be among them—alas, not on this occasion. I am sure it is only a matter of time. Of course, if the Minister and other Members on the Government side want to keep their phones on in case a call comes through, we will not be offended if they have to pop out for a couple of minutes. I hope the Minister’s rush of blood and damascene conversion to the perils of privatisation at the end of the sitting on Tuesday have not blotted his copybook too much.
I turn to amendment 43, which plays into several points that have come up in the evidence sessions, particularly the anxiety that was mentioned by Sarah Gorton of Unison in her evidence to the Committee last week. She said that she wanted to see in the legislation confirmation of assurances that have been given verbally and in guidance. She referred to conversations that she had had—I am not sure with whom, but I assume with officials in the Department. Those conversations were to the effect that there was
“no intention for any new parts of the system to undermine the collective arrangements”.––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 96, Q129.]
and that the “Agenda for Change” agreement would continue to apply across the board and, indeed, to ICB staff. That is an important matter to seek assurance on. Anyone who has been involved in “Agenda for Change” will know that years of hard, torturous work were involved in getting that agreed. Certainly, on this side, we know the value of the staff and their trade union representatives, and the importance that collective agreements have in bringing issues to the fore and ensuring a universality in treatment and a common understanding of the basis on which the employer and employee move forward.
Of course, whatever the collective agreements say, the staff would like to be offered increases that actually keep pace with the cost of living, rather than the real-terms cuts that we have seen in the last decade. However, as an overall framework for ensuring staff are treated fairly and consistently, it is certainly not something that we want to be chipped away at.
I will not try to persuade the Minister of the benefits of collective agreements across other sectors—it would be well outside the scope of the Bill—but it is worth pointing out that there is plenty of evidence from across the world showing that where workforces have negotiated terms and conditions within sectors and across whole industries, they tend to enjoy better terms and conditions and, crucially, better rates of workplace satisfaction and staff retention. As highlighted in the report recently published by the Health and Social Care Committee, the NHS faces an enormous challenge in retaining its workforce.
We do not want anything to undermine “Agenda for Change”. Sadly, though, we have seen attempts to do that in recent years, with the creation of wholly-owned subsidiary companies. I will not return to the argument about whether those are a good thing, because we have said that they are not, but let us examine for a moment why trusts sometimes seem eager to set these companies up.
There are, of course, huge financial pressures on trusts. I will not rehearse the arguments on that, but they are always looking at ways to reduce their costs, and potentially with these subcos to boost their income. The VAT advantages have been a big part of that, but one of the big concerns—cash-pressed trusts may see this as a big opportunity—is that the subcos potentially have the ability to move away from “Agenda for Change”. That is the heart of it; it is not that the trusts have a major objection to “Agenda for Change”, but moving away from it allows them to set their own terms and conditions, which is really a euphemism for saving money and cutting pay. We think that that kind of approach is a false economy and, ultimately, self-defeating.
There are other examples of where the private sector will step in. We saw the news this week that King’s College Hospital Foundation Trust will transfer staff at its urgent treatment centre in Denmark Hill to Greenbrook Healthcare under a three-year contract, starting in October. Of course, staff will expect TUPE to apply, but, as we know, it is not a panacea. It does not protect terms and conditions for ever more, so it is little wonder that the news of that change has led the workforce to raise concerns.
Unison’s written evidence sought clarification from the Minister that
“it’s not the intention that ICBs depart from Agenda for Change”,
which the Minister gave on Second Reading. The written evidence also states that
“UNISON would support amendments to ensure that ICBs will apply the relevant collective agreements for staff pay, conditions and pensions, and be responsible for ensuring that these are applied within the wider system. In addition, further reassurances should be sought that nothing in the Bill will compromise the assurances already given in the Employment Commitment, the terms of which should endure beyond the point of staff transfer.”
The evidence continues:
“Recently published guidance lists 10 ‘outcome-based people functions’”—
perhaps that phrase could be translated into plain English at some point—
“that ICSs will be expected to deliver from April 2022… In addition, the guidance suggests that the responsibility for engaging with trade unions will rest with the regional teams of NHS England / Improvement rather than with ICBs”.
That runs the risk of depriving unions of access to those who might be making strategic decisions in their area—or perhaps it just speaks to a larger truth about where power will lie in all this. We have covered those concerns in our amendment to some extent, but we would like reassurance from the Minister on some of the points we have raised about how this will all work in practice.
In particular, we need reassurance that the system will not undermine existing provider responsibilities on engaging with trade unions. As hon. Members will know, the vast majority of NHS staff will not be employed in commissioning bodies such as ICBs. The strong relationships with individual provider organisations should be a supplement to existing national and regional partnership forums. The concern is that the new kids on the block, the ICBs, will in some way disrupt those arrangements.
If, as we are told, the new ICSs—to use the correct terminology—will be system leaders themselves, it is not impossible that some of those leaders will want to set their own path in tweaking employment matters. We might see circumstances in which some agreement about staff mobility within ICSs comes to the fore, particularly for those whose duties cross organisational boundaries. In principle, that is no problem, as long as no ICB thinks that, as a result, it can move outside existing collective agreements. Our amendment would rule that out.
It is essential that ICBs have a positive role in all this and that they follow existing practice by referring to collective agreements. We would not want a re-emergence of what we saw some five years ago, with certain trusts trying to undermine collective terms and conditions. Those attempts failed, but we never know when that might re-emerge. We also believe that the ICB should honour national agreements for the staff it employs.
That should not need to be said—as we have heard, assurances have been given—but it needs to be made explicit in the Bill to give us the cast-iron lock that both we and Unison would like. We would certainly like some further assurances about whether the ICBs have the potential to circumvent or destabilise existing arrangements, should they seek to forge their own path at some point. We see this amendment as bolstering the commitment to “Agenda for Change”—I hope that the Minister will confirm that commitment when he responds —so that ICBs’ broad powers are not seen as an attempt to undermine or conflict with the hard-won terms and conditions that have been collectively agreed.
Turning to sub-paragraph (7) in the amendment, which relates to pay limits, hon. Members will have seen headlines in the paper, on Tuesday, I think, about the highest-paid NHS managers being “cleared out”; I think that was the term that was used. I am not quite sure what that means, other than redundancy. The story refers to a Government-inspired audit, which was—at least on Tuesday—going to be led by the then Chief Secretary to the Treasury, the right hon. Member for North East Cambridgeshire (Steve Barclay), who has since moved on to other matters. That is a shame, because he used to hold the same role as the Minister does now, and he would know exactly where to look if there were indeed examples of unnecessary management and bureaucracy in the NHS.
That news follows the headlines we saw last week about some ICB executives potentially receiving salaries of £270,000. Let us be clear what we are talking about here: that is the pay of 10 nurses. It seems that someone somewhere in Government is exercised about the number of managers in the NHS, but according to the King’s Fund, the actual figure is somewhere below 5%, and many of those managers hold dual clinical roles. If the Government think there is a problem here, I am not entirely clear what they think the scale of it is, or what the consequences would be if thousands of managers in the NHS were made redundant. I am sure that was not covered in the impact assessment, but we have the benefit of that now.
To be clear, the amendment is not about bashing managers at all. Every organisation needs managers if it is to be effective, and they play an important role in enabling clinicians to get on and do their jobs on the frontline. I am sure the Minister would not want to leave managers in the NHS with the impression that has unfortunately been left by some of the headlines this week, namely that there is no role for managers in the NHS. One could be forgiven for concluding that from Tuesday’s headlines. If the Government think layers of management, bureaucracy or management costs have got out of control, we can do something about it.
Edward Argar
I am grateful to the shadow Minister, the hon. Member for Ellesmere Port and Neston, for his remarks on the amendment. I echo some of his comments, which we covered on Tuesday in Committee in response to the intervention by the hon. Member for Bristol South. Members on both sides of the Committee made clear our recognition of the value we place on those who work in the NHS, irrespective of whether they are managers, in clinical roles or in any other role. In our exchanges, we recognised the centrality of having good, high-calibre managers for what we all know is a huge system.
Amendment 43 would have two effects. First, it would require ICBs to apply to their staff all relevant collectively agreed terms on pay, conditions and pensions. Secondly, it introduces new rules for oversight of pay for the most senior ICB staff. The Government and the NHS remain committed to the principle of “Agenda for Change”. If it gives the hon. Member for Ellesmere Port and Neston further reassurance, I am happy to write to him, because this is a detailed point and I suspect he may wish to have something in black and white that sets out exactly our position on this. We recognise—he alluded to this—that there is a need for a degree of flexibility in some circumstances. He talked about people moving between roles, secondments and so on. I will turn to that in a moment before turning to the point about pay.
There is already a commitment in the ICS HR framework technical guidance that staff transferring into ICBs will transfer across on their current terms and conditions, in line with the “NHS Terms and Conditions of Service Handbook” requirements. The commitment states that NHS pension rights will be preserved, as the individual will continue to be employed within the NHS, ensuring that staff transferring into ICBs will benefit from that protection and will not see any change to their existing conditions. Furthermore, we would expect ICBs to use the nationally agreed pay and conditions framework for the overwhelming majority of the time.
The hon. Gentleman referred to some flexibility, and he was right to do so. There may be circumstances in which an ICB needs flexibility to recruit staff, to attract staff with very unusual or valuable skills, or to reflect local circumstances and the availability of certain staff. Therefore, an ICB may need to vary the terms and conditions in order to make a post attractive if the marketplace is very competitive. Equally, the Bill provides valuable flexibility—for example, in order to allow ICBs to employ on secondment staff who have previously been employed by a foundation trust or local authority. Given the emphasis that the Bill places on systems working collectively and sharing staff, that is a useful flexibility. I would argue that such flexibilities are not unique, because NHS foundation trusts also have a degree of discretion in adopting such conditions, although they overwhelmingly choose to honour and keep the existing terms and conditions.
If I recall correctly, the hon. Gentleman asked specifically about the view on the involvement of unions and staff where there was divergence or flexibility. I would hope that where there was any divergence or a need for flexibility, that would be addressed collaboratively. Ideally, there should be consent from those working in the organisation as well.
I turn to the proposals for very senior managers. I believe that procedures are already in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries, and proposals to pay very senior staff more than £150,000 a year must follow benchmarks or be subject to ministerial oversight. Ministerial oversight of salaries higher than £150,000 a year has been effective in managing the risk of salary escalations, and it provides for a national outlook across the public sector.
The hon. Gentleman referred to the former Chief Secretary to the Treasury, my right hon. Friend the Member for North East Cambridgeshire, who is now the Minister for the Cabinet Office. I do not think there is any inconsistency in what my right hon. Friend envisaged with the review. That should not be interpreted as a criticism or an attack on hard-working staff, but given the amount of money that is spent in our NHS on salaries at all levels, it is right that from time to time the Government look at that, review it and reassure themselves that the appropriate balance is being struck between fair remuneration for the work that is being done and value for taxpayers. I do not think I would read any more than that into it; it is simply the Government and Treasury being responsible with public money.
The hon. Member for Ellesmere Port and Neston will be aware that the Government are in the process of finalising the system for pay oversight that will apply to ICBs. Although the specifics may differ, the effect and intention will be the same: to afford ICBs a degree of agency and flexibility, so that we can continue to attract the most senior and experienced leaders, while also ensuring that we put adequate checks and balances in place to ensure that public money is well spent. Therefore, I would argue that the amendment is unnecessary. Once again, I gently encourage the hon. Gentleman to consider not pressing the amendment to a Division.
Justin Madders
I am grateful to the Minister for his comments, but I fear that I will disappoint him on this occasion. He mentioned the flexibilities that already exist, which we do not seek to change. I do not see anything in the amendment that would alter those. We have had a very clear commitment, and he has mentioned the guidance. Indeed, he may write to me—
Justin Madders
As he does regularly. I write to him regularly, too. He mentioned the importance of having this in black and white, and that is where we agree. We do need this in black and white, and the place for that to be is in the Bill, so we will press the amendment to a Division. I understand what he has said about ministerial oversight of ICB salaries, but if these bodies are to be locally run and accountable, we think the amendment would be entirely consistent with that aim.
Question proposed, That the amendment be made.
Justin Madders
Particularly in light of the changes that have been made with covid, one thing that has cropped up locally is that a lot of GP practices—they are basically converted houses—simply are not designed with the ventilation or space to ensure there is a safe distance between people. That points to the importance of this issue and the need for clarity on how we get these estates into a state that is fit to deal with covid.
Karin Smyth
I agree, and we will probably all have examples through the primary care networks of practices that were not in old houses but that had perhaps had a LIFT scheme or another new development. In my constituency, the Bridge View Medical practice was able to have a flow through the building and move patients downstairs because it had a large, fairly new building. The pandemic has shown that in an emergency we need to make sure that the community-based estate is brought together in some way. Actually, that applies not just to the health service, but to ex-local authority or even Ministry of Defence or other Government Department estates. The place-based aspect of the Bill should be encouraging people to do that locally. Because estates are not part of it, they will struggle to deliver on the service intent of the Bill.
Justin Madders
We will not divide the Committee on the schedule but as we have batted quite a lot of this about for a couple of days, it is worth reiterating some of our concerns in relation to how ICBs will actually work in practice.
Taking the Committee through the schedule, in paragraph 4 we have concerns about the chair having to be approved by the Secretary of State and, indeed, under paragraph 5 the chair can be removed by the Secretary of State, which could create tensions and speaks to the reality of how much autonomy these bodies will have. Paragraph 6(2) states:
“constitution must provide that a person is eligible to become or remain the chief executive only if the person is an employee of the integrated care board.”
That stands to reason, but the interim guidance on ICBs for the position of chief executive says that they must be employed or seconded to the ICB. Indeed, the chief finance officer, the director of nursing and the medical director can all be employed or seconded to the ICB, according to that guidance. We think that potentially represents a conflict of interest. It needs clarification, because what is in the Bill does not necessarily sit well with what is in the interim guidance. I wonder whether the Minister can clarify that.
Paragraph 7(1)(a) of the schedule talks about the constitution specifying who should be appointed as ordinary members. Again, the interim guidance helps in providing a list of suggestions regarding ordinary members. It is worth pointing out that, when we totted up all the people the guidance says are the minimum requirement for a board, it comes to 10 people. Although the Bill may say three, the reality is that the guidance says many more. Again, that speaks to the amendment that we tabled on Tuesday about the numbers on the board. The idea that the Bill is permissive is slightly betrayed by the detailed guidance. It depends on what is meant by “permissive”.
One particular mystery is in paragraph 7(3), which says:
“The constitution must set out the process for nominating the ordinary members”.
We know that ICBs will be able to set their own constitutions, approved by NHS England, but how the particular individuals on the boards will emerge still feels rather opaque. Of course, we hope that such things can be done by consensus and agreement. No doubt in the majority of cases they will be, but given the size of some of the areas it will be very difficult sometimes to get a geographical spread that represents the whole area and the various interest groups that constitute an ICB. Of course, diversity may also struggle to be accommodated within that. Such things are all fine and good in the Bill and in the guidance, but I think delivery on the ground will be slightly more difficult to achieve.
Paragraph 8 talks about qualification and tenure for membership of the board. I would be interested to hear the Minister’s comments on whether there is an optimal period of membership of a board. I think I saw two years somewhere in the guidance. I may be mistaken on that, but that seems a little short to me. I wonder whether he has a particular view on that. Paragraph 9 talks about constitutions being required to comply with any regulations that may come forward. Of course, the Bill has a lot of such clauses, where regulations will be produced in due course. I know this is slightly out of his control, but the Bill may not come back to us until much later in the year, if at all this year, depending on how the other place views it. That may mean that we are really down to the wire in terms of any enabling regulations that are needed under the Bill.
Paragraph 10 deals with the terms and conditions—a point that we discussed this morning. Paragraph 14 is quite interesting, because it talks about variation of the constitution, and how that should be done in consultation with NHS England. Indeed, NHS England will retain its own power to vary the constitution. It is important to put on the record that if such steps are taken to change the constitution, it is really important to involve stakeholders, the public, patients and workforce representatives. I hope that the Minister can fill me in on some of the details.
Edward Argar
I will try to address each of the shadow Minister’s points one by one, perhaps not in an entirely fluent way.
The hon. Gentleman asked about what he perceived to be an inconsistency between interim guidance and what is proposed in terms of secondees in similar employment. Actually, under paragraph 18(4) of schedule 2, the legislation allows for secondments to continue for those employed as chief executives. It specifies particular organisations, such as secondments from trusts, other parts of the NHS, such as NHS England, or indeed from the civil service. Given that specification, I do not believe that there is an inconsistency.
The hon. Gentleman touched on interim guidance and how that fits with what the Bill will look like once it is, as I hope, enacted. I would gently remind him that it is interim guidance—the key word being “interim”—to allow the continued evolution of ICSs at the moment, without pre-judging what the House may or may not do in terms of making them statutory. That guidance is there to allow them to continue on their path without having to sit and wait for the deliberations of the House on something that they are empowered to do and are already doing. I do not necessarily see the opacity to which the hon. Gentleman alludes but he may disagree.
The hon. Gentleman spoke about geography and the number of local authorities and other organisations involved. I suspect that he has got in mind his own particular geography of Cheshire and Merseyside and the size of the ICS there. That goes to the heart of why we are being permissive: we are setting out a minimum level, and therefore there is nothing to stop an ICS of that size, if it so chose, at ICB level to have a broader range of people sitting on it and a larger number. Each organisation will be able to judge what it thinks is the appropriate number of people to sit on its board to reflect the need for effective decision-making and effective local and organisational representation to reflect the broad geography of its remit.
The hon. Gentleman also asked about the optimal length of service on a board. I have to say in my experience, and I suspect in his from his days in local government, one sees a multitude of approaches in different public bodies. Some tenures are for two years or three years, or two years with a renewal presumed for another two years. I am not sure that there is a clear one size fits all, but there should be principles underpinning it, namely that one does not have someone who joins and never leaves the board, and one has to have the ability to refresh the board to bring in new skills. From my experience of sitting on various boards, including charity boards as a trustee or as a non-executive director, effective organisations need to conduct regular skills audits of their boards, to ask what has changed and what the organisation is lacking in the modern world. As time goes by, one needs different skills and different mixes of people. I would expect ICBs and ICPs to continue to look at what is needed to be at their most effective.
I hope that I have broadly addressed the main thrust of the hon. Gentleman’s points. The other points were those that he has quite rightly come back to, and which we debated at length when we considered his other amendments and those tabled by the hon. Member for Bristol South. On that basis, I encourage members of the Committee to support the schedule.
Question put and agreed to.
Schedule 2 accordingly agreed to.
Clause 14
People for whom integrated care boards have responsibility
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause requires NHS England to publish rules setting out which people each ICB is responsible for. We intend to recreate as closely as possible the arrangements that currently exist for clinical commissioning groups. However, CCG responsibility is based on a model of GP membership that will no longer exist under the new ICB arrangements.
The clause places a duty on NHS England to publish rules determining the responsibility of each ICB, subject to certain exceptions that may be created by secondary legislation. This is intended to replicate the ability to make exceptions to the responsibilities of CCGs by regulations in section 3(1D) of the National Health Service Act 2006. As with the existing regulations, the new regulations would be subject to the affirmative procedure of the House, which I hope offers some reassurance to the Opposition Front Bench in respect of the regulation-making powers. Therefore, there would continue to be strong parliamentary oversight of regulations under the clause.
Proposed new section 14Z31 ensures that no one slips through any gaps. The rules set by NHS England must ensure that everyone who accesses primary medical services, as well as anyone who is not registered with a GP but is resident in England, is allocated to a group of people for which an ICB is responsible. In practice, we expect NHS England’s rules to be framed in such a way that ICBs will be associated with certain GP practices, and responsible for patients registered with those specified GP practices. They will also be responsible for people who are not registered but are resident in the ICB geographical footprint.
Taking that approach is intended to ensure universality of coverage and to minimise the disruption of transitioning from CCGs to ICBs. The clause also provides a power to replace the duty on NHS England to publish rules dealing with ICB responsibility, with an alternative approach based simply on residency. If it is considered appropriate in the future, those new arrangements would mean that ICBs were responsible for those who usually reside within their specified geographical footprint. Regulations would be required in order to change that approach.
The clause provides the necessary certainty about which ICB is responsible for which people. Without it, there could be significant confusion about ICB responsibilities, difficulty in calculating financial allocations to ICBs based on those they are responsible for and uncertainty for providers about which people they are contracted to provide services to. The clause seeks to provide fluent continuity with the arrangements under CCGs, and explicitly does not allow people to fall through gaps. Ultimately, everyone will be the responsibility of an ICB and will be able to access care when they need it. I therefore commend the clause to the Committee.
Justin Madders
I will make some comments on clause 14. I think the Minister has anticipated to some extent what I might say. I may well drift into clause 15 as well, but I promise the Committee that I will not repeat those comments in the discussion on clause 15. There is clearly an overlap here. It really is about the issue that the Minister referred to: who is entitled to what within the comprehensive NHS? For some, this is a formality, repeating the language used before and the principles on which the NHS was founded. For others, every word change and new clause that appears in the legislation is an attempt to restrict access and allow an opening for cuts to services to be made in a time of immense financial pressure. We want, and I think the Minister has opened the door to this, to ensure that that is not what the Bill is about.
To be fair, there is a history of commissioners trying on occasions to restrict access. There was the Croydon list of some 20 years ago. Primary care trusts set out lists of services and said that the treatments had little or no value and should not be provided on the NHS. Of course, that led to huge debates between trusts and medical practitioners. It could be argued that people were defending their own particular practices and specialties, or they could be said to be champions of the NHS. Patients looked at it from both perspectives, but for the patients who relied on those services it was a very real debate and a very real source of anxiety.
A more recent argument on this came from the various attempts to apply NHS charges to certain people who it was argued were not eligible for free treatment. There is a very sinister echo of the phrase “no access to benefits”. The long-held consensus appeared to be under threat—the principle that emergency NHS care is open to all. When American tourists come over here and have to seek emergency treatment they are pleasantly surprised, and somewhat bemused, that they do not have to produce a credit card at the point of use. This is where the arguments begin to arise.
If a patient is moved from an emergency bed for elective care, they can be charged if they are ineligible for free NHS care. The usual test is whether they are ordinarily resident in the country. On principle, if someone qualifies for NHS treatment, they can get it anywhere in the country, while on holiday. Most of us have taken our breaks this year somewhere in this country. We do not have to go back to our own local A&E to get treatment. We could, in theory, get our elective operations anywhere in the country, should we wish. Pre-Lansley this did not matter as much, because it was always payment by results. Ambulances crossing borders may occasionally result in a cross-organisational internal charge. Maybe we will see an end to that kind of bureaucracy.
The other argument that emerged during the Lansley period was around who the responsible commissioner within a particular area or population was. That market approach required tying people to a GP practice. The GP register has been a central base from which decisions were made. Did that really affect things on the ground? It certainly caused a lot of debate. It would be helpful if the Minister provided clarity.
The issue of access is important, and clause 14 sets it out in subsections (1), (2)(a) and (2)(b) of proposed new section 14Z31 of the National Health Service Act 2006. According to the NHS, access is universal, but depending on their immigration status within the UK, a person may be charged for accessing certain services. However, certain services are free to everyone: treatment given in an A&E department, though this does not include further treatment following admission to hospital; treatment for certain infectious diseases, but for HIV/AIDS only the first diagnosis and counselling that follow are free; compulsory psychiatric treatment; and family planning services, but this does not include termination of pregnancy or infertility treatments. People ordinarily resident in the UK or who have an exemption from charging will not be charged for NHS treatment. I could go into what ordinarily resident means, but I will not detain the Committee by going through all of that. However, it is fairly clear that it can be a British citizen or someone naturalised or settled in the UK, usually known as having indefinite leave to remain.
The Bill does not cover any of this, but there is a point about it not necessarily being the same person paying for and receiving the treatment. There are questions about those seeking asylum and those who might be denied care because there are questions about where they live. There was the image of a paramedic stepping out of an ambulance and asking someone suffering a cardiac arrest whether they had some kind of identification to prove that they were ordinarily resident. The images are not common ones, but they raise concerns. When the 2012 Act was debated, these issues were discussed at great length. I do not think the fears that were expressed at the time have manifested themselves. Does the Minister believe that using “usually resident” is better than “ordinarily resident”? I also wonder whether under proposed new section 14Z31, the NHS will publish rules as referred to. Could we have clarification on that?
Edward Argar
I will respond very briefly. The shadow Minister raises two key bundles of points. I hope that I can reassure him that the approach adopted here is far from restricting access. It is designed to ensure that everyone has an ICB covering them, ensuring universality of coverage. Similarly, the clause does not alter in any way the ability of anyone to access emergency care when they need it, nor those ordinarily resident in the UK to use the NHS as they do.
The second bundle of points he made related to charging regulations and those who are eligible to be charged under current regulations. While he highlighted a number of points, I genuinely believe that the charging regulations in place are appropriately and reasonably framed and strike the right balance in ensuring that people can access NHS care, while rightly making a contribution to the services they are accessing—obviously with certain things exempt from charging for public health and other reasons. I do believe they strike the appropriate balance. There is nothing in what we are proposing today that fundamentally changes people’s ability to access healthcare, nor indeed changes those charging regulations. On that basis, I commend clause 14 to the Committee.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Maggie Throup.)