Health and Care Bill (Eleventh sitting)

Karin Smyth Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[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.

[Karin Smyth (Bristol South) (Lab)]

My hon. Friend the Member for Ellesmere Port and Neston asked about care trusts, and the clause is partly designed for just that. The real problem with the clause and with joint appointments is that we already know that there are probably not enough senior, experienced people to go around to manage the difficult job of running a large hospital. The issue is ultimately about the focus on those hospitals and, indeed, on patient safety. The job of a chief executive of an NHS trust or foundation trust is an absolutely critical and quite busy one, but we are encouraging those people to take on an ICB leadership role, or joint roles in a local authority. We can either accept that those are large organisations that require particularly skilled people whom we pay properly, or we can simply merge the organisations. I would go for the former option. There are not enough of those people to go around. There is not enough variety of people. We are not encouraging the pipeline of talent, and we are not diversifying enough, and that is reflected in the NHS looking inward at itself. It is a big mistake to accept that we must have those joint appointments to bring the NHS together and make organisations collaborate.

[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.

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[Edward Argar]

I express my gratitude—I may be less grateful when I sum up—to hon. Members for tabling the amendments, and for the discussion that we are going to have about the NHS payment scheme. The Bill replaces the national tariff with a new NHS payment scheme, with additional flexibilities to allow the NHS to deliver population-based funding and more integrated care approaches. The NHS payment scheme, which will set rules about how commissioners pay providers for services, will apply to all providers of NHS services, including NHS trusts and foundation trusts, the voluntary sector and the independent sector.

Amendment 84 aims to ensure that payment to private providers can be made only at tariff price. While we will not introduce competition on price, rather than quality, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take account of differences in the cost of providing those services—for example, different staffing costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that the prices payable represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services.

I reassure the Committee that we do not expect to see the rules being used to give a premium to private providers to encourage them to enter the market. We do not expect to pay the independent sector 11.2% greater than the NHS equivalent cost, as the King’s Fund briefing on independent sector treatment centres set out in 2009. Nor do we expect commissioners to pay for 100% of the contract value regardless of whether the activity reached the contracted level. Instead, the new payment scheme delivers what the NHS has asked for to implement its long-term plan. For that reason, we encourage Opposition Members not to press the amendment to a Division, but I may be pressing them in vain.

The Government will also, I am afraid, oppose amendment 100, which would require the NHS payment scheme to be approved by the Secretary of State. The NHS payment scheme will be published by NHS England, following consultation with relevant providers and commissioners, and, where relevant, the publication of an impact assessment. Integrated care boards and relevant providers will be able to make representations and formally object in response to consultations on the NHS payment scheme, as they can with the national tariff. Where the percentage of objections exceeds the prescribed threshold for either ICBs or relevant providers, or both, NHS England must further consult the representatives of the ICBs and providers that were objecting. NHS England may then publish a revised payment scheme, with another consultation for significant changes. It will also be able to publish the proposed scheme without amendment, but will be required to publish a notice stating that decision and setting out the reasons for it.

The Government are responsible for setting out overall funding for NHS England, who in turn will continue to be required to have regard to fair levels of reimbursement for providers in setting the details of the payment scheme. The Department and NHS England will continue to work closely together in the development of the NHS payment scheme, as we do with the national tariff. However, as a last resort, derived from clause 37 powers of direction, the Secretary of State will be able to require NHS England to share the NHS payment scheme before publication. The Secretary of State will also be able to direct NHS England not to publish a payment scheme without his approval, and about the contents of the payment scheme under his general powers of direction under clause 37.

Although we do not expect to need to use the powers of direction to intervene in this area, they can be used and will act as a further safeguard against unfair payment scheme provisions, as well as allowing for appropriate parliamentary accountability for funding flows in the NHS. The consultation requirements in schedule 10, and the general powers of direction, allow for sufficient Government oversight and accountability for the payment scheme, and further specific provisions would be inflexible and unnecessary. [Interruption.] I will shorten my remarks. [Hon. Members: “No!”] I am happy to go on and on, but I fear the Committee might wish me to conclude. In that context, I will highlight to the Committee that, as with the national tariff, fair levels of reimbursement are a key principle of the legal framework reflected in NHS England’s duty in subsection (6) of proposed new section 114A(6) to have regard to differences in providers’ costs and the different range of services that they provide for the purpose of securing that prices and the overall payment scheme result in a fair level of pay to different types of providers.

I will also highlight and draw to the Committee’s attention provisions in proposed new section 114C as inserted by schedule 10, which makes clear that, before publishing the payment scheme, NHS England must consult integrated care boards, relevant providers and any other person that NHS England thinks appropriate. It must also provide an impact assessment of the impact of the proposed scheme.

[Karin Smyth]

There is a lot of drawing up of complicated documents and costings and then a lot of complicated consultation and decisions on whether the Secretary of State will or will not decide whether he wants to be involved in looking at what the final solution is. Does the Minister have any idea of when we might see the final NHS payment system under the new arrangement?

[Edward Argar]

I would not prejudge the passage of the legislation and how the House might judge it, but I look forward to such a scheme being introduced expeditiously, if I may put it that way to the hon. Member. I hope I can also reassure the Committee in respect of amendment 107, which was not selected but raised issues pertinent to the clause more broadly. This is important. It is right that the amendment was not selected—I appreciate that it was not tabled by a member of the Committee—but it does highlight issues that we need to put on the record. I appreciate the impulse behind it.

Although NHS staff pay and conditions are outside the scope of the proposed payment scheme and are protected by provisions made elsewhere, unions and other representative bodies may wish to be reassured that their members are able to go to work in appropriately funded services. I hope I have given reassurance on that point and set out why I feel the amendment, although I am grateful that it was not selected, would be unnecessary, as the Bill already requires NHS England to consult with integrated care boards, relevant providers and any other person the NHS thinks appropriate before publishing a payment scheme. It must also publish an impact assessment of the proposed scheme, ensuring that any potential consultation is properly informed of the potential effects of the scheme. I appreciate that the amendment was not selected, but I put those points on the record as I can understand the intent behind the amendment and I wanted to offer those reassurances. I hope I can persuade Opposition Members not to press amendments 84 and 100 to a vote, but I may be unlucky in that respect.

Clause 66 introduces schedule 10, which amends the Health and Social Care Act 2012 by repealing the national tariff and replacing it with the new NHS payment scheme. The national tariff has for many years improved access to services and driven up quality across the NHS, but as we move towards a more integrated system focused on prevention, joint working and more care delivered in the community, we need to update the NHS pricing systems to reflect new ways of working since the tariff was introduced, and in the light of the covid-19 pandemic.

The new NHS payment scheme will build on the success of the tariff. It will support stronger collaboration than ever before, with shared incentives for commissioners and providers of services to improve quality of care and promote sustainable use of NHS resources. The scheme will move away from a wholly payment-by-activity approach to an approach that supports more joined-up ways of delivering services, with commissioners and providers working together to deliver the best quality care.

The new payment scheme will remove perverse incentives for patients to be treated in acute settings and allow more patients than ever before to be treated closer to home and in the community. It will allow NHS England to guide the health system, through the development of guide prices for entire care pathways, while ensuring that local systems have the necessary flexibility to deliver high-quality care and use NHS resources sustainably.

The payment scheme will specify rules that commissioners must follow when determining prices paid to providers of NHS-funded healthcare services. It will allow significant flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining prices paid. It also allows for in-year modifications to the rules, to reflect changes in the costs of providing services.

Crucially, the scheme will also allow the NHS to set prices for public health services commissioned by the NHS, on behalf of the Secretary of State, such as maternity screening, to allow for seamless funding streams for episodes of care. These changes to increase the flexibility and reduce transactional bureaucracy associated with the current tariff are, we believe, crucial to integrating care and tackling the elective backlog. I therefore commend this clause and schedule to the committee.

Health and Care Bill (Twelfth sitting)

Karin Smyth Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[Karin Smyth (Bristol South) (Lab)]

It is a pleasure to see you in the Chair this afternoon, Mr McCabe. You missed the start of an exciting debate about the NHS payment system; I am sure you are grateful not to miss the end of it.

The complexities of NHS funding are hardly mentioned in the Bill, and some hon. Members may think thank goodness for that, but I urge them to take a bit more account of clause 66—as my hon. Friend the Member for Nottingham North has said, it is a short one—because we are talking about over £100 billion of taxpayers’ money, rising to 40% of the Government’s annual spend. It is particularly important that we understand how and where that money is spent and to be assured that it is spent effectively and efficiently.

In large part because of the data collection journey that it has been on for some 20 or 30 years, we know that the NHS is the most efficient system we could have, as has been reviewed in numerous reports during that time. We have ways of looking at variations across the country and across a city such as my own, and that can only be a good thing. There are people—I am not suggesting there are any in this Committee Room—who think the NHS is a continuous money pit, is inefficient and could be operated better in another way, and part of understanding that argument is to understand the data and the way in which the money is spent, particularly the costings.

As I said in my earlier intervention on the Minister, about the process that has now been embarked on of producing a payment system, this clause is really important and really quite concerning. We have no idea when this payment system is going to be available.

[The Minister for Health (Edward Argar)]

Before the hon. Lady asks more questions, I may be able to reassure her by adding to what I said this morning as I have now discussed this further. I said “expeditiously”; I am willing to go further on the Floor of the Committee Room now and say that I would expect the scheme—I may be creating a hostage to fortune—to be published in the course of 2022. I hope that gives her a little reassurance; she will now hold me to that.

[Karin Smyth]

There is an army of accountants out there suddenly looking at their abacuses and speeding up the work they are doing.

My hon. Friend the Member for Nottingham North mentioned coding. The basis on which we know how much things cost—we can then compare things, look at efficiency and so on—is coding. We know there has been some up-coding over the years, but we also know that it took a large effort to train up and try to reward coders, who are often the lowest of admin staff, to recognise how important they are to the system.

Part of that was a drive for competition, payment by results in foundation trusts and so on, but it seems that that is all going to be swept aside by the Bill in the interests of co-operation—that is another word for collaboration, which is something we all support. I do think that running through this Bill is a problem of throwing the baby out with the bathwater. In the 1970s and early 1980s, the NHS really had no idea what things cost and what value they brought. We had no way of objectively understanding how scarce resources were being allocated. In a publicly funded system, that should worry us all, particularly as we in Parliament are the guardians of the public’s money.

We can argue about how much money will be saved by not having the current system. I am not sure that much money will be saved by abolishing the current system, although the Minister may be able to assure us about this point today. I gently advise the Minister and the Secretary of State to take a great deal of interest in this and consider how the NHS will produce such a system in 16 or 17 months at the maximum, as we have just heard. The data on which the system is predicated—the collection of that data, and the use of it to inform clinical and managerial practice—will continue, but, without the incentives around competition and price and the competing agenda of recovery and the management of large hospitals in particular, it will be quite a tall order.

The Secretary of State and the Minister might want to look at the issue in a bit more detail. The Minister outlined quite a complicated process about how we will get to this scheme and a lot of consultation. Although I am all for democracy, as we embark on our conference season the Minister might want to consider at some point why a scheme should go out to quite so much review and consultation by the providers in the system.

Perhaps I could say something here about how the issue affects our local system. When we start to iron it all out and see the impact assessment on the impact—classic NHS terminology—on our local communities, there will be, for want of a better phrase, a bun fight in all our local communities. Again, as my hon. Friend the Member for Nottingham North outlined earlier, when we talk about payment by results it is, of course, acute sector trusts that are the major drivers. Mental health, learning disabilities, community services, and GP services are outwith some of that funding scheme.

Many providers then wanted to come on to the system because they felt that it was more rewarding financially and better for their bottom line. The fact that those services are outwith the scheme remains a problem. I can see why the Government want to change that, but it is not quite as simple as they might want to make out. My hon. Friend has talked much about whether we start competing on price, but now that we know that competition on price is not being permitted, that does throw out a lot of other issues, particularly those around the procurement system.

With regard to amendment 84, the Minister made reference to independent sector treatment centres and incentives for getting the private sector in under previous Governments. We can all banter about the politics of that, but the key task for the Labour Government was to incentivise and change practice in a monolithic system, to drive down waiting lists and times. The question that I leave hanging for the Minister is, given the movement to a new payment system, how will the patient voice, waiting times and waiting lists be managed and incentivised in a central block payment system, which is what I think we are looking at?

Furthermore, with regard to our amendment, the private sector, having no responsibility for education, training and the large crumbling estate, should be able to offer any kind of services at a lower price than the NHS by any logic of efficient running. Ensuring that it is not offered more is the very minimum that we should be demanding. Given that the private sector should have a lower-cost base than the public sector, perhaps it should offer a cheaper price.

Does the Minister have a view on whether paying by results will be anywhere in the new system? Are we to continue following the changes made during covid, by which I mean the block grant system, which allows for baseline costs, a bit of variation for the population, and perhaps some deduction for efficiency and top-ups for various programmes—a bit like the old days when we mysteriously drew down pots of money from the centre for various programmes across the country? What is the balance between that block funding, payment by results and programme funding? Will there be an assessment of the impact of this change, particularly on reducing lengths of stay, as a measure of efficiency in the system, or on reduced waiting times and waits for diagnostics?

It would be good to nail down a few of these key principles in the Bill. The Secretary of State should really approve any scheme and give Parliament a look in; we should understand, as local representatives, what the impact is on our local system and whether we are gaining or losing money, or whether this is just £100 billion-plus going into a central pot and then seeing what happens—that cannot be sustainable.

Private providers should certainly have no say in the rule-setting, as this is a public service; if it is not a market, it is not a market. We are going to be able to debate this only when we know what it is. Given that the Minister has given a big push to the abacuses across the country, with a deadline of somewhere in 2022, for a Bill that we are expecting to put into a new system for April 2022, this situation is not satisfactory for us as representatives. There must be some way—perhaps this will be debated when the Bill leaves this place—for us to understand the broad principles and criteria. We know that there is going to be guidance from NHS England, but if it is going out for consultation, re-consultation and re-consultation, then redrafting and at some point the Secretary of State is going to see it, at some point Parliament should have a say or have a look at that and we, as local representatives, should understand what the impact is on our local communities.

We should also understand what the impact is on the balance between the acute sector, and the community and primary sector—and mental health and learning disability services. Another real concern about the Bill, which I will keep referring back to, is the cartel between the acute trusts and this new integrated care board, and the cutting out now of GP primary care commissioners, and the rolling back on the aims of the primary care trusts to switch the movement of the NHS to be focused not just on the money and where the big money is being spent, but on the service for patients and the public.

The crucial point for the Government will be: how are they going to use the financial mechanisms that exist to recover the backlog and put the NHS back on an equal footing? We have been asked to pay more for the new part of social care as well. As we continue to ask our constituents, the taxpayers, to pay more for what is a good, efficient service that does use its money well—we know that and we want to keep knowing that—how are we going to be able to persuade them of that in the future if we have this amorphous block allocation of money and no incentive to keep focused on efficiency and, in particular, on data collection?

[Edward Argar]

It is a pleasure, once again, Mr McCabe, to serve under your chairmanship. I fear I may not persuade Opposition Members not to press amendment 100—but you never know, so I will try my luck. The hon. Lady made a number of points and I responded to one when she kindly took an intervention; the only caveat I should add is that that, as she has alluded to, is subject to the passage of this legislation. I would not wish to pre-judge the mood of this House. With that in mind, the aim would be to publish in 2022, in time for the start of the 2023-24 financial year, to allow those systems to do the work they need to do.

The shadow Minister, the hon. Member for Nottingham North, asked, “Why use clause 37?” I think he was referring to the clause rather than me as being a “blunt instrument”—well, I will charitably assume that he was. The reason is simply that the setting up of the payment scheme is an operational issue, and in practice—I will turn in a moment to the strategic, broad points the hon. Lady made—we would not expect to intervene in the day-to-day running of the NHS as a matter of course. However, the hon. Lady is right to say that the payment scheme and the mechanism for payments is a powerful incentive to shape activity and how the NHS operates. I can reassure her, I hope, in one respect: I will certainly take a close interest, within the bounds of appropriateness, as will be set out in the Bill and the guidance underpinning it, in what the payment schemes look like. She is right in terms of the impact. She is also right—again, this could be career limiting; I hope the Whip does not note this down—to highlight some of the levers and mechanisms that the previous Prime Minister, Tony Blair, used in the early 2000s to make sure the money that he was investing in the NHS was driven through system and producing results.

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Regulations as to patient choice

[Karin Smyth]

I beg to move amendment 93, in clause 67, page 60, line 15, at end insert—

“(1AA) The regulations must make provision—

(a) for anyone with a diagnosis of terminal illness to be offered a conversation about their holistic needs, wishes and preferences for the end of their life, including addressing support for their mental and physical health and wellbeing, financial and practical support, and support for their social relationships,

(b) that where that individual lacks capacity for such a conversation, it is offered to another relevant person, and

(c) that for the purposes of section 12ZB a relevant authority must have regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.”

This amendment ensures that the scope of the regulations as to patient choice includes those at the end of life.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

That schedule 11 be the Eleventh schedule to the Bill.

[Karin Smyth]

I will not push my amendment to a vote, but I seek responses from the Minister. I want to highlight the issue that we touched on earlier, and I am grateful for his comments, about how end-of-life and palliative care are the responsibilities of these new bodies.

This particularly relates to coming out of the pandemic, but even before the pandemic we had numerous reports from the Royal College of Physicians, the Care Quality Commission, the health service ombudsman and Compassion in Dying about how people approaching the end of life do not feel supported to make the decisions they are faced with, are not always given an honest prognosis and do not know what options or choices they have. I think the issue of patient choice is very important in this clause, and I feel very strongly about it. I think this could generally be stronger in the Bill, but I will particularly highlight what is in my own amendment.

Amendment 93 would enable dying people to have conversations about what matters most to them, which is the first step to ensuring that they are at the centre of any decision making about their own care and treatment, and it starts the advance care planning process. I have been fortunate in that I have had three children, and I talked through my birth plans and my choices for the whole experience very carefully. It was presented to me as part of the process of giving birth. It does not always go well, as we know—we had a baby loss event today in Parliament, which many of us could not be part of.

The principle of choice at fundamental points in people’s lives as a patient is one we have embedded in the health service. Co-production of care for most incidents that we face is a fundamental part of clinical practice. Only at the point when people are most vulnerable, at the end of life, is the principle of advance care planning and co-production in their choices and prognosis something we are still not prepared to contemplate in the health service. It really is as basic as that. If I can make those choices about when I am giving birth, we should be able to make those choices when we are on the pathway of the end of our lives.

The evidence on advance care planning in order to support people on where and how they die is well made. This is about promoting earlier access to palliative care, communication, reducing conflict, helping families understand what is ahead and making the person less likely to have to go through rushed accident and emergency and distressing journeys into hospital. There is a need to start supporting advance care planning, and I would welcome the Minister’s comments on where the Government now think they are on that.

A key part of this amendment is proposed new paragraph (c), on authorities and new ICBs having

“regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.”

The full value of advance care planning can be realised only when individual care preferences are reflected in actual treatment decisions. Again, that is about empowering patients, something that I hope Members from across the House support.

[Alex Norris]

This is an important clause and an important amendment. We have said on many occasions that we want a model that promotes collaboration, rather than competition, but in doing so it is important that we do not create 42 closed shops, where a patient has little agency over their care. That will not feel right for those individuals and it risks weakening a culture of the pursuit of excellence and the best standards of care. Therefore, enshrining choice for citizens actually becomes more important in a collaborative system, so it is right that this is being addressed.

The Minister might not have a reply immediately on this, but he might be able to work with one from his officials about reports overnight in Nottingham, where there is no choice now over someone’s cancer care and such care is being “rationed”—that was the word used—because of workforce shortages. That is exceptionally alarming and will lead to some dreadful outcomes for people in our city. I hope there could be a follow-up letter about what is being done to switch those services back on immediately.

Turning back to the Bill, it is right that NHS England would have the power to investigate cases and direct an ICB as to how to rectify failure. It is good that there is a provision whereby investigations can be averted by an undertaking from an ICB to rectify the failure directly; that feels like the right level to start at. I am keen to understand from the Minister how he expects a person to enter the system and enter into that mechanism. Are they likely to be expected to contact NHS England directly to trigger an investigation or will there be a local process at an ICB level first before escalation? It would seem reasonable that we should exhaust local options before escalating to the regulator. If that is so, what prescription will there be, perhaps in guidance, if not in the Bill, for the form that that takes, so that an ICB that is not engaging positively with an individual cannot act like a blocker to elevating that? Perhaps we could consider bringing in a trusted third party at a local level—for example, Healthwatch would very well placed.

We saw in written evidence concerns that the current plans might not go far enough. The National Community Hearing Association said in its evidence:

“Existing rights to patient choice do not go far enough and typically only apply to primary care and consultant-led services. Giving patients more choice and control over their care for non-consultant-led services, especially for long-term conditions such as adult hearing loss, results in better health outcomes and helps tackle health inequalities. We would ask the Committee to press the case for the regulations to be made under this power to expand a patient’s right to choice. Regulations can do this by enabling patients to choose an NHS community provider for their hearing care where clinically appropriate. Currently only 50% of NHS regions in England offer patients this choice, resulting in inequalities in access to care.”

I wonder whether the Minister has considered that and could perhaps give us his reflection on the matter.

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[Karin Smyth]

I am grateful to the Minister for his response. He mentioned the ministerial oversight group on advanced care planning. Would he be able to indicate when we will hear from that review—if not now, perhaps in writing?

[Edward Argar]

I am happy to write to the hon. Lady to communicate that information to her.

We know how important patient choice is, and not just in terms of individual choice, although it is of course vital in that context, but also in helping drive the system to continuously improve. We take the view that it should be determined through regulations. We have chosen that approach to allow the legislation to be flexible and to reflect changing priorities and new policies in relation to patients’ rights to choice.

The shadow Minister raised the process and mechanism for complaints. The individual would in the first instance complain to the ICB, as the commissioner and main body providing and co-ordinating health services in their locality. If they are not satisfied with that, they could then escalate that complaint to NHS England. It is not straight to the top, as we all know through our casework. We recognise and advise our constituents to go through the complaints process, and only at the final stage does it reach Ministers and NHS England or ombudsmen or other national bodies. That would be our approach.

Regulations on patient choice have previously been made under section 75 of the Health and Social Care Act 2012. Opposition Members will of course be deeply saddened that that section is being repealed by the Bill, including its procurement elements. In so doing, the Bill also revokes the regulations covering patient choice, so clause 67 ensures that patient’s rights to choice continue to be protected.

The clause adds similar powers, including those relating to guidance and enforcement of the standing rules, into the National Health Service Act 2006, and introduces a requirement for the Secretary of State to make regulations on patient choice. The power to make guidance and enforcement of patient choice will be held by NHS England, following the planned merger with NHS Improvement, with the complaints process that I set out earlier. The clause will give NHS England powers, which NHS Improvement currently holds, to resolve any breaches of patient choice.

There is currently a wide range of choices that people should expect to be offered in the NHS services they use—for example, choosing a GP and GP practice and choosing where to go for your appointment as an outpatient—and the clause will allow for those and other aspects of patient choice to be preserved. The clause will make sure that, under the new model, bodies that arrange NHS services are required to protect, promote and facilitate the important right of patients to make choices about who provides those services.

We know that patient choice is an incredibly powerful tool for improving patients’ experiences of care. The clause will ensure that effective provisions to promote patient choice remain, will strengthen existing choice rights and will continue to make them a requirement of the decision-making bodies that commission healthcare services. Without the clause, patients’ right to choice would be removed along with section 75’s removal. NHS bodies would not be under duties to protect and promote patient choice. Clause 67 reinserts the right and inserts schedule 11.

Schedule 11 provides further details of the powers given to NHS England to resolve any breaches of the patient choice requirements imposed on an ICB. It requires NHS England to publish a procedure outlining how it will resolve failures of an integrated care board to comply with patient choice, and lays out the reporting and appeals process. It also allows NHS England to treat inaccurate, misleading or incorrect information from an ICB as failure to comply, which will, I hope, encourage the full and accurate engagement of an ICB in addressing a failure.

People should expect to be offered a wide range of choices, as I have alluded to, and the clause and schedule will allow for that. NHS England will be able to ensure that ICBs are required to protect, promote and facilitate that important and powerful right. We know how important that is for individuals and for driving the right behaviours in the system and to improving care.

[Edward Argar]

My hon. Friend is absolutely right about timeliness, both from the system, in initiating those conversations, and as something that all of us need to pay heed to as individuals. Before the pandemic and before she stood down at the 2019 election, I held an event in my constituency with the former right hon. Member for Loughborough, Baroness Morgan of Cotes, about thinking and making choices early and preparing ourselves for getting older—things like preparing a will and powers of attorney. All too often, for very understandable psychological reasons, many of us do not want to think about such things, because they are an intimation of mortality. However, it is important that as individuals and as a system and a society we think and plan early, because it can make such a huge difference to the quality of our older years or the end-of-life period.

Therefore, if I may, Mr McCabe, I commend clause 67 and schedule 11 to the Committee.

[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”.

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That is quite a long quote, but it is an important one because it encapsulates perfectly what we are trying to achieve with these amendments and the new clause.

[Karin Smyth]

I thank my hon. Friend for a fantastically thorough, comprehensive and damming indictment on everything that has come before and for some warnings about what may face us. I rise because I do not want to let the moment go without saying goodbye to section 75. It is what brought me into Parliament, having worked collaboratively in the local system at that time developing clinical commissioning. There was broad agreement before the 2010 election on the direction of travel, which was completely upturned by the coalition Government and the fault lies at the doors of both parties.

The destruction is a warning, though. I am looking around the room, Mr McCabe; I think that nobody on this Bill Committee was a Member of Parliament at that time, apart from your good self. I may be wrong about that, but it might be the case. What I experienced working in that service was the horror that Parliament could produce something that had been so widely warned about and that would be so disastrous. There was not a single ounce of support beyond the political agreement that the coalition formed at that time, which got them into this terrible position, even with the pause, that could not be rowed back. That is something that has helped me as a parliamentarian: what we do here—how we are sometimes invited to vote by the Whips, the scrutiny we give to legislation and the judgment we have to use as individuals—is really important.

Every time we go into the voting Lobby or review legislation, we should all give serious thought to the processes in this place—I understand them now, but did not then—that led to that terrible legislation being passed. We should find better ways to climb off the perch when something has gone as far, and as disastrously, as that legislation did.

There is debate about political interference or accountability—whatever we call it—when it comes to the NHS; as I have said before, the huge amounts of money that parts of the public sector now consume means we should operationalise quite a lot of that. We have heard a lot of that from the Minister over the course of this Bill.

Ultimately, what we have been asked to do is get rid of something we can all agree to get rid of. However, as my hon. Friend the Member for Ellesmere Port and Neston said, we have little idea of what will replace it, and crucially—the theme we keep coming back to: how are the patient and public voice empowered in the new system and how is the local external scrutiny and accountability in the new system? Again, I refer the Minister to my helpful amendment about a good governance commission.

However, the situation does not bode well because, as the pandemic has shown us, when backs are against the wall contracts can be put forward, friends and family can be added to major bodies, and organisations that play by the rules and go through due process can be completely marginalised. That has tainted the Government and all of us as politicians, and we need to get away from it.

Finally, the disaster of the reforms—the Lansley Act—was not only about the public waste, time and opportunity devoted to them; the warnings about pandemics were there at the same time, in 2010 and 2011 reports. The system was not developed and not focused on to how to prepare for the pandemic that we have now endured. That is the cost of management time and focus that was put into this sort of outsourcing, regulations and procurement, and trying to understand them. It was not focused on patient outcomes as they presented or on futureproofing the system. That is why we were not prepared.

We can all dance on the grave of the Lansley reforms today, with this Bill, which is a good thing. However, I am afraid that there is deep concern about what follows. Those reforms should be a lesson to all of us about the consequences of the very grave decisions that we make in this place.

--- Later in debate ---

[Alex Norris]

I beg to move amendment 98, page 68, line 22, at end insert—

“(2A) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.

(2B) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.

(2C) Each integrated care board must ensure that—

(a) arrangements made for the discharge of any patient without a relevant social care assessment are made with due regard to the care needs and welfare of the patient, and

(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.

(2D) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including a figure of how many patients are readmitted within 28 days.”

Clause 78 is the final clause of part 1, but it is an important one, and we hope that the amendment improves it. I will be interested to hear the Minister’s views. This all relates to discharge to assess, where patients are discharged from hospital into the community setting and have their care needs assessed at home, or wherever they have gone from hospital, rather than waiting to be discharged from hospital and having to stay there longer than they clinically need to before the assessment takes place. Importantly, this is something that has been trialled during the pandemic. There is a lot of vulnerability at that point, and this process will matter to a lot of people. It is right that we give it proper consideration, and I think we ought to tighten it up.

I will confess that I have gone back and forth on the principle of discharge to assess, and I have had this conversation with colleagues in recent months. When the Bill was published, my first instinct on this clause, as former local authority social care lead, was a negative one. I felt—I still have this lingering doubt—that there was a real risk of patients essentially being parked in the community to the detriment of their health, with the obligation and cost put on local authorities. Of course, in many cases, some of that will be borne by continued healthcare funding. However, in the end that will become a local authority responsibility for each individual, and there will be a significant risk of them being readmitted shortly afterwards.

Local authorities are already scandalously underfunded to meet the social care needs of their population. Adding some of the most vulnerable people to that list and to the quantum of need that needs to be met will add greater risk, so I have serious reservations. This is not a conceptual debate, and that makes life easier; we have evidence to work with. Through no one’s planning, we have essentially run a de facto pilot scheme during the pandemic, so we know of what we talk. We have a sense of what is going on on the ground, and clause 78 will put it on a permanent footing.

On matters relating to local government, I always fall back on my former colleagues in local government. Their views on this are very clear, and I have had this conversation with them a lot. It always ends up with me saying, “Are you sure?” However, we should not miss their evidence. They say:

“The repeal of legislation related to delayed discharges is good news. This paves the way for the continuation of discharge arrangements which have worked well during the pandemic. The emerging evidence is that going home straight from hospital is what people want.”

I can certainly understand that. They also want greater clarity on the future of this de facto pilot from next month, in the interregnum between when the Bill becomes law and when the funding runs out next month. That is a very reasonable request, and I hope the Minister can respond. The strength of feeling from local government colleagues—our experts by experience—cannot be ignored, and that is why we are seeking to improve rather than prevent this innovation. It does need improving.

Important concerns were raised in the written evidence from Carers UK, which says:

“Under the CC (Delayed Discharges, etc.) Act 2003 a carer’s assessment can be requested and if so, a decision must be made about what services need to be provided to the carer, whether by social services or a consideration by the NHS, to ensure that the ‘patient is safe to discharge’.”

That will be repealed by clause 78. However, they will still be able to fall back on the Care Act 2014, so the carer will get a carer’s assessment under that if they wish. Presumably, that will now take place post-discharge. That is quite a significant change. A great deal of people will become family carers overnight. They might not be conscious that that will happen, but before anybody has made any assessment of their capability to do so, they will quickly find themselves operating as family carers for very vulnerable people immediately post discharge. By the time they get the carer’s assessment, they may well have been struggling to cope for a significant period of time. That could have some dreadful consequences, which is why amendment 98 states that there must be an assessment within two weeks. Obviously, we would want it much more quickly than that, but two weeks is a bare minimum backstop.

I do not think that this is catastrophising. According to research that Carers UK submitted, 26% of carers had not been consulted about discharge before the discharge of the person they care for, and a third were consulted only at the last minute. I do not think that is setting families up to succeed. If the Minister thinks that that will get better as a result of these innovations, we would welcome that, but I would like to understand why he thinks that might be the case and how the situation will look better. Carers UK recommends putting greater responsibility on the integrated care board to have oversight of how discharge to assess is working for the individuals in their care and across their footprint more generally. That is what we have sought to recommend with amendment 98.

The concerns of Carers UK are echoed by the British Association of Social Workers, and social workers, like family carers, have first-hand experience of the trial. The association worries about there being a move away from the fundamental point that the wellbeing principle is uppermost, and its evidence is concerning:

“A survey of Social Workers conducted in December 2020 involved in hospital discharges highlighted that the vital contribution of social work in the multidisciplinary team was being marginalised by the medicalisation of people’s journeys out of hospital. Most importantly, social workers felt that the voice of the individual was lost”.

It is quite significant to say not only that skilled staff would not be able to play their normal role in the process but that the individual’s voice would not be there.

The worst manifestation of the provisions in the clause would be for it to be in the system’s interest to move people out of hospital, because that would then be the priority. We need to make sure that that is not the case. The British Association of Social Workers would rather that the clause was not in the Bill at all, but we have not gone that far and have sought to improve it by putting a maximum two-week wait time in the Bill. That would be prudent. The amendment would also centre the integrated care board in the management and oversight of the process. If the integrated care board is to act as a system leader and integrator, surely such a system process—this is the ultimate system process—that touches on the borders between institutions ought to be within its purview. Otherwise, where will the oversight come from? Who will hold the different parts of the system to account?

I hope that the Minister addresses the concerns I have expressed, because this is an important and, in the plainest-speaking sense, risky decision. There are ways to mitigate that and we have suggested a good one in the amendment. I am keen to hear the Minister reflect on that.

[Karin Smyth]

I echo the comments of my hon. Friend the Member for Nottingham North. We discussed this when the Bill hit the Vote Office, because from a system management point of view I saw this change as a positive move. It was necessary in the system to increase the flow out of hospitals, particularly in the pandemic.

We talk about flows out of hospitals, but we are really talking about individuals—our nearest and dearest. During the summer, my husband and I were both responsible for supporting my mother and my mother-in-law in and out of the system, and my mother-in-law was part of the discharge to assess programme. This is not the place for me to rehearse the traumas of becoming, as my hon. Friend so eloquently put it, a family carer overnight and realising, if I did not know already, how little there is outside hospital. My hon. Friend’s point about families suddenly becoming responsible carers overnight is really important. Thousands and thousands of families are finding themselves in that position. Most people would agree about discharging people out of hospital as soon as possible, particularly given the fear of covid and people not being able to go into hospital to see their loved ones. In my mother’s case, she was discharged very quickly, and we went to get her because there was no ambulance service.

The closure of hospitals to visitors adds to the trauma of an acute episode, and people then have to take on that responsibly. People are assessed for care and told in the same sentence, “You’re assessed for care, but there is no care,” and that care takes several weeks to come into play. Among my own family and my in-laws, we have a clinical person in the team, we are fairly articulate, we are knowledgeable about the system and we perhaps know what we are taking on and have the capacity and capability to manage the situation, but it is deeply worrying that people who have no advocate or no other support—even social workers—are told when they are discharged that they need assessed care but there is none. It will take some time for us to understand what has happened to thousands of people who have found themselves in such a difficult position. I am particularly worried about people who have no advocate.

I suspect that the Minister will not accept the suggestions in the amendment now, but I hope he will take advice so that we can understand better—perhaps through an assessment—what has happened to people who have been discharged in the last few months without having support in place. We need to hear about that.

Health and Care Bill (Tenth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[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.

--- Later in debate ---

[Karin Smyth]

It is a pleasure to follow the right hon. Member for Kingswood. I feel the need for us to write a book or a pamphlet about the planned reconfiguration of health services in Bristol from my time on the board. I agree with a lot of what he said about the Kingswood-Frenchay area, but I hold the reconfiguration up as a good example of wider consultation, clinical leadership and patient and public involvement.

Some of the messiness we got into reflected healthy discussion of the issues. As he said, we are still going through the process, but at the end of those long days we managed to build two very good, specialised hospitals, particularly around A&E services, and therefore close an A&E service. Although not a clinician, I had lots of work in the Frenchay area at the time and it was a terrible place to work and deliver clinical services, having been built as temporary wartime provision, although it was much loved by local people. That is something we might reflect on at another time. The process continues. We have just closed the consultation on stroke services, and other good services, including primary community care services, have come about as a result of the reconfiguration. Reducing a hospital base from three to two is a major exercise, but it did happen.

The points made by the right hon. Gentleman were well made, as were those made by my hon. Friend the Member for Ellesmere Port and Neston. We could play good cop, bad cop, because I am disappointed that the Minister is not taking the very helpful hands that I have offered to find more ways around this, rather than saying that we just want to see the whole lot come out. It will come out eventually—I think we all know that—but along the way let us put some helpful things in place.

My amendments deal with health overview and scrutiny committees and clinical advice. I will not press them to a vote, but I would like the Minister to address them. I think they might appear in similar form in other places, at other times, so what we say is important.

The Government need to account for where and how they are going to get their clinical advice. Reconfigurations, both large and small, are important to local people, as hon. Members have said. The Cossham example is a good one. Some of those buildings do not belong to the NHS. They belong to local communities and pre-date the NHS. People love buildings and their associations. As we embrace technology, we can see that people like buildings because they are something they can grab hold of and understand.

Clinicians—and clinical advice about change—are crucial in allowing and facilitating change. As with politicians, if there are three clinicians in the room then often there will not be one single answer. The issues about what we should be moving towards are often not black and white. The whole vexed issue around the tests and where clinical advice comes from is problematic for the Government and the Secretary of State.

As my hon. Friends have said, the national clinical advisory team did independent reviews, and then that disappeared. We have looked at clinical senates. The Lansley test, which has been alluded to, wanted clarity about a clinical evidence base. In order to provide such clarity, a lot of clinicians need to come together, across specialities and across primary and secondary care, to agree and to then go and talk to the public, to make people understand why and when they are putting forward their propositions.

The timing is interesting, because the test assumed the support of GP commissioners. In this new world, there is no clinical leadership of these new bodies; they are managerially led. Some of the managers might be clinicians, but when the tests were established—this was also true of primary care trusts—the previous bodies in their previous incarnations were largely clinically led. We may dispute whether that was in actuality, whether those people were acting as clinicians, what sort of clinicians they were, whether they were clinicians in the field of the service reconfiguration we were talking about and so on, but that is an important point in terms of trust with the general public.

The new bodies are not clinically led. In my amendment, I suggest the ICB medical director, but that will be a pretty tall order for the ICB medical director even in my amendments. They are also supposed genuinely to promote patient choice. We talked earlier about the removal of autonomy, and what we are seeking to do in many of our amendments to the Bill is to put back the voice of the patient somewhere in this permissive integration world.

The other test was generally to enjoy public, patient and local authority support. While poor old Lord Lansley is not getting much praise in these meetings, some sort of provision for tests with the public, local authorities and clinicians, recognising the complexity that has been outlined particularly well by the right hon. Member for Kingswood, still living through some of this, is well made.

I do not think the Secretary of State for Health and Social Care wants all this on his desk. In my time in this place I have watched with great interest, as I am sure we all have, as hon. Members across Cornwall, Devon, Dorset, Gloucestershire and all across the south-west have all risen at various times to bring up the issue of their community hospital, their A&E and various other services in their part of the country. Those issues are keenly felt and will all need consideration. Somebody—largely clinicians, and then other managerial people in those bodies—will have to sift out those processes.

What is alarming people, as we heard in evidence from our excellent witnesses—my hon. Friend the Member for Ellesmere Port and Neston outlined the key arguments—is that there is a gap. Who is filling it? How is it being filled? That is not just about process; it is about serious clinical engagement. That is why the Minister would be wise to pick up some of the helpful amendments that have been tabled, to alter this; otherwise it disappears completely. I think it was Nigel Edwards from the Nuffield Trust who said it is working pretty well at the moment.

We will all have our points in time where we disagree with things, and we will all want to bring in something else. That is partly our role as elected representatives, and I know the NHS does not like politics and politicians getting involved in these things sometimes, but it is the job of local representatives, whether local councillors or local Members of Parliament, to articulate on behalf of their constituents, to understand the debates and issues, to mediate them and certainly to challenge clinicians and managers of all types on the veracity of the proposals they put through.

The other thing I have said publicly is that sometimes the evidence put forward is not as robust as it should be. That external local scrutiny is well served by those of us who take a strong interest and ensure that the veracity of that information is solid. I have been able to go back to constituents—it is a brave politician who goes back to a constituent to say, “No, actually, I think we need to close that A&E,” but frankly, as we have seen from various reconfigurations across the country, at times that saves lives and is the right thing to do. Giving people locally the support to articulate that is also important.

[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.

--- Later in debate ---

The change in the clause will extend the scope for intervention by allowing that call-in at any stage. That would have the effect of allowing people or organisations other than local authorities—for example, Members of Parliament—to ask the Secretary of State to do so. That will enable a more flexible and possibly earlier intervention, which has the potential to shorten the timescales for resolving such issues, when appropriate, rather than seeing them drawn out and extended.

[Karin Smyth]

We could spend a lot of time on this, but I think the Minister is saying that this could happen if there is a dispute within the public at any stage—perhaps at the outline business case, perhaps at the initial raising at the ICB or perhaps at the floating of the idea. That is clearly nonsense, if I may say so. Will the guidance define what “any stage” means?

[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.

Health and Care Bill (Ninth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

Having said all that, there is one other outstanding distinction, because foundation trusts are still able, at least in theory, to retain control over their capital spending. As we will see later, however, even that is an endangered species. What are the practical differences between trusts and foundations trusts, and why do the Government consider it so important that the distinctions remain?

[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.

[Karin Smyth]

Given that the Minister, who I think is an honourable man, has mentioned that, does he think it acceptable for the chair of NHS Improvement to take the Conservative Whip in the House of Lords, as was outlined in the pre-screening scrutiny commission by the Health and Social Care Committee? Does he think that is acceptable, as other Ministers have not done so?

[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.

--- Later in debate ---

We have to address that disjointedness. It is not fair on other countries that the NHS sucks in their talent, which should be used in their countries. At the same time, we are wasting talent. This Government are about levelling up, and we cannot level up in any greater way than by ensuring that those who want to serve their local healthcare populations in towns and cities such as Sheffield, Leeds or Doncaster can do so by going to their local universities and staying in their areas.

[Karin Smyth]

The right hon. Gentleman is making some excellent points. He and I share a health economy, two universities and a thriving region, but we still have problems. People in my constituency cannot get the sorts of jobs and apprenticeships that they need. How would his amendment deal with the geographical discrepancies across the country through a single two-year report, and how would we account for the different training demands in different parts of the country?

[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.

--- Later in debate ---

I hope our amendments will put that right, and I urge the Minister to take the opportunity that we have presented.

[Karin Smyth]

I entirely concur with the comments of my hon. Friend, who asked: if not now, when? The right hon. Member for Kingswood described this as a short clause, but one that is hugely important. I do not want to quote everyone who has given us evidence, but we all agree that this is a major issue for the service and has been for a number of years. It is the major omission from this Bill, which has had all sorts of other things added to it but does not look at this issue seriously. This is a massive missed opportunity, unless the Minister takes on board some of what has been said today and supports some of these amendments, to indicate to the service, post pandemic, that this message has been heard loud and clear. The Secretary of State seems to want to take on a lot of responsibilities, and this is something quite significant that he could do something about. He could give that indication.

As I said to the right hon. Member for Kingswood earlier, we have to recognise the differences between health economies and parts of the country. Fairly recently, the Government expanded medical training places in parts of the country where there is a low take-up, and to which people are not moving to work. We know that if we train people locally, they stay local and if the Government would like a quick and easy way to level up—however they want to define it—that is it.

Health and Care Bill (Eighth sitting)

Karin Smyth Excerpts

Committee stage
Thursday 16th September 2021 Public Bill Committees

[Edward Argar]

In opening the debate on this clause, I highlight the contributions made by my hon. Friends the Members for Stoke-on-Trent Central and for Cheadle. I suspect that, in my winding-up speech, I may be responding to further questions on this. They are absolutely right to highlight the amazing work that is done by hospices and various charities and organisations in providing end-of-life and palliative care. When I come to my conclusions, I hope to be able to offer further reassurances to my hon. Friends, who I know take a very close interest in this area, and, quite rightly, have championed it in the Committee today.

Clause 15 substitutes a new section 3 into the National Health Service Act 2006, which replaces the clinical commissioning group equivalent with one that requires integrated care boards to commission hospital and other health services for those persons for whom the ICB is responsible. The clause lists those things that the ICB must arrange for the provision of, which includes, but is not limited to, hospital accommodation, nursing and ambulance services, dental services, diagnosis, care, treatment and aftercare of people suffering illness, injury or disability. In proposed new section 3A, the clause also provides a power for ICBs to arrange for other services or facilities that they consider appropriate to secure improvement in the physical and mental health of people for whom they are responsible.

The clause makes it clear that the duty on an ICB to arrange services does not apply if NHS England has a duty to arrange for their provision. The clause gives ICBs a clear purpose, without which it would not be obvious which bodies in the system are responsible for commissioning which parts of the comprehensive health service that we all want to see.

I should note that ICBs will not be the sole commissioner in the system. As I have just alluded to, NHS England will remain a commissioner for some services best commissioned nationally, such as specialised services. The clause also allows us to very clearly divide responsibilities between NHS England and ICBs. Between NHS England and the ICBs, the NHS will continue to commission a comprehensive health service free at the point of delivery for all who need it. I therefore commend the clause to the Committee.

[Karin Smyth (Bristol South) (Lab)]

I rise to support the comments that were made earlier. I had indicated to the Minister that I would raise the issue about stating very clearly that the terms “care” and “after-care” in proposed new section 3(1)(f) include palliative care and services at the end of life. We have had a 36% rise in the number of people dying at home during the pandemic. That may be a result of choice, but, as someone who has supported someone at the end of their life at home, it is only possible through end-of-life services, including GP services and the Marie Curie overnight nurse. I do worry desperately about the percentage of people who are dying at home. It will be a huge issue for these organisations in the future to manage that positively. The Minister’s assurance that palliative care and end-of-life services are very much the responsibility of these boards would be most welcome.

[Edward Argar]

I will respond only briefly, because the only outstanding point that the hon. Lady rightly made was about paragraph (f). My understanding is that palliative care services and similar, as she has alluded to, would be captured under that paragraph. She is right, as are other Members, to highlight just how important those services are as continuing care or aftercare for patients. I give her the reassurance that my understanding of paragraph (f) is that it would encompass the services to which she has alluded.

[Karin Smyth]

Thank you.

Question put and agreed to.

Clause 15, as amended, ordered to stand part of the Bill.

Clause 16

Commissioning primary care services etc

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 28, in schedule 3, page 126, line 28, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.

This amendment would prevent an integrated care board from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

Amendment 29, page 126, line 32, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.

This amendment would prevent NHS England from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

That schedule 3 be the Third schedule to the Bill.

Clause 17 stand part.

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[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve with you in the Chair, Ms Elliott. I wish to speak to amendments 28 and 29, and will also briefly address a couple of brief points relating to the clause.

I am grateful for the Minister’s response—it is handy to know in advance the likely arguments against the amendments. I referred to the amendments late on Tuesday afternoon, with regard to private company involvement in integrated care boards. We are heartened to hear what the Minister said about that and look forward to having those conversations. My original notes said that the amendments go a little further and might be a little rich for the Committee’s blood, and that may well be the case, but they are nevertheless important.

As I said the other day, the vast majority—around 70% —of GP services are provided on the general medical services contracting model, between local and national commissioners and a GP or GPs and their practice. A little more than a quarter of services are on the personal medical services terms, which allow greater local flexibility, although I understand that the intention is to phase them out. There is a small but growing number of APMSs, which we are debating. APMSs allow bespoke contracting with private companies, with no obligation for a GP behind them. The Minister mentioned their being time-limited as an asset; I am not sure that that is necessarily true. Of course, there has to be flexibility for commissioners to meet need, but my argument is that this is being misused and is operating as a loophole for private companies to enter the market and cream off profits in a way that I do not think is generally the direction that service users in the NHS want. Colleagues should not think that, because the model currently provides just over 2.5% of contracts, this is in some way small beer. The largest provider of GP services in this country is wholly owned by a US megacorporation and has 500,000 patients on its books. I do not think that is what our constituents want from their national health service in England, and I do not think that is what they expect it to look like either.

Therefore, it is reasonable to use the Bill to try to do something about it, because this will be the model. It will grow at pace unless it is checked, and there are many reasons to tackle the issue. It is not just because I find the model distasteful, which I do. First, such contracts are poor value for money. For a registered patient, the mean payment to an APMS provider is 11% greater than that to a GMS provider. Of course, the Minister made the argument on Tuesday that such practices often serve the hardest cohorts, so perhaps that could account for the difference, but that is not the case either. When patients are weighted according to need, the mean payment is actually 16% greater on APMS contracts—it gets worse. If we read that across the entire patient list across the country, it would be the equivalent of £1.5 billion. That is the risk, if this grows to be the dominant model. Such contracts also provide less satisfactory care, with a 2017 survey of nearly 1 million patients finding that APMS services generated lower levels of satisfaction.

Finally, the contracts are easier to walk away from. Within the NHS, we already know that when it stops working for private providers corporately, they are willing to just walk away from contracts and hand them straight back. I strongly say to the Minister that such arrangements are a distortion of the health service’s founding principles. They are costly, they are of lesser quality and they are less reliable.

Amendment 28 is designed to stop integrated care boards entering or renewing such contacts, and amendment 29 would do the same for NHS England. I fear that the Minister may have slightly catastrophised the impact of that, because if this was accepted today, there would be GP services that could no longer operate tomorrow. For a start, the Bill has an awful long way to go, and I gently say that if there is anxiety about health organisations working in advance and presupposing that this will become law at some point and will be operational in April, I am afraid that the Government started that a very long time ago and have already started to fill places in shadow. I do not think there should be any anxiety about getting prepared in this way, so that there would not be a cliff edge.

I am willing to take the argument that perhaps there is a better and more elegant way of drafting this, and I would happily accept an amendment in lieu, but what I cannot accept is nothing at all. Again, the Minister’s point on Tuesday was very good, because sometimes there will need to be a way to provide flexibility for very bespoke services. I think the example he used was services for street homeless people. Of course, that might be a very different model from that of the GPs on my estate. I would accept that as a principle, but the corporation that has the biggest patient list, at 500,000, is a bricks-and-mortar primary care service in my community. That is not a use of flexibility; it is using that as a loophole.

I do not think that can be right, and I do not think the answer can be that the provision needs to exist and therefore we must open this space for that sort of distortion. We are either saying, “There needs to be flexibility, and here is the best way of having a flexible system. Don’t worry—we’ll make sure it is not misused,” or we are saying that we are happy with such organisations entering the market. The Government need to say which one is their preference.

I will make a point about primary care networks before I move on to clause stand part. Obviously, primary care networks are not in the Bill, but I put quite a lot of stock in them. I think that, locally, they will be a very important unit of organisation of care services in our community. I want them to work, and I am playing an active role in the primary care network in my constituency. I think they have real potential. However, who will lead them if we lose our GP practices to those who do not have an interest in our community? The model will become much more distant and uninterested, based on finances rather than the local population. I believe that would be a very, very bad thing indeed. As I say, the amendments may not offer the best way to close that loophole, but I have not heard a better one, or indeed a desire to close it, so I wish to press the amendments to a Division.

Finally, a couple of quick points on schedule 3, which we do not intend to press to a Division. We have had quite a lot of discussion—the Minister touched on this in the previous stand part debate—about the arrangement of integrated care systems, such as they exist. At the moment, we know that NHS England holds certain responsibilities, the regional teams hold certain responsibilities and CCGs hold certain responsibilities at a local level. It is possible, after these reforms, that CCGs will be replaced by ICBs and the previous arrangements and responsibilities will remain unchanged, with NHS England nationally doing the same things, the regional teams doing the same things and ICBs picking up the responsibilities of their predecessors. I suspect, however, that that is not the intention, so I want to press the Minister a little bit on that.

The explanatory notes, on page 59, paragraph 286, state that the functions relating to medical, dental and ophthalmic primary care sit with NHS England, but that

“The intention is that Integrated Care Boards will hold the majority of these functions…in the future.”

Will the Minister expand on that? Does a “majority” mean two out of the three in a different area? Does he intend—again, we touched on this the other day—that this should all be devolved to the 42 ICBs at the same time, or will there be a sense of when each system is ready to pick up those important services? If so, what criteria will that be based on?

Finally, in case we do not come back to this topic—I do not expect the Minister to have an exhaustive list to hand—what is the thinking on other NHS England national and regional functions? Are they likely to be devolved to ICBs? Can he give an example of what sorts of things might be retained? He mentioned that we would want to retain specialist commissioning at a national level. The final question is this: is it ICB by default unless there is a very good reason why it cannot and therefore it has to be done at a national level, or is it at a national level unless it is proven that ICBs are competent to take it on? The answer may be a bit of a mixed economy, but if that is the case, I am keen to know what criteria he will use, or the Secretary of State will use, to make those decisions.

[Karin Smyth]

I rise to support my hon. Friend the Member for Nottingham North, who made an excellent case for amendments 28 and 29. While on a primary care trust board, I commissioned APMS contracts under a previous magnificent Government—I am not saying this one’s not magnificent, but—because they offered flexibility. Then, as now, they were a sign of a failure of the system and the model of primary care contracting to deliver, particularly in areas of high deprivation. To provide flexibility in Bristol, for example, we had an 8 am to 8 pm service in the city centre to allow better access for people in the city centre, partly to drive down demand on emergency care services, which is a circle that we just keep on going round. Whether they worked or not is a bit of moot point, but it is a model and it is clear that something is needed—I would certainly concede that—so I understand the Government’s difficulty here with having something that is flexible.

I was slightly concerned when the Minister said that the APMS model would be developed further. I wonder if he wants to come back on that. We have to accept that they are problematic at the moment and we would like to see them go because of that. They are now being used as a back door, a very unfortunate one, for large private companies to start hoovering up general practices, which is, yet again, a sign of failure as to why they cannot survive in their environment. If they are going to be developed further, that is something we would like to hear more about. If not now, perhaps the Minister responsible could come back to us on that. Patients are always surprised when they find out that their GP is a private contractor. I accept that this is a difficult area to be completely black and white on. We are certainly in favour of flexibility in developing services in areas of high demand where, for reasons around capital or the type of contract, a GP might enter into partnerships. We know that the workforce is changing rapidly and the model of partnerships is not as attractive and is not recruiting people into the service. It is—not to overuse the word—a crisis.

I am sure we have all been contacted by various bodies representing GPs in our own constituencies. They are fearful not just about the current pressures, but the future attractiveness of primary care. We are not going to get into the future model of the contract today, but I always pity the poor Minister who has to negotiate the contract.

[Edward Argar]

I fear she is sitting behind me.

[Karin Smyth]

It is not a negotiation that anyone looks forward to with relish, but we need to take a good, strong look at the model now. This policy is not the route, and my hon. Friend the Member for Nottingham North has described perfectly why it is not. It is of deep concern. These large organisations are not part of the local community. It is completely against the thrust of this Bill, which is about place-based, locally accountable systems. The Government would be wise to take his advice and perhaps come back with something else. We seek assurance that this policy is not being developed further, because that would be of even greater concern.

[Edward Argar]

I can reassure the hon. Member for Bristol South. I fear she misheard me when I was saying that we were encouraging primary care commissioners to go further in developing primary care provision—that was not necessarily this model. Forgive me if I was unclear on that, and I hope that gives her a little reassurance on that point.

To address a number of the other points that the shadow Minister primarily made, I suspect his fears are not borne out in reality. I suspect he will none the less, as we cannot accept his amendment, press it to a vote to highlight the issue, and that is his prerogative. I come back to the point that flexibility in this space is hugely important. The examples given by the hon. Member for Bristol South about the challenges in primary care provision are a good argument for why we need this flexibility. We know that some practices, which are GPs’ private businesses contracted to the NHS, on occasion will collapse or a partner will retire and a surgery will cease to operate, especially if no one wishes to take it over. Therefore it is important that these flexibilities are available to commissioners to ensure GP practice coverage.

[Karin Smyth]

Just to be clear—my apologies for mishearing the Minister previously—such closures are a sign of failure. The answer is to negotiate the contract better and to modernise a clear contract, not to use this vehicle. That was my very clear point.

[Edward Argar]

I take the hon. Lady’s point, but it would be a sign of failure not to build flexibility for all eventualities into the arrangements we have at the disposal of commissioners and into what my hon. Friend the Member for Bury St Edmunds is trying to do to build resilience into the system. I very much hope that she will continue to do so, or will ascend in the next few hours to something else. That is why flexibility is at the heart of this measure and why we cannot support the amendment of the hon. Member for Nottingham North.

I will try to address a couple of points that the hon. Gentleman made. We envisage PCNs continuing to play a hugely important role locally in the provision of primary care services. My GP is actively involved in the local PCN in Leicestershire. I know, whenever I speak to him, just how much it has done, particularly in the past 18 months, to build resilience into the system and make sure it works. I know the value of those PCNs more broadly in, for want of a better way of putting it, more normal times.

The final thing the hon. Gentleman asked about was the delegation of currently nationally commissioned functions down to ICBs. The short answer is that he was right in his supposition that this is not a binary, one-size-fits-all measure. The reality is that NHS England will be looking at which ICBs and ICS areas are sufficiently developed that they can take on additional commissioning responsibilities. If he and I sat down, we would probably have a fair sense of which ones were already well advanced. It may be some where there is a mayoralty and there is already a significant amount of devolution in one or two areas. It may be others. We heard from Dame Gill Morgan in Gloucestershire, who clearly has a highly developed ICS in that area. I would be reticent about setting a black-and-white thing on meeting some criteria. There is a degree of subjectivity, which is why we will be reliant on the expert advice of our colleagues in NHS England, and they will make these decisions in the appropriate way.

I hope that gives the hon. Gentleman some reassurance on the broader clauses and schedule stand part. I fear I have not persuaded him in respect of his amendments, but it was worth a try.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Schedule 3

Conferral of primary care functions on integrated care boards etc

Amendment proposed: 28, in schedule 3, page 126, line 28, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.—(Alex Norris.)

This amendment would prevent an integrated care board from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Edward Argar]

I am grateful to the shadow Minister, the hon. Member for Ellesmere Port and Neston, for facilitating the debate on this matter, and, as I said, I admire his ability at pace and fluently to rattle through a long list of examples.

As the shadow minister said, the amendment relates to the role of ICBs and ICPs in relation to innovation. First, I want to reassure the Committee that I share his view on the vital importance of research to the NHS and the UK more widely. We are committed to being a research superpower and fully support research and innovation in the NHS and the public being given timely access to transformative medicines and treatments resulting from that innovation.

The example we would all use at the moment is vaccine development. That is a phenomenal example, and it is at the forefront of many of our minds. That is why we have replicated the research duty on CCGs for ICBs to continue a system that has been working well. We are fully supportive of research and ensuring that effective health, public health and social care services are delivered, but we cannot support the amendment.

--- Later in debate ---

[Alex Norris]

Amendment 83 builds on my hon. Friend’s argument about creating some balance between the integrated care partnership and the integrated care board, so I will not repeat it. I simply underscore the fact that the ICPs have the money, power and accountability at the moment, but there is a risk that they become a closed shop and not bodies about integration at all.

We are told that integrated care partnerships will be the way in which the broader health and care family and the community will come together as they lead and play a pivotal role. We need a safeguard in the Bill to ensure what we would do if the relationship breaks down. The amendment is a version of what Sir Robert Francis from Healthwatch said about one possible way in an evidence session. I am not prescriptive about this, but I am keen to hear what the Minister might suggest to give us comfort on this. If the ICPs are to function as promised, their plans ought to have some sort of status, so that if the integrated care board chooses to diverge, it must make a public statement that it is going to within 30 days and then publish its reasons with evidence within 60 days.

There is an equivalent provision in NHS England for responsibilities held at a national level. If nothing else, this is basic accountability. It does not restrict any activity, so there is no risk in it. Even if a partnership does not like the decision made or value the reasons given, it cannot remove the chair of the board. Although the constitution has already prevented that, at least we will know what has happened, so the safeguard is quite modest. There is a blizzard of different ways to do it, but I hope that we can have some comfort on ensuring a balance between the partnership and the board, if not at this stage, then by the time we come back on Report.

[Karin Smyth]

Will the Minister share with us what he thinks the difference is between ICPs and health and wellbeing boards?

[Edward Argar]

I will confine my comments to amendments 47 and 83, because we will address the wider themes when we have the clause stand part debate.

Amendments 47 and 83 stand in the names of Opposition Members. The shadow Minister, the hon. Member for Ellesmere Port and Neston, has asked a number of questions, which I will try to address before turning to the substance of those amendments. I am not personally aware of any analytical piece about the impact and effectiveness of health and wellbeing boards, but anecdotally from my background in local Government before I came to this place—and, indeed, as a Member—I certainly see the value that they bring to their communities through their work. The shadow Minister is perhaps being a little inadvertently unfair to the legal profession in suggesting that the phrase “have regard to” is weasel words, because my understanding is that “have regard to” is a well-known, much-used legal phrase in drafting, and it carries with it an obligation to do exactly what it says: to have regard, and to show that.

Finally, the hon. Member has pressed me again, and I fear I will give him the same answer—he and I have done this before—as I have given the other shadow Minister, the hon. Member for Nottingham North, in various delegated legislation Committees over the past year relating to our exit from the EU. I think the Prime Minister has been entirely clear in what he has set out: this legislation lays important foundations for the closer integration of local authority and NHS-provided care, on which we will of course build, because we are an ambitious Government with a clear agenda to further improve our health and care systems.

With those points made, I will turn to the detail of the amendments, which address the relationship between ICPs and ICBs—as certain Opposition Members have touched on—and address divergence from health and wellbeing board and ICB assessments and strategies. Amendment 47 would require the Secretary of State to establish a procedure to resolve any disputes between the ICP and the ICB, while amendment 83 would add an additional requirement on NHS England, integrated care boards, and local authorities to make a public statement and publish their reasons when they deviate from the integrated care strategy prepared by the proposed integrated care partnership, and the joint strategic needs assessment and joint local health and wellbeing strategies prepared by health and wellbeing boards.

I do appreciate the concern—the genuine concern, I think—from Opposition Members about the need to ensure that ICPs and local authorities are genuinely closely aligned to both the ICP and the health and wellbeing board plans. We do intend for these assessments and strategies to be a central part of the decision making of these bodies: that is why, as I say, we are introducing a duty for those bodies to have regard to them. However, we do not think the additional conditions suggested by these amendments are necessary, as we believe there are already means in place to avoid such disputes. First, the ICB will be a required part of the ICP. It will be intimately involved in pulling together the integrated care strategy, so it should be fully signed up to the elements of the plan that fall within its area of responsibility, as it will be partly drafting that plan. As a result, we consider the likelihood of disputes in that context to be low.

Secondly, there are already duties on both ICBs and local authorities to have regard to the strategy in discharging their functions. The duty to have regard means that to diverge from the plan, they must be able to reasonably explain and justify why they have done so. If they cannot, they would be open to challenge, and in the case of an ICB, they could be open to direct intervention from NHS England for having failed to discharge their functions to have due regard properly. Thirdly, we would also expect that both health and wellbeing boards and ICPs would consider how their strategies and assessments are applied in the system, and would want to keep progress under regular review. Those committees themselves provide an appropriate framework for regularly assessing and considering how to address any divergence.

We are also concerned that it would be difficult to rigidly determine if and when NHS England, an integrated care board, or a local authority had diverged from these strategies and assessments in the exercise of their functions, especially if plans were high-level and strategic. By creating this specific requirement and setting a specified timeframe, I fear we would risk creating a great deal of bureaucracy as these bodies attempt to determine if, when, and to what extent they may have diverged. Instead, we believe it is more appropriate to leave it to ICPs working with the ICB and local authorities to develop and design mechanisms to review progress locally.

As a further safeguard, NHS England has the general power to issue guidance to ICBs on the discharge of their functions, which could be used to set out how an ICB should consider the integrated care strategy, joint strategic needs assessment and joint health and wellbeing strategy in exercising its functions. Guidance may also suggest ways of resolving any issues that arise in the ICB in the exercise of these functions. We would expect NHS England to consider doing so, if that was necessary.

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Rather than saying that we are fully against the proposals, we are saying that we do not understand how all this is going to work in practice. I hope the Minister will be able to shine a light on that.

[Karin Smyth]

I echo my hon. Friend’s words. The Minister is going to have to go back to the drawing board on this, although I can see what the clauses are trying to do. Financial directors I have spoken to commend the idea of working together under some sort of shared control. We have had controls before, but clauses 21 to 24 —I may be straying beyond my knowledge of the writing of Bills and financial movements—come under the heading, “Integrated care system: financial controls”, and the entire section is about controlling ICBs and NHS trusts.

We have not had a system defined. We know that control totals are difficult and that autonomous trusts have regulatory rules. We would be here all weekend if we started to talk about foundation trust controls, and what those trusts can and cannot do with their budget. Clauses 21 to 24 test out the definitions of roles and responsibilities, and the tensions throughout the Bill over trying to apply a systems view to disparate organisations with different duties and responsibilities. The Minister has been trying valiantly to say that there is clear accountability through NHS England, but all of us here as Members of Parliament, and as I keep repeating, understand what local accountability is in a system and this is not it.

We do not know what an ICS is, and we have all agreed that that might be okay—we are kind of in favour of permissiveness—but what divides the Committee and, I suspect, people farther afield is that the Government view is that permissiveness is okay, and it is up to the NHS England regions and the Secretary of State. We would like to impose some greater local accountability earlier.

The terminology in proposed new section 223M, on page 34 of the Bill, is clear, and refers to:

“Each integrated care board and its partner NHS trusts and NHS foundation trusts”.

That part of the Bill deals with aggregated spending on revenue and capital. I do not want to overload people’s brains at this time of the evening, but the Bill really is a mess in respect of capital. Our buildings are crumbling and the backlog is huge. We have talked about NHS properties in community health partnerships. The architecture still exists, but it is not clear how that system works. I think poor old Sir Robert Naylor’s edicts and pieces of wisdom are just propping open doors in offices in the Department of Health and Social Care, because they are certainly not being developed and they are not being developed in the Bill.

Will a trust finance director have to seek permission from the ICB to spend their capital, or even to know what it is? If that is the case, it makes a nonsense of the good financial management of some very large institutions. We would all like a bit of financial rigour in the system, but I am not sure the Bill allows us to have any. It is as my hon. Friend the Member for Ellesmere Port and Neston said: for community services, we have the Virgin Cares, but even a community interest company would sit outwith the NHS trust definition. Such companies are regulated by the Office of the Regulator of Community Interest Companies, which is separate from some of this. The regulation for some of these bodies is problematic, and GPs are obviously outside it, even if ICBs start to commission them.

The aim is to allow NHS England to control aggregate spending, but to do that there has to be some direction. Lo and behold, on page 35 of the Bill there are more direction powers for NHS England. We have alluded to the fact that provider expenditure gets divvied up, and some ICBs also commission specialist services; there will have to be some NHS England-defined calculation of how on earth all that fits together. Someone somewhere will need a very large spreadsheet and will have to try to balance the flows of money around the system.

I have asked a lot people, including experts, whether anybody starts to understand financial flows. That is obviously important because we are talking about our taxes and we need to know how they are being spent, who is spending them and who is moving the money between each of these organisations. What about when these bodies cross different boundaries? Will the Minister say whether the trust or the foundation trust gets to argue about which part of its base is allocated to which ICB and vice versa? I am certainly glad—I often am—that I do not live in London and am not trying to work that out for some of the large teaching hospitals that cross many boundaries. There used to be a role for strategic health authorities to try to match what providers said was in their accounts with what commissioners said they thought they had given them. I do not think they matched that often, and the structure in the Bill is much more complicated than that. How it will work in practice matters.

My hon. Friend the Member for Ellesmere Port and Neston has already asked some of the questions. This issue is very complex and involves big sums of money, and ultimately it is about patient care, so who is going to hold it all together? Where is the collective leadership and who will be the top people in these ICSs? The advert for the ICS chairs has gone out, and the pay is £50,000 to £80,000 for three days a week. The requirement on those people is clear; let us see how many of them are not already well known to NHS England. That is deeply problematic, if they are going to work—and we all agree that we would quite like them to work.

In the new system, can commissioners and providers both be blamed for the same things? As my hon. Friend said, can they be put into special measures? Where are the levers? What is going to happen, other than NHS England commissioning expensive consultants to say to people, “You know what? It’s looking a bit complicated and some of you haven’t got the right bits of money in the right places,” and trying to bash some heads together? All that will be done behind closed doors.

When we get down to the money, permissiveness becomes a bit of a work of fiction. This part of the Bill needs to be looked at again, between its leaving this place and arriving in the other place, to get a bit more sense into it. As we all know, the guidance is going out there. This has been worked on by NHS England, so it could come back in fitter form. As I said to the witness from Oxfordshire last week, joint work and integration often fall apart ultimately because of the money. Any local authority financial director, any foundation trust financial director, any good hospital financial director and any community interest financial director will be looking, quite rightly, at their own bottom line at the end of the day, as that is their job.

It is entirely up to NHS England how it navigates this. It looks like clever financial leverage work, and I really do not think that it will work and it all needs to be looked at again. I return to my theme that this is why we need somebody independent and highly skilled working on behalf of the local community to make the ICS work, and not to have it, as a result, an NHS England outpost deciding how it moves money around the system. We need to understand the financial flows, and ensure that they work much better than is laid out in the clauses.

[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

Health and Care Bill (Seventh sitting)

Karin Smyth Excerpts

Committee stage
Thursday 16th September 2021 Public Bill Committees

[Alex Norris (Nottingham North) (Lab/Co-op)]

I beg to move amendment 34, in schedule 2, page 120, line 26, at end insert—

“(2C) The constitution must require integrated care boards, and any committee or sub-committee of the board, to meet in public and publish all papers and agendas at least 5 working days before each meeting is held.”

This amendment mandates integrated care boards, and their sub-committees including “place based committees” to meet in public and publish all papers and agendas at least five working days before each meeting is held.

It is a pleasure to resume proceedings with you in the Chair, Mrs Murray. This is a resumption of our discussion on schedule 2, which lays out the rules under which integrated care boards must meet. For all the talk of local flexibility, the reality is that the regulations are quite tight in schedule 2; the amendment seeks to tighten them a little more, but not disproportionately so.

The amendment asks for two things: first, that the boards meet in public, and, secondly, that they publish their papers five days in advance. To start with meeting in public, it has been mentioned on a number of occasions that the 42 different integrated care boards are in different states of development. There will be systems that are well advanced and model good behaviours of transparency and accountability, but we have to set regulations to ensure a minimum floor standard, and this is what the amendment does.

For a struggling system, the worst-case scenario, as we have said before, is that it can become a closed shop of leadership appointed centrally by NHS England and the leaders of the big acute trusts, because it is they who have the power and the resources. We cannot legislate to improve the culture of those systems—that is not what legislation does—but we can ensure proper oversight to try to minimise the risk, and meeting in public is a good way to do that. Sunlight is the best disinfectant, as they say, and this will mean that the public have a good sense of what decisions are being taken in their interests.

A key part of that citizen oversight is to know what decisions are being taken and when. Including a provision in the constitution to publish papers with five working days’ notice seems a good way to do that. I would argue that that represents rather basic good governance, so it is a very low bar to clear. We have spoken before about wanting to allow integrated care boards to be able to vary to fit their local circumstances, but I cannot see under what circumstances it would be desirable or relevant to vary the publication of that information. I do not think there are any local circumstances that would call for that. The requirement would mean that members of the public, elected representatives and those who represent staff or anyone with a general interest would understand what is going to be decided and when, and would give them the opportunity to make representations so that the board members are making decisions in the full knowledge of the facts and the views of the broader system.

In the amendment, that requirement also applies to all committees or sub-committees. This matters, because we heard in the evidence sessions that it is almost inevitable that every system will want to establish sub-committees, both thematic—we heard from the system in Gloucestershire about its primary-care themed one, which I thought was a very desirable way to use a sub-committee—or, inevitably, given what we have said about the size of the footprints of some of the integrated care boards, place-based. It is important that the provision applies to those bodies too.

The question matters even more to the integrated care partnership and its status, and I hope the Minister will be able to address it. My reading of clause 20 and proposed new section 116ZA of the Local Government and Public Involvement in Health Act 2007 states that this is a committee of the integrated care board and the local authority. I would argue that that remains an oddity, because the process was pitched to us on the idea that we have an integrated care board that will be the official NHS fund-holding body, but then we have the integrated care partnership that will provide the broader involvement on an equivalent basis, not as a sub-committee. I hope that point can be addressed, but nevertheless it will be important for that body that the public know what is being discussed and when. We will come back to clause 20, but the commitment from the Government that the meetings and papers should be public is a good thing.

Conceptually, the amendment lands the ICB and any sub-committees at about the level of an executive board of a council. That to me feels about right. The Minister may have reflections about circumstances where, by exception, the boards may need to meet in private for certain decisions, as local authorities would do. There are ways to do that for councils, so I do not think it is beyond our wit to do the same for these bodies, too. As a default, the basic principle of public meetings, with papers published five working days in advance, seems sound.

[Karin Smyth (Bristol South) (Lab)]

I offer my support to my hon. Friend and agree with everything he said. There may be a response from the Minister, although I do not know what he will say, but there is some discussion that perhaps the amendment is not necessary, as this already happens and the Bill refers to publishing—but that is not true. There are exemplar trusts and bodies across the country that have a culture of openness, but NHS boards are secretive and protected.

We have numerous examples of whistleblowing and good journalism uncovering the depths of NHS bureaucracy. Boards with which I have dealings, not just locally in Bristol, do a lot out of the public eye, and a culture of not liking scrutiny has evolved over a couple of decades, even though they should be really proud that people are taking an interest. We need to change that culture, and having a reference in the Bill would help.

Trade union colleagues have often come to me to complain about how they are blocked from getting key information about plans for changes. Changes are announced, and management often want to start TUPE discussions without really understanding what is behind the change. The use of freedom of information requests results in variations across the country in who responds and how they respond. That needs to stop.

The default should be to make things public unless there are reasons not to. I was a non-executive director back in the noughties, and was led by a chair who had come from local authorities—a Labour chair, but I do not think that matters. People who were used to chairing in local authorities found it quite peculiar that the NHS wanted to discuss matters in secret. As a board, we made it the case and culture that managers had to say if there was a really clear reason, and on several occasions we challenged why things were not done properly.

The new NHS is not commercial. The Government tell us that we are not quite getting rid of the purchaser-provider split, but we are moving away from competition as the driver of the health service. The confidentiality argument should be disappearing. I hope that the Minister accepts that the very highest standards now need to be set around openness and transparency and need actually to be enforced. All levels of the NHS and all these committees and sub-committees, however we end up organising them, have to be cognisant of the Nolan principles, which should drive all their work.

If a trust is finally forced by a tribunal to disclose information, it should have been provided earlier. There should be consequences. Where there is a bad culture, we need to change it. To reference my hobby-horse, there should be a business case to support every major decision. Later we will discuss my new clause 7, which comes from the pain I have experienced trying to unearth business cases, particularly in wholly owned companies and subsidiaries, to deliver facilities management. I have asked for business cases only to be told, “No, it is confidential.” There should be no need for it to be confidential at all. I do not understand how a business case can be confidential—at best, a few lines might be sensitive, but not a full business case.

That shows that NHS bodies who fear a change think they have something to hide. It is wholly wrong. If a change is proposed, the case for change should be published. We need to know why it is necessary. I would go further; I would publish all details of the tender process and the contract management. If anyone wants to do business with the NHS, which we welcome, they need to be open and transparent. It really is a test of the intention to change course and move to an integrated, collaborative model, because as we exit the market, we need to be make sure that the wellbeing of the public and the patient really comes first in commissioning. As I say, that culture needs to be changed.

To come back to my theme, ICBs need to be the bodies that the public recognise and understand as being where some sort of accountability resides. That means that nothing should be secret. Let us go further: the public has the right to question. That is what we come back to. There has to be a figurehead—ideally an elected figurehead —or non-executive directors who can be truly independent and challenge that secretive culture. I hope the Minister will look favourably on the amendment.

[The Minister for Health (Edward Argar)]

It is a pleasure once again to serve under your chairmanship, Mrs Murray. I am grateful to the shadow Minister, the hon. Member for Nottingham North, and to the hon. Member for Bristol South for their amendment, and for their comments on it. As the shadow Minister set out, it would require ICBs and their subcommittees to meet in public, including place-based committees. To address one of his specific points, if I understood what he was saying, I think he does interpret it correctly: the ICP is a committee of the ICB, albeit a joint committee with a whole range of other organisations. I would expect the same principles to apply to it as to the ICB, and I will go through those in a second. The amendment would also require all papers and agendas relevant to those meetings to be published

“at least 5 working days before each meeting is held.”

We agree with the shadow Minister that it is right that ICBs involve the public in their decisions, and do so in a transparent and clear way. I hope that I can offer him some reassurances that the Bill already provides much of what he is asking for. Like a number of hon. Members, I served on a primary care trust board as a non-executive director, back in the days when I had more hair and it was not grey—although that might have been just a day ago, before reshuffle speculation—and I take the point that the hon. Member for Bristol South has made. We sought to be as transparent as possible, but there were occasions on which total openness to the public about consideration of certain items would not have been appropriate. I will come to those in a second.

In terms of what is already provided for, the Public Bodies (Admission to Meetings) Act 1960 already places on such bodies a set of requirements to involve the public in meetings that is very similar to those in the amendment, and I suspect that Act was part of the genesis of the shadow Minister’s thinking. The Act requires meetings to be held in public, for the public to be made aware of the time and place of the meeting, and for the agenda to be published, alongside any reports or documents relevant to the agenda items. ICBs have already been included in the Act by the consequential amendments in schedule 4 to this Bill, and we may want to connect that loop up when we reach schedule 4, hopefully later today—I believe that is the intention. By using that legislation, we keep ICBs in line with the requirements placed on other public bodies, meaning that there is consistency across public bodies and they are held to the same standards.

I hope I can give some further reassurances that there are broad duties on integrated care boards to involve the public in the decision-making process, over and above those contained in the Act. Clause 19, which inserts proposed new section 14Z44 into the National Health Service Act 2006, places a duty on integrated care boards to involve and consult the public in the planning of commissioning arrangements, including in respect of any planned changes to those commissioning arrangements. This will ensure that the voices of residents —those who access care and support, as well as their carers—are properly embedded in ICB decision making.

Schedule 2 to this Bill, which concerns the constitutions of integrated care boards and which we will reach shortly, states that ICB constitutions must specify how the ICB plans to discharge its duty to involve and consult the public. Moreover, those constitutions must specify the arrangements that the ICB will make to ensure that there is transparency in its decision making, and NHS England will ensure that all proposed constitutions are appropriate and include the relevant provisions to meet those obligations. Under clause 13, which inserts proposed new section 14Z25 into the 2006 Act, NHS England will need to approve the constitution when making an establishment order, and proposed new section 14Z26 makes it clear that NHS England has the power to reject a proposed constitution if it does not meet the appropriate bar.

Turning to a few specific points made by the hon. Member for Bristol South, we are still clear that competition has a role to play in this space: it is about proportionality, and seeking to achieve a better and more proportionate balance in that respect. She rightly asked about the examples of circumstances whereby it might not be appropriate to be fully transparent. I was on a primary care trust board some years ago, and there were occasions when the board would discuss specific incidents or situations that could lead to the identification of an individual or a group of individuals. Clearly, such matters would be confidential. Similarly, matters that were due to be, or were, before the courts were discussed on occasions—again, we would expect that to be confidential.

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[Karin Smyth]

I beg to move amendment 17, in schedule 2, page 124, line 14, at end insert—

“(7) An integrated care board may enter into an externally financed development agreement in respect of any Local Improvement Finance Trust relevant to the area for which it has responsibility and receive the income related to that agreement.

(8) An integrated care board may enter into an externally financed development agreement in respect of any proposed Local Improvement Finance Trust relevant to the area for which it has responsibility.”

This amendment would enable integrated care boards to participate in existing and future LIFT schemes and to receive the income that would come to the local area from the local investment in such schemes.

I assure the Minister that this as a probing amendment, and I will not seek to divide the Committee, but it is an important issue. The local infrastructure finance trust transformed the primary and community based services in large parts of the country, and certainly in Bristol, over the noughties. In my constituency, there is a very large general practice community base, as well as South Bristol Community Hospital with the long-campaigned for urgent care centre and several rehabilitation and prevention beds used by the community trust out-patients. However, they have all hit problems in the last decade and have not really fulfilled their potential within the system, largely because many of them came on stream at the time of the Lansley Act and the abolition of primary care trusts.

The management of estates generally is something I have spent a lot of time unravelling. There is nobody locally spearheading them, really understanding the different, sometimes complicated, relationships within them and making them fulfil their potential, in terms of both delivering services locally and the financial model. There has been a lot of buck-passing locally about who is responsible for developing those things, and that is particularly true of my local community hospital.

My concern is that the wording in the Bill around “externally financed development agreements” is the same as was applied to clinical commissioning groups after the Lansley Act. The Bill also does not deal with NHS Property Services or community health partnerships, which are outwith the Bill. I wonder how these local ICBs are going to manage capital and estates development with the inherited part of that architecture. We will come later to the management of capital to develop the estate.

My concern is around how we get capital investment into primary and community care. In our evidence session, we asked the new chief executive how she saw this happening. I appreciate that we talked about large hospitals, even though we do not seem to know what a hospital is these days, but my point was really about community services. Ms Pritchard said that development would happen through

“the existing capital allocation processes… Rather than just going to each individual organisation to then make their own decisions about how they spend it, it would now go through the ICB, so there is a process that allows consideration in the round of how the system spends that money most effectively on behalf of its entire population.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 21, Q25.]

We will have some discussions around further clauses about the treatment of capital, but they do not really allow for the principles around the Local Improvement Finance Trust and primary care to develop. How do we get this investment into primary and community care? What is the Government’s view on the LIFT model?

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[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.

[Alex Norris]

I am grateful for the opportunity to comment on amendment 17 and the insight that my hon. Friend the Member for Bristol South brings from her long period of working in the NHS. What is at the crux of this point is quite important. We have spoken quite a lot about integrated care and revenue, but the capital component is as important, so I am glad we have the opportunity to discuss it.

I have great affection for the Bulwell Riverside facility in my community, which co-locates two GP surgeries, community services and pharmacy services with local authority neighbourhood services, the local library and youth services. Pre-covid, I and the local councillors would be there every week for an event. Every year, my annual jobs fair is there—it is today, but we are not inside because of covid, so it is out in the marketplace. If any of my constituents are watching, we are there until 2.30 pm.

That joint service centre has driven a culture of integration and collaboration, exactly in the spirit of everything we have been discussing on the Bill. It is a very practical example of integration in practice. It was funded on the LIFT model because, at that point, more than a decade ago, that was the way to get money into the system. The logical consequences on the ground of the legislative direction that we are told is intended here will be more need for this sort of joint service centre model. We need to give that proper consideration.

As my hon. Friend the Member for Bristol South said, this element is one of the few bits of the 2012 Act that is not being removed to take us back to pre-2012 status. Then, primary care trusts could enter into these arrangements locally, whereas their successors, clinical commissioning groups, could not and, at the moment, the successor ICBs cannot either. The amendment would remedy that.

Why is that provision not being added back in? It looks a bit like a wheeze. Originally, PCTs would have had a 40% stake in the arrangements and would have benefited exactly as my hon. Friend said. Now, that stake is owned by community health partnerships. Who owns 100% of community health partnerships? That is the Department of Health and Social Care. It is not that nobody benefits from these arrangements—it is that the Department does, rather than local communities. We are told this Bill is about localisation and devolving resources and powers to local communities, so why on earth is this bit not going back in? It is definitely a point of interest, particularly with existing LIFT models.

On LIFT models, it may be that the Government do not think that they are in vogue now or that they are the right model. I would be interested to hear what other methods the Minister might prefer.

How to get capital back into the system is a significant point. The NHS backlog is now £17 billion, as the bill for austerity becomes due, so we will have to address it by one means or another. If that is not to be done through this system, I am keen to hear from the Minister how it is to be addressed.

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[Edward Argar]

It is right that we discuss this point today, because while the focus of the media is often on the 40 new hospitals being built—a very clear and understandable definition; I am sure any reasonable person could recognise a new hospital—we do not talk as often as we should in this place about primary care. It is often neglected in discussions, debates and headlines. It is right that we are talking about it today.

On the shadow Minister’s point about CHPs and similar, the Department exists to further the health of the population and to support local communities. There is a wonderful synergy in those objectives and outcomes.

I will turn to the substance of the amendment tabled by the hon. Member for Bristol South who, on this as on many things, knows of what she speaks, with her depth of experience in this space—I always tread slightly warily when responding to her challenges. As she alluded to, the amendment would allow an integrated care board to enter into an externally financed development agreement in respect of any Local Improvement Finance Trust relevant to the area for which it has responsibility, and to receive the income from that agreement.

We believe that the amendment is unnecessary, as the ability to enter into an externally funded development agreement is already covered by provisions in paragraph 20 of schedule 2. The provisions allow an ICB, which would take the local view of estates and other health matters,

“to enter into externally financed development agreements”

if the agreements are

“certified as such in writing by the Secretary of State.”

Such certification will be considered if

“the purpose or main purpose of the agreement is the provision of services or facilities in connection with the exercise by an ICB of any of its functions, and…a person proposes to make a loan to, or provide any other form of finance for, another party in connection with the agreement.”

We are clear that the wording of the provision would encompass a development agreement entered into with a LIFT company. If included separately in the Bill, as the amendment proposes, there is a risk that the interpretation of paragraph 20 of schedule 2 is that the Bill’s intention is to restrict the use of externally financed development agreements to those that involve taking a shareholding in LIFT companies, which is just one type of project company model that could be used to access private finance. That is why we believe that the amendment introduces a degree of ambiguity that is not currently there.

On the broader points raised by the hon. Lady about who has responsibility for the primary care estate and for investing in and upgrading it, she will be aware that it is a complex picture because of the nature of some GP surgeries—some own their own buildings, others will be in a health hub. My hon. Friend the Member for Bury St Edmunds—we remain ministerial colleagues in the same Department for the moment, but who knows what the future may bring—has done a huge amount of work with primary care to look at those challenges.

The hon. Member for Bristol South talked about hubs, or integration. One of the models being looked at—all the credit must go to my hon. Friend for this work—is the so-called Cavell centres that hon. Members will have read about, which are about looking at how we could have health hubs in town centres, bringing together a whole range of services. They are at an early stage of development, but it would be remiss of me to pass over that point without paying tribute to my hon. Friend for her work in that space.

On LIFTS more broadly, we are not envisaging any changes to existing LIFT company arrangements. They can still be used for the purposes for which they were originally set up. The hon. Lady has kindly indicated that she does not intend to press the amendment to a vote, but I hope that I have given her some clarity, particularly on why we think the provisions in paragraph 20 of schedule 2 will cover and continue to allow the arrangements to which she alluded.

[Karin Smyth]

I am grateful to the Minister for his comments, which I will read and understand carefully. We would still like our dividend back; it is an important principle of localism and, dare I say, accountability. We promised people that that is what they were getting. I will continue to pursue the matter in this place, but I am grateful to the Minister for his comments and, as I said, I will not seek to divide the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule be the Second schedule to the Bill.

[Edward Argar]

The schedule details essential information about how we expect statutory ICBs to function and about the essential criteria that ICB constitutions must fulfil. It sets out that ICB membership must, at a minimum, include a chair, a chief executive, representatives from local NHS trusts and foundation trusts, primary medical service providers and local authorities, known as “ordinary members”.

The chair must be appointed by NHS England and approved by the Secretary of State. The constitution must not provide for anyone other than NHS England to remove the chair from office. The power for NHS England to remove the chair from office must be subject to the Secretary of State’s approval. The chief executive must be appointed by the chair and approved by NHS England.

The ordinary members of the ICB must, at a minimum, include one member jointly nominated by NHS trusts and NHS foundation trusts that, as I have alluded to, require services in the area; one member jointly nominated by persons who provide primary medical services within that area; and one member jointly nominated by the local authorities within the ICB area.

Health and Care Bill (Sixth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[Justin Madders]

We will not be opposing this clause. Clearly, as the Minister has set out, it is necessary to enable the functioning of the health service.

I have one question about the powers under proposed new subsection 13YB(4), which are effectively prohibitions on the ICBs from delegating arrangements further. Will the Minister set out what circumstances are envisaged, if any, where this power may be necessary? There will obviously be delegations, not only to the services listed there, but to place-based organisations. In that situation, what does the Minister see the role of the ICBs as? Will it be the ICB itself that delivers those functions, or will it be another body?

[Karin Smyth (Bristol South) (Lab)]

Further to those points about clarity around the exercising of powers, the move to give NHS England that power is entirely sensible. The medical, dental, ophthalmic and pharmaceutical services have had a lower profile in our constituencies over the last few years, as I think we would all agree. It is important to give them the profile they need to be integrated into the system, because they have certainly not been so far.

The evolution of delegating that power to CCGs came late in the day, and remains muddled around the commissioning of primary care services. Therefore, while allowing the delegation of function is entirely sensible, it is not clear, as my hon. Friend the Member for Ellesmere Port and Neston has said, when or how that delegation will be sought. I think the Minister was referring to the involvement of the Secretary of State, but I am not sure in what circumstances the Secretary of State would be doing that, and why this would not be when NHS England, or NHS England regions, decides that the ICB is of a maturity to accept commissioning responsibilities.

One assumes that NHS England believes that at the moment some of those putative organisations are mature enough already; will some of them start doing that on day one, six months in or a year in? How will we know and how will they be resourced to do it? Is it a transfer of power? How NHS England and the local ICB, without representatives of medical, dental, ophthalmic and pharmaceutical bodies, will be taking that on board is all very opaque.

[Alex Norris (Nottingham North) (Lab/Co-op)]

My hon. Friend has a local Mayor, but my community does not. If someone lives in Greater Manchester there is a Mayor, but in other places there may not be. We have a very asymmetric model of local devolution. Does she agree that an asymmetric model of devolution, where some ICBs had certain powers and others did not, would be undesirable and may create more confusion than it solves?

--- Later in debate ---

[Karin Smyth]

My hon. Friend makes an interesting point about asymmetrical power and who does what. I may differ slightly, in that I think that that may suit local circumstances, but the judgment about what a mature ICB is, and which powers it should be responsible for, has been made behind closed doors and according to criteria about which we know nothing. The professionals in those services certainly deserve to know better.

--- Later in debate ---

[Edward Argar]

The hon. Lady is absolutely right about the importance of trying to join up different primary care services and the commissioning arrangements. There has been, under Governments of all complexions, a fragmentation in that, with some services commissioned nationally and others locally, and the Bill gives us an opportunity to create a more coherent, place-based commissioning approach.

On the specific point the shadow Minister asked about proposed new subsection (4) and the

“direction under subsection (1) to include provision prohibiting or restricting the integrated care board from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction”,

my understanding is that it is a pragmatic clause, basically limiting the ability to sub-delegate further. We would envisage this being a consensual and collaborative approach between us and NHS England in the region, and of course the Government would be guided by NHS England.

In the nature of having to make regulations in this House to do it, the wording reflects the fact that it will be the Government laying those regulations, but we would envisage that being guided and led by the NHS. As the hon. Member for Bristol South rightly said, the NHS region will often be the best place to advise on the readiness or otherwise of different ICBs at different stages in the process.

[Karin Smyth]

Would somebody be able to appeal to the Secretary of State if they disagreed with that delegation, for example?

[Edward Argar]

My understanding is that there is no formal right of appeal in this context. I suspect that dispute resolution and formal rights of appeal is something we will come back to in other contexts.

Clause 7 ordered to stand part of the Bill.

Clause 8

Preparation of consolidated accounts for providers

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

--- Later in debate ---

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

It is important to recognise the changes that the NHS in England has been through over the past 20 years, moving from about 100 strategic health authorities to primary care trusts, too more than 200 CCGs, to STPs and now to this. Witnesses in the ICS session said that although some were making great progress, it was those with boundary difficulties that were falling behind. The Bill talks about population health and wellbeing, but local government drives a lot of those things: housing, active transport, social care or what the town centre looks like. It is therefore important to get the boundaries right, or in a few years’ time there will be yet another upheaval.

In Scotland we got rid of trusts and went to health boards in 2004, and we have had 17 years of stability since then. If people keep moving around who they are connected with, the Government are breaking relationships and expecting people to form new ones. This is not a minor thing. I would like the Minister to explain what the basis was for deciding the number, the size and the geography of the boards. Was some formula used? Trying to get that right will be a major influencer of the outcome of the whole policy.

[Karin Smyth]

Ms Elliott, you were not with us last week when I bored the Committee about how many different jobs I had done in the NHS over the 20 years to which the hon. Member for Central Ayrshire referred. I feel as if I have lived and breathed that journey from the health authorities’ commissioning function through to primary care groups and primary care trusts. Much like the hon. Lady, I was prompted to come into this place by the Lansley Act—the Health and Social Care Act 2012. We all knew on the ground that, as was warned of and as has now been shown, it was completely nonsensical. It was never going to work, and it was hugely detrimental to the progress of securing better health in an efficient and effective way—more so than anyone could have imagined. I came here in 2015 for a bit of a quieter life—that has gone well for me!

Locally, I objected to the geographical footprint—we do not want to get into the footprints, but they are important to local people. The Bristol, North Somerset and South Gloucestershire footprint makes no sense to anyone apart from the chief executives of the local trust, because it is about acute sector flows and absolutely nothing else. That is why it is disappointing that we have not, for example, added health inequalities to the triple aim, because that would force such bodies to look at something more than the bottom line of those large acute sector trusts.

[Dr Whitford]

On that issue, when one of the amendments was turned down earlier, the Minister suggested that there was already a responsibility to deal with health inequalities that sits within the NHS. Yet, after 70 or 80 years, we have failed to do that, so do we not need not such priorities in the Bill? They need to be taken into account in shaping the ICSs.

[Karin Smyth]

I completely agree and, as I said, in that sense it has been refreshing to talk to financial directors locally. People who go to be finance directors in NHS organisations have healthcare in their hearts—they want to see only good healthcare and good outcomes—and some of this forcing together of clinicians, finance directors and other managers to look at population health is welcome. They recognise that the way in which the current funding model works—we will come on to the tariff—often stops them doing that, so adding in health inequalities would help. For the moment, we have lost that argument in Committee, but we will see how we get on in future.

In essence, where we have got to now is large CCGs coming together. That is what they are: they are rebranded CCGs. The wording in the Bill has been cut and pasted from 2012. I have other words for describing them: they are an NHS cartel. The CCGs commission and the big providers in that group all decide locally how the NHS cake should be cut—we will come back to that in future amendments. They are accountable neither nationally nor locally. That is deeply problematic. Even the partnership bit, as I think we established last week, is a committee of the ICB, although the Minister may want to clarify that. Sir Robert Francis did question whether that was the case. That goes to show that the architecture is really unclear.

The ICBs are creatures of the NHS, and well done to it for getting that on the statute book—almost—but this is essentially the same model. Therefore, as the hon. Member for Central Ayrshire alluded to in talking about the past 70-odd years, we need something better. The danger is that, as before, these bodies have no real discretion over spending; mostly, they are just the conduit for payments to existing providers. There is no real clout or sight of where we develop new services. They have very few levers to pull to drive innovation or service improvement.

All Members should be concerned about how we get that innovation and how we drive service improvement into the system. We need the ICBs to be better. They need to attract and retain the highest quality management or they will fail. They need to be perceived by the public as relevant and they need visibility. They must be the place where ambitious managers seek to work. They have to be the powerhouses, because they are the controllers of the money. They need good managers if they are to have an impact. They need to have local relevance—we will come back to that in future amendments. I am keen to support the amendment tabled by my hon. Friend the Member for Ellesmere Port and Neston about elected chairs and non-executive directors. Being held to account by the NHS region is very unhelpful.

In relation to Healthwatch, Sir Robert Francis—we should certainly take note of someone of his stature—told us the other day:

“All organisations currently in the NHS have directors of engagement and communication. I suspect that, with the best will in the world, most of them see it as their job to defend the organisation. This is not about defending an organisation; it is about welcoming constructive comment from the public and responding to the needs that people communicate to them.”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 150, Q212.]

We can disagree on how that happens, but some of our amendments are designed to help that happen. This cartel is deeply problematic for all hon. Members locally.

As commissioner organisations, accountability does matter. No one is going to walk down the street saying, “Save my CCG” or “Save my ICB” while carrying a banner to save their local hospital. But CCGs control over £75 billion of taxpayers’ money, and they will continue to spend that sort of money. In my area, it is upwards of £1.5 billion or £2 billion. That dwarfs the council’s budget; it totally dwarfs the police’s budgets, yet we allow it to be done in this way. Even as a Member of Parliament with 20-odd years in the health service, I have sometimes found it almost impossible to find out who is accountable when a constituent comes to me with a particular issue. That is why I have focused on accountability and good governance.

In the proposed new organisations, who will be hauled up when something goes wrong? Who reports to the Public Accounts Committee? If the budget is inadequate, who decides what is cut and what is closed? If the boards are making those kinds of decisions, we need to know who appoints them. How do we know that they are independent? How can we remove them if they do not perform? If big decisions are planned, how do we know? What restrictions, if any, should constrain our right to know? The Bill should spell out those things. All our witnesses, and reams of written evidence, are grappling with that issue.

Politically we might disagree with the centralisation of the NHS and the diktat as opposed to the permissiveness. I am definitely on the more localised, permissive side. I think we need good managers and good clinicians to lead and develop our health services and to be accountable for that money. They must be really accountable.

I hope that in his reply, the Minister will take the opportunity to push back on some of the negative language about administrators and managers in the health service. There is a very good article in The Spectator. I commend it to him, if he has not read it. Why would we have doctors and senior consultants on the phone to these 5 million patients, trying to reschedule their appointments? Who is going to go and fix the boiler? The list goes on and on. We need to make these organisations the beacon of good quality management.

--- Later in debate ---

[Edward Argar]

I am grateful to hon. Members for their contributions on the amendment. I may disappoint the shadow Minister—I will not accept it. I hope he will let me address why and deal with some of the questions that have been raised.

The amendment would place a requirement on NHS England to consult relevant NHS trusts, foundation trusts, trade unions, patient representatives and local authorities before revoking or varying an ICB’s establishment order. We consider it unnecessary, because under clause 13, proposed new section 14Z25, NHS England is already required to consult any integrated care board that is likely to be affected before varying or revoking an integrated care board’s establishment order. Given that each ICB will have a strategic view of the health service and population needs in its area, and given that ICBs will have members from different NHS trusts and local authorities, we consider that they remain the best-placed bodies to bring those views together to reflect opinion on what is an appropriate boundary or establishment area.

Section 13Q of the NHS Act 2006 already places a duty on NHS England to involve and consult the public in the planning of commissioning arrangements, including in respect of any planned changes to commissioning arrangements. That includes, for example, if NHS England plans to change the range of health services available to the public or the manner in which they are delivered. That ensures the voices of residents and patients—those who access care and support—as well as their carers are properly embedded in decision making.

I draw the Committee’s attention to the requirement in clause 13, proposed new section 14Z26, for CCGs to consult any person they consider as appropriate on the first ICB constitution. That constitution will also be required to set out the process for making further amendments to the constitution.

Turning to the points raised by the shadow Minister and other hon. Members, the boundaries on which we are seeing the footprint put forward at the moment effectively reflect the evolution of STP and ICS boundaries to this point. They reflect local authority boundaries. By and large, the majority of ICS boundaries reflect one or more upper-tier local authorities. That was the criteria set by the Secretary of State. There are some exceptions, which I will turn to in a moment. I will also turn to the comments from my hon. Friend the Member for Eddisbury.

As the shadow Minister will be aware, the previous Secretary of State set out a process where he wanted a presumption in favour of coterminosity—the shadow Minister appeared to be supportive of that—unless there were exceptional circumstances in a particular area that justified an exception being made. The principle of coterminosity is something that was argued against, in some cases, by Opposition Members—not Front Bench spokespeople, as far as I am aware, but Back-Bench Members of Parliament—and by some Government Members, in respect of where there should be specific exceptions.

The process, which was touched on, was entirely consultative. Local authorities were fully involved in those discussions. The local NHS was fully involved in the discussions. There were also what could be referred to as cosy fireside meetings, involving Members from across the House, reflecting their right as Members of Parliament representing their communities to write to and engage with Ministers, to reflect their views. There was a multi-layered approach, with the local NHS and local authorities working together to come up with recommendations, and then Members of Parliament having the right, as all Members do, to lobby Ministers and put forward their perspective on behalf of their constituents. The approach was transparent, as my hon. Friend the Member for Eddisbury alluded to. We published a written ministerial statement, setting out for the House what had been decided, and we showed the flexibility and pragmatism that I think those consulted would wish to see.

In the areas where exceptions were made—the east of England areas and Frimley—contrary to what the hon. Member for Bristol South said, these are some of the most exceptionally high-performing ICS areas. That is one of the reasons why we decided not to go for coterminosity, because those systems are working well, with established relationships with local authorities, acute trusts and primary care. We took the view that we should not disrupt something that is working well—if it ain’t broke, don’t fix it. That will not stop it being reviewed in future, should the local system feel that that would be appropriate. That was a pragmatic approach to the issue.

My hon. Friend the Member for Eddisbury raised the issue of Cheshire and Merseyside ICS—I know that this will also be of interest to the hon. Member for Ellesmere Port and Neston, given the geography of his constituency. The ICS did meet the coterminosity test of one or more upper-tier authorities being coterminous, but I know that hon. Members on both sides of the House have raised concerns about its size and about the differences between Cheshire and Merseyside proper, and between different parts of the area, and suggested whether it should more appropriately be split into a larger number of smaller coterminous ICSs.

In a sense, the reason that split did not take place goes exactly to the heart of what the shadow Minister was saying, which is our determination to engage widely, consult local authorities and the local NHS, and come up with a set of rigorously tested proposals. This was—for want of a better way of putting it—a late addition to the work being done earlier this year, because it was already coterminous and the commission was to look at things that were non-coterminous. However, in the light of representations made by my hon. Friend the Member for Eddisbury and others, the Secretary of State was clear that it should be reviewed.

Two years was deemed an appropriate time in which to do that review, to allow that consultation with Members and others, and so that it did not straddle—subject to the passage of this legislation—the establishment of ICSs just at the time they were coming into being, and we could do that preparatory work properly. I can give my hon. Friend the Member for Eddisbury the assurance that this is a genuine and rigorous review process. When I emerge from this Committee room, perhaps I may, with Members on both sides of the Committee, discuss further what that looks like and how that might most effectively be carried out.

What that process has shown up, however, is that there is rarely a 100% consensus from all local authority partners and the local NHS on exactly what the right solution is where there is not coterminosity and we are moving towards it. That is why I am cautious about some of the language that has been used thus far, which essentially appeared to imply that we would have to have consensus, and that one part or other of the system would have, if not a veto, a right to put the brakes on changes. Were we to go down that route, I fear that, given different perspectives in different local authorities and areas, we would run the risk of paralysing any possibility of change. I think the right balance needs to be struck.

[Karin Smyth]

I hear what the Minister is saying, but on that basis—I think this is fundamental to all of this—why would we have local authorities or unitary authorities making any sorts of decisions? That is how local people exercise their democratic will. Bringing forward proposals in order to persuade sometimes results in a bit of stasis, but ultimately someone has to decide and break the deadlock, and the concern, as we come to some of the other amendments, is about how one does that. Local people should be able to have that in a transparent way.

--- Later in debate ---

[Justin Madders]

The hon. Lady is right; we still have a national health service and we should have national standards, and they should be tagged to clinical outcomes. Of course, it would be down to the individual ICBs to deliver against those outcomes, but it is right that those performance measures should be comparable across different areas.

A robust system of reporting is easier to understand and is probably the most important thing from a patient’s perspective. It is so important that it should land on the Secretary of State’s desk. We will talk later about how ICBs can be more accountable to their communities, but this is very much about how ICBs can be accountable to this place. I hope the Minister will accept the amendment.

[Karin Smyth]

I rise to support the amendment, particularly in relation to outcomes. The Government do not accept having reducing health inequalities as an aim. In my round-up of 20 years of CCGs and all the rest of it, the driver over the past 15 years has been to put primary care at the centre of those organisations, recognising that 90% of patient contacts are within primary and community services.

We heard from representatives of GPs last week, and I have spoken to my local medical committee as well. They are very fearful—we can dispute whether the evidence exists for whether clinical outcomes are better as a result of these organisations’ being supposedly primary care-focused rather than dominated by the acute trusts, and whether that actually worked, but as a policy intent the Government are very firmly moving away from that position—and wondering what their real outcomes would be.

Were the Government to move along the lines suggested by my hon. Friend the Member for Ellesmere Port and Neston, a regular review of and look at outcomes in our local areas would perhaps help with that particular problem and highlight the driver that we need from community and primary care, as well as just looking at the financial dominance of the large acute trusts.

--- Later in debate ---

[Edward Argar]

The clause, as we have touched on in the various discussions on amendments already, inserts new chapter A3 into the NHS Act 2006, which contains a number of duties and functions in relation to the new integrated care boards. A new duty is conferred on NHS England to ensure that ICBs cover England and details the required process for establishing the ICBs.

The clause also makes provision for abolishing clinical commissioning groups, transferring staff, property and liabilities to ICBs, requiring the constitutions of ICBs to be published and requiring ICBs to make arrangements for managing conflict of interest effectively. The clause is essential for delivering on one of the core objectives of the Bill—creating statutory ICBs as a means to take an ambitious, collaborative approach to planning and delivering integrated health and care services in England. The clause will establish a smooth transition from CCGs to ICBs, providing clarity and consistency for patients as we move to these new arrangements, as well as creating continuity of employment for NHS staff.

[Karin Smyth]

Will the Minister give way?

[Edward Argar]

Yes, of course. I know the hon. Lady has a great interest in this.

[Karin Smyth]

I hope the Minister will address my earlier comments about the policy direction of primary and community care being front and centre in the last 15-odd years. This is a very different beast. I think that has perhaps not come out in the debate. These are very different bodies, and I wonder how he will make sure that the majority of patient contacts and the majority of the work that is done in the health service is not lost in the new organisations.

[Edward Argar]

I hope that I can reassure the hon. Lady. Although these organisations move beyond the CCG model to be much more collaborative, with more partnership working with local authorities and others, and the genesis of the new model is to bring those two parts together, there is no intent for, and I do not believe the practical consequence of this would be, a diminution in the voice of and the need to pay heed to primary care. She is absolutely right. For the vast majority of our constituents, the front door to the NHS is primary care services. The majority of their appointments, their consultations and their engagement is with primary care services. That voice is hugely important. I see that continuing to be front and centre.

The Bill brings together a range of other NHS system providers and the local authority. We may come back to the point when we discuss further amendments. I emphasise what we heard in the evidence sessions, which is that the membership requirements are de minimis. There can be increased numbers of voices for primary care on these boards, as Dame Gill Morgan mentioned in the way she is managing Gloucestershire. That may not fully satisfy the hon. Lady, but I hope I can reassure her that I am in the same place as her in recognising the importance of primary care and that the expertise that has grown up in understanding local communities is vital in framing a system that works effectively.

In requiring ICBs to maintain and publish registers of the interests of their members and employees—I expect we will return to this point in the future, in a different guise—the clause is an essential part of guaranteeing the integrity of each ICB’s decision-making processes. It will ensure that any potential conflicts of interest are declared promptly by individuals and managed effectively. As a result, the public will be able to trust that decisions are made in a fair, transparent manner, in the best interest of the ICB’s local population. I commend the clause to the Committee.

Question put and agreed to.

Clause 13, as amended, accordingly ordered to stand part of the Bill.

Schedule 2

Integrated care boards: constitution etc

--- Later in debate ---

[Karin Smyth]

I will speak mainly to amendments 31 and 50. The case for an elected chair of an ICB is very strong. As my hon. Friend said, if we accept the need for an elected police and fire commissioner, why not for health? The amounts of money we are talking about and the influence on people’s daily life dwarf those even of my local council. That is what people on the boards will be responsible for. Social care is still provided through a democratically accountable local authority, so why not healthcare?

We are moving towards the NHS budget overall accounting for up to 40% of general Government spend—that is what we are looking at for the next few years. It seems to go against the grain of everything else—elected Mayors, devolution and so on—for Conservative Members to allow that quantity of Government funding from the taxpayer to be out in communities without any kind of more local democratic control. There would also be a lot more confidence that the days of crony contracts favouring friends, families and donors had been well and truly left behind were there independent heads of the ICBs. I do not know if the Secretary of State has as many close friends as the last one, but letting him make the appointments is not something that Conservative Members will want to defend.

We should therefore be electing a local health commissioner. The amendment reasonably allows a two-year period for the organisations to get established—they have enough to do at the moment—but it would then start to take away some of the problems that the Government will get into with their proposals for the integrated care board chairs. On the make-up of the boards, too, the Bill is a good opportunity, should they wish to take it, for the Government to move away from the terrible scenarios of the past few years in particular. That argument was made cogently this morning by the Minister himself, in terms of NHS England having non-executive directors, people of independence and so on as part of its board, and it can well and truly be made about these new local bodies.

We do not need to go back to the 1990s, when trusts were first invented. Friends and families were put on to those bodies, which were stuffed with worthies, with business people favoured over local people with strong links to the community. Surely we can learn from the past 20-odd years and from the past couple of years in particular. Place is central to what the Government are trying to achieve and is the general policy direction of the Minister’s Department and many others, so it has to mean something and it has to be accountable.

We will come later to some of my amendments on a good governance commission, for which I hope to gain Government support; on having fit and proper tests for people to be scrutinised as suitable to come on to the boards; and, without wanting to throw back to the past, on bringing people in from the community to make the ICBs reflect their local community. In all seriousness, in our sad political situation, most ICBs will be headed up not by people are particularly sympathetic to Labour, so this is not a partisan point. It is, as the Minister started to say about NHS England itself this morning, about having people with the right qualifications—some clinical, some not. Let us have some clear criteria for how we want the boards to be governed and the sorts of people we want on them.

As I said earlier, the Government have got themselves into a real mess with accountability and with how much work the Secretary of State is doing, given how much is put on his desk—this sort of circular NHS accountability thing—so the amendments are trying to offer the Government a way through that follows their general policy direction. That was raised by NHS Providers in its written evidence

“to make crystal clear the relationship between trusts and ICBs, and how the statutory accountabilities of trusts, foundation trusts and ICBs align. There also needs to be clarity within the legislation on how the roles and responsibilities of the current NHS England and NHS Improvement…regions, ICBs, ICPs, trusts, foundation trusts, health and wellbeing boards…places, provider collaboratives, neighbourhoods and primary care networks…will all fit together.”

We would all like to understand how that works, even those of us who follow such things.

I am not suggesting that an all-powerful elected chair will get that, but at least that skilled person bringing together the multiplicity of organisations, groups and people for the local community would be a figurehead who needs to understand and grapple with the issues. The chairs would need to be trusted and highly skilled. In that way, there can be further accountability back up the national system, either through NHS England or the Minister. Let us take all that away from the Secretary of State’s desk—he is going to be a terribly busy man over the next few years. Let us help him out.

The Government should support this and similar amendments to try to bring local accountability much more to the fore. That, in turn, would allow local people, who are expected to spend huge quantities of their taxes on health—increasingly so over the next few years—to be very clear about what the money funds, what they get for their money and how they can hold people accountable.

[Edward Argar]

The shadow Minister, the hon. Member for Ellesmere Port and Neston, said that his amendments would give me two years to work through this, if necessary. I am grateful for his confidence in my longevity in this post—only time will tell.

I am grateful for the opportunity to address amendments 31, 50, 51 and 52, which were tabled by the shadow Minister. I fear that I may not surprise him on this set of amendments. Under the Bill as drafted, the chair of the integrated care board will be appointed by NHS England, as he and other Members have highlighted. It is therefore rather disingenuous to suggest that friends and cronies will be appointed. This is an NHS England appointment, with approval from the Secretary of State. I am not quite sure what is being suggested about those at NHS England, but I suspect it is rather unfair.

The chair will be appointed by NHS England, with approval from the Secretary of State. That reflects the fact that the ICB is accountable to NHS England and, through it, to the Secretary of State and, ultimately, this House. That goes to the heart of the comments made by the hon. Member for Bristol South on the balance to be struck between having local flexibility and accountability, and recognising that this is a national health service and the way in which it has evolved. The accountability mechanisms are also national to reflect that.

In answer to the hon. Lady’s questioning, the chief executive of the NHS, Amanda Pritchard, said very clearly of the ICBs:

“In the proposed future structure, they would be accountable to a combined NHS England and NHS Improvement structure. At the moment, we operate that through seven regions, and then through to the national NHSEI executive. We are, in turn, accountable to Parliament.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 20, Q21.]

Amanda Pritchard was very clear that it is the integrated care board that carries that national statutory responsibility on behalf of the NHS, hence why we have structured the accountability requirements as we have.

That chain of accountability has been at the heart of the NHS since its inception. There is a difference, which I know all Members recognise, between the DNA—for want of a better way of putting it—of social care provision, which has evolved through the link to local authorities, and the NHS, which has a more vertical, national structure. That goes to the heart of the different DNA of those two complementary—vitally complementary—parts of the system. We have to remember that history.

That is reflected in the clear belief, which is shared across both sides of the House, that in various ways the Secretary of State is ultimately accountable to this House and, through that, to the public for the performance of the NHS. It is therefore only right that once NHS England has made the appointment, the Secretary of State, who is ultimately accountable, should give final approval for the appointment of the chair. It is an important role in the ICB, as I am sure all Members would agree, and it is right and proper that the Secretary of State ensures that the appointment is appropriate. That is why, I fear, we cannot accept amendment 50, which would remove that mechanism.

At this point, it might be helpful to address the shadow Minister’s point about councillors. We need to draw a distinction between their role on ICPs and on ICBs. ICBs are the NHS accountable body for the spending of public money. As is already the case, the NHS is clear that it does not approve of dual accountability, so when someone is directly accountable for the spending of NHS money, they are required to have that as their role and to not have multiple roles. That applies to the chair and the chief exec, as is consistent with current practice. I discussed that at some length with the chief executive of the NHS when she was chief operating officer. Quite rightly, given my background and the shadow Minister’s, I sought her guidance and that is the conclusion we reached.

Amendment 31 suggests that the chair of the ICB should be appointed via local elections. That brings in a new element to the accountability relationship, which, again, could give rise to the perception of conflicting accountability routes, given that the genesis of how the NHS is currently structured has been as a national health service. The amendment risks introducing a degree of tension into that relationship. Given the importance, as the hon. Member for Bristol South rightly said, of having the right, highly skilled and able people in all these roles, it is appropriate that the mechanism we propose seeks to balance local knowledge and national accountability.

The shadow Minister or perhaps the hon. Member for Bristol South—forgive me if it was—asked what happens if there is discord within an ICB or challenges to the authority, capacity or capability of an individual chair. Essentially, we come down to the constitution of the ICB. Paragraph 8 of schedule 2 sets out how that would work, and NHS England will be producing guidance. Ultimately, NHS England will have the power to remove a chair should issues arise that necessitate that, but there will be further guidance on how that would work and what thresholds there might be.

The hon. Member for Ellesmere Port and Neston raised an important point: what is the mechanism in the hopefully unlikely event that that should occur? Chairs are subject to normal recruitment processes, and NHS England’s approach to appointments has been to work with the existing ICSs, including both NHS providers and local authorities, to ensure that the chairs appointed are high quality, credible and have the confidence of their local systems. Similarly, to ensure democratic involvement, ICBs have strong duties in relation to public and patient involvement, and local authorities must appoint, by right, a representative to the ICB.

Before I turn to amendments 51 and 52, the hon. Gentleman raised some challenge about the design document, its status and whether it appeared to prejudge the House’s deliberations. I want to reassure him: the key word in terms of that document is that it is in “draft” form—it is not formalised, and it is not the final document, because he is right. However, it does allows the non-statutory ICSs to be given a degree of guidance to continue their evolution, rather than all work stopping while we deliberate. Should the House pass the legislation that means ICSs become statutory, that document would have greater force. However, we are not seeking to pre-empt or pre-judge the will of the House. In fact, even with that caveat, the hon. Gentleman will be aware that we did not publish the document in draft until after Second Reading. That recognised again that we wanted the House to have a say on the principles before we even published documents in draft form and that we are cognisant of the need to show respect to the House’s democratic processes.

Amendment 51 would mandate that NHS England consult with the board before appointing a chair, and amendment 52 would require the chair to consult with both the board and the integrated care partnership before appointing a chief executive. We fully accept the importance of both the chair and the chief executive having credibility among system leaders and the population they serve. That is why NHS England is working closely with local authorities, NHS bodies and others in the appointment process.

The Bill, at its heart—again, we will come to the question of balance—aims to strip out needless bureaucracy by removing processes that we believe add little in terms of ensuring high-quality or safe care and that could get in the way of collaborative, smooth decision making. The amendment to formally require consultation on the appointment of the chief executive would create an unnecessary formal requirement, as well as potentially duplicative work, given that we would anticipate this happening informally anyway, and having due regard to that.

We believe that the approach taken in the Bill ensures both patients and the public have a strong voice on ICBs while also ensuring that the accountability arrangements set out by the chief executive in her oral evidence are maintained upwards as well, to the House and the Secretary of State. I therefore ask the shadow Minister to consider not pressing all his amendments to a vote.

Health and Care Bill (Fifth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[Karin Smyth (Bristol South) (Lab)]

I support the words of my hon. Friend the Member for Ellesmere Port and Neston. The Government would be wise to take note of the proposal. As my hon. Friend said, many hours, days and weeks have been spent by not only Members of Parliament, but expensive lawyers and lots of concerned constituents across the country, arguing—as I have often thought myself at times—a slightly nuanced point, which is lost on people. I have absolutely been persuaded, however, that it is important to restore that duty. If the Government are rightly binning the Lansley Act, the amendment is an obvious one to consider and accept, as it puts the duty absolutely beyond doubt.

Running throughout the Bill, as we will discuss over the next few days and weeks, is a real problem of clarity and accountability. We should not let the Bill out of this place while it leaves that lack of clarity on duties, responsibilities and accountability for the NHS to decide, along with local government. There is a balance between permissiveness and diktat, and starting with clear duties on the Secretary of State would help. Later, we will discuss how the Government seem to want to give the Secretary of State enormous power to interfere in the most minute aspects of healthcare in our constituencies, something that concerns a great many people, organisations and the NHS itself.

If the Government are serious about rehabilitating themselves as the supporter of the NHS following the Lansley Act, an amendment to clarify that absolutely central role would be a wise thing to accept.

[Edward Argar]

Amendments 36 and 37 and new clauses 20 and 21 are in the name of the shadow Minister and his colleagues. I do not believe that what is being proposed reflects the reality of the role of the Secretary of State or what it should be, which is a strategic oversight role with the ability to intervene when necessary to ensure accountability. The hon. Gentleman might correct me, but I think he cited Mr Lock, who said that there was no substantial change in practice. That goes to the heart of why I am unpersuaded by the amendments.

As the hon. Gentleman knows, the idea that the Secretary of State himself provides services has not reflected the reality of the structure of the NHS for many years, not least since 2003-04 with the introduction by the Labour party when in government of foundation trusts as independent entities in the health system. That purchaser-provider split, long established in the NHS and retained in the Bill, allows some of the health services in England to be provided by those such as NHS foundation trusts, which are legally distinct from the Secretary of State.

In the years since those changes, and as the many vigorous debates in Parliament since and during the passage of the 2012 legislation have demonstrated, there has rightly been no loss in the strong sense of governmental accountability for the NHS felt by Governments of all parties and by parliamentarians. As the proposers of this group of amendments have themselves been among the most eloquent and capable colleagues in holding Ministers and Government to account for the NHS, I find it slightly strange that they feel that their amendment is necessary.

At the time of the 2012 Act, as the shadow Minister alluded to, there was a great deal of debate in the other place on the value or otherwise of this wording. Eventually, the noble Lords concluded that it was better for the law to reflect the reality of the modern NHS. However, it remains the case that the Secretary of State has a firm duty to continue the promotion in England of a comprehensive health service in practice. He does this through setting the strategic direction and his oversight of NHS England and the other national bodies of the NHS, and in the future, subject to debates in this place—I do not want to prejudge what the Committee and the House may determine on those clauses—through the extra lever of the proposed power of direction. At all times, he remains responsible to Parliament for the provision of the health service in England.

NHS England also has a duty to arrange for the provision of services for the purpose of the health service in England and a concurrent duty to promote a comprehensive health service. Integrated care boards will, subject to parliamentary approval of the Bill, also have functions in relation to arranging the provision of services.

I understand the point that Opposition Members are seeking to make with the amendment, but it is entirely unnecessary as law. The Secretary of State has the duty to promote the competence of the health service in practice. He is accountable to Parliament for the comprehensive health service, and I believe that local NHS leaders and NHS England are best placed to know what is needed to serve individual communities.

This goes to the heart of what I suspect will come up a number of times in our debates in this Committee, which is the extent to which the legislation should be prescriptive, or permissive and flexible. I suspect the shadow Minister and I will disagree on where the balance should lie, in a number of areas. We believe that the Bill strikes an appropriate balance.

The shadow Minister talked about flexibility in redefining the boundaries of what the NHS does. Throughout the history of the NHS, there have been tweaks along those lines. The Labour party introduced charges for glasses and dentures; the Conservative party introduced charges for prescriptions shortly afterwards; the Labour party abolished them, and then reintroduced them two years later. I use those examples because I think we should be wary about being overly prescriptive in primary legislation.

Clause 2 makes a number of amendments to the power allowing the Secretary of State to require NHS England to commission certain prescribed services. It ensures that the Secretary of State can still require NHS England to commission specialised services and facilities, but recognises that aspects of the commissioning might be carried out by other NHS bodies through joint or delegated working arrangements or by directing integrated care boards to provide those services.

Specialist services are commissioned to support people with a range of complex and rare conditions. Those services could involve the treatment of patients with rare cancers, genetic disorders, and complex medical or surgical conditions, for example. As such, it is right that NHS England has overall responsibility for the services and can decide whether they might be better delivered through joint or delegated working arrangements or through directions to ICBs—I am happy to adopt the shadow Minister’s suggested shorthand, otherwise we will be taking a very long time repeating the same words on multiple occasions.

The clause also removes the requirement of the Secretary of State to consider the financial implications for CCGs—to be replaced with ICBs—when requiring NHS England to commission certain services. The change focuses the decision about categorisation of specialised services on the complexity and impact of the service and the ability of ICBs to support commissioning services for their populations, reflecting the fact that ICBs are significantly larger than CCGs and, correspondingly, so are their financial resources. In some circumstances, NHS England may request that a service is no longer nominated as a specialised service or facility—that could be used, for example, as the technology improves and it becomes more appropriate for it to be commissioned by an ICB instead. The clause inserts a new provision in the NHS Act 2006 which requires the Secretary of State to provide reasons for any refusal to requests from NHS England to revoke provisions requiring NHS England to commission specialised services.

I therefore encourage the shadow Minister not to press his amendment to a vote.

--- Later in debate ---

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

I wish to make one simple point, following what the right hon. Member for Ellesmere Port and Neston has said, which is that the annual funding of any health system based on the tax year—I can speak to this, having spent more than three decades on the frontline—means that clinicians will inevitably be contacted in January or February and asked, “What equipment do you need? You have to obtain it by 31 March.” Providers of medical equipment will happily admit that prices go up in the first quarter of the year and then drop, so this hand-to-mouth method actually costs all health services massive amounts of money. Simply being able to smooth that out so that we know what is coming several years ahead would save millions of pounds on procurement and allow that money to be directed to clinical care.

[Karin Smyth]

I echo the comments of my hon. Friend the Member for Ellesmere Port and Neston. The mandate is important. It is awaited by clinicians and managers in the health service as it affects how they are to operate in the forthcoming year. Often guidance arrives the week before Christmas, as I remember from my time in the NHS, so we were starting to plan for the very short term, which really is unhelpful. It is a regular statement intent, and it is a way in which the public can see what is happening or is due to happen to their services.

My hon. Friend the Member for Ellesmere Port and Neston quoted from the King’s Fund’s written evidence, which mentioned the

“multiple plans and strategies in each ICS”

and the need for a “more ‘local’ place level”. As we heard in our evidence sessions, this is already a very confused picture, and one that we are going to try to navigate our way through. Although I do think that there should be greater permissiveness, so long as it is accountable at local level, the mandate gives us a degree of accountability at national level, on the Government’s intent, published in their stated aims, and that gives the general public and taxpayer confidence.

On our amendment about 18 weeks, that target was often criticised as not being clinically referenced. It was brought in after the then Conservative Government talked about an 18-month target being highly ambitious for people waiting to be seen clinically—some of us are old enough to remember those dreadful days, to which we have returned. Now, we could argue whether 18 weeks was the right number, but it was something that drove up standards of care, and it meant that the NHS said to the taxpayer, “We accept that you deserve a better standard of care and treatment, and it is completely unacceptable to be on a waiting list for 18 months to two years”—it was often longer. It focused minds, drove service redesign and made clinicians go back over their lists, because if someone has come on to a list two and a half years earlier, many things would have happened and, sadly, in many instances that person would have died.

By supporting our amendment, the Government would show that they are ambitious for the NHS and the people it serves. If the Minister is not prepared to support that 18-week commitment, what is acceptable to the Government? We and all our constituents know that waiting lists were rising out of control before the pandemic, and that the target had not been met for several years. Clearly the pandemic has exacerbated the situation, but let us be clear that targets not being met was a pre-pandemic problem.

We hear utterances from the Government in the newspapers about what they think about the targets—“nonsensical” is what the Secretary of State said at the weekend. The targets were put in place to give people confidence that their taxes were funding a service that they could hold to account in some degree, and it drove some positive behaviour. It will take a massive effort to get waiting lists down, so what discussions has the Minister had with clinicians and managers about the loss of targets? Why would he not support putting that target back in the Bill? The long waiting lists are miserable for everyone concerned. They need to be published. We need to let people know what they can expect from our service. I strongly urge the Minister to accept the amendment, or at least its intent. If he is not prepared to do so, what does he think is an acceptable length of time for people to be on a waiting list?

[Edward Argar]

The hon. Member for Ellesmere Port and Neston is having a good day; I promoted him to shadow Secretary of State and I think the hon. Member for Central Ayrshire made him a member of the Privy Council, so he is doing well this morning. Although we may resist many of his amendments, I take the point that he did not table them from a partisan perspective but genuinely approached them with sincerity. He mentioned that on a previous occasion the Bill Committee had to be run twice. Fond of him as I am, I think both of us would prefer not to have to do this twice together.

--- Later in debate ---

[Dr Whitford]

I rise to support these measures. The longer those of us who work in the NHS spend on the frontline, in particular as a breast cancer surgeon in a specialist area, the more we realise that we are constantly catching someone who falls, instead of building a handrail to stop them falling in the first place. Anyone who works in health or social care recognises that health inequalities are a major issue, going right back to the Marmot report of 2010, the Black report and, indeed, many decades. Therefore, they should be a priority at every single level.

The public have a real appetite to see a different approach after covid, because they are aware that covid was not a leveller. It absolutely hit the weakest, most vulnerable and poorest communities. To change the prioritisation to health and wellbeing is also critical. More money is spent picking up the pieces than investing in health in the first place. That is often the health of children; we should try to tackle child poverty and the issues that come from that.

I took part in a report in 2016 that heard from the UK Faculty of Public Health that the UK loses 1,400 children a year before the age of 15, as a direct result of poverty and deprivation. It is clear that the aim of the Bill is not just to take away the appalling section 75. It is to drive integration and the health of the local population. That should be set as a key priority, if the aim is to come out with an approach of putting health in all policies, within local government, the ICS boards and the NHS.

[Karin Smyth]

I concur with the comments of the hon. Member for Central Ayrshire and my hon. Friend the Member for Nottingham North. The hon. Lady referenced the Black report, which first got me interested in working in the health service. I was shocked that, after all those years, the NHS had not improved the dreadful health inequalities that much of the population, including my own constituents, suffered. Here we are 40 years later, and we still have some really quite shocking health inequalities, even in the wealthy city of Bristol.

This is a really important point. We learned a lot in the pandemic, and hon. Members spoke about meeting their directors of public health recently. I have known my director of public health in Bristol for some 20 years because we have worked together over that period. I supported the movement of DPHs into local authorities. I think that was the right move, although the lack of funding that followed has made their job really difficult, and we have not made the improvements we should have made, as my hon. Friend the Member for Nottingham North outlined.

There is real enthusiasm among clinical and financial leaders for some of the movement in the Bill to bring organisations together in integrated care partnerships or ICSs—wherever we think the power will be—to look at population health. Financial directors I have talked to have said, “This is the direction we need to be going in. We need not to be looking just at our own institutions.” There is a will with the Government, but not including health inequalities is a major mistake. I appreciate that when they drafted this legislation, they were perhaps not thinking in that form, but a number of organisations have asked for that addition to be made.

The pandemic required us to talk closely to our clinical leaders, and it really educated people in individual specialties, who are not terribly knowledgeable about health inequalities—perhaps we think they should be. Even in terms of our understanding of where vaccines have been successful and unsuccessful, and how different communities receive information and engage with local health and care services, the pandemic has been a wake-up call and a good education for many of those leaders. We need to capitalise on that.

I know that drafters do not like to change things, but if we were to put addressing health inequalities in the Bill, as we seek to do, it would focus the Government’s drive on place-based commissioning and service delivery, and send a message to the powerful acute trusts—which at the end of the day run the money, and still will—that addressing health inequalities and looking at where and how their services are delivered to the most vulnerable will be a really positive outcome for the entire system. I therefore support the pursuance of the amendments.

[Hywel Williams (Arfon) (PC)]

To encourage the Minister to accept the amendment, I point out that addressing health inequalities would coincide with the Government’s stated aim of levelling up, so there is a happy coincidence there that might persuade him. Health inequalities are reflected geographically, and large parts of the country clearly suffer from them more than others. That pertains to England, but were I standing in the Senedd in Cardiff, I would say the same about Wales. That is slightly off the point, but there we are.

Health and Care Bill (Fourth sitting)

Karin Smyth Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[Mary Robinson]

Nice and easy—thank you.

[Karin Smyth (Bristol South) (Lab)]

Q I have three obsessions with the Bill, some of which I have shared with you. First, on local governance and accountability, I have tabled an amendment to follow the logic of the Bill and make accountability local rather than going via some obscure route to the Secretary of State.

Secondly, there is the treatment of capital in the system and how local communities, healthcare systems and trusts will be able to develop estates and capital planning. The third obsession has completely eluded me for the moment. It is generally about the tariff—that may be your subject, Mr Edwards—and how the vague nod to a new tariff framework in the Bill is working out. You may be more privy than the Committee to the details on how that might work out; it is about the flow of money within the system. Would you like to start, Mr Edwards, on governance, tariff and capital?

Nigel Edwards: Richard may be able to give a more up-to-date account on capital. You will be aware that the mechanisms for the allocation of capital in the NHS are a little arcane and somewhat out of date. There have been various attempts to update the mechanisms. Richard has been looking at this and can perhaps tell us more, but my impression is that it will flow following the allocation formula for revenue. There will still need to be a tariff. Despite the fact that there is integration, a tariff allows you do to a number of useful things. Certainly, patients will flow between different ICSs, so there will need to be a mechanism to account for that. It is also quite a useful budgetary tool, so in terms of financial control, it is probably quite important that the tariff is maintained.

We have been promised guidance on the flow of funds more locally, but we have not yet seen it. My presumption is that there will be a negotiated process rather than just a straight use of the tariff in the way that we have seen up until now, with variations on block contracts, maybe using the tariff—or, more likely, the historical budgets—as the starting point. The business-as-usual capital, as opposed to major capital projects, remains as it always has been. Although it is subject to some review, at the moment I do not think a major change is proposed for it, but Richard probably knows better.

Nick Timmins: I have nothing particular to say about capital. I do think you need to retain a tariff—not for everything, because in some areas of healthcare it just does not work, but for electives and those sorts of procedures. That has two advantages: it means you need to understand your costs to construct the tariff in the first place so it is a driver of efficiency, and, equally importantly, it gives you a benchmark price with which to negotiate with the private sector whenever you do outsource some operations and procedures. You are able to say, “This is what is costs us, so this is what we’ll pay you.” If you do not have that, you are subject to a seller’s market and can be charged what you like because you do not know what your own costs are.

Richard Murray: On the flow of money, we are expecting revenue allocation to ICSs based on the current formula, trying to reflect need, inequalities, deprivation and age. The uncertainty is then how much those ICBs will allocate down to place level on a local government footprint. The expectation is that quite a large proportion of that funding—general practice, community services, quite a lot of mental health, and some acute services, too—will go down to that level, but none of that is in the Bill. The allocation to ICSs stops at that point, and as has been said, you need a payment mechanism to get the money off what are, effectively, commissioners and over into providers.

The changes to tariff are mostly about flexibility, so it should still be transparent; you should still be able to work out what people are being paid, which I think is important, and you should be able to benchmark between different providers, but instead of paying for each operation and each widget bit by bit, you can have formulas that try to reflect fixed costs. You can do it in a different way that adds some flexibility into the system, which I think is important when you are trying to bring providers and commissioners into common alignment over where the money is going. Tariffs had the problem of setting them at each other’s throats sometimes, because every time someone was admitted to a hospital you would get another payment, so commissioners wanted to keep it down and providers wanted to keep it up. There is the chance to try to align some of those incentives, but there is still a lot of gap around what actually will go down to place and what will determine it; of course, again, the budgets need to be equitable.

Nigel Edwards: Richard, if I may, I think a very important point that ought to be made here is that because the allocations will now shift from 100-plus clinical commissioning groups to 42 ICSs, the variations between them will be evened out. There will need to be some way of recognising the fact that within an ICS, you have very different patterns of need, which at the moment are recognised by the allocation formula, but in the future will not be. The money will be received by the ICS, so I think there is a question there. I know that local authorities—and, indeed, GPs and primary care networks—will want to say, “If we are in a particularly deprived area and we have historically had higher funding to recognise that, we would expect that to continue.” There ought to be a line of sight from the national allocation formula based on need to the money that is received by our locality.

Sorry, Richard. I thought you made a really good point.

Richard Murray: That is absolutely all right. On capital, the Bill does not really change the way that capital works in this system. The only difference is the ability of the Department, through NHS England, to cap the spending of foundation trusts, which they have not been able to do in the past. There are some limits around them being able to do that, but it gives an additional lever at national level. Having said that, the way that capital is working in the system has changed fundamentally already: some capital goes through an allocation system, a bit like the revenue funding, and I am leading a review for NHS England now on how that money flows.

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. 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? That is the big change but, again, it is not actually in the Bill; it is being done under the existing rules.

[Karin Smyth]

But it all has to be in place by April.

[The Chair]

I am really sorry, Karin, but I think we have to move on, because we have about seven minutes left for Back Benchers, and three indicating. Jo Gideon.

--- Later in debate ---

[The Chair]

Thank you very much. I call Karin Smyth.

[Karin Smyth]

Q I broadly agree with the direction towards permissiveness and the logical direction of the Bill. I am profoundly disturbed, and most of the NHS representatives are making me feel more disturbed, about the lack of local accountability and scrutiny that local people will have of the power that we are giving, with due respect, to people such as you, designated within and by the local health service to police and manage itself. In your drive for permissiveness and power within the system locally, how does a local patient hold you to account for, in my area’s case, the £1.5 billion-worth of decisions that you are going to be making? How do we break the national power and make the local power better?

Dame Gill Morgan: What is different about this Bill is that it is the first time that local government will be very actively involved in those decisions. It has always been involved in scrutiny and big changes, but it will be heavily represented on our partnership board. We have four local government people, including two elected members on our ICB—integrated care board—so we are bringing in the local government elected people.

We intend our partnership board to meet in public and we are looking at exactly how many of our meetings of the ICB should be in public. Clearly, when talking about quality and clinical stuff, the actual deliberations need a private bit—[Interruption.] When talking about named individuals, yes, they do; but when talking about the quality of the service in general, that is something that needs to be clear and in the public domain. We need to get the balance right between what we need to do publicly and what we need to do privately—as we will, because we will have so much local government involvement, with elected members, as well as Healthwatch and other people like that. They are all intrinsic parts, in a way that they have never been before. It has never felt as engaging to me as it does now, certainly in my patch.

Louise Patten: From my point of view, having experienced health overview and scrutiny committees as an accountable officer, the patients and public certainly feel that there is the voice of that local place. It is important to NHS leaders that that continues—that ability to have local scrutiny at local level, which is very much where patients and service users feel is the right place to do it.

At the strategic level, we must not forget that ICSs comprise both the integrated care board and the partnership. This is a real opportunity to tether the NHS to always thinking about the wider determinants of health, social value, public health and, again, patient experience.

[Edward Timpson]

Q I am Edward Timpson, the MP for Eddisbury in Cheshire, so coming into the Cheshire and Merseyside ICS, which is a very different proposition from Gloucestershire’s. In that context—it is encouraging to hear how engaged you feel in the process to date, so reflecting on that engagement—what do you think you have discovered already from the preliminary work in Gloucestershire? You have used that example in our evidence sessions. How has that helped to inform the way in which collaboration can best work, bearing in mind that there will be different political, social and economic geographies in each area? In doing so, where do you think clinical representation needs to fit within an ICS, or even within the ICP or the ICB, to ensure that the decisions made are the best for patients and their outcomes?

Dame Gill Morgan: Our big learning about all of this is that, at the end of the day, many of the structures do not matter; what matters is people being in the same room, having the conversation about common purpose, and getting to know and trust each other. The reflection on that has been why we now have such an emphasis on place. If you have a really large ICS and you are trying to do it all, you are so distant from patients, citizens and clinicians that you will never have the contact. Place, in those bigger systems, has to be where you begin to pull those things together, by getting the right people to engage and developing the right level of trust.

As far as clinical engagement is concerned, the ICS is about three things—the triple aim, which is, basically, how do we get better health services today, which are responsive, high-quality and all those things we want; how in the long term do we create populations that are healthier than they are today, which means thinking about employment and all those bigger things; and, in the middle, how do we take services that we deliver today and transform them to be more community-orientated, better for citizens and delivered where people want them? In each of those three boxes, clinicians are absolutely fundamental.

A lot of our effort—in particular around covid and some of the successes—has been in getting that synergy, with clinicians in the transformation box feeling that they can not only write on what the hospital does, but define what the community does and what the GPs do, because they are all working collectively. That has been transformational. Certainly, we would not have managed covid as effectively as we have without those sorts of relationships running all the way through the system as a thread.

Louise Patten: The clinical leadership has to be multi-layered, right the way through from the strategic level to place. We have to have clinical advice and we must heed it when we are talking about planning clinical services. That is fundamental. I think it will involve different groups of people. If it is a care pathway about cardio-vascular disease or a professional pathway about social care, we must heed clinical and professional advice when we are planning these services, so it is multi-layered.

--- Later in debate ---

[Dr Davies]

Q Ed Hammond, on the same agenda of scrutiny of outcomes, how do you think those are best measured, and how does the Bill assist with that?

Ed Hammond: In terms of scrutiny generally, it is a challenging picture, as Andy said. There is a challenge around the need for effective local accountability. That scrutiny is best exerted at a local level. Local scrutiny is much more able to assess and make accurate conclusions about what outcomes have been reached. We do a lot of work as an organisation supporting local councils in their formal health scrutiny functions. The past 20 years of that has demonstrated a significant degree of success in local government being able to lead with local healthwatch in, alongside and on behalf of local people, seeking to understand how local health services design and deliver effective outcomes, challenging, where necessary, through the referral power for substantial variations.

My worries echo Andy’s in that the Bill as it stands moves a lot of decision making, commissioning and direction activity up to system level. Depending on the character, relationships and personalities of the key individuals involved, there is a risk that decision making therefore becomes remote from local accountability, making effective scrutiny of outcomes more challenging to achieve.

[Karin Smyth]

Q That leads neatly on to my point. We have just heard a great defence of ICSs as the system of accountability, and you have said that system level is where decision making is happening. The chief executive told us very clearly on Tuesday that accountability for decision making was clearly located in the ICB. The ICP—the partnership—is formally a committee of the ICB. I think each of our witnesses—very experienced people—have actually confused those three acronyms. They have also confused the accountability, which NHS England has told us is very clearly in the ICB. The finance director, the accountable officer at the ICB, carries the can. The other person will ultimately be fired, should the accounts not balance and there be some sort of health and safety patient scandal. I think that is clear. First, do you think that is clear? Secondly, how can we encode the good direction of travel in the Bill around local accountability to somebody who could oversee it in a more independent way and better hold that accountability locally?

Ed Hammond: In answer to your first point, I think it is clear. As we become more familiar with what is a complex system—and health governance is complex—some of this confusion will dissipate. As we start to operate practically within these systems, familiarity will breed a degree of confidence in understanding whose roles relate to what. As with all complex systems, it is vital that everybody understands their individual and collective responsibility for governance within those systems and accountability.

It is great when you have a partnership-led framework, in which everybody in the system is working together, and everybody has some stake in the system and in decision making. It is not a hierarchical, dictatorial system; it is one based, hopefully, on dialogue and, to an extent, consensus. The risk of that is that it necessarily dilutes accountability. Where everybody has a stake in decision making, you need some kind of external source of local accountability. That leads on to a second question. I think there is a need for a distinct and separate form of local accountability within these new arrangements at system, place and neighbourhood level. That role is currently performed at a local level in two main places: through local Healthwatch, from whom you will be hearing later, and through local health overview and scrutiny committees.

For me, the risk of these new arrangements is that, first, the removal of the power of referral to the Secretary of State by health overview and scrutiny committees on matters of concern relating to substantial variation of local health services is a worry for us, as it is for NHS colleagues. Also, the focus on system-level decision making will, by definition, make it more challenging for local health overview and scrutiny committees to co-ordinate to form, where necessary, joint committees to effectively oversee, scrutinise and hold to account ICS, ICB and ICP activity at system level.

[The Chair]

Do you want to add anything to that, Andy?

Andy Bell: Yes. It is a really important question. From the perspective of mental health, we have seen an enormous amount of progress in recent years from local Government really embracing the mental health agenda in many areas and becoming both a partner but also a scrutineer of the NHS through scrutiny committees and through the role of health and wellbeing boards too. The importance of that natural connection through, between the health and wellbeing board with the ICP in particular, the partnership bid, feels like there needs to be a very clear and close relationship and, again, where possible, decisions being made at place level—in the new language—feels really important to allow for that kind of relationship to build and actually become a really positive relationship, because so much of this does come down to relationships. However, clearly, the need for some kind of external scrutiny is incredibly important.

When we think about it from the mental health perspective, where systems or governing bodies—be it the integrated care board or anything else—are allowing mental health to slip through or particular groups of people are being poorly catered for by the system, some kind of external scrutiny and clear accountability is incredibly important. One thing we have said we would like to see in the Bill is an extended and expanded role for the Care Quality Commission to really scrutinise the degree to which integrated care boards and the decisions they are making—and, indeed, partnerships in their strategies—are looking across the board at health inequalities.

At the moment, the Care Quality Commission is very good at inspecting services for whether they are working appropriately with individuals they are seeing, but it has no powers to scrutinise whether the health system as a whole is working fairly and appropriately across all different groups of people. Unfortunately, that means, certainly from what we see in the mental health world, that there are a number of groups of people who get very poor support for their mental health—actually, very little help at all—and there is no current means in the system to address that.

--- Later in debate ---

[The Chair]

Karin Smyth.

[Karin Smyth]

Q May I take you back to the ideal person or Healthwatch person on the ICB? In my early days in management, in the 1990s, the community health council secretary and chair—I realise the situation was varied across the country—were important people locally. They had access culturally, and any changes to the system were expected to work with them. They had much access, regardless of their position on bodies. In my view, what has come since healthwatches were abolished—I will not say by who—has never really replicated that cultural relationship. You might wish to comment on that. Were you saying that having a person on the ICB would help with this situation, or is there another way in which we can embed a culture that recognises the importance of some sort of patient voice outwith the system?

Sir Robert Francis: First, there is no ideal person to do the job. I think that past iterations of what is now Healthwatch may have been slightly too full of people who were more interested in constitutional matters than the actual provision of health services. That was the impression I formed during the Stafford inquiry, but I think that is not true of Healthwatch. The presence of a Healthwatch person—by the way, this requires a new level of Healthwatch collaboration and function, but that is not difficult to provide in the Bill—will not produce, in itself, the culture that you talk of. The health service is still an organisation that, in the jargon, is top-down and is delivering things to people, rather than getting their ideas and responding to them. But the presence of the Healthwatch person, or some independent person, is at least a symbol of the need to have such a culture and to develop it. It will be someone whose principal task may be to question whether that culture is being led and developed.

If you have that person, you can back it up if you need to—in regulatory terms—with whatever form of systemic review the Care Quality Commission is tasked with doing. Its reports could certainly be a very valuable tool in relation to this, but you need a channel of communication between the ICB, if that is to be the centre of all this, and the wider world within its constituency. Unless there is someone whose independent role is to oversee whether that is happening, I am not sure it will. All organisations currently in the NHS have directors of engagement and communication. I suspect that, with the best will in the world, most of them see it as their job to defend the organisation. This is not about defending an organisation; it is about welcoming constructive comment from the public and responding to the needs that people communicate to them.

[Dr Whitford]

Q I want to look at the Health Services Safety Investigations Body, which is discussed in part 4 of the Bill. Obviously, you have been involved in the past with whistleblowers, Mid Staffs and so forth. We have talked a lot in recent years about learning, not blaming. What is your view on that part of the Bill? How do we protect what is given within the safe space, paralleling Air Accidents Investigation Branch, but give the public the confidence through Healthwatch that this is not stopping any other investigation happening now, and that taking that approach can get under the bonnet of real issues that have led to tragedy?

Sir Robert Francis: What I am about to say in answer to your question is my personal view. Healthwatch England, for reasons you will understand, does not have a view on that—apart from welcoming the existence of this body and the fact it has a statutory function. I confess to some concern about the safe place provisions, and I said this in part to a parliamentary Committee before. On the one hand, I fully endorse the need to protect people who come forward to give information—sometimes potentially damaging to themselves—so we can learn the relevant lessons of safety. Therefore, I absolutely support the idea that anything said in these circumstances cannot of itself be used to prosecute or discipline them, or indeed be used in civil proceedings.

On that point, as a lawyer, I would be very hesitant on the advice I would give to someone on the basis of the Bill as it stands, because there is no certainty that what goes into the safe space stays there. It is all a matter of discretion, albeit a High Court judge’s discretion or sometimes a coroner’s discretion. That would have to be worked out. It is probably difficult to reinforce more, but if it could be it should be.

However, I think that is different from denying bereaved families and victims of an incident, if they are still alive, knowledge of what has been said to the investigation board. At the very minimum, I would like to see there be discretion to share that information with families. I can see there may be circumstances in which that is not possible, and I can see that it might be necessary for there to be quite stringent conditions around what they personally can do with the information they are given. What worries me about the position at the moment is that it starts from a presumption of dividing the staff from the patient from the families, and you get straight into, I presume, an adversarial situation. That is not necessary the case, and if we work the system and the learning culture properly, everyone will be trying to contribute to learning rather than blaming each other. You are not going to get that if you are denying one half of the incident the information that the other half has.

--- Later in debate ---

[Edward Timpson]

Q Gerry, I do not know whether that is something that you, from a social work perspective, would like to comment on.

Gerry Nosowska: Yes, please. The link between health and social care data is obviously essential, because health care impacts on people’s lives and social lives, and social determinants impact on health. Joining those things up will help us to have a much more holistic picture, which is what social workers are interested in. For social workers, what we really want to understand are the trends, the gaps, and the barriers to wellbeing. In practice, having that data and that understanding—ideally a really local understanding—is important.

We would want to see social workers and experts by experience input into the kind of data that is collected, with an understanding in particular of under-met or unmet need, so that we can become more preventative, which is another aim of integration, and we have information about people who might fall outside of statutory responsibilities—self-funders, for example. We know that there is a real need to understand much more about the pressures on carers. This is an opportunity to think about how we can build more fairness locally through understanding the inconsistencies in people’s experiences and outcomes. We also have a need to understand the impact of digital developments on people—how to ensure equity as we move into a wider range of working. Another hope would be that, ultimately, our health and social care leaders will be able to be more proactive using the data, because very often it feels like we are on the back foot.

[Karin Smyth]

Q I, too, did joint commissioning roles in Oxfordshire at one point—so, only the best.

Every project that I have seen or witnessed on integration—joint commissioning; joint collaboration—has fallen apart in the end because of accountability for the money. A finance director in a local authority has to account for its budgets, and the finance director and accountable officer of a health authority ultimately has to account for their budgets. If agreement cannot be held at that point, those projects fall apart.

We heard earlier that we still do not know any detail on the tariff or money flows as a result of changes in the Bill—changes that will come into place in April. We also have the better care fund outwith the Bill, and this week’s announcement of a major change in funding is also outwith it. I wonder, with your ADASS hat on, how can you now help the Government to get around the problem for organisations regarding accountability for the money so that they do not fail?

Stephen Chandler: Again, that is a really good question. To be honest, a real challenge for those of us working in both health and social care is that uncertainty and delay in knowing the financial envelope we are working with. The announcements this week help to provide some clarity of what the future funding arrangement is likely to look like but, of course—from a local government point of view—until the spending review confirms the final settlement later this year, we will not know.

Some practical examples of how to mitigate or manage some of that uncertainty clearly come down to how much you are able to put together—and feel confident to put together. I suspect it was probably there in your day in Oxfordshire, but Oxfordshire has a large pooled budget arrangement—some of it completely risk-shared, but some of it not. That reflects the confidence and experience we have in using that money together. If I were not here providing testimony to you, I would be chairing a joint commissioning executive. In Oxfordshire, across health and social care, we have responsibility for more than £500 million in health and social care expenditure.

We are talking about continuing to build on some really good relationships and experiences that have existed but, rather than allowing them to evolve because individuals—either at a system level or a personal level—believe it is the right thing, it becomes policy and direction. I think that the success for us has to be looking at where systems have been able to resolve some of those challenges. I am still working with my CCG colleagues in Oxfordshire around what we believe the better care fund will look like, having signed the agreement at the beginning of the year. That is about us becoming much more involved and therefore much more confident in each other.

You will appreciate that ADASS members are constantly providing reassurance and at times caution to our elected members on how far we could and should go in relation to sharing and using our resources. Some of the developments in the Bill around the establishment of integrated care partnerships fully provide a vehicle for some of that greater transparency and greater opportunity to look at the problem, the challenge and the opportunity from a place, and then from a system, point of view.

[Karin Smyth]

Q But, clearly, accountability is with the ICB and not with the partnership. We have heard that very clearly from NHS England.

Stephen Chandler: Yes, indeed. Without giving away too much personal information, my wife and I have a joint account. We each have our own accounts. She is not here, so I will say that I think I have the authority on the joint account, but if she was here she would probably say that she has.

The point I am trying to make is that a lot of this works on the formal agreement, but as much of it also works on the trust and confidence you build in those relationships. However, you cannot take away the facts, as you said. Equally, my elected members are very clear with me that I am responsible for ensuring that Oxfordshire County Council’s resources are being managed and used in the way that they have approved.

[Dr James Davies]

Q Stephen Chandler, what are the principles that underlie the successful discharge of a patient from hospital, and does this Bill support that?

Stephen Chandler: The principles that underpin successful discharge are, quite simply, a person-centred, strength-based approach to enabling that individual to get back, preferably and ideally, to their own home, in a timely manner, with the level of support that they need to continue the recovery that will have started in the hospital but will not have finished in the hospital.

Where we have got that process right—I think the discharge to assess arrangements have really helped us in this—is by clarifying that the destination for discharge, for the majority of patients, has to be home. It is pathway 1—“Home First”, as it is often described—with the appropriate reablement support to maximise the recovery. That is good for the patient; it is good for us in local government, because it reduces the level of ongoing care needs in many cases; and it is good for the NHS, in that it frees up acute hospital beds. Those are the principles.

The way you successfully do that is by ensuring that the focus is on the patient and getting the patient—the citizen—to their home, not on the organisational form and who is responsible for it; in fairness, we all are. Discharge to assess has helped us to clarify “Home First” or pathway 1, and it has provided for some of those systems where one of the stumbling blocks was the resources to make that happen.

The challenge we have, though, is that we have introduced “Home First” at a system level nationally at a time when demand, linked to covid and the unintended consequences of covid, has really impacted. I reference my first meeting this morning, looking at acute pressures in Oxfordshire. We pride ourselves on getting people home, and “Home First”, but when I was chairing that call I heard myself saying, “We need to move people into some interim beds”, because I needed to create capacity in the acute system. I am hearing that coming through from director colleagues up and down the country; we are making less than ideal decisions for people because of just how much demand there is in the system. Let us be very clear: good discharge is discharge home, to your bed, with the support to enable you to maximise your recovery.

Health and Care Bill (Third sitting)

Karin Smyth Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[The Chair]

Thank you.

[Karin Smyth (Bristol South) (Lab)]

Q It is as though we have rehearsed, because that was my question. I was a GP manager leader in my area before coming to Parliament, and GPs have been at the forefront of developing CCGs, as you said, which followed on from the great desire of Governments to move the gatekeeper up the food chain, shall we say, in order to provide clinical leadership and—to be crude—control costs.

I would like to ask this to everybody. Personally, I think this issue of clinical representation is a backwards step in this Bill. You may or may not want to say whether you think that is true, but given that you have said that successful organisations are primary care-led, and none of these organisations will be clinically-led, let alone primary care-led, that is not rectifiable in the Bill through an amendment, I suspect. How will we ensure that these organisations are successful from a clinical leadership perspective, given the current state of the legislation, or would you be putting forward suggestions for amendments? I am sorry, but I do not think I have time to ask all three of you. Currently, CCGs are GP-led, so—

[The Chair]

We have about three minutes, so could you keep your answers to one minute each?

Professor Martin Marshall: I speak very rapidly.

“How?” is an interesting question. Can it be done in legislation? I think there have to be some legislative levers to ensure that this happens properly on the ground. There are some examples—one in Surrey and one in Gloucestershire—where there is already a very strong commitment to a robust primary care voice, so there is something about shining a light on those examples, which others can learn from. That is not a legislative responsibility, but it is a really important one. There is certainly something about holding localities to account and understanding what is happening on the ground at regular intervals, in terms of whether those voices are present and whether they are being heard.

Professor Helen Stokes-Lampard: I would strongly advocate that everyone takes a look at the very excellent document that NHS England put out just a few days ago, which is about implementation guidance for ICSs on clinical leadership. I have to say that whoever put it together absolutely nailed it, in terms of what to do and how. There is a how-to guide there. I had no input into it, so I feel I can shamelessly give you that, because there are a lot of answers in there.

The legislation as it stands on clinical leadership does not prevent any of those things, as I understand it. That goes back to my other point about ensuring that the legislation removes barriers and is a facilitative enabler of these things. Clearly, my colleagues have more specific things about it. I just want to draw to your attention to the fact that it says that clinicians who get involved in leadership need to be supported, protected and resourced to do so, because unfortunately clinician time is expensive. That comes back to the original conversation about workforce, but we have to factor it in. The evidence is quite clear that better clinical input in all disciplines helps systems run better and be safer. It is more cost-effective, but that needs support factored in from the outside.

Pat Cullen: You will not be surprised to hear me say that the Bill does not go far enough, and we will be looking for an amendment. There absolutely needs to be a director of nursing at the top table if you are to prevent what has happened and what has gone before, where the financial balancing of books significantly impacts the decisions of that table. The only way to ensure patient safety and quality of care, and that the workforce that we deserve and need for our patients are paramount and the centre of those discussions, is to have our clinical leaders at the top table. That must be a director of nursing, not only to bring evidence on the clinical care that needs to be delivered to the table to shape each strategic decision, but to hold that person to account for our workforce and ensure that the workforce is available to provide care for our patients.