Health and Care Bill (Twenty First sitting)

Karin Smyth Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Justin Madders]

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

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

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

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

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

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

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

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

[Karin Smyth (Bristol South) (Lab)]

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

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

--- Later in debate ---

[Karin Smyth]

I rise to support the comments made by my hon. Friend the Member for Nottingham North. He is absolutely right that this new clause follows neatly from the previous one, because I am in no doubt that if women were more involved and more listened to and had more power within the healthcare system, the debacle around vaginal mesh would not have got so far, and we would not sadly still be in a state where the recommendations have not been implemented. This is about power, listening, and having a voice in the system with regards to reproductive healthcare planning.

In the Chamber last week, I said regarding my hon. Friend the Member for Swansea East’s menopause revolution that when we worked on a women’s health strategy in the late 1980s, we barely mentioned the menopause. We were looking at reproductive rights even then, and for those of us who have followed this issue over a period of 30-odd years, it is deeply worrying to see where we still are. Again, this comes back to very basic patient care. I will certainly be supporting my hon. Friend the Member for Swansea East tomorrow to start the menopause revolution, which is going terribly well. We are hoping for serious improvements in healthcare over the coming years, and this new clause highlighting reproductive healthcare planning is really significant for the voice it should give to women at this important stage in their lives.

[Edward Argar]

It is possibly lucky for the Government that the hon. Member for Swansea East is not on this Committee, because she can be extremely persuasive. In my role at the Ministry of Justice, she managed to get a number of things out of me by persistent campaigning.

I am grateful for the opportunity to have this debate today. Women’s reproductive health remains a priority, and it is vital that women’s voices are listened to, particularly when it comes to their own healthcare. That is why we are developing a new section of the reproductive health strategy, which will of course sit alongside the developing women’s health strategy. They will both seek to address issues relating to women’s reproductive health.

Health and Care Bill (Eighteenth sitting)

Karin Smyth Excerpts

Committee stage
Wednesday 27th October 2021 Public Bill Committees

Brought up, and read the First time.

[Karin Smyth (Bristol South) (Lab)]

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

It is a pleasure to serve under your chairmanship, Mrs Murray. I think I tabled these new clauses back in August; recalling my brain to that time, summer seems like a long time ago now.

New clause 7 may seem self-evident, and I think the Minister may respond, “Yes, we are happy for them to do this, and parts of this have been included in the Bill.” I will not seek to press the clause to a vote, but I had a short conversation with the Minister to indicate that this is really good practice and that we need some assurance that the NHS will abide by the Government’s rules. That is all I seek to do with this new clause. It is self-evident that papers should be published in advance and made available to people, and that due process should be followed, but we all know that that often does not happen. Sometimes there are emergency reasons for that, but in my experience, it rarely needs to happen at the last minute.

--- Later in debate ---

[Edward Argar]

I am grateful to the hon. Member for Bristol South for tabling this new clause. Much of what we discussed in relation to amendment 34 is relevant here as well. She says she seeks to be helpful by tabling the new clause. I take it in that spirit and will seek to respond in that spirit, although we may not agree on our conclusions.

As I said when we debated amendment 34, we agree with the shadow Minister, the hon. Member for Ellesmere Port and Neston, and the hon. Lady that it is right that ICBs involve the public in their decisions in a transparent way. That also holds true for NHS England, NHS provider organisations and special health authorities. The new clause would require NHS trusts, foundations trusts, proposed ICBs, NHS England and special health authorities to hold their meetings in public except if it would be prejudicial to the public interest to do so. It would also require those bodies, when making major decisions—defined by thresholds of cost or impact on patients or staff—to do so having produced a business case, undertaken a stage gate review or similar external assessment, and considered comments from the public, patients or staff representatives. The comments, business case and review could not be considered commercially confidential under the FOI Act.

As I mentioned when discussing amendment 34, much of that is already the case. First, the Public Bodies (Admission to Meetings) Act 1960 places a similar and analogous set of requirements to involve the public in meetings as the new clause. NHS England and NHS trusts are already included in the schedule to the 1960 Act, so are subject to the requirements of that Act. Schedule 4 to the Bill provides for integrated care boards to be added to the schedule to the 1960 Act as well, thereby bringing their activities within its competence.

The position of special health authorities is that where the regulations establishing them provide as such, they are to be subject to the requirements of the 1960 Act. That gives the flexibility to include them as appropriate. For example, NHS Blood and Transplant and the NHS Trust Development Authority—which the Bill proposes merging with NHS England—are included at present.

By having the requirements for public notice of, and attendance at, meetings of those bodies set out in the 1960 Act, we keep NHS bodies in line with the requirements placed on other public bodies, meaning that everyone is clear about the legal requirements and what the public can expect from them. Foundation trusts are not formally covered by the 1960 Act, but it is mandatory that they make provision in their constitutions that their board of directors’ meetings and their annual meeting of members be held in public. They are also under the same duty as NHS trusts to involve those who use their services in their decisions regarding service provision, as set out in section 242 of the National Health Service Act 2006. In practice, therefore, foundation trusts are guided by similar principles to other NHS bodies.

Turning to the point about setting in legislation a decision-making process for “major decisions”, we of course agree that it is vital that NHS bodies follow a robust process when making decisions. Integrated care boards, for example, have clear duties to use their resources efficiently and effectively. For practical reasons, however, we would not want to subject every major decision to a single fixed approach, not least because there is no provision in the amendment for responding to emergencies or rapidly emerging situations, including those related to patient safety.

I hope that I can, however, give some degree of reassurance that there are, as set out in the 2006 Act, broad duties on NHS bodies in respect of consultation and public involvement. NHS England involves those who are affected by decisions about commissioning in the decision-making process, either by consulting them or by providing them with information in other ways. A similar duty will be imposed on ICBs by clause 19. NHS trusts and foundation trusts have a similar duty in respect of public involvement and consultation when making decisions about the services they provide, again set out in the 2006 Act.

The Committee is also aware that the Treasury is committed to seeing business cases where capital spending, or whole-life cost spending for IT, is more than £50 million, and we expect ICBs to align with that standard. Furthermore, NHS England has a broad range of powers to issue guidance on how ICBs and others make decisions, spend capital and involve patients and the public in those decisions. Placing those processes in guidance, rather than on the face of the Bill, gives not only the flexibility to set different approaches in different circumstances, but the ability to respond to changing best practice.

On procurement and transparency, as we have discussed, the Bill introduces a power to bring forward new procurement regulations, which will set out the new provider selection regime. Regulations and statutory guidance will set out rules to ensure transparency and scrutiny under the new regime, which will be designed to ensure open, transparent and robust decision making, and will require decision-making bodies to demonstrate the rationale for their decisions. The decision-making process will be recorded internally by NHS bodies and audited annually. While decision-making bodies will be required to publish contracts awarded and intentions for the method of procurement, with a rationale for both, the bodies will not be required to publish every detail of their decision-making process.

Regarding FOI requests, I recognise the impulse to be as transparent as possible and agree that, unless exemptions apply, information should be released under the FOI Act. I am advised that confidentiality, which is an absolute exemption, and commercial confidentiality, which is a qualified exemption, are two separate exemptions already in that legislation. Where parts of the decision-making process are exempted on the grounds of commercial interests, those exclusions exist to protect the release of information that could prejudice a commercial decision. That could put NHS bodies at a disadvantage in ongoing negotiations and would be detrimental to the public purse.

I am advised that this is a qualified exemption and therefore disclosure would still be required unless the public interest in withholding disclosure outweighs the public interest in disclosure being made. I recognise that that is a tricky balance to strike, but I do not think it is to the benefit of the NHS that information held by NHS bodies that could be commercially damaging and does not meet a public interest test should be released.

I hope that that offers some reassurance to the Committee. I encourage the hon. Lady not to press her new clause to a Division.

[Karin Smyth]

I am grateful to the Minister. I was going to—

Health and Care Bill (Sixteenth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Edward Argar]

I am grateful to the shadow Minister and the SNP spokesperson, whose points are not dissimilar. I take the hon. Lady’s point that statements and information are recognised legal terms and would catch different mechanisms by which they are recorded. We still think it is prudent to allow not only for developments that we may not have anticipated, but for clarity. We believe that the blanket provision gives greater clarity and certainty without the assistance of the amendment, so we do not share the hon. Lady’s view. I suspect she may still wish to test the amendment with a Division to make the point, as she is entitled to do.

Moving on from these amendments, to illustrate the variety and breadth of debate on this subject—we have had a small taste of it this morning—I want to address the argument that keeping protected materials in the safe space would potentially undermine the role of other bodies, such as the Parliamentary and Health Service Ombudsman. This illustrates part of the challenge. There are, understandably, calls from colleagues on the Committee to further restrict the exceptions to the safe space. As has been alluded to, others outwith this place argue for an expansion of the list of those exceptions. Some have argued that the PHSO should be on that list. With all due respect to those who advocate that, I do not agree. I do not think it would be appropriate to add the Ombudsman to the list of exceptions. The PHSO will still be able to fulfil its important independent role. It will have direct access to the same sources as it does now when it needs to investigate a complaint. The HSSIB will not in any way limit its ability to conduct an investigation.

[Karin Smyth (Bristol South) (Lab)]

I am a member of the Select Committee on Public Administration and Constitutional Affairs, which oversees the ombudsman. The Minister will be aware of correspondence between the Committee and the ombudsman. Could the Minister comment on the report from the Venice Commission about how far the United Kingdom will be outwith international consensus on this subject?

--- Later in debate ---

[Justin Madders]

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

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

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

[Karin Smyth]

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

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

Health and Care Bill (Seventeenth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

Clause 120 amends the—I will say it one more time—Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. The amendments made by this clause will enable the Government to implement comprehensive reciprocal healthcare agreements with countries outside the European economic area and Switzerland. The last time reciprocal healthcare legislation was brought forward in the House, as the hon. Gentleman mentioned, the Government were in negotiations with the European Commission over the terms of the UK’s exit from the EU, and therefore this legislation was very much viewed through that prism and focused on that issue. We are now in a different context, in which the uncertainties of those negotiations are behind us and we have entered into a new relationship with the EU. Under the trade and co-operation agreement, people in the UK continue to be able to access affordable, comprehensive healthcare when they travel, work or retire in the EU, and vice versa. I am sure that hon. Members recognise that as a positive and welcome outcome.

[Karin Smyth (Bristol South) (Lab)]

I would like to live in the Minister’s world sometimes. What I am struggling to understand from him before he finishes—

[Edward Argar]

I have a long way to go yet, I am afraid.

[Karin Smyth]

It looked like he was finishing. My hon. Friend the Member for Ellesmere Port and Neston referred to the suboptimal collection of payments in the health service where they are due. When I was a member of the Public Accounts Committee, it reported on this issue, generally in the context of treatment for overseas patients. I am struggling to understand how the Government expect the NHS to manage this operationally, given how suboptimal overseas payments have been—prescription charge recuperation, for example. This strikes me as an incredibly complicated issue. When we talk about impact assessments, perhaps the Minister could tell us what work has been done in the Department to understand the impact on the service, and how people who are providing treatment are to understand where we have reciprocal arrangements and where we do not, and who is entitled to that treatment.

[Edward Argar]

I am grateful to the hon. Lady. We have made significant strides forward in making this easier and clearer for the NHS in recent years, recouping money where appropriate to help fund our NHS. We regularly update the guidance to trusts, which—as the hon. Lady will appreciate—are responsible for recouping funds where a patient is chargeable. They are increasingly consistent in how they apply those rules.

I concede to the hon. Lady, quite reasonably, that there are occasions when trusts do not apply the rules in a fully consistent manner. That is why we have taken steps centrally with NHS England to ensure that we pass very clear guidance to them; we do not believe that this will impose any heavier burden on them than is currently the case. Similarly, in the implementation of the agreement with the EU—again, it would be churlish not to admit it—we have faced some challenges in making sure that other countries understand their obligations to British citizens abroad under that agreement. That is in the nature of the early days of a new agreement.

Anecdotally, I receive correspondence on this issue from right hon. and hon. Members, and there was an increase in that correspondence at the very start of the year: Members were either saying that they had constituents who went abroad and did not receive the free healthcare they should have received, or were taking up the cases of people who visited this country who were charged and did not think they should have been, or vice versa. That correspondence has significantly dropped off in recent months, so with that caveat about it being anecdotal, I suggest that the new agreement has bedded in fairly efficiently. I have not had any responses from trusts saying that the way in which the agreement works has imposed any additional burdens on them that they cannot cope with.

Of course, there are other countries with which we already have different bilateral agreements, so I am confident at the moment that the administrative processes will be an effective extension of current processes but, as with all these things, I keep the issue under review. The hon. Member for Bristol South will know from her time in the NHS that if a trust found that the burden was significant or increasing, it would not hesitate to tell me. Equally, we are looking at reciprocal healthcare agreements here—we are not looking at a whole load of agreements, but dealing with them bit by bit, as we negotiate them, and we are allowing them to bed in. That was a long answer, but she made an important point.

It is time for the Government to build on our significant success in negotiating the agreement with the European Union and our new relationship, and to turn our attention to the UK’s relationship with countries outside the EU, as another strand of our global Britain strategy. That is why we are extending the geographical scope of the 2019 Act beyond the EEA and Switzerland and renaming it, as the hon. Member for Ellesmere Port and Neston said, the Healthcare (International Arrangements) Act 2019.

Outside Europe, we have limited healthcare agreements with a number of countries, which support people from the UK in accessing medically necessary healthcare. These agreements do not always provide comprehensive cover to those who need it; for example, a person suffering from kidney failure may be able to access emergency treatment if something happens to them while abroad, but they would likely have to pay for their ongoing dialysis needs privately.

The clause will enable the Government to implement comprehensive reciprocal healthcare agreements with other countries around the world by allowing for the reimbursement of healthcare costs and the exchange of data to facilitate this reimbursement. By implementing such agreements, we can better support people when they are abroad. Comprehensive reciprocal healthcare agreements can help people to access necessary healthcare services when they are travelling for leisure or business. Importantly, they can particularly benefit those with chronic health conditions, for whom travel insurance is very costly—or in some cases, sadly, completely unaffordable. Furthermore, agreements usually reduce the burden on NHS trusts, which would otherwise have to pursue individuals to recover overseas charges, as there is normally state-to-state reimbursement built into the agreement. Hopefully, the provisions will mean that we can reduce the debt owed to the NHS in an administratively unburdensome way.

Finally, reciprocal healthcare agreements can strengthen our relationships with countries around the world and foster greater healthcare co-operation, including on health security and research, the importance of which hon. Members on both sides of the House would acknowledge has been illustrated by the recent pandemic and the research around that.

The clause will enable the Government to implement more comprehensive agreements where that is to the benefit of the whole UK. We will also be able to improve arrangements to make them more effective. Our ambition is for new and improved agreements to be brought under the umbrella of the new UK global health insurance card, which will bring our EU and rest-of-the-world agreements together into a cohesive and visible service for UK citizens, and ensure that people can take advantage of their rights under these agreements.

During the 2019 Bill debates, which I confess to having read, the Government were asked to review the breadth of powers in that Bill after the conclusion of the EU exit negotiations. We have listened to the concerns expressed by the House, and our amendments to this Bill remove section 1 of the 2019 Act, which provided for a free-standing payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland—a point to which the hon. Member for Ellesmere Port and Neston alluded. This power is no longer needed now that the withdrawal agreement and the trade and co-operation agreement are in place to protect the healthcare rights of UK nationals living in EU member states.

We are replacing that broad payment power with regulation-making powers. These can provide for payments to be made in two circumstances: first, to implement healthcare agreements, and secondly in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of the agreement, and the Secretary of State determines that there are exceptional circumstances that justify payment. This latter element prevents a cliff-edge loss of rights in marginal cases.

As demonstrated in recent months, healthcare co-operation between countries is vital in our globalised world. Reciprocal healthcare provides safeguards and support for those who might find themselves in a vulnerable position, and supports greater opportunity for travel for those with healthcare conditions. As we move into the post-EU-exit world, we are excited to seize these new opportunities for global Britain. I therefore commend the clause to the Committee.

NHS England Funding: Announcement to Media

Karin Smyth Excerpts

Monday 25th October 2021 Commons Chamber

[Edward Argar]

I am grateful to my right hon. Friend. We have rightly set out what we are doing to increase numbers through recruitment, but as she says a key part is retaining the skilled and dedicated workforce. We need to recognise that there is not a separate workforce who have been dealing with the pandemic and who will now to be dealing with elective recovery—they are the same NHS workforce, who will all have been working very hard. We have to be sensitive to the fact that they need the time to recover physically and emotionally after the pandemic. That is what we are seeking to do.

We are being realistic in setting expectations about how long it will take to clear the backlog. It is right that we do that with the public, because we must look after our workforce. One of the single biggest things we can to do help with retention is to be flexible with our workforce—recognising, exactly as my right hon. Friend says, the need for flexibilities, not just for female members of our workforce but for all our workforce, as well as the need for additional staff to come through and help ease the burden.

[Karin Smyth (Bristol South) (Lab)]

The waiting lists are now the longest we have ever seen, plus there are the 7 million people who did not come forward during the pandemic. That means that the validation of the lists is a mammoth task. The clerical validation is quite simple—phoning people up to see whether they still live at the relevant address, whether, sadly, they have died or whether they have moved on—but the clinical validation is now really important. What conversations is the Secretary of State having with clinical leaders about the criteria being used to validate these lists? Crucially, how are local people going to be involved in how and why clinical decisions are being made about who will be treated and in what order?

[Edward Argar]

The hon. Lady and I have spent many days in recent weeks sitting opposite each other in the Health and Care Bill Committee, and she knows of what she speaks given her background in the NHS. She is right about the validation of those lists and then the prioritisation, but although it is absolutely vital that we ensure that patients and those on the waiting lists are kept informed and included in the decisions and discussions about their care, her key point was about clinical decision making. In this context, the decision making and prioritisation must be clinically led.

I have spoken with the Royal College of Surgeons and others of the royal colleges about how we approach the issue. We should look at a number of factors. Is it possible with these new approaches to deal quickly with a large number of high-volume, low-complexity treatments that impact on quality of life? Equally, there are very complex treatments for which a month, a week or even a day longer can lead to more adverse clinical outcomes.

It is right that we go for clinical prioritisation. Although I am keen that we should keep people informed and engaged as participants in the process, it is vital that we see this issue as clinically led.

Covid-19 Update

Karin Smyth Excerpts

Thursday 21st October 2021 Commons Chamber

[Maggie Throup]

I reassure my hon. Friend that there are numerous ways in which people can get a jab; it is not just at general practices.

[Karin Smyth (Bristol South) (Lab)]

I have been part of the Bristol health and care system for some two decades, and I have never quite seen it like this, and neither has anyone else. I want to ask the Minister about the secret criteria for plan B. We have over 90% occupancy, waiting times at record levels, waiting lists at record levels, appointments with GPs are difficult, ambulance back-up at record levels, social care discharge at problematically high levels and social care vacancies. What measure does the Government think we need, other than more deaths and more infections? Will she be talking, perhaps with the committees of Back-Bench Conservative MPs, to decide which measure they think is sufficient to allow us to move to plan B, because it is a complete mystery to the rest of us?

[Maggie Throup]

The Government have clearly laid out our autumn and winter plan, and that is what we are sticking with.

World Menopause Month

Karin Smyth Excerpts

Thursday 21st October 2021 Commons Chamber

[Karin Smyth (Bristol South) (Lab)]

My hon. Friend is making excellent points. I first encountered the issue as a young woman writing a draft women’s strategy for a regional health authority in 1989, in which it did not feature. We hear much about strategies and the education of medics, but actually they have not transformed and changed in that time. Does she agree that they are important?

Evidence shows that osteoporosis disproportionately affects women with lower incomes and that there is huge variability of services across the country. Does my hon. Friend agree that that also needs to be addressed?

[Dr Allin-Khan]

I wholeheartedly agree with both of my hon. Friend’s points. In fact, we have heard today the statistics about just how much there is a lack of education about the menopause in medical school. It was something that we did not really talk very much about when I was at medical school. It is also really important to highlight the fact that we live in a very diverse country and a diverse society, where information has to be available in a number of languages and where there has to be proper outreach to communities in which people certainly would not think of speaking about it at home.

As I have touched on, the effect that the menopause can have on women’s mental health must not be ignored. It should not be underestimated. How many of us throughout our lives have been dismissed as hormonal, hysterical even, or too emotional? The hon. Member for Stourbridge (Suzanne Webb) spoke about her ex-ex, and I am glad to hear he is such, but unfortunately we do get labelled—women get labelled—as hysterical or hormonal as an excuse. I have actually experienced it at first hand right here at the Dispatch Box. Is it any wonder then that women are scared to speak about what is happening to their bodies?

Women who experience mood changes during menopause are often not taken seriously. The symptoms of mental ill health are often condescendingly brushed aside as simple mood swings or unnecessary aggression as a result of the menopause. The reinforcement of women as hysterical or highly emotional is incredibly damaging. No wonder some women feel they are unable to reach out for support. So many hon. Members have mentioned, so importantly, the workplace, and for so many women, support simply is not available. They are often forced to suffer in silence for fear of repercussions. This is at a time when women should be reaching their professional peaks in their careers—the heady heights of what it means to be a CEO, run a hospital, run a business or sit here in Parliament—but, instead, women are forced to make up excuses about why they are taking days off or feel that they have to take early retirement. Well, this has to end, because women are a powerful force and able to achieve anything at any point in their life, and it has been wonderful to have reminders of that today.

Besides a seismic change in attitude and an eradication of stigma, what action do we need to ensure real change to support women undergoing the menopause? We need menopause awareness training for employers to help reduce stigma and to ensure that women are getting appropriate support and advice. This not only benefits those with menopausal symptoms, but has economic benefits for employers and wider society by helping to improve productivity and reduce absenteeism. We need to ensure that medical professionals are able to recognise when women are menopausal so that HRT can be prescribed, eradicating the lengthy waits, and women must be able to access accurate information on menopause to dispel the myths once and for all.

I would like to end by again thanking every Member for their contribution today, and I eagerly await to hear from the Minister how the Government plan to tackle the stigma surrounding menopause and offer real support for women once and for all.

Health and Care Bill (Thirteenth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

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

It is important that we recognise the different types of data. The clause is talking about anonymised data, from which we are looking at performance standards, outcome standards and the percentage of patients who had a certain treatment. It is not talking specifically about identifiable data. We also have fully identifiable data with patient details, and in between those we have what is called pseudonymised data, which is like a blurry picture. However, the public are also concerned about that data because they fear that when it is triangulated with other sources somebody can be identified.

It is important that clinical data—the basis of communication between a GP, a breast surgeon like me and an oncologist in a centre—moves around and can be used. However, we must recognise that, as the hon. Member for Nottingham North clarified with the survey that he quoted, the public are concerned about their data. Beyond someone’s biological self, the most important thing that relates to them is their personal data, and after the care.data scandal of seven years ago and Google DeepMind, the public do not trust programmes that suddenly appear with little discussion and consultation and that talk about taking data. There is a huge public education process to be carried out, but equally, in the end, confidence is undermined by the talk about sharing data, whether identifiable or pseudonymised, with commercial companies.

Anonymised data is not an issue. For example, of the patients who took a drug, 10% got a side effect and, of those, 3% had previous heart disease. That is useful information; it does not identify patients. The public’s concern is that commercial companies, including pharmaceutical companies, could access pseudonymised or full data that would identify them. It is important that the Government explain the three types of data and how they are used for utterly different things. The public have no issue with Public Health England or academics working to recognise what is happening with heart disease or cancer in the UK and learning from data. However, they are concerned about the potential commercial use and potential revelation of their personal data.

The Government have a long job to do to convince the public. The danger is that the baby goes out with the bathwater and we lose not just research but integrated functioning in NHS England. It is important to recognise that the data held in the devolved health services is completely separate. I will come to that on clause 85.

[Karin Smyth (Bristol South) (Lab)]

Unfortunately, Mr Bone, you missed our last sitting, in which I relayed to other Members my long career in the NHS and my experience on these matters, but I will start in the spirit in which I left off. Having worked at a clinical commissioning group at the time of the care.data episode, I absolutely concur with the comments made by the Labour and SNP Front Benchers, my hon. Friend the Member for Nottingham North and the hon. Member for Central Ayrshire.

We have had a lost decade, which is a great shame because the use of such data—we have learned much more about data and science during the pandemic—can save lives. My hon. Friend the Member for Nottingham North mentioned meeting a patient who could perhaps have been helped better. At the end of the day, that is what we want to make happen.

My experience inside the health service will not be everybody’s, but on information governance the attitude to data is very well developed and sophisticated, and people take it incredibly seriously. When we started on the care.data episode, the value of that really seemed self-evident in the system.

We need to bear in mind, as we look at the issue as legislators, that the people who deal with it day to day to effect what they see as positive change may be operating on one track and be completely taken by surprise by the public reaction. I remember trying to understand it myself; I am not a data specialist, but I tried to understand the different channels of what was being tried at the time. I explained to more senior managers that it did not sit right with me—I did not understand where it was going or what it meant for me. If I did not understand it, I knew that if it were not explained carefully, as the hon. Member for Central Ayrshire says, the general public would not either.

There is a missed opportunity. I ask the Minister to consider our very helpful Opposition amendment, not just in his role as a political leader in the Government, but by thinking about the rest of the system and how we can support it to do what it needs to. We absolutely need to bring the general public with us. Because of the mistakes of the past, I would argue that that we now require quite a mammoth exercise: not just differentiating between types of data, but considering who owns it, how we give it and what powers we will have in future.

As my hon. Friend the Member for Nottingham North said, the opt-out was really quite an incredible exercise over the summer. I think that has gone below the political radar in terms of the numbers of people who have taken that really quite difficult step. Part of this, as we will come to later, is about trust in GPs and GP data, which is where so much of our individual source data goes. The role of GPs also has to be brought very carefully along the path, because that data is of course very valuable for them.

The commercialisation concerns people, but beyond that, this is about our very essence—our trust in the system and the clinicians we see, who most of the time are our GPs. The Government need to step back—although not for too long, because they have already stepped back for a decade—and consider what is the best public exercise that they could embark on to resolve this problem, as the system and all of us really need.

Accepting our amendment in the spirit in which it was moved would be a step in the right direction. If the Government do not accept it, at the very least we should understand what they propose in its place.

[Edward Argar]

I am grateful to the hon. Member for Nottingham North for tabling amendment 109. I appreciate where he is coming from; as I understand it, his amendment is intended to ensure that the clause does not require health and care organisations to provide information that they could already be required to provide under existing powers. He talked about consistency and a single approach, and he is right.

The hon. Member for Bristol South is absolutely right, as is the SNP spokesperson, the hon. Member for Central Ayrshire, about the need for us—the Government, the system and indeed all of us—to better explain and reassure people about the fact that data saves lives and about how it is used. The hon. Member for Central Ayrshire was right to draw a distinction between pseudonymised and anonymised data. She was equally right to highlight that pseudonymised data is not relevant under the power, which is about anonymised data. In a sense, the reassurance is there, but it is incumbent on us to make it clear to people.

Health and Care Bill (Fourteenth sitting)

Karin Smyth Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Edward Argar]

I am grateful to colleagues for their comments and contributions. The short answer to the shadow Minister, the hon. Member for Nottingham North, is that comparing the UK Health Security Agency, for example, to what we are discussing here is in a sense comparing apples with pears. This is about non-departmental public bodies. UKHSA is an Executive agency, so it is already directly under the power of the Secretary of State, hence why the Secretary of State was able to make those changes. This is about the different categorisation of two subordinate bodies of the Department—NDPB versus Executive agency—which is why this section of the Bill deals with NDPBs, for which that power is currently not the same as it is for an Executive agency such as UKHSA. It is a technical point, but hopefully that gives the hon. Gentleman some explanation of the difference in approach.

[Karin Smyth (Bristol South) (Lab)]

I am grateful for that clarification, but I believe—perhaps the Minister will comment—that that makes the comments from my hon. Friend the Member for Nottingham North about Executive overreach even more pertinent and well made than they were in the first place. The fact that these are public bodies that are subject to the Commissioner for Public Appointments, which is something the Minister might come on to later, means that their quasi-independence is more significant, not less, and that they are governed accordingly.

--- Later in debate ---

Finally, paragraph 16 concerns HSSIB’s ability to raise income from non-NHS bodies. I presume—I am sure the Minister can confirm this—that that power is not something that can be visited on NHS bodies. We need to ensure that that power does not become more of a priority than it should be, in terms of funding restrictions, that the body’s primary aim is still followed, and that this power does not lead to conflicts of interest.

[Karin Smyth]

It is a pleasure to see you in the Chair, Ms Elliott. I would like to address some comments to schedule 13, following on from my hon. Friend the Member for Ellesmere Port and Neston. It is not an interest, but I am a member of the Public Administration and Constitutional Affairs Committee, and much of the appointment issue is within our purview.

HSSIB is a really important new body and, as the Minister outlined, it must be of the highest integrity. It must absolutely be built on the highest standards of trust when it comes to the wider system and the general public. We will discuss how that will happen over the forthcoming clauses.

As the Committee knows, the issue of accountability is close to my heart. HSSIB being a public body, and I am afraid to say that the Government’s record in the last couple of years does not fill me and many others with great confidence in terms of how this body is being set up. Its leadership merits due consideration both by the Committee and when the Bill goes to the Lords and then returns to the Commons.

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.

--- Later in debate ---

[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.