Ambulance and Emergency Department Waiting Times

Debate between Karin Smyth and Edward Argar

Wednesday 6th July 2022 Westminster Hall

[The Minister for Health (Edward Argar)]

I am happy to do so, Mr Stringer.

It is a pleasure to be here on the Front Bench responding to this very important debate. If I am still in this role on Sunday, I think I will be the third longest-serving Minister for Health since 1970, which says something about either longevity or churn in this role. It is a genuine pleasure to respond to the hon. Member for Bath (Wera Hobhouse), and I congratulate her on securing this debate.

As hon. Members across the House have acknowledged, the NHS has faced extraordinary pressures over the course of the pandemic and continues to face them. Although I suspect that not everything I say will meet with agreement from Members from both sides of the House, I join them in expressing our gratitude to all those who work not just in our NHS and health services but in social care.

I will start with a couple of words of caution about the use of history and statistics. Hon. Members made a number of points. I have been doing this job for almost three years, and I have often found that assertions are made with statistics or other facts from the history of the NHS, and I want to provide a counter-narrative to three or four before turning to the specifics of the hon. Lady’s debate.

First, I urge a little caution from Opposition Members when raising bed closures, not least because between 1997 and 2007, about 32,000 beds in the NHS were closed, which is more than double the number that were closed between 2010 and now. I say that simply to caution hon. Members that statistics can be used in different ways. There has been a long-term trend under Governments of both parties as the nature of care has changed.

[Karin Smyth]

Will the Minister give way?

[Edward Argar]

I just want to make a few more points, and then of course I will give way to the shadow Minister. She and I spent many happy hours in the Health and Care Bill Committee over many days.

On engagement with the private sector, again I would urge a little caution. It was of course the Labour Government in 2004 who first introduced the private sector into the provision of frontline clinical services with the out-of-hours contract. A Nuffield Trust blog in 2019 highlighted the fact that the increase in the use of the private sector in the NHS began before 2010 under that Government. I do not think the hon. Member for Jarrow (Kate Osborne) was asserting anything other than that, but it is important that I put that on the record.

Of course resources are hugely important. One of the first pieces of legislation that we introduced following the 2019 general election was the NHS Funding Act 2020, which will increase funding by £33.9 billion—a record amount—by 2023-24. As the hon. Member for Weaver Vale (Mike Amesbury) would expect me to say, we introduced the health and care levy to bring more funding into our NHS and social care. It was disappointing that Opposition Members voted against additional funding for the NHS when that was put to a vote.

[Karin Smyth]

The Minister talks about the bed reduction, but that was in the context of massively increasing primary and community care, and the private sector capacity was brought in to reverse the horrendous waiting lists following 18 years of Conservative government. We decided to govern. The point that hon. Members are making is: why does the Minister not govern?

[Edward Argar]

That is exactly what we are doing: we are leading and putting forward measures. Disappointingly, Labour voted against that extra funding.

Integration White Paper

Debate between Karin Smyth and Edward Argar

Wednesday 9th February 2022 Commons Chamber

[Karin Smyth (Bristol South) (Lab)]

I thank the Minister for advance sight of his statement, which I got about 30 minutes ago, but I confess that I read most of it some 30 years ago when I was developing joint services. After waiting an eternity for the Department of Health and Social Care White Paper, the Government are spoiling us with their third paper of the year. All these papers are necessary to try to remedy the disastrous Lansley Act—the Health and Social Care Act 2012.

We acknowledge that reversing that Act and the integration of health and social care, however it is defined, is extremely difficult, but this integration will not be delivered by the White Paper and it is certainly not well defined. It is not clear how this fits with the Health and Care Bill, which is currently in the Lords. Even the experts involved in the Committee and elsewhere are repeatedly tripping over crucial issues such as the relationship between integrated care boards, integrated care partnerships and integrated care systems. How do they work with health and wellbeing boards? Where is the clinical leadership? Where is the accountability to local people? I banged on a lot about accountability in the Bill Committee so I am glad that somebody was at least listening and that we seem to have a bit of progress, but where are the voices of local people who are increasingly being asked to pay more for less?

Like a house made of crepe paper, this gossamer-thin White Paper collapses with the faintest breeze of scrutiny. Let us be clear: it is not a plan, nor is it even a starting strategy. It is just a series of woolly claims about how things could be better, unsupported by any evidence or analysis of the resources and organisational and funding flow changes that will obviously be necessary. It could have been written at any time over the past 30 years. It contains little that is new and nothing to illustrate new thinking or new attitudes. It relies on the bogus assumption that because something may work for a while on a small scale, it will obviously work everywhere. It is not any kind of plan for integrated care that people will recognise; these are just aspirations about integrated systems.

There is little to explain how a joined-up system would be managed, how it would be accountable to the public, patients and service-users, how the funding will be allocated and shared or how performance would be assessed and weaknesses addressed. Nothing in the White Paper addresses the key issue of balancing what is locally determined against national standards and national entitlements.

Crucially, there is nothing to address the key barrier to integration—that social care and the NHS are in different empires with no level playing field. One is means-tested and one is not. One has national criteria for entitlement and one does not. The way in which they are governed and funded is totally different and they are kept going by two separate workforces with no aligned terms and conditions.

I welcome the announcement of a skills passport and we will certainly look at the detail of that. However, unless there is pooled funding on a major scale—out-of-hospital funding—there will be no system drivers to really improve integration. This White Paper is again about simply encouraging, but we have had 30 years of that.

The reality is that the White Paper is remarkable for what it does not do. It does not seem to help children and young people. It does not address the challenge of how to care for and support working-age adults with a disability. It does not really value or assist the informal workforce or carers.

Our NHS and care system is under enormous pressure after years of austerity funding made incalculably worse by the impact of the covid pandemic, but the challenges that it faces are manifest, from a legacy of a “hospital first” approach to a decades-long failure to share care records. That runs alongside chronic underfunding and devaluing of public health, huge gaps in the workforce and wholly inadequate social care provision, with more than 500,000 people waiting for assessment and hundreds of thousands more denied access to care of any kind because the barrier for access is far too high.

This is a will-o’-the-wisp White Paper: one minute it is there before us only to vanish at a glance. The truth is that there does not seem to be anything of note that cannot already be done. Fundamentally, what is the point of it? As things stand, the number of patients waiting for care will continue to rise for the next two years, and there is no plan—not even the ambition—to get waiting times and waiting lists down to the record lows seen under the last Labour Government.

Worse still, these proposals will see patients paying more in tax but waiting longer for care. The Government are blaming covid, but will the Minister tell us when the target for NHS patients in England to be treated within 18 weeks was last met? If he cannot remember, it was in fact in 2016, four years before the pandemic. It is clear from the announcement yesterday and here today—just as it is from the decade of Tory mismanagement that left the NHS ill-equipped to cope with covid—that the longer we give the Conservatives in office, the longer patients will wait. Their time really is up.

Today is not a serious endeavour; it is a greatest hits of soundbites and buzzwords, randomly assembled to make a decent press release and get an outing on the evening bulletins. It is a desperate desire to own the news cycle and calm Tory Back Benchers’ nerves. It really is disappointing and it is simply not good enough.

[Edward Argar]

It is a pleasure to see the shadow Minister in her place—she will know that I genuinely mean that, because she and I spent many happy days upstairs in Committee debating exactly these issues. This White Paper sets out clearly the next steps and builds on the strong foundations of integration that that legislation put forward, with the integrated care boards, integrated care providers and integrated care systems, which our deliberations in Committee and in this House demonstrated were clear, understandable and effective in providing locally based governance; bringing together at an ICB level NHS services within a locality, and within an ICP broader ranges of services, including housing providers and others. This has been bringing together the national health service we have with the localised delivery we all seek.

That is one of the key points of the White Paper: the next steps in how to deliver place-based solutions and allow the system to continue to evolve organically through that permissive approach that characterises the legislation we are putting through Parliament, rather than the prescriptive approach that the Labour party at times appears to prefer. The White Paper contains new thinking on new ways forward, drawing on not just the lessons of the pandemic but much longer-standing arrangements within localities, recognising best practice for integration between health and social care, and reflecting that organic development that occurs within a place as local leaders, local communities and those using the services work together to deliver services that work best for them.

The hon. Lady touched on how some of this might work in practice and talked about funding and budgets. We have made it clear—I used to use this when I was a local councillor—that section 75 of the National Health Service Act 2006, on the ability to pool budgets, has been effective, but it is time to go further and explore whether that remains the most effective vehicle by which that sharing of budgets can be undertaken, so it is right that we look at this.

The hon. Lady touched more broadly on social care and the NHS. I have to say to her that we announced our White Paper for social care last September. She mentioned the plethora of White Papers. We rightly recognise the different parts of the health and social care system and have clear plans for each of them. Those different White Papers together form a coherent whole, putting forward reform proposals that will make a difference for patients and others alike. I have to say to the Opposition that, much as they may gently chide us on this, in 13 years in government they had two Green Papers, one royal commission and one spending review priority, but still no reforms to improve social care provision in this country. This Government have seized the nettle and brought forward proposals that will genuinely move us forward.

Finally, on the hon. Lady’s points about yesterday’s announcement on NHS waiting lists, this Government have been transparent with the British people about the challenge ahead of us and about our plan to meet that challenge. Our approach, which combines ambition with realism, has been welcomed by stakeholders across the health and social care space. Ours is the party of the NHS. We are the party that has put the resources into that NHS, with £33.9 billion put into law at the start of 2020, and then record funding through the health and care levy, which the Labour party voted against.

Health and Care Bill

Debate between Karin Smyth and Edward Argar

Report stage
Monday 22nd November 2021 Commons Chamber

[Edward Argar]

I am grateful to the shadow Secretary of State who, while I do not necessarily agree with what he says, as ever puts it courteously. We hold true to what we put in that “Build Back Better” document. It is necessary for this one particular element to see further primary legislation, hence the amendment today.

[Karin Smyth (Bristol South) (Lab)]

Will the Minister give way?

[Edward Argar]

I am afraid that I will not give way because I do need to make some progress.

[Karin Smyth]

Will the Minister give way on that point?

[Edward Argar]

I have been very generous with my time and to the shadow Front Bench, so forgive me, but no.

[Karin Smyth]

On that point, will the Minister please give way? Six weeks in Committee and not a mention.

[Edward Argar]

Forgive me, but no.

To reiterate, as my right hon. Friend the Prime Minister said on 7 September nobody—nobody—will be “worse off” than under the current system. Currently around half of all older adults in care receive some state support. This will rise to roughly two thirds under these reforms. On the minor technical amendments that I made to other sections of the Care Act, I would not wish to belabour each one, but I can reassure the House that those changes will ensure that the legislation works as intended and that everyone who is eligible—

[Karin Smyth]

Will the Minister give way?

[Edward Argar]

I will not give way. I want to make some more progress.

--- Later in debate ---

[Edward Argar]

My right hon. Friend is exactly right. I am grateful to him for giving me an opportunity to highlight that this improves in this respect on the Dilnot proposals. I put on record my tribute to Andrew Dilnot for his work, but we believe that this is a better package, and, as he highlighted, a sustainable package from a financial perspective.

[Karin Smyth]

Will the Minister give way. We have had six weeks in Committee.

[Edward Argar]

The hon. Lady implores me, saying that after six weeks of having to sit opposite me in Committee, the least I can do is allow her to intervene.

[Karin Smyth]

Several times in that Committee, I offered to help the Government in a cross-party way. The Minister has been dealt a bad blow here tonight, having to come here and defend this proposal. In those six weeks—I think 21 sessions—not one iota of this proposal was mentioned or brought forward. We all know about bad legislation, rushed legislation, and legislation that does not have the commitment on something so important. I have commended the Government for starting this conversation, but this is a poor legislation move. I am sure that Members here would support the Minister tonight if he were to withdraw this proposal, go back to the Chancellor and ask him to think again. We would all be behind him if he took that opportunity.

[Edward Argar]

I did wonder whether I would regret that intervention. It was typically courteous, although I have to say that when a Member of the Opposition says that, “We’re here to help you”, I am not always sure. [Interruption.] Of course, when the hon. Lady does it, I know that she is sincere about it. The point I make is that this important change is necessary to deliver on the pledge we have made. It is being introduced on Report. While ICBs and integrated care systems, which we will speak about shortly, are hugely important, I suspect that this matter will dominate the debate in this group on Report. Equally, I suspect that it will be fully debated and scrutinised in the other place.

Health and Care Bill (Twenty Second sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Edward Argar]

It is a pleasure to see you in the Chair this morning, Mr Bone. The new clause would introduce a requirement for an NHS body to notify the relevant local authority once it had identified that a young carer had primary responsibility for caring for a patient on discharge. The local authority would be required to carry out a young carer’s needs assessment before discharge to establish the appropriateness of the young carer providing care and what support should be in place to enable safe discharge.

I entirely understand the sentiment and intention behind the new clause, which the shadow Minister and the hon. Member for Bristol South set out very clearly. We have touched on the importance of this issue in previous debates about carers. Young carers often do not even realise that they are carers. They undertake their caring responsibilities, go to school, come back again and undertake caring responsibilities again. They are arguably some of those most in need of support and identification. These young people are essentially having caring responsibilities for a loved one, family member or friend thrust on to their shoulders at a very early age. However, I am not convinced that the cause is best advanced by the new clause and I will try to explain why. In her response, the hon. Member for Bristol South may agree or say she is unconvinced by my explanation, as is her right.

Existing legislation already requires local authorities to carry out an assessment of need for all young carers on request or on the appearance of need. That assessment must consider whether it is appropriate or excessive for the young carer to provide care for the person in question, in the light of the young carer’s needs, wishes and circumstances. Regulations already provide a detailed framework, including the matters to be considered in such assessments and the skills of the person undertaking it.

As members of the Committee will be aware, the discharge clause in the Bill, which we debated some days ago, revokes the existing requirements for hospitals to issue assessment and discharge notices as part of the discharge process for adults, because they contribute to lengthy discharge delays. The current requirements trigger local authority duties to assess the person’s long-term social care needs, prior to the person’s discharge. We know delayed discharges have a negative impact on patient outcomes.

My concern about the wording of the new clause is that making young carers’ assessments a requirement of discharge would risk reimposing further significant delays, at a time when supporting the safe hospital flow of patients has never been more important. I am also unclear how such an assessment system would be enforced.

Current discharge guidance clearly sets out that, as part of discharge planning, consideration must be given to any young people in the household who have caring responsibilities or may have some on discharge. Guidance states that they may be entitled to a young carer’s needs assessment or to benefit from a referral to a young carers service.

We will work with the Department for Education to ensure that protections for young carers are reflected in new statutory discharge guidance, accepting the sentiment behind the new clause. That will include setting out as part of the discharge planning process how young carers should have a needs assessment arranged, where appropriate, before a patient for whom they provide care is discharged. That is the more appropriate way to capture or operationalise, for want of a better way to put it, the sentiment behind the hon. Lady’s new clause. It is up to her whether she feels that that is sufficient, but I have set out our response to the new clause she proposes.

[Karin Smyth]

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

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

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

Clause, by leave, withdrawn.

New Clause 65

Review of the surgical consultant appointment process

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

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

Brought up, and read the First time.

Health and Care Bill (Twenty First sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Thursday 28th October 2021 Public Bill Committees

[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 (Nineteeth sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Wednesday 27th October 2021 Public Bill Committees

[Edward Argar]

I like to think that I am a constant in the Department, this week and in previous weeks. It is piece of work that we have done. If one looks at the very senior civil servants—the directors general and permanent secretaries—there is a good gender balance. He is absolutely right, however; having assumed responsibility for workforce more broadly a few weeks ago, it is a piece of work that I want to do. I was responsible for the implementation of the Lammy review and race disparity audit when I was at the Ministry of Justice, and it is an interest that I have taken with me to my new Department. The last year has been a little bit busy, but it is something of which I have not lost sight.

I do not believe that it is necessary to create a new body to oversee appointments, given that good governance arrangements are already in place. I therefore remain unconvinced by the argument. As ever, and as behoves me when the hon. Lady proposes something, I will continue to reflect on it carefully.

[Karin Smyth]

I am grateful for the Minister’s comments. I will not press the new clause to a Division, but I hope to see this matter further debated during the passage of the Bill. I say gently to the Minister that the gender split for CEOs and managing directors in the health service may be 50:50, but the workforce, and certainly managerial post holders, are overwhelmingly women; however, that is not reflected further up.

[Edward Argar]

The hon. Lady makes a point that I should have made earlier. When I was looking at this matter in the Ministry of Justice, I was not just looking at prison governors. We need to look at the layers below, the succession plan, and the mix coming up through the system—the next generation of leaders. She is right to highlight that; forgive me for not having mentioned it.

[Karin Smyth]

I am afraid that these bodies have not proven themselves good at doing that, and it is not good to have them police themselves, so we need to progress the debate. On the national/local question, I am generally more Morrison than Bevan, so I will continue to plough that furrow, but this is also about being seen to do things properly for local people. My fundamental point remains that as we ask people to spend more money—we are talking about a huge proportion of our GDP, and it will be increasingly so under any Government—we need to be able to demonstrate to them what is done with it, and how and why it is done, and we need to involve the public.

That is my view of the future of the health service, and that is why I will continue to pursue this argument. When it comes to cost, it is a moot point whether this is done quietly in the corridors of NHS England; whether it is done by the Secretary of State; whether names mysteriously appear in the local economy; or whether there is due process. I am not saying that the old system was perfect. It is quite hard to recruit people to these bodies, but they are powerful people, spending billions of pounds of local money in the local economy. They need to be more representative and accountable, and we need to know who they are. As I said, I will not pursue the matter now, but I would like to see it debated further over the passage of the Bill, and we will come back to it another time. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

Duty to promote research

“For Section 1E of the National Health Service Act 2006 substitute—

‘Duty to promote research

The Secretary of State must—

(a) support the conduct of research on matters relevant to the health and care system,

(b) provide funding for research on matters relevant to the health and care system, via ring-fenced funding for the National Institute for Health Research, and

(c) promote the use in the health and care system of evidence obtained from research.’”—(Chris Skidmore.)

This new clause would require the Secretary of State for Health and Social Care to have a duty to support, fund and promote the use of research in the health and care system in England, via ring-fenced funding for the National Institute for Health Research.

Brought up, and read the First time.

Health and Care Bill (Eighteenth sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Wednesday 27th October 2021 Public Bill Committees

[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 (Seventeenth sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[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.

Health and Care Bill (Sixteenth sitting)

Debate between Karin Smyth and Edward Argar

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?

NHS England Funding: Announcement to Media

Debate between Karin Smyth and Edward Argar

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.

Health and Care Bill (Thirteenth sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[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)

Debate between Karin Smyth and Edward Argar

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.

Health and Care Bill (Eleventh sitting)

Debate between Karin Smyth and Edward Argar

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.

Health and Care Bill (Twelfth sitting)

Debate between Karin Smyth and Edward Argar

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.

--- Later in debate ---

[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

Health and Care Bill (Tenth sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[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 ---

[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)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[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.

Health and Care Bill (Seventh sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Thursday 16th September 2021 Public Bill Committees

[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.

--- Later in debate ---

[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 (Eighth sitting)

Debate between Karin Smyth and Edward Argar

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.

--- Later in debate ---

[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 ---

[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 ---

[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.

--- Later in debate ---

[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 (Sixth sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[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 ---

[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 ---

[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)

Debate between Karin Smyth and Edward Argar

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 ---

[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.

Health and Care Bill (Second sitting)

Debate between Karin Smyth and Edward Argar

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[Karin Smyth]

Q I hope that this is in scope, Mr McCabe. I have just come from the Chamber, where the Prime Minister is still on his feet. He talked about integrated care records, but I am not quite sure if we are discussing the same thing. This may not be news to you, Mr Madden, but could you clarify whether we are all talking about the same thing? I appreciate that you were not there to hear the Prime Minister, but is it your understanding that what we are hearing today about social care is the same as the conversation we have been having about integrated care records, personal care records and so on?

Simon Madden: Forgive me, but I will take full advantage of the fact that I was not there and have not seen the statement that the Prime Minister made. A feature of our plans set out in the data strategy—not so much in terms of the Bill itself—is for each integrated care system to have a basic shared care record, so that throughout their whole health and care journey a patient or citizen does not have to do simple things like repeat test results or repeat their prescriptions, and so that their care journey between health and social care, with provisions for safeguarding and safeguarding information, is seamless.

[The Minister for Health (Edward Argar)]

I will ask a couple of questions, if I may, Mr McCabe, and then perhaps the hon. Member for Nottingham North can come back in if we have time. Moving away from what has been explored by colleagues so far on the extremely important protections around data sharing and data use, can you set out how the changes set out in the Bill relate to and will help you deliver the data strategy that you have in place?

Simon Madden: It is important to set out that these provisions alone, while they do much within the Bill, must be seen in the context of that wider data strategy. They support our ambitions, and the integration and collaboration that is described in the Bill will be a huge enabler for the ambitions set out in the strategy itself.

The provisions themselves focus to some extent on tidying things up and providing a degree of clarification. I mentioned the provisions for clarifying NHS Digital powers: currently, there is sometimes confusion around what data NHS Digital can share and in what circumstances it can share it. Sometimes, that leads to problems when data may need to be shared for very good reasons—for justifiable reasons—but NHS Digital is sometimes not convinced that it has the legal power to be able to share the data. This puts beyond doubt its ability to share data appropriately.

Another provision is on information standards. We are making a provision in the Bill to mandate standards for the storage and collection of data. That is important to ensure that data can flow between different IT systems and organisational boundaries in the health and care system. That will then help individual patients and improve health outcomes. We want to ensure that providers of health and care services purchase only technology that adheres to that set of standards, so that we have that interoperability, and those improved outcomes for patients, through that mandation of information standards.

We have also put in clauses around sharing anonymous health and care information, which help to essentially set a duty to share anonymous information when it is legally permitted to do so. One of the lessons that we have learned over the pandemic has been that, although it is perfectly permissible for data to be shared—it is legally permissible to do so—the shift from “can” to “should” has a great impact within the system.

Our invoking of the control of patient information regulations under existing legislation, to enable that sharing of data and to say, “You should share data in these circumstances,” has significantly helped the free flow of data safely and securely within the health system. That has had an impact on patient care. I think that the duty to share anonymous data will help to put on a more permanent footing some of those provisions that we have seen during the pandemic.