Regulatory Reform

Liz Kendall Excerpts

Tuesday 9th September 2014 Commons Chamber

[Liz Kendall (Leicester West) (Lab)]

The draft order makes important changes, so I welcome the fact that we can debate it properly on the Floor of the House. Hon. Members will forgive me if I say that the reason we are here today is to try to clear up yet another problem created by the Government’s NHS reorganisation and by the Health and Social Care Act 2012, which will go down in the annals of parliamentary history as one of the worst pieces of legislation this House has ever seen.

[Richard Fuller (Bedford) (Con)]

Will the hon. Lady give way?

[Liz Kendall]

No. I will make some progress. The hon. Gentleman may want to listen to what the Secretary of State for Health admitted in a letter to the chair of Healthwatch England on 11 August:

“The Health and Social Care Act, when it established CCGs, did not make provision for CCGs to form joint committees and other CCGs. PCTs previously had this provision in legislation and many formed joint committees to progress partnership work.

Health organisations, including CCGs, have expressed concerns about CCGs’ inability to form joint committees that are able to make binding decisions. This inability has brought many practical challenges in working together on issues that cut across boundaries, such as continuing healthcare, patient specific funding requests and service change”

across the country. I do not know whether the Minister wants to explain why the Health and Social Care Act removed that provision, as the Health Secretary admitted in the letter to Healthwatch England. Does he want to stand up? If not, I will make some progress.

The Minister was fortunate not to be on the Committee that looked at the Health and Social Care Bill twice, so he will not know that Opposition Members repeatedly warned during its passage that CCGs would often be too small to secure effective changes to services across wider areas. We have consistently made it clear that the only way we can get the big changes we need to be able to improve care for patients, including by specialising some services in regional centres and shifting others out of hospitals into the community and towards prevention, is by working in partnership across larger areas.

In principle, we support the need for collaboration and for CCGs to come together both with one another and with NHS England, particularly in wanting to commission good services across primary, secondary, community and specialist care. However, serious concerns have been raised about the draft order by local healthwatch organisations, Healthwatch England and some of the organisations that responded to the consultation, and my hon. Friends may want to raise real concerns. I will go through the concerns in some detail.

The Minister has talked about the fact that CCGs will remain autonomous, but many of them are concerned that that is not written into the draft order. Many CCGs feel that they are coming under increasing pressure from NHS England and some of its local offices. They are concerned that the draft order might take away their autonomy, forcing them into committees and decisions that they do not think are in the best interests of local people.

[Norman Lamb]

Will the hon. Lady give way?

[Liz Kendall]

If the Minister will give me two seconds, before I allow him to intervene I want to read out what NHS Clinical Commissioners—the independent collective voice of CCGs—said in its response to the consultation. It said that it

“would not want the Legislative Reform Order to become a ‘back door mechanism’ for reconfigurations.”

It asked for

“some assurance the change will continue to respect the decisions of CCGs as statutory bodies”,

and it insisted that

“CCGs must not be pushed into shared arrangements with NHS England if it is not in the interests or needs of their population”.

I have heard the Minister’s words about that, but the draft order has not been changed. Perhaps he would like to say more about it.

[Norman Lamb]

It is worth putting it on the record again that this does nothing to change the legal duties of a CCG and nothing to put any pressure on a CCG to enter any arrangement, either with other CCGs or with NHS England. If a CCG feels under pressure, it has every right to resist it, if it feels that to do so is in its interests or those of its local community. This is entirely voluntary. With regard to the legal duties, nothing changes.

[Liz Kendall]

If one of the 22 CCGs in the east midlands, part of which I represent, decided that it did not want to come together to commission one body to perform NHS continuing health care, for example, because it did not like it, could it say no?

[Norman Lamb]

Absolutely. There is nothing in the proposed amendment that could force any CCG to do anything. I suspect that in such circumstances common sense might prevail, as everyone recognises that on something such as NHS continuing health care, collaboration makes a lot of sense, as the shadow Minister indicated, but there is nothing to force anyone to do that.

[Liz Kendall]

Will the Minister also clarify that if NHS England wanted to form a joint committee with CCGs in the area, it could not force them into it?

[Norman Lamb]

This is a good exchange of views. Again, I can confirm that this is about a voluntary arrangement between a CCG or CCGs and NHS England. There is no compulsion at all.

[Liz Kendall]

I am very grateful to the Minister, who has perhaps been much clearer on that point than the Minister in the other place was.

The Minister has been clear that CCGs will not be forced into joint committees, but the second concern relates to majority voting in the committees. He will know that the Regulatory Reform Committee’s report cites a couple of CCGs that have been concerned that

“Joint committees would be able to take majority decisions on behalf of their constituent CCGs and NHS England, and so individual CCGs might find themselves accountable for implementing policies that their members did not consider to be in the best interests of the local population.”

To put it bluntly, if one or two CCGs on the committee disagree, they can be outvoted. Is that the case, and would it be possible for NHS England to have the casting vote on a committee?

[Norman Lamb]

It is helpful to respond straight away on these specific points. Again, I stress, as I think I made clear at the beginning, that it is up to the participating CCGs to determine what voting arrangements should be in place. If they felt that unanimity was required in order to protect the interests of the community they serve, they could make that a condition of entering the joint committee. It is entirely up to the participating CCGs to agree the rules.

[Liz Kendall]

I am grateful to the Minister for that helpful clarification.

The third concern has been raised by the Association of Directors of Adult Social Services and by the Local Government Association. They are concerned that any joint arrangements between CCGs, or between CCGs and NHS England, must be fully aligned with the geographical boundaries and strategies of local health and wellbeing boards. That is not only because we have to get health and social care working together, with council care services and the NHS, but because of accountability issues. Perhaps the Minister will say something about that later.

The last two concerns about the draft order are, for me, the greatest. The fourth is about how the joint committees will be held to account for the decisions they take and how patients, the public, local healthwatch, health and wellbeing boards and Members of this House can know what decisions are taken and hold the joint committees to account, because I understand that they will not be required to meet in public. I raise that concern because it has been raised in two letters from the chair of Healthwatch England to the Secretary of State. In her first letter on 16 July, she wrote:

“I am concerned about the impact this reform could have on the statutory role of local Healthwatch, the integrity of local accountability mechanisms, and meaningful public involvement in decisions about service redesign.”

She goes on:

“Whilst I recognise the important role CCG collaborations can play in the effective commissioning of health and social care and the transformation of traditional service models, I am sure you will agree that it is vital they are accompanied by strong accountability and engagement mechanisms. This is of particular importance given the scale of decisions being made by joint committees, and our anticipation that many more of these joint arrangements will be put in place. Without these safeguards in place, the public are far less likely to understand, or be accepting of, the changes that happen in their community.”

She recommends that the draft order be strengthened, and makes four proposals:

“Ensure CCGs acting in collaborative arrangements have in place adequate mechanisms meaningfully to engage the…community.”

She suggests a

“mandatory non-voting constitutional seat on Committees…for local Healthwatch”

and a

“duty on all lead or co-ordinating commissioners to have due regard to existing local agreed priorities…(including Joint Strategic Needs Assessments and Health and Wellbeing Plans).”

Finally, there should be

“a duty on all lead or co-ordinating commissioners to act within existing local accountability mechanisms”

including local health and wellbeing boards.

When the Secretary of State replied to Anna Bradley, he said he felt that mechanisms for public accountability were in place and that there would be no proposed strengthening of the order. In her reply to him on 20 August, Anna Bradley stated:

“I do not yet share your confidence that the new joint committee arrangements will address our concerns about transparency and accountability.”

The Government said throughout the Health and Social Care Act 2012 and all their reforms that there should be “No decision about me without me”, but the patient and public voice, local and national Healthwatch, has said it does not believe that that strong patient and public voice will be effective under the proposed order. The Minister needs to respond to that.

Finally—this is a particular concern of mine—one decision that joint committees can take concerns individual patient-specific funding requests for things such as NHS continuing health care. Any hon. Member whose constituent has applied for that kind of funding, or funding for a number of different areas, knows that it can be difficult to get to the bottom of those decisions. I had a particular problem with Greater East Midlands commissioning support unit, which manages continuing health care for the 22 CCGs in the east midlands. I have barely been able to get any information out of it about the bad decisions it has taken, and that is a real worry because I am concerned that the joint committees will repeat that. How will we know how those decisions are taken or hold them to account?

[Norman Lamb]

Perhaps the hon. Lady will give me details of that concern in her local area. It is important that we hold the different parts of the system to account, and she should be able to establish the position. I am happy to pursue that matter for her if she would like.

[Liz Kendall]

I am grateful to the Minister. I will forward him my concerns, just as I have done to my local CCGs and the chief executive of NHS England.

To conclude, Healthwatch raised these concerns in relation to a particular issue in Greater Manchester and the Healthier Together project, where 12 CCGS have grouped together to reconfigure services. The local healthwatch is concerned that under the draft order some of the problems it has seen with Healthier Together could be replicated. For example, I understand that governance meetings for Healthier Together started to take place in public only in March 2014. That was after major decisions—such as the model for service reconfiguration—were discussed in a closed session of that committee. The local healthwatch remains concerned about the lack of clarity on planned public involvement in Healthier Together in future, and, like the local healthwatch, Healthwatch England is concerned that the joint committees will not be accountable to patients and the public.

Hon. Members across the House will say that previous primary care trusts were sometimes not open and accountable, and I may have shared some of those concerns. This is a chance to put things right, but I am concerned that the draft order is not strong enough and I know other hon. Members will also raise that point.

--- Later in debate ---

[Norman Lamb]

I am grateful to all Members for their contributions to this debate. Regarding the shadow Minister’s contribution, I am pleased to hear that she is supportive, at least in principle, of this capacity to facilitate greater collaboration at a local level. As my right hon. Friend the Member for South Cambridgeshire (Mr Lansley) said, it is rather ironic that this is all about a reformed health system that has much better clinical and democratic legitimacy than the one we inherited from the Opposition. I notice that no one is out there waving banners demanding the return of the primary care trust. Ultimately, that body had no accountability to the local community—[Interruption.] No, it had no accountability. Its accountability was entirely upwards to the strategic health authority and to the national level.

[Liz Kendall]

That is completely over the top. Sometimes I have had great trouble getting any answers out of my CCG. Sometimes they have been good and sometimes they have been bad. I have also had great trouble getting anything out of the commissioning support unit. The Minister should not paint some super rosy picture of fantastic accountability and patient involvement, as there are still some real issues.