Health and Social Care Bill

Lord Beecham Excerpts

Tuesday 13th December 2011 Lords Chamber

[Baroness Finlay of Llandaff]

I thank the noble Baroness. I am most grateful. That message had not reached me, although I may be a little deaf. I shall simply confine my remarks to the amendment in this group about Monitor reporting annually to the Secretary of State on how it discharges its duty to promote integration. I do not think that the comments that I made previously are annulled. They are relevant because, unless we have integrated services—however much they may be seen to be in competition with each other over different aspects—and attempt to have a seamless provision of care, at the end of the day it will be the patients who fall through the gaps.

Earlier today, we heard a lot about Monitor being light touch, not having a series of minimum criteria and being able to use its discretion in how it grants licences of all sorts. But I have a concern that there has to be a means by which the way in which Monitor functions is transparent and available to public scrutiny. That is why I have suggested that an annual report to the Secretary of State would allow such scrutiny to occur, particularly as regards promoting integration.

[Lord Beecham]

My Lords, in the first instance, I shall speak to Amendments 267ZDA and 269 in the names of my noble friend Lady Thornton and myself. Amendment 267ZDA refers to the need for integration. Indeed, there are a series of amendments on integration, with which I will try to deal as a group. Amendment 267ZDA gives an interpretation of integration which would,

“mean that health-related and social care services are provided in such a manner that individuals will experience services … as being independent of organisational barriers”—

which I suppose is the very definition of integration—and which offers patients,

“the most appropriate involvement in their care choices … which reduce … the need for separate assessments; and … which result in a care plan for the individual which covers all aspects of their care”.

Surely that aspiration would be shared by the Committee and widely within both the health and social care professions. It would seem to make sense to incorporate it in the Bill. However, Amendment 269 simply makes clear that it is unnecessary for a provision in the Bill to repeat a definition of anti-competitive behaviour since that already exists in existing legislation, although that is not a hugely important point.

In relation to other amendments in terms of integration, we certainly support Amendment 268B, which would provide the duty for Monitor to report annually as to how it has promoted integration. Amendment 274B seeks a requirement to publish a statement if conflicts between its functions arise which are likely to have a significant impact on integration of services. Amendments 278 and 278B impose requirements on the national Commissioning Board and clinical commissioning groups to extend the right of patients to make choices in respect of the integration of healthcare and to ensure the integration of services where that is in the public interest. Again, the aim is to drive the integration agenda. Then, as an overarching provision, Monitor would have under Amendment 278C the power to investigate whether the Commissioning Board and clinical commissioning groups are complying with those requirements. All of these seem to be perfectly sensible amendments to provide the right structure and one which Monitor could effectively supervise.

Still on the integration agenda, there are later amendments—Amendments 286A, 287 and 287B—which impact on integration. Amendment 286A allows a modification of Monitor’s powers to encourage integration, if that is in the interest of patients, as it usually will be, presumably. The amendments provide for modifications to licence conditions—again in the interest of integrated healthcare—to ensure that standing conditions of licences include requirements relating to or encouraging the integration of healthcare services. All that makes a sensible package to drive an important part of the underlying concept of the Bill and the too-long-deferred integration of services.

The other amendments in this group essentially relate to the issues of collaboration or competition. Here, it is slightly unfortunate that the noble Baroness, Lady Finlay—I am sorry, the noble Baroness, Lady Hollins—did not move Amendment 265ZA, which stresses that Monitor must exercise its functions with a view to promoting collaboration and preventing competitive behaviour. I think that is the other side of the coin that the noble Baroness, Lady Murphy, put on the table previously when she was complaining, perhaps rightly, about anti-competitive practices within the NHS. A more positive way of looking at that agenda is to say that NHS bodies should collaborate on the provision of services, rather than take a negative stance. That is, I suppose, a necessary fallback position, but the prime objective must be to ensure collaboration within and across health service provision and—having regard to what has just been indicated in relation to integration—with social services as well. That is probably the right approach.

Other amendments in this group relating to competition raise some other issues. For example, under Amendment 265C, there is a suggestion that Monitor’s duty to prevent anti-competitive behaviour should be qualified by requiring it to aim to improve the quality of services and outcomes and the efficacy of provision and reduce inequalities. These are listed separately; I take it that all of them—rather than any alternative—are intended to be part of Monitor’s duty. If the Minister were minded to accept the thrust of that argument, he would do so in that sense.

Again, there is the provision under Amendment 266, tabled by my noble friend Lord Warner, for Monitor to conduct and publish a review of anti-competitive barriers and their impacts within a year of Royal Assent. There may well be some sense in that, particularly in regard to the way in which he moved the amendment. There are similar duties on Monitor to look at impact assessments under Amendment 275. Government Amendment 278D, to be moved by the Minister later, refers to non-disclosure of the “business interests” of parties. Does that extend to the interests of, say, trusts or voluntary sector providers? Does “business” relate to their activities or would it be confined to commercial providers? It seems to me that it would be invidious if only one part of the provider sector had the protection of confidentiality; it should be applicable to all or none. There is of course no issue with the amendment that requires individual circumstances not to be subject to disclosure.

I have a question about Amendment 278J, which requires the Competition Commission to review the “occurrence” rather than the “development” of competition in the provision of healthcare services. It is not clear to me what the significance of the word “occurrence” is. This is not a government amendment and I do not know whether those who originally tabled it want to clarify the position. I understand the amendment if it requires the Competition Commission to review the impact of competition in the provision of healthcare services, but I do not know how the occurrence of competition would be reviewed. It does not actually make much sense to use the word in this context.

The thrust of most of these amendments makes sense and sets out a sensible role for Monitor. In what would have been the next group but for the leapfrogging, we will come on to look at the issue of conflicts, and I am sure that there will be some further discussion about that. However, I hope that the Minister will feel able broadly to support the amendments in this group and recognise that they should contribute to meeting the shared objectives that have emerged from today’s debate.

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[Lord Beecham]

My Lords, it saddens me to say that 41 years ago I became opposition spokesman on the Newcastle City Council health committee. Within two years, we had the Seebohm report and a change of structure, leading to the creation of a social services committee that embraced both children’s and adult social care and replaced two committees—the old health committee and the old children’s committee. That seemed to me then and, frankly, it seems to me now to have been the right approach, because I do not think that you can sensibly divide children’s and adults’ social services. We do not have that system now. My personal view—which is not necessarily the view of the Opposition—is that it may be time to look again at that division. To an extent, the group of amendments that the noble Baroness has spoken to seeks to secure that objective.

As a consequence of the way in which amendments are ordered, the actual order of the amendments in this group is not quite logical. I suppose one should start with Amendment 269B, which would give Monitor functions relating to children’s social care services. Earlier, we touched on the possibility of Monitor having a role in respect of adult care services. Presumably, one would look at both services coming under their auspices, or neither, rather than keeping a division. Amendment 269B sets out the basic role for Monitor in this context. I note that proposed new subsection (2) would include within the functions,

“inspection of, and reporting on, the potential impact of children’s social care services in a particular area on the potential need for adult social care in that area”.

I am tempted to say “and vice versa”, because so often problems of parents and adults impinge on the needs of the children, and that would make perhaps a more rational disposition of functions.

The other two amendments in this group are, in effect, consequential, and sensibly would require local authorities to ensure a smooth transfer and, as Amendment 270AA puts it, “a careful handover” for children moving into adult social care. All of those seem to me very sensible suggestions. Nevertheless, it is probably better to look at the whole context of where social services fall within the remit of the Bill.

I imagine that there will have been some discussions between this department and the Department for Education, although the way in which Whitehall and, for that matter, local government tend to work, it is not necessarily the case that the relevant organisations come together to discuss these issues. It may be, therefore, that the Minister would wish to consult colleagues in other departments before giving a measured response. Perhaps this matter might be best brought back at Report, because it raises significant issues. As I have indicated, I have felt for some time that the division of responsibilities at the moment is not terribly sensible, with children’s social services being, arguably, at best a sort of fifth wheel on an education coach. At the very least, that matter ought to be re-examined. Perhaps it is too late in the day for it to be part of this Bill, but at some point, I think, this issue certainly needs to be referred to. I congratulate the noble Baroness and the noble Lord, Lord Northbourne, on having put down this amendment, which gives us an opportunity at least to ventilate concerns about this issue.

[Earl Howe]

My Lords, I understand and well appreciate the concern of the noble Baroness to ensure a high standard of children’s social care services and, in particular, a smooth transfer for young people moving from children’s to adult social care services. I would, of course, be very happy to speak to her and indeed the noble Lord, Lord Northbourne, about this issue away from the Committee, if they consider that to be an appropriate way forward.

On the specific amendments that we are looking at, I really do not think that Monitor is the right organisation to ensure that local authorities are carrying out their responsibilities on these issues, or to act as a regulator of children’s social care services. I am confident that existing arrangements for the regulation and inspection of children’s social care are sufficient and robust. Joint working is important and I hope that the noble Baroness will be reassured that the relevant inspectorates are already working together to improve the arrangements for joint inspection, which will address the very important issue of child to adult transition that she has raised.

Children’s social care is regulated and inspected by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills—Ofsted. Its inspection remit covers all local authority social services functions relating to children—that means services for children in need, safeguarding children, children in care and care leavers, as well as adoption and adoption support services. Local authority adoption and fostering functions must be inspected by Ofsted at a minimum of every three years. Ofsted can of course make unannounced inspections.

We are already working to improve these arrangements. Ofsted consulted over the summer on local authority child protection inspection arrangements that will be more child-centred and less bureaucratic. This new type of inspection will begin in May next year. In addition, all relevant inspectorates have agreed in principle to Professor Eileen Munro’s ideal model of joint inspection, which looks at the contribution all services make towards protecting children. Noble Lords may recall that Professor Munro last year conducted a thorough review of child protection arrangements for the Government. The Care Quality Commission is one of the inspectorates working with Ofsted to establish what those services will look like and when they will begin.

For children with special educational needs and disabilities, the recent Green Paper proposes a new education, health and care plan, covering support from birth to 25. The new plan will include a much clearer focus on the long-term outcomes for children and young people including independent living and employment. This should improve outcomes for young people with special educational needs and disabilities as they make the transition from school into employment or training.

I hope that the noble Baroness will appreciate that work in this area is ongoing. I sympathise with the tenor of all she said, but if she is content to wait for a discussion following these Committee proceedings, I hope that she will, in the mean time, withdraw the amendment.

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[Lord Nickson]

My Lords, I am afraid that I was not present at Second Reading but I am moved to support this amendment on a personal basis as my wife is in long-term social care in Scotland. It was a Southern Cross home that has now been taken over by Healthcare One. It would have been a comfort to me had I known that an organisation such as Monitor was supervising the very unhappy situation in Southern Cross, but I have to say that the communications from the local authority concerned in Scotland both with me and Southern Cross as it was in its death throes were absolutely first class in attempting to reassure and keep us in touch with what was happening. I am equally glad to say that all the information and everything coming now from Healthcare One is very reassuring and makes one full of confidence. It would have been reassuring had something like Monitor been in the background looking at this sort of situation well in advance. I support the amendment.

[Lord Beecham]

My Lords, I am happy to endorse all the amendments in this group, with the exception of Amendment 270. I particularly endorse Amendment 274ZZB tabled by my noble friend Lord Warner. He is 100 per cent right in this context. I have to say in confidence to the Committee that I do not always entirely agree with my noble friend, but he is exactly on the right lines today. The situation to which he referred clearly causes great concern. We heard from the noble Lord, Lord Nickson, that fortunately matters turned out reasonably well in his case and that of his wife, but who is to say that that would always be the case? I hope that the Minister will feel able to take on board the suggestion made by my noble friend Lord Warner. As he said, it is a probing amendment but it is one that I hope will lead to an outcome that will guarantee that problems of the kind generated and disclosed in the Southern Cross affair will not arise again so that those in residential care and their carers and families will have greater confidence in the system—a confidence that must have been shaken by events in recent months.

[Baroness Northover]

My Lords, this is the group of amendments that we almost came to earlier this afternoon. I hope that noble Lords who thought that their issues would be in that last group have now gathered them together, as they are back in this group. The amendments cover a number of issues, including patient and public involvement in Monitor’s work and the advice that it should take. The Government are clear that Monitor should involve patients and the public in its decisions and get appropriate clinical advice to enable it to carry out its functions. That is why in another place we introduced Clause 59(7), which creates a duty on patient and public involvement, and Clause 59(8), which creates a duty to obtain clinical advice. For Monitor to carry out effective patient involvement, it will almost certainly need help from people or organisations with expertise. Here I address in particular Amendment 267A, and Amendment 267B in the name of my noble friend Lord Clement-Jones and others.

However, setting this out in the Bill could constrain Monitor’s flexibility to decide how and when it sought such help. We do not want to create bureaucratic and potentially costly arrangements that would require Monitor to take such advice even when it was unnecessary. I hope that, over time, Monitor will develop expertise in how best to involve patients and the public in its decisions, reducing its dependence on professional advice in this area.

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[Baroness Williams of Crosby]

My Lords, I can address my Amendment 274ZB very quickly. I have to admit that it arises from a fog of misunderstanding. Frankly, I do not know what this subsection means. Under Clause 63(3), there can be a Monitor intervention in a situation where Sections 109 and 111, which address themselves to various aspects of foundation trusts, can be completely waived without any regard to the fact that they are looking at competition and pricing as regards profoundly sensitive subjects. I wish that I could say that I know what it means but I do not. Instead I have put down an amendment which simply proposes leaving out that subsection. If the Minister can enlighten me, perhaps I will put it back in again. At the moment, I simply do not know what I would be putting in or out. I apologise to the House for such absurd and detailed ignorance, to which I confess with great humility. But I hope that the Minister will be able to enlighten me because so far no one else has been able to do so.

[Lord Beecham]

My Lords, at Second Reading I made a jocular reference to Monitor, recalling that it is also the name of a carnivorous reptile. Having regard to the range of duties and responsibilities that the Bill seeks to impose on Monitor and the number of organisations with which it will have to work—ranging from the Competition Commission, the Office of Fair Trading, the national Commissioning Board, clinical commissioning groups to foundation trusts—carnivorous seems to be the wrong word. Omnivorous would appear to be a better term for the job which the Government seek to give to this unaccountable body.

We certainly accept the need for an organisation—Monitor is no doubt the appropriate one—to be responsible for the rigorous financial regulation of all providers to the National Health Service. We approve the concept of a licensing scheme. Where we part company from the Government is that we do not accept that the handing over of economic regulation of the whole of the health service to an unaccountable quango—it is unaccountable—is the right course of action. We think that oversight of the whole system should remain vested in the Secretary of State, as opposed to the detailed regulation of individual parts of that system. Therefore, we think that there are two distinct roles.

We are particularly reluctant to envisage the wider scope that the Bill seeks to confer on Monitor in the light of what its chairman, the noble Lord, Lord Owen, who is not now in his place, reminded us this morning. He was at pains to make it clear that there is an analogy between the health service and the utilities. He cited the railways, gas, water and electricity. The whole nation of course resounds with rejoicing from the users of the railways, and gas, electricity and water, who are thrilled with the services that they obtain and the prices that they have to pay. That, apparently, is the model which recommends itself to the chairman of Monitor.

Much has been said in some thoughtful, forceful and frankly brilliant expositions today by the noble Lords, Lord Clement-Jones and Lord Owen, the noble Baroness, Lady Meacher, and other noble Lords about the need to have a discrete function of dealing with the foundation trusts and the rest of Monitor’s responsibilities. Some of that is encompassed within amendments, such as Amendment 274ZB, that are before us this evening. That seems to be right: in particular, if the fears of the noble Lord, Lord Owen, about the position of foundation trusts in relation to European competition law are to be realised, then it is all the more necessary for a continuing role for Monitor in relation to foundation trusts. We certainly see this not merely as a transitional provision, but one for the longer term.

There is a job for Monitor to do, but there is a clear risk of conflict for the organisation in the terms that the Bill now provides. They may be so conflicted as to require the attentions of the noble Lord, Lord Alderdice, if they have to resolve these potential conflicts of interest, and that would not be in anybody’s interest. The Government really should think again about what they expect of Monitor and how it is to be rendered accountable, because there is clearly a widely shared view in the Committee and the House generally that the present prescription is simply not adequate for the purposes that the Government wish to see carried out.

[Earl Howe]

My Lords, Clause 63 sets out several provisions detailing how Monitor should deal with potential conflicts in relation to its general duties, and conflicts with regard to its functions. It would be helpful to cover each of these in turn. The noble Lord, Lord Davies of Stamford, will not be surprised to learn that I did not agree with much of what he said. We should not find it surprising, because it is not uncommon for bodies to have potential conflicts of interest. What matters is how they are dealt with, and the Bill sets out a robust framework for Monitor to operate effectively. In theory, there is a possibility that Monitor’s general duties, as set out in Clauses 59 and 62, might conflict—if, for example, the most economic, efficient and effective provision did not deliver fair access because that access was limited to certain days and times or locations. If a conflict did arise, we are clear that it would need to be resolved effectively.

In order to be a successful independent regulator, Monitor would need to be able to resolve any conflicts that may arise. It would be closest to these conflicts, and it would be best able to weigh up the potential risks and benefits. Balancing competing priorities is just a reality of life, and resolving such conflicts is a key function that all public bodies need to carry out. When considering how to resolve conflicts, we believe that Monitor should do so in the manner it considers best, in line with its overarching duty to protect and promote patients’ interests. I am not going to call patients “consumers”, but in response to the noble Lord, Lord Beecham, who has tempted me, it was Alan Milburn who said in 2004, when he was Secretary of State for Health:

“In the business world success today depends on being flexible enough to innovate and responsive enough to meet consumer demands. Public services have to apply the same lessons”.

I do not want to press that analogy too far, but we all know what we are talking about when we talk of patients as consumers who require the same kind of care in terms of centring priorities on their interests.

I want to reassure the Committee that when resolving any conflict, Monitor would have to take into account the need to maintain the safety of the people who use healthcare services. Indeed, Monitor would be able to take this and a range of other issues into account when resolving any conflict between its duties. However, Amendment 274ZA would go further. Its impact would be that, in resolving any conflicts between its general duties, Monitor would always act with a view to maximising safety—potentially at the expense of its other duties. This would be inappropriate: it could cut across the role of the CQC, not to mention potentially undermine the role of commissioners and the independence of clinicians. It could also undermine individual patient choice. I can elaborate on that if noble Lords would like me to.

Similarly, while I sympathise with the desire to ensure that providers do not face unnecessary burdens, there may be occasions where a conflict solution that imposes the least burden on providers is not the most effective. Amendment 274ZAA, in the name of the noble Baroness, Lady Finlay, would impose resolutions that prioritised the least burden on providers over all other considerations. I think that is a mistaken way to go. We believe that Monitor should be free to decide how best to resolve conflicts between its duties, and therefore I would encourage the noble Lords who tabled these amendments to withdraw them. Nevertheless, I will consider—as I indicated earlier—whether it would be appropriate for the Bill to rationalise within Clause 62 matters to which Monitor must have regard. This would help Monitor decide how to resolve any conflicts. Therefore, I hope noble Lords will appreciate that I am not impervious to their suggestions on this clause.

Let me turn now to potential conflicts between Monitor’s functions. For clarity, Monitor’s functions include those it has as sector regulator, which are: ensuring continued access to NHS services; setting and regulating prices; preventing anti-competitive behaviour and licensing providers of NHS services. In the short term, Monitor would also continue with specific oversight functions over foundation trusts. As with Monitor’s duties, we need to ensure that any conflict between these functions is resolved effectively. Clause 63(2) requires Monitor to make arrangements to avoid potential conflicts of interest between its specific functions as foundation trust regulator and its broader functions as sector regulator, which are provided for in this Bill. I think we are all clear that we need to have appropriate arrangements within Monitor to mitigate and manage potential conflicts of interest between its functions. The Bill does not prescribe exactly what arrangements Monitor should make for this; it gives Monitor flexibility to determine the most effective arrangements, but we would expect that this would necessarily involve some separation of decision-making. This may need to be underpinned by informational separation and other working arrangements at operational level.

[Lord Beecham]

Would such proposals by Monitor have to be approved by the Secretary of State or would it be left entirely to Monitor to decide without reference to the Secretary of State?

[Earl Howe]

My Lords, I think we will rely on Monitor to make its own arrangements and, as the Committee will appreciate, there are limits to how far it is sensible to prescribe in legislation what the arrangements should be. Nevertheless, picking up the noble Lord’s prompt, I am sympathetic to the concerns that have been raised in this general area and I undertake to discuss the matter further with Monitor.

To create legal certainty, Clause 63(3) clarifies Monitor’s arrangements to resolve conflicts further, so when preventing anti-competitive behaviour and setting and regulating prices, Monitor must ignore its transitional regulatory functions relating to foundation trusts. I hope that addresses Amendment 274ZB, tabled in the name of my noble friend Lady Williams. The meaning of this provision—