Health and Care Bill

Lord Clement-Jones Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

Moved by

[Lord Clement-Jones]

26: Schedule 2, page 136, line 23, at end insert—
“(ba) a director of digital transformation (see paragraph 7A), and”Member’s explanatory statement
This amendment, and the other to page 137, line 10, ensure that a director of digital transformation is appointed to the integrated care board.

[Lord Clement-Jones (LD)]

My Lords, in moving Amendment 26 I will also speak to Amendments 70, 73, 84, 134, 140 and 160. I start by warmly thanking the noble Lord, Lord Hunt of Kings Heath, for allowing me to speak to and lead on this set of amendments, to which his is the leading name. By the same token, I am delighted to see that he is now back in his place and able to advocate much more knowledgeably than I can the merits of the amendments in this group, which relate to the digital aspects of the NHS and the importance of digital transformation in the health service. They are designed to ensure that a digital transformation duty is set out, five-year plans are made, digital issues are high up on the agenda of the ICBs, and progress in this area is assessed and reported on.

I am sorry that I was not able to contribute at Second Reading on digital or data matters. However, as Chris Hopson, chief executive of NHS Providers, said in his Observer piece two Sundays ago,

“we need a national transformation programme that embeds modern technology, 21st century medicine, integrated care closer to home and much greater emphasis on prevention at the heart of our health and care system.”

There is huge potential for technology to help health and care professionals to communicate better and to enable people to access the care they need quickly and easily when it suits them. Quite apart from its impact on planning and administration, the technology, as the NHSE digital transformation website emphasises, goes all the way from ambulance iPads through fitness apps to digital home care technology. It ranges from websites and apps that make care and advice easy to access wherever you are to connected computer systems that give NHS staff the test results, history and evidence they need to make the best decisions for patients.

As the recent Wade-Gery report points out:

“Digital technology is transforming every industry including healthcare. Digital and data have been used to redesign services, raising citizen expectations about self-service, personalisation, and convenience, and increasing workforce productivity.”


It says that the NHS should be in the vanguard. It goes on to say:

“The pandemic has accelerated the shift to online and changed patient expectations and clinical willingness to adopt new ways of working.”


It also says that

“the vaccine programme, supported by so many brilliant volunteers and staff, was only possible through the use of advanced data analytics to drive the risk stratification, population segmentation and operational rollout.”

However, the review also says:

“The need is compelling. The NHS faces unprecedented demand and severe operational pressure as we emerge from the coronavirus pandemic, and we need new ways of working to address this. Now is the moment to put data, digital and technology at the heart of how we transform health services … Effective implementation will require a significant cultural shift away from the current siloed approach in the centre with conscious management to ensure intentions translate to reality … This system leadership should be responsible, in a partnership model between the centre and ICSs, for setting out the business and technology capability requirements of ICSs and the centre with the roadmaps to realise these, and for determining the appropriate high level technical standards, and blueprints for transformed care pathways.”


I have quoted the Wade-Gery review at length but the What Good Looks Like framework set out by NHSX last year is an important document too, designed as it is to be used to accelerate digital and data transformation. It specifies in success measure 1:

“Your ICS has a clear strategy for digital transformation and collaboration. Leaders across the ICS collectively own and drive the digital transformation journey, placing citizens and frontline perspectives at the centre. All leaders promote digitally enabled transformation to efficiently deliver safe, high quality care. Integrated Care Boards (ICBs) build digital and data expertise and accountability into their leadership and governance arrangements, and ensure delivery of the system-wide digital and data strategy.”


Wade-Gery recommends, inter alia, that we

“reorientate the focus of the centre to make digital integral to transforming care”.

In the light of all this, surely that must apply to ICBs as well.

We need to adopt the measures set out in the amendments in this group; namely, specifying in Amendment 26 that there should be a director of digital transformation for each ICB. ICBs need clear leadership to devise, develop and deliver the digital transformation that the NHS so badly needs, in line with all the above. There also needs to be a clear duty placed on ICBs to promote digital transformation. It must be included as part of their performance assessment—otherwise, none of this will happen—and in their annual report, as set out in Amendments 84, 134 and 140.

The resources for digital transformation need to be guaranteed. Amendment 160 is designed to ensure that capital expenditure budgets for digital transformation cannot be raided for other purposes and that digital transformation takes place as planned. It is clear from the Wade-Gery report that we should be doubling and lifting our NHS capital expenditure to 5% of total NHS expenditure, as recommended by the noble Lord, Lord Darzi, and the Institute for Public Policy Research back in June 2018. We should have done that by June 2022 to accord with his recommendations but we are still suffering from chronic underinvestment in digital technology. Indeed, what are the Government’s expenditure plans on NHS digital transformation? We should be ring-fencing the 5% as firmly as we can. As Wade-Gery says:

“NHSEI should therefore as a matter of urgency determine the levels of spend on IT across the wider system and seek to re-prioritise spend from within the wider NHSE budget to support accelerated digital transformation.”


It adds up to asking why these digital transformation aspirations have been put in place without willing the means.

--- Later in debate ---

I can say to my noble and learned friend that the importance of innovation is absolutely at the heart of the way in which the leaders of the ICBs are being chosen. They need to be people who look ahead, think strategically and value innovation, not just for itself but for the way in which it can transform care. Not all innovation is good; we must remember that. We should look only at innovation that has a positive effect on the care of patients and service users, but digitisation is undoubtedly one of those areas of innovation on which we must concentrate. I am confident that the leaders that are now lined up have that ambition very much in mind.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Earl, Lord Howe, for his very considered response. We have had a very rich debate, and I thank all the speakers. It has been a privilege to take part in what I think the noble Lord, Lord Bethell, called this “conversation”, because we have heard huge experience and authority, right across the board, about the way we might digitally transform the NHS.

In a sense, I think it is about means, not ends: we are trying to reach the same end but we disagree on how to get to that objective. At the core of that disagreement, and no doubt where we will have considerable debate later on in the Bill, is where the digital transformation aspect fits with data confidentiality and data sharing—all of which is necessary as part of digital transformation. I listened with enormous interest to what the noble Baroness, Lady Cumberlege, had to say on that. We have to get this equation right, and we have to build public trust. I say “build” public trust because I do not think it is completely there, post the GP data grab, as it has been called, of last year. We will come on to that on future occasions.

I feel somewhat that the noble Earl, despite his mellifluous approach to these matters, was rather throwing the book of arguments at the need for any form of amendment to the Bill. He always does so with great style, but I was not totally convinced on this occasion. He mentioned the principle that we should not be too prescriptive—in that case, why are we legislating? We are trying to legislate for what the priorities for the health service are in the current circumstances.

[Lord Hunt of Kings Heath (Lab)]

Does my noble friend not think there is an interesting contrast in saying that we must not be too prescriptive but, for NHS England, we are going to tell it what to do?

[Lord Clement-Jones (LD)]

Absolutely. I think the noble Lord, Lord Mawson, talked about a disconnect in another context, but that is probably the word I would use in these circumstances. The Government say that they are going to prioritise good local leadership but do not want to be too prescriptive about who is on the board of the ICB; that they want a clear strategy for digital transformation but do not want to make it a duty; and that a general level of competence and expertise is required but, again, “Oh, no, we don’t want any digital duty; that would be a little bit too prescriptive”.

We need a level of digital maturity, and a regular set of digital maturity assessments. I liked the sound of that, but faced with all the other duties that ICBs will have, which ones are they going to prioritise—the ones that are built into statute, or the ones that are part of a What Good Looks Like programme? The noble Earl quoted exactly the same document that I had access to. It is a splendid document but, without some form of underpinning by legislation, it is very difficult to see ICBs giving priority to that.

Of course, the other argument the noble Earl made was that if we had a separate duty, we would have to have a whole separate planning process. That is not how these things work. When you have a set of duties, you try to do it in a holistic fashion. You do not say that we need one plan for this duty and another for that duty. If you are going to use your resources sensibly and the capabilities within your organisation in the right way, you need to do it in a planned programme, right across the board.

On the whole issue that having a separate statutory duty risks misalignment, I thought that was where somebody had really been creative and woken up with the inspiration that this was the final killer blow in the arguments being made.

I listened with great interest when the noble Earl came to the question of funding. I have not done any calculations in my head, but I bet that £2.85 billion cap ex spending over three years does not equate to 5% of the NHS budget. As my noble friend intimated to me, when you look at the cost of some of the digital developments that have taken place over the last year or two, you will see that they are highly expensive, in both revenue and capital spending. The noble Earl talked about not ring-fencing We all know the problem of distinguishing between capital and revenue in public spending. That is not to say that that is necessarily right.

Finally, on the idea that we must not tie hands—what is legislation designed to do but to set out parameters?

I thought that the aspect of patient engagement was quite interesting, and I will need to re-read what the noble Earl had to say, because it may be that the current set of duties within the Bill provides for that. That may be a glimmer of hope. Indeed, the whole question about the duty to foster a culture of innovation is a kind of fig leaf. What board is going to treat that as an absolute duty that it needs to plan in and set particular duties to its team for? In a sense, it will be an optional extra if we are not careful.

To tell your Lordships the truth, I am not entirely convinced that we are going to be able to—in the words of the noble Baroness, Lady Cumberlege—“galvanise” the NHS. I thought that was a splendid word; it has a certain electricity about it. I do not think anything in the current Bill is going to deliver that galvanising impact, and we will be left with the disconnect that the noble Lord, Lord Mawson, talked about if we are not careful. But in the meantime, I beg leave to withdraw my amendment.

Amendment 26 withdrawn.

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[Lord Mawson (CB)]

My Lords, there is just one amendment in this debate. My other two come further on.

[Lord Clement-Jones (LD)]

My Lords, it is a huge pleasure to follow the noble Lord, Lord Mawson, and the noble Baroness, Lady Cumberlege. I have signed and strongly support all the amendments tabled by the noble Lord to ensure that integrated care boards are closely connected to local communities. We have riches yet to come: the noble Lord’s later amendments ensure that local solutions are prioritised, and that procurement is firmly rooted in local communities, but I will speak only to Amendment 41A.

I will give an example of when the noble Lord and I have been involved in another project, beyond the very important Bromley-by-Bow project that the noble Baroness, Lady Cumberlege, talked about; namely, the St Paul’s Way Transformation Project, the health, education, jobs and skills, and community campus which started in 2006. It is a great example of a response to the local challenges faced in an east London neighbourhood very close to Bromley-by-Bow, with failing health and education services and community relationships. This transformation project was focused on integration from day one and has been a huge success.

The noble Baroness, Lady Cumberlege, talked about the extraordinary track record of the noble Lord, Lord Mawson, as a social entrepreneur. He launched this project in partnership with the NHS and Tower Hamlets Council, and brought together the local authority, the local school, the GP network, the local housing association, Poplar Housing and Regeneration Community Association, and the diocese of London, to bring about transformational change in and around St Paul’s Way, a main street running through Poplar. Together they built a new secondary school, new primary school, new health centre, new mosque, new community centre and restaurant, new park, new street scene and 595 new homes. In parallel with this, the quality of the local leadership, and hence of local service provision, was transformed. The failing secondary school moved to Ofsted outstanding, the failed GP practice was replaced and its successor became CQC outstanding, and the independently monitored residents’ satisfaction level is currently 85%.

The St Paul’s Way project has been a great success story of local partnership with other local actors. For example, near neighbour Queen Mary University of London, the governing body of which I chair, with two campuses in Tower Hamlets, and which is intimately involved in the governance of St Paul’s Way Trust School, helped design and develop the school’s new science labs. They are in the health building, which the school uses and where we have taken space for our school of dentistry and DNA research.

Partners in the local schools, the GP practice and the housing association have played an important role in recent years, as they have shared their work and experience with communities in towns and cities across the north of England and now beyond. However, the project faces major challenges, as outdated NHS procurement systems are now in danger of undermining the good work that it has been doing for over a decade. Amid this project being put together, the PCT procured a primary healthcare provider with no London experience, let alone any local experience. After two years, it surrendered the contract because it had not understood that primary healthcare is very different and costs a lot more to deliver in Poplar than in affluent suburbs. This experience is an illustration of the importance of there being a neighbourhood voice in the making of decisions by the NHS, which, if they are got wrong, can damage the ability of local integrated partnerships to function and develop effectively at the neighbourhood level. There is an opportunity to address this in legislation.

In this light, how can the Government make integration a reality? This is a clear example of disconnects that will be replicated on other streets across the country, and a demonstration of what happens when the NHS procurement systems and policy do not take place and neighbourhood seriously. Health is about bringing people and communities together, not undermining them. The solutions are often local and not in large outdated systems and processes. This local approach must be embraced. It is at the 50,000-person neighbourhood level, not an enormous eight-borough ICS where integration aimed at innovation in prevention and recovery can be most effective. Neighbourhood must be understood, valued, and given leverage in the system and flexible use of budgets. It is at this level that the actual practical interventions can happen. It is here that schools, housing, job opportunities and community action can happen. Neighbourhoods can act with speed and agility.

The noble Baroness, Lady Cumberlege, suggested that the Ministers visit Bromley-by-Bow; equally, I suggest a visit to the St Paul’s Way transformation project. This amendment is as much about creating the right culture as the right representative structure. I hope that the Government accept this important amendment and the other amendments tabled by the noble Lord, Lord Mawson, on this subject.

[Baroness Andrews (Lab)]

My Lords, I too was very happy to sign this amendment. I will speak only to it. I congratulate the noble Baroness, Lady Cumberlege, on her very moving speech, and the noble Lord, Lord Mawson, on a very comprehensive speech. I will be brief. In view of the logic of everything that I have heard in debates on previous amendments this afternoon, this amendment is even more important than I thought. When the Committee is discussing how to make the ICBs as effective, powerful, salient and comprehensive as possible for the people that they are bound to serve, all these factors must be taken into consideration, but the power of place itself and the opportunity that the ICB creates to make this manifest, just as the noble Lord, Lord Mawson, has made manifest in Bow, is a unique and highly innovative opportunity, and one which may not come again.

What the noble Lord proposes is extremely modest. It is to give just one person from the partnership voting power. However, it is essential, and it is in the spirit and the logic of what place-based partnerships are intended to do. It means that on the ICB there will be people who can bring nearsight, access and reach into the community to the decisions of the ICBs. They can help to inform those decisions, to bring that knowledge and sensitivity of the lives that people live, what they are faced with, and their specific choices. They are one of the most optimistic partnerships and ideas that we have had in this House for some years.

I have spoken many times in this House on the power of place, what it can achieve and how it affects people’s lives, particularly their health. The noble Lord, Lord Clement-Jones, and I published quite a useful report on building better places when we were on the same committee a few years ago. We diagnosed the relationship between good design, good buildings, good environments and good health. Maybe it is time to get that back off the shelf.

What is also useful is that the partnership principle is alive and well and is generating good practice. There is increasing evidence that it works and that there is an increasing exchange of ideas and skills, and we are learning all the time about what is possible. There is nothing to be said against this.

Health and Care Bill

Lord Clement-Jones Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

This Bill proposes giving police those powers for any criminal investigation. It is absolutely wrong. I refer your Lordships to recent police cases of sexual assault, where we know they have also trawled victims’ telephones and computer data for any information they can find. Would these clauses allow similar fishing expeditions on their private and confidential medical data? Would they also apply to those who might be loosely associated with potential criminals? What about family members? Is it intended that their data be similarly trawled? Where does this end? This entire clause breaches an individual’s right to their medical data being kept confidential, other than in exceptional circumstances. It removes the power from the individual’s GP to make such a decision in exceptional circumstances. Worse, it enables commissioning staff and directors at an ICB to be required to hand over data to the police without the knowledge of the GP. It is totally unacceptable, and I entirely support this amendment.

[Lord Clement-Jones (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Hunt, to which I have added my name. He is not the only one to be concerned about this part of the Bill. My noble friends Lady Brinton and Lady Harris have delivered powerful support and a demonstration of why we have to be absolutely vigilant about access to, and sharing of, personal data, as they were so successfully on the police Bill. We must not repeat those experiences.

We will talk further and more comprehensively about data later in Committee. In the meantime, Amendment 145, as the noble Lord, Lord Hunt, explained, tries to illicit from Government their intention behind these disclosure powers for ICBs in new Section 14Z61 in Clause 20 with regard to information, whether personal data is involved and what the safeguards are. New Section 14Z61 sets out the provisions whereby

“An integrated care board may disclose information obtained by it”


in the exercise of its power. As the noble Lord, Lord Hunt, said, the catch-all condition in new Section 14Z61(1)(f) under which disclosure can be made

“for the purposes of facilitating the exercise of any of the integrated board’s functions”

seems remarkably open-ended. My noble friends have also pointed out the sheer width of paragraphs (e), (g) and (h), which go even further than those originally proposed in the police Bill and raise crucial questions for the Minister to answer.

Amendment 145 aims to ensure that an ICB cannot disclose information where this is patients’ personal data. In my last intervention on the group headed by Amendment 26, I, like the noble Lord, Lord Hunt, expressed my support for the NHS’s digital transformation programme. It is clear, as the noble Lord says, that there is great potential growth in new technologies using data such as AI and machine learning. However, there is an absolute imperative to have the right safeguards in place in relation to duties and data. This is very much aligned with transparency in public information and engagement, particularly in this context. Transparency, choice and consent are crucial, as the noble Lord, Lord Hunt, says.

We have all looked forward to the Goldacre review, but I am not convinced that it will range wide enough and cover the governance arrangements needed to preserve and enhance public trust in the sharing and use of health data, but we will see. I look forward to the debate towards the end of Committee when we discuss the wider aspects of the Bill, when we will produce further illustrations of the rather cavalier way in which the Government, the department and the NHS have treated personal data. Not least of these is what has been called the attempted GP data grab of last year. In the meantime, I hope the Minister will be able to give assurances that the powers in Section 14Z61 will be very limited.

[Baroness Finlay of Llandaff (CB)]

My Lords, from the perspective of a clinician, I support this amendment very strongly. If it is not adopted, I can see it being imperative, in any doctor’s consultation, to warn the patient that their data could be accessible and to be very careful about what is recorded in the clinical record. Very often, patients come to see a doctor, possibly at a very early stage of slightly disordered thinking or because they have undertaken a potentially high-risk activity, often in the sexual domain, and are worried that they may have contracted some condition or other. If you inhibit that ability to see a doctor early, you will further drive people into whatever condition is beginning to emerge, so it will not be known about until later. That applies particularly in mental health, where early intervention might prevent a condition from escalating.

I can see that, without an amendment such as the one proposed by the noble Lord, Lord Hunt of Kings Heath, every clinical consultation will have to be conducted with extreme caution, because of potential access to data.

Health and Care Bill

Lord Clement-Jones Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

Similarly, Amendment 248A in my name relates to high-protein bars. It is already the case under EU regulations still in force in the United Kingdom that a claim that a food is low in sugars may be made only where the product contains no more than 5 grams of sugars per 100 grams for solids, or 2.5 grams of sugars per 100 millilitres for liquids. A claim that a food is high in protein may be made only where at least 20% of the energy value of the food is provided by protein. There are small businesses—one has approached me—that have carefully crafted their product to meet these regulations to put them in the category of good and healthy food. That is the purpose of the regulations. Yet those businesses’ high-protein, low-sugar bars, which have been operating perfectly lawfully until now, will fail to meet the Government’s new regulations as they stand and their advertising will come to an end. I ask my noble friend what assurance he can give them that their legitimate business is not in effect to be criminalised by this Bill.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to a number of amendments in this important group focused on the Government’s proposals in Schedule 17. I will speak first to Amendments 247A, 249ZA, 249ZB, and so on, tabled by my noble friend Lady Walmsley and me. I am grateful for the support of the noble Lord, Lord Vaizey, too. These arise from the 15th report of the Delegated Powers and Regulatory Reform Committee of 16 December—already referred to by the noble Lord, Lord Moylan—supported by the 9th report of the Constitution Committee of 7 January and its clear recommendation about Schedule 17. Alongside the Secondary Legislation Scrutiny Committee, both committees have expressed strong views as to the increasingly skeletal nature of current government legislation and the increasing tendency not just to avoid detail in primary legislation but to avoid secondary legislation through issuing guidance which does not come before Parliament. The House debated this aspect on the first day of Committee, when noble Lords made clear their views about the skeletal nature of the Bill.

The DPRRC says in paragraph 20:

“The merits of restrictions on food and drink advertising are not within our remit; but the method of implementing the policy is.”


The committee goes on to say, in paragraph 23:

“Legislation, which of its nature affects the legal rights and liabilities of people, should not be capable of being altered by guidance.”


It concludes, in paragraph 26:

“We consider that the power to define a food or drink product that is ‘less healthy’ should be exercised solely through the making of regulations and not also through the making of guidance.”


Explicitly, under paragraph 1 of Schedule 17 amending the Communications Act 2003, new Section 321A(3)(c) provides that

“a food or drink product is ‘less healthy’ if … it falls within a description specified in regulations made by the Secretary of State, and … it is ‘less healthy’ in accordance with the relevant guidance”.

This crucial guidance is the nutrient profiling model, over which Parliament has exercised no scrutiny. It has been in place since 2011 and it can be changed by the Government without any parliamentary debate or input from affected businesses. The NPM is a tool used by Ofcom and the Committee of Advertising Practice to give food and drink products a score, which determines whether products can be advertised during children’s television currently and in non-broadcast media, including print, cinema, online and social media. At the very least, the definition of “less healthy”—giving rise as it does to such severe economic consequences for broadcasters, manufacturers and online media—should be contained in secondary legislation, which, as the DPRRC noted, should normally be introduced by the affirmative procedure. The Constitution Committee entirely endorsed the conclusions of the DPRRC.

Much has changed in the last 10 years. It would be a travesty if such important new provisions having such a major impact on broadcasters and manufacturers were based on out-of-date guidance and not subjected in any way to parliamentary scrutiny. I hope that the Government will accept that secondary legislation is the only legitimate way forward. I also hope that the Minister will not try to satisfy us with the consultation on the NPM that took place in 2018. That has still not seen the light of day and still would not be subject to parliamentary scrutiny, however onerous its new provisions were—for example, they could in future include free sugars in fruit juices and smoothies.

I have also tabled Amendments 248B and 253C. Many in the food industry are concerned that the new definition of food or drink SME introduced by paragraph 1 of Schedule 17 is based purely on employee numbers and could create a competitive disadvantage for UK businesses. As currently drafted, large multinational businesses could be exempt from the restrictions by reason of having less than 250 UK-based employees. This may inadvertently encourage companies to divert manufacturing abroad in order to qualify as an SME. To ensure a level playing field and to protect UK manufacturing, the amendment substitutes an SME definition that also includes a turnover threshold, currently of not more than £36 million, in line with the definition of medium-sized company in Section 465 the Companies Act 2006.

I have also signed and support amendments spoken to variously by the noble Lords, Lord Vaizey and Lord Moylan, which propose: provisions to allow further time for implementation of the provisions of Schedule 17; the sunset clause, which provides the necessary post-legislative scrutiny; explicit exemptions for brand advertising; and ensuring a level playing field for liability for the online platforms. I also support my noble friend Lady Walmsley’s consultation amendment, Amendment 259A.

Above all, I support the amendments spoken to by the noble Lord, Lord Vaizey, in spirit, designed to change the watershed. I sponsored the Private Member’s Bill that banned tobacco advertising 20 years ago, so I am not averse to strong action on advertising where necessary, where the evidence of harm is there. I absolutely support a national obesity strategy and believe we have a serious problem. Campaigns such as the Daily Mile and Eat Them to Defeat Them are the way forward, alongside the sugar tax, targeted interventions and nutrition education. However, I believe that Schedule 17, as it currently stands, is disproportionate in what it seeks to do.

As we have heard, the Government’s own impact assessment of March 2019 confirms the minimal impact on obesity of these measures, but they represent a demonstrable threat to broadcasters and to jobs and investment across the country. The impact assessment estimated that a pre-9 pm TV watershed ban would reduce children’s calorie intake by 1.7 calories a day—it is there in black and white. At the same time, it sets out that children’s exposure to such advertisements has declined by 70% since the rules were tightened in 2008. The latest BARB data suggests that the decline is accelerating far beyond that predicted previously.

So while exposure levels have declined significantly, childhood obesity levels have risen. It seems extraordinary to proceed with that policy as regards television, when the evidence is that it will do little to address obesity. Given that the most likely response of the industry will be to move to alternative in-store price promotions, this is not surprising. These are not subject to any government restrictions and this was what much of the food and drink sector told the strategy consultants OC&C it would do in the event of a pre-9 pm ban.

The Obesity Health Alliance states that

“evidence shows children who already have a weight classed as overweight or obese eat more in response to advertising.”

To put this in context, overweight and obese boys consume between 146 and 505 excess calories per day, while the figures are 157 to 291 for girls. Using the Government’s own numbers and methodology, overweight children would still lose just 2.63 calories per day. Such a small reduction will make no meaningful difference to health outcomes.

The impact assessment predicts a £171 million loss to broadcasters in advertising revenue, and it is here that I have my most fundamental concerns: the proposals will have a major detrimental impact on the funding of public service broadcasters and news media. That is the key problem. The Government, in their consultations, relied heavily on the idea that broadcasters would be able to mitigate most of the impact of the ban. I have explored that proposition carefully and it is not the case. Broadcasters cannot easily shift existing HFSS advertising from pre to post-9 pm slots. Non-HFSS advertisers will resist being moved out of post-9 pm airtime since this would reduce the impact of campaigns and make them relatively more expensive.

Broadcasters make the strong point that they do not have a queue of advertisers who currently have no TV space waiting patiently in the wings for slots to become available, nor brands with other products unable to get enough space. ITV has experienced four years of successive decline in TV advertising revenue, so the pre-9 pm ban will cause great damage to commercial public service broadcasting, which is already under pressure. In the circumstances, the compromise watershed suggestion put forward by the noble Lord, Lord Vaizey, and supported by the commercial public service broadcasters, to cover the viewing times for children seems eminently reasonable. Again, I hope the Government will reconsider.

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[Baroness Penn (Con)]

My noble friend was of course eagle-eared—I am mixing a metaphor—in that I did not address his point on that. I can tell him that, in 2016, the Government commissioned Public Health England to review the UK NPM algorithm that has been in place since 2004, to ensure that it aligns with dietary recommendations from the Scientific Advisory Committee on Nutrition, particularly for free sugars and fibre. I am afraid to say that my next line is that the outcome of that review will be published in due course.

[Lord Clement-Jones (LD)]

I want to follow up on that question. It was in 2018 that the consultation took place; is the Minister aware of that? We are now four years down the track and nothing has come out.

[Baroness Penn (Con)]

The date that I have for the commissioning of the work is 2016, which means that we are even further down the road on that piece of work. I am well aware of the time that has passed since then. I will undertake to see if I can provide any update beyond “in due course”, but I do not want to raise noble Lords’ hopes too far on that.

I hope that I have been able to provide noble Lords across the Chamber with assurances as to our plans and, therefore, that noble Lords will feel able not to press their amendments.

Health and Care Bill

Lord Clement-Jones Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I support the noble Lord, Lord Hunt, in his very reasonable request for the Minister to confirm that a review will take place.

I remember that some 20 years ago I was challenging the noble Lord, Lord Hunt, when he was Health Minister. The pledge for single-sex wards had been made by his predecessor, the noble Baroness, Lady Jay. It was a very slow road towards single-sex wards. Reading Annex B, it seems that, suddenly, we are in a completely different place—the goalposts have been moved. I do not quite understand who was consulted about Annex B and where we go from here, in the face of completely different wording in the main guidance from the annex itself. How can one reconcile the gender-friendly Annex B with a single-sex broad pledge in the main guidance? At the very least, there needs to be a review of what exactly the regime is that we want to support? I entirely agree with noble Lords who believe that anyone who raises this issue should not be labelled in one way or another.

I was particularly concerned to see that, effectively, if you classify yourself as non-binary you can choose to go into a ward of any sex. I do not know that I see that in any equalities legislation or human rights legislation. That seems to me to be the hardest point. I cannot understand quite why that has appeared.

No purpose is served by lurid examples of this, that and the other. As a lawyer, I know that hard cases make bad law but, at the very least, the conflict between the main guidance and Annex B must be resolved in one way or another, clearly, and probably with parliamentary approval. It must conform with equalities legislation, and I hope that the Minister pledges to take that forward.

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[Lord Davies of Brixton (Lab)]

My Lords—

[Lord Clement-Jones (LD)]

Sorry, my Lords—I assumed that my noble friend Lady Brinton was going to speak next.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

Thank you very much for reminding me. I am frightfully sorry. I invite the noble Baroness to make a speech now.

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[Lord Clement-Jones (LD)]

My Lords—

[Lord Davies of Brixton (Lab)]

My Lords, I want to speak to this group of amendments—

[Baroness Penn (Con)]

My Lords, it might be appropriate for the mover of one of the amendments in the group to speak.

[Lord Clement-Jones (LD)]

I was not being discourteous, but I thank the Minister. We just go along the line of amendments.

It is a pleasure to follow the noble Lord, Lord Hunt, and my noble friend Lady Brinton. Of course, we all recognise the benefits of using health data which arises in the course of treating patients in the NHS for research that will lead to new and improved treatments for disease and for the purposes of public health and health service planning. It has been a great benefit in helping to improve the treatment of Covid during the pandemic.

However, the track record of the department and the NHS in protecting patient data has not been a glorious one. We have heard a few examples. Let us go back to December 2019 and the discovery by Privacy International that the Department of Health and Social Care had agreed to give free access to NHS England health data to Amazon, allowing it to develop advertising and sell new products, applications, cloud-based services and/or distributed software.

My noble friend Lady Brinton talked about the successful case brought by openDemocracy and Foxglove against the department over a Covid-19 datastore deal with big data firm Palantir Technologies for failing to consider the impact of the deal on patients and the public by a consultation and performing a fresh data protection impact assessment on a new deal.

Then, of course, we had the situation last year, mentioned by the noble Lord, Lord Hunt, which has been described as

“the biggest data grab in the history of the health service”

of GP patient data. I pay tribute to the campaigners, including a group of Tower Hamlets GPs who refused to hand over patient data. Ministers first announced that implementation would be delayed until 1 September, and then in a letter to GPs in July last year put the whole scheme on hold, including data collection.

After this bungled approach—the noble Lord, Lord Hunt, used the word “debacle”, which is perhaps more apposite—more than 1 million people have now opted out of NHS data sharing. There is a deep worry here that the Government have learned nothing from the fate of the care.data project. The Government have now had to revise their approach, devise a simpler opt-out system and commit to the publication of a data impact assessment before data collection starts again. They have had to commit that access to GP data will be only via a trusted research environment and to a properly thought-through engagement and communications strategy.

Wade-Gery does acknowledge some of these concerns but if we are going to retain and build trust in the use of health data, we really need a clear governance framework. The Government must gain public trust through honesty, transparency and rigorous safeguards, and the individual must have the right to choose whether or not to share their data and understand how it will be used. I hope that NHSE—and, indeed, NHSD—will take on board the ICO’s recommendations in its audit report of NHS Test and Trace regarding governance and accountability and processor and third-party supplier relationship management, which looks at the policies and procedures that were introduced to keep data secure. There are some valuable lessons to be learned there.

As the noble Lord, Lord Hunt, has described, all health data must be held anonymously and accessed through an accredited data-access environment, designed to cover not only the promised trusted research environment but where data is used for planning purposes.

As to the detail of the amendments in this group, the noble Lord, Lord Hunt, has described them and the patient-centred intent behind them admirably. I will simply lay out the rationale for Amendment 305, tabled by me and supported, I am glad to say, by the noble Lord, Lord Hunt.

The data held by the NHS must be considered as a unique source of value held for national benefit. My noble friend Lady Brinton reinforced that. As it is, NHSE has refused to publish the list of projects and organisations to which it releases data. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator.

Having read speeches by Ministers trumpeting the UK’s

“new, bold approach to international data transfers”,

debated the UK approach to data sharing, particularly in the context of the passage of the Medicines and Medical Devices Bill and the Trade Bill, and seen the wording of new international trade agreements, such as that with Japan, I am not at all confident about the Government’s approach to this. Emphasis in coverage of the UK-Japan agreement was placed upon championing

“the free flow of data”.

Health data in particular amounts to a significant national asset or resource with the potential to function as a dynamo in relation to research, innovation and the continued growth of the life sciences, health and care sectors.

It seems that the Government recognise this, but by the same token, we need a guarantee that our health data will be used in an ethical manner, assigned its true value and used for the benefit of UK healthcare. Any proceeds from data collaborations that the Government agree to, integral to any “replacement” or “new” trade deals, should be ring-fenced for investment in the health and care system with a sovereign health fund. It should have governance mechanisms, such as those set out by the Ada Lovelace Institute in Exploring Legal Mechanisms for Data Stewardship last year. Those are the right foundations for health data governance and that is why I have tabled Amendment 305A.

I am not greatly reassured by the recent announcement by the DCMS of the creation of the International Data Transfer Expert Council; it looks rather as though data protection will be low on its list of priorities.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to speak to Amendment 307 in my name. I am very grateful to the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner, for adding their names to it. I am also grateful for the support already received from my noble friend Lady Brinton.

As I have argued in earlier debates on this Bill, it is a real problem that measures under Part 2 that aim to improve the sharing of information and data apply only to adults. This is despite the clear need to improve how children’s data is shared between health and social care and also between other agencies, including education and wider local services. The current absence of a single unique identifier makes identification of children who are in touch with multiple services very difficult and is a real barrier to joined-up support. My amendment seeks to address this glaring gap by requiring the Secretary of State to publish plans to use the NHS number as a single unique identifier for children.

Everyone in England and Wales is assigned a unique NHS number at birth or after the first time they interact with NHS services and that number is valid for life. Currently, the NHS number is used to store information on patients within healthcare records. However, we know that children and young people are frequently in contact with other agencies and services which are, more often than not, all using different identifiers. It is no wonder that too many children, including the most vulnerable, fall through the cracks, leading to the tragic and absolutely horrendous examples of extreme child cruelty and death that we have heard about recently.

The 2021 annual report on local children’s safeguarding practice reviews, previously known as serious case reviews, states:

“Much has been written about the continuing barriers to sharing information between safeguarding partners and we found that those issues remain and were highlighted in almost half of all reviews”—


I repeat: some 50% of the reviews.

Using the NHS number as a unique identifier would have the following benefits. It would reduce the risk of incorrect identification, improve multiagency working and improve care pathways. It would certainly ease the transition into adulthood, because the NHS number is for life. That NHS number stays with patients wherever they move within the country or between England and Wales. These are really important points.

A key finding of the House of Lords Public Services Committee report on child vulnerability was that

“in most local areas, services working with children are unable to match unique pupil identifiers on the national pupil database with children’s NHS numbers. This limits the ability of early intervention services to reach the most vulnerable children”.

Simon Kenny, the NHS England national clinical director for children and young people, added to these calls, stating that we “definitely” need a unique identifier, and that there needs to be

“a legal framework to enable it.”

This Bill provides just that opportunity.

Both the Children’s Commissioners—Anne Longfield, the previous Children’s Commissioner, and Dame Rachel de Souza—have supported the call for a single unique identifier number for children. I spoke with Anne Longfield about this only yesterday, and she described this approach as a force for good.

I finish by referring to a briefing from the Royal College of Paediatrics and Child Health, for which I am very grateful. It strongly supports a single unique identifier for children using the NHS number and says that it would be utterly transformative in how services address the needs of children and young people, particularly the most vulnerable.

--- Later in debate ---

These four modest amendments before us this evening are intended simply to plug a gap and loophole in the current Clause 87. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I rise very briefly to speak to this amendment. I have considerable doubts about it. In relation to patient data, it looks like a possible thin end of a wedge—in fact, it might even be the thick end of a wedge.

I take this opportunity to come back to the Minister to add a query about the data governance regime which he has described this evening and into which we dipped our toe with the last group of amendments. My noble friend anticipated me in discussing the White Paper, which, in turn, follows from the Data Saves Lives draft strategy. I hope we will have the opportunity to meet the Minister to discuss this further because it is a very complex area.

I want to add to that conversation the fact that we variously have IGARD, CAG and the National Data Guardian for Health and Care—as well as NHS Digital, which we hope will remain separate, but we will come to that shortly. We have all these different bodies, but we need a simple regime which helps us understand, for instance, whether the Minister will say, “Yes, it’s already happening”, to the noble Baroness, Lady McIntosh, or, “No, it’s not going to happen.” I could not tell you the answer to that question in my current state of knowledge about the ability to transfer information across the health service and internationally.

There is a balance to be struck between the established protections and new provisions which might expedite the development of access to new and improved treatments and technologies—but it must be done in a safe way. I hope that, between Committee and Report, the Minister will take the opportunity to ensure that we have all the information we need on plans to perform a so-called reset of or new direction for—or however he might like to describe it—the NHS’s use of our health data.

[Lord Kamall (Con)]

I am grateful to the noble Baroness, Lady McIntosh, for bringing this discussion before the Committee. I also thank the noble Lord, Lord Clement-Jones, for his contribution. The information collected by the future medicine information systems has the potential to be used appropriately to support relevant research and improve the way in which we monitor medicines across the UK. However, once again, referring to the previous debate, we must be quite clear about whose data that is and the right to opt out.

Exchanging information with both national and international institutions is already integral to the MHRA’s post-market surveillance activities. Appropriate sharing of data from medicine information systems and medicine registries could also help support wider research to directly inform regulatory decision-making and to further support patient safety. Once again, we must respect patients’ concerns and their right to opt out.

The clause already provides the necessary power, by inserting new subsection (7A)(2)(c), enabling regulations to be made about the use and disclosure of information held within medicine information systems.

In regard to the noble Baroness’s admirable desire to ensure international co-operation with other bodies for post-market surveillance, medicines information systems will be established to support the MHRA developing medicine registries. As the regulatory authority, it is the MHRA’s international collaboration, rather than the information centres’, that will be key to supporting post-market surveillance. To ensure that this can continue, there are already specific powers in the Medicines and Medical Devices Act which enable the Secretary of State, and by extension the MHRA, to appropriately share information with international partners. Once again, going back to a previous debate, it is about what is an appropriate sharing of data.

As with medicines information systems, we already have sufficient legal powers to appropriately share. On the second element of this amendment, the existing provisions in Section 19, specifically Section 19(2)(c), enable regulations to address the use and disclosure of information held within medical devices information systems, providing an ability to appropriately share information within a future system. There will need to be careful consideration and consultation on the sharing and use of information, as we have previously said. However, there is a beneficial impact that the system could have in research and post-market surveillance.

In response to the specific question, I recognise the desire to see a system set up under the regulation-making powers in place, but given the importance of this matter, it is crucial—I hope that the noble Baroness reflects on the previous debate—that we take the time to get this right. Any regulations made under Section 19 and the wider system will need to be informed by extensive engagement and consultation, working closely with our partners in the devolved Administrations, so that they can deliver their full potential for patients and clinicians across the UK, taking account of the very real concerns raised about patient data. Once again, we are trying to get that balance right: better healthcare and better research feeding into health, but at the same time patients having the right to opt out.

NHS Digital is well placed to deliver and operate the medical devices information system. Alongside key partners, such as the devolved Administrations, we will consider how we can establish this system in a controlled, staged manner that builds on the confidence and momentum behind this issue.

Finally, I will be moving Amendment 306AA in my name. The amendment is supported by the Scottish Government; it is simply a clarification in wording. It makes clear that any powers or duties conferred on Scottish Ministers in relation to their role in collecting information for medicines information systems can be treated in the same way as other NHS powers or duties in Scotland and be delegated to health boards in Scotland. It is my sincere intent not only to respect the devolved settlement but to create the best possible system, one that will work UK-wide. This amendment supports that aim. It is for that reason that I ask noble Lords to support this amendment and invite my noble friend to withdraw hers.

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Moved by

[Lord Clement-Jones]

227: Clause 88, page 83, line 6, leave out paragraph (b)
Member’s explanatory statement
The Government has announced that it will be using the powers in this Clause to merge NHS Digital and NHSX to form part of the new Transformation Directorate within NHSE. The Health and Social Care Information Centre is an executive non-departmental public body created by statute, also known as NHS Digital. This amendment which would prevent this happening to the Health and Social Care Information Centre, is designed to probe what safeguards are being built in to protect patient data.

[Lord Clement-Jones (LD)]

My Lords, it is regrettable that we are dealing with the very important Clauses 88 and 89 at this time of night—and obviously it is regrettable that the House has to have me as a poor substitute for the noble Lord, Lord Hunt.

These amendments relate to the abolition of the Health and Social Care Information Centre and the implications for the integrity of patient data. Clauses 88 and 89 give the Secretary of State powers through regulations to transfer a function from one relevant body to another, and the relevant bodies are defined as Health Education England, the Health and Social Care Information Centre, the Health Research Authority, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and NHS England. Other than NHS England, each of those bodies can be abolished under the clause as the result of a transfer of functions.

Amendment 227 to Clause 88 refers to the abolition of the Health and Social Care Information Centre. The Government have announced that they will be using the powers in that clause to merge NHS Digital to form part of the new transformation directorate within NHSE, and of course we have seen that NHSX has now been abolished and the relevant personnel have moved into the transformation directorate. The Health and Social Care Information Centre is an executive non-departmental public body created by statute, usually known by the term “NHS Digital”. This amendment, which would prevent that from happening to the HSCIC, is designed to ensure that NHS Digital continues as an entity to safeguard patient data. The merger of NHS Digital with NHSE risks losing the skills and experience that currently sit within NHS Digital. I have mentioned that NHSX has ceased to exist.

There are two risks for patients. One is that important knowledge and skills will be lost as talented people leave the organisation and time is devoted to the nuts and bolts of making the organisation function rather than on achieving its aims. The other is that the new merged organisation will just be too big and unwieldy to respond in an agile way to major challenges such as workforce planning and digital innovation. If NHSE leaders understand how important these challenges are then they will be able to prioritise them and make them part of the organisation’s core function.

I turn to the functions of the statutory safe havens in relation to Clause 89. Part 9 in Chapter 2 of the Health and Social Care Act 2012 lays out the functions and obligations of what is described as the statutory safe haven for patient data from across the health and social care system required for the production of national statistics and for commissioning, regulatory and research purposes, in addition to supporting patient care. Amendment 228 seeks to keep these statutory protections in place and ensure that NHS England does not take on that responsibility, because of a potential conflict of interest in its role.

The bottom line is that we need to retain NHS Digital’s statutory safe haven functions separate from NHS England. As the BMA has said, it is of the utmost importance to retain a quasi-autonomous body for the purposes of collecting, storing and distributing sensitive patient data—something that would be lost under a merger of NHSD and NHSE.

There is one other major advantage of keeping NHS Digital as the digital safe haven. The statutory safe haven’s legal name is the Health and Social Care Information Centre, so there is some obligation to social care. NHSD has always given some thought to integration, even when there was very little on the social care side to integrate with, and little interest from NHSE in doing that work itself. If it all gets merged into NHSE then how will the obligation to collect social care data continue to exist, since NHSE’s responsibility is to the NHS? If this transfer of functions takes place, who will be responsible for the national collection of social care data? Each bit of the social care world will see NHSE as a different entity from NHS Digital. What are the Government’s joining-up plans in respect of the future governance of this kind of data? I beg to move.

[Lord Patel (CB)]

My Lords, I shall speak to my Amendments 229 and 230. I thank the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Walmsley, for adding their names to them. The House of Lords Constitution Committee report on the Bill raises serious concerns about the range of Secretary of State powers in the Bill and concludes that these new powers, coupled with new powers for the Secretary of State of oversight, delegation and transfer of function,

“could alter the balance between the Government’s constitutional responsibility for the provision of health care and providers’ ability to function in a manner that can respond effectively to local needs. It also risks undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”

That is a claim that we must take seriously.

All the amendments in the group are important but, as has already been said, the hour is late and we need to rush so we cannot discuss them fully.

As the Bill is drafted, the Secretary of State would have the power to confer, abolish or change the function of a list of bodies that includes NHS England, Health Education England and the Human Fertilisation and Embryology Authority, to name but a few. One safeguard included in the Bill in relation to NHS England is that the Secretary of State would stop short of changes that would make NHS England redundant—but “redundant” is not defined. However, nothing on the face of the Bill sets out how high or low that bar would be set.

I recognise the logic of the Secretary of State having powers to confer responsibilities on arm’s-length bodies via secondary legislation. However, these new powers are far more extensive than that, and there is a real danger that their application could threaten the operational independence of key parts of the NHS. The Secretary of State should not have the power to abolish a body such as the Human Fertilisation and Embryology Authority, or to transfer the majority of its powers. Health Education England and the Health Research Authority were established through the Care Act 2014. If the Secretary of State believes that any of these bodies should be abolished or have functions removed, Parliament should have the opportunity to debate and understand why he desires to take that action, hence my amendment to reduce the scope of these powers and remove the Secretary of State’s powers.

--- Later in debate ---

This Bill is evolutionary, not revolutionary; it builds on many changes, and we believe that blocking the implementation of its key elements could do more harm—completely the opposite effect, I am sure, to those intended by noble Lords in this amendment. For these reasons, I ask the noble Lord to withdraw his amendment and other noble Lords not to press theirs on all these issues, but if further discussion is needed, I am happy to come back.

[Lord Clement-Jones (LD)]

My Lords, the Minister will probably get the “Just a Minute” prize for the evening. I will not try to reply to all the amendments, purely those tabled by the noble Lord, Lord Hunt, to which I have spoken. However, if ever I saw candidates for return on Report, they are those in this part of the Bill, in all respects that have been spoken to this evening. This is an extremely unsatisfactory part of the Bill, which gives far too much power to the Secretary of State.

However, I thank the Minister for his response. He looked rather baffled when I spoke to Amendments 227 and 228—perhaps because Dr Wade-Gery, who is its chair, unaccountably suggested that she did not really understand the dual function of NHS Digital. It is rather extraordinary. It is a dual function; neither I nor the noble Lord, Lord Hunt, have any quarrel with the transfer of digital capabilities to NHS England—it is the safe haven aspects, a really important second function of NHS Digital, that we object to. In moving all the data across to NHS England, it will no longer have the independence and objectivity of NHS Digital. It is a really backwards step in data governance.

We can have the digital transformation and data-analytical capabilities within NHS England, but I fear we will not have the same safeguarding of the actual data that we have at the moment. Even that is not satisfactory, as the Minister has heard this evening. That said, we will no doubt return to that in conversation and I beg leave to withdraw Amendment 227.

Amendment 227 withdrawn.

Health and Care Bill

Lord Clement-Jones Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I rise briefly to speak to Amendments 60 and 116, and I congratulate my noble friend Lady Brinton and the noble Lord, Lord Hunt, on their persistence in pressing these two items, because they are extremely important. I also thank the Minister for his engagement, both on the Floor of the House and in extensive correspondence. This has been really quite a complicated trail. I feel as though we have been in a maze where we have had to follow a bit of string, finding the way through into data governance in the NHS.

We have had to follow certain key principles, which we all share and which the Minister has expressed, including the protection of privacy, the right of opt-out, the value of health data and, above all, the imperative to retain public trust. Given the importance of the new ICB regime, I very much hope that the Minister will be able to comprehensively answer my noble friend’s questions.

But if we have taken the time to get to this point of really understanding—or beginning to understand—the kind of data governance that the ICBs will be subject to, it raises the question of what future guidance will be in place. I very much hope that the Minister can absolutely give us the assurance that there will be new, clear guidance, along the lines I hope he is going to express in response to my noble friend, as soon as possible, especially given the speeding up of the electronic patient record programme, as my noble friend Lady Brinton said. That is, of course, desirable, but it has to be done in a safe manner.

Health and Care Bill

Lord Clement-Jones Excerpts

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, the noble Lord, Lord Black, has put a convincing and comprehensive case for his amendments, which I have signed. He has knocked back nearly every argument made by the Government in this House and in correspondence against a level playing field being established for platform liability.

In his letter after Committee, the noble Lord, Lord Kamall, said:

“The scale and speed of advertising online, as well as the personalised nature of advertising and the lack of transparency in this system, makes it difficult for platforms to have control over what is placed on them.”


They have far more control than the broadcasters. They run their own digital advertising agencies. Facebook and Google have massive market share in their own individual digital markets.

It is extraordinary that the Government are buying these arguments from the social media platforms. They are on extremely thin ground. If the noble Lord, Lord Black of Brentwood, pushes these amendments to a vote, we will support him.

[Baroness Boycott (CB)]

My Lords, I support noble Lord, Lord Bethell, in his amendments demanding a timescale for the ban on such adverts. Advertising is the only business in the world that spends an enormous amount of money and then suggests that it does not work. It is a curious state of affairs that the advertising industry, as well as the food industry, which spends upwards of £0.5 billion a year on advertising HFSS food, says that advertising does not work, but the fact is that it does.

Research has shown that half of all food ads shown in September on ITV, Channel 4, Channel 5 and Sky One were for HFSS products. That number rose to nearly 60% between 6 pm and 9 pm. Ofcom research also suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated around family viewing time, between 6 pm and 9 pm. People in food policy have worked, as I have worked, for a very long time for this ban. We thoroughly applaud the Government for doing it. I also applaud my noble friend Lord Krebs for taking apart that protein bar, because it illustrates the way in which the food industry works. I have heard all too often, especially when I first came into this House—albeit not so much now—people saying, “All you need to do is exercise to get rid of the excess weight.” We know that that is a line put out by the industry. The industry is very clever. Yes, they have managed to sell the noble Lord, Lord Moylan, their protein bar, but they have not sold it properly. I hope that, with this ban, the Government will look at all the other sneaky ways in which food companies put things through, whether it is high-energy drinks or whatever, that are incredibly destructive to our health. As my noble friend Lord Krebs, said, we have an unenviable first position in the scale of obesity around the world, and we need to end it now.

Health and Care Bill

Lord Clement-Jones Excerpts

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 165 requires the Secretary of State to

“promote self care for minor ailments and prepare a national self care strategy”.

I hope that Ministers will just agree to this, without very much debate.

Self-care is defined as

“the actions individuals take for themselves, on behalf of and with others, to develop, protect, maintain and improve their health.”

It is an important but often overlooked part of the primary care pathway.

Given all the pressures that there are on the health service and that there are going to be over the next 30 to 40 years, surely we should do everything we can to encourage self-help for minor ailments. During Covid, the importance of self-care in reducing the burden on GPs and A&E became very self-evident. Since the outbreak started, people with minor ailments were not able to visit their GP in the traditional manner and learned, or at least practised, self-help behaviours instead. A survey carried out by PAGB, the consumer healthcare association, during the first national lockdown indicated that the pandemic has had an impact on people’s attitudes to self-care. Some 69% of people who would not have considered practising self-care prior to the pandemic said that they were more likely to do so after their experience of lockdown.

Interestingly, if the Government were prepared to run with this strategy, there are all sorts of behaviours that they could start to encourage. They could ensure that individuals understand or are willing to practise self-care; ensure a cultural shift among healthcare professionals toward well-being, enabling people to self-care; ensure that the system is supported to encourage self-care where appropriate, with pharmacies, of course, playing a big role in that; encourage the use of digital technology; enhance the national curriculum on self-care for schoolchildren; and introduce self-care modules in healthcare professionals’ training curriculum.

I come back to the point that the Minister and noble Lords know that the health service is currently under huge pressure, not just because of the backlog. Already before the pandemic, the health service was really struggling to meet its targets. The demographics, the growing older population and all these factors suggest that the NHS will struggle hugely to cope with the pressure on it over the next 20, 30 and 40 years. Surely some part of the strategy to deal with this is to encourage all of us not just to look after our own health more but, where we can, to self-help. I would have thought that message would have been accepted with alacrity on the Government Front Bench. I hope the Minister will be able to say that this is very much taken to heart and that the Government really will start to drive the new strategy. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I rise briefly to support Amendment 165, in the name of the noble Lord, Lord Hunt, and thank him for putting it forward. Self-care has an important role to play in supporting people to manage their own health needs, and also in alleviating an unsustainable demand on GP and A&E services. As the noble Lord described, prior to the coronavirus pandemic there were some 18 million GP appointments and 3.7 million visits to A&E every year for conditions which people could have looked after themselves or sought advice from a pharmacist. It is estimated that this was costing the NHS in the region of £1.5 billion a year.

During the coronavirus, again as the noble Lord described, surveys have shown a much greater willingness among members of the public to self-care for these self-treatable conditions. But it is vital that appropriate policies are put in place to ensure that, as we emerge from the pandemic, people who can self-care continue to do so. It is evident now that self-care can help address many of the challenges we face in the NHS today, but to do so we need to address some of the system barriers to self-care, as described in this amendment, and unlock the important behavioural shifts that enabled people to self-care during the pandemic.

In particular, I will highlight how the NHS can make much better use of digital technologies and community pharmacists to enable people to self-care. We need to make better use of the technologies that the NHS has embraced over the course of the pandemic, such as the Covid-19 symptom checker on the NHS website. The digital triaging technology should be used to support the expansion of the community pharmacist consultation service to enable people to follow an algorithm online to get a referral for a consultation with a local pharmacist. It is critical, if we are to optimise the role of pharmacists—I am a big supporter of community pharmacists—that we give them the digital tools and information they need to support people. At present, a pharmacist cannot routinely record the advice or medication they give people, despite receiving training. The NHS must address the question of interoperability in IT systems, so that pharmacists can have access to read and to input into people’s medical records and enable pharmacists to be a core part of an individual’s primary healthcare team.

6.15 pm

The pandemic has highlighted how quickly the NHS and patients can adopt technological and digital changes. Realising the Potential: Developing a Blueprint for a Self Care Strategy for England, a document launched last October, is an excellent blueprint for this. A whole range of organisations, including NHS clinical commissioners, the RCN, pharmacy organisations, the Self Care Forum and, of course, the PAGB, have worked together to develop this blueprint for a comprehensive national self-care strategy to support the introduction of self-care policies throughout the NHS in England. It contains policy proposals and case studies, in particular in relation to digital technologies, which set out how the NHS can fully embed self-care and pharmacy into primary care.

I hope the Minister today will outline how the Government are ensuring that the NHS can adopt these proposals, which learn from the pandemic, and will expand them to support individuals to enable self-care.

[Baroness Wheeler (Lab)]

My Lords, we had a good debate in Committee on the issue of self-care and the management of health conditions, particularly on its importance as a key part of the primary care pathway. This was underlined in diabetes care and, as I also emphasised, in the care and treatment of people with rare diseases, most of whom are living with lifelong conditions. As vice-chair of the Specialised Healthcare Alliance of charities supporting this key group of patients, I know that they often do not feel sufficiently supported in terms of care and support and health and system information, and with physical and daily living.

As the two noble Lords have stressed, the Health Foundation’s research on the effective self-management by patients has shown a significant reduction in the need for emergency admissions to hospital and in A&E attendances, and fewer GP appointments. In this context, Amendment 165 makes a great deal of sense. If patients with, for example, rare diseases receive appropriate support to manage their less intensive care needs, then promoting self-care has the potential to help them prevent their conditions from deteriorating, to improve their lives and to reduce demands on the NHS, as the noble Lords have stressed.

We therefore strongly support the need for the development of a national self-care strategy, starting with awareness raising among primary and secondary children on how to self-care, and with appropriate staff and management training of healthcare professionals. Improved technologies, as underlined by the noble Lord, Lord Clement-Jones, especially those developed during the pandemic, will have a key role in broadening access to effective self-care and ensuring the better support from primary and community pharmacists that we all want to see. I hope the Minister will respond positively to this amendment.

Health and Care Bill

Lord Clement-Jones Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, briefly, I support the remarks of the noble Lord, Lord Hunt, regarding Motions F and F1. He, assisted by my noble friend Lady Brinton and I, has pursued the question of the future of data governance in the NHS with great determination and persistence. I pay tribute to him and to medConfidential in that respect. I know that the Minister, the noble Lord, Lord Kamall, is equally determined to make sure that data governance in the new structures is designed to secure public trust. I very much hope that he will give the assurances sought by the noble Lord, Lord Hunt.

The key problem we identified early on was the conflict of interest referred to by the noble Lord, Lord Hunt, with NHS England in effect marking its own homework, and those who have data governance responsibility reporting directly to senior managers within the digital transformation directorate. I hope that the assurances to be given by the Minister will set out a clear set of governance duties on transparency of oversight, particularly where NHS England is exercising its own statutory powers internally. I look forward to what the Minister has to say.

[Baroness Walmsley (LD)]

My Lords, I plan to address matters in the group that have not been addressed by my noble friends. They are workforce planning, reconfiguration and organ tourism.

First, on Motion K, on organ tourism, I congratulate the noble Lord, Lord Hunt of Kings Heath, my noble friend Lady Northover and others on their success in convincing the Government that something must be done about this dreadful trade. I also thank the Minister for listening.

On Motions B and B1, we support the noble Baroness, Lady Cumberlege, and will be right behind her when she leads us into the electronic Content Lobby on her Motion B1. It was made clear during earlier stages of the Bill that Peers across the House believe proper planning for training and providing a safe health and care workforce is essential. We also hear that almost 90% of trust leaders do not think the NHS has robust plans in place to deal with the workforce shortage. We are asking a lot of the NHS and care workforce at the moment; they are badly understaffed but, at the same time, are being asked to reduce the backlog of treatments that built up during the pandemic, while Covid-19 is still rampant in the population and thousands of patients are still in hospital with that as the primary cause.

In these circumstances, we have a desperate need for a reliable system to plan for and provide the staff we need, but nobody has confidence in the current system—if you can call it that. However, it seems that the Treasury has stuck its oar in. I find that rather odd, since neither the Bill as drafted nor the various amendments of the noble Baroness, Lady Cumberlege, have mandated the Treasury to fund the numbers of workers at every level who may be identified as necessary to deliver the health and care we need.

I accept that, when the yawning gap becomes clear between the numbers we have and the numbers we need for safe care, there would indeed be pressure on the Treasury to provide the money. However, it has been pointed out many times—including this afternoon, by the noble Baroness, Lady Cumberlege—that the NHS spends £6.2 billion every year on expensive agency staff, whose roles could be provided much more cheaply, and with better continuity for patients, by permanent employed staff. Considerable savings could be made to offset this.

It is significant that the Government are resisting the noble Baroness’s amendment. They know very well that the reviews she recommends would shine a light on the fact that the NHS and care systems do not know what they have got or need, and are badly short-staffed. The Government would be pressured to do something about it.

Since the Ockenden report, something else which is rather crazy has emerged. The Government have agreed to comply with all Ockenden’s recommendations, including on planning for and providing adequate staff in obstetrics and gynaecology. Hopefully, all maternity units will be safer in future, but it would be ridiculous to have a maternity unit adequately staffed in the same hospital as a cancer or stroke unit that was not. In voting for the amendment from the noble Baroness, Lady Cumberlege, we will attempt to save the Government from making such a dreadful and unnecessary mistake. We will be voting for safe health and care services in the future, in the interests of patients and staff alike.

On Motions C and C1, we support the amendment in the name of the noble Baroness, Lady Thornton, which she will no doubt speak to in a moment. In voting for this amendment, we will again be attempting to save the Secretary of State for Health and Care from getting himself into an awful pickle. There may be far too much temptation for a Secretary of State to use the powers in the Bill as it stands to meddle in matters far better decided by the professionals and local authorities on the ground. A clear process, which is rooted in local accountability, already exists for reviewing proposals for NHS reconfiguration—there is no call for the Secretary of State to be further involved except now and then if an election is in the offing. The Government have emphasised accountability throughout this Bill, but that accountability must be at the right level. Many of the decisions that might be made under the power that we are attempting to curtail today should be accountable to local people through those operating the local integrated care systems. By interfering, the Secretary of State may well corrode the very accountability that the Government say they want. We will be voting with the noble Baroness, Lady Thornton.