NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Lord Collins of Highbury Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Lord Collins of Highbury]

That this House regrets that the NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012 (SI 2012/3094) fail to guarantee sufficient representation of local patient interests and, despite Government assurances given to the House at Committee stage of the Health and Social Care Bill on 15 December 2011, have through restrictions on campaigning deliberately tied the hands of Local Healthwatch bodies from giving public voice to those patient interests.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee.

[Lord Collins of Highbury]

My Lords, this is my second Motion of Regret in relation to the regulations on Healthwatch, the body—or perhaps I should say the brand—created in the Health and Social Care Act.

A central theme in the Act is that local people should be able to influence improvements to local health and social care. To succeed, Healthwatch needs the trust and confidence of the public. To win that trust and to become an effective organisation for patients, it must have independence from the providers, commissioners and regulators of health services, because a patient’s complaint may involve the need to challenge any or all three of those interests. It must also have genuine grass-roots representation from groups and individuals, no top-down organisation, and work and comments derived from sound local information.

In our previous debate on Healthwatch England, I welcomed the appointment of Anna Bradley as its new chair. She has the right skills and experience, and I do not doubt her commitment to try to make the organisation work. However, the fact remains that it is a sub-committee of the CQC and it does not have anywhere near the same levers to pull or incentives to use to drive changes in the system. It simply does not have the power and authority of the three big players in the NHS: the Commissioning Board, the Care Quality Commission and Monitor.

In the regulations that we are considering tonight, that problem is mirrored locally. Local Healthwatch is potentially a powerful mechanism, but it is structurally weak because it relies on local authorities for funding, and it is local authorities that provide the social care that it is meant to monitor.

However, my real concern tonight is that, when local Healthwatch eventually opens its doors, it will be bound and gagged by these regulations. This is contrary to the comments and commitment given by the noble Baroness, Lady Northover, to my noble friend Lord Warner on the sixth day of Report of the Health and Social Care Bill, when she made the following statement:

“The noble Lord, Lord Warner, asked again about campaigning. I said in Committee that HealthWatch England and local healthwatch can campaign. I followed that up with a letter confirming that, which I hope he got—but perhaps he did not—and I reiterate it here. I hope that that is of help to the noble Lord”.—[Official Report, 8/3/12; col. 1958.]

No one would condone a local Healthwatch campaigning against or for a political party but these regulations go well beyond that. They effectively ban local Healthwatch from leading campaigns to change poor services and amend legislation. As Healthwatch England has said in its briefing today, its independence is crucial to ensure that patients and NHS users can share their views and experience and to ensure that those will be acted on appropriately without undue influence.

The noble Earl the Minister will no doubt tell us tonight that the words used in the regulations do not have the meaning that I am placing on them—that in Section 36(2) local Healthwatch has the necessary freedom to undertake campaigning and policy work related to its core activities. However, I am not alone in expressing concern at the actual wording of the regulations. Healthwatch England’s briefing states that paragraphs (a) and (b) of Section 36(1):

“should have been worded more appropriately to avoid any potential confusion around the active role local Healthwatch will have in undertaking policy and campaigning work on behalf of consumers of health and social care services in their areas”.

It goes on to say:

“Healthwatch England would welcome that these concerns be resolved in future statutory instruments. In the interim, Healthwatch England proposes that it works with the Department of Health and the Local Government Association to produce guidance for local Healthwatch and local authorities to assist them to correctly interpret the regulations”.

I say: for once, why can we not have regulations that mean what they say?

Coming just before the publication of the Francis report on the disasters at Mid Staffordshire hospital, in moving these regulations the Government are putting at risk the one prerequisite that Healthwatch needs to do its job, which is the trust of patients and the public. It will undermine the effectiveness of local Healthwatch as the people’s watchdog in health and social care.

--- Later in debate ---

[Earl Howe]

The noble Lord’s first point is a fair one. I was coming on to address it as it is quite clear that at least part of the wording of these regulations has seemed complicated and unfathomable to many noble Lords. I have to acknowledge that that is the case.

To address the noble Lord’s other point, we are talking about the difference between being a genuine voice for local people and simply being an adjunct of a political party. Local Healthwatch organisations should not be swayed or influenced by the activities of any political party. They must act independently. The only influence that matters to them is that of local patients and the public in seeking ways to improve the quality of care for people.

In that sense, the regulations tie down a local Healthwatch no more and no less than any other social enterprise. The wording of the regulations has been constructed in a very similar manner to the wording applied to other social enterprises in regulations. Regulations 36(1) and (2), against which so many missiles have been hurled this evening, are designed simply to reflect the standard community benefit test.

[Lord Collins of Highbury]

My Lords, if I have read Healthwatch England’s briefing correctly, it says that social enterprises are being treated differently in this statutory instrument, particularly as regards the 50% that could be retained. Perhaps the Minister could clarify that.

[Earl Howe]

I am surprised to hear that. My understanding is that that is not so and that local Healthwatch, as a social enterprise, is being treated on the same footing. My advice is as any other, but if I am wrong about that, naturally I will write to apologise to the noble Lord and copy all speakers into my letter. As I have said, I completely understand that the wording of parts of these regulations appears complicated. In answer to the noble Lord, Lord Collins, I should say that for that reason I can commit to my officials working with Healthwatch England and the Local Government Association to publish clarificatory material on this.

Having said that, I was slightly surprised that the noble Lord, Lord Warner, cast aspersions on Regulation 41. He asked how small organisations could understand the requirements set out in it. The matters set out in Regulation 41 are matters to be included in local authority contracts with local Healthwatch. In fact, these are based largely on the existing regulations on LINks. I have to say that it has not been previously suggested to us that these have been difficult to understand or are disproportionate.

The noble Lord, Lord Collins, asked me who was consulted before the draft regulations were published and whether Healthwatch England was consulted. We consulted a range of stakeholders, including LINks, local authorities, voluntary and community organisations, NALM, Social Enterprise UK, the Charity Commission and providers on the issues relating to the drafting of the local Healthwatch regulations. That included the Healthwatch England interim team.

--- Later in debate ---

[Earl Howe]

They are two different things, and I say to the noble Baroness that we are dealing here with a relationship that she may characterise as overly arm’s length. It is in the direct interests of a local authority to make sure that it has a good, thriving relationship with its local Healthwatch but that it is not tarnished by party political considerations that are irrelevant to the concerns of local people. The very fact that a local Healthwatch comes out with a political statement is not to damn its activity. What makes it vulnerable is if that local Healthwatch cannot show that it is truly representing local people as it speaks out. That is a matter of evidence and of fact.

The independent arbitration that the noble Baroness talks about should not be necessary. The matter could, in the final analysis, be decided in a court, although one hopes that that would never happen. However, in the end, the local authority has to exercise its judgment, and in doing so has to act reasonably and in good faith as a public authority. If it does not, it is acting unlawfully. I hope that that is of help to the noble Baroness.

I was asked a number of other questions by my noble friends Lady Jolly and Lady Cumberlege. My noble friend Lady Cumberlege asked me whether, if there were a controversial policy, say, to close an A&E department, a local Healthwatch would be permitted to provide evidence about patient experiences to campaigners on that issue. Yes. In that scenario, we would envisage a local Healthwatch taking those very views and evidence of good standards of service directly to the commissioners or decision-makers. A local Healthwatch can also make a referral to the health scrutiny function of the local authority, which would be required to keep a local Healthwatch informed of any action taken. If a local Healthwatch thought, as part of its Section 221 activities—patients’ public involvement activities—that local people need to know what their community’s experience of its A&E is, we would certainly expect the local Healthwatch to be transparent and make that evidence known.

My noble friend asked whether people who had been active in a national campaign could be decision-makers in local Healthwatch organisations. The regulations do not set out membership of a local Healthwatch, so it will be down to the local Healthwatch to decide whether such people can add value to the outcomes that it wishes to achieve for its local people. Local Healthwatch has to be different; it has to build up its reputation and credibility in order to secure the public’s confidence that it can have a mature relationship with local authorities, which was the point that I made just now. The regulations seek to ensure that local Healthwatch does not carry out the relevant political activities as its only or main activity. That would not meet the community benefit test.

Would local Healthwatch be subject to purdah? No, it would not. I repeat that it has been set up to be the local consumer champion, and as such its role becomes very important in getting people’s serious concerns listened to and acted upon.

My noble friend Lady Jolly asked me several questions. She expressed the fear that the regulations would render local Healthwatch a mere proxy voice. I emphasise to her in the strongest terms that that is not so. As I have explained, we have sought through the regulations to be as inclusive as possible of people who may wish to give up their time to do what they feel passionately about doing. To be frank, LINks, which is the arrangement that we have at the moment, have all too often been associated with white, middle-class men, and we need local Healthwatch to embrace diversity much better.

Could the manager of a care home sit on its local Healthwatch? Yes, he or she could get involved in their local Healthwatch, but it would be good practice for the Healthwatch in its governance arrangements to have procedures for a code of conduct, and, as set out in Regulation 40, it would be required to have and publish procedures before making any relevant decisions. That is essentially about transparency.

Could a local profit-making provider of primary care be a local Healthwatch contractor, and could its manager sit on the local Healthwatch decision-making group? Again, it would be up to the local Healthwatch whom it wishes to contract with for their expertise to help it deliver its statutory activities.

On the role of local Healthwatch to provide information and signpost people to choices, the decision rests with that individual seeking out the options available to them. We would expect local authorities’ arrangements with local Healthwatch to be robust so that it acts effectively. The local authority will be under a duty to seek to ensure that the arrangements are operating effectively and provide value for money.

My noble friend suggested that the department’s interpretation of lay involvement boils down simply to the foot soldier role. I do not agree. It would be a wrong picture to paint to the public about how a local Healthwatch discharged its obligations. The obligations are quite clear. Engagement, consultation and participation are all words that can be used to describe different types of involvement activity. Referring to “involvement” therefore provides for flexibility, as I indicated earlier.

Could the decisions listed in Regulation 40(2) be made by a decision-making body within a local Healthwatch composed of a majority of people who happen to be health or social care managers? No. Regulation 40(2) must be read with Regulations 40(3), 40(4) and 40(1)(a). The requirement to be imposed on local Healthwatch in the contracts is to have and publish a procedure for involving lay persons or volunteers in such decisions. As stated in the advice to the Secondary Legislation Scrutiny Committee, the plain provision of information would not in most cases comply with the obligation to involve; the involvement has to be in the making of the decisions.

I hope that I have covered satisfactorily all the questions put to me, and I hope that the noble Lord, Lord Collins, will be sufficiently reassured to withdraw his Motion.

[Lord Collins of Highbury]

I thank all noble Lords and particularly my noble friends for their comments. I also express my appreciation to the noble Baronesses, Lady Jolly and Lady Cumberlege, who drew attention to some fundamental issues here. They are fundamental in relation to the conflicts of interests, particularly in local authorities. The noble Baroness, Lady Cumberlege, referred to the draconian restrictions and reminded us that guidance does not have statutory force. Here I take the words of Healthwatch England: the Department of Health could and should have done better with these regulations. In my opinion, they have failed. I am afraid that the Minister has not given me satisfactory reassurances, certainly not in relation to the issues that the noble Baronesses, Lady Jolly and Lady Cumberlege, raised. In the light of that, and of the briefing we had from Healthwatch England itself, it is important that the department should think again. The only way I can do that is to ensure that we pass this Motion of Regret, and therefore I would like to test the opinion of the House.