Health and Social Care Bill

Lord Colwyn Excerpts

Tuesday 11th October 2011 Lords Chamber

[Lord Colwyn]

My Lords, before saying a few words about the National Health Service dental service, which I would remind my noble friend is not entirely free at the point of delivery, I should remind the House that I have actually worked as a dental surgeon in the health service for more than 25 years.

This is a time of great change for dentistry. Alongside the changes to commissioning introduced by this Bill, the next few years will also see the introduction of a new NHS dental contract, with a greater emphasis on prevention. Pilots for this contract started last month in 67 dental practices across the country, and are due to run for at least the next 12 months. On the whole these changes have been warmly welcomed by dental professionals, because they start addressing the lingering problems that the previous set of reforms created in 2006. Nevertheless, there are a number of points where there is still a need for more detail and greater clarification, and I hope that the Government will be able to address these issues as the Bill progresses.

Dentists strongly support the decision that the commissioning of general dental services and secondary dental care should be carried out by the national NHS Commissioning Board. This arrangement has the potential to be a considerable improvement on the current system of PCT commissioning, which has resulted in inconsistencies across the country. However, if these arrangements are to deliver improved dental provision, there is a clear need for expert dental advice to be available to the Commissioning Board to inform its commissioning decisions. At present there is nothing in the Bill that explains who will offer this advice, or the mechanism by which it will be provided.

At a national level, local expertise will also be vital in the new commissioning arrangements. When the Commissioning Board makes decisions about service provision for specific areas, it will not only need to call upon expert dental advice, it will also need an input from professionals with local dental expertise. This local input is a key element that the Bill has yet to cover and the Government need to clarify how they will utilise the existing sources of local dental expertise, such as local dental committees, in the new commissioning arrangements.

The role of consultants in dental public health will also be of great importance, particularly given the Government’s reform of the public health system and the changes that the Bill makes to the public health responsibilities of local authorities. The Healthy Lives, Healthy People: Update and Way Forward Command Paper, which the Government issued in July, explained that under the new arrangements they envisage that specialist dental public health expertise will become part of Public Health England, a move which would be welcomed by many consultants in dental public health.

However, their expertise will also need to be available to local authorities, in particular to the new health and well-being boards. Much more detail is needed as to how these new arrangements will work in practice. At present it also appears that there will be no obligation on health and well-being boards to take advice from, or consult with, any source of local dental expertise when drawing up a health and well-being strategy and a joint strategic needs assessment. The Government should consider whether there is a case for giving them a statutory duty to do so.

It is very unclear what role, if any, Monitor will play in the regulation and licensing of dental practitioners. The profession is already subject to a significant burden of regulation, with dentists regulated by the General Dental Council, by the Care Quality Commission, through Performers Lists Regulations and through their regulatory and contractual obligations to the NHS. It would not be appropriate for Monitor licensing duties to cover dentistry. It could be argued that it would impose an unnecessary burden which would be contrary to Monitor’s duty to review regulatory burdens, as set out in Clause 64 of the Bill. I ask the Minister to clarify this issue and to confirm that dental services will be exempt from licensing by Monitor.

As I said in my opening comments, this Bill is just one aspect of the Government’s reforms of dentistry. If the benefits of central commissioning and the new public health arrangements are to be fully realised, it is vital that the Government also stay focused on the pilots for the new contract. The pilots may not be part of the Bill, but they are central to the reforms of NHS dentistry that the Government are pursuing. I hope that the Minister will maintain the Department of Health’s commitment to a co-ordinated approach and that they will drive forward progress on the pilots alongside the reforms contained in the Bill.

I shall conclude with a couple of issues associated with indemnity. Outside the indemnity provided by the NHS, doctors and dentists have to make their own indemnity arrangements for clinical negligence claims. My noble friend will be aware of the massive costs to the NHS that arise from negligence and other errors. The Bill is silent on indemnity, but must be amended to address the arrangements for clinical negligence indemnity in respect of services commissioned by clinical commissioning groups and the National Commissioning Board. There should be clear guidance specifying the type and amount of indemnity that is required in order to protect patients.

Clauses 251 to 259 relate to the powers of the Health and Social Care Information Centre to require, publish and otherwise disseminate information, including patient identifiable information. There are two specific areas of concern around patient confidentiality and conflicts of interest. I was intending to read out the relevant clauses, but owing to the restriction on time, I shall just draw my noble friend’s attention to Clauses 255(1) and 255(7). As currently drafted, the Bill appears to provide wholly inadequate protection against inappropriate disclosure of patient identifiable information. It removes important rights to confidentiality and would place doctors and dentists in an unacceptable position. There is concern that any protections afforded by the Data Protection Act would not apply in these circumstances.

The Bill, if enacted as currently drafted, would require doctors and dentists to ignore their regulatory professional obligations and it abolishes their common law duty of confidence. The indemnity organisations seek clarity as to whether the Secretary of State has, or intends to issue, guidelines about dealing with conflict of interests and what the legal status of any guidelines would be. They should also be able to understand what other steps are to be taken to ensure that there are adequate and appropriate arrangements in place to manage real, perceived and potential conflicts of interest for clinicians who may be providers, commissioners and performance managers as well as having financial interests in other providers.

I hope that the Bill will progress to a Committee stage unhindered by both amendments.