Health and Social Care Bill

Lord Greaves Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I certainly support the amendments tabled by the noble Baroness, Lady Williams, who has just spoken, and they go further than the amendments to which I have added my name. I would just draw the attention of the House to the conflicts of interest guidance from the General Medical Council, which makes it quite clear that doctors,

“must be honest in financial and commercial dealings with employers, insurers or other organisations or individuals”.

It goes on to say:

“If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest”.

I would also remind the House that the ultimate sanction is to be struck off, and that if you are struck off, you lose your livelihood. I have a concern that when it comes to the implementation, warnings may actually be issued rather than stronger sanctions taken against those who might breach such guidance, because this is guidance, and it is therefore subject to interpretation.

This whole group of amendments has really gone to the heart of the problem of conflicts of interest, both for the individual general practitioner, who would be on a clinical commissioning group, but also their families and all those others around. It may be friends of theirs, who they know really well, with whom they are inclined to place some commissioning contract, or enter into some arrangement. There is a really fine line between having a personal interest, and going to that person because professionally you think that they are the best person to do the job.

Of course, I will say as a doctor, we all know the doctors that we would like to be referred to, and we all know the people who we want to work with in our teams. That is human nature. It is a mixture of competence and attitude, but there is also something about having a shared set of values, and so on, because you tend to gravitate towards people who share the same set of values as yourself. The highest principles and values would of course fall, I would hope, outside of the conflicts of interest, but financial interest is a really difficult one.

While I would suggest that none of these amendments are absolutely perfect, this group of amendments illustrates the fact that we need to come back to this at Report with a definitive amendment that really crystallises the whole problem around conflict of interest in commissioning.

[Lord Greaves]

My Lords, I spoke on an earlier amendment this afternoon about issues that come round and round, and this one comes round across Bills. We had a great deal of quite difficult discussion on these matters in the Localism Bill—now the Localism Act—and achieved what we hoped will be a satisfactory compromise in the Bill.

It is all about standards in public life and the importance of all bodies that deal with public funds and public functions being part of the regime of standards in public life. I assume that clinical commissioning groups, while not part of local government, are certainly part of local governance, or they will be part of local governance as far as the health service is concerned. They will deal with a lot of authorities that have the standards of public life regime as part of their own practice. I wanted to go very quickly through the basic principles that need to be established in my view before this Bill is finished. First of all there have to be clear rules. In The Localism Act they are set out in Part 1, Chapter 7, across 11 pages and in parts of the schedules. There need to be set out on the face of the Bill so that everybody knows where we are.

There needs to be a code of conduct, whatever it is called, which is based on the Nolan principles. We came to the view in the Localism Bill, now the Act, that those principles needed to be set out again on the face of the Act: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. In my view they ought to be set out on the face of this Bill.

There needs to be a system which members of commissioning groups have to register appropriate interests and again in the Localism Act some of these were pecuniary interests, going back to the old wording which is now on the face of the new Act. There are interests other than pecuniary interests which also need to be registered even if they do not debar people from taking part in decisions. If we are going to be open about what interests people have, then they ought to be there on record. There needs to be a register of interests—there is no point in registering if there is not an open public register. Then there needs to be a system in which people taking decisions and taking part in decision-making meetings have to declare interests at the point of that decision, as in the system that we have in your Lordships’ House. As the noble Baroness said, it needs to involve close families and partners as well as the individuals concerned.

Then there is no point in having that unless you have a system of dealing with complaints. It needs to be very clear what the system is, how such complaints are investigated and what penalties there are for breaching the rules. There may be different penalties for different rules. Clearly breaching the system in relation to financial pecuniary interests is much more serious than breaching one for non-pecuniary interests.

The penalties need to be clear and understood and the system for judging on them needs to be clear. The whole system has to be in the public domain. The system itself has to be open and transparent and all the actions taken under the system, whether it is just registering an interest or dealing with a complaint and the results of that complaint, have to be open, transparent and in the public domain. It seems to me that those are the principles. The details will quite rightly differ according to different organisations and different contexts. I am not suggesting the details of the local government scheme, although the amendment of my noble friend Lady Williams picks up some of the wording from the Localism Act, I think. Clearly CCGs are different from local authorities, but they are not sufficiently different that the basic principles should not apply, or the basic rules and regulations about avoiding conflicts of interest and declaring those interests when they exist and enforcing those interests within the framework of a broad code of conduct. That in my view has to apply and I hope that when the Bill leaves this House, it will incorporate sufficient detail to give those assurances.

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[Baroness Finlay of Llandaff]

My Lords, there is an additional area which I think means that the provisions in this Bill have to be different from other previous legislation. We face a huge financial challenge across the whole of healthcare, with budgets squeezed in a way they have not been squeezed before. So the potential for conflict of interest will go up as very difficult decisions are made. One can envisage the situation where somebody on the governing body of a clinical commissioning group will have a relative with a certain condition—and I refer back to the example I used previously, motor neurone disease. Say that person needs end-of-life care, and say that is a clinical commissioning group that has decided that it is not commissioning it in its area. There would be a direct personal conflict of interest, because that person would obviously want that care for their relative, but they would need to stand back. With the financial stringencies, the proposed amendments become even more important. While they are probing amendments, I hope the Minister in responding will recognise the importance of this area and agree to come back to it—hopefully, with a Government amendment—at a later stage.

[Lord Greaves]

My Lords, in brief response to the noble Lord, Lord Warner, I am not suggesting in any way that the regime should be identical to the local government regime, but that the decision-making body in clinical commissioning groups will be the board. Under the new Section 14A, the board will include lay members and possibly other people. So merely relying upon professional standards and professional systems of discipline will not be sufficient.

[Baroness Masham of Ilton]

My Lords, I spoke on Second Reading of the need for safeguards. These are important amendments. They are safeguards which are necessary. Many people are worried about the conflict of interest.

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[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group. I will start with Amendment 159A which questions why, on page 9, line 36, it is possible for non-providers of primary medical services to be eligible to apply to establish a clinical commissioning group. Particularly in the light of my noble friend’s comments on Amendment 159, one would surely only want applicants who had experience of providing GP services to be able to apply to form a clinical commissioning group.

Amendment 160A requires the board, before considering an application to form a clinical commissioning group, to consult with the general public, the relevant local authority, the relevant health and wellbeing board, and patients receiving primary medical services from providers within the clinical commissioning group. The noble Lord, Lord Greaves, raised some pertinent questions about transparency in the formation of clinical commissioning groups. It is extraordinary that there seems to be no process by which putative CCGs consult with their patients before they make an application. The decision is, essentially, being made by bureaucrats within the National Health Service system—who put constraints on CCGs,—and the GPs themselves. Where on earth are the public in all of this?

[Lord Greaves]

The noble Lord very kindly referred to what I said. Is it not also the case that a group of GPs could go ahead and put forward proposals without even consulting all the GPs in their area?

[Lord Hunt of Kings Heath]

From reading the Bill, it is only when two or more are gathered together that they can make such an application. So the noble Lord is quite right. The amendment is seeking assurance that there will be public consultation and consultation with patients. We are told this is all about patients. Can patients therefore be consulted before GPs commit themselves to forming a clinical commissioning group? Or are we just to be told at some stage, “That’s it, you are in that clinical commissioning group because you are in that practice and you have no choice”. It is remarkably high-handed for it all to be done with no public involvement whatever. It is remarkable how many changes are already being made without any statutory authority given by this legislation.

I want to continue the theme of consultation, because I have a number of amendments in this group which come back to the same point: Amendment 164A in relation to the board’s determination of applications; Amendment 166 in relation to variations in the constitution of clinical commissioning groups; Amendment 166B in respect of variations made in the area covered by a clinical commissioning group, as specified in the constitution; Amendment 167A in respect of mergers, and Amendment 167B as regards the dissolution of clinical commissioning groups.

If I as a patient am part of the clinical commissioning group, one would have thought that I would have a role in deciding whether it is appropriate for that clinical commissioning group to be dissolved, or is that again just for the GPs to decide? What about Amendment 216ZZA as regards commissioning plans? Perhaps I have misread the Bill and there are crucial points which would envisage members of the public and patients within a CCG area being consulted on all these matters.

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[Lord Patel]

My Lords, I thought that I might get up to say one sentence to stop this conversation from going further. My name is on several amendments, particularly those proposed by the noble Lord, Lord Warner, about competency. I have a simple question, which I am sure the Minister will be able to answer easily. What competencies do the commissioners have to demonstrate before they are authorised to become commissioners? I know that there will be guidance, but what competencies will be looked at that demonstrate that they can be commissioners? I am being very brief today because of being chastised for talking too long; but now I have evidence that suggests that I was not the worst, so I will carry on another time.

[Lord Greaves]

My Lords, I want to say one or two things about the consultation and go back to what I was saying before dinner. The question of patients is a bit of a red herring. To that extent, I think that the noble Lord, Lord Hunt of Kings Heath, was asking to be tripped up over it. Everybody is a patient to some extent, but the important thing is that the residents of an area, or citizens—whatever they are called nowadays—should know what is going on and that there should be an opportunity for a public debate to take place in the normal places—local newspapers, local radio, public meetings—about the future, structure and organisation of the health services in their area.

The noble Lord, Lord Hunt, was absolutely right when he said that there is a huge amount going on at the moment. It is not going on in complete secrecy; people involved in it know what is happening and are telling other people, and people in local authorities and others are having some discussions. However, by and large, there is not a proper process for providing people with open and full—or even partial—information about the proposals that are taking place. I do not think that it is a question of patients being able to tell their doctors which CCG they want to be part of, because the CCGs will be area-based, as we all know, and the doctors will be part of the CCG in their area. The questions are: what area is that going to cover, where is the CCG going to be, and how is it going to fit in to the health service? That is a fundamental question. So to that extent the noble Lord, Lord Hunt, is absolutely right. I think that the question of patients is a red herring.

Whenever I go to see my doctor, I consult him about what is happening in the health service, he consults me about that and all sorts of other things, and occasionally we get around to talking about my health; but I do not suppose that I am a very typical patient. That is a fact of life. However, it is a fundamental problem, and the source of a huge amount of the mistrust about what is going on at the moment is that people simply cannot find out what is going on. That is not in the amendments to this Bill. The Minister and his colleagues simply need to tell the health service to be a lot more open and transparent about what is going on and allow local debate on it.

[Earl Howe]

My Lords, these amendments are all concerned with the process of the establishment of CCGs or changes to the established organisation. The Bill lays the groundwork for the NHS Commissioning Board to establish CCGs. Ensuring the competence of an applicant group to exercise the functions of a CCG is a key part of that process.

In the first instance, the board may publish guidance on the making of applications and this may include details of how it will assess the fitness of CCGs for establishment and therefore their suitability to assume responsibility for exercising their commissioning functions. That is really what Amendment 159 is trying to get at. The whole process is intended to ensure that the CCG has made appropriate arrangements to discharge its functions competently. If the board is not satisfied about that, it will not grant the CCG’s application, or else it will grant it subject to conditions under the transitional arrangements.

I can confirm that we intend to make provision in regulations to require the NHS Commissioning Board to take the views of the shadow health and well-being board into account when they consider the establishment of a CCG. Health and well-being boards will be able to provide insight into the willingness and ability of a prospective CCG to be involved in partnership working and engaging with the local population. That is the theme of Amendments 160A and 162.

However, in my view, wider mandatory consultation with the public, either by a prospective CCG or by the board on receipt of an application to be established, would be completely disproportionate and add unwarranted delay to the establishment of new arrangements. We already have intelligence that early implementer health and well-being boards are engaging in constructive dialogue with CCG pathfinders about the right size, area and configuration to best meet local patient needs. That is fine, but problems arise when you start to mandate it. I am very uncomfortable about that. Consultation with the public has its rightful place but I was completely unconvinced by the argument of the noble Lord, Lord Hunt. For my money he simply has not made the case.

We also need to ensure that we do not have a cumbersome process for agreeing changes to CCGs, which may evolve over time as organisations and may choose to merge formally or to adapt their constitutions, which of course would need to be agreed with the board. A number of amendments in this group seek to require consultation, with the public, the relevant local authority, the relevant health and well-being board and patients receiving primary medical services from providers within the CCG, for different processes: establishment, variation, merger or dissolution of CCGs. The Bill as it stands would set clear duties for patient and public engagement in new Section 14Z. CCGs would have to engage the public in their planning of the commissioning arrangements; in the development and consideration of commissioning proposals, which would have an impact on the manner in which the services are delivered to the individuals; and in the range of health services available. They would also have to engage on decisions of the CCG affecting the operation of the commissioning arrangements where implementation of the arrangements would impact on individuals or the range of services available. The CCG would also have to consult the patients it is responsible for on its commissioning plan. That is quite right and proper and I hope that, in that area at least, there will be some agreement across the House.

As regards local authorities and health and well-being boards, these boards will include representation from the local authority and CCGs. I suggest that is the ideal forum for CCGs to discuss proposals such as mergers with their fellow members. However, it would not be appropriate to impose an explicit requirement for CCGs to consult the board on such matters.

Turning to Amendments 164B, 166A, 166C and 167C, tabled by the noble Lord, Lord Hunt of Kings Heath, I commend the report of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House. These amendments would make the resolution procedure for certain regulation-making powers relating to applications between CCGs and the board affirmative. This approach was rejected by the DPRRC, which found that the negative resolution procedure would give noble Lords ample opportunity to consider regulations laid before the House covering determination of applications for establishment of a CCG, for variation of CCG constitutions and on dissolution of CCGs.

The noble Lord, Lord Patel, asked me about competencies. In September the department published Developing Clinical Commissioning Groups: Towards Authorisation, which sets out our current thinking on the domains that the Commissioning Board may wish to use as indicators to judge the competencies of prospective CCG commissions.

While I know that there will not be a meeting of minds over this, I hope that I have at least fleshed out what the Government’s intentions are. There will, obviously, be opportunity for further reflection on these matters.