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

Lord Harris of Haringey Excerpts

Tuesday 5th February 2013 Lords Chamber

I conclude with the issue on which I started: public perception, understanding, and confidence in the independence of local Healthwatch. We need local Healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that these regulations, as presently worded, will fail to deliver that.

[Lord Harris of Haringey]

My Lords, I am becoming increasingly of the view that the Government have mis-sold the concept of Healthwatch. When we first started on this long journey and the Health and Social Care Bill was coming before Parliament, the Government promised that we would get an effective patient-user voice. They promised that we would have a coherent structure. They promised that Healthwatch would ensure that patients’ interests and the voice of users would be heard centrally in the new NHS structures. But that is not what we are getting.

I spent 12 years as director of the national statutory body representing patients’ interests in the NHS and I learnt a number of things during that experience, one of which was that however well argued or well informed the case made on behalf of the users of services in the National Health Service might be, it is not automatically listened to. The powerful vested interests within health militate against that. Let us be clear: there is a power imbalance between the user and the provider of the health service. There is an imbalance in information and in what they can do. For the voice of the users to become as central as repeated government policy has said it should be, that voice has to be substantial and loud. That means that the bodies representing the interests of users have to be able to make waves. They have to make people listen and, on occasion, they have to be a nuisance. That is why, when the Bill was going through Parliament, we asked repeatedly in your Lordships’ House whether Healthwatch would be able to campaign in the interests of the users of the service that they were representing.

We asked in Committee, and the noble Baroness, Lady Northover, assured us that users would be able to campaign. We asked again on Report, and again the noble Baroness, Lady Northover, assured us that that would be the case—Healthwatch would be able to campaign in support of the interests of local health service users. As is widely known, I defer to no one in my respect for the noble Baroness, Lady Northover. To mis-speak once may be regarded as a misfortune; to mis-speak twice begins to look like carelessness. Either the noble Baroness was being extremely careless—repeatedly, both in Committee and on Report—or policy has changed. Despite the intent that these would be vibrant, effective, campaigning voices on behalf of patients, somewhere along the line someone in the Department of Health took a decision and said, “No, we mustn’t allow them to have any sort of effectiveness whatever. They mustn’t be allowed to make waves; they mustn’t be allowed to cause trouble; they mustn’t be allowed to be a nuisance”, because that is what the regulations do.

What are we to make of Regulation 36(1)(a)(ii)? It is unequivocal. Healthwatch will not be allowed to do anything that promotes or opposes changes in,

“the policy adopted by any governmental or public authority in relation to any matter”.

I find it difficult to know what a local Healthwatch organisation will say about the change in the organisation of, say, diabetes services in a particular area that will not be “in relation to any matter”, or determined by a “public authority” or a “policy adopted by” a public authority, so the local Healthwatch cannot object or campaign against it.

I am sure that in trying to defend the extraordinary wording that is placed before us tonight the Minister will try to tell us that paragraph (2) makes it all right. I am aware that the noble and learned Lord, Lord Mackay, is with us, so I hesitate to say that it seems to be a lot of legal gobbledegook. Apparently it will be all right if it,

“can reasonably be regarded as incidental to other activities, which a person might reasonably consider to be activities carried on for the benefit of the community in England”—

and—

“those other activities cannot reasonably be regarded as incidental to activities of the descriptions prescribed in paragraph (1)”—

which is the bit I read out.

That is very clear. I am sure that all the guidance that can emerge from the Department of Health in the future will make it clearer still. But even if you take that as trying to mitigate a blanket effect of forbidding any campaigning that might conceivably be regarded as a,

“policy adopted by … any … public authority on any matter”,

what does it actually mean? What is incidental to other activities? It is not incidental to other activities to say that the reorganisation of diabetes clinics in a particular area is inappropriate. That is what the Healthwatch organisation is there to say on behalf of local users; it is not incidental to something else that it should be doing. What is this meant to mean?

Healthwatch England, all of three hours ago, sent us its comments on the regulations. It said that they could have been worded more appropriately. There is an understatement. I wonder what it really meant. I do not think that the question is one of more appropriate wording. I wonder how much room for manoeuvre Healthwatch England had—given how independent we know that its structure enables it to be—to say what it really thought about the nonsense of the wording. It did feel strongly enough to tell us that it hoped that future regulation in statutory instruments might get it right. That is very interesting.

The definition of an institution that is a political campaigning organisation is any person carrying on or proposing to carry on activities to promote or oppose changes in any law applicable in the United Kingdom. Healthwatch England, by the definition in these regulations, is a politically campaigning organisation. Therefore, no local Healthwatch organisation will be allowed to act in support of a policy that has emerged from the national body representing patients.

I am sure that, however malign the intent was of those who drafted these regulations and of the Ministers who instructed them to do so, they did not mean them to be quite so destructive. I do not know who writes these things. I do not know what they are trying to achieve. However, we should be clear that there will not be one point of contact so that a local Healthwatch would know where to go to be given clear and consistent guidance, because the structure that the Government are creating is fragmented. Each local authority will commission an organisation to provide local Healthwatch services. Individually, around the country, people will try to interpret what the regulations mean—yet they are virtually incapable of being sensibly interpreted.

Of course, there is an answer to this. Ministers could decide, having listened, not to press on with the regulations. They could say that they should be withdrawn. There are two good reasons why they should do that. First, the regulations are appallingly drafted and in practice unworkable—and will be unworkable when they are interpreted in several hundred different ways around the country. The second good reason is that tomorrow we will hear the report on Mid Staffordshire. I suspect that one of the strongest lessons that will emerge from the report is the need for strong, local representation of the interests of local users of the health service. That means strong and effective local Healthwatch organisations. These regulations will not give us strong and effective local Healthwatch organisations, so if the Government are serious in whatever they say in response to tomorrow’s Francis report, they ought to withdraw the regulations tonight and come forward with sensible regulations that will give us the sort of local Healthwatch organisations that the country needs.

--- Later in debate ---

Noble Lords and others have read Regulation 36 and have concluded that it is incomprehensible or unworkable—or, indeed, both. In fact, Regulation 36 does something very simple. In plain terms, it says that a local Healthwatch can campaign and can speak out as part and parcel of its role as the local consumer voice. In other words, it can campaign on things that are directly connected to what local people are concerned about, based, as I have said, on robust evidence, and where the changes being campaigned on are inspired and supported by local people. Such campaigns might, or might not, have a political flavour to them. To take the example given by the noble Lord, Lord Harris of Haringey, a local Healthwatch could campaign as vociferously as it liked on the reorganisation of a diabetes service. What a local Healthwatch cannot do is conduct campaigns of a political nature where such campaigns are not connected to what local people are saying or thinking, that are not evidence-based, and that do not carry a credible degree of local support. Nor can a local Healthwatch make such campaigning its main raison d’être. Campaigning on any issue has to flow seamlessly from the local Healthwatch’s main activity, which is to act as the voice of local people and to make that voice count towards improving health and care services.

[Lord Harris of Haringey]

The noble Earl has been extraordinarily helpful in telling us what Regulation 36 is meant to mean. My first question is: why does it not say that, as opposed to producing a formulation? Your Lordships are used to this sort of stuff. If every noble Lord who has spoken in this debate apart from the noble Earl has found it difficult to follow, I find it difficult to see how people around the country are going to be able to interpret this with the clarity with which the noble Earl has provided us.

Secondly, the noble Earl then said what local Healthwatch organisations can do. He said that they can campaign provided it is evidence-based and draws upon the opinions of local people. Who is to decide that? Is it, for example, the local authority, which might not like the campaign that is being mounted? Is it then going to say, “Well, you are not actually speaking on behalf of the communities you claim to be”?

[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.