Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer the support of the Green group for all the amendments in this group. My name is attached to Amendments 51 and 87 and it would have been attached to others had there been space. I can only commend the noble Baronesses, Lady Meacher, Lady Tyler of Enfield and Lady Finlay of Llandaff, for identifying a serious lacuna in the Bill and for providing practical, careful and sensible solutions to that.

The noble Baroness, Lady Finlay, said that the Bill was “by adults for adults”. The other amendments in the group address only half that phrase. It addresses the “for adults” part but not the “by adults” part, which is what my Amendment 103A aims to address. Young people are experts in being young people. We may think about the life experiences of a 12 year-old or an 18 year-old, but none of us really knows what it is like to be 12 or 18 at this moment. A phrase often used particularly by marginalised groups is “Nothing about us without us”—given the hour, I will spare noble Lords the Latin version.

Young people are undoubtedly a marginalised group in our society in that their voice is far too rarely heard. As I have reflected previously, they are hugely underrepresented in this place and in the other place. The under-18s do not have the vote. The under-25s in the voting population, for structural reasons that could be fixed but have not been, do not have the same kind of voice.

I entirely accept that, among paediatricians and social workers, there are many older people who have much expert knowledge, but it is crucial that we actually hear. My amendment seeks to address ICBs and sets out that, in statute, there should be an advisory board consisting of young people on every ICB. I believe that this is an important addition to ensure that young people’s voices are heard. It might be said that many ICBs may set up such a structure, but that is not the same as it being statutory, ensured in the Bill with a message from Parliament saying, “You have to listen to these young people’s voices”.

I doubt that I need to address this in detail, particularly with the occupancy of the Chamber for this group, but I want to mention the Children’s Society’s Good Childhood Report 2021, which looked at 10 to 17 year-olds. Among them, one in 15 were unhappy with their lives—the highest level in a decade. We know that children who are unhappy at the age of 14 are significantly more likely to display symptoms of mental ill health, to self-harm or, sadly, to attempt to take their own life by the time they are 17.

As the report makes clear, the pandemic is only part of this story. There is a climate emergency and a pervasive fear about the future that young people have lived their entire lives through. We are talking about people whose whole life experience, virtually, has been since the financial crash. One thing that we know addresses a sense of powerlessness, with all its negative effects on mental and physical health, is giving people a sense of empowerment—that is, a sense that they can take control of their lives, make choices and make a difference. I often see this with young climate strikers.

I believe that the measure proposed by my Amendment 103A would ensure that this group of amendments collectively addresses the two sides of the problem that the noble Baroness, Lady Finlay, identified. I want to take this forward and I invite noble Lords who are interested to talk to me about it. This should be included in the Bill. Let us hear from children and young people and make sure that ICBs listen to the children and young people they serve.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I very much agree with the noble Baroness and I support the broad thrust of these amendments. As this is my first intervention on the Bill, I should declare my interests as a board member of the GMC and the president of GS1 UK, the British Fluoridation Society and the Hospital Caterers Association. I am also a trustee of the Foundation for Liver Research.

I support Amendment 51 in the name of the noble Baroness, Lady Tyler. As she said, she, the noble Lord, Lord Bichard, who also put his name to the amendment, and I are members of the Lords Public Services Select Committee, which has just produced a report on vulnerable children. When taking evidence and listening to the arguments, it was sobering to hear that it is now estimated that the number of vulnerable children has accelerated, particularly during Covid, so that more than 1 million children are growing up with reduced life chances. Too many of them end up in our criminal justice system but, despite this, there is no government strategy to deal with vulnerable children.

The result is a lack of co-ordination both nationally and locally. Too many children fall through the gaps. Public services intervene far too late to prevent some of these children from getting into difficult circumstances. Although the amendment deals with only one aspect, it is but one aspect of a more general problem that we believe the Government need to address. The particular problem that we wish the Committee to take account of is the silo working that continues to be evident both nationally and locally, as well as the frustrating unwillingness of public bodies to share data even though it is abundantly clear from both the law and the Information Commissioner’s comments that they are perfectly able to do so.

I do not pretend that passing an amendment to the Bill will change everything overnight, but we look to the Government to be firm in their intent. It is unacceptable for public bodies, many of which have a direct relationship with government, to refuse to share information for all the miserable reasons of tribalism and managers not being willing to let go. We need to do something here.

--- Later in debate ---

I hope the Minister will see the parallel here: a mandatory duty to improve is exactly what the Government want, and have committed themselves to by laying the Bill before Parliament. Therefore, it should be made clear in the statute. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Baroness, Lady Walmsley, brought us very persuasively to the point of Clause 14, which I must say I am extremely puzzled about, because it purports to set out the whole set of arrangements that have to be gone through before integrated care boards can be set up as statutory bodies. However, it appears that that has already been done.

I register a very strong protest with the Minister at the actions of NHS England in going ahead and establishing these bodies, issuing extraordinary edicts such as no local authority councillor being able to serve on an ICB. What right does a quango have to say that local authority councillors cannot be represented on ICBs? This is absolute abuse of parliamentary power, because quangos do not have the right to set out what should happen on governance issues at local level in the NHS without parliamentary endorsement.

NHS England has put out a note that says that, subject to parliamentary progress, arrangements for the new statutory bodies are to come in now, on 1 July. How can that be, when we have not even gone through the sections that deal with the composition of integrated care boards? It is quite possible that your Lordships might insist on Report that local authority councillors are members of the ICBs. That is not impossible, so what will happen? Will the Minister say that, despite what Parliament says, the ICBs will go ahead, or does it mean, as I read this legislation, that the Government have to start again?

Lots of issues will be raised in this and the next group, not least the outrageous governance issue, which says that NHS England basically appoints the chair and the chief executive officer is also at its disposal. There is no attempt locally to have a board that elects its own chair or one that is appointed independently; they are essentially place-people put in there by NHS England. These are matters that Parliament should decide. I accept that Parliament may say that it is happy to go ahead on that basis—but I strongly object to this clause. It is dishonest; it purports to go through a process from the start that says that this is how ICBs will be set up—but they have all been set up, the boundaries settled and the chairs nominated, without any proper public accountability process whatever.

I hope that, when we come to agree Clause 14, the Minister will think again and that he will issue instructions to NHS England to withdraw the letter that says that the new arrangements will come into place on 1 July. I do not understand how that can possibly be.

[Lord Davies of Brixton (Lab)]

My Lords, I speak to my Amendment 45. This is a disparate group of amendments, dealing with the issue of integrated care boards. I strongly support the comments already made. My amendment addresses another issue. There are questions about what the boards are; the issue is for whom they provide services, and how they are defined.

I have been made aware of a case that raises real questions about how this is going to develop. The case was reported in September, in the Manchester Evening News, about a woman who suffered burns while on holiday. She returned to her local urgent care centre in Rochdale and was advised that, because of long waiting times, she should go to another A&E in Bury. When she arrived there, she was told that that centre did not treat people from Rochdale, because of rules laid down by the integrated care board predecessor, which had established the rules in that part of Lancashire. She was left literally on the pavement, unable to obtain the care that she required.

That is a specific case under the existing rules, but it points out the lack of clarity in the Bill about how the integrated care boards will operate. The fear is that they will be membership bodies along the lines of health management organisations in the United States, which are responsible for providing services to members. That contrasts with the residential basis on which the NHS was based, at least up to 2012.

Proposed new Section 14Z31(4) gives the Secretary of State astounding power to set out which ICB is responsible for a particular individual’s care. I hope that the Minister will be able to provide some reassurance, but the problem with membership-based organisations is that, first, there will be cherry picking of patients and, somewhat counterintuitively, at the same time they will be competing for the less expensive patients. Without far more clarity through the Bill from the Minister, people will have reasonable fears over how these new organisations will work and how people will attain the services that they currently expect from a seamless provision of services. My amendment seeks to address the issue of it being a single service. We have these 43 ICBs, or whatever they are, but it is a single service, and patients can access services wherever it is best for them and not best for the service.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, I accept that but how can NHS England give guidance to say that no local authority councillor can be on the ICB? That is not for NHS England to say, and how can it do it prior to the Bill going through Parliament? It is for Parliament to decide these matters, not a quango.

[Lord Kamall (Con)]

I apologise to the noble Lord because I was coming to answer that point, but maybe in too long-winded a way. One issue that was clearly raised, and very strongly felt in the contributions from more than one noble Lord, was about banning councillors from sitting on boards. There is nothing in the Bill that expressly bans this. We recognise the points raised in this debate and will raise them directly with NHS England. It is not statutory guidance.

[Lord Hunt of Kings Heath (Lab)]

I am sorry but this is a very important point. They have made the appointments and are not going to start again, which of course they should, because this is an absolutely hopeless position. No one from NHS England has ever had the guts to come here to explain why they are making this decision, and who will believe it? The chair of the ICB is appointed by NHS England. They know that NHS England does not want local authority councillors on the boards. Who are they going to take notice of? They are going to take notice of NHS England. The Minister has to tell NHS England to stop sending out this ludicrous guidance and telling the NHS that the new arrangements will start from 1 July. It cannot possibly do so if we go through what is contained in Clause 14.

I sympathise with the noble Baroness, Lady Walmsley, but the fact is that we must have a three-month consultation process on the proposals. This is the problem we are in: none of this stands up because Parliament is being treated with absolute contempt by NHS England.

[Lord Kamall (Con)]

I hear the strength of feeling from the noble Lord. I will take this back to the department and discuss it with my right honourable friend the Secretary of State. I hope noble Lords are reassured by that. I may not get the perfect answer, but I will try. I understand the strength of feeling on this issue; no one can fail to do so. Let us put it this way: it was not subtle but direct. It is really important that, as the Minister here, I take this back and reflect the feeling of the House in my conversations with the Secretary of State, and his subsequent conversations with NHS England. I will take that back and look at the consultation process and the CCGs consulting all the relevant local authorities.

I understand the point made strongly by the noble Lord, Lord Scriven, that we have to be careful about prescribing in a top-down way how to work locally. I have always been a strong believer in localism and making sure that powers go down to a local level rather than being taken away. Let me again assure the noble Lords, Lord Scriven and Lord Hunt, and other noble Lords that I will take this back, because clearly there is concern. I had not appreciated the strength of that concern. At Second Reading the noble Lords, Lord Stevens and Lord Adebowale, said, “We are already doing this. It makes sense to go ahead and put it on a statutory footing”. But I have now heard the other side of the argument, and it suggests that I should go back and have a stronger conversation with, in effect, my boss—my right honourable friend the Secretary of State. I hope that gives some reassurance.

On Amendment 44, in the name of the noble Baroness, Lady Thornton, I assure your Lordships that we intend to provide as much stability of employment as possible while ICBs develop their new roles and functions. I hope that noble Lords are aware that there is already an existing commitment that staff transferring into ICBs will transfer across on their current terms and conditions in line with the NHS Terms and Conditions of Service Handbook. NHS pension rights will also be preserved. As a result, staff transferring into ICBs will not see any change to their existing conditions.

However, the Government are concerned about forcing ICBs to adopt conditions and practices that the ICBs do not believe work best for new staff. We believe that it is important to give ICBs flexibilities relating to staff terms and conditions; they are there for a reason. For example, when it is difficult to recruit and staff are going elsewhere, this would include allowing ICBs the flexibility to diverge from collectively agreed pay scales in order to attract staff from elsewhere or with unusual or valuable skills, or to reflect local circumstances. It will also give ICBs the flexibility to support joint working and bring in staff currently working in local authorities or foundation trusts, for example, supporting integration and the joint working approach that the Bill hopes to encourage.

I also note that ICBs having the independence and flexibility to choose whether to adopt collectively agreed pay conditions and pensions for new staff is not unique, as the noble Baroness, Lady Thornton, acknowledged. NHS foundation trusts, which are already free to exercise their discretion in adopting such conditions, overwhelmingly choose to honour and apply such terms to their staff unless there are good reasons to diverge.

On the proposals for very senior managers, existing procedures are in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries. Proposals to pay very senior staff more than £150,000 must be similar to those for other equivalent roles or be subject to ministerial oversight.

The Government are in the process of finalising the procedures that will apply for ICBs. The specifics may differ but the effect and intention will be the same: to afford ICBs agency in setting pay at competitive rates so that we can continue to attract the most senior and experienced leaders, while putting adequate checks and balances in place to ensure appropriate use of taxpayers’ money and keep senior public sector salaries at an appropriate level. The Government believe that this amendment, which also asks for ICPs to approve annual salaries in excess of £161,000, is unnecessary. I am happy to have further conversations.

I now turn to the amendments on how the ICBs will function once established, starting with that in the name of the noble Lord, Lord Davies of Brixton, which relates to the question of treatment outside the ICB area. The new clause in question provides that NHS England must publish rules for determining the people for whom integrated care boards have responsibility. Importantly, this clause ensures that everyone in England is covered by an ICB.

We intend that the rules set by NHS England should replicate the current system for CCGs as closely as possible. This means that the ICB will be responsible for everyone who is provided with NHS primary medical services in the area—for example, anyone registered with a GP. It will also be responsible for those who are usually a resident in England and live in their area if they are not provided with NHS primary medical services in the area of another ICB.

It is important to remember that no one will be denied healthcare on the basis of where they live. We want to ensure that, under the new model, bodies that arrange NHS services—decision-making bodies—are required to protect, promote and facilitate the right of patients to make choices with respect to services or treatment. This means allowing patients to choose to be treated outside their ICB area. Choice is a long-standing right in the NHS and has been working well for some time. The Bill continues to protect and promote it. However, I am afraid that we have concerns about this amendment, as it places a requirement on providers rather than commissioners. It would not be reasonable to expect providers to provide services regardless of whether they were funded by an ICB to do so, and it is important that ICBs should be able to make decisions about with whom they contract and where they prioritise their resources.

On Amendment 53, in the name of the noble Baroness, Lady Walmsley, I hope I can assure the Committee that the Government are committed to ensuring continuous improvement in the quality of services provided to the public. As your Lordships will be aware, there is already a wider range of duties in relation to the continuous improvement of services. Clause 20 imposes on ICBs a duty as to the improvement in quality of services. Furthermore, the ICB must set out how it proposes to discharge that duty at the start of each year in its joint forward plan and explain how it discharged the duty at the end of each year in its annual report. I hope this goes some way to meeting the noble Baroness’s concerns.

Clause 16, which this amendment seeks to alter, recreates for ICBs the commissioning duties and powers currently conferred on CCGs in the NHS Act 2006. It ensures that ICBs have a legal duty to commission healthcare services for their population groups. It also recreates Section 3A of the 2006 Act, which provides the commissioning body with an additional power to commission supplementary healthcare services in addition to the services they are already required to commission. This power enables ICBs to arrange for the provision of discretionary services that may be appropriate to secure improvements in the health of the people for whom it is responsible—or improvements in the prevention, diagnosis and treatment of illness in those persons—so it is important that the clause remains as it is currently drafted.

The Bill will ensure that the existing local commissioning duties conferred by the NHS Act 2006 will transfer over to ICBs. This is set out in proposed new Section 3, which is also to be inserted by Clause 16 on page 13. I hope that the noble Baroness, Lady Walmsley, will be reassured that it rightly uses “must” rather than “may” when referring to the arranging of services. I can therefore assure the Committee that ICBs will continue to commission the services previously delivered by CCGs. That will ensure that service delivery for patients is not impacted.

Amendment 159 in the name of the noble Baroness, Lady Wheeler, touches on the important relationship between ICBs and ICPs. I remember that, when we had an earlier consultation, the Bill team had a diagram about how ICBs and ICPs would work together; It might be helpful if I ask for that to be sent to noble Lords so that all of us can have more informed conversations about the intentions of the amendments and the issues that noble Lords want to raise. I will make sure that that is done.

This amendment would add a requirement for the Secretary of State to make regulations to establish a dispute resolution procedure if an ICB fails to have regard to an assessment of needs, an integrated care strategy or a joint local health and well-being strategy in respect of the ICB’s area. The Bill was introduced to ensure that existing collaboration and partnership, working across the NHS, local authorities and other partners, is built on and strengthened; I recognise the concerns raised by the noble Lord, Lord Scriven.

We intend for these assessments and strategies to be a central part of the decision-making process of ICBs and local authorities. That is why we are extending an existing duty on ICBs and local authorities to have regard to relevant local assessments and strategies. The ICB and local authorities will be directly involved in the production of these strategies and assessments through their involvement with both the ICP and health and well-being boards at place—that is, at a more geographical level. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are several mechanisms to ensure that ICBs and local authorities will have regard and not intentionally disregard the assessments and strategies being developed at place in their areas. First, health and well-being boards have the right to be consulted.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

25: Clause 14, page 11, line 20, at end insert—
“ NHS Appointments Commission (1) There is to be a body corporate known as the NHS Appointments Commission.(2) The NHS Appointments Commission has the function of—(a) appointing the Chair and ordinary members of integrated care boards;(b) other duties as set out in regulations under subsection (3).(3) The Secretary of State must by regulations provide for—(a) the establishment and constitution of the board of the Commission;(b) the financing of the Commission;(c) the duties of the Commission.(4) The Commission must prepare and submit an annual report of its activities to Parliament.”Member’s explanatory statement
The amendment would provide for an independent commission to have responsibility for the appointment of the chair and ordinary members of integrated care boards.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, in moving Amendment 25, I will speak to other amendments in this group, which follows on from the previous group and the last comments made by the noble Baroness, Lady Walmsley. On day two in Committee, we had an interesting discussion about the composition of integrated care boards. My noble friend Lady Thornton and other noble Lords argued for specifying in some detail the composition of ICBs, including having representation from mental health trusts, public health, staff and the patient’s voice.

Equally, the noble Lord, Lord Mawson, discussed the problems that arise when members on committees are seen to represent what he called “other agendas”. The noble Baroness, Lady Harding, was supportive of that view, although she argued that

“we should think more about what we want the integrated care boards to do”.—[Official Report, 13/1/22; col. 1303.]

and how we will measure this, rather than exactly who is on them. I see the force of that argument; I for one am pretty uncertain about what exactly these integrated care boards are all about.

The noble Lord, Lord Hunt of Wirral, went to the heart of this when he raised an issue that has troubled me right from the beginning: the provision that NHS trusts and foundation trusts are to be members of the integrated care boards. As he said:

“Organisations that provide the bulk of NHS services”


are therefore brought into the work of commissioning. The current system is one where commissioners—CCGs—hold providers to account

“objectively determining whether they are best placed to provide a service and assessing their performance”

and, as he said, the question then arises as to how the new integrated care boards can

“continue to perform that role.”

He felt that the membership of provider appointees on those boards at least created a risk of

“a conflict of interest between the roles of those individuals on the board and any roles they may hold with provider organisations”.—[Official Report, 13/1/22; col. 1297.]

In response, the Minister said that

“each ICB must make arrangements on managing the conflict of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore”—

this is a very relevant point—

“each appointee to the ICB is expected to act in the interests of the ICB. They are not delegates of their organisations, but are there to contribute their experience and expertise for the effective running of the ICB”.—[Official Report, 13/1/22; col. 1308.]

Up to a point, Lord Copper. I am now totally confused as to what ICBs are. I must admit that I thought that reason for having all the key local players around the table was to brokerage deals, sort out the flows of money and keep the show on the road, but the Minister’s vision seems to be for a rather more rarefied forum, where members of the ICBs have to leave their interests behind them and think Olympian thoughts in the interests of the greater good. However, when you think of an ICB, with members of a major trust sitting around the table, and local authorities represented not by their political leadership but by officers, how on earth can they leave their principal interests behind them? Surely the responsibility of the CEO of a trust or presumably of a local authority or the director of adult social care is to represent the interests of the organisations on that board.

I will give a couple of examples. On page 21, the Bill states in relation to new Section 14Z50 on the joint forward plans for an integrated care board and its partners that

“an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out how they propose to exercise their functions in the next five years.”

That is fine, because that is probably one of the most important things that they have to do, but what are the trusts’ chief executives on the ICB expected to do? Are they expected to sit there and declare that it is a conflict of interests and therefore take no part in the discussion, or are they there to represent the interests of their trust, because the forward plan is very important to the success or otherwise of their organisation? It would be the same with the local authority representative, even though that representative, because they are an officer, will have to report back all the time to their political leaders to get the green light to what they have to agree to within the ICB board, which is why it is so stupid to keep local authority councillors off that board.

The Minister says, “Oh well, if it all goes wrong, we can use regulation powers to put it right”. But we are at the beginning of this process, and we need to get it right now. I very much ask the Minister to think again about the structure of ICBs and how on earth you can expect them to operate if the large trusts that they are supposed to commission serve round the table. It is really a nonsense in governance terms. Only NHS managers could have come up with this—and, oh dear, it was NHS managers who came up with it. Much though I love them and have represented their interests, I agree with the noble Lord, Lord Scriven, that accountability and democracy do not come very easily to them, and you can see that in the complete mess that we see before us today.

We then come to the question of whether these ICBs are accountable at all locally. I see no evidence of that at all; they are clearly part of a top-down managed hierarchy. How can you explain the reasons for the chair being appointed by NHS England and not by the board itself? How can the chair be removed from office only by NHS England? The chair should hold office at the confidence of the board. It should be the board that decides whether the chair is competent to continue, subject to external regulatory interventions, as of now, where that is necessary.

Secondly, why does the appointment of the ICB members have to be approved by the ICB chair? I am sorry that the noble Lord, Lord Scriven, is not here. If I, as leader of Birmingham City Council, for instance, decided that my director of adult social care should go on to the board of the Birmingham and Solihull ICB, what right does the chair have to give their approval or not to that appointment?

We have already discussed the nonsense of local authority councillors being left off, but let me just make one other point. If you were the chief executive of the local authority appointed to an ICB, where you are making big decisions about finance, does the Minister imagine that that officer will do it off their own bat, or does he think that every step of the way they will report back to the leader of the council and the cabinet member for social care? Of course they will.

The problem is that NHS managers think local government is run in the way the NHS is run; they think the officers are in charge. But they are not, because you have political, democratic leadership. It is the same with Ministers in government, which it seems is why they have got themselves into such a mess in relation to this governance.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

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

[Earl Howe (Con)]

As I understand it, the noble Lord, Lord Hunt, is proposing a separate NHS appointments commission. I am suggesting that it would be unnecessary to add that arms-length body to the existing landscape.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for his response, which he has clearly put a great deal of thought into. At the end of the day, what is being proposed is a very top-down, hierarchical approach to running the health service. ICBs may be accountable to NHS England and, through NHS England, to the Secretary of State, because the Government are taking power of direction through this legislation. However, it becomes abundantly clear that ICBs do not look outward to their local communities; they look upward to the hierarchies above them.

This is the problem with giving NHS England such power over the chief executive and the chair. Anyone who has worked in the NHS knows that, in the target-laden, panic-ridden approach from the centre to local management, the ICBs will be under the cosh right from the start. For all the wonderful words that have been used about what they will do, the reality is that they will be beaten up by the centre in the traditional “target” approach to running the service. Of course, it did not have to be this way. While it is perfectly proper to have boards making their own decisions and appointments, and being held to account for interventions where necessary, this is such a top-down approach that I do not think it will work. I believe and hope that the House will seek to amend it in some of the ways suggested in these amendments. That said, I beg leave to withdraw my amendment.

Amendment 25 withdrawn.

--- Later in debate ---

In essence, the amendments would enshrine what is already there in Wade-Gery and best practice guidance where it relates to digital technology and transformation. We should be making sure that our NHS legislation is fully updated in line with that report and with the guidance on what success looks like for the digital age. I hope the Minister agrees to take the amendments on board, and I look forward to hearing his reply. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for speaking so eloquently in support of this group of amendments. There are a number of amendments relating to data in this Committee and they fall into three categories. The first category, the group that we are debating today, is about the prioritisation of the digital transformation in the NHS. The second group looks at specific patient groups and the potential of data to improve their care outcomes. The third set is about confidentiality of data as far as patients are concerned. My view is that all three run together.

Like the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Cumberlege, I am enthusiastic about digital transformation in the NHS; indeed, I believe it is the only way we can hope to meet the challenges that healthcare faces over the next 20 or 30 years. However, there are two conditions. One is that the integrity of patients’ data is assured for individual patients. That has not always been the case in the past, and the debacle of care.data is a salutary warning of what can happen if we do not protect patient information in an appropriate way.

The second condition is resources. I was very glad that my noble friend referred to the issue of resources and to the Wade-Gery report, which is the most recent report looking at the arrangements to support digital transformation in the health service. Wade-Gery reported that

“transformation funding is … split between revenue and capital and dispersed across the organisations. Tech funding is variable, often diverted and not necessarily linked to strategy and outcomes, incentivising either monolithic programmes or small-scale initiatives.”

She commented:

“The requirement for digital transformation in other sectors has driven up the proportion of their spend on digital and technology”.


It has been well-known, for many years, that the NHS locally has not been spending sufficiently on data and data transformation. The latest estimate from NHS England is that the NHS spends less than 2% of its total expenditure on IT, while the noble Lord, Lord Darzi, and the IPPR suggest that this should be nearer 5% by 2022. I say to Ministers that, unless they can find ways to ensure the NHS starts to spend at that level, we are simply not going to achieve the kind of transformation we want.

One way to do that is to ensure that, at the ICB level, there is an official charged with driving this forward at the local level. We know, in general, in relation to boards of the health service, that the data/digital leadership often does not have a seat, in contrast to many organisations. This is why we think that needs to change. Overall, we believe this set of amendments would enable the Government and Parliament to show how important it is to prioritise the kind of digital transformation that we want to see.

[Baroness Cumberlege (Con)]

My Lords, I support these amendments but first I believe in putting right wrongs. I failed to declare my interests in last Tuesday’s debate, so I took advice from the registrar. He assured me that I do not have to give a full account of my life and times, which is a great mercy to everybody, but I do have to declare what I am currently involved in and the remunerations. I serve on the Maternity Transformation Board, which is owned by NHS England, and the maternity Stakeholder Council, which is also supported by NHS England but is much more of a free agent.

I thank the noble Lords, Lord Clement-Jones and Lord Hunt of Kings Heath; it was a very rounded, fulsome and clear introduction to these amendments. I want to pick up the issue of trust, because both noble Lords linked trust and confidentiality. That is absolutely essential. We will not get the support or trust of the public if we do not respect their confidentiality, and I will say a word about that in a minute. I support Amendments 84, 134, 140 and 160—I have added my name to them. I also support Amendments 70 and 73, and wish to comment on those.

I strongly support digital transformation. Amendments 84, 134 and 140 place a duty on integrated care boards to promote digital transformation and to produce their own five-year plans. It will need money, so Amendment 160 requires the NHS to spend at least 5% of its capital allocation to achieve it. That is right, as digital needs sustained resource—it is not simply a “nice to have”; it is absolutely essential for the future of our services. I have talked to visitors from the USA and cannot believe how antiquated they think our systems are. In many places, they are still in the dark ages, so we have to invest in digital.

I support the increased use of digital technology in healthcare largely because of my involvement in two major inquiries into NHS services in the last few years. One evening in 2014, I had a telephone call from Simon Stevens, the chief executive of NHS England, before he was knighted and welcomed into your Lordships’ House, where he has already made a very significant contribution. He invited me to chair an inquiry into maternity services for England. The noble Lord has a sense of humour: he gave me nine months in which to deliver.

I set up a panel and we delivered in time, calling our report Better Births. Our 28 recommendations were accepted by NHS England, which then set up the Maternity Transformation Board and the Stakeholder Council, on which I have declared my interests. The Stakeholder Council is interesting because it is full of a wide range of people. A lot of charities, in particular, are on that council, and add a lot to the work that we do.

Two of the 28 recommendations are particularly relevant to this Bill and these amendments. We recommended that every mother should have her own digital maternity record, which she would create with her midwife. This record would set out the plans for managing her pregnancy, the birth and aftercare, which is so necessary for the baby, the mother and, I would add, the family. The mother’s record would then be accessible, with her permission, to all those contributing to her care. In future, we could see it being part of the child health record, and possibly the lifetime health record of the mother.

Although some progress has been made on improving access to NHS health records, we are still some way from achieving this, or the ambition set out in the NHS Long Term Plan for every citizen to have their own personal health record. We need to galvanise the NHS to move quickly and capitalise on the enormous potential that digital offers. That is what these amendments are designed to do. I am sure my noble friends on the Front Bench will consider them carefully and assess the potential that they offer.

I also recently had the privilege of chairing an investigation into the safety of medicines and medical devices; our report was called First Do No Harm. Thousands of women and children suffered avoidable harm relating to the medicines and one of the medical devices which we reviewed. They continue to live with the terrible consequences today. This harm did not take place in one isolated moment; it has spanned years and even decades. Why was it not detected and stopped? Many people could have been spared the misery it has been for them and their families.

Part of the answer to that lies in the absence of data. We found that data was not collected or that, when it was, there was no attempt to link data to identify patterns of concern. Paper records, such as there were, were incomplete, dispersed, archived or destroyed. The healthcare system could not tell us how many women had taken the epilepsy drug sodium valproate and gone on to have damaged babies. It could not tell us how many women had pelvic mesh implants, or which implants were used, or where and when.

--- Later in debate ---

[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.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

42: Schedule 2, page 137, line 43, at end insert—
“(7) The constitution must provide for one non-voting member to be appointed by the local healthwatch organisations whose areas fall wholly or partly within the area of the integrated care board.”Member’s explanatory statement
The amendment provides for local healthwatch organisations to be represented on integrated care boards in a non-voting capacity.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have a number of amendments in this group concerning Healthwatch and, although it is important, I shall attempt to be brief.

We debated this, of course, in the Health and Social Care Bill 2012. I remember the noble Lord, Lord Patel, led a debate in which he called for the national Healthwatch to be made independent. He said then that embedding Healthwatch in England in the CQC was a mistake. I agreed with him then and I agree with him now. I would argue to the Government that there would be a big advantage in making Healthwatch fully independent. Of course, I am also concerned about local Healthwatch, to make sure it has enough influence in the new system as well.

It is right to pay tribute to the work of Healthwatch. I think it has done a good job since it has been established. Recent reports of national Healthwatch have been about access to dental care, on which I have an Oral Question in a week or two’s time. It undertook a very interesting analysis of the Government’s social care plans compared with proposals, and compared that with what people had told Healthwatch would make social care better.

Locally, my own Healthwatch in Birmingham has done some excellent work. I particularly mention a recent report on digital exclusion during the pandemic, when there was a sudden shift—like everywhere—towards remote access to care. Birmingham Healthwatch identified five principles for post-Covid-19 care, to ensure that everyone has access to the appointments they needed. This included a commitment to digital inclusion by treating the internet as a universal right. I believe its work has contributed more generally to the way in which this is being taken forward in the system. I think that, under the circumstances it has been operating in—not without difficulty and not without some tensions with local authorities—it has made a good start.

I want to just push Healthwatch on a little further and I want the Government to help. First, I am absolutely convinced that national Healthwatch should be an independent body. I have never understood the thinking that it should be a statutory committee within the CQC. I assume it is because, at the time, the Government were going through one of those wearying bonfire of the quangos that all Governments go through before they set up new quangos, to then have another bonfire a few years later. It just makes no sense. Clearly, they have complementary roles, and I am sure that the CQC takes note of what Healthwatch says, but they are different roles: one is the statutory regulator; the other has a responsibility for raising issues on behalf of the public who use the health services.

The question then arises of how we can strengthen Healthwatch at the local level. Will the systems, the integrated care partnerships and integrated care boards, listen to what Healthwatch has to say? A recent survey of ICS leaders—all there, in position—for Healthwatch England and NHS England shows that 80% would support Healthwatch having a formal seat at the table of the ICB if it were set out in legislation or guidance. What about the other 20%? Should it really be down to the vagaries of local leadership to exclude Healthwatch from those local bodies? I really do not think so.

I do not know if the noble Earl, Lord Howe, in answering, is going to be of a centralist or localist philosophy, or both, but it is always interesting to discuss. He and I have been discussing NHS structure for some 25 years now, and somehow the arguments tend to go on. It would be a real advantage for boards and partnerships to have Healthwatch around the table. It need not have voting members—indeed, I do not think it should. It is doing incredibly good work and has not been given enough publicity or recognition by people in the NHS. This surely is a way in which we can do this.

The Government also need to look at the budgets of Healthwatch England, which is going to have to support extra work and will need to be given more resources. Through local authorities, we need to make sure local Healthwatch has enough resources to deal with the pressing issues and challenges it is going to face. Having said that, our job today is just to encourage national and local Healthwatch to build on what they have done. I hope we can do this in as positive a way as possible. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Masham, is now able to speak and I invite her to do so.

--- Later in debate ---

I hope I have given the noble Lord, Lord Hunt, and other noble Lords some reassurance that Healthwatch England is already established, is performing effectively under the CQC and has the ability to perform its duties, purpose and functions. It has had a positive impact on health and care services by ensuring that NHS leaders and other decision-makers hear the user’s voice and use feedback to improve care—that is what it is all about. This has been a good and wide-ranging debate. I hope I have reassured your Lordships about the value we place on Healthwatch. However, we must balance this with the values of flexibility and local determination. For those reasons, I ask the noble Lord to withdraw the amendment.

[Lord Hunt of Kings Heath (Lab)]

I am grateful to the noble Earl, Lord Howe, and all noble Lords who have taken part and been supportive of this group of amendments. I very much take what the noble Earl said about the general recognition of the importance of the work of Healthwatch, both nationally and locally, and the way it has gone about doing it. With Sir Robert Francis as the current chair of Healthwatch England, we have someone who commands a great deal of respect and gives the leadership one would expect from a person of that calibre and experience.

What we are looking for, though, is a visible sign of the Government’s intent on the importance of Healthwatch, both nationally and locally. Frankly, as the noble and learned Lord, Lord Mackay, suggested in his very helpful intervention, having the status of being a committee of a regulator does not give the right appearance of the importance and independence of this body. My noble friend Lord Harris is absolutely right that there could be circumstances in which Healthwatch criticised the work of the CQC. Indeed, the more the CQC takes on system responsibilities, the more likely that is.

In relation to ICPs, the Government “expect”. It is a very short journey between the Government expecting something and putting it in legislation—I hope they will give that some thought.

On the noble Earl’s concern about the size of ICBs, given what he said about conflict of interest issues earlier today, he must recognise that the seats will be empty most of the time, as NHS trusts and local authorities will clearly have to excuse themselves from most of the current debates within ICBs, because the boards will be talking about resources, commissioning, the development of services and the forward plan, all of which those organisations will have a direct interest in. That is why the whole structure of ICBs needs looking at again.

I am very grateful to the noble Earl for taking back the issue my noble friend raised about resources and the way the money flows down to Healthwatch. There is a suspicion here; I think the money goes nationally to local government and then you depend on local authorities to decide how much they will give to each local Healthwatch. I am afraid we know, as we have seen in other services, that some of that resource tends to get—how shall I put it?—diverted into other areas. I never understood why the Government thought that this was a good way to fund Healthwatch. If you set it up nationally as an independent body, the obvious thing to do is give the resource straight to national Healthwatch to allocate locally. I suggest the Government give that serious consideration.

This is one issue that we will want to bring back on Report, as it is important that Parliament gives a very visible indication to the NHS that we think Healthwatch is doing a great job but we want to see it have more influence in future. Having said that, I beg leave to withdraw my amendment.

Amendment 42 withdrawn.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I too am grateful to the noble Baroness, Lady Bennett of Manor Castle, for bringing forward this group of amendments. As many of the Committee will remember vividly, and as the noble Baroness, Lady Wheeler, has reminded us, accountability for the health service was a topic of considerable debate at the time of the Health and Social Care Act 2012 as it went through Parliament. The constitutional position of the Secretary of State was closely scrutinised and the current wording in the Act is very much the product of those discussions. I remind the Committee especially of the hard work done by the noble Baroness, Lady Jay of Paddington, who was at that time chair of the Constitution Committee, her colleagues on the committee and many others, including my noble and learned friend Lord Mackay of Clashfern, who did so much to develop the current wording of the clause. The coalition Government accepted the Constitution Committee’s recommendations in full.

I am afraid that I do not agree with the noble Baroness’s characterisation of the reasons why it was thought appropriate to modify the wording that described the Secretary of State’s responsibility for the health service. As noble Lords will be aware, the idea that the Secretary of State himself provides services has not for many years reflected the real world. As the noble Baroness, Lady Wheeler, rightly said, and as the Committee will remember, it was decided in 2012 that it was better that the law reflected the reality of the modern NHS rather than retaining outdated language. I do not think that the last 10 years have proved that proposition wrong. The current legislative framework allows some of the health services in England to be provided by entities, such as NHS foundation trusts, that are legally distinct from the Secretary of State. That will continue to be the case and should be recognised in the law.

I understand the concerns that Ministers might somehow avoid being responsible for ensuring the continuation of a comprehensive health service. However, there have been many vigorous debates in Parliament about the NHS in the years since those changes in 2012, and they have demonstrated that there has, quite rightly, been no loss in the strong sense of governmental accountability for the NHS felt by both government and Parliament. Indeed, the House amended the Act in 2012 to put beyond doubt that:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”


That has not changed in this Bill; the wording will remain set in statute.

I would gently caution against recreating the fiction that the Secretary of State provides services directly. It is much better to be clear that the role of the Secretary of State is to set strategic direction, oversee and hold to account NHS England and the other national bodies of the NHS and, occasionally, to intervene—as the noble Lord is doing.

[Lord Hunt of Kings Heath (Lab)]

I thank the noble Earl for giving way. Given what he has said—and I know that we will debate this later—I point out that it is curious that the Government wish to take on a power of direction over NHS England, if that is so. I guarantee that that power will never be used because the Secretary of State’s power of direction never has to be used. Once this is passed, that changes the relationship; NHS England will know that the Secretary of State has that power of direction. Although I have tabled some amendments to try to modify it, I have no objections to the general principle, since I do not think that a quango such as NHS England should be freely floating. But we need to recognise that it is a fundamental change in the relationship to impose that power of direction again.

[Earl Howe (Con)]

My Lords, as I was about to say, the 2012 Act does provide for the ability of the Secretary of State to intervene when that is necessary for the smooth and effective running of the system. Furthermore, we should not exaggerate the extent to which this Bill modifies the 2012 provisions. As the noble Lord said, we will debate the powers of direction on a future occasion but, when we come to do so, my colleagues and I on the Government Benches will contend that the powers of direction, such as they are, are very narrow and specific in their scope. They have been deliberately framed in that way to reflect experience over recent years. I would not be in favour of reopening this piece of drafting, given its history and the effort that noble Lords from all sides of the House made to build an effective consensus in respect of the 2012 Act.

The noble Baroness, Lady Brinton, asked about dental access. The department is working closely with NHS England to increase levels of service as quickly as possible. Practices are continuing to prioritise patients based on clinical need. Dental practices are now being asked by NHS England and NHS Improvement to deliver at least 85% of contracted units of dental activity—UDAs—between January and March 2022 to provide improved access for patients. These updated figures are based on what many practices have been able to deliver to date. They take into account adherence to the latest infection prevention and control guidance. I hope that this is helpful to the noble Baroness.

I hope also that I have explained to the noble Baroness, Lady Bennett, why I cannot entertain her amendments, but also that I have reassured her that the accountability chain between health services, Ministers and Parliament, which lies at the centre of her concerns, remains intact.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 3 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Baroness Meacher (CB)]

My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Carlisle. I give my very strong support to Amendment 47, to which I added my name, and Amendment 52. The key arguments have been extremely powerfully made by the noble Baroness, Lady Finlay, and others.

My main concern is to make it abundantly clear that I and everyone I know who supports assisted dying also want to see the highest possible quality of palliative care across the country—not some kind of patchwork, but universally. I, like all noble Lords, have witnessed wonderful palliative care but also what I might describe as substandard care of dying people. The difference to the patient and the relatives is unforgettable for everybody involved. I visited a beautiful hospice with a warm and professional atmosphere recently, but there were empty beds because it had not been able to raise enough money from whatever it was—jumble sales, et cetera. It is entirely unacceptable that hospices are expected to raise funds to provide their services.

As I said, I also support Amendment 52, which details the types of services that must be provided as part of this country’s commitment to providing accessible and excellent care. The inclusion of the definition of palliative care as provided by the World Health Organization would ensure statutory recognition for this most important aspect of healthcare.

Finally, we need to accept that top-quality palliative care must involve patients’ wishes being understood and respected. Patient choice is more and more accepted throughout the NHS, but it is most important at the end of life. Central to top-quality palliative care will be the right of patients ultimately to decide how much suffering they wish to bear and when they have had enough. The lack of control under the current law will inevitably undermine the patient experience of palliative care, however devoted the staff.

The great majority of dying patients will die naturally, even when assisted dying becomes lawful. However, the great majority of dying people will live and die better knowing that they will have some control when it really matters—when their suffering is no longer bearable.

[Lord Hunt of Kings Heath (Lab)]

My Lords, whatever view we take on assisted dying, I think that there is general agreement that the noble Baroness, Lady Finlay, deserves a great deal of support in her two amendments. The predicament that we find ourselves in is that the Minister will probably reject them and say that the Government will ensure that the NHS prioritises these services in the future. The trouble is that we have been here many times before, as the noble Lord, Lord Patel, said. He mentioned 2016, but in 2015 the Economist produced its last quality of death index, as far as I can find out, which basically said that the UK had the best palliative care in the world, but it was very patchy. I am afraid that the situation has simply not moved on.

So the question is: what should we do? Clearly, it is not going to get better if you leave it to the health service. It treats hospices dreadfully, with continuous late contract signing and short-term contract signing by bodies that should be able to agree three-year rolling contracts with those institutions. The lack of priority that is given suggests to me that, unless we take legislative action, we will not see any improvement at all. That is the quandary for us in terms of collectively agreeing a way forward that makes it clear to the NHS that time is up on its neglect of palliative care. We really must take action.

[Baroness Hodgson of Abinger (Con)]

My Lords, I too have put my name to these amendments, so ably introduced by the noble Baroness, Lady Finlay of Llandaff. Because this is the first time that I have spoken at this stage of the Bill, I remind your Lordships to refer to my Second Reading speech and entry in the register of interests for my experience and links around the topic of health. The hour is late, so I shall try to be very brief.

Although Clause 16 currently lists a number of services that the ICBs are required to commission, it fails extraordinarily to include palliative care. We have already heard that current estimates suggest that, although as many as 90% of people who die have a palliative care need, only 50% currently receive that care—only half. I find it somewhat horrifying that, as the noble Baroness, Lady Finlay, told us, a Marie Curie survey found that 64% of people who died at home did not get adequate care, with pain management.

Like others who have spoken, I know from personal experience of family members how hard it was for them to get the care they needed at the end of their life. I am sure that everyone here can share examples of exceptional local hospices, especially facing the challenges of the pandemic, that currently have to fundraise to be able to do the work to fill these gaps—as the noble Baroness, Lady Finlay, told us, they sell cakes. It is quite extraordinary. I pay tribute to the outstanding work of the hospices and the wonderful palliative care doctors for the amazing support they give to those who are dying and their families.

Although I recognise the Government’s concerns about overprescribing the list of services that integrated care boards should commission, it seems anomalous for the Bill to proceed with priority given to ensuring that ICBs commission maternity and other services but have no explicit requirement to commission palliative care services. I am sure that this was not the Government’s intention, but I am concerned that the current drafting implies that health services for people at the end stage of their life are less important than health services for people at earlier stages. Surely the end of life is one of the times when care is needed most. I find it extraordinary that we are even having this discussion.

The addition of these amendments offers a unique opportunity to ensure that nobody with a terminal illness misses out on the care and support that they need, both now and in the future. I look forward to hearing the Minister’s views on these amendments, which will help us to ensure that all of us have the end-of-life experience that we would hope and wish for when our time comes.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

My Lords, I rise to speak to this group of amendments with an emphasis on Amendment 101B, in the name of the noble Lord, Lord Layard, whom it is a pleasure to follow.

Last night, I went to the ballet and saw “Raymonda”, which has been placed in the context of the Crimea. It reminded me that Florence Nightingale took a hammer to a store-cupboard to get food and blankets for some of her patients because nobody knew what was inside it. She went on to be a leader in sound data for health- care, recognising that without data we could not plan for the future. This amendment emphasises measuring the outcomes of mental health nursing and other mental health interventions in order to ensure that we learn from practice and develop best practice cost-effectively. That is why I have put my name to Amendment 101B.

We need to look at similar patterns for care to those for physical illness. For example, the onset of paranoia and delusions which threaten the safety of an individual or those close to them could perhaps be equated with a suspected cancer where you wait for two weeks for an initial diagnosis. How many people are sectioned under the Mental Health Act for assessment because they have not managed to get an out-patient appointment for assessment earlier? I believe that is an example of discrimination against people with severe mental health problems. If we could get parity of access for assessment, it would be an extremely good beginning. I recognise that there are other physical and mental health problems that are less urgent, but I use that as a comparison.

Yesterday at a meeting concerning mental health reform after the pandemic, the Minister for Care and Mental Health Gillian Keegan and the chief executive of Mind were panellists. At that meeting, it was noted that investment in NHS mental health services currently increases year on year, largely due, I think, to action under the leadership of the noble Lord, Lord Stevens of Birmingham. It was £11 billion in 2015-16 and is £14.3 billion today and it will continue to increase, including an additional £2.3 billion by 2023-24. It was said yesterday that the Government will ensure ICBs will increase spending on mental health in their area in line with growth in their overall funding allocations to meet the mental health investment standard. To address backlogs, the Government have published their mental health recovery action plan backed by an additional £5 million to ensure that the right support is in place. This illustrates that the Government are committed to the improvement of mental health services. The amendment would place a duty to monitor this investment and evaluate its effectiveness. I hope that the Minister feels able to support the principle behind the amendment and will meet those of us interested in this area to try to find a summary solution to the issues we are raising on parity not only for mental health care but for the care sector that has been outlined so comprehensively by my noble friend Lady Hollins.

All the points that were made by the noble Lord, Lord Black of Brentwood, concerning osteoporosis could be made for drug-induced psychosis, schizophrenia and other severe mental illness problems. I hope that this Committee will be able to influence an amendment to the Bill that will ensure that the monitoring outlined in the amendment introduced by the noble Lord, Lord Layard, will be taken forward.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to Amendment 50 tabled by the noble Lord, Lord Black, but I want to say how much I agree with Amendment 297J, tabled by the noble Baroness, Lady Barker, about the mess we have between local government and the NHS on sexual health services in general and the HIV services that she mentioned.

My view is that local government has a choice. It either accepts that it is part of a national service here and agrees to earmark funding allocations, or the service will have to go back to the NHS. The current situation is not working. Some local authorities are having to take on the responsibilities of others because some local authorities are not spending sufficiently. There is a movement of people, largely into the big cities, and it is an unfair system. We have to do something about it.

I also support the noble Baroness, Lady McIntosh, in her Amendment 110. Anyone listening to the debates during the recent passage of the domestic abuse legislation would have noted that one of the big challenges is the lack of integration among local agencies. I am afraid the NHS is a part of that and the noble Baroness’s amendment would give a very clear indication to the NHS that we expect more of it.

I have no doubt that, in winding, the Minister will say that Amendment 50 is not necessary because there is already a general duty on the NHS to provide fracture liaison services and the department is doing all it can to encourage the NHS to implement them. However, the dilemma for us is that the positive outcomes from those services have been known about for many years, yet progress in moving to the standard adoption of them through the country is very slow indeed.

As far back as 2010, the Royal College of Physicians produced an audit of the quality of clinical care of patients who had fallen, had a fracture and had been seen in a hospital emergency department. It reckoned then that only 32% of patients with a non-hip fracture received an adequate fracture risk assessment. Just 28% were established on anti-osteoporosis medication within 12 weeks. As a result, the Department of Health incentivised primary care services to initiate these treatments for relevant patients, but, by the end of the first year of that scheme, fewer than one in five patients were receiving the treatments.

--- Later in debate ---

[Lord Kamall (Con)]

One of the reasons for the introduction of integrated care boards and integrated care partnerships is to give local systems, both NHS and local authorities, a platform on which to build new ways of working. That includes social care. If the noble Lord feels that this duty is not explicit enough or that we should bring it out, we should have further conversations.

[Lord Hunt of Kings Heath (Lab)]

The architecture is very curious regarding why we must have an integrated care board and integrated care partnerships. It has never been clear to me why the Government have not attempted to set up a health and care board to bring those services together. We know that the funding systems will be different and that there is a clear difference between free at the point of use and means-tested social care, but surely that is what an integrated board, jointly owned by the NHS and local government, with councillors at the table not officers, is trying to sort out. Why have we ended up with this nonsense of a structure? We are carrying on with health and well-being boards as well. That is the great puzzle here.

If the Government are not willing to move on that, we must come back to the point made by the noble Lord, Lord Scriven. By splitting it, you then must say to the integrated care board, “Ah, but in your duties, you must ensure that you integrate with social care as well.” It really is a mess. The Minister said earlier that this is what the NHS wanted. Yes, this is an NHS Bill designed by NHS managers with a focus on the NHS. I do not know why it is called a care Bill, because it has nothing to do with care.

[Lord Warner (CB)]

Before the Minister responds to that, can I amplify what is being refused here by the Government? As I understand it, he is trying to rely on the Care Act to get local government to co-operate and integrate care with the great elephant, the NHS. This is asking a minor player to take on a major player with far more resources. Amendment 89, tabled by the noble Baroness, Lady Hollins, makes the NHS come back every two years about the outcomes. That is a fairly modest challenge to the NHS and I fail to understand why the Government cannot simply accept that in principle and then negotiate the drafting.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My noble friend Lord Patel has had to leave because of pre-booked travel, but he has given me the honour—and it is an honour—of having his brief speaking notes, from which I would like to start, and then move on.

Before I get on to that, I think it is important for us to remember that NICE was set up to establish the evidence base behind what we do. Before NICE was established—and I have worked with Deirdre Hine, who was very involved in setting it up when she was Chief Medical Officer for Wales—people were doing things because they had always done them and because they liked doing them that way, with no evidence base, and often they were doing things that made situations worse, not better.

As Lord Patel wanted to stress, clinicians have a strong belief now in evidence-based healthcare, and guidelines are critical to ensure high and consistent levels of evidence-based clinical practice across the NHS. The guidelines developed by NICE can be adapted to the local situation, and they are also under review. I should declare that I have served for three years as vice-chair of the group looking at ME/CFS guidelines, and it was very instructive to see the depth to which everything was explored and the rigour of the processes; to the point that, when we were asked to review again some papers, we went back to the beginning and reviewed them all over again. Interestingly, in doing that, we slightly downgraded their scoring, rather than upgrading it, which is what had been expected. I was really impressed at the rigour of the process, including the health economics impact.

That experience has been behind the push to make sure that there is compliance. My proposed amendment would be a way of assessing compliance with the guidelines as predetermined and set out in the NHS mandate. The mandate could select a few that would act as proxy markers across the piece and include a date line, so that their implementation across the country could be benchmarked. It would not increase the workload, because it could draw on existing sources of data in the NHS. As the Minister has said, data is our key to understanding and unlocking things.

The noble Baroness, Lady McIntosh, in her comprehensive introduction to this group of amendments, spoke about type 1 diabetes and highlighted that, in some areas, the adoption of continuous glucose monitoring is as low as 0%, whereas in other areas it is up to 20%. There are a couple of other emerging areas; one is in atrial fibrillation, where direct oral anticoagulants have made warfarin a drug of the past. Yet the variation between clinical commissioning groups’ adoption of the guidance is quite horrifying. There is a threefold variation in prescribing, so there are areas of the country where a lot of patients are being denied an intervention that has been shown to be beneficial compared to what was done before.

We have already alluded to another emerging area: the new biologics. On the face of it, they are very expensive, but they are often remarkably effective—they can revolutionise the management of some diseases. We have a budgetary problem here, because the NHS budgets are year-on-year, and the face-value cost of the new biologics is very high; but if you look at the whole lifetime cost of healthcare interventions then they come out much lower. Take the example alluded to, of Crohn’s disease, and consider the cost of someone having their bowel removed, who might then end up on total parenteral nutrition; it is not only the cost of that nutrition but the costs in all other domains in their life, and the lives of their family. In comparison, the new biologics can rapidly get this disease’s process under control and revolutionise things.

The proposal is to give the CQC the powers routinely to address the adherence to guidelines—that would be specified by the NHS mandate, so a national standard could be set—and introduce a reporting metric using current data sources as a starting point to establish a benchmark. I want to stress, as I know does my noble friend Lord Patel, that we are not advocating for guidelines to be mandatory—that would not be right, because each patient is different and individual—but we are asking for a system to be introduced that gives powers so that there can be scrutiny of whether the guidelines are being adopted, because their adoption would narrow the gap in inequalities. We both feel that we need to commit to address this in this important legislation, because it is a way of achieving tangible action to ensure equity in access to quality in healthcare.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the three amendments that the noble Baroness, Lady McIntosh of Pickering, has referred to. I was the first Minister for NICE, going back to 1999. At that time, we were confronted with a paradox which continues to this day, which is that, although the NHS is full of innovation and we have an incredibly strong life sciences sector and industry, the NHS is also very slow to adopt those innovations. NICE was developed to speed up the introduction of effective new medicines and devices. Right from the start, we had a problem with the NHS being reluctant to implement its recommendations and, within a few months of it starting, a regulation had to be put through which required it to implement them within 90 days. That has been slightly modified since, but none the less, it is still in being. The NHS has become very adept at finding ways to get round this through the various blocks that have been put in at CCG level—the noble Baroness, Lady Brinton, explained clearly the kind of blocks, devices and bureaucratic machinations that are put into place.

The result is that we continue to be very slow to introduce proven new technologies and medicines. NHS patients are very disadvantaged compared to patients in most countries. It then impacts on pharma and the devices industry—I think that pharma is more reluctant now to introduce medicines and develop R&D in this country as a result.

The Minister knows that there is an agreement—it is called VPAS at the moment—whereby NHS expenditure on drugs is capped and industry pays rebates if the cost goes over that cap. Given what I have always thought to be an imaginative agreement and given that industry is essentially underwriting some of those additional costs, surely there must be a better way to approach this which would allow the NHS to implement NICE recommendations enthusiastically, rather than essentially putting into place blocks.

I doubt that we are going to spend two and a half hours on this group of amendments, but these are just as important as the last group, because they go to the heart of whether NHS patients get access to the drugs, devices and technologies that they should. At the moment, they do not. I hope that the Minister might be prepared to take the amendment away. Legislation is the only way that we can see of leveraging the kind of change we need.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I support Amendment 163 in the name of the noble Baroness, Lady Finlay, to which I was delighted to add my name.

Perhaps I may remind the Minister of his very first session at the Dispatch Box. He confirmed to your Lordships that the Government had full confidence in the processes at NICE. In a follow-up letter to me he wrote:

“The National Institute for Health and Care Excellence (NICE) is the independent body that develops authoritative, evidence-based guidance for the health and care system to drive best practice. NICE is one of the few organisations with a remit spanning the NHS, public health and social care, meaning it is well placed to provide a system-wide perspective and support Government priorities for the health and care system.”

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, I want to intervene at not too much length. I welcome these amendments and am grateful to my noble friend Lady McIntosh of Pickering for bringing hers forward. It enables us to touch on a subject which those of us involved in the Medicines and Medical Devices Act will recognise. This is a short version of the debates we had then, but it gives us an opportunity to update a little on those and me an opportunity to ask my noble friend on the Front Bench a few questions arising from that. We are all grateful to the noble Lord, Lord Stevens of Birmingham, who clarified some of the terminology, which saves us going wrong. But I want to do a bit of clarification about some of the amendments as well.

The timing of this is terrific. We are discussing this today and NICE published the outcome of its methods review yesterday, so we can respond immediately. My starting point is to applaud NICE for having taken up and accepted the proposition that there should be a modifier in relation to its appraisals and assessments on severe diseases. We can argue about the precise detail, but it has taken that up.

Secondly, randomised control trials are terribly important but they are not the whole story. NICE has rightly accepted it should look at more real-world evidence and that, too, we can welcome, but it leads me directly to a question. Part of that real-world evidence, and one of the reasons it is not going directly to NICE, though NICE can use it, is the innovative medicines fund. NHS England published its proposal for the innovative medicines fund in July and said that it would consult on it, but it has not done so yet. My first question to my noble friend is therefore: when will NICE and NHS England consult on the innovative medicines fund?

The third point on NICE’s methods review is that it will take account of the wider impacts of the treatments it appraises. That is terribly important, especially given the present opportunities for personalised medicines and gene-based treatments, when one looks at how these can impact substantially on people’s lives from a relatively early stage and the contributions they can make to society and the economy. That is all good news.

The press release from NICE, however, did not draw specific attention to where it had proceeded in a way that its stakeholders did not support. It has maintained a reference-case discount rate of 3.5%, although NICE itself admitted that there was evidence that a lower discount rate would give significant benefits. It said that there would be wider implications for policy and fiscal complexities and interdependencies if it were to do this, which I think means “The Treasury said no”. We need to think very hard about whether a discount rate as high as 3.5% is appropriate for NICE’s application of its appraisals. I ask my noble friend, though he will not be able to give me the answer to this: who is telling NICE that it cannot adopt what it regards as the evidence-based discount rate for the appraisals it undertakes?

[Lord Hunt of Kings Heath (Lab)]

My Lords, on that basis, I have seen it said elsewhere that NICE has referred to its “national stakeholders.” I can only assume that they are Her Majesty’s Government.

--- Later in debate ---

[Lord Kamall (Con)]

I thank all noble Lords who have spoken in this debate, both to the amendments and in making wider points about NICE. I take this opportunity to pay tribute to Gillian Leng, who recently stepped down as chief executive of NICE after a number of years.

I turn to Amendment 54. I am sure noble Lords will appreciate that we all want NHS patients to benefit from proven and cost-effective treatment; no one would want otherwise. That is why we see NICE as playing a vital role in supporting patient access to new treatments. I have heard the criticisms from previous Health Ministers, who were responsible for NICE. I sometimes feel in debates such as this, when I am with former Health Ministers, that it is like a special edition of “Doctor Who”, with previous regenerations. I hope we do not create a fracture in the space-time continuum. NICE recommends the vast majority of new medicines for use by the NHS. In fact, in 2020-21 100% of new medicines were recommended by NICE and many thousands of NHS patients have benefited from access to some of the most cost-effective treatments as the result of its work.

Another interesting thing is that when a decision is made and it is difficult to access medicines, patients will get frustrated—rightly so, given that they know it is available or maybe has been recommended. At the same time, on the global stage NICE has a well-earned reputation. It is one of my three priorities; I have mentioned technology, the second is life sciences and the third is international health diplomacy—how we use our position on health as part of UK soft power. One of the institutions people across the world look to and want to learn from is NICE. NICE is looking to be at the centre of a number of global networks on the issues where it has a reputation.

NHS England and clinical commissioning groups are already under a statutory obligation, under Regulations 7 and 8 of the snappily titled National Institute for Health and Care Excellence (Constitution and Functions) and the Health and Social Care Information Centre (Functions) Regulations 2013, to fund any treatment recommended by NICE through its technology appraisal or highly specialised technologies programmes, usually within three months of guidance being issued. As the noble Lord, Lord Stevens, mentioned, NICE also operates a separate medical technologies programme, which supports faster and more consistent adoption of medical devices, diagnostics and digital products.

I assure noble Lords that these funding requirements will apply to the ICBs once established. Therefore, we do not see the amendment as necessary at this stage for clinicians to prescribe NICE-recommended treatments for their patients. I also thank the noble Baroness, Lady Merron, for pointing out some of the unintended consequences and scope of such amendments. I remind your Lordships that, since April 2021, NHS England’s medtech funding mandate has supported faster access to some of these innovative technologies recommended by NICE.

I know that I am going to try to reassure noble Lords on a number of things but, on Amendment 74, I hope they note that the funding requirement on ICBs for NICE-recommended treatments goes even further than the requirement to promote what the noble Lords propose in the first part of the amendment. This will ensure that clinicians will continue to be able to prescribe NICE-recommended treatments for their patients.

The second part of the amendment would replicate existing arrangements that are in place to measure uptake and use of NICE-recommended medicines. Since 2013, NHS Digital has published an innovation scorecard that reports uptake of medicines that NICE has recommended in the last five years at a national and local level. Data on the uptake of NICE-recommended medical devices is not currently reported in the innovation scorecard as it has been more complicated to collect. However, I assure noble Lords that work is under way, by both NHS Digital and the Accelerated Access Collaborative, to address this gap. The Government consider that it is more appropriate and proportionate that this information is collected and published by a single national body using an agreed methodology, not by multiple organisations that will each have different ways of measuring and presenting the data.

On Amendment 97, I can tell noble Lords that NICE works closely with the MHRA—I thank the noble Lord, Lord Stevens, for pointing out the distinction —which issues marketing authorisations to ensure that licensing and appraisal timescales are aligned wherever possible. The NHS in England usually funds any treatment recommended through NICE’s programmes within three months of positive final guidance. We believe that three months is a realistic framework for providers to prepare for and introduce a new technology, and I hope I can assure the Committee that NICE and NHS England already work closely to facilitate the adoption of recommended technologies as quickly as possible.

As the noble Lord, Lord Stevens, again alluded to, there is a high level of transparency in the operation of local formularies. Formularies have their own public websites, which list the selected medicines and associated guidance, and area prescribing committees publish the minutes of meetings, which identify the medicines added or removed from formularies. We believe that there is therefore no need to publish an annual list.

Although healthcare providers are encouraged to use local formularies when prescribing, they are not restricted to them. The decision as to what to prescribe lies with the prescriber, who will act in the best interests of the patient. Indeed, some of the correspondence I get as a Minister for Health often refers to when people cannot get access to a medicine that is not recommended, but the clinician has the authority to suggest that that medicine can be available to the local area.

[Lord Hunt of Kings Heath (Lab)]

I am sure the Minister is right about how this system is meant to work, but there are far too many examples of clinicians seeking to prescribe medicines that have gone through the technology appraisal and then finding that CCGs have set up the various devices that the noble Baroness, Lady Brinton, mentioned to delay or stop it. Does he recognise that CCGs are engaged in a process of seeking to delay implementation for as long as possible? Will this be accepted under ICBs or will it be tackled?

[Lord Kamall (Con)]

I thank the noble Lord, Lord Hunt, and the noble Baroness, Lady Brinton, for raising this issue. I should be honest; I was not aware of the suggestion that CCGs often delay and whether that situation will be transferred to ICBs. I ask noble Lords whether I can look into that situation further to understand it more. I simply say that I was not under that impression.

--- Later in debate ---

[Lord Crisp (CB)]

My Lords, I shall speak to Amendment 112 and 17 others that are in my name. I am very grateful to the three noble Lords who have added their names to these amendments. These are terribly straightforward; it is the same point in a number of different contexts. As we put it in the explanatory statement, the amendments

“would require Integrated Care Boards to work with the four primary care services … when preparing and revising their five year plans, in the same way they are required to work with NHS trusts and NHS foundation trusts.”

It is a very simple, straightforward point and a matter of proportion. It is appropriate to give a similar level of influence and respect to primary care as we give to acute services.

I will mention that there are some practical difficulties —obviously, there are many more primary care services than NHS trusts—and come back to that at the end. If it is not obvious enough that we should do this, I want to pull out three points about why this is so important; I expect that others will mention other points. I am talking here about GP surgeries, as opposed to the other three services, although I totally endorse everything that my noble friend Lord Low just said about ophthalmology services.

First, if it is true, as Members across this Committee have argued for however many sessions it has been, that a large part of the future is community-based, then alongside public-health figures and their clinical work, it is primary care—nurses and others, not just doctors—who will be the essential guides and specialists to help all those place-based, arts, non-clinical and inequalities-busting activities that we have talked about for a considerable part of this debate. They have that key role.

Secondly, I was dismayed by the way the Government criticised GPs recently. Primary care is under enormous pressure and I do not understand why the Government chose to do that. A large part of the problem is that there are simply not enough primary care specialists of all kinds, including GPs, and I do not think any progress has been made towards the promised 5,000 extra GPs. Primary care is under enormous pressure throughout the country and, while I greatly welcome the focus in the Bill and in government policy on waiting lists, I believe that it will be here in primary care that we will see the real battle for the future of the NHS. It is really important that we give those who are doing so much in our services the respect, influence and prominence that they deserve.

My third and perhaps, in some ways, biggest point is that primary care is changing very fast in all kinds of ways; it is an area where there is enormous innovation. As the Royal College of GPs itself says about the role of the GP, there is a place for one-off consultations—a place for the GP on the railway station, or wherever, where you can have a very quick consultation—but there is an even bigger place for the sort of continuing role based on the relationships between a GP and their patient that we are familiar with traditionally and which I thought the noble Baroness, Lady Cumberlege, described so well in describing her father as knowing his patients “inside and out”. That relationship, however, is not just with individual patients; it is a relationship with the community. Many GPs have taken that role, but more are taking on the role of a relationship with their community.

Some GPs are rewriting this role so that it is more of a public health role in some ways. There is Sir Sam Everington at Bromley by Bow, whom the noble Lord, Lord Mawson, mentioned in his great, eloquent speech on our last occasion in Committee, and others such as Dr Gillian Orrow, who is bringing together groups in the community and leading Growing Health Together in Horley. Others are taking on wider roles, such as Dr Laura Marshall-Andrews in Brighton. People are thinking about their role in a very different and important way and I apologise for giving three southern examples—they happen to be ones I know very well, but I know that this sort of innovation is going on around the country. More generally, of course, we can think about social prescribing and the way that that is changing primary care.

Here is the really big point: these doctors, nurses and others in primary care are acting as clinicians, of course, but they are also agents of change. They are the animateurs, the facilitators enabling local health-creating activity. For that reason, we need to have people like them fully engaged in the planning and all the mechanisms of the new NHS structures so that they can have the influence needed for the future.

I come back to the practical note I made at the beginning. Of course it will be difficult to engage primary care appropriately in every way and there might not be the same structure and arrangements in every part of the country, but it is really important that we get these primary care inputs into the five-year plans, their monitoring, planning and discussion so that they can really influence what will happen in the future. I understand that the Royal College of GPs is in discussion with the Department of Health. I urge the Minister to encourage his officials to find a way to make this obvious thing, which needs doing, work. It is vital that we do not disfranchise a key and currently quite largely demoralised sector or, as importantly, lose their valuable contribution.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have Amendments 117 and 218 in this group. I have also put my name to the series of amendments put forward by the noble Lord, Lord Crisp, but I start by endorsing what the noble Lord, Lord Low, had to say. I hope the Government will come back sympathetically in relation to that.

My Amendment 117 would ensure that primary care professions would have mandated roles within integrated care partnerships, with members appointed by each of the four practitioner committees: the local medical, dental, pharmaceutical and optical committees. Secondly —and this is very consistent with the amendments from the noble Lord, Lord Crisp—this would ensure that, in preparing their annual strategic forward plan, the integrated care board and its partner trusts and NHS foundation trusts would need to consult the relevant primary care local representative committees and publish an explanation of how they took account of those views when publishing their plan.

I have the same arguments as the noble Lord, Lord Crisp, and I will not repeat them because he put them so well. History has shown that, even when clinical commissioning groups were nominally under the control of GPs, they often found it very difficult to get the rest of the system to listen to their issues and concerns. I agree with the noble Lord that there is now so much pressure on primary care that there is a great risk that they will be ignored in the work of the ICBs in particular. That would be a great pity. It is not just GPs, but the other parts of the primary care world. The noble Lord, Lord Low, already referred to ophthalmologists and opticians, but there is also this conundrum about the ability of pharmacists to take some of the load off the system but there is also often the inability of the local NHS to talk to them and embrace them sufficiently.

I hope the Minister will be sympathetic. If he says that he is not willing to tell ICBs that they must embrace representatives of the local committees then there is now a clear conflict. He is saying that it is up to the local ICBs to decide, but it has become abundantly clear that NHS England is giving out very heavy-handed guidance about who should be on ICBs. I would make this point to him: you cannot have it both ways. Either you leave it up to ICBs and withdraw this guidance, or Parliament has a role and a right to determine the governance arrangements. The action of NHS England in being so heavy-handed, such as saying that local councillors cannot serve on ICBs, means that the argument he put forward really does not stand up any more.

I move to my Amendment 218. On this one I must remind the House of my membership of the board of the GMC. The noble Lord, Lord Crisp, talked about the crisis in workforce issues generally, which I am not sure we are going to get on to today now. In relation to GPs, it is very apparent that not only do we have a chronic shortage but there is a grossly inadequate distribution of GPs throughout the country. Recent data, published by NHS England in November, shows that the primary care network covering an area in Gloucestershire described as 4PCC and comprising Cadbury Heath, Close Farm, Hanham and Kingswood had an average list of 1,138 patients per full-time equivalent GP. There are some others with similar figures. At the other end of the scale, Shore Medical primary care network in Dorset had an average list of 7,317 patients per full-time equivalent GP. York Priory Medical Group PCN had an average list of 7,154 patients per full-time GP and the Marsh Group PCN in Kent had an average list of 7,040 per full-time equivalent GP. These are huge disparities and there are many other areas that have average lists of under 1,600 and plenty with averages of more than 6,000.

The situation is really reminiscent of the situation before the start of the NHS. That is why in 1948 the Medical Practice Committee for England and Wales started work. It was charged with ensuring equitable distribution and, to a large extent, I believe it achieved its objectives. It was abolished in 2001 and I had better confess to the House that, I am afraid, I took through the legislation abolishing it. However, we were at the start of a massive expansion in the workforce at that time and felt that at that point the kind of bureaucratic way in which the MPC worked probably was no long fit for purpose.

We have a real problem here and confirmation of the dire situation was provided recently in research by the University of Cambridge’s department of primary care. A team including Dr Rebecca Fisher found that the significant GP workforce inequalities I have talked about are increasing and that workforce shortages disproportionately affect deprived areas. If you look at the situation in deprived areas, practices often have lower CQC scores, lower quality and outcome framework performances and lower patient satisfaction scores. Patients in those areas often have shorter GP consultations despite the fact that they have more complex health needs.

General practice is paid according to how many patients they have, with an adjustment made for the workload associated with those patients. Since 2004, the global sum allocation formula, known as the Carr-Hill formula, has been used to make that adjustment. However, Fisher argues that the consultation length is a flawed proxy for need and that the formula has long been widely acknowledged to be incapable of accurately weighing needs associated with socioeconomic deprivation. In 2020, after accounting for need, practices serving deprived areas received about 7% less funding per patient than those in non-deprived areas.

There is also the targeted enhanced recruitment scheme. This offers trainee GPs a one-off payment of £20,000 when joining a practice in an area that had long-standing difficulty in getting more doctors. However, this has not made a significant difference and clearly is not the answer to this enormous problem.

In the amendment—and I am very glad to have the support of the noble Lord, Lord Warner, and the noble Baroness—I have proposed the creation of

“the General Medical Practitioners Equitable Distribution Board”

as a first step. I envisage the board being invested with discretionary powers of negative direction, as was the MPC. It would consider applications from primary care networks, and they would be expected only from adequately doctored, or more than adequately doctored, PCNs. It would be a way of intervening in the market and making it more difficult to appoint GPs in those areas that are already very well supplied with doctors.

I accept that this is not the only approach, but it is an approach that has worked in the past. Frankly, I do not think that we can carry on without some major intervention to try to spread the load, because it is clear that all the odds are stacked against you if you are in an area of high deprivation where there are many more patients per GP. You get burnout among the professions and things become very difficult indeed. It looks as though financial incentives are not the answer. Clearly, we need to get more GPs into those areas to lessen the load, and then improve the quality and outcomes. I hope the Minister will be prepared to take this back and give it some consideration.

--- Later in debate ---

[Lord Warner (CB)]

I have listened very carefully to what the Minister is saying in response to these amendments but, at the risk of being a historian again, is he aware that influence on key decision-making in the NHS is diminishing for primary care in general and GPs in particular? If we go back to 1990 and the GP fundholding changes to the NHS made by the noble and learned Lord, Lord Clarke of Nottingham, if we move through the Blair years of practice-based commissioning and go to the changes by the noble Lord, Lord Lansley, with clinical commissioning groups, these are three examples where GP influence on decision-making—strategic, local and tactical—is very considerable.

As far as I can see, that has been diminished in this Bill and they have been put back in their box without a lot of influence on key decision-making. They are poked down at the local place level. That is not right. What the Committee is saying needs to happen in the NHS. The Minister must go back to his department and talk through what is happening here, because it is diminishing the role of the GP in particular.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord has said that the Bill came because this is what the NHS wanted. But we must be clear who in the NHS wanted it, and it is obvious that it was the senior chief executives at the local level and NHS England. No wonder primary care has been completely squeezed out of it. Listening to this debate, it seems to me that the proposals from NHS England never had any scrutiny. Ministers just accepted this and, because NHS England does not engage externally, there has not been the testing that you would normally get, and we are having to do it now. Frankly, the wheels are falling off. It is tempting to invite the noble Lord, Lord Lansley, to come in, because clearly CCGs were all about putting primary care in the driving seat. This seems to be removing them altogether and it is worrying.

[Lord Lansley (Con)]

My Lords, in response to that, may I say that when I was shadow Secretary of State for several years, GPs consistently told me that if only they were given the responsibility, they could do it so much better than primary care trusts? So we gave them the responsibility in ways that were very like the locality commissioning that was the endpoint of the GP fundholding of the noble and learned Lord, Lord Clarke of Nottingham. To be fair to them, there was less money, but no sooner did they take this responsibility than NHS England said, “Hang on a minute, you’re not doing what we’ve told you to do.” It took about 18 months, perhaps slightly less, before NHS England effectively said, “You have no further autonomy. You’re going to be in the sustainability and transformation plans,” which are the forerunners of ICS. I do not think that the clinical commissioning groups ever got the chance to do what they were asked to.

We have now reached the point where, as the noble Lord, Lord Warner, rightly says, they are being written out of the script, but they are not complaining, which is very interesting. They are not complaining because they do not want to be responsible for the budgets; they want to be responsible for the patients. They always said that they wanted to decide how locality commissioning should be done and the good ones have put tremendous things in place in terms of population health management, patient pathways and commissioning linked to those patient pathways. That is why, if we can do something with this Bill, it is to retain all that locality commissioning with GP input. But be prepared for the ICS, the big battalions, to go away and fight with the barons in the big hospitals.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I put my name to Amendments 109 and 226, in the name of the noble Lord, Lord Rennard. I also have my own Amendment 204, which I will not move or speak to, because we dealt with Healthwatch in a debate which seems a long time ago but was only two Committee sittings ago.

I refer to the remarks of the noble Lords, Lord Warner and Lord Lansley. It seems to me that behind this is the hard issue we face that the huge increase in the number of people waiting will, I am afraid, take us back to the very bad old days of the perverse incentives existing within the NHS for patients to be encouraged to go for private care because of the length of the waiting list and waiting times. The noble Lord, Lord Warner, will recall that under the Blair Government, as part of our attack on waiting times, we had to tackle this issue of certain consultants—I suppose I should declare my interest as a member of the GMC board, though I am certainly not speaking on its behalf—and certain perverse incentives for patients to be encouraged to go to the private sector. Of course, much maligned though they were, that was why independent sector treatment centres were set up, and they were part of the process of driving waiting times down. We now have a huge problem of huge waiting times and a huge number of waiting lists, and we have to be very careful to ensure that these kinds of perverse incentives do not come back into the health service.

[Lord Warner (CB)]

Does the noble Lord recall that, when independent sector treatment centres were established, they operated on the basis of NHS prices, so people were getting NHS treatment in these independent sector treatment centres at the same price that the NHS would have had to pay for that treatment?

[Lord Hunt of Kings Heath (Lab)]

My Lords, that was a very important intervention, and I am grateful to the noble Lord for jogging my memory. I think that he would agree, though, that apart from the price, the point was that it was an important element in getting waiting times and waiting lists down. At the moment, we are clueless about how the Government are going to do this. As the noble Lord, Lord Lansley, said, we will have a debate—I hope tonight—in relation to procurement, but I say to the Government that the open-ended nature of the regulation-making power that they propose to give to Ministers in such an important area is utterly unacceptable and has been drawn to the House’s attention by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, as the noble Lord knows.

--- Later in debate ---

[Baroness Harding of Winscombe (Con)]

I personally believe that international collaboration and engagement in research across all parts of the United Kingdom go hand in hand. It should not be either/or; it is a combination, and we need to do both. The amendments that I am speaking to call for every NHS organisation to participate and become research active.

Finally, and briefly, I urge the Minister to embrace this opportunity to embed what is genuinely cross-party support for clinical research in legislation. We all want to put the UK on the path to being the best place in the world to participate in health research. We will do that, as the noble Lord suggests, by collaborating internationally, but we will address the health inequalities that we have all spoken about over the many days of Committee only if all NHS trusts have a duty to conduct research.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I agree with the thrust of all these amendments. Most of the discussion has been about research—encouraging research in clinical trials within NHS trusts and foundation trusts—but I want to speak in support of Amendment 78, in the name of the noble Baroness, Lady McIntosh, which looks at the issue of commissioning and the role of integrated care boards, because I believe that it is just as important to ensure that integrated care boards have in mind the need, through their commissioning policies, to encourage innovation. In our last debate on NICE, last week, we discussed the same issue, which is the fact that the reason NICE exists is that there are many innovative new medicines and treatments coming on stream, many of them developed in the UK, which the health service has found difficulty in adopting more generally.

The noble Baroness’s Amendment 78, about ICBs, is designed to encourage the ICB boards to consider that they have a responsibility in relation to innovations. It also proposes that integrated care boards must appoint a dedicated innovation officer to the board. I do not want to open up the issue raised by my noble friend Lady Thornton as we went into Committee, but we come back to the issue of the composition of ICB boards. She referred to guidance issued by NHS England a few days ago, which is not obtainable in the public domain. It is obtainable through something called “NHS Net”, but the Library has not been able to get hold of it. It is a bit much that advice on the contents of the Bill has been given out which we cannot even see. I hope that, as part of his response to my noble friend Lady Thornton, the Minister will look into that.

On the question, “Why add another postholder to the board of an ICB?”, I point to the Nuffield Trust report, which says that no organisation in the health service at the moment—or very few places—has someone with a direct responsibility for encouraging innovation. The Nuffield Trust thinks that having chief innovation officers with broad oversight could make what it calls a fundamental difference. I refer the noble Lord to research by the ABHI, which is essentially the trade association for medical devices. It showed that fewer than 20 NHS trusts across the UK have a member of their board with explicit responsibility for the uptake of innovative technologies.

Sometimes one must be wary of having a board appointment that may seem to be a token appointment. However, when it comes to commissioning, having someone around the table who is constantly reminding the board that through commissioning we must encourage and invest in innovation, would be very helpful. The slew of amendments tabled by the noble Baroness, Lady McIntosh, is valuable in getting that message across.

[Lord Patel (CB)]

My Lords, I am seriously concerned, for my sake, that I am invisible to the noble Baroness, Lady Harding—which I regret, but I will tease her about it.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

93: Clause 20, page 18, line 26, at end insert—
“(d) the impact on the diversity of provision of health and care services, including social enterprises, independent providers and charities in that area.”Member’s explanatory statement
The amendment would place a duty on NHS England and Integrated Care Boards to ensure that there is a diversity of provision within local areas including social enterprises so that there is a range of choice and expertise available to local communities.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been rather a long wait, though I doubt that we shall spend as much time on this group as we did on the last. I do not pretend that the issue of procurement is as important as that of the workforce; none the less, when we come to Clause 70 there are some very important considerations.

I should say that, although my own two amendments are narrowly focused, in opening this debate I must register with the Minister concerns about the open-ended nature of the power to be given to Ministers under this clause. In essence, through secondary legislation, the whole procurement regime can be changed at the whim of an executive order. Services could be privatised or outsourced or whatever Ministers choose to do with them subject to regulations. It seems rather extraordinary that we are taking out the marketisation sections from current legislation only to replace them with an open-ended power and a procurement regime when we simply do not know what it will be.

I remind the Minister that the Delegated Powers Committee has been very clear that Clause 70 needs very careful attention. As it says,

“initial consultation has been carried out by NHS England on the content of the”

procurement regime, but

“full analysis has not been completed and there has not been time to produce a more developed proposal.”

The Delegated Powers Committee concluded:

“We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.”


I hope that the Minister, when he winds up the debate, will say something more about this and how the Government intend to respond. I think it very unlikely that we will let this Bill leave this House with this clause unaltered. Indeed, I note that the noble Lord, Lord Lansley, intends to oppose that Clause 70 stand part of the Bill.

My two amendments are probably the easiest that the Minister will have to deal with in this group and I hope that, for once, he will just get up and say that he accepts them both because they are very sensible and helpful to the way in which one wishes to see the NHS develop commissioning arrangements at the local level. The first, Amendment 93, requires NHS England and integrated care boards to consider the impact of their decisions on the diversity of provision for health and social care services, particularly social enterprises and charities.

I just want to talk about social enterprises: they are set up with a social mission and deliver that mission with all the income that they receive. Over the past 20 years, they have become an ever more important part of delivery of healthcare services. My understanding, from Social Enterprise UK, is that there are 15,000 social enterprises delivering health and care services in this country and that there is very strong evidence to suggest that these organisations are very good at what they do—often better than the alternatives. Indeed, according to a review of public service mutuals, a form of social enterprise, commissioned by DCMS in 2019, these organisations are developing high levels of productivity and better outcomes than their peers and the private sector. Their productivity has increased 10 times faster than that of the rest of the public sector over the past decade. Why? They have done it through innovation: by listening to communities and focusing on their social mission, social enterprises have been able to prepare to make changes to service delivery that other providers have been unwilling to do. As a consequence, a report in 2020 by the King’s Fund described social enterprises as

“‘engines of innovation’ within health and care”.

The Bill as it stands does not provide any duty, responsibilities or guidance for integrated care systems or NHS England to consider social enterprises within their activity. My understanding is that, because we already have these shadow ICBs, it is being interpreted at local level that there is not a future for social enterprises within local systems. There is a risk that decisions are now being made by these shadow organisations, which have no statutory being at all, that there will be a reduced role for these social enterprises in the future. That would be a tragedy, and I must ask the Minister to look at my amendment. It is very innocuous: all it asks ICSs and the NHS to do is to consider the impact of their decisions on a wider provider lattice. He could go further. It would be very simple for a message to be sent down the service from this debate to say that they got it wrong about social enterprises and they should indeed be thinking of commissioning more services in the future from there.

My Amendment 211 is linked to it. It deals with social value and how they should be embedded into procurement processes by integrated care boards. The definition of social value is the process by which public bodies seek to maximise the additional social, environmental and economic outcomes of the money that they spend. The coalition Government in 2012 supported the passage of the Public Services (Social Value) Act 2012. The adoption of the Act in the NHS has been very patchy indeed. I shall not delay the Committee by going into the details, but it is very disappointing. All my amendment would do is put a simple duty on NHS England to create guidance and ensure that social value is clearly understood across the system. It would be only guidance: it surely could not be a problem for the Government to endorse their own policy on social value in the NHS. I hope that the Minister will be sympathetic. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Lord, Lord Howarth, is taking part remotely and I now invite him to speak.

--- Later in debate ---

[Lord Kamall (Con)]

As the noble Lord will recognise, when I was appointed to this job, I did say that I wanted to consult as many previous Health Ministers as possible, as well as people who have worked in the field. It is clear from this debate that more consultation and discussion are needed, so I would welcome noble Lords’ advice. On that note, I beg that Clause 70 stand part of this Bill and hope that the noble Lord will withdraw his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the hour is late. We cannot have the extensive debate that we probably require. I shall be very brief. I should have declared an interest as president of the Health Care Supply Association, the NHS procurement professionals.

On social value, I am very grateful to the Minister because he said that guidance will be issued to the health service on this, which is gratifying. On social enterprise, my noble friend Lord Howarth, the noble Lord, Lord Warner, the noble Baronesses, Lady Bennett and Lady Walmsley, and my noble friend Lady Thornton of course, all referred to the value of social enterprises. The Minister is not convinced that we need to put anything in the Bill. The point I need to put to him is this: it is clear from intelligence from the health service what the people running what I call the shadow ICBs want. I do wonder what we are doing legislating when obviously, everything is up and running; it is very difficult to know why we are here tonight debating these issues. Clearly, the NHS wants it, so it has got it and it is Parliament’s job, presumably, to just legitimise what it is already doing.

Having said that, these integrated care boards believe that social enterprises are not to be invested in in the future. So, my appeal to the Minister is this: fine, do not put it in the Bill, but please get a message out to the 42 ICBs telling them not to be so silly as to think that they should carve social enterprises out of the new regime.

More generally, on procurement, it is very interesting to be debating with the noble Lord, Lord Lansley. We fought tooth and nail for days on Section 75 of the 2012 legislation. Along come the Government, now saying, “Oh, we’re going to get rid of it. We don’t know what we will replace it with, but it is all right because we can have some negative regulations which mean we can steam it through without any scrutiny apart from a desultory debate as a dinner-break business sometime in the future. Oh, and by the way, there’s procurement legislation coming along too, but we can’t tell you what will be in there.”

Somehow, between now and Report, collectively we need to find a way through. I confess to the noble Lord, Lord Lansley, that I am rather pleased to see Section 75 go. However, something has to be put in its place, or we will just leave the NHS to get on with it and await future regulations and legislation. One thing for sure is that the idea of leaving the Bill with Section 70 and not even accepting the noble Lord’s sensible suggestion of the super-affirmative procedure is quite remarkable, and clearly it will not run. Having said that, I beg leave to withdraw my amendment.

Amendment 93 withdrawn.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

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

Moved by

[Lord Hunt of Kings Heath]

145: Clause 20, page 27, line 43, at end insert—
“(3) Subsections (1) and (2) do not have effect if the information involves the personal data of patients.”Member’s explanatory statement
The amendment is aimed at ensuring that the power to disclose information should exclude personal data on patients and is a probing amendment to see what purpose the Government thinks the power in the clause may be used for.

[Lord Hunt of Kings Heath (Lab)]

My Lords, my amendment concerns patient data. I want to probe the meaning of new Clause 14Z61, proposed by Clause 20(2), which relates to the permitted disclosure of information by integrated care boards. It sets out, on page 27 of the Bill, a number of conditions under which disclosure can be made. They include when

“the information has previously been … disclosed to the public”

or

“the disclosure is made in accordance with any enactment or court order”.

That seems perfectly sensible. However, proposed new subsection (1)(f) contains a catch-all condition under which a disclosure can also be

“made for the purpose of facilitating the exercise of any of the integrated care board’s functions”.

That seems remarkably open-ended. My amendment seeks an assurance that this power excludes the personal data of patients.

We have already had one go at the issue of data and digital transformation, and I have told the House that I am right behind the efforts of the NHS and the Minister’s department to encourage the digital transformation of the NHS. The potential is clearly enormous. However, public confidence depends on the integrity of the system and having embedded in it a guarantee that every use of data will be consensual, safe and transparent.

The recent Laura Wade-Gery review, on which a number of noble Lords have commented, acknowledged some of those concerns. As she said:

“The field of data science is undergoing a revolution as new tools such as machine learning transform our ability to gain insights and improve outcomes. These advances, combined with the explosion of new data driven commercial business models, have caused citizens to be concerned about the privacy of their individual health data and the controls in place over its dissemination and use.”


There may be situations where a patient does not want a doctor—by the way, just for the Chief Whip’s reassurance, I have not spoken for 37 minutes as the clock says—to tell another doctor something about them, yet this can be ignored by those who want to copy records across a lifetime. Modern communications have created the capacity to copy medical records on a scale that can shatter medical confidentiality.

The experience of Care.data is surely a lesson for us. The decision to axe the scheme followed the publication of two reports that supported far greater transparency over what happens to the information, and opt-outs for patients who want their data seen only by those directly caring for them. A review by the late Dame Fiona Caldicott, and a second by the Care Quality Commission, recommended tougher measures to keep people’s medical information confidential. The Caldicott review said that there needs to be much more extensive dialogue with the public as to how their information can be used. As she said:

“Citizens have a right to know how their data is safeguarded. They should be included in conversations about the potential benefits that responsible use of their information can bring. They must be offered a clear choice about whether they want to allow their information to be part of this.”


This was brought home to me recently by NHS England’s announcement that it is to give trusts, as employers, access to the Covid and flu NHS vaccination records of their staff. I am fully behind the vaccination drive and sympathetic to the Government’s mandating of vaccines, but the announcement said:

“To assist Trusts with understanding the vaccination status of their workforce, we are providing a solution for Trusts to view the vaccination status of staff who are on the Electronic Staff Record … system. To do this, we are undertaking an exercise on Trusts’ behalf, to match ESR data, using NHS numbers, with vaccination data held in the National Immunisations Management System … which includes data drawn from all point of care vaccination systems. Following a successful import of ESR data into NIMS, a dashboard will be provided to each Trust detailing their workforce Covid and Flu vaccination uptake, drilled down to employee-level.”


Let me be clear: I support the vaccination drive, as I said, but am I the only one to worry about the access to confidential data that is being given? I recognise that we are talking here about electronic staff records as opposed to electronic patient records, but the principle of releasing patient data is the same.

I would like to hear some assurance from the Minister about the use of this clause and the open-ended nature of new Section 14Z61(1)(f), because, as I think we will shortly hear from the noble Baroness, Lady Brinton, such an open-ended disclosure provision in other legislation would be looked at with very great concern. Having said that, and having taken up 44 seconds, according to the Clock, I beg to move.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have failed in my duty, and not for the first time. I should have stated before calling Amendment 145 that the noble Baronesses, Lady Brinton and Lady Harris of Richmond, will be taking part remotely. May I apologise, and invite the noble Baroness, Lady Brinton, to speak?

--- Later in debate ---

[Baroness Chisholm of Owlpen (Con)]

My Lords, I am grateful to the noble Lord, Lord Hunt, particularly for his brief and, as always when he speaks, his clear understanding of the amendment. It makes it so much easier for us to know where the noble Lord is coming from.

I am grateful to all other noble Lords who spoke on this issue, and I understand the interest in the integrated care boards’ power to disclose information that is personal data. As the noble Lord, Lord Hunt, mentioned, public trust is essential in this and individuals’ data will be used lawfully and with respect, and held securely with the right safeguards in place. It will need to be proportionate, transparent and subject to individuals’ rights to access and correct information in use.

Let me further explain how we will make sure this happens. I assure noble Lords that the clause already restricts integrated care boards’ powers to disclose information by limiting these to the specific circumstances set out in the clause. Further, all use of personal data is subject to data protection legislation, including the UK general data protection regulation and the Data Protection Act 2018. This legislation provides several key protections and safeguards for the use of an individual’s data, including strict rules and key data-protection principles for the sharing of personal data.

Under the UK GDPR, health data has to be treated as a special category. This data requires additional protections due to its obvious sensitivity. For this type of data to be lawfully processed, a further condition must be met, in addition to identifying a lawful basis, as set out in the GDPR and the Data Protection Act.

This data protection legislation applies to the use of all personal data and provides robust safeguards in relation to information and disclosure. Importantly, there are additional protections on the use of health data, including the common-law duty of confidentiality, along with the role of the National Data Guardian, who advises and challenges the health and care system to help ensure that the public’s confidential information is safeguarded securely and used properly. As the noble Lord, Lord Hunt, mentioned, there are also the Caldicott principles; there are seven of these, which I am sure noble Lords are aware of, so I will not go through them all now. They provide guidance to health and care organisations on the use of confidential information. Along with this, there is also the national data opt-out.

I remind the Committee that new Section 14Z61 will apply, which provides when an ICB may disclose information obtained by it in the exercising of its functions. I emphasise that maintaining trust that healthcare data is being used properly is paramount. Individuals’ data will be used lawfully and with respect, held securely and have the right safeguards in place. None of the changes we are making will remove the duties of organisations to comply with the requirement of data protection legislation. Along with that, we are working with the Home Office to ensure that the protection and confidentiality of patient information is upheld within the Police, Crime, Sentencing and Courts Bill. Appropriate safeguards are in place and the Bill makes it clear that information can be shared only in accordance with data protection laws.

I am concerned that this amendment could cut across the different pieces of relevant legislation, preventing the ICB from effectively discharging its functions where it may be necessary to disclose information, which may include personal patient data. This would include investigating complaints, making safeguarding referrals for patients whose welfare is at risk, complying with court orders and assisting criminal investigations. It would also risk a confusing data-sharing system, with different rules applying to different organisations.

I know that my noble friend the Minister, the noble Lord, Lord Kamall, has agreed to talk about this further with the noble Lords, Lord Hunt and Lord Clement-Jones. He wants to meet civil liberties organisations, along with them, to discuss this subject further. However, I regret that the Government cannot accept this amendment. I hope that I have given the noble Lord some reassurance and that he will feel able to withdraw the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am of course grateful to the noble Baroness but I am not sure that she has entirely dealt with the concerns expressed. Because the noble Baroness, Lady Brinton, referred a lot to the GMC, I should just say that, although I am a member of its board, I am not acting here on behalf of the GMC at all.

The noble Lord, Lord Clement-Jones, and I signed the amendment and we both start from the basis of supporting digital transformation in the NHS, but we have always seen that it has to go hand in hand with the safeguards. That is why this debate is so important. We have heard powerful interventions from the noble Baronesses, Lady Brinton and Lady Harris, about why the police Bill had to be amended in relation to police access to patient information. The noble Baroness, Lady Finlay, referred to the issues for clinicians if they did not feel that the integrity of the patient confidentiality system was sufficiently safeguarded.

The Minister has basically said that we need not worry, because the NHS will only deal with information lawfully, and she went through some of the protections, including the fact that in the Bill there are conditions before the integrated care board can release the information. She referred to the data protection legislation, the GDPR, the special category given to health data about patients and the Caldicott principles. She went on to say essentially that my amendment would cause problems, because it would get in the way of legitimate information being given by the ICB, which might have an impact on patient care quality.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

147: Clause 21, page 29, line 19, at end insert—
“(ba) members appointed by each of the local medical, dental, pharmaceutical and optical Committees, and”Member’s explanatory statement
This amendment would ensure that primary care professions would have mandated roles within Integrated Care Partnerships with a member appointed by each of the practitioner committees.

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 147 concerns the establishment of integrated care partnerships. Although the amendment is specifically about the membership of ICPs, I think that it is appropriate that I comment more generally on ICPs and their role. As I see it, the proposals on integrated care partnerships can be seen as an attempt to try to bind the NHS more closely into a wider system that delivers much wider services contributing to care and well-being.

Particularly at issue is the relationship between the NHS and its partner local authorities. If there is to be a genuine generational shift in thinking that moves the NHS from being a sickness service to one that contributes to the overall well-being of the public, that must be welcomed. Of course, there is a lot to do. At the heart of the issue must be who decides how the money is spent. Who sets the priorities and allocates funding down to place or to service line? If it is just the NHS itself through integrated care boards, that will not work. We have to widen the decision-making to ensure that other voices are heard.

What is missing is some assurance that integrated care partnerships are to have some focus not just on wider well-being but on the need to reduce inequalities and to leverage maximum social value for the area covered. Here, the skeletal nature of the Bill once again gives rise to many more questions than it answers. How are integrated care partnerships to be performance-managed? Will there be an executive? Where will the funding come from? Can the ICP actually deliver any services? Could ICPs be the hub for shared services across the NHS and local authorities?

We have so far heard very little about ICPs; there has been much more emphasis on integrated care boards. Many noble Lords have remarked that the Bill is too focused on the NHS. It is clear that, so far, much energy has been put into the establishment of ICBs and much less into the establishment of integrated care partnerships, which are due to be set up jointly between the NHS and the relevant local authority or authorities. That shows that the building blocks are flawed, because essentially local authorities should have been equal partners in the establishment of integrated care boards. If this was really an integrated Bill about the NHS and adult social care, surely local authorities would be equal partners with the integrated care partnerships on the integrated care boards.

I do not want to go over old ground, but the very fact that NHS England is excluding local authority councillors from the integrated care boards means that it does not want a serious NHS contribution on ICBs from local authorities. I can only take that as the reason for wanting to exclude local authority councillors.

Finally, I will make a general comment about ICPs. The noble Lord, Lord Lansley, raised this earlier. I fail to understand why health and well-being boards are continuing in parallel with the integrated care partnerships. I hope that we might at some stage get an explanation.

That brings me to my amendment. I have concerns about the neglect of primary care and I think that local representative committees have been an important part of the NHS since its foundation. I see no reason why they cannot be assured of some kind of presence on the new integrated care partnerships.

We had a very good debate last week, led by the noble Lord, Lord Crisp, on the role of primary care generally in these arrangements. The Minister said that it was important to consult the relevant primary care local representative committees, and that was why there was a provision under new Section 14Z52 to introduce a duty to consult anyone the ICB and its partner trusts considered appropriate when preparing the forward plan. But underlying my amendment is a concern expressed by the noble Lord, Lord Warner, who on Thursday asked whether the Minister was aware that the influence on key decision-making in the NHS was diminishing for primary care in general and GPs in particular.

In response, the Minister was clearly sympathetic to making sure that primary care was better represented and not dominated by acute trusts. He said that he was open to further discussions in this area and I hope that he will extend those discussions to the membership of ICPs as much as integrated care boards.

The Minister may say that ICP membership is best left to the local level, but I do not think that that is sufficient. We are fully entitled to agree the framework of the new arrangements. Primary care is at risk of being marginalised and that cannot be left to local discretion. I beg to move.

[Baroness Walmsley (LD)]

My Lords, as the noble Lord, Lord Hunt, said, Clause 21 is about representation on the integrated care partnerships, and new Section 116ZA specifies who should be on the committee of the partnership. The Bill currently specifies that one member of the ICP should be appointed by the ICB and one by each of the local authorities. The partnership is also free to appoint others. My Amendment 148 requires that one of these additional members must have responsibility for public health—and in that I include public mental health—and one must demonstrate that he or she can represent local voluntary organisations.

It is tempting in a Bill such as this to assume that all the members of these very influential committees should be from the major health organisations or local authorities in the area. However, there are many small community organisations run by charities or not-for-profit groups that play a very valuable role in providing services to local communities in a very cost-effective manner. Unless they are represented at ICP level, it is quite possible that their survival will be threatened by the new arrangements—and we heard in previous debates that they already do feel threatened. I am sure that the Government do not want that.

Similarly, public health has a major role to play in addressing many of the preventable diseases that contribute to health inequalities—and it looks after the tracing of communicative diseases. We saw the value of that recently when it was a great deal more effective than the national test and trace service at tracing the contacts of Covid-positive patients.

So, the work of both groups is very cost effective. If the ICB and the ICP are to use their resources efficiently and fulfil their duties to level up health inequalities, it is important that both groups are represented on the integrated care partnership. I echo the comments from the noble Lord, Lord Hunt: the Bill is quiet on the structure of and representation on the integrated health partnership. Given the duties that it is being asked to perform, it is perfectly reasonable for us to suggest that some of those important duties are properly covered in representation.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My noble friend raises a very important point, because councillors can presumably go on integrated care partnerships and health and well-being boards but cannot go on the integrated care boards—but one of their officers can. What is the logic? Can my noble friend help me? So far the Government have given no answer whatever as to why. I know I am going on about this, but it is a fundamental issue: why are local authority councillors not seen as core partners on integrated care? It makes a mockery of the integration. There is no integration: they are setting up two separate boards. I do not know why they are not setting up one integrated board to cover the NHS and the partnership. It defies understanding. Why have they come up with this complicated arrangement and are continuing with health and well-being boards? Can my noble friend help me?

[Baroness Thornton (Lab)]

I certainly cannot help my noble friend, but I live in hope that the Minister can. It smacks of a fix. The Minister might not be prepared to say on the Floor of the House what exactly the fix was between the various bits of NHS England and various bits and other parts of the machinery. I suspect that the noble Lord, Lord Lansley, might know better than the rest of us what that fix was.

I will comment on my noble friend Lord Davies’s amendment. The problem with it is that, as the ICPs are proposed in the Bill at the moment, they will not be spending any money or commissioning services. It is also important that they include the various important parts of our local health delivery systems, including pharmacists, dentists, GPs, social enterprises and the voluntary sector. As I read it, this amendment would exclude hospices, for example—which would be a ridiculous thing to do. So my noble friend might want to rethink that amendment, because it does not necessarily serve the intended interests of the ICPs.

--- Later in debate ---

[Lord Kamall (Con)]

They were. Good. I got the answer just in time.

I will turn to Amendment 147, which would mandate a role for a member drawn from each area of primary care. With all amendments relating to the ICP membership, we want to be careful to give space for local areas to find a model of membership that works best for them. As the noble Lord, Lord Stevens of Birmingham, raised at Second Reading, it is right that in a country as large and diverse as ours, one size will not fit all. Therefore, it is right that local areas should be able to determine the model and membership that best represent their area.

We fully expect primary care professionals to be involved in the work of ICPs. Each partnership will need to involve a wide range of organisations and representatives from across the system, including professionals from primary medical, dental, pharmaceutical and optical backgrounds as they prepare their strategy. The department has published a draft list of representatives for ICPs to consider involving, which includes clinical and professional experts, including those from medical, dental, pharmaceutical and ophthalmic settings. The mechanism of how this is done will be down to local discretion. For example, one ICP may wish to formally appoint certain members, whereas a neighbouring ICP may wish to have an extensive range of consultees, and a third may decide to invite primary care representatives to join a subcommittee instead. We believe it is right that local areas are able to determine the model of partnership that best works for them, and this amendment would prevent that from happening.

A similar argument applies to Amendment 148. While we welcome the contribution of directors of public health and the voluntary, charity and social enterprise sector, I do think that we risk limiting the flexibility of ICPs. We expect public health experts to play a significant role, especially given their role in developing the joint strategic needs assessments that are crucial to guiding all planning, and their role in supporting, informing and guiding approaches to population health management.

Similarly, we expect appropriate representation from the voluntary, charity and social enterprise sectors, which will be able to contribute in respect of a number of different interests and perspectives. A number of noble Lords have spoken very eloquently about the reasons we should involve these sectors. We believe it would not be prudent, for example, to suggest that it may be appropriate for only one person to represent the local voluntary sector on a partnership, given the diversity of their involvement in health and social care.

I turn to Amendment 150, tabled by the noble Lord, Lord Davies of Brixton, and I also thank the noble Baroness, Lady Thornton, for her advice on that. I appreciate that the noble Lord might want to prevent anyone who works for, represents, or has a financial interest in a private health and care company, from being a member of an ICP. However, I would draw the noble Lord’s attention specifically to the recent experience of coronavirus, which showed that independent and voluntary providers were a vital part of the health and care picture. This amendment could exclude a significant part of the health and care sector, as the noble Baroness, Lady Thornton, rightly said. Given their scale and the central role they play, adult social care providers in particular would be potentially useful members of an ICP. It also risks leaving out, for example, dentists, pharmacists, opticians and many others working in primary care, and doctors other than GPs who work both in the NHS and privately.

We expect every ICP to have robust measures to ensure that formal conflicts of interest are managed carefully and transparently. It is also important to note that ICPs, as the noble Baroness, Lady Thornton, says, are not commissioners, and so will not be making decisions on the allocation of funds. Fundamentally, the ICP is working solely for the interests of people in the area. The experience of the health and well-being boards is helpful here, as they have similar flexibility in membership, and there have not been significant issues with conflicts of interest as they have developed their plans. We really expect the ICP strategy to be rooted in the people and communities they serve, and to be directly informed by the health and well-being boards and the joint strategic needs assessments. We are refreshing the health and well-being boards’ guidance to ensure that there are strong foundations in place at neighbourhood levels that the ICP can consult and build on.

Having said this, I thank noble Lords for their contributions on this important matter. However, as I have explained, we believe that these amendments run contrary to the principles of flexibility and subsidiarity that the Bill is based on, and therefore I hope that noble Lords will not press them.

[Lord Hunt of Kings Heath (Lab)]

I am grateful to the Minister. First, I thank my noble friend Lord Davies for his amendment. I think, notwithstanding what the Minister said about some of the technical details, the principle that he put forward is absolutely right: clearly, the consistency with ICBs that he mentioned is really important. I am also very sympathetic with the noble Baroness, Lady Walmsley, and her amendment on the importance of public health and voluntary organisations.

We come here to the principle that some of us continue to be puzzled by the architecture we see before us. The Minister says that this was consulted on and the Local Government Association is fine and dandy about it but, with respect, that is not sufficient in terms of your Lordships and the rigour and scrutiny that we need to put into this legislation. Frankly, as my noble friend Lady Thornton suggests, it looks much more like a fix between representative institutions to preserve the current arrangements as much as possible.

I remain somewhat confused about the structure. The Minister said that health and well-being boards will feed into ICPs, but why? Think about what he said about the role of integrated care partnerships; it sounded to me like the role of the health and well-being boards. I just do not understand the differences. I understand that, in some parts of the country where the ICP will cover a lot of local authorities, there is an argument that you should continue with health and well-being boards at the local level, but I do not see why they cannot be sub-committees of the integrated care partnerships; the Minister referred to that. Why on earth do we in Birmingham need a health and well-being board as well as an ICP? I simply do not understand it.

If the Minister believes that this should all be set out at the local level, why can people decide locally not to have a health and well-being board? He may say, “Ah no, you need a framework”. Our argument is that you need a framework in relation to membership as well. The compromise here might be to set out in legislation, as we will want to do, certain conditions around local governance and then leave it up to the local level. In relation to ICPs, however, we cannot leave it as it is. Having said that, I beg leave to withdraw my amendment.

Amendment 147 withdrawn.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Masham of Ilton (CB) [V]]

My Lords, I shall speak to Amendments 178, 266 and 293. Amendment 178, which was tabled by the noble Lord, Lord Sharkey, is important for people with rare and less common diseases. The amendments could be a lifeline for people who have rare conditions who use products that may be the only substances that work. There is an enormous selection of rare conditions. It can be a desperate situation when some medicines are developed but take a long time to be given the all-clear by NICE. Some medicines are not available in England on the National Health Service but are available in other countries, sometimes even in Scotland. That is devastating and frustrating.

I support Amendments 266 and 293, on the cosmetic surgery industry, which must be made safer. It is extraordinary that this business is only partially registered. Many people who have such a procedure take for granted that the practitioner will be registered and fully insured. There have been some disastrous results when things go wrong with a beauty procedure. I know of some plastic surgeons who work only in the National Health Service, as they do not want to be tarred with the same brush as uninsured cowboys. Amendments 266 and 293 deal with a wide selection of cosmetic procedures, some of which are psychologically important to many people. There is wide interest in making this trade safe and getting it registered. I hope the Minister realises that this is an important matter that needs putting right.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have Amendment 176, the second amendment in this group, and two other amendments. I shall start with Amendment 176 which is concerned with the treatment of thyroid patients who continue to be denied liothyronine, otherwise known as T3, as the most appropriate treatment for them. For some patients, the standard treatment is not effective. T3 has proven to be a much better treatment, but tragically, a few years ago the manufacturers grossly inflated the cost of T3 by a massive 6,000%. Understandably, NHS England and its associated prescribing advising machinery strongly discouraged the use of the drug and, as a result, many patients had T3 withdrawn and suffered quite considerably or had to fund it privately or source it from abroad. Happily, the price of T3 has come down by 75%, although it could go down further, but I believe it is no longer categorised as a high-cost drug.

The problem is that clinical commissioning groups still treat it as a high-cost drug, so the situation is still very difficult for patients who need it—those for whom the standard treatment is not appropriate. The current guidance states that T3 can be prescribed to patients who have unresolved symptoms on the standard treatment if it is initiated or confirmed following a review by an NHS consultant endocrinologist. A statement in July 2021 restated NHSE guidance, but it has not been followed by clinical commissioning groups. A survey done recently by UK thyroid charities, to which I pay huge tribute, says that 44% of CCGs have not fully adopted the national guidelines or are wrongly interpreting them.

What are we to do? What is the situation here, where we have clear guidance that is not being followed? This goes back to our previous debates about the various mechanisms being brought in to ration treatments, against national guidance or technology appraisal advice from NICE. It is the same issue. I am not expecting the Minister to issue a direction but I am expecting him to tell CCGs and, in future, integrated care boards to get off their backsides, start implementing the guidance properly and realise that this is no longer such a high-cost drug. I appeal to him to do something about that.

I also hope that the Minister will do something about hospital catering. I confess to your Lordships that I am president of the Hospital Caterers Association, where I work very closely with some great professional staff who have to work with their hands tied behind their back. Often they do not have the resources to provide the high-quality food that everyone wants and expects.

During Covid we saw in many local NHS facilities a determination to do everything possible to improve nutrition for both patients and staff. Miraculously, hot food was made available to staff overnight, which, as noble Lords know, seems to have been beyond the capacity of the NHS for many years. I do not know why I am looking at the former Chief Nursing Officer as I say this; I think it is an appeal for support.

This clause is highly welcome as I believe it will lead to higher standards, but my amendments would enable the caterers to deliver on them. The first key point is this: they need the resources to be able to do it. The amount of money spent on hospital food per day at the moment is simply not sufficient. Secondly, we need more training for staff. The training programmes have disappeared, and we need to get them back in to give staff the opportunity to show what they can do. Thirdly, we need to make sure that NHS trusts and foundation trusts are fully on board with bringing forward these regulations. There is no doubt that the efficiency programmes have taken their toll on the budgets for hospital catering and that, equally, the old-style national training schemes fell away and have not been replaced. The pay grade of qualified chefs and cooks needs to be reviewed to reflect the importance of their role. This issue is important in terms of the standards of food and nutrition for our patients and for the well-being of our staff.

My final amendment in this group is Amendment 264. What links all these amendments is that we need more consultants appointed—a small effort to enable us to improve the efficiency of the system. I remind the Committee of my GMC connections in relation to this. The amendment would add the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow, and their associated dental faculties, to the colleges that may be involved in the appointment of NHS consultants. My amendment was inspired by the Royal College of Surgeons of Edinburgh, which noble Lords might be surprised to learn has an office in Birmingham because many consultants who work in the English NHS are members of the Scottish colleges.

There seems to be a lacuna in the current regulations. According to the National Health Service (Appointment of Consultants) Regulations 1996 and subsequent guidance issued by the department in 2005, only the Royal College of Surgeons in England is permitted to review surgical consultant job descriptions and send a royal college representative to the advisory appointment committees when it comes to the appointment of consultant surgeons. Other elements of my amendment apply to the appointment of physician clinicians, and the Royal College of Physicians of Edinburgh and the Royal College of Emergency Medicine are also supportive. Although the process and guidance apply only to NHS trusts, foundation trusts are encouraged to follow it.

The Minister has yet to accept any amendment to the Bill. The usual line from the Government is, “We will do this when legislation is available to do so.” Here is a great opportunity for the Minister, as we are here on day 6 of Committee, to get up and say that he is going to accept my amendment.

[Baroness Barker (LD)]

My Lords, in following the noble Lord, Lord Hunt, I declare an interest as the patron of the National Association of Care Catering, a position that I took over from the noble Baroness, Lady Greengross. I admit that, when I had this great honour thrust upon me, I had little idea what I was getting into—and I have discovered a world of highly dedicated, professional people whose contribution to the health of the nation is very much overlooked. I managed to attend their national conference in Nottingham last October, and I have to say that it was one of the most harrowing afternoons I have spent, as they talked about what they had gone through as the people who supply catering not only in hospitals and acute hospitals but in care homes, as well as doing meals on wheels.

I will pick up one point that the noble Lord, Lord Hunt, made, on training. He is absolutely right that this area has suffered a great deal because of various changes not just to training in the NHS but to the training in higher education. We do not have a recognised qualification in care catering in this country, yet these are people who have to produce food for people who have dysphagia, multiple food intolerances and dementia, people who quite often are suffering from malnutrition when they come into hospital, and people who have allergies and often suffer from dehydration. The people who have worked in this field, and some of them have worked in it for many years, suffer a deep sense of frustration, which is that when young people in school or college show an aptitude for or a willingness to go into the world of catering, they are directed towards restaurant catering, because that is where the teachers and lecturers think the money is to be made. Actually, catering for people with difficult medical conditions is a lot more complicated.

I say to the Minister that I am also really impressed by the specialist companies that work in this field—those that produce specialist menus and enable people to order ingredients for complicated menus in complicated settings, as well as those that manufacture cutlery and crockery and vessels that can be used by people whose interaction with that sort of thing is hampered. These can bring a dignity and focus to something that is much overlooked—but talk to dieticians and you will increasingly understand the importance that food plays in maintenance of health and recovery.

I do not know whether or not this will make it into the Bill, but will the Minister go back to the department and ask whether his officials might meet some of the people who do a remarkable and much overlooked job, day in, day out, and who these last two years, perhaps more than anybody else in the NHS, deserved the clap, if only people knew what they had done?

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath (Lab)]

165: After Clause 27, insert the following new Clause—
“Place based integrated care and Primary Care Commissioning Boards
(1) Each place based integrated care board is to be established by regulations made by the Secretary of State for an area within an integrated care board.(2) An order establishing a place based integrated care board must provide for the constitution of the board.(3) Before making, varying or revoking an order under this section, the Secretary of State must consult—(a) the integrated care board in which the place based integrated care committee is intended to operate;(b) the relevant local authority or local authorities;(c) the integrated care partnership in which the place based integrated care committee is intended to operate;(d) the local healthwatch organisations whose areas coincide with or fall wholly or partly within the proposed area of the place based integrated care board; and(e) members of the public living within the proposed area of the place based integrated care board.(4) The place based integrated care board may arrange under a scheme of delegation from the integrated care board for the provision of such services or facilities it considers appropriate for the purposes of the health service that relate to securing the improvement—(a) in the physical and mental health of the people for whom it has responsibility, or(b) in the prevention, diagnosis and treatment in these people.(5) In imposing financial requirements on integrated care boards under Section 223GB of the National Health Service Act 2006, NHS England may give additional directions in respect of placed based integrated care committees.(6) Integrated care boards may give place based integrated care board directions as to any of the functions to which it has given delegated functions. (7) The Schedule to the Public Bodies (Admission to Meetings) Act 1960 (bodies to which that Act applies) shall be amended as follows.(8) After paragraph 1(k), there shall be added the following sub-paragraph—“(l) Place Based Integrated Care Boards.””Member’s explanatory statement
It’s likely that ICBs will set up place based entities which may take many of the key commissioning decisions at the local/Constituency level. This amendment puts place based integrated boards on a statutory basis and subject to Parliamentary oversight and meeting in public.

[Lord Hunt of Kings Heath (Lab)]

My Lords, my Amendments 165 and 166 are rather more focused than the last group. They are probing amendments, rather than me urging that Ministers take the specific wording of them.

One of the rather surprising characteristics of integrated care systems is that they are not defined in the Bill, although people talk about these entities all the time. The statutory parts are integrated care boards and integrated care partnerships, but much of the real power, decision-making and influence potentially lies with non-statutory groups, whose membership, governance and procedures are not regulated. These are placed-based partnerships, provider collaboratives or networks, primary care networks, or companies accredited to the health system support framework. My two amendments would put the first two of these non-statutory groups on a statutory basis. Place-based partnerships are described and supported by NHSE and the Local Government Association as the foundation of integrated care systems. I am very grateful to the policy research unit in health and social care systems and commissioning at the University of Manchester for its very helpful work on this.

In our debate on primary care, the Minister referred to his hope that integrated care boards would

“exercise functions through place-based committees”.—[Official Report, 20/1/22; col. 1852.]

It is pretty clear that many ICBs will delegate considerable responsibility to them. I can see the potential for that, but given their increased responsibilities, there are legitimate questions to be asked about how place-based committees are to be held to account. What are their governance arrangements? Who will serve on them? What are their leadership arrangements? What functions will they be allowed to carry out? The noble Earl, who I think is responding, may say that that is best left to local decision-making. I see that up to point, but rather like with ICB governance, surely some framework and safeguards need to be built around them.

A similar argument might be made in relation to provider collaboratives. Such collaboratives are essentially partnership arrangements involving two or more trusts or foundation trusts. Participation is mandated for trusts providing acute or mental health services. They are expected to be part of one or more provider collaboratives, with discretionary participation of other providers. Such collaboratives may form at supra-ICS level, may partially cover multiple ICSs and may cover multiple places. Additionally, providers may be members of multiple overlapping collaboratives. The collaboratives may contain acute or mental health members only, or may include wider membership such as community providers and primary care. It is anticipated that they will deliver systems’ strategic priorities. The original White Paper, Integration and Innovation: Working Together to Improve Health and Social Care for All, indicates that “significant” delegation to both place level and provider collaboratives from integrated care systems is expected. It is also suggested that, in time, provider collaboratives may play a role in oversight. At Second Reading, the noble Lord, Lord Lansley, said:

“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability”.—[Official Report, 7/12/21; col. 1789.]

This was confirmed on 2 December by the Health Service Journal:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence (although the former may act through their representation on the latter).”


So I want to put a few questions to the Minister. First, what degree of oversight will be exerted over the formation of these arrangements, and by whom? Secondly, if a lead provider contract is in place, or if providers agree how to spend their respective resources as a provider collaborative, who would oversee that arrangement and where would accountability lie in the delivery of outcomes or in the case of poor performance? How would it be ensured that the work of provider collaboratives took into account the interests, aims and work of the wider health and social care community, including the patient voice?

On the latter, the NHS England design framework made it clear that the involvement of patients, unpaid carers and the public is expected at place and system levels, with requirements for public meetings and published minutes in both the partnership and the NHS board. It is not specified how provider collaboratives, where significant decisions regarding the planning and provision of services may be made, will be publicly accountable.

I believe that the Government are going to discuss with noble Lords the formation and governance of integrated care boards and integrated care partnerships. I suggest that that discussion be extended to look at the position of place-based committees and provider networks, because at the end of the day Parliament is entitled to establish some kind of framework and governance and transparency arrangements without going too much into the minutiae of the detail. On that basis, I hope that the Government might be prepared to take away these amendments as part of that broader discussion. I beg to move.

--- Later in debate ---

[Earl Howe (Con)]

I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.

In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.

We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.

On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.

The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—


an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.

The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.

I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.

Amendment 165 withdrawn.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

174A: Clause 39, page 47, line 17, at end insert—
“(4A) A direction under subsection (1) may be given only in relation to a particular instance, not generally.(4B) A direction under subsection (1) must provide for the direction to cease to have effect on a date specified in the direction, which must be no later than one year from the date the direction was given.”Member’s explanatory statement
This amendment, along with the other amendments to Clause 39 in the name of Lord Hunt of Kings Heath, would reduce the scope of the Secretary of State powers to direct NHS England by adding safeguards and additional exceptions.

[Lord Hunt of Kings Heath (Lab)]

My Lords, we come to Clause 39, which I think is one of the most significant ways in which the Bill will increase the powers of the Secretary of State over the NHS. The clause gives a general power of direction over NHS England in the exercise of its functions. It is a very significant change from the legislation the noble Lord, Lord Lansley, put through in 2011-12. It also is clear that many NHS bodies are, like the Nuffield Trust,

“concerned that these new powers will result in a more politicised NHS, with ministers dragged into micromanaging how local services work.”

I do not think you can consider this clause without considering further clauses in the next group, led by the noble Baroness, Lady Cumberlege, in relation to the power of the Secretary of State to intervene at any time in proposals to change services. In addition, Part 3 of the Bill gives the Secretary of State the power to move responsibilities between several arm’s-length bodies in health and to abolish them. We have already had the CQC debate today, about an increase in the Secretary of State’s capacity for intervention. There is also the question of the regulators, which will be discussed later, which again leads to the individual professional regulators, which, again, the Secretary of State can abolish.

Although I am going to talk about the general direction, I do not think you can do that without thinking about the other accretions of power that the Bill takes. Together, I believe it is a fundamental difference —a change in philosophy—from the 2012 legislation. NHS Providers, with which I have discussed this extensively, is concerned. As it says:

“Clinical and operational independence must be maintained in order to ensure equity for patients within the service; the best use of constrained funding; and clinical leadership with regard to prioritisation and patient care.”


Although I do not want to completely open up this debate, I have to say that the allegations made by Conservative MPs about threats made in the last few days by Government Whips, over the funding of services, are very apposite to how a power direction might be used by Ministers under this Bill.

--- Later in debate ---

[Lord Kamall (Con)]

If my noble friend will allow me, I will have to consider that and write, and make that available to all noble Lords.

We have included a number of exceptions to the power of direction in the Bill to ensure that the Secretary of State is not able to intervene in day-to-day operational matters. For example, there is no intention to use the power to direct NHS England on procurement matters.

On Clause 64, the rationale for removing these duties is twofold. First, the pandemic has highlighted the importance of different parts of the health and care system working together. The clause removes some barriers in legislation that hinder collaboration between system partners. It facilitates collaboration between NHS England and system partners and enables broader thinking about the interests of the wider health system. Secondly, removing the Secretary of State’s duty to promote autonomy will put increased accountability at the heart of the Bill.

Overall, these clauses encompass flexibility, allowing Ministers to act quickly and set direction, while balanced with safeguards and transparency requirements to ensure that they can be held to account. I understand that there are a number of concerns about this group of amendments and others. I am sure we will have a number of discussions, but in the meantime, I ask noble Lords not to press their amendments.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very significant debate, because when the Minister referred to the fact that Ministers needed to have the answers, I realised that the intention is to go back to command and control from the centre. It was quite clear: that is the intention. I think that is very depressing, because I do not believe that the NHS is going to benefit at all. When he said that this will strengthen local accountability—oh no, it will not. There is no local accountability whatever in this structure. I am sorry to say this again, but the fact that the Government are taking local authority councillors out of ICBs is a visible demonstration that this is a centrally driven health service from the Department of Health.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, I shall be brief. I put my name to Clause 40 stand part, and I think that is the best way to go. I shall add one or two things. First, as Secretary of State, I asked the now noble Lord, Lord Ribeiro, to lead the independent reconfiguration panel, and I never had cause to regret doing so. Secondly, I can say something which other noble Lords cannot, because I am on this side, and I am hoping that we continue to have Conservative Secretaries of State for many years hence. They will be much better off if they do not do this. If the Government take Clause 40 out, they will equally not regret doing so.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I described at Second Reading, or at some point in a meeting with the Minister, an attempt to save Ministers from themselves. I do not understand why on earth the Government want to put this burden on them. The Government have set out an ambitious programme for reform of the NHS. Why put in a clause that guarantees that that reform will be stalled? We know that reconfigurations—most of us have experienced the issue locally, if not nationally—are very difficult. There is always local opposition, often from some leading consultants, and to get it through you have to be very determined. The noble Lord, Lord Warner is right; once Ministers can intervene at any point—for example, if an MP’s local services are threatened with an unpopular change—even in the Lords, the pressure on them to intervene can be huge.

--- Later in debate ---

[Lord Lansley (Con)]

If anyone cares to look at it, it was also a very good illustration of the benefits of the Independent Reconfiguration Panel. Not only did it do something that Ministers could not do; it also did something that NHS management did not do. It is not that we are giving it back to the NHS to do what it likes—it genuinely does something independent.

[Lord Hunt of Kings Heath (Lab)]

Indeed, we have a rigorous process involving the overview and scrutiny committee, as has been said, plus an Independent Reconfiguration Panel. As the noble Lord, Lord Stevens, said, it is rather like the last debate: before us we have a set of amendments which seek to constrain the power of Ministers, and then an amendment which seeks to remove this power. I am clear that we should try to remove this power, and that this is the best course. It will be very interesting to hear from the Minister exactly why Ministers want to put this burden on them, and what benefit they can possibly see in it.

[Lord Warner (CB)]

My Lords, I want to briefly make clear my support for this group of amendments and try to be consistent with what I said on the previous group. The only amendment which causes me to have pause for thought is Amendment 183. The NHS, perfect in every form of course, has been known to have its arteries fur up occasionally. Sometimes there is a need for scale in some services. I want to mention three or four services where scale, after clinical consideration, is important. Pathology is a good example, where we need to have more scale than many of the local pathology departments. Another one, which the Royal College of Surgeons has advocated, is elective surgery hubs, which may mean taking stuff away from a particular local hospital. Another good example is the issue of stroke specialisation, which is beneficial for patients. I have given you three examples where we do not want to totally neutralise the Secretary of State. Sometimes Ministers have a use; it may be few and far between, but occasionally they have some use. We do not want to say that you cannot ever be a catalyst for change. That seems a bit drastic in Amendment 183, and I ask the noble Baroness, Lady Cumberlege, to think about that, because sometimes scale is important, with clinical advice for the benefit of patients.

--- Later in debate ---

[Lord Kamall (Con)]

The Secretary of State will be advised by the Independent Reconfiguration Panel, especially where there is a difficult decision that takes time, just as in the case of the Medway.

On Amendment 182, the Secretary of State’s decision-making process must already take into account the public law decision-making principles, all relevant information and his legal duties, including the public sector equality duty. The Secretary of State is also under several duties in the National Health Service Act 2006, including to promote a comprehensive health service and to support continuous improvement in services.

[Lord Hunt of Kings Heath (Lab)]

There are a lot of marginal seats, and there is going to be a general election in two and a half years—maximum. A lot of the reconfiguration proposals usually relate to smaller places with smaller hospital or DGHs because their viability is often in doubt. So it is quite clear to me that any MP, particularly government MPs, will immediately take any threat of that sort to their local services to the Secretary of State. That will not speed up the process; it will guarantee the opposite. The signal that I would get from the health service as a result of this is: “Forget reconfiguration proposals until after the next election because you ain’t going to get any through.” That is why we think this is a disastrous move.

When the Minister says there will not be many interventions, that is just nonsense. The moment that MPs know the Secretary of State has the power to intervene at any stage, they will be knocking at the door of the Government, who will wilt under that pressure, because that is what happens. Then they will go back and say, “We need to have an independent review of that before you start the process.” There are so many dodges available to a Minister, if you want to dodge making a hard decision in this area, that it will completely paralyse the health service. That is why this debate is so important because it is related to the last one; the result of Ministers gaining direct control will be to delay and reverse, and I am afraid that the hopes that Ministers have for a dynamic, forward-looking health service will come to nothing.

[Lord Warner (CB)]

My Lords, following on from the noble Lord, Lord Hunt, I ask the Minister to consider the point that I was trying to make about Amendment 183. The Minister and the Government have got this the wrong way round: if he is actually concerned about levels of efficiency, the supply of services and the issue of scale—and the issue of scale is a very real one—then he needs to be at the front of the process, not the end of it. It is a bit late in the day to be having these ideas about scale in a particular set of services when you have gone through the agony of the local consideration of reconfigurations. As a Minister, it would be better, if I may say so, to set out your views at the beginning with the clinical arguments for why this makes sense. Doing it at the end is bound to lead to suspicions. That is why I was asking the noble Baroness, Lady Cumberlege, to look at the wording of Amendment 183. I say to the Minister that he is putting his involvement at the wrong part of the process.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Baroness Hodgson of Abinger (Con)]

My Lords, I support this amendment, so ably moved by my noble friend Lord Blencathra and supported by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Alton. Noble Lords have already heard the well-versed and evidenced arguments put forward and, while the amendment does not specifically refer to China, there can be no doubt that the well-documented example of the horrific treatment of the Uighur people in Xinjiang province would fall under its scope.

We have all heard today about the hundreds of millions of pounds-worth of healthcare goods that have flooded into this country since the start of the pandemic, much of it sourced from China. We would expect our Government to make every effort to disentangle our supply chains from implication in these atrocities, so was any due diligence carried out throughout our procurement process? This amendment would correct that oversight if it was not.

I do not want to repeat everything that has already been said by others, but I want to highlight the importance of the risk-assessment aspect in proposed new subsection (3). I anticipate that the Minister will highlight the work already being done by government departments to weed out companies with slave labour in their supply chains. Perhaps sometimes they are being asked to perform an impossible task, because I understand that supply chains in the Uighur region of China are almost entirely opaque. It is suggested that the area is rife with systematic forced labour, that audits there are worthless and that workers live in fear and terror of telling the truth. Indeed, as we have already heard, the US Government have just passed legislation presuming that all imports from the region are tainted unless proven otherwise.

Surely, it is our responsibility, as a signatory to the genocide convention, to do all that we can to prevent genocide when there is a serious risk of it taking place. This amendment builds on the work that we have already done in this regard. We cannot continue business as usual with China or any other state that condones or supports genocide. I ask the Government to act urgently to ensure that our supply chains are not tainted by goods made with Uyghur forced labour. I ask Members on all sides of your Lordships’ House to join us and reassert our commitment to global human rights and to provide the protection against genocide, wherever it is needed, by supporting this amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I too support the amendment of the noble Lord, Lord Blencathra. As we are really talking about procurement in the NHS, I should declare my interest as president of the Health Care Supply Association.

It is entirely reasonable to use NHS procurement rules in this way. The noble Earl knows that Clause 70 is intended to give wide discretion to Ministers to bring in a new procurement regime. I see no reason why this cannot be part of that regime.

I sometimes think the NHS operates in isolation from what is happening in the world, but it cannot operate in isolation from the terrible things that the noble Lord, Lord Blencathra, and other noble Lords have spoken about. I hope the noble Earl will be sympathetic.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

224: After Clause 80, insert the following new Clause—
“Access to NHS dentistry
The Secretary of State must, within one year of the passing of this Act, publish a statement setting out what measures the Government is taking to ensure universal access to NHS dentistry.” Member’s explanatory statement
This new Clause would require the Secretary of State to publish a statement of what measures the Government is taking to ensure universal access to NHS dentistry.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I hope that I do not slow us down again after the provocative words of the noble Baroness, Lady Chisholm, but I am going to talk about access to dental treatment and fluoridation. Although the House is somewhat empty, I expect that as the debate goes on it might fill up a little.

We had an Oral Question this afternoon about dentistry, and I do not want to repeat everything that was said then. I have enjoyed debating dental issues with the Minister, the noble Earl, Lord Howe, for many years. He will know that there is widespread concern about the lack of access to dentistry. At Oral Questions the Minister, the noble Lord, Lord Kamall, referred to the £50 million that had been provided, but I am afraid that the 350,000 treatments that it will pay for are a drop in the ocean compared with the 38 million patient treatments that have been lost as a result of the pandemic.

Many people are finding accessing dentistry almost impossible at the moment. The Minister referred earlier today to people being able to use the access centres, and to the 111 service, but I am afraid that it has broken down in many parts of the country. One is led to the conclusion that dentistry issues are not a priority. Many adults and children are suffering in pain because of their lack of access. The Government must focus on this and develop a proper strategy. I pay tribute to Healthwatch for its work in this area—it has had a lot of interest from members of the public—and to the BDA for its briefings.

Treatment is one thing, prevention is another. Here, I must remind the Committee of my presidency of the British Fluoridation Society. This brings me to effective preventive measures. I welcome Clauses 147 and 148. Unfortunately, the noble Lord, Lord Scriven, is not here to hear me say this, but essentially, giving this responsibility to local authorities has proved to be a failure. Not one local fluoridation scheme has gone through under the auspices of local authority leadership, and we must conclude that leaving it to local authorities is likely to mean that we will not see fluoridation developed in any part of the country.

So this is a national issue and it is right that the Secretary State should take over responsibility; it is also right to acknowledge that, in September last year, the four Chief Medical Officers stated:

“As with all things in medicine and public health there is a balance of risk and benefit.”


We have certainly learned that in the last two years. As they said:

“There is unquestionably an issue with tooth decay in the UK and an entrenched inequality which needs to be addressed. Fluoridation of water can reduce this common problem … On balance, there is strong scientific evidence that water fluoridation is an effective public health intervention for reducing the prevalence of tooth decay and improving dental health equality across the UK. It should be seen as a complementary strategy, not a substitute for other effective methods of increasing fluoride use.”


I think that is a very wise assessment of the situation. The effectiveness of fluoridation of water supplies to improve oral health has been evident for many decades. Some communities such as my own—Birmingham—have taken advantage and, as a result, we generally enjoy good overall oral health, but progress in spreading these benefits has been very slow. The transfer to local government, I am afraid, did not work.

So I strongly support the thrust of these clauses; in fact, they are the two most welcome clauses in the whole Bill. The question, however, is whether they will bite, and this is what lies behind my amendments. Amendment 260 concerns the consultation process. I do not think I have got the wording in quite the right place—frankly, trying to find my way through the Water Act and changes to it over the last 20 years or so proved beyond me—but the intent is to ask: if there is to be consultation about schemes, please can we move away from the local consultations that have to be gone through at the moment? They are an absolute nightmare. They bring out opposition from national bodies that causes mayhem in the locality.

The issue is not the practicalities of the scheme but about going back over the principle. The very fact that the Government have brought these clauses has decided the principle of the benefit of fluoridation. If there is to be a consultation, for goodness’ sake, let us have just one instead of the myriad local consultations that have obviously got in the way of progress in the past.

My Amendment 261 is part probing. Currently, the Bill gives the Secretary State power to make regulations to require a public body to meet the costs to the Secretary of State in relation to fluoridation schemes. I would be interested to hear from the Minister the reasons and circumstances under which they would be used. My concern would be that asking too hard a subvention of local bodies might inhibit the progress of fluoridation schemes. Amendment 262 requires the Secretary of State to ensure that a programme for implementing water fluoridation schemes is established within 12 months of the Bill being passed. I would like to see a report every three years, laid before Parliament by the Secretary of State, on the progress made in implementing new water fluoridation schemes. The basic purpose would be to ensure that the Government get on with this, establishing more schemes and spreading the benefits across the entire community as soon as possible. I beg to move, and hope that I have met the noble Baroness’s test.

[Baroness Northover (LD)]

My Lords, I will speak in support of Amendments 260, 261 and 262 in the name of the noble Lord, Lord Hunt, on water fluoridation.

The NHS rightly prides itself on being evidence-based. Nevertheless, when Ara Darzi became health Minister, he was concerned that, in a number of areas such as the treatment of diabetes, there was not a full assessment of regular outcomes, as opposed to the fantastic clinical trials on new treatments for specific diseases. Hence, he introduced his atlas of outcomes. It showed, for example, absolutely unacceptable different outcomes for diabetes if you lived in Cornwall—where you were more likely to lose a leg—compared with Essex. There were serious lessons to be drawn from that, which needed to be applied in other areas, too.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[Earl Howe (Con)]

I apologise to the noble Baroness, because she was making a significant point. I am not sure that I share her perception that those who buy bottled water in supermarkets necessarily do so as a reflection of their lack of trust in tap water; a lot of it has to do with some myths around the benefits of bottled water. However, be that as it may, I will take advice and write to the noble Baroness. I am not sufficiently sighted on the issue she raised and the evidence behind it, so it is probably appropriate if I look into it and write to her.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very interesting debate. On dental access, a number of noble Lords—my noble friend, the noble Baroness, Lady Bennett, the noble Lord, Lord Storey, and the noble Baroness, Lady Walmsley, among others—commented on the great difficulty that many people have at the moment in getting access to an NHS dentist. The noble Lord, Lord Storey, focused in particular on children, which is my particular concern. More energy needs to be put into developing a dental strategy. On thoughts of contracts, anyone who has been a dental Minister will know that the problem with contracts is that dentists always overperform, and the Treasury then claws back in future years, leading to unhappiness and misery in the profession. The fact that the pilot schemes, on which I think work is being based for a future contract, have now stopped, or are going to be stopped, is a great pity, and it does not show positive intent.

On fluoridation, I was delighted that the noble Lord, Lord Young, intervened. A couple of debates ago I was watching on the screen, and he chided me for what I thought was a perfectly formed piece of legislation at the time, many years ago. He talked about his experience as a Minister 42 years ago. I think it was because of his work that I, 37 years ago, as secretary of the Edgware/Hendon Community Health Council, organised public meetings in part of the Borough of Barnet on fluoridation, prior, we hoped, to the then area health authority implementing a fluoridation scheme. Although the public meetings came out strongly in favour of fluoridation, of course nothing happened. I am afraid that the experience in Barnet and Edgware and Hendon was repeated up and down the country, which is why I applaud the Government for doing what they are doing now.

The noble Baroness, Lady Northover, spoke very eloquently about the evidence from deprived areas. Sandwell, next door to Birmingham, is high up in most indicators of poor health, except in dentistry. That is because, unlike Liverpool, Birmingham City Council took the decision in the 1960s to fluoridate the water supply and Sandwell got the benefit. The result is that, in general, oral health in the West Midlands is very good indeed.

I listened with great interest to the noble Lord, Lord Reay. He mentioned the Jauncey judgment, which unfortunately I remember. I remind him that, although Lord Jauncey ruled that Strathclyde Regional Council was exceeding its powers in seeking to fluoridate the water system, he accepted that the amount of fluoride it wanted to put into the system would have no significant adverse effect on health, that fluoridation had been shown to be harmless and that it would be effective. When we quote Lord Jauncey, we need to quote the whole judgment, rather than just whether Strathclyde was found to have the power to put fluoride in the water.

I will not repeat what the noble Earl, Lord Howe, said. In only September, the Chief Medical Officers spoke in their judgment about the effectiveness and safety of fluoride. I was very glad to hear the point the noble Earl made about expansion; I am very glad that it is on the Government’s mind. I look forward to the consultation, which I take will be a national one, if there is going to be an expansion; that is very good news indeed.

On cost sharing, I register that this Bill is full of little clauses which give Ministers powers to do something in the future, when they know what they want to do. I mention procurement regulations in Clause 70 at the same time; I think that is going a bit too far. Having said that, I beg leave to withdraw my amendment.

Amendment 224 withdrawn.

--- Later in debate ---

I hope this House gives serious consideration to this amendment. The stories in the Times about considering further NHS reforms are disturbing and have serious implications for this Bill on Report. They should give the House pause for thought in giving the Secretary of State the powers of direction being sought. If another NHS reform is being cooked up in Victoria Street, it raises the question of why Parliament is labouring so long on this Bill.

[Lord Hunt of Kings Heath (Lab)]

I shall say a few words in support of the noble Lord, Lord Warner; I put my name to his original Amendment 285 and, obviously, I very much endorse what he said. Reading the Select Committee report again, I find it as fresh as ever and its analysis of the issues faced in the NHS are exactly the pressures we see at the moment. Let us be clear: it was a hard analysis. We are all proud of the NHS, but the report rightly pointed out that it performs poorly in comparison with many countries on many indicators. In acute care, we have worse outcomes for survival for stroke and heart attacks, we lag behind comparable European countries for cancer survival, and we have fewer beds, fewer doctors and fewer nurses per head than OECD averages. As capacity is so tight, it is no wonder, given the current pressures post pandemic, that the NHS is struggling to meet the challenges it faces. We have talked about dental access, but we could talk about the horrendous waiting times for treatment or the dreadful ambulance waiting times which are frightening for people with very serious illnesses.

The Government’s approach is one initiative at a time on the whim of the Secretary of State at the time. We have already got the Messenger review which is bringing in a general to tell the NHS how to manage its services. How many times have we introduced people before? I think Secretary of State Hunt established the report by the noble Lord, Lord Rose. He clearly wanted Rose to say that NHS managers were useless. Of course, the noble Lord did not say that. He said that Ministers are useless at creating circumstances in which managers can thrive. Messenger will come out with the same response and his report will also be rejected because what these reports all say is that the way Ministers lead from the centre is non-conducive to the sensible management of the NHS at local level. Bringing some long-term planning to the NHS with the proposals that the noble Lord, Lord Warner, suggests seems to be eminently sensible. I hope this is one of the issues that we will take to Report because it is fundamental to the future.

I was a bit nonplussed because I was rising to support my noble friend Lady Thornton on her Amendment 281, but she is yet to speak to it. It is always good to see the noble Lord, Lord Lansley, in his place. When we debated the future of Public Health England in the 2011 Bill that led to the 2012 Act, we warned that placing PHE firmly within the department would lead to a complete misunderstanding among all of us about who was responsible for its performance. Lo and behold, we had the Covid crisis and that is what happened. Noble Lords will remember that at the beginning Ministers were briefing that PHE was hopeless and that they had lost confidence in it, and that led to the rushed announcement by the previous Secretary of State about the setting up of the UK Health Security Agency. No one knew, because Ministers kept quiet, that they were accountable for PHE and that PHE staff are officials. They are civil servants directly responsible to Ministers for their performance. The Joint Committee inquiry into Covid identified this. Yes, there were issues with Public Health England’s performance, but Ministers should take responsibility.

We risk repeating the problem with the UK security agency, because, again, it is being set up as an agency part of the department, under the control of Ministers. Once again, when trouble arises, we will see the same pattern of Ministers trying to escape their responsibilities for what is performed by this particular agency. The reason I support my noble friend is that I think she is absolutely right in seeking to place this agency on a more independent basis, so that it can be seen to account for what it does and we can avoid the ambiguity being built into the current situation.

[Lord Scriven (LD)]

My Lords, I also want to rise to support Amendment 285 in the name of the noble Lord, Lord Warner. I was very happy to put my name to that. As the noble Lord said, I was also a member of your Lordships’ Committee on the Long-term Sustainability of the NHS and Adult Social Care.

Noble Lords who have been following this set of Committee days will realise that this amendment goes to the heart of a lot of what we have been talking about, which is the conflict between short-termism and long-term planning. The Bill is about the integration of health and social care, improving health outcomes and reducing health inequalities. They are not short-term fixes; it is a long-term journey, which will mean long-term plans.

As an independent body, this body does not stop Ministers being able to control health policy. It sets out a framework of what is required in terms of staffing; what the issues will be in terms of disease profile; what will happen in terms of demand; and for seeing how successful the Government have been, not just in being able to give a press release about certain amounts of money going to a certain area but in whether the long-term benefits of that money are achieving better health outcomes, reducing health inequalities and getting the right staffing to the right places to get a better health and social care system for the people of England. That is what this body is about. I think that, of all the amendments we have discussed—I probably would say this, because my name is to it—this is one of the most important, because it deals with the conflict between the priorities of short-termism and long-term planning.

I also want to say, as the noble Lord, Lord Warner, did, that I was astounded, as a former health service manager, that no one in the Department for Health planned for long-term care in the healthcare system. We expected the answer that at least there was somebody in a darkened room doing it. But there was absolutely nobody doing it; it was all about the whim of the Minister. In reality, that was what came out.

I think this amendment actually helps with the central purpose of this Bill, of integrating healthcare, reducing health inequalities and improving health outcomes, because it is long-term. I think it is absolutely right that this House and the public understand how the Government are doing against independent reviews at five, 10 and 15 years. We will be able to see whether the right staff, the right money and the right focus on prevention versus dealing with the acute sector are actually happening, and whether Governments, of one or two or three colours, over a period of time, are improving the healthcare system the population and leading to better health outcomes.

I also support Amendment 281, which the noble Lord, Lord Hunt, has talked about. For me, public health has been kicked for too many years between different parts of the care and health system. In particular, when you have an executive agency whose primary responsibility is to plan and then co-ordinate public health—not just at government level, but within local government and across government—if it is not independent and is not a statutory body, yet again it just plays to the whim of Ministers. I will give an example of why it is not working in its present form, based on something that has just happened in the last few weeks.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

265: After Clause 148, insert the following new Clause—
“Regulation of the public display of imported cadavers
(1) The Human Tissue Act 2004 is amended as follows.(2) In subsections (5)(a), (6)(a) and (6)(b) of section 1 (authorisation of activities for scheduled purposes) after “imported”, in each place it occurs, insert “other than for the purpose of public display”.”Member’s explanatory statement
This amendment would ensure that imported bodies for display would need the same consent requirements as bodies sourced from within the UK.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in moving Amendment 265 I will also speak to Amendment 282. I am glad to have the support of the noble Lords, Lord Ribeiro and Lord Alton, and the noble Baronesses, Lady Finlay and Lady Northover, for our endeavours.

Article 3(2) of the Universal Declaration on Combating and Preventing Forced Organ Harvesting states:

“The killing of vulnerable prisoners for the purpose of harvesting and selling their organs for transplant is an egregious and intolerable violation of the fundamental right to life.”


My two amendments seek to prevent UK citizens’ complicity in forced organ harvesting by amending the Human Tissue Act to ensure that UK citizens cannot travel to countries such as China for organ transplantation and to put a stop to the dreadful travelling circus of body exhibitions that sources deceased bodies from China.

As noble Lords know, I come from Birmingham, where in 2018 an exhibition called Real Bodies by Imagine Exhibitions visited the National Exhibition Centre. It consisted of real corpses and body parts that had gone through a process of plastination, whereby silicone plastic is injected into the body tissue to create real-life mannequins or plastinated bodies. The exhibit advertised it as using

“real human specimens that have been respectfully preserved to explore the complex inner workings of the human form in a refreshing and thought-provoking style.”

But those deceased human bodies and body parts are unclaimed bodies with no identity documents or consent, sourced from Dalian Hoffen Bio-Technique in Dalian, China. Notably, Dalian labour lamp from 1999 to 2013 was notorious for its severe torturing of Falun Gong practitioners, as the noble Lord, Lord Alton, has reminded the House on many occasions.

The commercial exploitation of body parts in all its forms is surely unethical and unsavoury, but when it is combined with mass killings by an authoritarian state, we cannot stand by and do nothing. In 2019, the China Tribunal, led by Sir Geoffrey Nice QC, stated:

“The Tribunal’s members are certain—unanimously, and sure beyond reasonable doubt—that in China forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims.”


Most recently, further evidence was heard during the course of the Uyghur Tribunal, including from Sayragul Sauytbay, who testified during the June hearings that she discovered medical files detailing Uighur detainees’ blood types and results of liver tests while she was working at a Uighur camp. In June this year, 12 UN special procedure experts raised the issue of forced organ harvesting with the Chinese Government in response, as they said, to “credible information” that

“Falun Gong practitioners, Uyghurs, Tibetans, Muslims and Christians”

are being killed for their organs in China.

The recent findings of the Uyghur Tribunal, again chaired by Sir Geoffrey Nice, were profoundly disturbing. We discussed some of this in our debate on genocide only a few days ago, but I think it bears repeating. The tribunal concluded:

“Hundreds of thousands of Uyghurs—with some estimates well in excess of a million—have been detained by


Chinese

“authorities without any, or any remotely sufficient reason, and subjected to acts of unconscionable cruelty, depravity and inhumanity … Many of those detained have been tortured for no reason, by such methods as: pulling off fingernails; beating with sticks; detaining in ‘tiger chairs’ where feet and hands were locked in position for hours or days without a break; confined in containers up to the neck in cold water; and detained in cages so small that standing or lying was impossible … Detained women—and men—have been raped and subjected to extreme sexual violence … Detainees were fed with food barely sufficient to sustain life and frequently insufficient to sustain health, food that could be withheld at whim to punish or humiliate.”

This is the context in which we debate these amendments. I feel a sense of, shall I say, sadness, at least, that this is the opening day of the China Winter Olympics.

Currently, human tissue legislation in this country covers organ transplantation within the UK itself, but it does not cover British citizens travelling abroad for transplants, and British taxpayers’ money has to pay for anti-rejection medication for those people who then come back to the UK and go to the National Health Service, regardless of where the organ was sourced. According to the excellent NHS Blood and Transplant, between 2010 and 2020, there were 29 cases on the UK transplant registry of patients being followed up in the UK after receiving a transplant in China. This is a billion-pound business in China, using the bodies of executed prisoners—mainly prisoners of conscience.

The Human Tissue Act 2004 has strict consent and documentation requirements for human tissues sourced in the UK, but it does not restrict human tissues from abroad in this way; it is merely advisory. My amendments seek to amend the Human Tissue Act in the following ways.

First, they would prohibit a UK citizen from travelling outside the UK and receiving any controlled material for the purpose of organ transplantation when the organ donor or the organ donor’s next of kin had not provided free, informed and specific consent. Secondly, they would prohibit a UK citizen from travelling outside the UK and receiving any controlled material for the purpose of organ transplantation when a living donor or third party receives a financial gain or comparable advantage; or, if from a deceased donor, a third party receives financial gain or comparable advantage. Thirdly, it would provide for the offence in Section 32 of the Human Tissue Act 2004 to be prohibited even if the offence did not take place in the UK, if the person had a close connection to our country. Fourthly, it would provide for regulations for patient-identifiable records and an annual report on instances of UK citizens receiving transplant procedures outside the UK by NHS Blood and Transplant. Finally, it would provide for imported bodies on display to have the same consent requirements as those sourced from the UK.

Article 4 of the Universal Declaration on Combating and Preventing Forced Organ Harvesting says:

“All governments shall combat and prevent forced organ harvesting by providing for the criminalisation of certain acts and facilitate the criminal prosecution of forced organ harvesting both at the national and international levels.”


I believe we must take action internationally and in the UK to do all we can to prevent this abhorrent practice. I know from the success we had in the medicines Bill that a change in the law of this country has a much wider impact; it gives great encouragement to those brave people fighting these practices in China and globally. I very much hope the House will support this. I beg to move.

[Lord Ribeiro (Con)]

My Lords, I apologise for not speaking in the Second Reading debate, for reasons of ill health.

It is a pleasure to follow the noble Lord, Lord Hunt, who has set out the case against genocide most convincingly. As he said, there is a risk of repetition, as we covered so many of these issues in the Medicines and Medical Devices Bill in 2020 and in the noble Lord’s Organ Tourism and Cadavers on Display Bill only last year. I said then that the Human Tissue Act 2004 made it clear that written consent was required while the person was alive before donated bodies or body parts could be displayed.

The Government were supportive of our amendment in the Medicines and Medical Devices Bill and the noble Baroness, Lady Penn, who I am pleased to see in her place, said the Government would undertake

“to strengthen the Human Tissue Authority’s code of practice”.—[Official Report, 12/1/21; col. 705.]

The noble Lord, Lord Bethell, who was here earlier, stated in summing up that the new code laid before Parliament in June 2021 was clear that

“the same consent expectations should apply for imported bodies and body parts as apply for such material sourced domestically.”

In relation to exhibitions such as “Real Bodies”, which the noble Lord, Lord Hunt, mentioned and to which our Amendment 265 applies, the noble Lord, Lord Bethell, said

“it would need proof of the donor’s specific consent to be displayed publicly after death. If it failed to provide such proof”,—[Official Report, 16/7/21; cols. 2123-24.]

that would prevent a licence being issued. In relation to organs for transplantation, our Amendment 282 makes it clear that consent must be given and that there must be no evidence of genocide in the country from which the organs are sourced.

As a former president of the Royal College of Surgeons, I associate myself with the statement of December 2021 on the abuse of Uighurs in China made by the British Medical Association and the presidents of the Academy of Medical Royal Colleges—of which the Royal College of Surgeons is a member—the Royal College of Anaesthetists and the Royal College of Pathologists. It said:

“We … and the organisations we represent, in advance of the report of the Uyghur Tribunal, express our grave concern regarding the situation in China and the continuing abuse of the Uyghur population … as well as other minorities.”


The UN special rapporteurs have continued to raise concerns surrounding organ harvesting from Uighurs in China, which the evidence overwhelmingly suggests continues to this day, with hearts, livers, kidneys and corneas being the most commonly taken.

In January this year, the BMA condemned the appalling involvement of doctors in China in what was a fundamental abuse of human rights and genocide against the Uighurs. It urged Her Majesty’s Government to exert pressure on the Chinese Government to stop these inhumane practices and to allow the UN investigators into Xinjiang region. The Minister may wish to comment on the Government’s response.

I will leave your Lordships with a quote from Dr Zoe Greaves, chairman of the BMA ethics committee. She said:

“It is a doctor’s duty to help improve health and ease suffering, not to inflict it on others. The use of medical science and expertise to commit atrocities is abominable and represents an appalling antithesis to every doctor’s pledge to ‘first, do no harm’”.

--- Later in debate ---

[Earl Howe (Con)]

I noted that the amendment tabled by the noble Baroness is closely modelled on the current law in Scotland. Because of that, it fails to account for the significant differences between how Scotland, and England, Wales and Northern Ireland, regulate the storage and use of human tissue. In England, Wales and Northern Ireland, that storage and use is regulated by the Human Tissue Authority. In Scotland, there is no equivalent body and the amendment is silent as to what impact it would have on the authority, especially given the challenges involved in managing the great quantity of tissue that would be retained.

I am aware that many Scots share my concerns about consent for retaining tissue. A recent petition to the Scottish Government highlighted the anguish faced by a grieving mother on learning that she did not have the choice to have some of her child’s remains returned to her. She was upset at how long it took for those remains even to be located, so although this amendment would apply only to adults the same kind of issues would apply.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been a very good debate. First, I say to the noble Baroness, Lady Finlay, that I sympathise with her Amendment 297H, but clearly it is a sensitive area. The noble Lord, Lord Alton, mentioned Alder Hey; I had ministerial responsibility at the time, and it was very traumatic meeting the parents of children who, in the end, had body parts buried up to three times or more because of the dreadful way in which both the hospital and university managed the situation, as well as the pathologist himself. On the other hand, the reasons put forward by the noble Baroness seem very persuasive, and I hope there will be a continuing debate on this with the Government.

As far as my two amendments are concerned, I am very grateful to the noble Lord, Lord Cormack, the noble and right reverend Lord, Lord Sentamu, the noble Baroness, Lady Finlay, and my noble friend Lady Thornton for their support. As the noble Lord, Lord Ribeiro, said, the concession given by the noble Baroness, Lady Penn, on behalf of the Government during discussions on the then Medicines and Medical Devices Bill was highly significant both for this country and for the message it gave globally. The debate today, and the amendments, are as much about global messages as UK legislation.

As the noble Baroness, Lady Northover, said, we cannot say that we do not know; we do know. The noble Lord, Lord Alton, sat through many of the harrowing sessions of the Uyghur Tribunal and the evidence—before a hard-headed panel—is absolutely convincing. There can be no doubt that this is an abhorrent practice and, as my noble friend Lady Thornton said, it may not be on the same scale but these wretched exhibitions that take place are a product of those abhorrent practices. She has persuaded me that my amendment is rather soft and needs to be hardened up. I look forward to her helping me to get the wording right.

The noble Earl, Lord Howe, referred to the HTA code of practice; I think we need to go further than that. On organ tourism, I will obviously study very carefully the issues that he raised about my amendments, but we have the figures from NHS Blood and Transplant: I think 29 people have come to the NHS for help following a transplant abroad, which gives us some clue as to the numbers but clearly it is not the whole picture. At the end of the day, you come back to the issue of ourselves and China. Clearly, there is huge ambiguity in our policy, whether that is to do with security, trade or human rights. Some of that ambiguity is understandable, given the scale and size of the Chinese economy—we understand that—but I do not think there is any room at all for ambiguity about this country making a strong response to these appalling practices. Having said that, I beg leave to withdraw my amendment.

Amendment 265 withdrawn.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

267: After Clause 148, insert the following new Clause—
“Vaccine damage payments
Within 6 months of the passing of this Act, the Secretary of State must establish an independent judge led review into the operation of the Vaccine Damage Payments Act 1979 and the adequacy of payments offered to persons seriously injured, or bereaved, consequent upon vaccination against any of the specified diseases to which the Act applies.”Member’s explanatory statement
The Vaccine Damage Payment Act is now more than 40 years old and the aim of the amendment is to ensure that a judge led review takes place into the operation of the Act.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will also speak to Amendment 268. I indicate in advance my support for Amendment 288 in the name of the noble Baroness, Lady Cumberlege. The amendments are all linked, in a sense, in trying to find a way of ensuring that patients damaged in one way or another through the National Health Service are dealt with in the most open, transparent and sympathetic way. Each amendment tackles the issue differently but, in the end, there is a sense that we have not got it right and that we need to do very much better.

--- Later in debate ---

[Earl Howe (Con)]

I appreciate of course my noble friend’s remarks, and I undertake to bring them to the attention of my right honourable friend the Secretary of State.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very good debate, again, and I am grateful to the noble Earl, Lord Howe, for his sympathy. I really support the plea from the noble Baroness, Lady Cumberlege, for more thought to be given to the specific area of redress for the three groups of patients she mentioned. Any of us who have met some of the women involved—I think in particular of the women I have met who have been affected by surgical mesh issues—will be taken with the huge damage that has been done to their lives and well-being. I think they deserve listening to.

I will also say that I was very grateful to the noble Baroness, Lady Hodgson, for her support and for the information she brought to your Lordships, and to the noble Baroness, Lady Walmsley, and my noble friend Lady Wheeler, who pinpointed the need for action in this area.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I rather wish it were my noble friend Lord Kamall handling this group because he is the Minister, and I am not. However, what I can do is undertake to bring the request of the noble Lord to his attention—I am sure I do not have to—and I am sure he, in turn, will wish to respond as soon as possible to that request.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I know how generous the noble Lord, Lord Kamall, has been with his time. I can but hope for a sympathetic response and beg leave to withdraw my amendment.

Amendment 267 withdrawn.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 9th February 2022 Lords Chamber

I thank the noble Baronesses, Lady Cumberlege and Lady Smith of Newnham, for supporting this amendment, and I hope the Minister will consider it favourably. If not, I reserve the right to bring it back. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in speaking to my Amendment 297D, I thank the noble Baronesses, Lady Masham and Lady Brinton, for their support. However, I also express my general support to the noble Baroness, Lady Greengross, the noble Lord, Lord Howarth, and the noble Baroness, Lady Hodgson, for their amendments. The common theme of this collection of amendments is the question of how we support vulnerable people.

My amendment is about the experience of many of us who have seen the harm caused to our loved ones in care homes during Covid when visits were not allowed for so long. Even now, it can be difficult to visit in some homes because of the Covid restrictions that continue or where a member of staff or visitor has Covid and then 14-day long impositions are imposed. It is a bit rich when one hears in the media that all restrictions are being lifted, because for many of us, in practice those restrictions have not been lifted at all.

The Joint Committee on Human Rights in its report on care home blanket bans and other excessive restrictions recommended that regulations for care and treatment should include a requirement to ensure face-to-face contact wherever possible between residents and the people most significant to them. I do not underestimate the difficulties faced by care homes in the past two years. They have faced huge challenges. My personal experience is that many of them have risen to the challenge and provide high-quality care. But even before the pandemic, serious concerns were growing about the use of care home visitor bans to punish relatives for complaining about standards of care. Indeed, as far back as 2016, the “Victoria Derbyshire” programme reported that hundreds of care homes were guilty of this method of what it described as institutional abuse. In 2019, the Relatives & Residents Association was coming across at least one case per week and warned the problem was increasing.

One woman found her mother dressed in other people’s clothes, left in her own urine and with her hair unwashed for weeks. The Local Government and Social Care Ombudsman upheld the daughter’s complaint, reporting that after raising her concerns with the care home, she and a doctor were prevented from seeing her mother when they tried to visit. The care home later told the ombudsman the ban was because of a previous incident reported to the police of the daughter and her partner’s behaviour, but could not provide any evidence that an incident had occurred or was reported to the police.

As visiting restrictions are, hopefully, going to be relaxed in the weeks ahead, I am afraid we have the prospect of seeing more residents’ families being victimised in this way. Helen Wildbore, director of the Relatives & Residents Association, has found from its helpline calls that relatives and friends play a vital role in spotting potential human rights violations, particularly around abuse and neglect. When they are locked out by bans, people in care lose crucial support: their advocate and confidante—they might be the only person they tell about their concerns. Sometimes residents are even threatened with eviction or actually evicted in reprisal for complaints about their care. The Joint Committee on Human Rights was told about a family whose mother was threatened with eviction after they merely asked to discuss concerns with the head office of a care home.

These are the kinds of abuses my amendment seeks to tackle and get over the problem that regulations are not sufficient. These regulations may specify the standards of care against which care providers are regulated by the CQC through its inspection process, but the CQC is not going to pick up individual complaints, so there is a gap. There is a strong case for a statutory duty of care sitting alongside CQC regulations to require care providers to facilitate such contact with families as is reasonably practical and to prohibit evictions where non-vexatious and non-repetitive complaints are in progress. In my amendment, I am not proposing that. All I am asking for is a review; an independent review charged with examining these options. I hope that the Government will agree that there needs to be some reflection on what has happened and how we can prevent this kind of abuse in the future.

[Baroness Cumberlege (Con)]

My Lords, I should like to speak to the amendment proposed by my noble friend Lady Hodgson.

From the age of five, I was a child of general practice; it was my world. I accompanied my father on home visits, patients came to our house and the telephone rang constantly—my mother was the secretary and took all calls. My father loved his patients and they loved him. He knew them inside and out, and their families as well. He attended road traffic accidents, of which I have to say there were plenty, and he delivered babies at home—he never lost one. I remember him telling me one day when he came back from a birth that it had been a very difficult birth, but the mother praised my father for having helped her to produce a very healthy little boy. “Doctor”, she said, “we will call the baby after you. What is your name?” My father replied, “Lambert”. “Right”, said the father, “we will call our son Tom.” I mention this only because maternity has been the love of my life, and in this area relationships are critical to a safe and good experience. In my youth, maternity was part of general practice.

After being appointed much more recently to chair the maternity review for England by Simon Stevens—as he was then; now, of course. the noble Lord, Lord Stevens of Birmingham—I was determined to introduce relationship care, sometimes called “continuity of carer”, where the final “R” stands for relationship. We have much respected and credible research from the Cochrane Collaboration in Oxford which shows that women who receive relationship care are less likely to have a preterm birth, less likely to lose their baby before 24 weeks and less likely to lose their baby overall.

We now have in the NHS 371 relationship teams with 2,355 midwives in place where the midwife provides all three elements of midwifery care: prenatal, birth and postnatal care, which is sometimes called follow-up care. In the James Paget Hospital, 90% of maternity care is provided through continuity and it has a waiting list for midwives to join the hospital. Through this initiative, we are transforming maternity care. The women and their families value hugely the relationship with their known midwife, and the midwives who are providing this care absolutely know that what they are doing is the right way to work. They would leave their hospital and go to one that provided such care if their hospital gave it up.

Listening to my noble friend Lady Hodgson, is not this what she seeks for general medical practice? Her amendment is well drafted and reflects an interesting report produced by the Royal College of General Practitioners, entitled The Power of Relationships: What is Relationship-based Care and Why is it Important? and published in June last year. In his foreword, Professor Martin Marshall, chair of the college, writes:

“COVID-19 has radically changed the face of general practice. We have moved from a predominantly face-to-face service to one in which most consultations are delivered remotely, either by telephone or video call … Remote consultations are certainly here to stay. For many patients, they enable quicker and more convenient access to a GP appointment, which of course is hugely important.”


But then he asks the following questions:

“But should speed and ease of access be our primary measures of effectiveness? They are certainly easier to quantify. But what about the quality of care? What about the relationship between doctor and patients which, to me, is the essence of general practice?”


He goes on to say that

“The evidence for the benefits of a trusting relationship is compelling—better patient experience; better adherence to medical advice, fewer prescriptions, better health outcomes, better job satisfaction for doctors and even fewer deaths.”


Indeed, he says that the relationship between the patient and their GP is as important as the scalpel is to a surgeon:

“If relationships were a drug, NICE would mandate their use.”

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

I end with a plea to my noble friend that the Government, MHRA, NICE and NHSE all work closely together, not just among themselves but with the industry and with all patient organisations and clinicians, to make swifter regulatory approval a reality, in keeping with the ambitious government life sciences vision, which I support.

[Lord Hunt of Kings Heath (Lab)]

My Lords, as this is my first contribution on Report, I declare my interests as a member of the GMC board and president of GS1, the British Fluoridation Society, the HCA and HCSA.

I welcome what the Minister said about research and its importance, and some of the tensions between practical work as a clinician and the crucial importance of clinicians engaged in research. The amendments that he introduced are very welcome, but like the noble Baroness, Lady McIntosh, I am disappointed that he has not brought similar amendments forward in relation to NICE. One suspects that it is something to do with money; he thinks that giving away amendments on research is cost-free, whereas there might be a resource implication when it comes to NICE. That is a pity.

The noble Baroness has talked about a postcode lottery in this country on the outcome of NICE judgments, but we also have a European postcode lottery. The fact is that NHS patients have much less access to modern new medicines and devices than those in many other countries. Stats that I have seen on medicines suggest that, for every hundred European patients who can access new medicines in the first year they are available, just 15 UK patients have the same access. We know that even when NICE has given its blessing to new medicines and treatments, take-up in the NHS still lags behind that in other countries.

I think that the noble Baroness, Lady McIntosh, and I were somewhat puzzled by the ministerial response in Committee in this area. We know that the NHS uses all sorts of rationing devices to prevent those new medicines and devices being allocated generally throughout the NHS, notwithstanding what NICE has to say—that is why I support the noble Baroness’s amendments. Essentially, my two amendments seek to build on the principles that she has referred to.

Amendment 171 relates to three issues which I think remain from Committee. The first relates to the links between licensing and reimbursement processes. Happily, the MHRA has established two new licensing pathways, ILAP— the Innovative Licensing and Access Pathway—and Project Orbis, for cancer medicines. This is very welcome; it is designed to speed up access.

However, the challenge with faster licensing decisions is that NHS reimbursement decisions need to speed up too, otherwise medicines can be placed on the market but cannot be made available to patients on the NHS. To its credit, the MHRA has designed this into ILAP, because NICE is directly involved in ILAP, and licensing and reimbursement decisions can be joined up. However, in respect of Project Orbis, there has been no such effort. Late last year, breast cancer patients faced the worrying situation where a drug, Trodelvy, which offered them hope, was licensed through Orbis but was not then available on the NHS. My amendment would therefore ensure that NICE acted to issue guidance on Project Orbis medicines as close to licensing as possible, as it does for ILAP.

Secondly, the amendment would clarify that NICE alone is responsible for determining its methods, as an independent body should be. In its recent methods and processes review, it concluded that

“there is an evidence-based case for changing the reference-case discount rate to 1.5% for costs and health effects. However, because of the wider policy and fiscal implications and interdependencies that are beyond the reach of this review, no change to the reference-case discount rate”

could be made. It further stated:

“Reducing the discount rate will make most technologies appear to be more cost effective.”


We are therefore in a situation where NICE wants to make a change to its methods, which would result in more medicines being made available to patients but is being stopped from doing so. That is not acceptable. NICE should be free to determine its methods, including the discount rate.

The final effect of the amendment would be to clarify the role that the current voluntary scheme, VPAS, and the statutory scheme play in reimbursement decisions. These schemes essentially cap the NHS’s expenditure on drugs, meaning the exposure of the taxpayer to spending on drugs is limited. The problem is that the health service then adds a whole host of other mechanisms to restrict access to medicines as well. My own view is that once we have VPAS and the statutory scheme in place, we do not need those other mechanisms.

Amendment 178 builds on this. I have already referred to the Project Orbis scheme. It has great potential, but unfortunately, as Gilead has pointed out, there is a lack of alignment across the system between government, the MHRA, NICE and NHS England, which has an impact on timelines for approval. This is particularly concerning in light of moves by other countries such as France to legislate to enable early access to innovative therapies prior to a cost-effectiveness assessment, with any difference in the final agreed price rebated by the company. We need an integrated access and funding pathway for medicines licensed by Orbis, prior to NICE approval, modelled on the French system, whereby companies rebate any difference in price following the decision by NICE.

The final point I will make is that we also need to deal with NICE capacity issues. In January 2022, NICE highlighted in its board papers that approximately 20 evaluations were paused in 2021-22 due to capacity constraints because of vacancies. This is despite increased industry fees paid for health technology assessments. While NICE’s vacancy rate has reduced, the same board papers note that:

“Organisational capacity continues to be the key risk for NICE ... strategy, and gaps in hard to fill specialist roles in a competitive global market.”


I would like the Minister to respond to this.

More generally, I hope that the Minister can give us some assurance that he and other Ministers recognise that all these initiatives to speed up access, excellent though they are, will come to very little unless they can sort out the NHS side of things and get rid of some of these rationing mechanisms which have been put in place.

[Lord Sharkey (LD)]

My Lords, like the noble Lords, Lord Patel and Lord Kakkar, I have added my name to the government amendments in this group. These amendments directly address the criticisms which we made in Committee that, as things stood, a duty to promote research lacked any real force. Since we made these criticisms, we have met with the Minister and his officials to try to strengthen this research duty and make it more meaningful and concrete. These amendments, and the others in the next group, are the result of our discussions.

The Minister has explained, and given some examples, how they would help. The importance lies on what new things the amendments put in place. They require the NHS to explain, in its business plans and annual report, how it proposes to discharge, or has discharged, its research obligations. They also require a performance assessment of ICBs, which includes how well they have discharged their research duty and their duty to facilitate and promote the use of evidence in research. I thank the Minister and his team for their extensive engagement on the question of research in the NHS. I am pleased that we have strengthened the research duties of the Secretary of State and the ICBs. I am particularly pleased that progress will now be formally reported and assessed.

I should also mention that, in his letter of yesterday, the Minister listed a number of non-legislative measures either being taken or developed for facilitating or fostering a culture of research within the NHS, and for holding to account the people responsible for delivering this.

Finally, the noble Lord, Lord Patel, has asked me to say how sorry he is that he cannot be here today. He wanted the House to know that he supports the Government’s research amendments and is grateful for their co-operation in generating more research in the NHS. As the noble Lord, Lord Kakkar, has said, he is at home recovering from Covid, and I am sure that the House wishes him a speedy recovery.

--- Later in debate ---

[Baroness Whitaker (Lab)]

My Lords, as well as supporting Amendments 9 and 12 and the rest of the group, I would like briefly to add my support for Amendment 31 in my capacity as patron of the British Stammering Association. This amendment is very much welcomed by the Royal College of Speech and Language Therapists, for all the reasons that we set out in Committee. It would do much to improve the expertise available for these damaging difficulties with the basic human need to communicate and the capacity to swallow, so I hope the Government adopt it—I am sure they will, because it is a government amendment. I am very grateful.

[Lord Hunt of Kings Heath (Lab)]

My Lords, before the noble Baroness, Lady Walmsley, speaks, I congratulate her and the Minister on Amendment 31. I also want to ask a question. It very much looks as if the integrated care board is marking its own homework, because the duty to keep the experience of members under review is placed on an integrated care board. It is then for the integrated care board itself to make a judgment as to whether it

“lacks the necessary skills, knowledge and experience”.

Quite clearly, any board that has already appointed a group of members is almost certain, in undertaking its review, to come to the conclusion that it was altogether wise in appointing the members with the balance it did. Who is going to monitor this? Who is going to check?

What if you are a local nursing body concerned that nursing issues are not being debated and reflected enough within an integrated care board? What do you do? Who do you go to? As far as I can see, apart from judicial review proceedings there is absolutely no way you can get any change. That is why—and I pay tribute to the noble Baroness, Lady Walmsley, for her work on this—you need amendments like my noble friend Lord Bradley’s to make some specification in relation to those critical areas where it is essential that the board has members with the relevant experience.

My second point for the Minister is this. In introducing her Amendment 9, my noble friend Lady Thornton essentially said that the Bill already lays out constraints on integrated care boards in relation to potential conflicts of interest. All she seeks to do is to extend that to sub-committees of the integrated care board, including place-based committees, which will commission a huge amount of health service provision in future. For the life of me, I cannot see how those sub-committees can be constituted under any different principle from that of the integrated care board itself. Unless the Minister really comes up with a convincing answer on this, I think the House should make its views clear.

[Baroness Harding of Winscombe (Con)]

My Lords, as this is my first contribution on Report, I begin by declaring my interest as the recently stepped-down chair of NHS Improvement and NHS Test and Trace.

I commend the noble Baroness, Lady Walmsley, and my noble friend the Minister and support Amendment 31. In Committee, we debated in considerable detail the constituent elements of the ICBs. I think it hugely important that integrated care boards have a loud, strong, forceful voice for mental health, public health and prevention in all its forms, but I also think it really important that we enable a board to be a proper board.

The noble Lord, Lord Hunt, questions whether a board would ever assess its own competence and members. Any really good, functioning board in the public and private sector views that as one of its primary obligations. The first line of defence to ensure that a board is performing well is whether it is actually doing an assessment every year of whether it has the appropriate skills. Yes, you should have second and third-line assessments through the CQC and NHS England, but it is the role of a board, and we should let them do that. I believe that Amendment 31 holds these boards to account to do that.

The amendments we have already debated today, enshrining the obligations around public health, health inequalities and mental health, ensure that that is the clear objective of those integrated care boards. I encourage my noble friend the Minister to hold firm and support his amendments and not the others.

--- Later in debate ---

[Lord Kamall (Con)]

My Lords, despite what the noble Baroness, Lady Thornton, said at the beginning about this perhaps being the end of the harmonious start to our debates so far, I feel that this has been a helpful and constructive debate. I am grateful to noble Lords for bringing these issues before the House.

Let me start with Amendment 9, as I understand the wide interest in the membership of the committees of the board and potential conflicts of interest. We firmly agree that conflicts of interest must be handled carefully, and have included multiple references to that in the Bill. We also recognise the concern that ICBs should not allow private providers to control commissioning decisions, which is why we added the amendment relating to private providers in the other place, in paragraph 4 of Schedule 2.

Furthermore, in the helpful discussions we have had with noble Lords since then, there has been mutual recognition that we need to balance the importance of protecting the core values and public nature of the NHS while not overly restricting the membership of ICBs. I am pleased that the amendment to Schedule 2 balances on that tightrope and gives appropriate reassurance. We think that it is reasonable to allow private providers and social enterprises to sit on some committees and sub-committees of the ICB, as barring them risks blocking sensible integration and joint working.

I am also aware of the mixed reactions to this amendment from stakeholders. Many noble Lords will have seen the NHS Providers Report stage briefing, which states that

“there could be circumstances where a local private or voluntary sector provider would be well placed to join a joint committee with a focus on integrated service delivery whereby the usual arrangements to identify and manage conflicts of interest would, and should, apply.”

It goes on to say:

“It does not seem reasonable … therefore to further restrict the membership of those committees in a way which is prescriptive in law.”


Further, the NHS Confederation stated in its Report stage briefing that this amendment

“risks critically undermining integration by reinforcing a rigid, out-dated purchaser-provider split and derailing the fundamental purpose of these reforms.”

As it so eloquently put it:

“The current reforms aim to facilitate collaborative working by bringing all partners in local areas around the table to plan the most effective and the most efficient way to deliver care. This, by its nature, involves bringing providers of services, alongside commissioners, into committees and sub-committees of the ICB to plan how care is delivered”.


Potential conflicts of interest are inevitable in commissioning, especially when we are looking to increase integration and bring multiple bodies together. The ICBs will be required to manage conflicts of interest as part of their day-to-day activities. That is set out in the Bill and will be part of their constitution as well.

For all committees, the board of the ICB will have to determine what functions they exercise, their membership, and the level of oversight of their decisions. The board of the ICB cannot delegate a function and claim to be no longer responsible for how it is discharged, and will be held to account for this by NHS England.

Also, ICBs will be clear and transparent about interests, and how they are being managed. We think that transparency will prevent poor decision-making. New Section 14Z30 makes it clear that an ICB must maintain and give public access to a register of interests for members of its committees or sub-committees. There must be arrangements in place to ensure that conflicts are managed not just for ICB members but within committees. The constitution of the ICB must also include the arrangements to be made to discharge the functions under new Section 14Z30 and a statement of principles to be followed by the board in this regard. This will all be supported by guidance from NHS England. We are quite determined to tackle conflicts head on and not shy away from this issue.

[Lord Hunt of Kings Heath (Lab)]

My Lords, if NHS England is determined to tackle conflicts of interest head on, why is it building them into the whole structure of integrated care boards? Let us think about an integrated care board discussing future strategy: it would inevitably discuss where the priorities will be. That inevitably means that money will follow the priorities. At what point in those discussions do the major providers, who will be sitting round the table, have to withdraw from because of a conflict of interest? At heart, this ambiguity is built in, so it is not surprising that my noble friend wants to see consistency right through the system, including the sub-committees.

[Lord Kamall (Con)]

I thank the noble Lord for that intervention because I was just about to come to it. I should add that new Section 14Z30 very clearly requires ICBs to manage conflicts of interest at sub-committee level.

We think that the approach we have outlined will be more appropriate and possibly more effective than simply barring individuals with a conflict of interest—which, I encourage noble Lords to note, would also include NHS Providers and local authorities— from all committees with a commissioning function. First, this approach is broader than what the noble Baronesses might have intended. Secondly, many committees will have a range of functions, and commissioning may be only a small part of their activity. This approach risks creating a series of duplicated committees with similar interests to enable commissioning decisions to be taken in line with the amendment. This risks undermining one of the very purposes of this reform: to reduce bureaucracy and increase integration.

On Amendment 10A, we are clear that chief executive pay should be value for money. The pay framework is based on our ability to attract the highest-quality candidates. ICB roles, such as the chief executive, are some of the more complex in the health system. Experienced chief executives of trusts already exceed the suggested £150,000 per annum remuneration. Therefore, we do not believe it would be realistic to expect them to take a pay cut to take up a role with such a portfolio.

I remind noble Lords that putting the salary of an ICB chief executive into the Bill would be inappropriate. Such a lack of flexibility would be extremely unusual for a senior position and risks salaries declining in value over time, precisely as ICBs take on more responsibility as they become more established. This would fundamentally weaken ICBs’ ability to recruit and retain senior management. I also warn that directly tying pay to performance is likely to make it significantly harder to recruit chief executives to more challenging ICBs—precisely the organisations that we would want to recruit the very best leaders.

I hope I can reassure noble Lords that the recruitment process will ensure that only the most qualified people can take up these roles. All ICB chief executive appointees across England need to demonstrate how they meet—

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 1st March 2022 Lords Chamber

We are at a milestone moment, and I sincerely hope that this amendment really will be game-changing. It is the start of a new journey, and this is the first step for the Department of Health and the NHS to guide integrated care boards as they look to develop over time the services that their local population need. Now delivery plans need to be communicated to integrated care boards and providers as they work together on the journey to integration and ensure fair access for all to the palliative care that people desperately need, often at the most vulnerable time in their life.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Finlay, for her outstanding work in this area. I was very moved by the remarks of my noble friend Lord Howarth in tribute to the care given to Baroness Hollis, who was such a tremendous force for good in your Lordships’ Chamber over many years.

Can the noble Earl clarify the point that has already been raised? In the letter from Ministers of 26 February it was said that the amendment would add palliative care services to the list of services that an ICB must commission. On the face of it, the amendment seems rather more permissive. Proposed new subsection 3(1) in Clause 16 states:

“An integrated care board must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility”.


There is then a list, which starts with “hospital accommodation”, which the ICB must arrange for—then on page 17 are a couple of provisions that seem rather more permissive.

The nub of the issue is this: we have fantastic palliative care in the mainly voluntary sector as well as in the National Health Service itself, but it is very patchy. The health service has been very reluctant to give long-term certainty to hospices and other providers of palliative care services, insisting on short-term contracts. The real question to the noble Earl is this: will this change as a result of this amendment? Where is the beef that will actually get the message across that we expect the health service to do a lot better than it has been doing in support of palliative care services?

[The Lord Bishop of London]

My Lords, I declare my interests in the register. I join in thanking the Government for having listened in Committee. I hope that this will make a difference not just to the lives of those whose lives are shorter but also their families, so it is very welcome. I pay tribute to the noble Baroness, Lady Finlay, but also to my friend, the right reverend Prelate the Bishop of Carlisle, who put his name to Amendment 17.

As I say, I welcome this amendment. As the chair of the UK Commission on Bereavement, I have been reminded recently of the inconsistency of palliative care, which other noble Lords have spoken of this evening. It affects not only those who require palliative care but also their family and friends, and it leaves a legacy into bereavement, which we should not underestimate. I too was reassured to hear the Minister say that palliative care must be commissioned, but I share again the concern of the noble Lord, Lord Hunt. In Amendment 16, the word “appropriate” is used, and it is not quite the same thing. Could the Minister reassure the House about the Government’s expectations regarding the nature of palliative care services that the ICBs will commission? How will they ensure that that is delivered in a way that creates consistency? It is care that is rightly deserved by people in our communities, which also reflects the skill and hard work of our palliative care practitioners

--- Later in debate ---

[Lord Scriven (LD)]

My Lords, I support the amendments in the name of the noble Lord, Lord Crisp, to which I have added my name. I think the noble Lord had to table these amendments because the Minister said when we discussed this in Committee that his challenge was to ensure that

“primary care is better represented and not dominated by acute trusts.”—[Official Report, 20/1/22; col. 1854.]

We expected something to come back that did exactly that, because the very fact the Minister said that suggested that the Government had accepted that there was a potential imbalance with the role of primary care.

I come back to the purpose of the Bill, which I did a number of times in Committee. The purpose of the Bill is to bring about effective integration, improve health outcomes and reduce health inequalities. That is underpinned by making primary care central to healthcare planning and ideas about healthcare, following through on those plans and having primary care as an equal partner in the ICB. So we moved away from who we want on the board to asking very simply for primary care to be treated as an equal in the planning, implementation and monitoring of what will happen in health and social care in the area. It is disappointing that, despite the Minister’s suggestion that he would go away and look at this, nothing new has come back since Committee to deal with that.

What new has come back on Report which makes sure that primary care can be better represented and not dominated by acute trusts in this new system? My worry is that the Bill giving this to NHS acute trusts and foundation trusts signals which are most important within the system. If primary care does not have that equity, there will be unrealistic expectations and uninformed decisions made in planning for final decisions and tactical, not transformational, systems and services, which will not represent the full view of primary care. It is for those reasons that I support the amendments of the noble Lord, Lord Crisp, and look forward to the Minister bringing to the House’s attention what new proposals are in here on Report to do with the challenge that he set himself: to ensure that primary care has a bigger voice and is not dominated by the acute sector.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I added my name to the amendments of the noble Lord, Lord Crisp, and echo the remarks of the noble Lord, Lord Scriven, on the Minister’s offer in Committee to go back to see how the potential dominance of acute trusts could be mitigated by ensuring that the voice of primary care was heard loud and clear in the various decision-making bodies.

It is a pity that it is a very late hour, because primary care warrants a much wider debate, given the challenges it undoubtedly faces. We are all aware of the workforce issues, such as the reluctance of many GPs to take on partnerships and that so many GPs will do only part-time work, partly because of the pressures. It is because of those challenges and because primary care is so valued in this country that we need some assurances that the people running the new system being introduced through this legislation will be concerned with and listen to primary care.

It is somewhat ironic. The noble Lord, Lord Lansley, is not here any more, but in a sense, we are seeing a transformation from what he hoped would be a GP-led system through clinical commissioning groups to one which looks very strongly acute care-led in the integrated care boards. As someone who was spent quite a lot of my time in the health service around acute trusts, I do not particularly worry about acute trusts being listened to, because we depend on them so much. We really need assurance that integrated care boards will take primary care seriously.

Finally, whatever concerns and reservations we on this side of the House had about clinical commissioning groups, some GPs undoubtedly rose to the challenge of leadership within them. I should be very concerned if they were lost from the new arrangements. It would be good to know that the Government recognise that and will ensure that a place is found for them in the new system.

[Baroness Whitaker (Lab)]

My Lords, I rise to support Amendments 30 and 34. On Amendment 30, I echo the widespread concern of the professional bodies and expressed by the noble Baroness, Lady Finlay, that rehabilitation should be a core service in the NHS. It is inseparable from healing, and healing is often impaired if rehabilitation is not there.

On Amendment 34, it will be important to know whether the proposed integrated health boards will be in contact with services outside the NHS where health can be a critical factor, such as education and criminal justice. As we said in Committee, many speech and language professionals are not NHS employees. How will they be brought into the integrated system?

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

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

[Baroness Brinton (LD)[V]]

My Lords, I thank Ministers, officials and other Peers, including my noble friends Lord Clement-Jones and Lady Walmsley, and the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Finlay, for the discussions that we have had since Committee. I am particularly grateful for the letter from the Minister late yesterday and the meeting this morning.

I have laid Amendment 60, and I support Amendment 116, tabled by the noble Lord, Lord Hunt, which try to protect only the lawful disclosure of personal patient data. For the purposes of the debate on this group, can we accept that this is shorthand for the confidential personal and medical data currently mainly held by GPs and hospital doctors in England? Amendment 60 would provide that protection in legislation and was laid only because we have not yet had a clear response from Ministers on what is permitted and what the existing rules will be relation to ICBs taking over responsibilities from CCGs because ICBs are new bodies. This is in the light of new Section 14Z61. At Second Reading and in Committee, noble Lords expressed concerns that this new section, which outlines ICBs’ permitted disclosures of information, looks very wide ranging and could, for example, enable a police officer, or another person from a public body, to demand the disclosure of a patient’s personal data.

The new section uses the phrase that ICBs can disclose data where

“disclosure is necessary or expedient”

for the person making the request, but nowhere does it explain how the decision is made by the ICB or what the decision-making process is to release the data and, importantly, where the protection of that personal data sits in the hierarchy of the request of necessary and expedient demands. I have asked repeatedly how this process would work, and in responses at the Despatch Box, in meetings and in letters I have not really had a response that has laid out simply and clearly how this process would work. I shall therefore ask the Minister the following questions in an attempt to clarify how a patient’s confidential personal data will be protected and what the process would be for it to be released to a person making a request. What rules and guidance are available for staff, including those in ICBs, to manage a request from a non-NHS person requesting information other than through a court order? How would it be processed and reviewed? ICBs would not normally be the holder of such data, and new Section 14Z61 does not set out the balance between the rights of the patient and those of the requestor who believes they have a necessary or expedient reason for being sent this data.

We wish to be confident that the structures are in place for when shared care records come into force. Let me be clear: from these Benches, we welcome the principle of shared care records, but the processes need to be in place to ensure that personal data is protected when every part of NHS England would have access to that data. I raise this particularly because just this week Health Service Journal stated that the Secretary of State is speeding up the shared care records project to be complete and implemented by December 2023.

Can the Minister therefore commit that the powers in Section 14Z61(1) will be constrained such that for requests of disclosure that come from outside the health and care system, the ICB will only ever disclose the direct care providers the requester could ask instead? Can he confirm that if an ICB is to become data controller for shared care records, he will return to this clause with primary legislation on such implementation?

I am very grateful for the discussion with Ministers and officials and hope that the Minister will be able to provide your Lordships’ House with a response that demonstrates that patient, personal and confidential data remains secure. I look forward to his response, and I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I congratulate the noble Baroness, Lady Brinton, on the brevity of her remarks, which is a model for Report stage. I think she put this across very well indeed and I very much support her.

My Amendment 116 relates to the containment in the Health and Social Care Act 2012 of the concept of a safe haven for patient data across health and social care, which is required for national statistics for commissioning, regulatory research purposes and patient care. My Amendment 116 simply seeks to keep those statutory protections in place and ensure that NHS England does not take on this responsibility as a result of the merging of NHS Digital and NHSX within the structure of NHS England, which was a recommendation of the review led by Laura Wade-Gery. The noble Lord, Lord Clement-Jones, is going to speak in some detail—but with brevity as well, I hasten to add.

Kingsley Manning, the former distinguished chair of NHS Digital, has spelled out the implications of doing this. He believes the action of NHS England in taking over NHS Digital

“is a significant retrograde step in defending the rights of citizens with respect to the collection and use of their health data.”

In a letter to me, which I received yesterday, the Minister asked me why NHS England would be regarded as less independent, transparent or objective in the exercise of these functions, given its already significant responsibility for some data and the fact that it is a very similar organisation to NHS Digital, as a statutory arm’s-length body. In answer to him, NHS England has many different responsibilities and priorities, so, first, it will clearly not be able to give the same focus to the issue of protecting the safe haven and, secondly, it has many interests which could be deemed to at least be in tension with the concept of the safe haven. That is why I and other noble Lords believe it is important to have the statutory protection already contained in the current legislative arrangements.

I conclude by saying that I am at one with Ministers in wanting to speed up digital transformation in the NHS; after all, we have been dabbling with this over many years. But it has to be done right, and the way to do it right is to be very transparent and rigorous about the protection of patient information.

--- Later in debate ---

[Lord Mackay of Clashfern (Con)]

My Lords, I am an honorary fellow of the two Edinburgh colleges and I strongly support this. It seems extraordinary that these very distinguished colleges which, as has been said, have an excellent record over many years in teaching people not only in this country but in many other countries should be excluded from playing a part in these appointments.

I also support Amendment 80 but would like to elaborate on it a little. I think Health Education England was set up, by the Act that we had before, with some degree of contention. It is a system that is supposed to help determine the future for the health service, with fairly elaborate provisions to that effect, as I remember from that Bill.

It is not at all clear to me how this assessment is going to be done. I see it has to be verified independently, in other words somebody independent of the whole system has to assess it for its accuracy. However, if you need Health Education England to do this for the medical professions particularly, why do you not need something similar to deal with the very complicated system of social care? Therefore, I think the whole system requires to be extended to cover something like Health Education England in relation to the whole area that this amendment covers. The Secretary of State sets up some kind of mechanism for report; it has to be a pretty elaborate mechanism if it is going to work. Therefore, I humbly suggest that something like Health Education England is needed to be the basis on which this assessment arises. Then, of course, you have to provide for the independent assessment of whether it was a good assessment originally. I support this amendment, but I think something more elaborate is ultimately required.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will just speak to my Amendments 111 and 168. On Amendment 111, when the noble Baronesses, Lady Brinton and Lady Masham, and the noble and learned Lord, Lord Mackay, have already put forward the arguments, there is very little for me to say, but the exclusion of the Scottish colleges from the appointment process needs to be rectified. It is an irritant, a hold-up.

In Committee, the noble Lord said that we needed to go through consultation. That was a dreary and negative response. The Scottish colleges have done that. They have consulted and got the support of the Academy of Medical Royal Colleges, NHS Employers and the NHS Confederation. Surely the Minister can just accept this amendment. To simply say that there is no need for it and lots of consultation has to take place is just a ludicrous waste of time and money. This is the time to do it. He should bring an amendment back on Third Reading and be done with it. The noble Lord says that he wants to improve efficiency in the health service. I am afraid I take that with a pinch of salt, because he is just letting officials run riot around him in relation to petty, bureaucratic objections to this change.

Obviously, my other amendment is not major compared to Amendment 80, which is substantial and very important. The noble Baroness, Lady Cumberlege, has really put it forward with great force. Again, I think the noble Lord needs to take a more vigorous approach with the Treasury, because clearly that is where the objection to this is coming from.

My other amendment is about the terrible problem of GP distribution, or the wide variations. I am not going to tempt the noble Baroness, Lady Cumberlege, to come in on the GP issue—but the latest figures, for 31 December 2021, show, for primary care networks in England, the huge variation in the number of GPs. In 24 of the networks, the average list of registered patients for fully qualified full-time equivalent GPs is more than twice the national average. There are five primary care networks where the average is more than three times the national average; these are often in the most deprived areas. No wonder there is an issue of burnout, early retirements and a move to part-time working.

The Government’s response so far is the targeted enhanced recruitment scheme—an incentive for GPs to go into these areas. It is not enough; a much more substantive piece of work is required, and I hope again that the Minister will come forward with a positive response.

[Baroness Jones of Moulsecoomb (GP)]

I shall speak to Amendment 82 in the name of my noble friend Lady Bennett of Manor Castle. I attended Second Reading and made my views felt then, but I have not been able to join the deliberations on the Bill since then because of the pressure of other Bills in your Lordships’ House.

Even I, as someone who does not know very much about medicine, know that the most urgent challenge currently facing our health service is a shortage of nurses. I have been lobbied very heavily by the Royal College of Nursing, because Amendment 82 is its number one priority. It feels that, without a co-ordinated work plan, a coherent forward view and knowledge of exactly how the situation is at the moment, it cannot possibly achieve the sorts of numbers that are needed. There were almost 50,000 vacancies before Covid, and you can imagine the pressure that Covid has put on to the NHS—extreme pressure at completely unsustainable levels, and with staff numbers that are actually unsafe. We all know this, yet Boris Johnson and the Conservatives made big promises at the last election—their manifesto made a promise of 50,000 more nurses—and instantly that number began to unravel, as it included existing nurses who do not quit. That is unclever and unsophisticated number crunching.

I do not understand why this Government will not live up to their manifesto commitments. One reason why I have not been able to speak on this Bill since Second Reading is because of all the other Bills coming through, on which the Conservatives have said that they are aiming to achieve their manifesto commitments. They are actually going rather beyond their manifesto commitments in lots of areas—but the fact is that they are picking and choosing as if from a box of sweets the ones that they prefer.

The Royal College of Nursing represents over 480,000 nurses in health and social care. These are people whose pay requests are constantly ignored—and who constantly have their pay cut; in real terms, it has reduced. Just at the point when MPs are getting very welcome extra pay, nurses hang on by their fingertips. We know that vacancies are also a huge problem, with retirement age approaching for a lot of nurses. Nurses need the certainty of planning, and I do not hear those plans coming from the Government, although this is really their job—to manage the economy and manage society in a way that benefits everybody. Clearly, if the NHS fails in any area, that does not benefit anybody at all.

I argue very strongly for Amendment 82, and I just hope that the Government wake up in time to see how necessary it is.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, would the noble Lord be surprised to hear the rumours that the Treasury has prevented the Minister from responding in a positive way to this amendment?

[Lord Stevens of Birmingham (CB)]

We await insight from the Minister himself on that point; it is indeed, of course, what the chairman of the cross-party Health and Social Care Committee, Jeremy Hunt, suggested in the House of Commons. We have an immediate litmus test before us, which should help us answer the question posed by the noble Lord, Lord Hunt. As your Lordships will remember, we noted in Committee the fact that, just 10 weeks before the start of the financial year, when it should have been planning 10 years out, Health Education England still did not have its operating budget for the year ahead. My understanding—I hope to be corrected by the Minister—is that, certainly, as of 10 am, Health Education England still does not have its workforce operating budget for just 29 days’ time. That is precisely because of a set of behind-the-scenes discussions—no doubt courteous, but nevertheless fervent—between the Department of Health and Social Care on the one hand and the Treasury on the other.

Health Ministers are more sinned against than sinning on this, frankly, and in that sense this amendment will strengthen their hand. I suspect that, privately, they will welcome the mobilisation of your Lordships to support their negotiating case. The very fact that Her Majesty’s Government oppose this amendment is proof positive that it is needed. We need it because we need to look beyond the end of our noses. To vote against this amendment would be to cut off our noses to spite our faces.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Thornton (Lab)]

With the leave of the House, I thought it might be useful if I used my slot to speak right now on leaving out Clause 40. First, I thank the noble Lords, Lord Patel and Lord Lansley, and the noble Baroness, Lady Walmsley, for putting their names to this amendment. The noble Lord, Lord Patel—with whom I spoke this morning, and who is definitely on the mend, so I hope we will see him next week—said how strongly he supports the amendment. I will speak very briefly because we have already said much of what needs to be said about saving the Secretary of State from himself—as the noble Lord, Lord Lansley, said, I think. This is what this amendment is about.

Clearly, this is not what the NHS asked for in the Bill. It did not ask for this power. It has been added to the Bill—by a previous Secretary of State, I suspect—and I hear rumours that even the current Secretary of State is not a great fan. Why would any Secretary of State want to have this power—to be lobbied and drawn into any minor local dispute, particularly as we head towards a general election?

I have a small anecdote. A small coastal town had a small hospital with an accident and emergency department. It could not be properly staffed, it regularly closed for random periods, and far too often patients arrived there only to be moved to the larger A&E 20 miles down the road. Proposals were made to close it—and of course, outrage ensued. “Save our A&E”, people said, even though it was unsafe. Local politics were poisonous, and the blame for the closure was thrown on opponents, whichever side they were on.

However, over time, good communications, clinical leadership and, eventually, bringing local people into the team, got the proposal moving. People understood what was needed and why, and the reconfiguration process went through its stages, with external reviews and analysis by the national clinical advisory team, which all gave reassurance. The clincher came when a distinguished clinician leading the review told a meeting that he would personally go and paint over the road signs for the A&E, because it was so unsuitable. It shut, which probably means that lives were saved.

The process of rational argument and proper analysis works, and on this occasion we should not just leave it to local politics to decide what reconfiguration means. The Secretary of State has enough powers to direct the whole NHS in its fullness, but should not be involved in what may be very small reconfigurations indeed. We agree, and many people in the NHS and its organisations agree, that this clause should be removed from the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have no doubt that when the Minister responds he will say that the Secretary of State is likely to use this power very rarely. The point is that the moment the health service knows the Secretary of State has such a power, that will immediately influence its behaviour in relation to any improvements or major changes of services likely to lead to opposition from the local Member of Parliament. I think that the Minister is responsible for innovation in the health service, and this will put the kibosh on innovation and service changes.

Written on my heart is Kidderminster General Hospital. The Minister may not recall this, because it is a long time ago now, but Worcestershire Health Authority made proposals to reconfigure A&E services and close Kidderminster General Hospital. The then Member of Parliament, David Lock, who was a loyal member of the Government, bravely defended that decision. He lost his seat in 2001, and it has been written on the hearts of many MPs since then that they do not defend that type of change, because they might lose their seats.

I cannot believe that the Government wish to give the Secretary of State the nightmare of that kind of lobbying—I am trying to tempt the noble and learned Lord, Lord Clarke, to intervene here, because he knows what MPs do. What we have at the moment is a very good system, at arm’s length, and it beats me why on earth the Government want to do this. We need to do the business and get rid of the clause. I suspect that we shall not see it back again.

[Baroness Walmsley (LD)]

My Lords, Amendment 84 is intended to remove the powers of the Secretary of State, in Clause 40, to intervene in decisions on reconfigurations of health services. I said in Committee, and I say again, that those powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding for a proposal to, say, build a new school or improve infrastructure in a particular constituency have got them into trouble. Political considerations have trumped public interest. In the media they call that pork barrel politics—not a very complimentary phrase, I am afraid.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Baroness for clarifying that. Of course, we completely understand the concerns that have been raised. The Secretary of State must use regulation-making powers where they exist, rather than using the power of direction to achieve what could be achieved under regulations.

Turning to the allocation of resources to the ICBs, the Government have no ambition to use this power to interfere with individual allocations of money to the system. It will not be used to interfere with the independent Advisory Committee on Resource Allocation. NHS England will continue to make funding allocations to ICBs to support them to deliver functions via the target formula, in order to reduce inequalities between patients. We have attached safeguards to this power to make sure it is not misused. Any exercise of this power must be done transparently: it must be made in writing, be published and be made in the public interest. This will enable Parliament to challenge Ministers and hold them to account.

Turning to Amendment 84, Clause 40 and Schedule 6 will allow the Secretary of State to better support effective change and respond to stakeholder concerns, including views from the public, health oversight and scrutiny committees and parliamentarians, in a more timely way. The clause and schedule will ensure that key decisions made about how services are delivered are subject to democratic oversight.

It is a misapprehension that the Secretary of State currently has no role in the decision-making process for reconfigurations. He does and without these provisions that role will continue. However, currently, referrals usually come at a very late stage in the process, which represents neither good value for the taxpayer nor good outcomes for patients.

I understand the concerns from noble Lords, including former Ministers, about how these powers might be used. But I have been asked to make clear that we expect the vast majority of reconfiguration decisions to continue to be managed by the local system—

[Lord Hunt of Kings Heath (Lab)]

I am sorry to interrupt, but does the Minister not take my point that it is not that Ministers will have to use those powers; it is that they have powers that will change behaviour immediately in the health service? That is the issue.

[Baroness Walmsley (LD)]

Before the Minister answers that question, I wonder if he would be kind enough to answer two from me. He just gave a list of what the powers will not be used for, but could he tell us what sort of thing the powers will be used for and under what circumstances? Can he also say why previous Secretaries of State—some of whom are not very far from where I am standing now—did not feel the need for those powers and still felt themselves accountable for the health service?

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great honour for my two amendments to be grouped with that in the names of the noble Lords, Lord Alton and Lord Blencathra. As the noble Lord has discussed the supply chain, I should declare my interest as president of the Health Care Supply Association, although I am not speaking on its behalf when it comes to my strongly supporting his amendment, which sets the context for my own two amendments.

We debated this issue very fully in Committee. I think that the House believes strongly that the commercial exploitation of body parts in all forms is unethical and unsavoury. When it is combined with mass killing by an authoritarian state, we cannot stand by and do nothing. In 2019, the China Tribunal, led by Sir Geoffrey Nice QC, stated:

“The Tribunal’s members are certain—unanimously, and sure beyond reasonable doubt—that in China forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims.”


In June this year, 12 UN special procedure experts raised the issue of forced organ harvesting with the Chinese Government in response to credible information that Falun Gong practitioners, Uighurs, Tibetans, Muslims and Christians had been killed for their organs in China.

Currently, human tissue legislation covers organ transplantation within the UK, where we have a very ethical approach, but it does not cover British citizens travelling abroad for transplants, and British taxpayers’ money will pay for anti-rejection medication regardless of where the organ was sourced or whether it was forcibly harvested from prisoners of conscience.

I shall not repeat all that I said in Committee, but I have had a helpful meeting with Ministers for which I thank them. In that meeting and in subsequent meetings, the Minister was concerned that my amendment in relation to organ tourism would penalise vulnerable people seeking to pay for a transplant. I have thought about that carefully, but, in the end—and the noble Baroness, Lady Kennedy, expressed so well why this Bill is highly appropriate for these kind of amendments—we have to draw a line in the sand. That is particularly so today, in the horrific circumstances that we meet. We have to draw a line in the sand and send out a powerful message globally that we will not support these abhorrent practices in any way.

My Amendment 162 comes later, but I shall seek the opinion of the House at that time.

[Baroness Northover (LD)]

The noble Lord, Lord Hunt, has very effectively introduced the amendments to which I have put my name, Amendments 162 and 173, and I wish briefly to express the support of these Benches for those. We also support Amendment 108, to which my noble friend Lady Brinton has put her name.

As noble Lords know, we have been inching forward on these matters with Ministers, and I welcome that forward movement. I note, however, recent warnings from Ministers that, for example, there are “opportunity costs” in implementing these measures, as ensuring that proper standards are enforced requires effort and potential cost. I understand that. Nevertheless, we cannot allow ourselves to become complicit in any way in organ tourism where the source of those organs is forced or where selling the organ is to address appalling poverty.

Some say that this trade may be declining in and from China. If so, that is welcome and might reflect international pressure, not least on the Chinese medical profession. It is not clear that those involved in the China Tribunal and the Uyghur Tribunal would agree that it is declining.

Even if we were to accept that, and Ministers seemed to indicate that they thought that might be the case, we are also hearing now of an increase in the selling of organs in Afghanistan because of the dire situation there. There have been recent reports of journalists seeing the scars of those who have sold their kidneys. That is a terrible indictment of our walking away from Afghanistan and failing to address the appalling conditions that we have left there. How can we regard such potential “donors” as being anything other than the most extremely vulnerable? How can you put that up against the vulnerable who may need to have donations?

As for the bodies exhibitions, we have discussed before how distasteful they are—but then we realise with horror exactly where these bodies seem to have been sourced: among other things, from Chinese prisons. We should never have condoned that, turning a blind eye. I agree with the noble Baroness, Lady Thornton, who argued in Committee that they should simply be banned. There is no reason whatever to agree to their continuation.

I now hear that the Government may argue—and this is incredibly familiar—that these amendments are flawed. As the noble Earl knows, often Ministers are given briefs that say, “This is a flawed amendment, so turn it back.” I am very familiar with them. In those circumstances, the best thing is for your Lordships to pass these amendments, because Ministers know, or should know, that the essence is extremely clear, and with government lawyers we can work out how best to sort out any unintended consequences. I hope that I do not hear anything about these amendments being flawed—and I say that to the Box. I therefore commend them to your Lordships.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

116: Clause 92, page 86, line 30, at end insert—
“(3A) Regulations under this section may not transfer a function as defined in Part 9 of the Health and Social Care Act 2012.”Member’s explanatory statement
Part 9, Chapter 2 of the Health and Social Care Act 2012 lays out the safe haven for patient data across health and social care, required for national statistics, for commissioning, regulatory and research purposes, and for patient care. The amendment seeks to keep these statutory protections in place and ensure that NHS England do not take on this responsibility because of a potential conflict of interest in their role.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, we debated this amendment on patient security of data last week. I wish to test the opinion of the House.

--- Later in debate ---

[Lord Etherton (CB)]

The amendments in this group that are in my name would remove Part 4 in Schedules 13 to 15 of the Bill, all relating to HSSIB. I am very grateful to the Minister and the Bill team for their engagement with me and other Members of the House on these amendments. An alternative, narrower amendment—Amendment 124 in the name of the noble Lord, Lord Hunt of Kings Heath—would simply remove the permission of HSSIB to disclose protected material to coroners.

The basis for these amendments can be stated in four words: it will not work. The safe space within which HSSIB is intended to operate cannot work because, under the provisions of the Bill, HSSIB responds to specific incidents which have, or may have, implications for the safety of patients. Those same incidents may be the subject of an inquest, and senior coroners are entitled under Schedule 14 to require the disclosure by HSSIB of protected material if it is relevant to the investigation being undertaken by the coroner. Once the coroner has that material, he or she is in practice bound to disclose it at the inquest, and the High Court will inevitably order such disclosure if it is relevant to one or more of the questions that the inquest is required by statute to resolve—in particular, in the present context, if it is relevant to deciding how the deceased died. That is because, in the words of a leading Court of Appeal case, the duty of the coroner is

“to ensure that the relevant facts are fully, fairly and fearlessly investigated”

and

“are exposed to public scrutiny”.

Article 2 of the European Convention on Human rights does not add materially to the intensity of that investigatory duty of coroners which already exists under our domestic law. The materiality of Article 2 is only that it imposes the obligation not merely to decide by what means the deceased came to his or her death but in what circumstances.

I am very sceptical that coroners need protected material from HSSIB since they have managed perfectly well without any such right of access to similar material held by the PHSO since the PHSO was established under its founding statutes of 1967 and 1993. Be that as it may, my focus today is on what the senior coroner must do when in receipt of protected material from HSSIB. In short, the material must be disclosed by the coroner.

Although an inquest is in legal terms an inquisitorial process, the ascertainment of the relevant facts is often, as many members of the House will know, highly contentious. Those who have been designated interested persons by the coroner, who include a wide range of family members, may cross-examine witnesses either in person or by representatives. It is inconceivable that a coroner could keep secret from interested persons protected material obtained by the coroner from HSSIB which is relevant to the matters that have to be decided by the inquest. This may have very serious implications for those who have given evidence to HSSIB which is deployed in the inquest, including the possibility of a conclusion of unlawful killing by gross negligence manslaughter.

No medical practitioner could possibly feel confident that, in giving evidence to HSSIB, it is being given in a safe space in view of the need for public disclosure of such evidence by coroners if it comes into their hands and is relevant to the inquest. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have put my name to the amendments tabled by the noble and learned Lord and have tabled amendments of my own. As the noble and learned Lord said, his amendments simply take out the HSSIB provisions from the Bill, whereas mine take out the reference to senior coroners.

I think we are all united in supporting the concept of HSSIB improving safety in the health service. A stand-alone Bill in 2019 had a Second Reading in which we were beginning to get to grips with some of the issues around the construct of HSSIB and, particularly, the safe spaces concept. This is very important in the health service because of the traditional reluctance of staff to come forward with information about where things have gone wrong because experience has shown that whistleblowers have often been treated very poorly indeed.

I fully support the concept of HSSIB and safe spaces and believe that if it is implemented properly it will lead to improved safety. However, as the noble and learned Lord has so eloquently pointed out, the problem is that the inclusion in the Bill of the coroner’s ability to access this information would render the whole safe space concept unworkable. Staff will simply not trust it if these provisions are left in the Bill.

We are faced with two options. One is to take out the whole of the HSSIB provisions. Ideally, I would support that because it would benefit from a stand-alone Bill, where we could give it the scrutiny it clearly deserves. On the other hand, our job here is to be constructive as a revising Chamber. On that basis, we would be much safer removing the coroner elements and giving the Government a little more time to discuss this further before the Bill goes on to Third Reading and back to the other place.

I think there are ways through. I have been attracted, for instance, to one solution put forward by the noble Baroness, Lady Brinton, in relation to a memorandum of understanding between the noble Earl’s department and the MoJ. We need to discuss that; in order to do so now, I believe we should remove the coroner provisions from the Bill.

[Lord Patel (CB)]

My Lords, I apologise for rising because I know we need to move on but before I speak to this amendment perhaps I may take the opportunity, as I was not here on the first day of Report, to thank the Ministers for listening—and taking action after doing so on many aspects. I thank them all for that. I also thank all those who sent me good wishes. It helped, and I did not realise I had so many friends.

I shall not speak at length on this group. I have my name on both sets of amendments. The reason I supported removing the whole clause was that there are a lot of issues arising, not just the invasion of the safe space. However, I agree with the noble Lord, Lord Hunt of Kings Heath, that it gives the Government another chance if it is confined to removing the coroner provisions. I agree with what has been said: the medical profession particularly, but even other health professionals, will find it difficult if the safe space of what they say confidentially can be invaded, so I support that proposal.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

124: Schedule 14, page 237, line 41, leave out paragraph 6
Member’s explanatory statement
This amendment would remove the provision allowing coroners to require the disclosure of protected material.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

125: Clause 114, page 101, line 34, leave out subsection (7)
Member’s explanatory statement
This amendment, along with another amendment to Schedule 14, would remove the provision allowing coroners to require the disclosure of protected material.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

144B: After Clause 155, insert the following new Clause—
“Complaints about care services
(1) The Care Quality Commission (CQC) must establish procedures for investigating complaints of conduct which breaches, or potentially breaches, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the regulations”).(2) In establishing the procedures, CQC must take into account, by regular surveys, the views of—(a) appropriate representative bodies,(b) those representing users and their families, and(c) such other persons or groups of persons as it considers appropriate.(3) Nothing in this section affects the requirement for registered persons to comply with regulation 16 of the regulations.(4) Complaints under this section include those made to CQC about regulated care services by users, their relatives or advocates, staff, or other relevant persons. (5) A user of a service, their relative or advocate may make a complaint directly to CQC.(6) CQC may, after due consideration, redirect a complaint to the registered person where it is satisfied that the conduct complained of does not constitute a breach of the regulations.(7) CQC must—(a) regularly publish a written report which includes examples of breaches of the regulations, and(b) provide guidance to registered persons and others to illustrate how such complaints can be resolved to the satisfaction of service users, their relatives or advocates, staff or another relevant person.(8) CQC must regularly review the procedures that it has established under this section.(9) Procedures established under this section must be made available by the registered person to any person who receives services, or to their relative or advocate.(10) CQC must publish information about procedures established under this section and take appropriate steps to make the procedures available to any person or group who may require such information.”Member’s explanatory statement
The amendment requires the Care Quality Commission to establish procedures for investigating complaints of conduct which breaches, or potentially breaches, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

[Lord Hunt of Kings Heath (Lab)]

My Lords, there is a series of amendments in this group. My amendment does not really relate to the others in the group, but it is about an important issue.

In Committee, I raised the problem that a number of members of the public and the Relatives & Residents Association have brought to my attention: in a minority of care homes, if residents or relatives complain, the homes take retaliatory action in the form of making visits even more restrictive than they currently are and, in some cases, even evict, or threaten to evict, the person on whose behalf the complaint has been made. As I said, this is in a minority of homes— over the past few years I have been impressed by how many homes have continued to provide high-quality care in very difficult circumstances. None the less, this is an important issue.

In 2019, the Relatives & Residents Association was coming across at least one case a week of such intimidatory behaviour. We discussed this in Committee. The Minister said that she did not really think that the department had received much evidence of this, that in any case residents and their relatives and friends should complain to the home in the first instance, and that the Care Quality Commission would also pick up concerns.

This is a very confusing picture. If you go to the CQC’s website, you will see that it states:

“we do not settle individual complaints ourselves, but we still want you to tell us about your experiences of care.”

To most people, that is pretty confusing. If you are worried that a home is going to be intimidatory in its response to legitimate complaints raised, you are hardly likely to have confidence in its complaints system.

Up until about 2008, the CQC did take individual complaints but, due to a funding cut, it stopped doing so, even though, in Scotland, the equivalent body investigates specific complaints, and the predecessors of CQC investigated complaints. We know that there is huge pressure in care homes. We also know that some care homes are continuing extremely restrictive practices around relatives and friends being able to visit. This has become quite a serious problem in which, while they may not be in total lockdown, they come near to it, clearly more for the convenience of the home than for a public health reason. My amendment simply asks the CQC to go back to receiving and dealing with individual complaints in these cases. I hope that the Minister will perhaps be sympathetic to this. I beg to move.

[The Deputy Speaker (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely; I invite her to speak.

--- Later in debate ---

With all that, I hope I have given noble Lords sufficient reassurance that they feel able to withdraw or not press their amendments and I commend the amendments in my name.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the Minister, who summarised a variety of amendments, none of which seemed to have much connection at all to each other. I should have declared my interest as a member of the GMC board but, of course, under the rules of the House, I am not allowed to comment on anything to do with the GMC.

On my Amendment 144B, all I would say is that the Minister is absolutely right that the CQC is not there to investigate complaints. The fact is that, if you are a relative of a resident and you are concerned about quality so you complain, you are then threatened that you will not be able to visit if you carry on doing it. You cannot go to the CQC, effectively, the ombudsman is far too remote and long-distance, and the provider does not have a satisfactory complaints system. That is the problem. We still have to find a solution. Having said that, I beg leave to withdraw my amendment.

Amendment 144B withdrawn.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

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

[Lord Krebs (CB)]

My Lords, I shall speak in support of the amendments in the name of the noble Lord, Lord Bethell, to which I have added my name. I do not really need to say anything more than has already been said. We know that this country, according to the World Obesity Atlas published last week and supported by the World Cancer Research Fund, is now top of the European league table for projected levels of female obesity by 2030 and joint top for projected levels of male obesity. Sadly, it is probably already too late to stem this trend, but by acting now on these measures we might be able to protect the next generation. That is why I support the idea of having a firm deadline by which time the measures will be introduced.

I actually wanted to speak in slightly more detail about Amendments 148, 150 and 152 in the name of the noble Lord, Lord Moylan. As he explained, they are really just one amendment.

I promise you that this was not set up, but I have in my hand the very Grenade bar to which the noble Lord, Lord Moylan, referred. I wish to explain why this Grenade bar should definitely not be excluded. I am grateful to Dr Emma Boyland, of the University of Liverpool’s Institute of Population Health, for giving me a briefing on the Grenade Carb Killa bar—this particular one is high-protein, low-sugar, white chocolate and salted peanut. I bought it at the weekend from Holland & Barrett, in its health food section; it is marketed and advertised as a healthy product. Is it a healthy product? The answer is no.

First of all, no age group in this country is short of protein. We simply do not need to eat more protein. So the fact that this bar is high-protein is completely irrelevant in terms of health benefits. Secondly, remember that HFSS is high fat, salt and sugar. The bar may be low-sugar, but what about fat? It contains two-thirds of the recommended daily limit of the intake of saturated fat; it is definitely high in fat. It also contains more salt than a bag of salted crisps. Is it right to exclude something that is fatty and salty from the definition of HFSS? I am convinced it is not right, and therefore I completely reject the argument of the noble Lord, Lord Moylan. These products should not be excluded from the measures proposed in Schedule 18 to the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have two amendments in this group—Amendments 154 and 155—though they are rather different from those discussed in the debates that we have just heard. I declare my interest as the president of the Hospital Caterers Association.

We have heard a lot about the risk of obesity, but we also know that many patients coming into NHS hospitals come in with nutritional issues, where good food and good nutrition could very much help them on their way to recovery. The research has indicated problems where patients are not feeding properly.

We are very grateful to Ministers for the meeting we had with the Hospital Caterers Association and the National Association of Care Catering, with the noble Baroness, Lady Barker. We are very grateful too that Clause 161 sets out specifications for hospital food standards.

There are just two quick points I want to make. First, it is a great pity that we do not have a similar process in relation to the care sector—care homes, in particular. One of the amendments relates to that: we want to see the provisions extended to the care sector. We also want to ensure that staff working in the care sector are suitably trained and that there is a suitable framework to ensure there is a high level of professional staffing.

My second point relates to the National Health Service. Although lip service has always been paid to good standards of hospital food and nutrition, unfortunately the boards of NHS organisations have often found it difficult to provide the resources to enable that to happen. The suggestion in my first amendment is, in fact, that a board-level director should be appointed to oversee this to ensure that the standards laid out as a result of the Bill, when it becomes law, will be put into practice. Alongside it go similar provisions in relation to ensuring that we have high-quality staff who can take advantage of a focused approach to training, which, at the moment, has been missing because a lot of the national infrastructure for training for staff in the NHS in the ancillary services has been neglected.

I hope that, following the discussions we had with Ministers, the noble Baroness will be able to be positive in relation to this tonight.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

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

Moved by

[Lord Hunt of Kings Heath]

162: After Clause 164, insert the following new Clause—
“Appropriate consent to transplantation activities when travelling abroad
(1) Section 32 of the Human Tissue Act 2004 (prohibition of commercial dealings in human material for transplantation) is amended in accordance with subsections (2) to (6).(2) In subsection (1), after paragraph (e) insert—“(f) travels outside the United Kingdom to a country or part of a country where explicit consent is not required for the legal donation of controlled material which does not meet the criteria in subsection (1A)(a) to (c) and receives any controlled material, for the purpose of transplantation, without—(i) the free, informed and specific consent of a living donor, or(ii) the free, informed and specific consent of the donor’s next of kin, where the donor is unable to provide consent;(g) travels outside the United Kingdom to a country or part of a country where explicit consent is required for the legal donation of controlled material and receives any controlled material for the purpose of transplantation where the material was obtained without—(i) the free, informed and specific consent of a living donor, or(ii) the free, informed and specific consent of the donor’s next of kin, where the donor is unable to provide consent;(h) travels outside the United Kingdom to a country or part of a country and receives any controlled material for the purpose of transplantation for which, in exchange for the removal of controlled material—(i) the living donor, or a third party, receives a financial gain or comparable advantage, or(ii) where the controlled material comes from a deceased donor, a third party receives financial gain or comparable advantage.”(3) After subsection (1) insert—“(1A) The Secretary of State must publish an annual assessment of countries where, explicit consent is not required for the legal donation of controlled material, determining whether each of those countries—(a) provides a formal, publicly funded scheme for opting out of deemed consent for donation of controlled material,(b) provides an effective programme of public education to its population on the deemed consent system and the opt-out scheme which delivers a high level of public understanding of both, and(c) is not considered to be committing Genocide by resolution of the House of Commons.(1B) In paragraph (h) in subsection (1), the expression “financial gain or comparable advantage” does not include compensation for loss of earnings and any other justifiable expenses caused by the removal or by the related medical examinations, or compensation in case of damage which is not inherent to the removal of controlled material.(1C) Subsection (1E) applies if—(a) an act which forms part of an offence under subsection (1) takes place outside the United Kingdom, but(b) the person committing the act has a close connection with the United Kingdom.(1D) For the purposes of subsection (1C)(b), a person has a close connection with the United Kingdom if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made—(a) a British citizen;(b) a British overseas territories citizen;(c) a British National (Overseas);(d) a British Overseas citizen;(e) a person who under the British Nationality Act 1981 was a British subject;(f) a British protected person within the meaning of that Act;(g) an individual ordinarily resident in the United Kingdom;(h) a body incorporated under the law of any part of the United Kingdom;(i) a Scottish partnership.(1E) Where this subsection applies, proceedings for the offence may be taken in any criminal court in England and Wales or Northern Ireland.”(4) In subsection (3), after “subsection (1)” insert “(a) to (e)”.(5) In subsection (4), after “subsection (1)” insert “(a) to (e)”.(6) After subsection (4) insert—“(4A) A person guilty of an offence under subsection (1)(f) to (h) shall be liable—(a) on summary conviction—(i) to imprisonment for a term not exceeding 12 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(b) on conviction on indictment—(i) to imprisonment for a term not exceeding 9 years,(ii) to a fine, or(iii) to both.”(7) In section 34 of the Human Tissue Act 2004 (information about transplant operations), after subsection (2) insert—“(2A) Regulations under subsection (1) must require specified persons to—(a) keep patient identifiable records for all instances of UK citizens who have received transplant procedures performed outside the United Kingdom; and(b) report instances of transplant procedures performed on UK citizens outside the United Kingdom to NHS Blood and Transplant.(2B) Regulations under subsection (1) must require NHS Blood and Transplant to produce an annual report on instances of UK citizens receiving transplant procedures outside the United Kingdom.””Member’s explanatory statement
The amendment is aimed at ensuring that in relation to organ tourism, there must be informed consent with no coercion or financial gain for the donation of organs. Thus prohibiting organ tourism which involves either forced organ harvesting or black market organ trafficking.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this was debated two weeks ago, but I know that the noble Earl, Lord Howe, wishes to say a few brief words to your Lordships’ House. With the permission of the House, I will say very briefly, without seeking to open the debate, what the amendment does. It is to amend the Human Tissue Act to prohibit UK citizens from travelling to countries such as China, although the wording in the amendment is not country-specific, for the purpose of organ transplantation. The restrictions are based on ensuring that there is appropriate consent, no coercion and no financial gain.

Forced organ harvesting in China is the crime of forcibly extracting organs from prisoners of conscience, killing the victim in the process. The harvested organs are sold to Chinese officials, Chinese nationals or foreigners for transplantation. This is a very modest amendment, doing our bit to try to prevent this obnoxious habit. I beg to move.

[Earl Howe (Con)]

My Lords, I am very grateful to the noble Lord, Lord Hunt, for allowing me to say in a few sentences why the Government advise noble Lords not to support the amendment.

Reason number one is the effect on patients. In my submission, very sick patients who may be taken overseas for a transplant but are not fully made aware of how their organ was sourced should not have to face prosecution when they return to the UK. The existing legislation rightly targets those who buy and sell organs, not recipients who may have been quite unaware of any commercial dealing taking place. If we target the organ recipient, we will find that those who legitimately receive organs overseas—incidentally, individuals who are more likely to come from ethnic-minority backgrounds—will be deterred from seeking follow-up treatment for fear of being treated like a criminal suspect.

Reason number two is that the mischief the amendment seeks to address is dwarfed by the considerable burdens it would impose on the NHS. All the information indicates that we are dealing, at worst, with tiny numbers of illegal transplants performed overseas. The amendment would require officials, whose focus should be on promoting legitimate donation, to research and write a report every year on the status of every other deemed consent system in the world and on the public understanding of each scheme. That is not a drafting criticism but a necessary consequence of what the noble Lord seeks to achieve. In my view, it is an unreasonable ask and a hugely disproportionate use of resources.

To address the issue at first base, we will take forward the excellent suggestion from the noble Baroness, Lady Finlay, to work with NHS Blood and Transplant. My noble friend Lord Kamall has already instructed officials to engage with it on how we can help clinicians make their patients aware of the health risks, the risk that they may be exploiting others and the risk of breaking the law if they travel abroad in search of an illegitimate transplant. I truly think that is a better way forward, and I invite the noble Lord to change his mind about pressing his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will not detain the House. It is time for the House to make a decision. I am very grateful to the Minister for picking up the point made by the noble Baroness, Lady Finlay, in relation to NHS Blood and Transplant. In the end, it may be a small gesture but it is an important gesture—a mark against this obnoxious habit. I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

164: After Clause 164, insert the following new Clause—
“Vaccine damage payments
Within 6 months of the passing of this Act, the Secretary of State must establish an independent judge led review into the operation of the Vaccine Damage Payments Act 1979 and the adequacy of payments offered to persons seriously injured, or bereaved, consequent upon vaccination against any of the specified diseases to which the Act applies.”Member’s explanatory statement
The Vaccine Damage Payment Act is now more than 40 years old and the aim of the amendment is to ensure that a judge led review takes place into the operation of the Act.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am speaking to my Amendment 164 but I also strongly associate myself with Amendment 180 in the name of the noble Baroness, Lady Cumberlege.

In Committee, I raised concerns about a small number of individuals and families who have paid the highest personal price for the success of the Covid vaccination programme, suffering bereavement or serious injury as a direct consequence of adverse reactions to vaccination. We have the Vaccine Damage Payments Act 1979, which was intended to provide a safety net for such individuals by providing a modest ex-gratia payment to those injured or bereaved in recognition of the fact that their injuries and losses flowed directly from “doing the right thing” by having the vaccine for the benefit of society as a whole.

The scheme is 40 years old and no longer fit for purpose. The maximum payment is capped at £120,000, which is far too little to provide proper financial support for families who have maybe suffered the death of a main income earner. The current scheme also requires that all eligible applicants in the UK must meet what is called the 60% disablement criterion. This criterion is antiquated, counterproductive and unfair: many applicants could have significant injuries and may be disabled up to 59% and yet, on the basis of the current scheme, they would have no access to funds.

The current system takes far too long to provide the payment. The causal connection between certain injuries and Covid vaccination is now accepted, I believe, by clinicians and regulators. However, despite providing death certificates that identify Covid-19 as a cause of death and medical reports confirming Covid-19 as the cause of injury, the scheme still estimates that it will take more than six months to begin to process claims submitted under the scheme more than 12 months ago.

In Committee—I thank Ministers for another meeting yesterday to discuss this further—the noble Earl explained that responsibility for the operation of the scheme has transferred from the DWP to his department and the NHS Business Services Authority has taken over the operation of the scheme. This is very welcome and I am glad that it has happened. However, this is not an issue that will disappear any time soon—Covid is not an issue that is disappearing. Further vaccinations will come along and there will unfortunately be adverse effects for a very small group of people, in the interest of the greater good.

I believe that the scheme offers too little, too late, to too few and I have three asks of Ministers. First, I ask that Ministers and the NHS Business Services Authority engage with the families affected. It would be valuable if Ministers and senior executives at the NHS Business Services Authority were to meet some of the families. I know that Sarah Moore of Hausfeld will be happy to facilitate this, and I pay tribute to her. Secondly, I ask that everything that can be done is done to speed up the process of meeting claims. Thirdly, on behalf of the families and individuals, I ask the Government to consider undertaking a review of the scheme in the light of current experience and particularly look at the 60% criteria bar and the £120,000 limit which has not been updated for a number of years.

The vaccination programme has been a wonderful success both in this country and globally. It is very unfortunate that inevitably there will be a small group of people damaged in the process. I think we owe it to them to have a generous scheme. I beg to move.

[Baroness Cumberlege (Con)]

My Lords, my amendment is grouped with the amendment in the name of the noble Lord, Lord Hunt, whose persistence I admire concerning those who have suffered vaccine damage. My amendment is slightly different, but it is along the same lines in that it is about unintentional outcomes and redress for those who have suffered.

My amendment requires the Secretary of State to bring forward proposals for redress schemes to help those who have suffered avoidable harm linked to the three medical interventions that were examined in the report from the Independent Medicines and Medical Devices Safety Review, which I chaired. These are hormone pregnancy tests—the most common being Primodos—the epilepsy drug sodium valproate and pelvic mesh, which was used to treat stress urinary incontinence and pelvic organ prolapse.

I will be brief, but I make no apology for bringing this before your Lordships’ House again because the case for these schemes is so compelling. These are people who, through no fault of their own, have suffered terribly and had their lives changed for the worse and in some cases completely ruined—all because of mistakes, errors of judgment, oversights and a refusal to listen across the healthcare system. In each case—Primodos, valproate and mesh—harm could and should have been avoided. If that does not underline the moral and ethical case for providing some help, then I really do not know what does.

I believe that my noble friend the Minister and his colleagues are genuinely sympathetic to the plight of these women and their children, but I sense that they are hesitant. I urge them to overcome some of this reluctance and act now. The suffering is immense, it is continuing even today, and very sadly people are dying before they receive the help they need. I remind my noble friend that these redress schemes are not the same as compensation. We are not talking about large sums of money. We are talking only about modest funds to help with the challenges of daily life: to pay for mobility aids, a respite break, travel to hospital. This is help that they do not and cannot access at the moment from the NHS, social services or elsewhere.

In Scotland, the Government there have acted. A scheme was set up to provide help to women suffering from mesh complications. It is modest: it was given a £1 million budget and women had to apply to it to be eligible. But it was welcomed, and it has helped. That is the kind of help I have in mind. Sums of that scale are barely noticeable in the context of the hundreds of billions we spend on health and social care, yet these small sums would mean so much to so many.

Are there concerns that this might set a precedent and that before we know it dozens of other groups of people who have suffered will all want the same? I do not believe so. That has not happened in Scotland. Thalidomide did not lead to an avalanche of other groups requiring help. We have existing schemes to help others who have been harmed. If the Government really believe that compensation is the better way for these people to get help, they are mistaken. The fact is that many have tried to obtain compensation through the courts. It is time-consuming, costly, stressful, adversarial and, worst of all, it simply has not worked.

The three groups that Amendment 180 is designed to help are small in number—not millions of people, not hundreds of thousands. I do not believe that an unwelcome precedent would be set. I do not believe that these schemes would cost the earth. The cost would be modest and can be contained and managed. I believe the benefits will outweigh the cost and that we have a moral and ethical duty to help these people. They have suffered for years and in some cases for decades. Surely the measure of a decent society is how well it looks after those who have suffered harm, especially where that harm could and should have been avoided.

I have met hundreds of people who have suffered; even today I get a lot of emails, phone calls and letters. We have heard from many more people. I am clear that help is both needed and deserved. People should not be made to wait any longer. I hope that my noble friend the Minister will agree.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I will turn first, if I may, to the amendment in the name of the noble Lord, Lord Hunt of Kings Heath, on the Vaccine Damage Payment Scheme, and start by thanking him for his campaigning on this issue, and for the informative debates we have had today and in Committee.

As we discussed in Committee, since the NHS Business Services Authority took over responsibility for the Vaccine Damage Payment Scheme from the Department for Work and Pensions in November 2021, we have started to find ways to improve the operation of the scheme. The most important thing the NHS Business Services Authority is looking do to is to improve the claimant journey on the scheme, and that means making engagements with claimants more personalised, as well as giving claimants access to more general support. The crucial part of this drive is to reduce response times, which the authority knows has been a cause of dissatisfaction, particularly during Covid; in other words, the whole process is being modernised.

The NHS Business Services Authority has done its best to hit the ground running. Since taking over in November, it has already contacted all applicants to update them on their cases and it has also allocated additional resource to the operation of the scheme. I can assure the noble Lord that the department will further engage with the NHS Business Services Authority to ensure that these service improvements, greater digitisation in particular, really do make headway. There is already regular dialogue on this.

With all this enhanced activity happening, I do not think this is right time to establish an independent review into the VDPS. As the noble Lord will know, reviews take significant time and they carry substantial costs to the organisation, not just financial but in terms of leadership focus and energy. Instead, we think it is a better use of resources to focus on making the changes that we know need to happen; that is, to improve the claimant’s journey, and to modernise the process for claimants, as well as scaling up the capacity of the VDPS. We will keep the progress on these under regular scrutiny, and I am sure we will report regularly to this House as we do so.

I will address the noble Lord’s three key questions. First, I should be happy to facilitate a meeting with representatives of the families, and my honourable friend Maria Caulfield, who is the Minister with direct responsibility for the scheme, will be pleased to see them. Secondly, as I have already indicated, reducing response times is one of the NHS Business Services Authority’s key objectives. Thirdly, the noble Lord asked whether the Government would undertake a review of the scheme. I simply remind the noble Lord that the scheme has been revised many times since its inception, which shows that it is reviewed regularly as a matter of course, but perhaps it is worth my making the point that the VDPS is not a compensation scheme; nor is it designed to cover all expenses associated with severe disablement, which are catered for from the public purse in other ways. I hope that is helpful to the noble Lord, and that on the basis of those assurances he will feel able to withdraw his amendment.

Before I address the detail of Amendment 180, I would like to again put on record my thanks to my noble friend Lady Cumberlege for her continued commitment to the issues she has so powerfully spoken about, and the diligence and dedication of the IMMDS team, and the brave testimonies of those who contributed to the IMMDS review. As my noble friend knows, the Government have accepted the majority of the report’s nine strategic recommendations and 50 actions for improvement, and are taking forward work to improve patient safety. This includes establishing specialist mesh removal centres, the ninth of which opens in Bristol this month, and work to improve the care pathways for children and families affected by medicines during pregnancy.

We remain committed to delivering improvements in patient safety across the board. We are focusing government funds on initiatives that directly improve future safety. For this reason, the Government have already published their decision that redress schemes will not be established for people affected by hormone pregnancy tests, sodium valproate or pelvic mesh. I realise that was a disappointing decision for my noble friend, and I am always very sorry to disappoint her, but, for the reasons I have given, I ask her not to move Amendment 180 when it is reached.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Earl, Lord Howe, the noble Baroness, Lady Brinton, and my noble friend Lady Wheeler for their support. I empathise with the comments of the noble Baroness, Lady Cumberlege, and her report, which was far-reaching. Having met some of the women who were affected, I know how keenly the noble Baroness, Lady Cumberlege, feels about these issues. It is disappointing that the Government have rejected this particular request, although they have accepted many of her recommendations. It leaves the groups of women whom we have met to continue with their long, hard campaign, but they will continue, and one day a Government will agree to give them some of the support that they deserve.

On my own amendment, I pay tribute to the work of the NHS Business Services Authority. I am very glad that it took over responsibility for the scheme, and I wish it well in speeding up the process of claims. I am grateful to the noble Earl for facilitating a meeting between representatives of the families and the Minister—that is very welcome indeed. All I would say is that as the Business Services Authority continues its work, it is bound to come across issues in relation to the operation of the scheme, and I hope the Government will reflect on that and look at further improvements to the scheme. Having said that, I beg leave to withdraw my amendment.

Amendment 164 withdrawn.

Moved by

[Lord Hunt of Kings Heath]

165: After Clause 164, insert the following new Clause—
“Secretary of State: Duty to promote and ensure the full integration of self care for minor ailments within the health system
(1) The Secretary of State, in exercise of his or her functions, must promote self care for minor ailments and prepare a national self care strategy to integrate self care fully into the wider health system.(2) The national self care strategy referred to in subsection (1) must include measures to—(a) improve inequalities in health literacy,(b) enhance the understanding of primary and secondary age children on how to self care,(c) introduce self care modules in healthcare professionals’ training curricula and continuing professional development,(d) make best use of, and expand, the Community Pharmacist Consultation Service,(e) improve access to effective self care treatments,(f) enable community pharmacists to refer people directly to other healthcare professionals,(g) ensure better support for Primary Care Networks (PCNs) to deliver self care,(h) evaluate the use of technologies developed during the COVID-19 pandemic to promote greater self care, and(i) accelerate efforts to enable community pharmacists to populate medical records.”Member’s explanatory statement
This amendment would ensure that the Secretary of State promotes self care for minor ailments and publishes a national self care strategy to fully integrate it into the wider health system.

[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 Penn (Con)]

My Lords, I thank the noble Lord, Lord Hunt, for bringing forward a debate on this issue. I reassure him and other noble Lords that the Government absolutely agree that supporting people to maintain their health and well-being and to manage self-treatable conditions is a vital part of delivering a comprehensive health service. Indeed, much of what the amendment seeks to achieve is already government policy. However, I do not agree that requiring the Secretary of State to prepare a single national strategy would add value. Instead, we are threading self-care through a wide range of work, reflecting the range of areas that it impacts upon.

A good deal of work is already under way. The community pharmacy contractual framework for 2019 to 2024 five-year deal sets out how community pharmacy will support the NHS long-term plan. Community pharmacies, which provide easy access to the NHS, are already required to support patient self-care, signpost to other parts of the NHS and local services as necessary, and help people to live healthily.

I am especially aware of the interest the Proprietary Association of Great Britain has shown in this area. The Department of Health and Social Care officials have met with it to discuss its blueprint for a self-care strategy in England and will continue to engage with it about further supporting self-care throughout our healthcare system.

We do not think placing an additional duty on the Secretary of State would be the right way to support this work, as it would take it out of the NHS long-term plan, where it belongs as part of a holistic approach to the provision of a health service. It could risk making it more disjointed rather than integrated in its approach, but noble Lords made a really important point about demand on our health service and the role that self-care has in this. Prevention was a key theme of a speech by my right honourable friend the Secretary of State last week and, clearly, elements of self-care and prevention go hand in hand with each other, particularly in the use of new technology.

Noble Lords also made an important point about how we can use self-care, particularly at community pharmacies, to reduce pressure on GPs and A&E departments. All community pharmacies are required, as I said, to provide support for self-care. To ensure that people get directed to the right support for their health needs, we have introduced referral systems from NHS 111 and GPs to pharmacies for advice and treatment for minor illnesses. We are also exploring expanding referrals from other settings, including urgent treatment centres and A&E to community pharmacies.

I hope that gives noble Lords some reassurance that we place an importance on self-care, as part of our health service. That will only increase in future and work is under way in multiple areas of the health service to do that. I hope, therefore, that the noble Lord is able to withdraw his amendment.

[Lord Hunt of Kings Heath (Lab)]

I am grateful to the noble Lord, Lord Clement-Jones, and my noble friend Lady Wheeler for their support, and to the Minister. I am glad to hear her recognition of the importance of community pharmacy, and about the meetings between officials and the PAGB. That is very welcome.

I agree that the interrelationship between self-care and prevention is important—as is, may I say, personal responsibility. I also agree that the pressure we face in the system is such that this is important for the future. The Government may not want a strategy but, at some point, setting out their aim in this area and giving the right signals to us as individuals, but also to the system, would be very helpful. I beg leave to withdraw my amendment.

Amendment 165 withdrawn.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hate to disagree with the noble Lords who have spoken against this amendment, almost as much as I loathe supporting the noble Lord, Lord Forsyth, on anything. But, for me, this is a matter of democracy. Public opinion is constantly moving on this, and it becomes more and more supportive as the public understand the issues involved. It is partly the duty of the Government to explain exactly what it is about. Having a proper debate like this is something we should all support.

Personally, I want this on the statute book before I need it. I have five grandchildren, and I try to talk them all into pushing me over a cliff if I were to get too ill. As soon as their mothers told them that it was illegal, they refused me. The idea remains that this is something which many of us want for ourselves, because we fear being incapable. Therefore, I support Amendment 170.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I would like to put a point to the noble Lord, Lord Forsyth. He said that his amendment simply provides time for Parliament to consider an assisted dying Bill. I note that proposed new subsection (2)(a) also says that the Secretary of State should

“respect that this is a matter of conscience”.

But a draft Bill is a draft Bill. It will be prepared by a government department; instructions will be given by solicitors, after consultation with Ministers, to parliamentary counsel; and that Bill will eventually be approved by Ministers in the relevant department and put before Parliament. There will be a Minister in charge of the Bill. Whatever mechanism is chosen—maybe a Joint Select Committee of both Houses—to consider the draft legislation, the Minister will be in charge and will be seen by the public to be driving through a Bill. If the noble Lord had said in his amendment that more time should be given for the Private Member’s Bill, I would have supported it. Businesses managers clearly need to take account of the obvious wish of this House to have more time to debate it—

[Lord Forsyth of Drumlean (Con)]

I do not want to prolong the debate but, for the sake of clarity, I will say that the issue here is that this is a complex subject—as has been pointed out. It is a Private Member’s Bill, and the Government would provide support for that. It is not a government Bill, and it is not being piloted by the Minister. This is clear from the amendment. It could not be, because the Government then would not be neutral, as they should be, on a matter of conscience.

[Lord Hunt of Kings Heath (Lab)]

I am very grateful to the noble Lord for his intervention. However, his amendment says:

“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill”.


In my book, a Minister laying before Parliament a draft Bill is in charge of that Bill.

[The Lord Bishop of Durham]

My Lords, I agree with those who have already spoken opposing the amendment. First, the amendment is not appropriate as a use of the legislative process accompanying this Bill through your Lordships’ House. There is a question of purpose. If opportunity for debate is the goal, we must underestimate neither the significance of the Bill of the noble Baroness, Lady Meacher, in October and the thorough, careful and considered debate, nor the possibilities of calling for Committee. I would also support that time being given in this House. There are important constitutional questions which arise if the amendment enacted by this House does in fact instruct the Secretary of State in the other place to propose and introduce a draft Bill—as the noble Lord, Lord Hunt, has just outlined. If that is not the case—and if the noble Lord, Lord Forsyth, is not advocating for this draft to be introduced—what is the purpose of the amendment?

Secondly, I am aware that the language of the amendment has some real problems. One example is “terminally ill”. We debated the importance of language at Second Reading of the Assisted Dying Bill. The phrase “terminally ill” is understood in a whole range of different ways in different parts of the world. Is there any guidance offered on the definition or scope behind the language in the draft Bill attached to the Secretary of State’s instruction?

The complexity of the issue in question is so great—and the lives of the people who are facing a personal debate of this kind, and feel that they would be particularly impacted, are so important—that this cannot be how we legislate on their behalf. We are on Report, so I was disturbed that the noble Lord, Lord Forsyth, intervened when he did.

Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

My hope is that every MP, particularly in areas where this expert research is showing the changes will have the most serious impact, knows what is happening and who will be affected. That is what levelling up means, and it also means addressing these issues. As the Nuffield Trust has summed up, the Government have an opportunity to make real changes to the broken social care system. The cap is not the solution to all the problems but as one component it is important that it is designed to be as fair as possible and protect those with the least. I will move Amendment G1 and test the opinion of the House at the appropriate time.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in very much welcoming my noble friend’s introduction to her amendment, I refer to Motion A, to which the Minister referred in his opening remarks and to which he has brought Amendment 11A in lieu. This relates to potential conflicts of interests within membership of committees or sub-committees appointed to exercise commissioning functions on behalf of integrated care boards. This is important because those committees will form the basis for what is widely described in the NHS as place-based decision-making.

The Minister in Committee—which must seem a long time ago to him—referred to his hope

“that the ICB will exercise functions through place-based committees, where a wider group of members can take decisions”.—[Official Report, 20/1/22; col. 1852.]

This was in relation to the series of amendments from the noble Lord, Lord Crisp, about primary care and the need for it to be round the table. I see the potential of that, but as they are given increased responsibilities, there are questions about how placed-based committees are to be held to account. It is important that they are transparent, have robust governance arrangements in place and are properly held to account. Equally important is to ensure that potential conflicts of interest are avoided —particularly that members with private sector interests who could undermine the independence of decision-making should not be appointed to such bodies.

I welcome the Minister’s amendment in lieu but there are a couple of points I want to raise with him. First, in Lords Amendment 11, to which the Commons disagreed, there is in proposed new subsection (c) a reference to members of a committee or sub-committee of the integrated care board obtaining

“information that might be perceived to favour the interest or potential interest”

of that member. However, in the noble Lord’s amendment in lieu there is no reference to access to information which could undermine the independence of the health service. Is this point regarding information implicit within his own amendment? Can he assure us that the issue must be covered when each ICB sets up its governance arrangements?

I also want to ask him about the chair of an integrated care board committee or sub-committee. His Amendment 11A follows the approach of the Bill and prohibits the chair of an ICB appointing someone who would undermine the independence of the health service. Can the Minister confirm that no chair would be appointed if they were also someone who would undermine the independence of the health service because of their involvement with the private healthcare sector?

I conclude by reiterating to the Minister that there are clearly more general conflicts of interest within integrated care boards that are going to prove challenging in the future. With NHS healthcare providers playing an increasing role in the commissioning and funding of local services through ICBs, there is a blurring of the line between those procuring a public service and those being paid to deliver it. It is very likely that conflicts of interest issues will emerge, with decisions potentially taken to benefit providers, with limited due process and transparency.

It is vital that, alongside the Bill, there are very strong governance arrangements to ensure that ICBs and their committees and sub-committees make decisions in the best interests of local populations. I hope the Minister agrees.

[Baroness Pitkeathley (Lab)]

My Lords, I rise to express support for the Motion in the name of my noble friend on the Front Bench but principally to comment on Motion E. I know that the Minister and his officials listened carefully and took note of the strength of feeling about unpaid carers expressed on all sides of your Lordships’ House in Committee and on Report. I am most grateful for that strength of feeling and the wise advice given by this House, which has resulted in what I would describe as a satisfactory outcome in the form of a new amendment.

The other place has replaced the amendment passed by a large majority in your Lordships’ House and put forward its own, which was accepted there and brought to us today. I am most grateful to the Minister and all his officials for the work that they have put into drafting this amendment, and for the understanding shown for the position of unpaid carers and the importance of involving patients and carers in discharge planning, as soon as is feasible in that process.

I seek the Minister’s further assurance on a couple of other points. The first is that parent carers are not excluded when a disabled child is discharged from hospital. This is referred to in the guidance when their own discharge is happening but not when the child they care for is being discharged. We need to ensure that services across different disciplines are married up. I know that other Lords and colleagues will be seeking assurances about this and about young carers.

My second point is that the guidance contains references to checking that a carer is willing and able to care. I hope that the Minister may be able to enlarge on this a bit. There will be occasions when the carer’s own situation makes caring impossible: they may simply be too ill to take on the responsibility, for example, however willing they may be. We need to ensure that no pressure is brought to bear in such a situation and that no assumptions are made in the discharge process about the carer’s ability. We have all seen too many examples of where this was not acknowledged, inevitably leading to the readmission of the patient.

We all seek to make hospital discharges as safe and efficient as possible, while not exerting undue pressure on the most important components: the patient and their carers. Of course, we shall need to monitor carefully how the guidance is applied, and we have to be sure too that carers are informed about their rights. I hope that the Minister’s department will promote suitable publicity as the reforms are implemented. I assure him that I, Carers UK and, I am sure, other Peers will be constantly on the case to ensure that carers and patients can trust the discharge system to support them.

--- Later in debate ---

[Lord Blencathra (Con)]

My Lords, I rise to speak to my Motion D1. It is straightforward and I need not detain the House long. We all know the situation in Xinjiang province; it has been set out in graphic detail in this House by the noble Lord, Lord Alton, and others.

In recent years, the Government have procured billions of pounds’ worth of medical equipment sourced in whole or in part from Xinjiang. Despite widespread reports of forced labour in that region, our supply chain laws have failed to prevent such procurement. The Government have repeatedly condemned China over its treatment of Uighur Muslims in Xinjiang province and has imposed sanctions in response to its human rights abuses. Indeed, my right honourable friend the then Foreign Secretary said that torture “on an industrial scale” was happening there. Then the new Foreign Secretary, my right honourable friend Liz Truss, told our ambassador to China that China was committing genocide—at last someone in the FCDO was admitting the truth. Everyone knows that it is genocide. The independent Uyghur Tribunal, the US Government, our own Parliament and five other Parliaments determined it.

However, every time we try amendments, however modest, on trade with companies using slave labour in Xinjiang, the Government throw a wobbly if we use the word “genocide” and give the usual, simply unbelievable answer that only a court can pronounce on that, despite there being no court capable of holding China to account. There have been an awful lot of government pronouncements in the past two days about Putin and Russia committing war crimes and atrocities, and rightly so, but there has been no suggestion of a court needing to pronounce on that. However, let us park all that.

The Government will not accept any amendment which remotely hints at genocide. So my amendment does not seek to go there. Instead, it uses the Modern Slavery Act 2015, which is already on the statute book. We sent a simple, three-section amendment to the Commons: first, to make regulations ensuring that the DHSC did not buy goods and services from a country which may be in contravention of the genocide convention; secondly, a Minister should assess whether there was a serious risk of genocide; and, thirdly, a Minister had to make that assessment if a chair of a Select Committee requested it. That was rejected in the Commons and the Government gave us back the complicated and rather complex Amendment 48A in lieu. As we see from the government amendment, the Secretary of State would have to carry out a review in case there was slavery and human trafficking. He would determine the scope of the review and what parts of the NHS it might apply to. Then he must lay it before Parliament within 18 months and give his own views on how he would mitigate it.

My amendment combines that government review amendment with a simple one-line clause. This one-line amendment was moved in another place by my right honourable friend Iain Duncan Smith MP and was supported by all Opposition Front Benches and Conservatives who included the former Secretary of State, Jeremy Hunt MP, and the latterly Lord Chancellor, Robert Buckland MP. In the other place this simple amendment was rejected by my honourable friend Ed Argar MP. Now Ed Argar is a good Minister but someone drafting his speech obviously found an old “Yes Minister” script and wrote a classic Sir Humphrey response:

“In developing the modern slavery strategy review, it will continue to be important to engage across Government and civil society, nationally and internationally, to collect the necessary evidence to agree an ambitious set of objectives … We remain of the view that this is not the right legislation for the proposed changes.”


Can your Lordships not just hear Sir Humphrey adding, “A very courageous decision, Minister”?

Well, the right time is right now and the right legislation is this Bill. Of course, the Government always have a better Bill coming along in the future. The government amendment in lieu relies on the Modern Slavery Act, and so does mine, and while I criticise the obfuscating waffle of the government amendment in lieu, I am not attempting to replace it or reject but will support it. I am merely adding a one-line sentence to it. It is simple and does what the Minister in the other place said the Government wanted; that is, to

“further strengthen the ability of public sector bodies to exclude suppliers from bidding for contracts where they have a history of misconduct—or extreme misconduct in the case of slavery, forced labour or similar.”—[Official Report, Commons, 30/3/22; cols. 926-27.]

Ignoring the fact that genocide and slavery are a wee bit worse than misconduct, my amendment gives the Department of Health and Social Care the opportunity to desist from buying goods and services from anywhere practising modern slavery.

I do not blame those involved in procurement for the sorry fact that slave-trade goods have entered our supply chains. Those working in the Cabinet Office, NHS procurement and the Department of Health have worked jolly hard in very difficult circumstances over the past few years. The fault is not theirs. We clearly need better tools to keep slavery out of our supply chains and this neat little amendment would allow the Government to do exactly that.

We do not need to engage the whole of government, nor civil society here and abroad. After all, Dominic Raab has just cancelled a contract for solar panels on prisons because parts were made in Xinjiang province, and I am certain that he did not consult civil society here or overseas before doing so. If the Secretary of State for Justice can make that unilateral decision, so can the Department of Health and Social Care. Nor need we worry that we will be deprived of essential PPE from Xinjiang. On 31 March, I found the following announcement by the Department of Health and Social Care:

“Personal protective equipment for sale by the Department of Health and Social Care (DHSC) including visors, gowns, aprons and goggles”,


alongside a link to a site listing:

“Various Locations - Online Auction of Pallets of New PPE Equipment to include Gowns, Visors, Goggles, Sanitizer & Aprons - NO RESERVE!”


Let us be honest: the DHSC is the Government’s biggest procurer and happens to be the department with the biggest problem. More than any other department, it needs extra help to keep slavery away. I am grateful for what my noble friend the Minister has said, but in view of the fact that the Government will not support my amendment, I regret that I shall have no option but to test the opinion of the House in due course.

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I thoroughly endorse what the noble Lord, Lord Blencathra, has said. I find it extraordinary that the Government are taking such a slow pace in relation to the important issue he raises. Of course, I relate it to my own amendments on forced organ harvesting, which is yet another example of the deplorable behaviour of the Chinese authorities. I refer the House to the China Tribunal, led by Sir Geoffrey Nice in 2019, which stated:

“The Tribunal’s members are certain—unanimously, and sure beyond reasonable doubt—that in China forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims.”


Current human tissue legislation covers organ transplantation within the UK, but it does not cover British citizens travelling abroad for transplants. My amendment, which the House accepted, went to the other place. It was not accepted there but, as the Minister has kindly said, the Government put in their own amendment in lieu which we see here this afternoon. I am very grateful to the Minister for this. The impact of the Government’s amendment is to ensure that offences under Section 32 of the Human Tissue Act 2004, which currently prohibits people in this country from commercial dealings in human material for transplantation, will now be extended to acts outside the United Kingdom. The amendment covers people who give or receive a reward for the supply or for an offer to supply an organ or any controlled material. That is very welcome indeed. It is welcome because it deals with a gap in UK legislation, but it is especially welcome because it sends a powerful message internationally that the UK will not be complicit in this appalling crime. I am very grateful to the Minister and very much support the amendment he brings.

I now turn to my Amendment 57B, set out in Motion F1, which relates, as the Minister said, to issues to do with patient data and the proper protection of it. Laid out in the Health and Social Care Act 2012 is the concept of a safe haven for patient data across health and social care. Because of the sensitive nature of that data, I sought, and the House agreed, to keep those statutory protections in place and not allow NHS England to take on that responsibility because of a potential conflict of interest in that role.

The issue arises because, last November, the Secretary of State announced that NHS Digital and NHSX would merge with NHS England to accelerate the digital transformation of the NHS. The Bill gives the Secretary of State powers to do this by the transfer of a function from one relevant body to another. NHS Digital is currently the statutory safe haven for patient data and my concern is whether it is appropriate to place that responsibility in NHS England, in view of the inherent conflict of interest that might occur in its wider role. As a matter of principle, I and a number of other noble Lords consider that the collection, analysis and publication of public data should be independent of any operational body. In effect, NHS England will be able to decide that its legitimate interests override those of the citizen and the patient, with little or no external constraint or scrutiny.

The noble Lord and I are at one in wanting to speed up digital transformation. I will set out what I am trying to do here, with the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Brinton. We are trying to be helpful. We want to make sure that the integrity of the safe havens is retained within this digital transformation. As the noble Lord said, we have had an extremely useful discussion with officials who are leading this programme in the department. I hope the Minister will be able to offer assurances that the integrity of the safe haven concept will be retained; that no transfer will take place until those safeguards are fully set out in the regulations necessary to bring the transfer into force; and, in particular, that strict governance arrangements will be put in place, subject to external independent scrutiny and oversight established on a statutory basis.

Can the Minister also confirm that the merged entity will at the least maintain the status quo of transparency and, indeed, go further for the patients whose data it is and whose trust and confidence are so necessary? Can he further confirm that a data usage register will be published which covers all projects accessing patient-level data and shows which data was accessed? Will the National Data Guardian be consulted on all this before the Government progress the regulations? Finally, will the Minister ensure that the regulations will avoid the need for NHS England—this was raised by the noble Lord, Lord Clement-Jones—to be in the difficult position of sending legal directions to itself, and can he say how in practice this would work?

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I rise briefly to support Amendment J1, so ably moved by the noble Lord, Lord Crisp. I also join him in thanking my noble friends Lord Howe and Lord Kamall, the two Ministers involved, for their engagement with movers of the amendment on Report and for the genuine attempt they made to seek agreement to narrow the small gap between the Government’s position and ours—an attempt which, I fear, was blocked by HM Treasury.

On this subject, on Report, my noble friend Lord Howe said:

“Our strong preference is to continue with high tobacco taxation and excise as the best means and the most efficient process through which to generate revenue that can be put back into public services.”


I wish I shared his optimism, given the current pressure on the public purse and the recent experience with the levelling-up White Paper, published in February. The Institute for Fiscal Studies said that

“the White Paper contains no new funding; instead, departments will be expected to deliver on these missions from within the cash budgets set out in last autumn’s Spending Review. Departments and public service leaders might reasonably ask whether those plans match up to the scale of the government’s newfound ambition—particularly in the face of higher inflation.”

The same is true for tobacco control. Even before the rise in inflation, budgets for tobacco control and smoking cessation had been cut by a third since 2015. Already by 2019, it was clear that the Treasury’s claim that the tax system would provide funding for tobacco control was misplaced. That is why, when the Government announced the smoke-free 2030 ambition in 2019, they also promised to consider a polluter pays approach to funding tobacco control and smoking cessation, which is the substance of the amendment before your Lordships this evening.

On Report, my noble friend Lord Howe said:

“The proposal may look simple on the surface but it is complex to implement. It may also take several years to materialise.”


Our proposals build on the pharmaceutical pricing scheme operated by the Department of Health, which is a far more complex industry with far more complex products. If the Department of Health can successfully run a scheme for pharmaceutical products—an industry and set of products that are complex and evolving—I fail to see why it cannot operate such a scheme for cigarettes. These are simple, commodity products produced by an oligopolistic industry, with four main manufacturers responsible for more than 95% of sales.

The noble Lord, Lord Stevens of Birmingham, who I am pleased to see in his place, said on Report that

“if it is deemed appropriate to have a form of price and profit regulation for the medicines industry, which delivers products that are essential and life-saving, it does not seem too far a stretch to think that an equivalent mechanism might be used for an industry whose products are discretionary and life-destroying.”—[Official Report, 16/3/22; cols. 294-98.]

I agree. However, I also accept that further investigation of our proposals would be needed, which is precisely why a consultation without commitment is the appropriate way forward, as the all-party parliamentary group’s amendment proposes.

I hope that, even at this late stage, my noble friend might demonstrate some flexibility in order to try to bridge the narrow gap between the Government’s position and that in the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, support the noble Lord, Lord Crisp, in his amendment. My noble friend Lord Faulkner would of course have been in his place to speak in favour, but he is unable to be here, so perhaps I may make a few remarks which I think he might have made.

Going back to Report, the Minister suggested that the tobacco industry is already required to make a significant contribution to public finances through tobacco duty, VAT and corporation tax. But I do not think that states the case as accurately as possible, because we know that tobacco manufacturers are skilled at minimising the amount they pay. For example, between 2009 and 2016, Imperial Brands, the British company that is market leader in the UK, received £35 million more in corporation tax refund credits than it paid in tax. The largest amount of tax collected by the Government comes from excise tax and VAT. This, of course, is not paid by the manufacturer; it is passed on to the consumer. That was a point HM Treasury made in 2015, when the Government consulted but, alas, decided not to put an additional tax on tobacco products to pay for tobacco control.

My understanding is that, in total, smokers spend nearly £11 billion on tax-paid tobacco products, more than three-quarters of which goes to the Government in taxes. We know that the majority of smokers are not well off; they often suffer multiple disadvantages. We must compare that huge tax take with the pitiful amount that is actually spent by the Government encouraging people to stop smoking. It is certainly not enough to make England smoke-free by 2030.

I listened carefully to the Minister’s introductory remarks. The noble Lord, Lord Kamall, objected to the terms of the amendment of the noble Lord, Lord Crisp, because, he said, the independent review had not yet reported and therefore we were seeking to pre-empt what the review will say. I thought the noble Lord, Lord Crisp, responded to that incredibly well. I do not think he is seeking to pre-empt the review; his amendment asks the Government to consult on recommendations in the review if the Secretary of State thinks that it is required. It is left entirely in the Secretary of State’s hands to act according to whether he or she considers that the recommendations should be consulted on.

This is a sensible amendment, it points us in the right direction, and I hope that, even at this late stage, Ministers may be sympathetic.

[Lord Rennard (LD)]

My Lords, if I understood the Minister correctly in his introductory remarks, he was saying that the Government’s case against the amendment is that they do not want to consult on something to which they are not already committed. So what is the point of consultations if they are only on things to which the Government are already committed? Should the Government not consult on what they might do, and take into account the opinions of experts and others?

Amendment 85B, in the name of the noble Lord, Lord Crisp, has the support of these Benches. It is in accordance with my party’s policy but, more importantly, it is essential to the Government’s stated objective of reducing the prevalence of smoking to below 5% by 2030. The amendment does not require the Government to do anything that they do not want to do; it just asks them to consult on something which they have said that they would consider—namely, to make tobacco companies pay more towards helping save and prolong the lives of their customers.

Last year, I found myself outside the HQ of British American Tobacco. It is an enormous headquarters: it looked like a palace of which any Russian oligarch would be proud. This company makes huge profits that could be diverted towards ameliorating the damage done by its products. The amendment would mean taking action to help people live longer and more healthily, with fewer families living in poverty because of smoking.

I expect we will have more warm words from the Minister and from the Department of Health and Social Care, but I believe that Parliament wants to adopt the polluter pays principle in relation to tobacco. So I end with a quote from a great parliamentarian, John Pym, who, in 1628—I am sorry that I do not have the Hansard reference—said: “Actions are more precious than words”.