Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 16th November 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

60A: Clause 7, page 4, line 18, at end insert—
“( ) Each clinical commissioning group has the function of safeguarding the comprehensive provision of NHS services.”

[Lord Hunt of Kings Heath]

My Lords, this group of amendments brings us to the general function of clinical commissioning groups. New Section 1F to be inserted in the National Health Service Act 2006 under Clause 7 states:

“Each clinical commissioning group has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act”.

I suppose that, in many senses, clinical commissioning groups are the flagship of the Government’s reforms, but that those functions are not particularly inspiring. I would have thought that the Government would have wished to set out a rather more ambitious remit. My amendment seeks to do that and is quite specific that the clinical commissioning groups should have the function of safeguarding the comprehensive provision of NHS services.

It is very important that words to that effect are in the Bill in order that clinical commissioning groups are under no misapprehension that they have an obligation to ensure that patients receive comprehensive services. Recently, the Secretary of State has felt it necessary to intervene with primary care trusts because there has been evidence that in order to balance their books, they have been putting restrictions on treatments both in terms of the actual treatments but also in artificially delaying access to non-urgent treatment for a number of weeks. The Secretary of State has ruled that this is unacceptable.

The question that arises is: if that situation arose with clinical commissioning groups, what is there to be done to ensure that CCGs are reminded that their job is to ensure that their patients receive comprehensive health services? Essentially, that is what my first amendment is about. It is of course linked to Clauses 10 and 11. As we have already generally agreed, Clause 10 is one of the essential parts of the Bill’s intention to change the foundation of the NHS. The clause would remove the Secretary of State’s duty under Section 3 of the NHS Act 2006 to provide key listed health services to meet all reasonable requirements throughout England and, crucially, would remove the area-based responsibilities of primary care trusts.

In Clause 10, we see in their place the clinical commissioning groups—the bodies responsible for persons on lists and other persons usually resident in unclear and potentially non-contiguous areas. As far as I can see, those specified services would clearly have to be provided for everybody except, arguably, emergency care. In addition, Clauses 8 and 9 would in effect remove from Section 3 public health functions such as immunisation, screening and health promotion, so these PCT services would not have to be covered by clinical commissioning groups. I have to say that the provisions of Clauses 8 and 9 are particularly opaque, and the interface with Clause 10 in unclear. I would also point out to the noble Earl that new charging powers are proposed in Clause 47 for those services that are free at present, although I think that the noble Earl has suggested that they would be commissioned by local authorities and would not be part of the National Health Service. My Amendments 76 and 77 would delete Clause 10 entirely, retain Section 3 of the 2006 Act in its entirety and add a new clause that would give clinical commissioning groups the duty to arrange provision for all persons usually resident in their area and, as regards emergency care, for everybody present in their area.

I was going to put a number of questions to the noble Earl, but he has written a letter that relates both to the pilot schemes to make it easier for people to move between GP practices and, if they move, to stay on with their old practice if they are likely to return to their former residence. That would apply, I suspect, to people such as students. He has also given some details about the general responsibilities of the national Commissioning Board in relation to patients who cannot find a GP who will take them on. That is helpful, and I certainly think that there will be time later on to discuss this in more detail. On the pilot schemes, one of the issues will be the approach taken when patients turn up at one of these GP practices and ask to go on its list. We know that reception sometimes can be a very good experience and sometimes not so welcoming. That factor should be kept in mind.

A second issue arises from the noble Earl’s letter, particularly about the allocation of patients on GP lists. As the NHS Commissioning Board will hold the contracts of GPs—it would be deemed a conflict of interest if clinical commissioning groups held them—the Commissioning Board itself will be responsible for allocating patients to lists if they cannot get on a particular list. How on earth is this practically going to happen? Does this not make it inevitable that not only will the NHS Commissioning Board have to establish regional offices, but, given the size, it will need local offices so that the public can get in touch with it? Presumably that means, too, that the NHS Commissioning Board will oversee the system for complaints made against GPs in terms of their primary care delivery function. So there are quite a lot of difficult issues here about how practically the NHS Commissioning Board will carry out its duties. As for the allocation of patients, what will happen about patients with severe learning difficulties or complex mental or physical health problems, or asylum seekers and the homeless, those of no fixed abode who traditionally have often found it difficult to get on a list? How will the NHS Commissioning Board know what to do about this unless it has some kind of local presence? I do not believe it can be done from the headquarters of the Commissioning Board in Leeds—or at least it would be very difficult to do so.

I know that we have discussed the issue of the clinical commissioning groups not being area-based, and I will come back to that. The noble Earl’s maps are very instructive. I would point out that the Heart of Birmingham PCT hardly covers the catchment area of the Heart of England NHS Foundation Trust. That is a matter of great regret to me because it currently has a thumping great surplus, unlike the PCTs that serve my own foundation trust. I can no doubt look to the noble Earl for a helpful intervention in that—or perhaps not.

--- Later in debate ---

[Earl Howe]

Part of the function of the board is to support decision-making at a local level if that is ever required. If there were a serious disagreement of the kind my noble friend describes, I envisage that the resources of the board could be made available to the decision-makers at local level to try to find a way through whatever disagreement had occurred.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, for his response. Essentially what he is saying is that the reasonable requirement duty based on current legislation, together with the discretionary power in Clause 11, is sufficient to ensure that clinical commissioning groups will commission in a comprehensive way and deal with the many specific issues raised by noble Lords in this very interesting debate. He went on to assure us that if they are not doing that, the annual assessment based on outcomes alongside clinical commissioning guidance will make sure that CCGs are kept up to scratch.

My concern as to whether that is going to be sufficient partly comes because of the attitude of some GP practices to what one might call “difficult to reach” patients; for example, homeless people or people with mental health problems. We have heard about the rare disease issue. I am sceptical that the views of GPs in their surgeries are somehow going to be translated into a much more comprehensive vision the moment they step inside the door of the clinical commissioning group. That, at heart, is where people’s concerns are. I agree that framing an amendment to satisfy this point will not be easy, but I suspect that we will all want to come back at Report to try to button this down.

My noble friend Lord Warner referred to the question of interventions, which is relevant to this. I am still not clear. The Secretary of State has been right to intervene with PCTs on the question of artificial waits for treatment but CCGs will do the same because they will have the same problems with resources. We were told last week that we have got this cancer fund, about which there will be no option. Ministers will make other promises in the future and yet money is being taken out of the health service. There is bound to be tension around the CCG board table. What if it decides that the 18-week wait is no longer important to it or it has a rule that if it is not urgent, a patient has to wait for a certain amount of time—because it is a way of controlling its costs? Where, then, is the intervention going to be?

My final point is about this whole question of the mechanism of health and intervention. I have not picked up the local field force yet—this is an innovation. However, it is quite clear that the NHS Commissioning Board, at a local level, will have to be a local player. It has the right of attending health and well-being boards, and presumably, if we do not get integrated health and social care, it will have to take advantage of that presence. It will hold the contracts of all GPs, so I assume that it will deal with complaints. The local field force will have to deal with the allocation of patients to practices where GPs are refusing to accept them. I am left with a sense that, in fact, there will be quite a large bureaucracy at the local level; the difference being that now it is under a proper public board. In the future it will be an outpost of a massive organisation based at the centre. I question whether that really is an improvement on what we have.

This has been a good debate. I sure we will want to come back at Report stage on the reassurance we need about comprehensive commissioning by CCGs, but, at this stage, I beg leave to withdraw the amendment.

Amendment 60A withdrawn.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

85: Clause 13, page 8, line 11, leave out subsection (2)

[Lord Hunt of Kings Heath]

My Lords, I shall also speak to Amendment 86. This is very much a probing amendment designed to elicit from the Minister the Government’s intention with regard to high security services.

My reading of the Bill is that there is a responsibility on the national Commissioning Board to arrange for the provision of high security psychiatric services but that whoever provides such services is none the less subject to direction by the Secretary of State. Equally the board can also be given directions by the Secretary of State. The noble Earl would be right in thinking that I have no problem whatever about directions by the Secretary of State. I assume that this power of direction is because of the evident importance of sensitivity and risk in relation to high security services. I would be grateful for clarity on that.

However, I also want to ask about oversight and scrutiny. If high security services are commissioned by the NHS Commissioning Board, who will have oversight of that? Presumably the Secretary of State will take an interest in how well it is done. That must be implied from the direction duty. Will Monitor or the Care Quality Commission come to this as well? Will the CQC be looking at quality and standards? Will that involve the whole question of whether the NCB is commissioning those services effectively? Those questions might also apply to prison healthcare, which also falls to the NHS Commissioning Board—again with no obvious oversight in relation to that commissioning.

Although the issue of mental health services is the subject of my amendment and I was going to ask the noble Earl to clarify, in many ways our earlier debate—many hours ago—on the comprehensive responsibilities for commissioning services by CCGs covered that matter. But if he had a word or two or would write to me about mental health services, I would be grateful. The real issue on mental health services is the GPs’ own approach. There is patchiness in relation to how well GPs are prepared to either treat people with mental health issues or to provide support. The question arises as to whether we are confident that clinical commissioning groups will take mental health services sufficiently seriously. He might want to comment on that. In the main, we need clarity on who monitors the national Commissioning Board when it is commissioning high-security psychiatric services. I beg to move.

[Earl Howe]

My Lords, the noble Lord, Lord Hunt, has introduced these two amendments which deal with the important issue of mental health, high-secure mental health services in particular. Amendment 85 would reinstate the Secretary of State’s duty to provide high-secure services. I want to reassure the Committee that while this duty has been removed, the Bill is clear that the Commissioning Board must arrange provision of these services. But I recognise the concern and I agree that we must ensure these services are provided and that the Secretary of State continues to be involved. High-secure mental health services are highly specialised and have close links to the criminal justice system. They deliver high-quality clinical care and public protection. We have, therefore, set out in the Bill powers of direction over the NHS Commissioning Board in relation to its commissioning of high-secure services and over high-secure providers in relation to the actual provision of high-secure services. To give a couple of practical examples of the Secretary of State’s accountability, he needs to ensure that there is sufficient capacity in the high-secure system so that when the Secretary of State for Justice directs an offender to a high-secure hospital, there will be a place. Secondly, the Secretary of State for Health also needs to ensure that the high-secure system is safe and secure so that the Secretary of State for Justice is confident that when offenders are directed there, public protection will be upheld. The Bill also requires the Secretary of State to authorise high-secure providers. I am confident that these measures together ensure that these services will be properly commissioned by the NHS Commissioning Board, while retaining appropriate levels of intervention by the Secretary of State. I therefore hope the noble Lord will feel comfortable in withdrawing his amendment. He asked about oversight of secure mental health services. The commissioning of those services, as I have said, will be overseen by the Secretary of State. CQC and Monitor will oversee the provision of secure mental health services.

Amendment 86 would introduce a direction-making power in relation to the NHS Commissioning Board’s commissioning of mental health services in general. The noble Lord did not speak at length to that amendment. I explained just now that it is appropriate for the Secretary of State to have direction-making powers over the board in relation to the commissioning of high-secure mental health services. That is because of the specialised nature of those services and the links to public protection. But the noble Lord will not be surprised to hear me say that the introduction of a direction-making power in relation to the board’s commissioning of mental health services in general is not consistent with the approach in the rest of the Bill. As the noble Lord knows, mental health encompasses a huge range of conditions and services and individual needs and we believe local commissioning by clinical commissioning groups will be the best solution to meet most mental health needs with some commissioning by the NHS Commissioning Board for more specialised areas of care.

The noble Lord expressed doubts about the extent to which CCGs will have the necessary focus on mental health. Here we come back to the role of the board in issuing commissioning guidance to CCGs, underpinned by the quality standards that NICE will produce. We should remember, too, that CCGs will be consistently held to account against the outcome domains of the commissioning outcomes framework. Part of the holding to account will embrace mental health outcomes.

We demonstrated our commitment to mental health with the early publication of the cross-government mental health strategy. We had a lengthy debate about that important area earlier in the Committee's proceedings. I have no doubt that there is more to say, but I hope that, after those few remarks, the noble Lord will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. On the role of the board in commissioning services, I will make a general point: clearly the national Commissioning Board will be very important. How it works should be scrutinised. I suspect that this will lead us on to the question of the mandate, which we will debate next week. At this stage, I beg leave to withdraw the amendment.

Amendment 85 withdrawn.

--- Later in debate ---

[Lord Lucas]

My Lords, I have Amendment 92 in this group. I have a long speech on this, but my noble friend has written to the Campaign for Freedom of Information, saying among other things:

“Where possible, we will push to ensure that where functions are transferring to other bodies, the coverage of FOIA is maintained”.

Perhaps I had better listen to him first and then make the speech afterwards.

[Lord Hunt of Kings Heath]

My Lords, that is an invitation to which I am sure the noble Earl was looking forward. The amendments are clearly concerned with the regulations to be made in exercise of the functions by the board or the clinical commissioning groups, to be known as standing rules. The very words, standing rules, give a clue as to the importance of this part of the Bill.

My Amendment 92ZA concerns the consultation process. New Section 6E(6) of the National Health Service Act 2006, proposed by Clause 17(1), currently states that,

“regulations may require the Board to consult prescribed persons”.

My amendment would replace “may” with “shall”. Given the importance of these matters, there should certainly be a prescribed consultation process.

The noble Earl could perhaps clear up one point about the consultation provisions in this part of the Bill. My reading is that they appear to be confined to an exercise of its functions, by virtue of new Section 6E(4)(b) and new Section 6E(5), which are concerned with the draft terms and conditions and the draft model commissioning contracts. I am sure it is right to consult on these, but I wondered why the consultation appears to be confined just to those. What about the standing rules themselves? Perhaps I have misread Clause 17, or perhaps it is covered by wider consultation requirements elsewhere, but if he were able to reassure me on that I would be grateful.

Amendment 93 is a probing amendment. Under new Section 6E(8), the board,

“may not impose a requirement on only one clinical commissioning group”.

Are there no circumstances in which it would be appropriate for the board to put a requirement on a single clinical commissioning group? I did not understand that, and, again, if the noble Earl could clarify that, it would be helpful. I can reassure him that, like the noble Lord, Lord Lucas, I will not make a long speech on that matter.

I will return to the point raised by the noble Lord, Lord Hennessy. My Amendment 94 would require regulations made under Clause 17 to be affirmative. This Bill is packed with regulating powers. You can hardly move for the regulating powers that have been given to the Secretary of State. The Department of Health is not very fond of affirmative regulations—it has very few affirmative regulations in its legislation compared with other departments—but I think it might have allowed us a few more affirmatives than is currently allowed for. It seems to me that standing rules shape the way the board and clinical commissioning groups go about their business. Given that the intent is to hand over much more authority from the Secretary of State to the board and clinical commissioning groups, I do not think it is unreasonable that matters to do with the standing rules should be subject to the affirmative procedure. I hope that the noble Earl will be able to give some comfort on that matter.

[Baroness Barker]

My Lords, I cannot remember which legislation it was, but I know for a fact that I was sitting on the other side of the House and that the Minister was the noble Lord, Lord Hunt of Kings Heath. If I could go back and trawl through Hansard, I would find the reference to the speech in which I started by saying that I feared that one day we would have a piece of primary legislation that consisted solely of regulations and that we were perilously close to it. I point out to the noble Lord, Lord Hunt of Kings Heath, that whatever he may think about this legislation, he has form on this.

[Lord Hunt of Kings Heath]

There is one very big difference. In the legislation I was bringing forward, we retained the clear accountability of the Secretary of State to Parliament which had clear direction powers over the National Health Service. Therefore, it was much more appropriate that regulations did not have to be affirmative because Parliament could demand the accountability of the Secretary of State. We are moving into a new situation where the Secretary of State is taking a much more hands-off approach, so the argument that the regulations be affirmative is much more persuasive. There is a real degree of difference between then and now.

[Baroness Barker]

That might have been the case, but I recall that under the Government of which he was a member, a fair amount of Henry VIII powers went through at the same time so, although his basic thesis might be different, I am not sure that Parliament was that much more able to question the intention of the Secretary of State at the point at which primary legislation was being debated in this House.

I want to speak up partly in support of the amendment moved so eloquently by the noble Lord, Lord Hennessey. I would perhaps differ slightly. I think that in this House there is a great deal of very high quality scrutiny of delegated powers and secondary legislation. It is one of the things that this House does extremely well. The additional point in the proposal he has made is to bring to the process of scrutiny of secondary legislation the involvement of people on the Health Select Committee in the House of Commons who, by dint of their membership of that committee, have a detailed and ongoing knowledge of the workings of the National Health Service in its entirety. I understand what he is trying to do, and I have a great deal of sympathy with it. My only reservation about that is that I think the power of the Health Select Committee is that it sets its own agenda and holds the Government to account. I would not like an inadvertent effect of what the noble Lord, Lord Hennessey, is proposing to be to trammel the independence and power of that very important committee to scrutinise what the Government are doing. However having made that criticism, I have a great deal of sympathy with what he is trying to do, but I hesitantly suggest that perhaps this problem is not quite as new as some noble Lords might suggest.

[Lord Hunt of Kings Heath]

My Lords, perhaps I might just come back to the noble Baroness. Would she agree that this is a point that deserves greater consideration when we come to the mandate itself? At the moment the Government are proposing to simply lay the mandate before Parliament before the start of each financial year. Would she agree that the mandate itself might be subject to more scrutiny by Parliament?

[Baroness Barker]

My Lords, I do not want to get into that debate, which I think we have not yet come to, but I thank the noble Lord—sorry, I am so tired tonight, I was about to call him “the noble Lord the Minister”; I am going back in time—

[Lord Hunt of Kings Heath]

In your dreams—in my dreams!

[Baroness Barker]

I thank the noble Lord, Lord Hunt, for drawing attention to a very important point that I think has been missed and in some cases distorted, which is that our debates so far have been about the powers of the Secretary of State and we have ignored a number of other elements that have a direct bearing on that, such as the mandate. That appears to have passed by people like 38 Degrees completely. I thank him for drawing it to our attention but I will resist the temptation to get into the detail of that this evening.