Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 30th November 2011 Lords Chamber

[Lord Warner]

In moving Amendment 159 I shall also speak to Amendments 160 and 164 in my name. I start by emphasising that this is a package of amendments that relates to many concerns that have been expressed to me and others—namely, that we need to make very sure that we ensure the assessment of competence of CCGs is sound and open before they undertake the commissioning of services that this Bill will enable them to do.

My earlier Amendment 157 enabled us to debate the number and population size of clinical commissioning groups, both of which considerations have a considerable bearing on the issue of competence of CCGs. I will not rehearse those arguments again except to emphasise that if the Government go ahead with such a large number of clinical commissioning groups, as it seems may well happen, then it is even more necessary to tighten up the Bill’s provisions on proof of competence and the ability of the National Commissioning Board to reject applications where competence is in doubt. It is for those applicants to take on the role of a clinical commissioning group to prove that they are competent to take on this task and to safeguard the public money that will be entrusted to them.

Amendment 159 makes it clear that in submitting an application to the board, the clinical commissioning group applicant must demonstrate that it can meet the requirements of commissioning competence specified by the board. If its application does not do so then the board should be able to reject it out of hand. The onus is on that group to show that it is competent to undertake the commissioning. It seems to me that clinical commissioning groups will have had plenty of time to assemble their case and to prepare for their application. The Bill should make it absolutely clear that a demonstration of competence should be mandatory in submitting an application. If I can put it crudely, we do not want to see people taking a punt. They have to be able to demonstrate that they can actually do the job, otherwise public money and safety will be put at risk.

Amendment 160 is linked to Amendment 159. It requires that when the board publishes information for applicants, that information document must specify the competencies required to commission health services. This problem of specifying competencies in commissioning has bedevilled the whole movement towards commissioning over several decades. Mark Britnell’s attempts at world-class commissioning ran into the same problem—we were not sufficiently clear about what competencies would deliver good quality health services from commissioners. So this competency issue is at the heart of making clinical commissioning groups work. It is vital that the board is left in no doubt of its responsibility for doing this and that applicants are in no doubt that the competency hurdle that they have to clear is put very clearly to them before their application can be accepted. What we do not want to see, if I may put it this way, is a load of well meaning waffle coming out of the board about commissioning. We want to have articulated the competencies that have to be met before applicants can be successful. Amendment 164 rounds the whole process off in terms of applicants showing that they can discharge clinical commissioning group functions “competently”, which is the word which it adds to the Bill.

These amendments make it clear that Parliament regards competence in commissioning as the yardstick by which the success or failure of applications to become clinical commissioning groups will be judged. This issue should be uppermost in the mind of the board when it makes decisions, and wording that makes this clear should be on the face of the Bill. Competence in commissioning has been missing in the past and we are in danger of repeating the mistakes of the past by not making it absolutely clear in this Bill what is required of the applicants to be clinical commissioning groups. I beg to move.

[Lord Hunt of Kings Heath]

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

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

[Lord Greaves]

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

[Lord Hunt of Kings Heath]

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

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

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

--- Later in debate ---

[Baroness Williams of Crosby]

My Lords, I congratulate the noble Lord, Lord Hunt, particularly on Amendment 160A. The idea that patients whose GPs are serving on the Commissioning Board, or are part of a commissioning group which represents that board, should be consulted and we should hear what their own experiences have been, is innovative and interesting. He should be congratulated on putting it forward. It means involving patients as individuals in their own assessment of the service that they have had. Time and again the Bill reflects the demand that that should happen—no decision without me, and so on. This actually makes that real. It gives the words flesh, and I congratulate him on that. It is quite an exciting idea and I hope that it is one that will commend itself to the Government, given the Government’s wish to involve patients.

I am not so happy about Amendment 163B. I fear that the opposition Front Bench has not taken on board as much as I hoped that it might the idea that regulations should not go straight to Parliament, even if they are affirmative, but should go by way of the Health Select Committee. The noble Lord will be familiar with the argument—that the Health Select Committee has a huge range of expertise and knowledge. As a former Minister he will know—as well as I or the noble Baroness, Lady Thornton, knows—that the regime of regulatory scrutiny is not very effective. If there is an individual Member of Parliament in another place who knows a great deal about it and is concerned about it, you can have a real debate and that real debate can affect the outcome with regard to regulation. However, nine times out of 10, there is no great debate. In the case of the negative resolution procedure, there is often no debate at all.

I fear that this is a very weak safeguard for the huge amount of regulation that is built into the Bill. I therefore hope that I might commend to the House, and not least to the opposition Front Bench, the idea of looking again at the proposal, which is also radical and new. It is an idea that really ought to commend itself to those of us who believe strongly in accountability to Parliament and in the need to strengthen Parliament’s power vis-à-vis the Executive across the whole world.

[Lord Hunt of Kings Heath]

My Lords, perhaps I can come back to that. On Amendment 160A, I am grateful to the noble Baroness for her support. I am not even sure that I got it right. I am also trying to get at the fact that so much is happening now without any consultation. The CCGs are essentially being decided by the system and then at some stage there will be a formal application process. I am long enough in the tooth in the health service to know about NHS consultation. Frankly, we all know that the traditional NHS consultations make the decision and then consult. I fear that, with CCGs, this is what is happening. While I welcome the support for the involvement of the public in a formal application, I find it perplexing that so much is now being decided and that the public are not involved at all.

I listened to the noble Earl before supper talking about this being bottom up. That is not what is happening. I do not think that he understands quite how much this is being driven by the centre. It is quite extraordinary. You can call it guidance, but putative CCGs are being given such clear steers about what will be acceptable. I feel that we will reach a situation where, at some point, it will all be a done deal and the consultation will simply not be realistic.

On the noble Baroness’s comments about making the regulations affirmative, I accept that, even if they are affirmative, there is a limit to what parliamentary scrutiny can provide—although that does provide some safeguards. I would be interested in debating the idea of giving the Health Select Committee a role, although excluding your Lordships’ House from it would be a problem. I say to the noble Baroness that I think it a pity that the House did not adopt my suggestion about a mandate for a kind of national policy statement approach. There is an argument for having a more interactive debate, if you like, about some of these matters. I very much take to heart her constructive comments on this and the Select Committee role. It could be a very useful debate for the future.

[Lord Alderdice]

My Lords, lest it be thought that we were all wholly of one mind on these Benches in regard to some of these proposals, let me say that I am much more cautious about the propositions. My noble friend Lady Williams of Crosby has described the propositions for consultation with patients as novel. She is quite right. When the noble Lord, Lord Hunt, says that he recognises NHS consultations from the past as decisions first and consultation afterwards, he recognises how the previous Government carried out their business. As somebody who was in the health service at the time, I was very familiar with it.

We must be realistic about some of the propositions that come forward for consultation. Think through what is actually involved in doctors coming forward with proposals to fulfil the requirements set down in legislation in all its various aspects passed by Parliament, and then being asked to consult with the patients as to what exactly they think. Think through what exactly that might look like for general practitioners and their patients—those patients who would choose to back the general practitioner in his application to go along with the proposals, or would start to run a campaign against their GP. Is there really a thought that this will be something that serves the interests of helping general practitioners and their patients to move forward together? It is an interesting and novel proposal from the point of view of debate in your Lordships’ House. However, I am not at all convinced that it has been thought through in terms of how one might actually implement such a thing, and in terms of working with patients and patients working with their general practitioners.

In psychiatry, for example, I think of how much discussion and consultation there has been with patients about who their sector psychiatrist might be, never mind all sorts of other important decisions about them. The fact is that it is not a way in which one can possibly run these things. It is important to have consultation with the public in general, but to try to divide it up so that patients are consulted on whether their GP should follow decisions taken in line with decisions that Parliament set down is wholly another matter. My noble friend was right to describe it as “novel”, but I am much more cautious about the proposal than she is.

[Lord Hunt of Kings Heath]

I thought that what the noble Lord said about the last Government was a cheap shot. I was talking about the NHS consultation in my experience over 40 years. It has not been a wholly satisfactory situation. It is quite remarkable what the noble Lord seems to be saying. The health service has strong corporate governance and strong processes for consultation, but suddenly we are bunging £80 million to GPs and they do not have to consult. Are they in such a mystical position that they do not need strong corporate governance; that we can trust them, even though some of that money will be spent with the GPs instead of on other parts of the health service? Suddenly we think that they are jolly good chaps and we can trust them. We can trust them simply to form these clinical commissioning groups, in which in theory they will have great power, and there is no consultation whatever. It is quite remarkable what the noble Lord is saying.

[Lord Alderdice]

My Lords, let us be clear. It was no cheap shot. It was a comment on how the previous Government carried through their policies. He will know very well that I sat on those Benches and asked the questions of him. I am very much aware of it. What I said had nothing to do with corporate governance. It was the specific proposal that GPs’ patients should be asked to express a view on the proposition that their general practitioner be part of a clinical commissioning group. As though there was some serious alternative to it, and that it was something that could be carried through willy-nilly without any potential disadvantage in the GPs’ conduct of the practice.

What I pointed out was that this is not something that has any kind of precedent; it was, as my noble friend said, “novel”. What I said about it was quite clear. It has not been tried and I am not persuaded that it is something that has been well thought through. It could be very divisive within a practice. That is not at all to say that other elements of corporate governance are not appropriate. I wholly support them and the proposal. I was addressing a specific issue and I notice that it was the one issue that the noble Lord did not respond to.

[Lord Hunt of Kings Heath]

So I as a patient have no right to say or comment on which clinical commissioning group my GP wants to join? It is nothing to do with me and just up to the GPs to decide? That is what he said. On the question of general consultation, let me remind him of the NHS plan. If this Government had done this properly, they would have published a Green Paper. They would have gone through a process of working with the health service, they might have spent six to nine months doing it and they would have got much greater buy-in. It shows that they have dealt with these reforms in a high-handed manner. The result is that there is no buy-in whatever and that is why the Government are in the trouble they are. I pray in aid the way that the NHS plan was dealt with and the fact that 500 people came together on a number of bases to work on the plan. That is why it had so much greater ownership.