Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Monday 27th February 2012 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

38B: Clause 19, page 14, line 32, at end insert—
“(8A) The standing rules under subsection (1) shall make provision as to how clinical commissioning groups are required to register, manage and report upon conflicts of interests of both members and employees of a clinical commissioning group, or any individual engaged by a clinical commissioning group to be involved in any part of the process of commissioning NHS services (“the Conflict and Financial Interests Rules”).
(8B) The Secretary of State shall consult upon and then publish a Code of Conduct for members of clinical commissioning groups concerning the registration of pecuniary and non-pecuniary interests by members of a clinical commissioning group, and setting out how clinical commissioning groups shall manage actual or potential conflicts of interests amongst its members, which shall include provisions concerning the provision of services (other than NHS services) to NHS patients.
(8C) The Conflict and Financial Interests Rules shall include the following provisions—
(a) a duty on members of a clinical commissioning group to abide by the terms of the Code of Conduct to be published by the Secretary of State under subsection (8B) hereof;(b) that each clinical commissioning group shall maintain a register of pecuniary and non-pecuniary interests of members of the clinical commissioning group;(c) a requirement that each member of a clinical commissioning group shall register all of his pecuniary and non-pecuniary interests in the Register unless the said interest shall be within a de minimis classification set out in the Regulations, and shall keep the said register up to date;(d) a requirement that the register of interests of each clinical commissioning group shall be published and made available for public inspection;(e) a requirement that, unless approved by the Board, a clinical commissioning group shall not be entitled to enter into any arrangements to commission healthcare or other services with any person where any member of the clinical commissioning group has a financial interest or link to that person of a type set out in Regulations (“a Conflicted Arrangement”);(f) a procedure (“the Exemption Procedure”) under which a clinical commissioning group shall be entitled to request an exemption from the Board so as to permit the clinical commissioning group to enter into any a Conflicted Arrangement;(g) that the Exemption Procedure shall require the clinical commissioning group to publicise the application for the exemption and to permit any objections thereto to be considered by the Board;(h) that the Exemption Procedure shall provide that, after considering the merits of the individual application, the Board shall be entitled to approve the arrangement if but only if the Board is satisfied that the proposal to enter into any such arrangement has been the subject of an open and transparent procurement process, that it provides the best value for money for the clinical commissioning group and that there are appropriate safeguards proposed by the clinical commissioning group to manage any conflict of interest in the management of the said arrangement;(i) that no member of a clinical commissioning group shall be permitted to take any part in any discussion of or decision making process concerning any arrangement or proposed arrangement with a provider of services with whom that person has a registerable interest;(j) a procedure for complaints to be made to the Secretary of State by any person who alleges that a member of a clinical commissioning group has acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Regulations;(k) a procedure for the Secretary of State to appoint an adjudicator to investigate and to rule upon any such complaint; and(l) for the adjudicator to be able to impose sanctions on any member of a clinical commissioning group has been found by an adjudicator to have acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Rules including—(i) such financial sanctions as the Secretary of State shall consider appropriate;(ii) suspension of such a person from being a member of a clinical commissioning group; (iii) removal of such a person from current membership of a clinical commissioning group;(iv) a bar on such a person being a member of a clinical commissioning group for a period of up to 10 years;(v) the referral to the Board for action to be taken against any individual who is a performer under the National Health Service (Performers List) Regulations 2004; and(vi) the suspension or termination of any contract or arrangement for the provision of NHS services that may exist between the Board or any clinical commissioning group and that person or any partnership, company or other organisation with whom that person shall have a registerable interest.(8D) Where any contract or other arrangement is suspended or terminated by the action of an adjudicator following an adjudication under sub-section (8C)(I), no other person shall be entitled to assert any legal right or make any claim for damages or financial compensation on any other basis whatsoever against the Board or any clinical commissioning group as a result of the said adjudication.”

[Lord Hunt of Kings Heath]

My Lords, we return to one of the most important matters in the Bill: clinical commissioning groups and their effective corporate governance, or lack of it—specifically, the question of how conflicts of interest are to be dealt with. In his letter of 16 February to putative clinical commissioning groups, the Secretary of State spoke enthusiastically of the freedoms that they were to receive. There can be little doubt that they are one of the most important features of this Bill. They are to be given a huge amount of money. They are to be given freedom to commission services. They are to be given freedom to decide when and how competition should be used. Because clinical commissioning groups will exercise such important roles, I would have thought that public interest demands that the principles of good corporate governance should apply as much to them as to any other public body.

In Committee, the noble Lord, Lord Kakkar, drew attention to the seven principles of public life and asked whether they applied to clinical commissioning groups. I asked the noble Earl, Lord Howe, whether independently appointed non-executives would be on the board of clinical commissioning groups. I also asked how conflicts of interest were to be dealt with. He said that the Bill places a duty on the Secretary of State,

“to publish a code of conduct for CCGs, incorporating the Nolan principles on public life”.—[Official Report, 14/11/11; col. 564.]

To my suggestion that each clinical commissioning group board should have on it a majority of non-executives and be independently appointed, he said—disappointingly—that each group must only have at least two lay members and that one must be either the chair or deputy chair of the governing body.

On the conflicts of interest, the noble Earl said that the Bill had three safeguards: statutory requirements on clinical commissioning groups to make arrangements to manage conflicts of interest, governance arrangements, and specific regulations on good practice in the procurement and commissioning of healthcare services. Is that sufficient? I do not think that it is. These groups are unique. In essence they represent groupings of small businesses which have had handed over to them billions of pounds, a proportion of which they can spend on primary care services. Sometimes these are to be provided in the surgeries of GPs who are members of the clinical commissioning group, or perhaps are to be provided by companies in which GPs within a clinical commissioning group may have a financial interest. The potential conflict of interest is so obvious that it surely begs the question as to why the Government are not putting safeguards on this matter in the Bill.

My amendment is a lengthy one, but I hope comprehensive. It sets up a register of pecuniary and non-pecuniary interests. It places an obligation on clinical commissioning groups to register. It prevents any arrangements being entered into between a clinical commissioning group and a party with whom a member has an interest. It provides for an exemption procedure whereby the board could approve the arrangement if it was open and transparent. It prohibits a member of a clinical commissioning group taking part in discussions with any business in which he or she has an interest. It also provides a process under which an adjudicator appointed by the Secretary of State can adjudicate on complaints about members of clinical commissioning groups breaching the code of conduct, which is provided for in my proposed new subsection (8C). The sanctions include removing the individual as a member of the clinical commissioning group and the termination of any contract which has been put in place between the group and anyone with whom the member has a registerable interest.

A clinical commissioning group board will have a majority of GPs sitting on it. They are involved in running businesses which are largely dependent on the NHS for their income. The role of a clinical commissioning group will be to commission services, some of which will be commissioned from those GPs who are members of that group or, as I said earlier, from companies in which some of those GPs may well have an interest. Independent lay members will be in a minority and we have yet to receive assurance that they will be independently appointed. We have not even been assured that the chairman of the clinical commissioning group will be an independent lay member. It will have the weakest corporate governance of any public body in this country.

We know that over the past 20 or 30 years any number of inquiries have shown the problems of poor corporate governance. After all, the Nolan commission was started because of such problems. This will explode in the Government’s face unless they strengthen the corporate governance of clinical commissioning groups. If you combine these weak corporate governance arrangements with the ability of a clinical commissioning group to make decisions that could be to the financial advantage of GPs who are members of that group, you are heading for trouble. We need robust safeguards and they ought to be in the Bill. I beg to move.

[Baroness Barker]

My Lords, noble Lords will recall that in Committee I too highlighted the issue of conflicts of interest. I did so because, like many other noble Lords, I had listened to and read the briefings sent by the professional bodies, many of which raised fears and concerns about conflicts of interest. Like many other noble Lords, I believe it is important not only that members of the public have faith in the integrity of the decisions being made by CCGs but that members of the professions believe in those decision-making processes and feel able to participate in them. They should also have the protection of good governance and good conflict-of-interest policies to enable them to carry out what will be a difficult role.

Before we look at the detail of this, it is important to remind ourselves a little of the context. There are conflicts of interest in the National Health Service now. There always have been, as anyone who has ever sat around the table at a joint finance meeting at which every single person has an interest in the discussion will know. It may not be a direct financial interest; it could be about a post, a project or money. Managing conflicts of interest is something that the NHS and PCTs do now. That is not to say that we should not take the opportunity of the Bill to make the principles according to which the NHS should act more overt. They should be the highest of principles.

It is for that reason that my colleagues and I raised the matter in Committee. We then drafted a set of amendments that are in this group—Amendments 84, 89, 91, 92, 93 and 116. I am very grateful to several noble Lords, including the noble Lord, Lord Newton of Braintree, who looked at those amendments with the seasoned eye of an ex-Health Minister. His response was, “Very good but an awful lot of this needs to be in regulation, not in the Bill”. I took his comments to heart, which is why my colleagues and I withdrew those amendments on Friday and noble Lords now have Amendments 79A, 82A, 86A and 86B before them on the Marshalled List.

It is also important that noble Lords understand one particular point about the interpretation of the Bill. A great deal of anxiety has been expressed by some of the professional bodies about the role of commissioning support organisations. Noble Lords may recall that I raised that in Committee. I have been in discussion with several members of the professions to try to understand the source of that concern. As far as I can understand, there is a view within some of the professional bodies that commissioning support and the commissioning of services are one and the same thing, whereas the Minister was at great pains in Committee to stress that they are two different processes that go side by side.

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It is extremely important that these groups not only set out to uphold the highest standards but that they are seen to uphold them.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness. Could she clarify what happens in the situation that she has laid out in these amendments if a member of a CCG does not do the right thing? Are there any sanctions in her amendment?

[Baroness Barker]

The noble Lord is quite right and I will come on to that.

These amendments also refer to the board publishing guidance and what that guidance would include. As I understand it, members of CCGs who are in material or consistent breach of a conflict-of-interest policy might be referred to their professional body. Amendment 86A is a regulation-making power. It is under that power that many of the important details could be included. They would, I imagine, include issues such as the ones which the noble Lord has just raised about the sorts of sanctions which CCGs should include in their guidance and policy.

[Lord Hunt of Kings Heath]

My Lords, with respect to the noble Baroness, she has withdrawn some amendments and put in some substitutes, so I think it is fair to ask her these questions. Without sanctions, this is not going to have any teeth. There is a major concern about corporate governance in CCGs. Surely it would be better to put it on the face of the Bill rather than, as it seems to me she is doing, leaving it up to CCGs to do the necessary.

[Baroness Barker]

Not entirely, my Lords. As I was coming on to say, an important piece of work is that the GMC is updating its guidance on how its members should work in the new setup. It is important that members of bodies such as the GMC, the BMA and other professional bodies are involved, should they wish to be, in setting out the detail of what those sanctions should be. We should end up with something that is effective and workable, as well as principled. The noble Lord’s argument does not therefore stand up. Nothing in these amendments would preclude that sort of sanction being put into regulations or guidance.

Our amendments are, admittedly, not as detailed as the amendment of the noble Lord, Lord Hunt, nor do they—as his amendment does—incorporate language from the world of commercial legislation. The terminology of conflicted arrangements and exemption procedures comes from commercial law, and I am not sure that that is appropriate for what we are seeking to do. At the end of this debate we should achieve the objective that all noble Lords are seeking—transparency and accountability around the decision-making processes of CCGs, and the legislation and regulations around them should be sufficiently robust so that not only can members of the public have faith in those procedures but the procedures should be workable. I accept that our previous amendments included provisions that were so draconian that they would not work in practice. We could have ended up in a position whereby the very people who should be making decisions on CCGs would not have been eligible to do so, particularly at the precise moment at which their expertise would be necessary.

Our amendments are not by any means the end of the matter; they are the beginning of a process that should move on further in the discussion on regulations and guidance. That is where much of the detail of this should come to the fore, but the principles that we have set out in these amendments are robust and workable, and I hope that in his reply the Minister will accept them.

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[Earl Howe]

My Lords, this has been a very good debate indeed and I thank noble Lords for the careful consideration that they have given to how CCGs should best manage conflicts of interest. I have listened carefully to the various points raised and it is clear that this is an area of key concern. I hope that the House will therefore forgive me if I start by setting out the position on this issue before I turn to the detail of the amendments before us.

At the heart of the Bill is an intention to balance autonomy with accountability. We are giving freedom to those best placed to take decisions in the interests of patients to do so, but we will also hold them to account, not only for the outcomes they achieve but also for their managing this responsibility effectively, transparently and with integrity.

CCGs will be the guardians of significant amounts of taxpayers’ money, as the noble Lord, Lord Hunt, rightly pointed out, so it is only right that there are strict requirements in terms of governance, probity and transparency of decision-making. We must balance the benefits of the clinical autonomy of doctors with a robust management of potential or actual conflicts of interest. It is essential to get this right, and that means a proportionate and reasonable approach.

I reinforce the point that the Bill already provides very real safeguards in relation to conflicts of interest. The CCG must make arrangements in its constitution for managing conflicts and ensuring the transparency of its decision-making process. The CCG must have appropriate governance arrangements, including a governing body with lay members and other health professionals. These arrangements will be scrutinised by the NHS Commissioning Board as part of the process of ensuring that a CCG is fit to be established as a commissioner.

Let me be clear that this is not just about declaring conflicts of interests, which of course is vital, but also about putting in effective and appropriate arrangements to manage these conflicts where they arise. There is not, and cannot be, a one-size-fits-all approach to managing conflict, as it depends on the interest itself and where it may become a conflict. However, likely methods may include absenting the person from decisions in that area, or bringing in others—for example, the independent lay members—to oversee the process for decision-making in a particular area. The key factor here is that they cannot avoid the need to manage the conflict and to be clear about how they are going to do so.

The provisions around conflict of interest apply to all aspects of a CCG’s commissioning activity, which means that they would apply to how it worked with a commissioning support organisation. I appreciate that there is apprehension and, in some cases, misunderstanding about the role of commissioning support organisations, so I shall set out the facts about this issue for the benefit of noble Lords today, in particular my noble friend Lady Barker, to whom I was grateful for referencing the brief on this issue provided by Professor Allyson Pollock.

Commissioning support organisations are not intended to act on behalf of a CCG in making decisions. They provide support, which might take the form of analysis of performance or finance data, supporting procurement or the management of a contract, and back-office functions. Let me be clear: at no point can they take decisions for the CCG or assume responsibility for a CCG’s statutory duties. It would be unlawful for a CCG to sub-delegate its commissioning responsibility to another organisation.

I am, however, conscious of the concerns, particularly those raised by my noble friend Lady Barker, about whether members of commissioning support organisations could sit on a CCG governing body. I give noble Lords a commitment today that we will prohibit any representative of a commissioning support organisation sitting on a CCG governing body through our secondary legislation-making powers under new Section 14N.

I should also like to explain some of the other safeguards in the Bill relating to management of conflicts of interest. Under Clause 73, the Secretary of State may make regulations which we intend will impose specific requirements in relation to the management of conflicts of interest. They will also confer on Monitor various powers to investigate the actions of a CCG and take remedial action. Monitor will be required to issue guidance on these regulations.

The NHS Commissioning Board may also provide guidance on conflicts of interest. This renders unnecessary any additional amendment requiring the Secretary of State to issue guidance on conflicts of interest, as Amendments 86 and 93 would do, or to issue a specific code of conduct or financial interest rules, as Amendment 38B requires. I shall return to that point in a moment.

The Bill is also clear on the transparency and accountability of the decision-making process. Schedule 2 provides that the CCG constitution must specify arrangements for securing transparency about the decisions of the CCG and governing body. The NHS Commissioning Board will be able to issue guidance on the publication of minutes and will ensure that the constitution meets these requirements. This meets the intention behind Amendment 92. We cannot accept the amendment because it might not always be appropriate to publish details of all decisions made by a governing body.

Transparency and accountability must not be achieved at the expense of the effectiveness of the commissioner. PCTs are not required to discuss all matters in public now and we should ensure that CCGs are not subject to more onerous requirements. Amendment 91 may well prevent CCG governing bodies discussing potentially commercially sensitive issues relating to contract values or performance without the public being present, which could pose difficulties.

I can fully understand the intention behind Amendment 102, tabled by the noble Baroness, Lady Finlay, to ensure that local knowledge informs the work of the CCG. However, we have always maintained that the presence of health professionals on a CCG governing body is not intended to be a means for the CCG to obtain advice to inform its commissioning decisions. The non-GP members of the governing body are there to provide an independent perspective, informed by their expertise and experience, in the body responsible for ensuring that the CCG adheres to the principles of good governance. They must have no conflict of interest in relation to the clinical commissioning group’s responsibilities. Amendment 102 would mean that a CCG could have only local professionals in the governing body. This would obviously limit the CCG in its choice of governing body members and risks a conflict of interests. I urge the House not to accept that amendment.

GPs in CCGs have to meet the ethical standards set by the General Medical Council in good medical practice. That includes provision to avoid conflicts of interest. Anyone may raise a concern that a doctor has failed to meet the conditions of their registration with the regulator. However, a failure to meet the conditions which Amendment 93 would impose would not necessarily mean that a GP had been in breach of their conditions of registration, and the duty which Amendment 110 would place on the board would be disproportionate. I know that there is a real concern among some noble Lords and that it is felt that this is a necessary sanction, but it is far better to ensure the robustness of the approach that CCGs take and that it is appropriately overseen. It is more appropriate for an independent monitor to police the transactional behaviour of CCGs and to be able to take effective remedial action where it discovers evidence that a CCG has not followed regulations in relation to procurement and the management of conflicts of interest, which is the approach taken in the Bill.

I similarly urge that we do not place in legislation an indiscriminate requirement, as Amendments 38B, 93 and 116 would do, that people with an interest withdraw from the relevant decision-making process of the CCG. Clearly, that is often going to be the most appropriate means to manage a conflict of interest, and that is made clear by the NHS Commissioning Board Authority’s guidance, Towards Establishment, which was published recently. However, it should not lead us to impose on CCGs a blanket ban on individuals being involved in a decision-making process or sitting on the governing body in all circumstances in which they have an interest. It ignores the fine line that can be drawn between situations in which withdrawal is absolutely necessary and those in which it would be more effective for the CCG’s exercise of its commissioning function for the conflict to be managed, carefully and with external oversight, in a different way that maintains the integrity of the CCG.

I listened with great care in particular to the speeches of the noble Lords, Lord Warner and Lord Walton, on this theme. The best example of the second category that I mentioned is where a CCG is commissioning for local community-based alternatives to hospital services and it determines that the most effective and appropriate way to secure these is from all local GP providers within its geographic area. There are already inherent safeguards in the legislation to help manage conflicts in this scenario. The CCG would have to declare its commissioning intentions as part of its annual commissioning plan, on which it would consult the public, and it would engage with health and well-being boards in developing; and that makes the proposal transparent. It enables the health and well-being board and others to challenge the proposals. CCGs could similarly secure additional involvement in the decision-making process—for instance, by involving members of the health and well-being board or, indeed, other CCGs or members of the CCG’s audit committee. There is a choice. We have not identified one single right way of doing this. We think it is important to allow best practice to evolve rather than trying to pin it down in legislation. If all GP members of the CCG had to withdraw from the decision-making, it would be extremely hard for the CCG to actually make a valid decision, as it could not be delegated to the non-GP members of the governing body or a similar arrangement. It is only in certain circumstances that we would expect individuals with a conflict not to withdraw absolutely, but we have to keep this option open in legislation.

For the same reasons, I cannot support the proposals of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, in Amendment 38B, which would either require a CCG not to contract with a provider in which any member of the CCG had an interest, or require them to secure an exemption from this rule from the NHS Commissioning Board. The conflict and financial interests rules, which this amendment references, already require an individual to withdraw from any part of the decision-making process with a provider in which they have an interest. It is hard to see why it would be necessary also to prevent the CCG from contracting with such a provider or undergo a cumbersome—I have to say cumbersome—exemption process. That approach would make the board have to scrutinise individual procurements and generally police the transactional behaviour of CCGs. It would not allow for alternative local arrangements for quality-assuring the openness and transparency of a CCG’s approach. It should not have to be the board only that can ensure the probity of the commissioning decision. As I have suggested, the health and well-being board might provide a suitable external view, as might another CCG.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for giving way so freely. I understand what he is saying about the bureaucratic process. However, will he not accept that the reason for that is that the corporate governance processes around the clinical commissioning group are so weak? For instance, why is there not to be a majority of independently appointed non-execs, as there would be on any other public board?

[Earl Howe]

I will come to that point in a moment. I do not agree with the noble Lord that the governance arrangements are weak. As I have said, one of the things that the board will have to do when authorising CCGs is to assure itself that there are fit and proper governance procedures in place.

I turn to the question of sanctions, which has been raised by a number of noble Lords. It is essential that patients and clinicians remain confident that members of clinical commissioning groups will always put their duty to patients before any personal financial interest. It is important that CCGs take all possible steps to avoid conflicts of interest. We foresee that the guidance that Amendment 79A requires the board to produce would set out the need for CCGs to make clear in their conflict of interest policy that any member of a CCG found to have failed to declare an interest may face a number of possible sanctions and individuals may also be referred to their professional body, which is a serious matter. The noble Lord, Lord Walton, was quite right in all that he said. I am very drawn to the provision of Amendment 79A, and I will come on to that more fully in a moment.

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I hope that I have said enough to reassure the House that the Government have acknowledged the concerns on these issues around conflicts of interest. We have listened to the concerns and are willing to amend the Bill accordingly.

[Lord Hunt of Kings Heath]

My Lords, I think that that is a very disappointing response. The noble Earl, Lord Howe, said that clinical commissioning groups will balance autonomy with accountability, and he acknowledged that they will be guardians of billions of pounds of taxpayer’s money. He went on to say that there were three safeguards: the constitution, transparency and the governing bodies. However, he still fails to respond to the fundamental gap, which is the lack of proper corporate governance around clinical commissioning groups. Looking at other public sector bodies—NHS trusts, for instance; not foundation trusts, but NHS trusts—how would we feel if the Government came forward with proposals stating that the board of an NHS trust would consist of executive directors and one or two lay members? It is just possible—but it is not certain—that one of those lay members will be the chairman of the trust, or they could, indeed, be the chief executive. That, in essence, is what the Government are proposing for the governance of clinical commissioning groups. A group of GPs will sit round the table. They will have a couple of lay members who presumably will be appointed by the clinical commissioning group, because the Government consistently fail to say whether there will be an independent appointments process. The noble Earl never responds to me on this point. They will be deciding how billions of pounds should be spent. The noble Earl refuses to acknowledge that these GPs are business people who run businesses which depend mainly on contracts—

[Earl Howe]

My Lords, I realise that I did not answer the noble Lord and I apologise to him. It may be helpful for him to know that we intend to work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. We will be issuing regulations in due course setting out in more detail the requirements for appointing clinical—that is to say, non-GP—members to the governing body.

The report that we had from the NHS Future Forum stated that it would be unhelpful for clinical commissioning groups’ governing bodies to be representative of every group under the sun. We agreed with that. Requiring a bigger group of professionals on the governing body itself, or expanding it in any way at all, would not really mean that a broader range of interests are involved in designing patient services. It would just lead to governing bodies that are too large and slow to do their job well. However, we think that it is important for clinical commissioning groups to be led clinically. That is the point.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. However, that ultimately means that a majority of the people on the board of a clinical commissioning group will potentially be able to take advantage of the commissioning decisions of that group. That is why the corporate governance is so concerning. I accept that my amendment might be regarded as rather lengthy. However, I am pushing this forward because I am trying to replace the lack of effective corporate governance.

The noble Earl says that sanctions will be contained in guidance, but I do not think that that is sufficient. The potential for conflicts of interest are so great and the amount of public money involved so considerable that we should have in the Bill a clear commitment to sanctions. I do not agree with the noble Earl that this is something that can be left to professional bodies. My noble friend Lord Warner was absolutely right to mention that case. It shows some of the risks of what essentially was, in that person’s case, a managerial issue being pursued by a regulatory body. I do not think that that is the right way of dealing with GPs who, it was alleged, had pursued actions in breach of whatever guidance was issued.

[Earl Howe]

The noble Lord should not forget what I said about Monitor’s powers to look at improper conduct at the CCG level.

[Lord Hunt of Kings Heath]

My Lords, I am sure that Monitor will play an extremely useful role, but surely it would be much better to give further and clear guarantees that these matters will be dealt with effectively. I believe that we need more provision in the Bill specifically on sanctions. I should like to test the opinion of the House.

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[Lord Hunt of Kings Heath]

My Lords, I would like to echo my noble friend Lord Rea and noble Lords from the Cross Benches on the importance of this group of amendments. At its best, primary care can be brilliant, but at its worst it can be absolutely appalling. The variation in primary care is probably wider than in any other part of the National Health Service. As the changes take place we can see that this may cause many problems in the future.

We are all agreed about the need for an integrated approach and for a smooth patient pathway. Clearly, primary care potentially has a very important role to play. However, it needs to step up to the plate. If acute hospitals are to reduce the scale of their operations, more will be expected of primary care. Yet acute hospitals are open every hour of the day: primary care is not. Indeed, there are often very big issues about how primary care can be accessed out of working hours. The out of hours services are not always as effective as they might be, and there are some practices where patients know that it is very difficult to get attention unless they turn up at the convenience of the doctor, and so they then end up at the accident and emergency department. As I read where the NHS is going, this is no longer going to be acceptable. If money is being taken away from acute care and more money is being spent on primary care, which must be the logical outcome of clinical commissioning groups, unless those clinical commissioning groups can ensure that GPs do what is necessary to ensure that primary care takes up the responsibility, we are going to end in great difficulty, where acute care services will continue to be demanded by patients and money is being spent on primary care but it is not doing the necessary job. Therefore issues around the monitoring and performance management of primary care become very important indeed.

The Government have decided not to place the contracts of GPs within clinical commissioning groups. I understand that because clearly there is another potential conflict of interest. They are to be held at the local offices of the national Commissioning Board. However, there are real questions to be asked about how bureaucrats, as the Government seek to call them—I like to think of them as managers—are going to handle those contracts. What will happen within a particular clinical commissioning group if there is a group of GPs who simply will not do what is required of them to make a contract work with a local hospital? For instance, there may be a risk-share arrangement with a local hospital, where essentially agreement is made on the contract price, but part of it is very much about demand management, where there is a risk share between the clinical commissioning group and the acute trust. That will depend on all the GPs within a clinical commissioning group doing what is necessary, playing their part and contributing to demand management measures. Frankly, there are a lot of GPs who will not have anything to do with that. We know that at the moment. It is happening everywhere, up and down the country, with GPs who do not give a damn about anything to do with demand management. What will happen? Who will be able to intervene in those circumstances? Clinical commissioning groups do not have many levers when it comes to poor performance among general practitioners. I suspect that the national Commissioning Board will not have the expertise either. That is why this group of amendments is so important. We all know that primary care can make a huge contribution to a good NHS in the future, but we have to admit that, of all parts of the NHS, we can probably also find the poorest quality of service as well. That is why we are looking for reassurance from the noble Earl that this new system will be able to deal with those poor performers.

[Earl Howe]

My Lords, I am grateful to the noble Lords, Lord Kakkar and Lord Patel, for their contributions to this debate and, indeed, to other noble Lords who have spoken. We have heard some very powerful and persuasive arguments. I have listened very carefully to them.

Amendments 43A and 43B highlight the concerns that I expect all of us in this Chamber share in relation to the need to ensure high-quality primary care for all patients. The noble Lord, Lord Hunt, made some very telling points in that regard. Of course, there can be no doubt that good primary care contributes to good healthcare outcomes overall. I fully agree that the NHS Commissioning Board should be held to account properly for its performance in commissioning primary care. I do not think, however, that the right way to achieve that is to prescribe that this must be part of the mandate. Our aim is that the mandate should have at its heart the NHS outcomes framework, which covers the range of care that the NHS provides. I make the simple point that good primary care will be essential to improvement against the NHS outcomes framework.

More widely, the department will be keeping under review the performance of the board and the way that it carries out its functions, including its direct commissioning. What matters here are the accountability mechanisms and how those in the system are monitored and held to account. Just as the board will have a commissioning outcomes framework to hold CCGs to account for the quality of their commissioning, it will be important to have robust and transparent information to assess the quality of what the board commissions itself.

We come back to what the Bill already says: it places duties of quality on the Secretary of State, on the board and on CCGs, requiring each of them to exercise functions with a view to securing continuous improvement in the quality of services provided to patients. The Bill also sets out robust arrangements for holding those bodies to account for delivering quality improvement. As noble Lords will be aware, the Bill already requires the board to submit a business plan setting out how it proposes to exercise its functions, and a report setting how it has exercised its functions, to the Secretary of State on an annual basis. In turn, CCGs must also submit their commissioning plans and annual reports to the board. Both the board, in reporting to the Secretary of State, and CCGs, in reporting to the board, will be expected to demonstrate how they have fulfilled their quality improvement duty, including in relation to primary care. Consequently we expect, for example, that both the board and CCGs will wish to monitor the standard of care and services provided by all primary medical services providers in fulfilling their duties.

It is possible that we will need a dedicated objective relating to primary care in the mandate—I am not ruling that out. It would be better, though, not to prescribe that in primary legislation. What matters is that there are clear and effective accountability arrangements, and the Bill as it stands provides flexibility to ensure just that.

The noble Lords, Lord Kakkar and Lord Rea, asked about the QOF. I agree with the noble Baroness, Lady Finlay, that the QOF is a separate issue, but I can say that the whole of the QOF is kept under review in consultation with the profession to ensure that it reflects the best available evidence and supports continuous improvement in the quality of care for patients. Over the coming months we will continue to discuss with the profession and its representatives how to focus the QOF on securing better healthcare outcomes and what that means for existing GP contractual arrangements.

I turn to the final amendment in this group, Amendment 95A. The Bill already ensures that the board has the information that it needs to demonstrate how it has fulfilled its duties. CCGs are required to provide information to the board in the form of the annual commissioning plan and annual report. In addition, the board and CCGs are under a duty to co-operate. In the normal course of business we expect this to involve the sharing of information as necessary but, in the event that a CCG might have failed, be failing or fail to discharge any of its functions, the board’s powers enable it to require any information or documents that it considers necessary from CCGs.

The noble Lord, Lord Hunt, posited the situation that there might be reluctant GPs who did not fulfil their part of the bargain, whatever that was, with the acute sector. There needs to be a way of investigating allegations that actions by GPs in their practices are adversely affecting a clinical commissioning group. Where a general practice is operating in such a way that it is a barrier to a clinical commissioning group meeting its functions, it will be for the commissioning group to work with the members of that general practice to support it to improve and contribute to the work of the commissioning group as a whole. Ultimately, if it is unable to do so, a clinical commissioning group may need to refer such cases to the NHS Commissioning Board, along with the evidence of the failure of the practice and details of any support that the commissioning group has provided to the practice to help it overcome any perceived difficulties.

Among other matters, the board may wish to consider if the practice’s actions are in breach of the practice’s primary medical services contract. Separately, the NHS Commissioning Board will have the power to investigate the suitability of individual GPs under the medical performers list provisions. As the noble Lord will know, this power is currently with primary care trusts.

In a nutshell, therefore, the Bill already imposes a duty on CCGs in respect of the mandate and allows the board to ensure that CCGs fulfil it. Further specific requirements in relation to providing information to the board are therefore unnecessary, so I hope that what I have said reassures the noble Lords, Lord Kakkar and Lord Patel, sufficiently to enable them to withdraw their amendment.