National Health Service (Clinical Commissioning Groups) Regulations 2012

Lord Hunt of Kings Heath Excerpts

Tuesday 16th October 2012 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

That this House deplores the fact that the National Health Service (Clinical Commissioning Groups) Regulations 2012 (SI 2012/1631) involve the exclusion from membership of a Clinical Commissioning Group of (1) a member of a local authority, and (2) a registered nurse or a secondary care specialist if employed by a body which provides any relevant service to a person for whom the Clinical Commissioning Group has responsibilities.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to the Register of Lords’ Interests and specifically to my chairmanship of the Heart of England NHS Foundation Trust. At the core of the Government’s changes to the National Health Service are the clinical commissioning groups to which a significant part of the NHS budget is to be allocated from the next financial year.

Those clinical commissioning groups face formidable challenges. They need to be authorised and established. They take office at a time when the NHS is attempting to cope with the £20 billion Nicholson challenge. They will face major reconfiguration challenges as the health service seeks to become more efficient in the use of its services. They also will come under great pressure to encourage integration across health and social care but will face also the almost conflicting pressure of increasing the marketisation of the NHS and coping with the bringing in of competition law to a much greater extent. Whatever one’s views about the changes to the National Health Service—I am one who does not take a particularly positive view, as the noble Earl will know—what is not in doubt is that clinical commissioning groups are at the heart of those changes and that the challenge that CCGs face, as we have come to know and love them, is formidable.

These clinical commissioning groups are a curious body. They ostensibly are public bodies to be given £60 billion of public money. They also can be seen as a federation of primary care providers which are given huge financial and commissioning muscle and from which members of the primary care federation can gain considerably. Given that, and given the obvious potential conflict of interest that surrounds clinical commissioning groups, it is clear that they should have the strongest possible corporate governance and effective boards. The regulations before us are therefore of considerable importance.

As the Explanatory Memorandum points out, the regulations set out,

“requirements on CCGs in terms of their establishment and governance”,

requirements in relation to the make-up of the board and requirements in relation to,

“the initial procedure for establishing CCGs and any changes to CCG membership and geographic area thereafter”.

The statutory instrument sets out that membership must include a registered nurse, a secondary care specialist and two lay people.

As I said during our endless debates on the Health and Social Care Bill, I find the very limited lay representation to be very disappointing. It is surely contrary to all good practice in public body appointments that lay people are in such a minority on public bodies to which so much resource has been expended. I doubt that it would pass the Nolan test. I well recall the failures that we have seen in boards over the past two or three decades where it has become clear that the non-executives have failed to discharge their challenge duty. After all, that surely is one of the main lessons of mid-Staffordshire. To have only two lay people who could represent the public interest on those boards seems to me to be a vital error.

I also say to the noble Earl that he failed to respond effectively to our debates on conflict of interest. I am sure that when he seeks to defend the drafting of this statutory instrument, he will talk about conflict of interest. However, the biggest conflict of interest is the fact that GPs will be in a majority on those boards, and GPs can gain financially from the decisions of clinical commissioning groups. That is why this whole structure is flawed.

My concern about the statutory instrument—one of the most peculiarly drafted that I have ever come across—is that people with local expertise are excluded from the clinical commissioning board. Because a registered nurse or a secondary care specialist have intimate local knowledge and provide services to patients in the area of a CCG, they are not to be welcomed; they are to be excluded. That is quite a remarkable decision. For a registered nurse or a secondary care specialist to become a member of a CCG they either have to be retired and therefore completely out of date or they have to live miles away and know nothing of the local area. What a remarkably stupid decision that is. It is compounded by Schedule 4 of the regulations, which excludes a local authority member from being appointed as a lay member of a clinical commissioning group. Why? What on earth is the justification for that?

Given the issue of accountability of clinical commissioning groups, surely having an elected member of a local authority on the board of each CCG would be to the advantage of that CCG. I have yet to hear any convincing explanation as to why they are excluded. Indeed, it is so ridiculous that if you are a GP who happens to be a local councillor, you are excluded from serving on the CCG board. I have had brought to my attention the case of one GP who has been a leading light in the development of his own clinical commissioning group only to be told that he is now ineligible to become a member of the CCG board. Today I met a local authority councillor from east Cheshire who has just been appointed a lay member of a CCG, but she has now been told that because she is a local authority member she can no longer serve on the board.

There are some inconsistencies in the statutory instrument. It looks as though Members of your Lordships’ House can serve on the clinical commissioning group governing bodies, as opposed to MPs and members of local authorities. From my reading it would seem that an elected police commissioner may also serve. That seems to me a trifle inconsistent, and I would be grateful if the noble Earl could clarify that for me.

In the Explanatory Memorandum, when it comes to consultation, we are told that the proposed framework for the established governance and authorisation of clinical commissioning groups was tested with a wide range of stakeholders. Can the noble Earl say a little more about that? Who, in fact, were consulted? I had not realised until I received a briefing that the Foundation Trust Network was not consulted on the details of the regulations. We all read with great interest in Pulse magazine of 24 July that Sir David Nicholson, chief executive of the NHS, said that he was open to relaxing the restrictions that I have mentioned. Was he consulted?

Why did the department not listen to the concerns of the Royal College of Physicians, which believes that the CCG boards should always include specialist doctors who work within the area covered by a CCG in order to help the integration of services across primary and secondary care? Indeed, why did it not listen to the BMA, which feels that the regulations are restrictive and are hampering effective secondary care clinician recruitment to CCG boards? Why did it not listen to the Royal College of Nursing, which says that the guidance makes an assumption that GPs from practices in a CCG should be allowed to sit on the CCG governing body, but automatically excludes any nurses employed by any significant local provider or member in general practice? The college says that that will make it difficult to appoint nurses with the necessary skills and expertise who have sufficient knowledge of the local challenges. The Royal College of Surgeons is also concerned.

I have another concern. Again, when I read the regulations, I had not noticed that, as the Foundation Trust Network has pointed out, if you are a member of a foundation trust you are ineligible to serve on the board of a clinical commissioning group. I believe that the total membership of foundation trusts is more than 2 million. My own trust has 100,000 members in its patch, and they are all excluded from serving on the board of a clinical commissioning group. That is a bizarre decision. I really do not understand how the department could have allowed that to creep into this statutory instrument.

I believe that the regulations are badly thought out and badly constructed. Essentially they will ensure that the board of a clinical commissioning group will be bereft of members coming from the local authority, hospitals or the nursing profession who have any intimate knowledge of the patch in which they serve. I urge the noble Earl to reflect on this. It would be much better if these regulations were withdrawn and new ones brought before your Lordships’ House. I beg to move.

[Lord Warner]

My Lords, I begin by congratulating the Minister on surviving the ministerial defenestration at Richmond House over the summer. I recall that some years ago a younger Bruce Willis played the title role in the film “Last Man Standing”. I welcome the Minister to his new role as an action hero. However, today’s regulations do not live up to this star billing.

My noble friend’s Motion of Regret contains many important reservations and I wholly endorse his remarks but there are other concerns as well. I will not repeat my noble friend’s remarks on the inconsistency of the CCG membership provisions but I would like to supplement them briefly. It seems bizarre to me to allow GPs with acknowledged conflicts of interest in a CCG area to serve on the CCG, though with appropriate safeguards and sanctions for failing to acknowledge those conflicts—sanctions which we discussed extensively during the Bill’s passage through this House—but not to allow specialist doctors to do exactly the same. This seems to me not to be in the best interests of patients because it appears to be punishing expertise of a specialist nature in terms of the development of services by commissioners in a particular local area.

My second point, which I want to dwell on a little longer, concerns the issues relating to accountable officers, which to a great extent, to my reasonably tutored eye, look remarkably similar to the roles of chief executives in PCTs. Has the Minister seen the information about CCG accountable officers in the Health Service Journal of 11 October? This reveals that 72% of the emerging 211 CCGs have chosen managers and not GPs as their accountable officers. Only 22% of the accountable officers are GPs—a drop in the 38% expected as recently as March 2012. This is because the job of the accountable officer looks remarkably like the job of a PCT chief executive and simply does not appeal to GPs. As I recall, the Government, when pushing for this legislation and these reforms, made much of the fact that they wanted to see GPs in a leadership role driving clinical commissioning in a reformed NHS. We seem to have ended up with a situation in which GPs as a whole are walking away from a leadership role in commissioning. That leaves the Government’s strategy of increasing clinical involvement in commissioning services, which I wholly support, in a very weakened state. It suggests that after all the upheaval of the poorly constructed Bill, which we spent months discussing, we will end up with more than 200 CCGs replacing 150 PCTs, but still with about 150 PCT chief executive equivalents running the show within CCGs. This is a bizarre outcome from the time we spent on the Bill. Did we really labour through the Bill for many months to achieve that outcome? Can the Minister confirm that the Health Service Journal data are correct? What proportion of the £60 billion a year going to clinical commissioning groups will come under accountable officers who are not GPs or doctors?

I have a few questions about service integration and CCG mergers. The new Health Secretary seems very enthusiastic about integration of health and social care and that is a jolly good thing. Can the Minister explain how excluding local authority personnel—both members and officers, such as a director of adult services—from a CCG board can facilitate joint commissioning of health and social care and the pooling of health and social care budgets, which seems to be attracting increasing support? How will such an arrangement incentivise CCG accountable officers to use resources for adult social care from the national Commissioning Board in such a way as to save the NHS money and provide a better service to patients? Indeed, can the Minister confirm that CCG accountable officers will not be criticised if they use NHS resources wisely to purchase social care that better serves the needs of patients when appropriate?

As the Minister knows, I am deeply sceptical about the need for and viability of having more than 200 CCGs, particularly given the likely service reconfigurations needed over the rest of this decade. I am therefore pleased that there is some provision in the regulations for mergers to take place. However—there is always a “however”—the list of factors to be taken into account before a merger can proceed, in paragraph 2 of Schedule 1, is extraordinarily daunting. There is a page and a bit of factors that have to be taken into account before a CCG—which may find pretty quickly that it is unviable—can move towards merger. They do not encourage CCGs to face up to financial realities and speedily reduce their number when needs must. Should the Government not be cutting this list of factors substantially rather than providing for a slow CCG death, as Schedule 1 seems to do?

I understand that the Minister may not want to answer all these questions tonight but perhaps he could write to me on some of these issues. I certainly support my noble friend’s suggestion that these regulations should be taken back, rethought through and re-presented to Parliament.

--- Later in debate ---

[Earl Howe]

My Lords, it will be up to local CCGs to determine their own constitutions, as I have said. What we are attempting to do in these regulations is simply to set down the bare minima. As we discussed during the passage of the Act—these provisions were well rehearsed—providing there are two lay members, a secondary care clinician, a nurse and an accountable officer, that is the extent of the prescriptiveness that we feel is appropriate from the centre. Otherwise, it looks very much like the Government dictating the governance arrangements. The Future Forum’s recommendations were very clear that we should not go down that path.

It was suggested that CCGs were experiencing difficulties in appointing secondary clinicians or a registered nurse. I understand the concerns that noble Lords have raised on that score but I have recently spoken to the NHS Commissioning Board, which has started the process of considering applications from emerging CCGs. The news I have is that CCGs have so far successfully recruited to these roles. In addition, the medical and nursing royal colleges have offered to help CCGs in sourcing appropriate candidates, which is very welcome.

The noble Lord, Lord Warner, referred to the HSJ article of 11 October. I will clarify my answer when I write to him, which I will be happy to do. We are very pleased not only that so many clinicians have chosen to apply for leadership roles, which they have, but that so many first-rate clinicians have done so, whether as clinical chairs or clinical officers in CCGs. What is important is that there is a good mix of expertise in the broader leadership team of clinicians and managers, to help the CCG discharge its responsibilities effectively, and that is what we are now seeing.

I have a number of examples of where the drive towards integration is really taking shape on the ground. My noble friend Lady Jolly mentioned South Devon and Torbay; this is a service designed by secondary care doctors and GPs working together in a clinical pathway group for urology, and the whole impetus of the CCG is to improve collaboration and get over the gulf between primary and secondary care. There is another excellent example of integrated services in Wokingham, which again I would be happy to write about.

The noble Lord, Lord Hunt, asked whether police commissioners and Peers could be members of a CCG governing body. Yes, they can. He also asked who was consulted over these regulations. As I have indicated, the proposals were developed in response to the NHS Future Forum, the listening exercise that set out requirements around the secondary care doctor and registered nurse. The proposals were further discussed with emerging CCGs, primary care organisations, the medical royal colleges and, yes, colleagues in the NHS Commissioning Board Authority.

The regulations discussed today provide a fair and transparent rules-based framework to complement the provisions in the Health and Social Care Act around the establishment of CCGs. Creating a responsible and accountable CCG with good governance is essential for good management, good performance, good stewardship of public money, good public engagement and—our ultimate goal—good outcomes for patients. I commend the regulations to the House.

[Lord Hunt of Kings Heath]

My Lords, I shall be brief. I thank the noble Earl, Lord Howe. He started by referring to the importance of clinical leadership and I would not disagree with him, but he has not really answered the point that the biggest potential conflict of interest is if GPs are in a majority on the boards—and I would hazard a guess that, in most places, they will be. They do not commission primary care, but their decisions can shift resources into primary and community care services. That is the essential conflict of interest.

The Government’s legitimisation of what must be some of the worst drafted regulations that I have ever come across would stand up in relation to conflicts of interest in other professions if one had any inkling at all that they recognised that CCGs carry a huge risk in relation to the GPs’ own position. The Minister said that the CCGs are about clinical leadership. As my noble friend Lord Warner pointed out, you are not even getting that, because only 20% or so of the accountable officers of those CCGs are to be GPs. The remainder are to be managers. Let us be clear: the accountable officer will in effect be the chief executive. The noble Baroness, Lady Finlay, said that the exclusion of local consultants and nurses from CCGs would mean that, in large parts of the country, the people appointed would have no local knowledge whatever. I agree that, in London, it may be more practical; in most of the rest of the country, it will not be.

I agree with all the points raised by the noble Baronesses, Lady Jolly and Lady Williams, but it is not sufficient to say that there will be a review in 2014. At this late stage, I invite them to join us in the Lobbies tonight. I could not disagree with anything that either noble Baroness has said. They tore apart the regulations. Will they not join us tonight?

I was amazed by the remarks of the noble Baroness, Lady Cumberlege. She came to the health service, as did I, through local government. Local government is having to take some immensely tough decisions. Having a local authority councillor around the board table of a CCG would help legitimise its decisions and help tie in the local authority with difficult decisions that have to be made. Excluding them is a huge mistake. I do not understand—clearly, the department forgot them—why elected police commissioners are deemed worthy of service on a CCG board when elected MPs and councillors are not. When my noble friend Lord Prescott is duly elected a police commissioner in a few weeks’ time, as one hopes, he will be eligible to serve on the whole clinical commissioning group, but no MP and no councillor. These are some of the most nonsensical regulations that I have ever seen.

The Minister said that we should not worry because local authority councillors, local doctors and local nurses can serve on the committees of a CCG—no conflict of interest there—but they cannot serve on the board. However, the board is the sovereign decision-making body of the CCG. I would have thought that most clinical commissioning groups would have wanted to have local expertise, whether it is local authority representation, a doctor or a nurse.

The Minister then said that these are only minimum requirements. Well, Schedule 4 states:

“Individuals excluded from being lay members of CCG governing bodies … An employee of a local authority in England and Wales or of any equivalent body in Scotland or Northern Ireland … A chairman, director, governor, member or employee of an NHS foundation trust”.

Excluding a chairman, director or governor of a foundation trust is fair enough, but a member? My trust has 100,000 members. Patients are automatically enrolled in membership of my trust unless they decide to opt out. We are talking about 100,000 people living in the catchment area of my hospital who are not allowed to be lay members of a CCG. Surely they are the very people you would want to be lay members of a CCG.

[Earl Howe]

They are not allowed to be the statutory lay member.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Earl for that enormously helpful clarification. The point is this: why should they not be statutory lay members of the CCG? There is no guarantee that CCGs will appoint any more lay members. I have yet to hear any rational explanation as to why this statutory instrument has been drafted in this way.

As we know, the noble Earl, Lord Howe, is a very fair man and always engages in debate. He will know that this statutory instrument has been ripped apart tonight. Even at this late hour, I ask him to withdraw the instrument. If he is not prepared to do so, I will test the opinion of the House.