Health and Care Bill

Lord Hunt of Kings Heath Excerpts

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

[Earl Howe (Con)]

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

[Lord Hunt of Kings Heath (Lab)]

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

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

Amendment 25 withdrawn.

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

[Lord Hunt of Kings Heath (Lab)]

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

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

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

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

She commented:

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


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

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

[Baroness Cumberlege (Con)]

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

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

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

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

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

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

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

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

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

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[Lord Clement-Jones (LD)]

My Lords, I thank the noble Earl, Lord Howe, for his very considered response. We have had a very rich debate, and I thank all the speakers. It has been a privilege to take part in what I think the noble Lord, Lord Bethell, called this “conversation”, because we have heard huge experience and authority, right across the board, about the way we might digitally transform the NHS.

In a sense, I think it is about means, not ends: we are trying to reach the same end but we disagree on how to get to that objective. At the core of that disagreement, and no doubt where we will have considerable debate later on in the Bill, is where the digital transformation aspect fits with data confidentiality and data sharing—all of which is necessary as part of digital transformation. I listened with enormous interest to what the noble Baroness, Lady Cumberlege, had to say on that. We have to get this equation right, and we have to build public trust. I say “build” public trust because I do not think it is completely there, post the GP data grab, as it has been called, of last year. We will come on to that on future occasions.

I feel somewhat that the noble Earl, despite his mellifluous approach to these matters, was rather throwing the book of arguments at the need for any form of amendment to the Bill. He always does so with great style, but I was not totally convinced on this occasion. He mentioned the principle that we should not be too prescriptive—in that case, why are we legislating? We are trying to legislate for what the priorities for the health service are in the current circumstances.

[Lord Hunt of Kings Heath (Lab)]

Does my noble friend not think there is an interesting contrast in saying that we must not be too prescriptive but, for NHS England, we are going to tell it what to do?

[Lord Clement-Jones (LD)]

Absolutely. I think the noble Lord, Lord Mawson, talked about a disconnect in another context, but that is probably the word I would use in these circumstances. The Government say that they are going to prioritise good local leadership but do not want to be too prescriptive about who is on the board of the ICB; that they want a clear strategy for digital transformation but do not want to make it a duty; and that a general level of competence and expertise is required but, again, “Oh, no, we don’t want any digital duty; that would be a little bit too prescriptive”.

We need a level of digital maturity, and a regular set of digital maturity assessments. I liked the sound of that, but faced with all the other duties that ICBs will have, which ones are they going to prioritise—the ones that are built into statute, or the ones that are part of a What Good Looks Like programme? The noble Earl quoted exactly the same document that I had access to. It is a splendid document but, without some form of underpinning by legislation, it is very difficult to see ICBs giving priority to that.

Of course, the other argument the noble Earl made was that if we had a separate duty, we would have to have a whole separate planning process. That is not how these things work. When you have a set of duties, you try to do it in a holistic fashion. You do not say that we need one plan for this duty and another for that duty. If you are going to use your resources sensibly and the capabilities within your organisation in the right way, you need to do it in a planned programme, right across the board.

On the whole issue that having a separate statutory duty risks misalignment, I thought that was where somebody had really been creative and woken up with the inspiration that this was the final killer blow in the arguments being made.

I listened with great interest when the noble Earl came to the question of funding. I have not done any calculations in my head, but I bet that £2.85 billion cap ex spending over three years does not equate to 5% of the NHS budget. As my noble friend intimated to me, when you look at the cost of some of the digital developments that have taken place over the last year or two, you will see that they are highly expensive, in both revenue and capital spending. The noble Earl talked about not ring-fencing We all know the problem of distinguishing between capital and revenue in public spending. That is not to say that that is necessarily right.

Finally, on the idea that we must not tie hands—what is legislation designed to do but to set out parameters?

I thought that the aspect of patient engagement was quite interesting, and I will need to re-read what the noble Earl had to say, because it may be that the current set of duties within the Bill provides for that. That may be a glimmer of hope. Indeed, the whole question about the duty to foster a culture of innovation is a kind of fig leaf. What board is going to treat that as an absolute duty that it needs to plan in and set particular duties to its team for? In a sense, it will be an optional extra if we are not careful.

To tell your Lordships the truth, I am not entirely convinced that we are going to be able to—in the words of the noble Baroness, Lady Cumberlege—“galvanise” the NHS. I thought that was a splendid word; it has a certain electricity about it. I do not think anything in the current Bill is going to deliver that galvanising impact, and we will be left with the disconnect that the noble Lord, Lord Mawson, talked about if we are not careful. But in the meantime, I beg leave to withdraw my amendment.

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Moved by

[Lord Hunt of Kings Heath]

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

[Lord Hunt of Kings Heath (Lab)]

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

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

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

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

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

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

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

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

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

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

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

[Lord Hunt of Kings Heath (Lab)]

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

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

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

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

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

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

Amendment 42 withdrawn.

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[Earl Howe (Con)]

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

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

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

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


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

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

[Lord Hunt of Kings Heath (Lab)]

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

[Earl Howe (Con)]

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

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

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