Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Masham of Ilton (CB) [V]]

My Lords, I shall speak to Amendments 178, 266 and 293. Amendment 178, which was tabled by the noble Lord, Lord Sharkey, is important for people with rare and less common diseases. The amendments could be a lifeline for people who have rare conditions who use products that may be the only substances that work. There is an enormous selection of rare conditions. It can be a desperate situation when some medicines are developed but take a long time to be given the all-clear by NICE. Some medicines are not available in England on the National Health Service but are available in other countries, sometimes even in Scotland. That is devastating and frustrating.

I support Amendments 266 and 293, on the cosmetic surgery industry, which must be made safer. It is extraordinary that this business is only partially registered. Many people who have such a procedure take for granted that the practitioner will be registered and fully insured. There have been some disastrous results when things go wrong with a beauty procedure. I know of some plastic surgeons who work only in the National Health Service, as they do not want to be tarred with the same brush as uninsured cowboys. Amendments 266 and 293 deal with a wide selection of cosmetic procedures, some of which are psychologically important to many people. There is wide interest in making this trade safe and getting it registered. I hope the Minister realises that this is an important matter that needs putting right.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have Amendment 176, the second amendment in this group, and two other amendments. I shall start with Amendment 176 which is concerned with the treatment of thyroid patients who continue to be denied liothyronine, otherwise known as T3, as the most appropriate treatment for them. For some patients, the standard treatment is not effective. T3 has proven to be a much better treatment, but tragically, a few years ago the manufacturers grossly inflated the cost of T3 by a massive 6,000%. Understandably, NHS England and its associated prescribing advising machinery strongly discouraged the use of the drug and, as a result, many patients had T3 withdrawn and suffered quite considerably or had to fund it privately or source it from abroad. Happily, the price of T3 has come down by 75%, although it could go down further, but I believe it is no longer categorised as a high-cost drug.

The problem is that clinical commissioning groups still treat it as a high-cost drug, so the situation is still very difficult for patients who need it—those for whom the standard treatment is not appropriate. The current guidance states that T3 can be prescribed to patients who have unresolved symptoms on the standard treatment if it is initiated or confirmed following a review by an NHS consultant endocrinologist. A statement in July 2021 restated NHSE guidance, but it has not been followed by clinical commissioning groups. A survey done recently by UK thyroid charities, to which I pay huge tribute, says that 44% of CCGs have not fully adopted the national guidelines or are wrongly interpreting them.

What are we to do? What is the situation here, where we have clear guidance that is not being followed? This goes back to our previous debates about the various mechanisms being brought in to ration treatments, against national guidance or technology appraisal advice from NICE. It is the same issue. I am not expecting the Minister to issue a direction but I am expecting him to tell CCGs and, in future, integrated care boards to get off their backsides, start implementing the guidance properly and realise that this is no longer such a high-cost drug. I appeal to him to do something about that.

I also hope that the Minister will do something about hospital catering. I confess to your Lordships that I am president of the Hospital Caterers Association, where I work very closely with some great professional staff who have to work with their hands tied behind their back. Often they do not have the resources to provide the high-quality food that everyone wants and expects.

During Covid we saw in many local NHS facilities a determination to do everything possible to improve nutrition for both patients and staff. Miraculously, hot food was made available to staff overnight, which, as noble Lords know, seems to have been beyond the capacity of the NHS for many years. I do not know why I am looking at the former Chief Nursing Officer as I say this; I think it is an appeal for support.

This clause is highly welcome as I believe it will lead to higher standards, but my amendments would enable the caterers to deliver on them. The first key point is this: they need the resources to be able to do it. The amount of money spent on hospital food per day at the moment is simply not sufficient. Secondly, we need more training for staff. The training programmes have disappeared, and we need to get them back in to give staff the opportunity to show what they can do. Thirdly, we need to make sure that NHS trusts and foundation trusts are fully on board with bringing forward these regulations. There is no doubt that the efficiency programmes have taken their toll on the budgets for hospital catering and that, equally, the old-style national training schemes fell away and have not been replaced. The pay grade of qualified chefs and cooks needs to be reviewed to reflect the importance of their role. This issue is important in terms of the standards of food and nutrition for our patients and for the well-being of our staff.

My final amendment in this group is Amendment 264. What links all these amendments is that we need more consultants appointed—a small effort to enable us to improve the efficiency of the system. I remind the Committee of my GMC connections in relation to this. The amendment would add the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow, and their associated dental faculties, to the colleges that may be involved in the appointment of NHS consultants. My amendment was inspired by the Royal College of Surgeons of Edinburgh, which noble Lords might be surprised to learn has an office in Birmingham because many consultants who work in the English NHS are members of the Scottish colleges.

There seems to be a lacuna in the current regulations. According to the National Health Service (Appointment of Consultants) Regulations 1996 and subsequent guidance issued by the department in 2005, only the Royal College of Surgeons in England is permitted to review surgical consultant job descriptions and send a royal college representative to the advisory appointment committees when it comes to the appointment of consultant surgeons. Other elements of my amendment apply to the appointment of physician clinicians, and the Royal College of Physicians of Edinburgh and the Royal College of Emergency Medicine are also supportive. Although the process and guidance apply only to NHS trusts, foundation trusts are encouraged to follow it.

The Minister has yet to accept any amendment to the Bill. The usual line from the Government is, “We will do this when legislation is available to do so.” Here is a great opportunity for the Minister, as we are here on day 6 of Committee, to get up and say that he is going to accept my amendment.

[Baroness Barker (LD)]

My Lords, in following the noble Lord, Lord Hunt, I declare an interest as the patron of the National Association of Care Catering, a position that I took over from the noble Baroness, Lady Greengross. I admit that, when I had this great honour thrust upon me, I had little idea what I was getting into—and I have discovered a world of highly dedicated, professional people whose contribution to the health of the nation is very much overlooked. I managed to attend their national conference in Nottingham last October, and I have to say that it was one of the most harrowing afternoons I have spent, as they talked about what they had gone through as the people who supply catering not only in hospitals and acute hospitals but in care homes, as well as doing meals on wheels.

I will pick up one point that the noble Lord, Lord Hunt, made, on training. He is absolutely right that this area has suffered a great deal because of various changes not just to training in the NHS but to the training in higher education. We do not have a recognised qualification in care catering in this country, yet these are people who have to produce food for people who have dysphagia, multiple food intolerances and dementia, people who quite often are suffering from malnutrition when they come into hospital, and people who have allergies and often suffer from dehydration. The people who have worked in this field, and some of them have worked in it for many years, suffer a deep sense of frustration, which is that when young people in school or college show an aptitude for or a willingness to go into the world of catering, they are directed towards restaurant catering, because that is where the teachers and lecturers think the money is to be made. Actually, catering for people with difficult medical conditions is a lot more complicated.

I say to the Minister that I am also really impressed by the specialist companies that work in this field—those that produce specialist menus and enable people to order ingredients for complicated menus in complicated settings, as well as those that manufacture cutlery and crockery and vessels that can be used by people whose interaction with that sort of thing is hampered. These can bring a dignity and focus to something that is much overlooked—but talk to dieticians and you will increasingly understand the importance that food plays in maintenance of health and recovery.

I do not know whether or not this will make it into the Bill, but will the Minister go back to the department and ask whether his officials might meet some of the people who do a remarkable and much overlooked job, day in, day out, and who these last two years, perhaps more than anybody else in the NHS, deserved the clap, if only people knew what they had done?

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Moved by

[Lord Hunt of Kings Heath (Lab)]

165: After Clause 27, insert the following new Clause—
“Place based integrated care and Primary Care Commissioning Boards
(1) Each place based integrated care board is to be established by regulations made by the Secretary of State for an area within an integrated care board.(2) An order establishing a place based integrated care board must provide for the constitution of the board.(3) Before making, varying or revoking an order under this section, the Secretary of State must consult—(a) the integrated care board in which the place based integrated care committee is intended to operate;(b) the relevant local authority or local authorities;(c) the integrated care partnership in which the place based integrated care committee is intended to operate;(d) the local healthwatch organisations whose areas coincide with or fall wholly or partly within the proposed area of the place based integrated care board; and(e) members of the public living within the proposed area of the place based integrated care board.(4) The place based integrated care board may arrange under a scheme of delegation from the integrated care board for the provision of such services or facilities it considers appropriate for the purposes of the health service that relate to securing the improvement—(a) in the physical and mental health of the people for whom it has responsibility, or(b) in the prevention, diagnosis and treatment in these people.(5) In imposing financial requirements on integrated care boards under Section 223GB of the National Health Service Act 2006, NHS England may give additional directions in respect of placed based integrated care committees.(6) Integrated care boards may give place based integrated care board directions as to any of the functions to which it has given delegated functions. (7) The Schedule to the Public Bodies (Admission to Meetings) Act 1960 (bodies to which that Act applies) shall be amended as follows.(8) After paragraph 1(k), there shall be added the following sub-paragraph—“(l) Place Based Integrated Care Boards.””Member’s explanatory statement
It’s likely that ICBs will set up place based entities which may take many of the key commissioning decisions at the local/Constituency level. This amendment puts place based integrated boards on a statutory basis and subject to Parliamentary oversight and meeting in public.

[Lord Hunt of Kings Heath (Lab)]

My Lords, my Amendments 165 and 166 are rather more focused than the last group. They are probing amendments, rather than me urging that Ministers take the specific wording of them.

One of the rather surprising characteristics of integrated care systems is that they are not defined in the Bill, although people talk about these entities all the time. The statutory parts are integrated care boards and integrated care partnerships, but much of the real power, decision-making and influence potentially lies with non-statutory groups, whose membership, governance and procedures are not regulated. These are placed-based partnerships, provider collaboratives or networks, primary care networks, or companies accredited to the health system support framework. My two amendments would put the first two of these non-statutory groups on a statutory basis. Place-based partnerships are described and supported by NHSE and the Local Government Association as the foundation of integrated care systems. I am very grateful to the policy research unit in health and social care systems and commissioning at the University of Manchester for its very helpful work on this.

In our debate on primary care, the Minister referred to his hope that integrated care boards would

“exercise functions through place-based committees”.—[Official Report, 20/1/22; col. 1852.]

It is pretty clear that many ICBs will delegate considerable responsibility to them. I can see the potential for that, but given their increased responsibilities, there are legitimate questions to be asked about how place-based committees are to be held to account. What are their governance arrangements? Who will serve on them? What are their leadership arrangements? What functions will they be allowed to carry out? The noble Earl, who I think is responding, may say that that is best left to local decision-making. I see that up to point, but rather like with ICB governance, surely some framework and safeguards need to be built around them.

A similar argument might be made in relation to provider collaboratives. Such collaboratives are essentially partnership arrangements involving two or more trusts or foundation trusts. Participation is mandated for trusts providing acute or mental health services. They are expected to be part of one or more provider collaboratives, with discretionary participation of other providers. Such collaboratives may form at supra-ICS level, may partially cover multiple ICSs and may cover multiple places. Additionally, providers may be members of multiple overlapping collaboratives. The collaboratives may contain acute or mental health members only, or may include wider membership such as community providers and primary care. It is anticipated that they will deliver systems’ strategic priorities. The original White Paper, Integration and Innovation: Working Together to Improve Health and Social Care for All, indicates that “significant” delegation to both place level and provider collaboratives from integrated care systems is expected. It is also suggested that, in time, provider collaboratives may play a role in oversight. At Second Reading, the noble Lord, Lord Lansley, said:

“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability”.—[Official Report, 7/12/21; col. 1789.]

This was confirmed on 2 December by the Health Service Journal:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence (although the former may act through their representation on the latter).”


So I want to put a few questions to the Minister. First, what degree of oversight will be exerted over the formation of these arrangements, and by whom? Secondly, if a lead provider contract is in place, or if providers agree how to spend their respective resources as a provider collaborative, who would oversee that arrangement and where would accountability lie in the delivery of outcomes or in the case of poor performance? How would it be ensured that the work of provider collaboratives took into account the interests, aims and work of the wider health and social care community, including the patient voice?

On the latter, the NHS England design framework made it clear that the involvement of patients, unpaid carers and the public is expected at place and system levels, with requirements for public meetings and published minutes in both the partnership and the NHS board. It is not specified how provider collaboratives, where significant decisions regarding the planning and provision of services may be made, will be publicly accountable.

I believe that the Government are going to discuss with noble Lords the formation and governance of integrated care boards and integrated care partnerships. I suggest that that discussion be extended to look at the position of place-based committees and provider networks, because at the end of the day Parliament is entitled to establish some kind of framework and governance and transparency arrangements without going too much into the minutiae of the detail. On that basis, I hope that the Government might be prepared to take away these amendments as part of that broader discussion. I beg to move.

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[Earl Howe (Con)]

I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.

In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.

We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.

On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.

The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—


an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.

The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.

I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.

Amendment 165 withdrawn.

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Moved by

[Lord Hunt of Kings Heath]

174A: Clause 39, page 47, line 17, at end insert—
“(4A) A direction under subsection (1) may be given only in relation to a particular instance, not generally.(4B) A direction under subsection (1) must provide for the direction to cease to have effect on a date specified in the direction, which must be no later than one year from the date the direction was given.”Member’s explanatory statement
This amendment, along with the other amendments to Clause 39 in the name of Lord Hunt of Kings Heath, would reduce the scope of the Secretary of State powers to direct NHS England by adding safeguards and additional exceptions.

[Lord Hunt of Kings Heath (Lab)]

My Lords, we come to Clause 39, which I think is one of the most significant ways in which the Bill will increase the powers of the Secretary of State over the NHS. The clause gives a general power of direction over NHS England in the exercise of its functions. It is a very significant change from the legislation the noble Lord, Lord Lansley, put through in 2011-12. It also is clear that many NHS bodies are, like the Nuffield Trust,

“concerned that these new powers will result in a more politicised NHS, with ministers dragged into micromanaging how local services work.”

I do not think you can consider this clause without considering further clauses in the next group, led by the noble Baroness, Lady Cumberlege, in relation to the power of the Secretary of State to intervene at any time in proposals to change services. In addition, Part 3 of the Bill gives the Secretary of State the power to move responsibilities between several arm’s-length bodies in health and to abolish them. We have already had the CQC debate today, about an increase in the Secretary of State’s capacity for intervention. There is also the question of the regulators, which will be discussed later, which again leads to the individual professional regulators, which, again, the Secretary of State can abolish.

Although I am going to talk about the general direction, I do not think you can do that without thinking about the other accretions of power that the Bill takes. Together, I believe it is a fundamental difference —a change in philosophy—from the 2012 legislation. NHS Providers, with which I have discussed this extensively, is concerned. As it says:

“Clinical and operational independence must be maintained in order to ensure equity for patients within the service; the best use of constrained funding; and clinical leadership with regard to prioritisation and patient care.”


Although I do not want to completely open up this debate, I have to say that the allegations made by Conservative MPs about threats made in the last few days by Government Whips, over the funding of services, are very apposite to how a power direction might be used by Ministers under this Bill.

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[Lord Kamall (Con)]

If my noble friend will allow me, I will have to consider that and write, and make that available to all noble Lords.

We have included a number of exceptions to the power of direction in the Bill to ensure that the Secretary of State is not able to intervene in day-to-day operational matters. For example, there is no intention to use the power to direct NHS England on procurement matters.

On Clause 64, the rationale for removing these duties is twofold. First, the pandemic has highlighted the importance of different parts of the health and care system working together. The clause removes some barriers in legislation that hinder collaboration between system partners. It facilitates collaboration between NHS England and system partners and enables broader thinking about the interests of the wider health system. Secondly, removing the Secretary of State’s duty to promote autonomy will put increased accountability at the heart of the Bill.

Overall, these clauses encompass flexibility, allowing Ministers to act quickly and set direction, while balanced with safeguards and transparency requirements to ensure that they can be held to account. I understand that there are a number of concerns about this group of amendments and others. I am sure we will have a number of discussions, but in the meantime, I ask noble Lords not to press their amendments.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very significant debate, because when the Minister referred to the fact that Ministers needed to have the answers, I realised that the intention is to go back to command and control from the centre. It was quite clear: that is the intention. I think that is very depressing, because I do not believe that the NHS is going to benefit at all. When he said that this will strengthen local accountability—oh no, it will not. There is no local accountability whatever in this structure. I am sorry to say this again, but the fact that the Government are taking local authority councillors out of ICBs is a visible demonstration that this is a centrally driven health service from the Department of Health.