Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Brinton (LD)[V]]

My Lords, I thank Ministers, officials and other Peers, including my noble friends Lord Clement-Jones and Lady Walmsley, and the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Finlay, for the discussions that we have had since Committee. I am particularly grateful for the letter from the Minister late yesterday and the meeting this morning.

I have laid Amendment 60, and I support Amendment 116, tabled by the noble Lord, Lord Hunt, which try to protect only the lawful disclosure of personal patient data. For the purposes of the debate on this group, can we accept that this is shorthand for the confidential personal and medical data currently mainly held by GPs and hospital doctors in England? Amendment 60 would provide that protection in legislation and was laid only because we have not yet had a clear response from Ministers on what is permitted and what the existing rules will be relation to ICBs taking over responsibilities from CCGs because ICBs are new bodies. This is in the light of new Section 14Z61. At Second Reading and in Committee, noble Lords expressed concerns that this new section, which outlines ICBs’ permitted disclosures of information, looks very wide ranging and could, for example, enable a police officer, or another person from a public body, to demand the disclosure of a patient’s personal data.

The new section uses the phrase that ICBs can disclose data where

“disclosure is necessary or expedient”

for the person making the request, but nowhere does it explain how the decision is made by the ICB or what the decision-making process is to release the data and, importantly, where the protection of that personal data sits in the hierarchy of the request of necessary and expedient demands. I have asked repeatedly how this process would work, and in responses at the Despatch Box, in meetings and in letters I have not really had a response that has laid out simply and clearly how this process would work. I shall therefore ask the Minister the following questions in an attempt to clarify how a patient’s confidential personal data will be protected and what the process would be for it to be released to a person making a request. What rules and guidance are available for staff, including those in ICBs, to manage a request from a non-NHS person requesting information other than through a court order? How would it be processed and reviewed? ICBs would not normally be the holder of such data, and new Section 14Z61 does not set out the balance between the rights of the patient and those of the requestor who believes they have a necessary or expedient reason for being sent this data.

We wish to be confident that the structures are in place for when shared care records come into force. Let me be clear: from these Benches, we welcome the principle of shared care records, but the processes need to be in place to ensure that personal data is protected when every part of NHS England would have access to that data. I raise this particularly because just this week Health Service Journal stated that the Secretary of State is speeding up the shared care records project to be complete and implemented by December 2023.

Can the Minister therefore commit that the powers in Section 14Z61(1) will be constrained such that for requests of disclosure that come from outside the health and care system, the ICB will only ever disclose the direct care providers the requester could ask instead? Can he confirm that if an ICB is to become data controller for shared care records, he will return to this clause with primary legislation on such implementation?

I am very grateful for the discussion with Ministers and officials and hope that the Minister will be able to provide your Lordships’ House with a response that demonstrates that patient, personal and confidential data remains secure. I look forward to his response, and I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I congratulate the noble Baroness, Lady Brinton, on the brevity of her remarks, which is a model for Report stage. I think she put this across very well indeed and I very much support her.

My Amendment 116 relates to the containment in the Health and Social Care Act 2012 of the concept of a safe haven for patient data across health and social care, which is required for national statistics for commissioning, regulatory research purposes and patient care. My Amendment 116 simply seeks to keep those statutory protections in place and ensure that NHS England does not take on this responsibility as a result of the merging of NHS Digital and NHSX within the structure of NHS England, which was a recommendation of the review led by Laura Wade-Gery. The noble Lord, Lord Clement-Jones, is going to speak in some detail—but with brevity as well, I hasten to add.

Kingsley Manning, the former distinguished chair of NHS Digital, has spelled out the implications of doing this. He believes the action of NHS England in taking over NHS Digital

“is a significant retrograde step in defending the rights of citizens with respect to the collection and use of their health data.”

In a letter to me, which I received yesterday, the Minister asked me why NHS England would be regarded as less independent, transparent or objective in the exercise of these functions, given its already significant responsibility for some data and the fact that it is a very similar organisation to NHS Digital, as a statutory arm’s-length body. In answer to him, NHS England has many different responsibilities and priorities, so, first, it will clearly not be able to give the same focus to the issue of protecting the safe haven and, secondly, it has many interests which could be deemed to at least be in tension with the concept of the safe haven. That is why I and other noble Lords believe it is important to have the statutory protection already contained in the current legislative arrangements.

I conclude by saying that I am at one with Ministers in wanting to speed up digital transformation in the NHS; after all, we have been dabbling with this over many years. But it has to be done right, and the way to do it right is to be very transparent and rigorous about the protection of patient information.

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[Lord Mackay of Clashfern (Con)]

My Lords, I am an honorary fellow of the two Edinburgh colleges and I strongly support this. It seems extraordinary that these very distinguished colleges which, as has been said, have an excellent record over many years in teaching people not only in this country but in many other countries should be excluded from playing a part in these appointments.

I also support Amendment 80 but would like to elaborate on it a little. I think Health Education England was set up, by the Act that we had before, with some degree of contention. It is a system that is supposed to help determine the future for the health service, with fairly elaborate provisions to that effect, as I remember from that Bill.

It is not at all clear to me how this assessment is going to be done. I see it has to be verified independently, in other words somebody independent of the whole system has to assess it for its accuracy. However, if you need Health Education England to do this for the medical professions particularly, why do you not need something similar to deal with the very complicated system of social care? Therefore, I think the whole system requires to be extended to cover something like Health Education England in relation to the whole area that this amendment covers. The Secretary of State sets up some kind of mechanism for report; it has to be a pretty elaborate mechanism if it is going to work. Therefore, I humbly suggest that something like Health Education England is needed to be the basis on which this assessment arises. Then, of course, you have to provide for the independent assessment of whether it was a good assessment originally. I support this amendment, but I think something more elaborate is ultimately required.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will just speak to my Amendments 111 and 168. On Amendment 111, when the noble Baronesses, Lady Brinton and Lady Masham, and the noble and learned Lord, Lord Mackay, have already put forward the arguments, there is very little for me to say, but the exclusion of the Scottish colleges from the appointment process needs to be rectified. It is an irritant, a hold-up.

In Committee, the noble Lord said that we needed to go through consultation. That was a dreary and negative response. The Scottish colleges have done that. They have consulted and got the support of the Academy of Medical Royal Colleges, NHS Employers and the NHS Confederation. Surely the Minister can just accept this amendment. To simply say that there is no need for it and lots of consultation has to take place is just a ludicrous waste of time and money. This is the time to do it. He should bring an amendment back on Third Reading and be done with it. The noble Lord says that he wants to improve efficiency in the health service. I am afraid I take that with a pinch of salt, because he is just letting officials run riot around him in relation to petty, bureaucratic objections to this change.

Obviously, my other amendment is not major compared to Amendment 80, which is substantial and very important. The noble Baroness, Lady Cumberlege, has really put it forward with great force. Again, I think the noble Lord needs to take a more vigorous approach with the Treasury, because clearly that is where the objection to this is coming from.

My other amendment is about the terrible problem of GP distribution, or the wide variations. I am not going to tempt the noble Baroness, Lady Cumberlege, to come in on the GP issue—but the latest figures, for 31 December 2021, show, for primary care networks in England, the huge variation in the number of GPs. In 24 of the networks, the average list of registered patients for fully qualified full-time equivalent GPs is more than twice the national average. There are five primary care networks where the average is more than three times the national average; these are often in the most deprived areas. No wonder there is an issue of burnout, early retirements and a move to part-time working.

The Government’s response so far is the targeted enhanced recruitment scheme—an incentive for GPs to go into these areas. It is not enough; a much more substantive piece of work is required, and I hope again that the Minister will come forward with a positive response.

[Baroness Jones of Moulsecoomb (GP)]

I shall speak to Amendment 82 in the name of my noble friend Lady Bennett of Manor Castle. I attended Second Reading and made my views felt then, but I have not been able to join the deliberations on the Bill since then because of the pressure of other Bills in your Lordships’ House.

Even I, as someone who does not know very much about medicine, know that the most urgent challenge currently facing our health service is a shortage of nurses. I have been lobbied very heavily by the Royal College of Nursing, because Amendment 82 is its number one priority. It feels that, without a co-ordinated work plan, a coherent forward view and knowledge of exactly how the situation is at the moment, it cannot possibly achieve the sorts of numbers that are needed. There were almost 50,000 vacancies before Covid, and you can imagine the pressure that Covid has put on to the NHS—extreme pressure at completely unsustainable levels, and with staff numbers that are actually unsafe. We all know this, yet Boris Johnson and the Conservatives made big promises at the last election—their manifesto made a promise of 50,000 more nurses—and instantly that number began to unravel, as it included existing nurses who do not quit. That is unclever and unsophisticated number crunching.

I do not understand why this Government will not live up to their manifesto commitments. One reason why I have not been able to speak on this Bill since Second Reading is because of all the other Bills coming through, on which the Conservatives have said that they are aiming to achieve their manifesto commitments. They are actually going rather beyond their manifesto commitments in lots of areas—but the fact is that they are picking and choosing as if from a box of sweets the ones that they prefer.

The Royal College of Nursing represents over 480,000 nurses in health and social care. These are people whose pay requests are constantly ignored—and who constantly have their pay cut; in real terms, it has reduced. Just at the point when MPs are getting very welcome extra pay, nurses hang on by their fingertips. We know that vacancies are also a huge problem, with retirement age approaching for a lot of nurses. Nurses need the certainty of planning, and I do not hear those plans coming from the Government, although this is really their job—to manage the economy and manage society in a way that benefits everybody. Clearly, if the NHS fails in any area, that does not benefit anybody at all.

I argue very strongly for Amendment 82, and I just hope that the Government wake up in time to see how necessary it is.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, would the noble Lord be surprised to hear the rumours that the Treasury has prevented the Minister from responding in a positive way to this amendment?

[Lord Stevens of Birmingham (CB)]

We await insight from the Minister himself on that point; it is indeed, of course, what the chairman of the cross-party Health and Social Care Committee, Jeremy Hunt, suggested in the House of Commons. We have an immediate litmus test before us, which should help us answer the question posed by the noble Lord, Lord Hunt. As your Lordships will remember, we noted in Committee the fact that, just 10 weeks before the start of the financial year, when it should have been planning 10 years out, Health Education England still did not have its operating budget for the year ahead. My understanding—I hope to be corrected by the Minister—is that, certainly, as of 10 am, Health Education England still does not have its workforce operating budget for just 29 days’ time. That is precisely because of a set of behind-the-scenes discussions—no doubt courteous, but nevertheless fervent—between the Department of Health and Social Care on the one hand and the Treasury on the other.

Health Ministers are more sinned against than sinning on this, frankly, and in that sense this amendment will strengthen their hand. I suspect that, privately, they will welcome the mobilisation of your Lordships to support their negotiating case. The very fact that Her Majesty’s Government oppose this amendment is proof positive that it is needed. We need it because we need to look beyond the end of our noses. To vote against this amendment would be to cut off our noses to spite our faces.