Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) (Amendment) Regulations 2017

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Thursday 30th March 2017 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for explaining the intent of this statutory instrument. The Opposition supported the transfer of public health functions from the NHS to local government, including those for children from birth until the age of five in public health services. Indeed, that was the only bit of a lamentable Act of 2012 that we did support. We also support the provision of a universal health visiting service and the prescribed reviews, which are elements of the healthy child programme. The noble Lord has said that this decision was supported by the outcome of the PHE review, and I would like to come back to that.

I want first to refer him to the question of resources. He mentioned the changes in local government funding but he will be aware that, overall, the Government’s record in funding public health services has been lamentable. In February 2017, the Department of Health told local authorities that an average 3.9% real terms cut to health service budgets per annum would take place until 2020. This is a large reduction, as it accumulates. According to the King’s Fund, which has done an analysis of the impact that has had, as a result of these reductions stop-smoking services and interventions have lost 25% between 2015-16 and 2016-17, while other areas such as the health check programmes and sexual health services lost 7% to 14% of their funding. As the Local Government Association said, given that the Government issued a firm commitment to the NHS five-year forward view, with prevention put very much at its heart, to then make significant cuts to the public health service budget over the next five years sends entirely the wrong message and could undermine the objectives that we all share to improve the public’s health and keep pressure off the NHS and adult social care.

Recent work by the King’s Fund on sustainability and transformation plans—an Orwellian phrase, if ever there was one—points out that what is actually happening on the ground is going in the opposite direction to that which was set out in this plan. It is the same in public health. I would therefore like the Minister to explain a little more about how the Government justify the reductions in funding for public health services.

I refer the Minister to table 29 on page 58 of the report by Public Health England. It is a summary of written feedback from professional representative and membership organisations. Comments were made by the Society of Local Authority Chief Executives on the issue of the mandation of services, about which clearly local authorities have some reservations. It suggests that the Government collect and review all mandated public health services next year, including health visiting, when the overall position on local government funding and business rate reforms is clearer. In a sense, the Local Government Association has made the same request. Will the Minister inform the House whether the Government are going to respond to that?

On the outcome of services so far and the PHE review, it says that there was a statistically significant increase in the eligible population reach by a universal service during 2015-16. It states also that, largely, there is a positive national picture of progress with statistically significant improvement observed in many relevant outcomes over the lifetime of the national health visiting programme. However, it points to some large local variation and trends in the rates of breastfeeding, which it says are disappointing. It points also to the fall in the number of health visitors in employment in 2015-16. Will the Minister comment on the issue of disappointing rates of breastfeeding on the one hand and the fall in the number of health visitors on the other? What action do the Government intend to take on that?

[Baroness Walmsley (LD)]

My Lords, I am delighted to support these regulations because I am an enormous fan of a universal health visitor service, and in particular the healthy child programme. Our economy is never going to keep up with the demand for health services unless we pay more attention to the issue of prevention. That really is the public health agenda. Any doctor will tell you that you really must lay the foundations for a healthy body, lifestyle and habits in the early years or you will get illnesses later on. The review of the programme so far has been very positive. As the noble Lord, Lord Hunt, said, there have been significant improvements in the populations reached. However, we will not see the true benefit of this programme until we are years down the track and find that those young children who have been given a healthy foundation grow up to have fewer of the terrible but preventable chronic diseases that are costing the country so much.

I am very proud of the coalition Government’s vision of improving the health outcomes of children, young people and their families. Transferring the responsibility to local authorities was part of that: it gives them the chance to combine services, right up to the age of 19. However, as the noble Lord, Lord Hunt, said, there are serious questions to be asked. The first, of course, is about resources. Although these services are mandated, and although the Minister may say that the money has been ring-fenced, budgets have been cut and are going to be further cut. Local authority councillor friends of mine tell me that it is getting more and more difficult for local authorities to provide even those services which they are mandated to provide because things are getting so tight financially. I hope the Minister can give us some encouragement on that, although I somehow doubt it.

The other question on resources is about people. We have heard from the Minister about the number of health visitors in training. Are they going to be enough to serve rising demand? We have a rising population and a lot of additional young people and families who require services. A universal service is terribly important because you do not just get health problems among the most deprived. However, there is a great deal of poverty in this country and the need for these services is growing. How confident is the Minister that we will have enough sufficiently trained nurses, given the stresses on all health service staff and given that so many people are leaving and retention is getting more difficult? Are we going to have enough people?

Are there any plans to extend these services a little further up the age range? I am particularly concerned about the large number of children who are starting school between the ages of four and five already overweight, obese or with poor eating habits. So, although the healthy child programme and the reviews that are mandated here in these regulations go up to the final check at two to two and a half years, it is really important that we do it again just before the child goes to school, because at that point they are already at a disadvantage. Many of these children are from a disadvantaged background and sadly these problems occur more frequently in those backgrounds. They get to school and they are already developmentally a good deal behind children from more advantaged backgrounds. I think the proof that we have had over the few years that this programme has been in place is sufficiently convincing to tell us that perhaps we ought to extend it a little bit further.

Nursing and Midwifery (Amendment) Order 2017

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Tuesday 28th February 2017 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I understand where the noble Lord is coming from. I would never want to propose a situation of a silo, but there are instances where it is necessary to give—I do not think that “protection” is exactly the word—some kind of underlining to the importance of a particular profession. The noble Baroness, Lady Cumberlege, is here, and it seems to me that the fact that she had to undertake a review recently is a visible sign of the problems that we have had in getting midwifery issues to the top of the table. I am not seeking to create a whole hierarchy of new directors at a cost of money and to silo it, but I think that we have some problems at the moment.

This issue was raised in the other place when the order was debated there. I actually think there is a case for there to be a chief midwifery officer at government level. In the other place, the Minister said that the Government consider that,

“the chief nursing officer is the professional lead for both nursing and midwifery and we intend that to continue. That role is supported by the head of maternity in NHS England, which will continue to be the case. … There will be a regional maternity lead and a deputy regional maternity lead in each of the four NHS England regions”.—[Official Report, Commons, Delegated Legislation Committee, 22/2/17; cols. 9-10.]

I must say that I do not like the term “maternity lead”, as it seems to understate and undermine the position. I know that you cannot say that everything is in the title, but “maternity lead” to me means a lower status—it is quite clear to me that you use “maternity lead” to indicate a lower status.

Let me be clear that the current head of midwifery in NHS England is a distinguished and highly respected midwife—there is no question about that—but I think that there is a problem. What does “head of midwifery” mean? Why do we not use the word “director”? There is an issue about authority and status. At the end of the day, as I understand it, the head of midwifery is the head of the profession in England, and I think that NHS England should recognise that in that person’s title and position.

It is very important that midwives as a whole look to the chief midwife for that essential professional leadership. It is clear from what the NMC has said, and from the order before us, that the NMC cannot provide that professional leadership. It is there to regulate, so we need strong professional leadership. I hope that the Minister will give this some further consideration. I am not seeking to create a whole new edifice; I am concerned about the voice of midwifery not being heard at the highest level.

That brings me to the proposed abolition of the midwifery committee. Again, I am the last person to believe that, if you have a committee, everything is well. Of course, I understand entirely why the NMC does not like the statutory midwifery committee. I completely get that; no chief executive of any body ever likes to have a statutory committee, particularly if the other bits of the area that it regulates do not have one. We all understand that, but you have to look at the fact that the NMC currently has 640,000 nurses on its register and 40,000 midwives. Inevitably, issues to do with nursing are bound to dominate the NMC consideration. So the benefit of having a statutory committee is again to give some kind of protection and recognition that midwifery needs to have some consideration within this very large regulatory body.

As a result of discussions, for which I am grateful, the NMC has given various assurances about the strategic midwifery panel and the number of advisers that will be appointed. Can the Minister ensure that Parliament is kept informed of the work of the NMC and, in particular, about how it will ensure that it is fully apprised of midwifery matters by the new arrangements? He said earlier that the NMC would keep these matters under review—and I think that he referred to the new disciplinary procedures—but I took that to mean these arrangements in general. “Under review” falls within governance and quango-land; it is not really a high status. Could he ensure that, at the very least, the NMC reports to Parliament on a regular basis on how it ensures that midwifery issues are fully heard by the council?

In conclusion, in moving this amendment I do not seek to criticise the NMC. I believe that the current chief executive inherited a mammoth challenge. I have been impressed by the progress that she has made, but the distinctive role of midwifery should be recognised, particularly at a time of extreme pressure on the profession. It is important that we do not dissipate its voice. I would welcome some reassurance from the Minister. I beg to move.

[Baroness Walmsley (LD)]

My Lords, midwives have a very special role in the local medical and nursing team. They should be seen as an integral part of that team; their role should not necessarily end at the point of birth. I know from many cases that the personal relationship built up between a mother and her designated midwife during the antenatal period can be enormously valuable at a time when she is very vulnerable. The mother often has the confidence to confide in the midwife if she has any health or personal security worries. I am talking here about domestic abuse, which so often occurs when a woman is pregnant. It is important that this relationship is nurtured and nothing gets in the way of a midwife adding all the value of which she or he is capable. I would hope that in future there would be more integration between the midwife, the health visitor and the district nurse. There is a lot of potential for that.

No debate about midwives and nurses is complete without talking about numbers. The noble Lord, Lord Hunt, mentioned rates of attrition. A couple of weeks ago, at Oral Questions, I asked the Minister how data are collected on the rate of attrition. It is not consistent. It makes it very difficult to know which areas of the country are good at keeping their midwives and nurses and which are not, so that we can see and spread best practice.

We have an enormous number of nurses from EU countries and, indeed, from other parts of the world. Brexit is looming and there is uncertainty—which we debated in this House yesterday and on other occasions—over the status of people from other EU countries working here. At the same time, we have a Government who are trying to reduce their immigration rates to a maximum of 100,000 a year, which could affect midwives coming from countries outside the EU. This is a big concern and we must not ignore it when we are talking about regulation.

I turn to the order before us and the amendment in the name of the noble Lord, Lord Hunt. We on these Benches are broadly supportive of the order, which will bring more flexibility into the regulation of nurses and midwives, in line with the way in which the GMC and other medical regulators are able to carry out their fitness-to-practise processes. It is right that the regulator should be able to deal more proportionately with cases where there is a finding of “no case to answer” and where the person concerned accepts that the practice in that case falls short of what should be expected. There is currently no power for examiners to consider alternative ways of resolving these cases. However, the Secondary Legislation Scrutiny Committee raised some questions about the new power to issue a warning. It accepted that this power is permissive but felt that, if examiners are to use the power to give a warning, and guidance is intended to direct users as to how terms should be interpreted, then the detail of the threshold for issuing a warning should either be in statutory guidance or in the order. What is the Government’s response to the committee’s suggestion?

Turning to the role of midwives in the governance of the NMC, it is important that the particular role of midwives is both recognised and catered for. However, if you are taking away the role of development support and supervision, and separating it from regulation, you do not necessarily need the existing structure of the midwifery committee. It is important and right that regulation and supervision are separated. I understand that there is to be a new midwifery panel which should be consulted and that supervision is to be replaced by new support and supervision structures in the four countries of the UK. There is also to be a new senior midwifery adviser. I take the point of the noble Lord, Lord Hunt, about status, which is important, particularly to the morale of the midwifery profession. Concerns have been raised that the new structures for support and supervision will not be ready in time for the changes at the end of March. I understand that, of the four nations, only Wales is ready to take over. What can the Minister tell us about the state of readiness of the other three nations?

I recognise that the new structures that the Government are proposing present a challenge to the midwifery profession. This is right, in response to the reviews discussed earlier. There are concerns that the new structures within the NMC cannot, for example, put midwifery matters on the council’s agenda. Can the Minister assure us that specific midwifery issues will be appropriately dealt with under the new structures?

The effectiveness of the proposed new structures will take a while to be demonstrated, so it is right that we seek these reassurances at the outset. In the end, patient safety must be at the forefront and that depends on the quality of development, training and supervision of the midwives. It is a challenge for the profession, and it is only right that we give midwives the opportunity to demonstrate that they can rise to that challenge. However, it is right that the powers and structures of the regulator are up to date and able to cope with the workload in an appropriate manner at a time when, as the noble Lord, Lord Hunt, said, the demand is rising.

Health Service Medical Supplies (Costs) Bill

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Report stage (Hansard): House of Lords
Tuesday 7th February 2017 Lords Chamber

[Baroness Walmsley]

My Lords, as I mentioned in the debate on Amendment 3, I support this amendment because it gives the Secretary of State a bit more flexibility to take account of the specific circumstances of a company with very high fixed costs, in the interest of making sure that we have security of supply and patient access to the particular products that it produces. I do not think it undermines any of the objectives of the Bill in any way, and because of that, I hope that we will hear something encouraging from the Minister.

[Lord Hunt of Kings Heath]

My Lords, in Committee the noble Lord said that he did not think that biosimilars should be excluded from the voluntary or statutory pricing schemes, as competitive tendering would not generate sufficient levels of price reductions. I had a note from one of the companies involved, Sandoz, which says that one of the issues here, alongside the fact that fierce competition is already driving significant price reductions for the NHS, is that development costs of generic medicines do not compare with those of biosimilars. Those costs can be up to 100 times those of generic medicines, partly because of the licensing process and the time needed for development. I hope the noble Lord will be able to address that and explain how the Bill aligns with recent NHS policy, which has expressed support for the uptake of biosimilar medicines, particularly through the intention for specialised services commissioning. The noble Lord’s comments in Committee on biosimilars caused some disappointment, and if he could respond more positively now that would be helpful.

Health Service Medical Supplies (Costs) Bill

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 25th January 2017 Grand Committee

[Baroness Walmsley]

My Lords, the next two groups of amendments relate to the concerns expressed by the Delegated Powers and Regulatory Reform Committee in its 12th report of the 2016-17 Session. Amendments 49 and 51 refer to Clause 6, which inserts a series of new sections into the NHS Act 2006 authorising the Secretary of State to disclose information provided by suppliers of health service products. New Section 264B(1) lists the bodies to which information may be disclosed. It also allows the Secretary of State to prescribe in regulations further persons to whom information may be disclosed. We have already heard from the noble Lord, Lord Hunt, about Parliament’s inability to have much effect on that.

There are two powers: a specific power to prescribe bodies which appear to represent manufacturers, distributers and suppliers of health service products and a general power to prescribe any other person. In his Amendment 50 the noble Lord, Lord Hunt of Kings Heath, has attempted to place in the Bill the specific organisations that represent UK producers. This is reasonable enough, although I know that Ministers hate having lists in Bills. However, it is the general power that the Delegated Powers Committee objects to. As the noble Lord, Lord Lansley, said a few minutes ago when talking about Amendment 32, disclosure under new Section 264B may involve confidential and commercially sensitive information, even though the purposes for the disclosure are limited by subsections (2) and (3). The committee felt the general power to be inappropriate. No explanation of the need for this power was provided to the committee in the memorandum.

Amendment 49 therefore seeks to delete the general power in subsection (1)(l) of new Section 264B to enable the Minister to justify why the Secretary of State would need such a broad and wide-ranging power. Amendment 51 is consequential. Can the Minister say why it is not feasible to specify in the Bill the further bodies to which information may be disclosed, or even the groups of people or organisations? After all, in subsection (1)(k)—in lines 7 and 8—the Government specify representative bodies of producers. Why not specify other groups at the end of the subsection? This appears to me to represent a power too far, and the committee feels the same. What is this power for and how is it to be used? I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have a little list, which is a bit bigger than the Minister’s list.

Mental Health and NHS Performance Update

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Monday 9th January 2017 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for repeating the Statement, and welcome him to the Dispatch Box.

Of course we welcome any announcement that will help to improve mental health services in this country, as indeed we welcomed such announcements exactly 12 months ago, when the then Prime Minister made similar promises. But it seems that the more Prime Ministers promise, the less the NHS delivers. I remind the Minister that the Government’s record actually shows that we now have 6,600 fewer nurses working in mental health than were inherited. We have also seen a large reduction in mental health beds. I remind him of the report and analysis by YoungMinds just before Christmas, which showed that local children’s mental health budgets were raided in order to plug funding gaps elsewhere in the NHS. The survey revealed that when clinical commissioning groups were asked whether the extra £1.4 billion pledged over five years in 2015 for child and adolescent mental health services was going to be spent on CAMHS, nearly two-thirds of CCGs that responded said they used some or all of the money to backfill cuts or spend on other priorities. This has been replicated on a number of occasions when it comes to pledges made by the Government in relation to mental health. The fact is that they simply cannot guarantee that the NHS will deliver. What certainty do we now have that the pledge made today by the Prime Minister is going to be implemented, given the lamentable record of NHS England and the NHS in responding to similar pleas in the past? Why did the Prime Minister refuse to say this morning that she would ring-fence this money to ensure that it indeed went to the services that she said it had to go to?

I turn to the winter crisis. This morning the Secretary of State said that things have been falling over in only a couple of places, but the reality is that one-third of hospitals declared last month that they needed urgent help to deal with the number of patients coming through the doors; we know that accident and emergency departments have turned patients away more than 140 times; 15 hospitals ran out of beds in one day in December; and several hospitals have warned that they cannot offer comprehensive care. We know that we are going back to the dreadful days of the 1990s, with elderly patients left languishing on hospital trolleys in corridors, sometimes for over 24 hours.

Whatever the labels that charities use, whatever the semantics, the Government cannot deny that the NHS is facing a severe winter crisis, the culpability for which lies firmly with the Government. Does the Minister agree that it was a monumental error to ignore the pleas for extra support for social care in the Autumn Statement? Will he now support calls for the £700 million of social care funding allocated for 2019 to be brought forward to help services to cope this winter? Will he urge the Chancellor and his right honourable friend the Prime Minister to announce a new funding settlement for the NHS and social care in March’s Budget?

I listened with great care to the remarks the Minister made on the four-hour A&E target. The implication is that the Government are running away from the target and are now going to use different definitions for who is going to be expected to have that target met and who is not. I remind the Government that in 2010 they inherited a 98% rate for the four-hour target being met, which the NHS had achieved. Under his Government, the NHS has reduced its achievements in A&E consistently, year after year. As far as I can see, the Secretary of State’s weasel words today about the four-hour target show that the Government are now admitting that they will never achieve that target again. What are the Government doing? We know they are going to change the target and the definitions. On that subject, what guidance has the Minister taken from the Royal College for Emergency Medicines that the so-called new standard is actually appropriate?

I turn to the deaths of two patients at Worcestershire Royal Hospital. They had been waiting on hospital trolleys. Will Ministers lead an inquiry into those deaths? Are they aware whether these were isolated incidents? When does the trust intend to report back on its own investigation?

I have been reading today the draft Herefordshire and Worcestershire sustainability and transformation plan, which Ministers point to as a solution to all their problems. The problems of the Worcestershire acute trust have been known for many years—it simply does not have the capacity to deal with the flow of patients into that hospital—yet the sustainability and transformation plan actually plans for fewer beds in that trust over the next three to four years. How on earth can the Government justify reducing the number of beds in that trust when it is under such tremendous pressure because of a lack of capacity?

There is no doubt that much of the current crisis could have been avoided. Hospital leaders, council leaders, patient groups, MPs across the Commons and noble Lords all urged the Chancellor to give the NHS and social care additional resources in the Autumn Statement, but those requests fell on deaf ears. We now see the dismal consequences. The Government need to do very much better.

[Baroness Walmsley (LD)]

My Lords, I also welcome the Minister to his first appearance in his new role. I add thanks from these Benches to all the health and care staff who gave up their Christmas holidays to care for patients.

We welcome the Prime Minister’s attention being turned to mental health, and the emphasis on the roles of schools and the workplace. The NHS of course cannot do the job alone. However, many people are not getting mental health treatment, getting it late, not getting the right treatment or getting it many miles from home, which prevents their families and friends supporting them. As the noble Lord, Lord Hunt, said, the money is not getting through to front-line mental health services, despite the £1.4 billion secured from the previous Chancellor by my right honourable friend Norman Lamb when he was coalition Health Minister. Why is that?

Is it not true that if there were not a shortage of funding for other services, CCGs would not be tempted to raid the mental health budget? That is what they are doing. FOI requests by Young Minds, as has been mentioned, show that half of CCGs are using money allocated to children’s mental health to prop up physical health services, which are also in crisis. That is wrong. A recent survey of child and adolescent psychiatrists show that a whopping seven out of 10 of them thought that mental health services for children and young people were inadequate. By any calculation, that is a national disgrace.

Will the Minister ring-fence the money that has been promised to mental health and improve transparency with the publication of the mental health dashboards, which are meant to show how much is being spent on mental health services in every area and on what services? The £1 billion that has already been announced for adult mental health is back-loaded to the end of the Parliament. Will the Government bring it forward to deal with the current crisis? Will they at last acknowledge that there must be a cross-party discussion about how to raise the money needed for health and social care? Will they ensure that the lessons learned in Manchester about integration are spread to other areas? That could save money and provide better service. Will the Government provide more funding for social care? As the noble Lord, Lord Hunt of Kings Heath, has said, without that, nothing will improve.

To return to mental health, I acknowledge that funding is not the whole story. The main point of the report from the values-based CAMHS commission, chaired by my noble friend Lady Tyler of Enfield, was that there needs to be a shared set of values and a shared language across all those involved with children and young people’s mental health, thereby enabling the system to have widespread change and a far more joined-up response to mental health issues. Does the Minister agree with that? How could it be achieved?

Children and Social Work Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Report: 1st sitting: House of Lords
Tuesday 18th October 2016 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I will speak to my own amendment and perhaps come back when we have had a debate on the other amendments in the group. This takes us back to an interesting discussion that we had in Committee about fostering and the risk that fostering will be placed in a lower hierarchical category in relation to the provisions of the Bill. Let me say at once—if the Minister is paying attention—that I welcome the issue of the clause, looking at the long-term needs of the child, and developing a plan that will assess their current and future needs and a permanent plan to meet those needs. We all agree that this clause places these issues at the forefront of decision-makers’ minds when assessing the care plan. Clearly, it is important to ensure that all permanent options benefit from this clause. That is why all options should be written explicitly into the Bill.

What is concerning, particularly to those involved in fostering and the fostering network, is whether we can get clarity in the law to avoid some options, particularly adoption, being seen as more important than others in a hierarchy of care. I do not at all underestimate the importance of the need to encourage more adoptions. I have no doubt that this is the right way to go. But it should not be at the expense of prioritising adoptions over fostering.

A legal framework is in place. A legal definition for long-term foster care was introduced subsequent to the passing of the Children and Families Act 2014. The Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 amended the Care Planning, Placement and Case Review (England) Regulations 2010 by providing for the first time a legal definition of long-term foster care and setting out the conditions that must be met. This step rightly strengthened the importance of foster care as a permanent option for children and young people in care.

As the Government have placed long-term foster care on a legal footing, the opportunity should be taken in this legislation to include it as a permanent option. The Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review June 2015 includes reference to the range of options for permanence and this could be used as a basis from which to amend new subsection (3B) to reflect the range of options for permanence that already exist in law—all of which can deliver good outcomes for individual children.

In Committee in the House of Lords, the Government said that the amendment would duplicate wording in Section 22C of the Children Act 1989 that sets out how looked-after children are to be accommodated by local authorities. That is something that I would like to clarify with the Minister. The fostering network disagrees with this because it believes that Section 22C(6) of the Children Act 1989 does not mention long-term fostering and the term has no legal meaning prior to the Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 that I referred to. Section 22C(6) specifies only the range of ways in which a looked-after child may be cared for, including foster placements. It does not focus on permanence. As the Bill stands, Clause 8 is inconsistent with the statutory guidance on permanence planning. My amendment would ensure that all permanence options were recognised with equal status across all relevant primary and secondary legislation. We should bear in mind that currently three-quarters of looked-after children are fostered, so this is an important question.

I understand that I have raised some technical issues, but the core importance of this is the need to avoid a hierarchy of care. In addition to responding to the technical questions that I have raised, if the Minister can say that there is no intention of having such a hierarchy, it would indeed be very helpful. I beg to move.

[Baroness Walmsley]

My Lords, my Amendment 31 in this group would add the child’s wishes and feelings to the list of matters that must be included in the local authority’s Section 31A plan under the Children Act 1989. Permanence has just been mentioned by the noble Lord, Lord Hunt. The permanence provisions of a care plan must be considered by a court before a care order is made—or in some cases not made. The court must additionally consider contact arrangements and the views of parties to the proceedings about contact. The child is a party in care proceedings, so his or her views would be elicited about contact. To ensure that their wishes and feelings are elicited and reported on all aspects of permanence, it is necessary to specifically include this in Clause 8.

The Department for Education has defined permanence as follows:

“Achieving permanence is multifaceted. It requires children to experience not only physical permanence in the form of a family they are a part of and a home they live in but also a sense of emotional permanence, of belonging and the opportunity to successfully build a strong identity. Legal status may also impact on children’s sense of permanence”.

Without an explicit and specific requirement, it would be quite possible for the part of a care plan dealing with permanence to omit the child’s wishes and feelings about the relationships they value, their sense of belonging and stability and their hopes and dreams for the future. This is not to give undue weight to the child’s wishes and feelings or to place unrealistic expectations or pressures on them; it is just to ensure the child’s rightful place at the centre of proceedings as a human being whose lived experience, wishes, feelings and perspectives should be at the heart of the court’s consideration.

In Committee, the noble Lord, Lord Nash, said that,

“this principle is already captured in existing legislation”.—[Official Report, 6/7/16; col. GC 214.]

However, he referred to provisions in Part 3 relating to local authority consultation duties in respect of the children they look after. This issue is separate from the court’s consideration of the permanence provisions of the child’s care plan. It could be argued that the court’s duty in respect of the permanence provision coalesces with its general duty under the welfare checklist to have regard to the ascertainable wishes and feelings of the child concerned—considered, of course, in the light of his or her age and understanding. However, this is one of many aspects of the checklist; there is a whole long list of things. My amendment seeks to ensure that the local authority seeks and reports on the child’s wishes and feelings specifically on the permanence arrangements, in addition to their wishes and feelings on any other matter affecting them.

Statutory guidance on care planning already refers to the child’s wishes and feelings, so placing the child’s wishes and feelings into this part of the legislation accords with national policy, professional standards and children’s rights under the UNCRC. So I hope that the Minister will be minded to accept the amendment.

Children and Social Work Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Wednesday 13th July 2016 Grand Committee

[Lord Hunt of Kings Heath]

My Lords, noble Lords will be reassured to hear that I do not intend to speak to every clause; I just want to raise points on three of them.

The first concerns Clause 22 and the question of fees, and I do not want to repeat what has been said. Obviously, setting up a separate regulator will be more expensive than regulation continuing under the HCPC. I think that the implication of what the noble Lord, Lord Nash, said was that it will be done without increasing fees for social workers. However, is there not a general rule in government about regulators having to be self-financing? We have dealt with various orders on increased fees in relation to health regulators because of the requirement on those regulatory bodies to break even, so is the Minister right in saying that fees will not have to increase? There may be some legislative provision to cover this. Is there not a requirement that a regulator can start with a subsidy from a central government department but, in the end, it has to consume its own smoke? I suspect that the noble Lord will not be able to respond immediately but, on Report, we would like a much more explicit statement about what will happen to fees in the future.

My second point relates to a question about offences raised by the Constitution Committee in relation to Clause 34. The committee says:

“The Clauses to which the offences will relate—Clauses 22 and 23—contain little detail on the face of the Bill but will themselves need to be defined and implemented by regulations … From a constitutional point of view, the creation of criminal offences, whether or not punishable by imprisonment, should be subject to proper and full parliamentary scrutiny. The House may wish carefully to consider how it can appropriately scrutinise the creation of criminal offences which are not only themselves undefined but which will relate to other legislative provisions that are also still to be delineated”.

I can imagine that if this Bill ever got to the attention of our legal experts in the House, they would express very great concern about the use of what are basically Henry VIII powers to create new offences. I do not think that it is good enough for this change to be brought about just through regulations.

Thirdly, I want to refer to the Delegated Powers and Regulatory Reform Committee, which says:

“Clause 35(3) allows social worker regulations to include provisions which themselves would confer a further power to make, confirm or approve subordinate legislation. It says nothing explicitly about the person or persons on whom subordinate legislation making powers may be conferred, or about the matters to which the subordinate legislation might relate. We assume the intention is that the subordinate legislation making powers may be conferred on the regulator or a Minister of the Crown, and that they can relate to any matter dealt with in Chapter 1 of Part 2”.

It goes on to say:

“We were disappointed”—

House of Lords committees express angst by expressing disappointment—

“that the Department failed to provide any explanation for including the subordinate legislation making power in clause 35(3), particularly given its breadth, the lack of any explicit constraints on how it might be used and the absence of any requirement for Parliamentary scrutiny”.

I know that the Government have now responded to the Delegated Powers Select Committee but can the noble Lord place on the record their response to this? Obviously, it raises a question about whether this is an appropriate use of secondary legislation.

[Baroness Walmsley]

I share the concerns of the noble Lord, Lord Hunt, particularly his first point about the fees from social workers. Those of us who speak to the health portfolio will know well that we have had concerns expressed to us, particularly by people who run small care homes, about the CQC fees being increased very considerably recently. The reason for that is the Government’s policy that regulators should be self-funding, which is an example of exactly the policy that the noble Lord has just queried. The question that he asked is: does this apply to the new regulator proposed by the Government for social work? If it does, then reassurances that fees will not rise are perhaps a little disingenuous.

Children and Social Work Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Wednesday 6th July 2016 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

Clause 8 extends the definition of permanence provisions as it appears in the Children Act 1989 so courts will also be required to consider provisions in the plan that set out the impact on the child concerned of any harm they have suffered or are likely to have suffered, their current and future needs and the ways in which the long-term plan for the child’s upbringing would meet all those current and future needs. This is an important provision and one that we are very glad to see within the Bill.

My Amendment 89 wants to encourage the Government to take this a little further by extending the circumstances under which permanence provisions will operate to embrace long-term foster care. There are two reasons for seeking to do this: first, to ensure that we have legal clarity—I will be interested to hear the noble Lord’s response on that—and secondly, to avoid some options, particularly adoption, being seen as more important than others in the hierarchy of care. This is particularly important in relation to long-term foster care.

My understanding is that a legal framework is already in place to allow this to happen. Since amendments to the permanence provisions were made in the Children and Families Act 2014, a legal definition for long-term foster care has been introduced. The Care Planning, Placement and Case Review (England) Regulations 2010 have been amended to introduce a new definition of a long-term foster care placement, and set out the conditions that must be met. This step rightly strengthens the importance of foster care as a permanence option for children and young people in care. As the Government have therefore placed long-term foster care on a legal footing, the opportunity should be taken in this legislation to make a link. I remind the Government that The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review of June 2015 includes reference to the range of options for permanence and could be used as a basis on which to amend subsection (3B) of the Children Act to reflect the range of options for permanence that already exist in law, all of which can deliver good outcomes for individual children.

Since three-quarters of looked-after children are fostered, surely any change to improve the outcomes for children in care needs to concentrate on those children as well as children who may be adopted. I beg to move.

[Baroness Walmsley (LD)]

My Lords, I have Amendment 90 in this group, which adds,

“the child’s wishes and feelings”,

to the list of matters that must be included in the local authority Section 31A plan. This is the plan that must be in place before a court can consider whether to make a care order.

There are many issues on which the child may have particular wishes and feelings, such as who is to foster them, where they are to live and what contact they are to have with members of their family and others. The inclusion of the child’s wishes and feelings is vital and should be uncontroversial. The court is required under the welfare checklist to have regard to the ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding. Therefore, placing local authorities under a similar duty will ensure that family judges have access to the information they need to determine what is in the child’s best interests. Local authorities are subject to comparable duties when undertaking child protection inquiries, assessing need and making decisions about a child they are looking after or proposing to look after. Independent reviewing officers are required to ensure that a child who is subject to a care order has been informed—again, in accordance with his or her age or understanding—of the steps he or she can take to challenge the order.

It makes no sense to arrange for children to be assisted in challenging their care order without any parallel requirement that they be encouraged to express their wishes and feelings prior to such an order being made. It is like closing the stable door after the horse has bolted. That is the basis of my argument for Amendment 90.

--- Later in debate ---

[Baroness Walmsley]

I am grateful to the Minister, and I am particularly grateful to the noble and learned Baroness, Lady Butler-Sloss, for her legal advice. I wonder whether we can sort this matter out. Perhaps the Minister can review the issue we have just discussed, and if he is still convinced that we do not need this amendment he can give us chapter and verse about exactly why that is. As far as I can tell, it is needed to make sure that we do not waste the court’s time. If the court gets the information from the local authority about the child’s wishes and feelings, it does not have to get it itself. We all want to save the court time. Perhaps the Minister could undertake to do that.

[Lord Hunt of Kings Heath]

That was a very helpful intervention from the noble Baroness, Lady Walmsley, and I am grateful to the Minister for setting out the intention of this clause which—I am sure I speak for all noble Lords—we very much support. The noble Lord clearly believes that current legislation covers the substance of the points raised, though that is subject to further clarification. Clearly we will have time between now and Report to consider this further.

There are also issues relating to practice. I understand what the Minister said about him, his department and Ministers being pro-adoption, and the noble and learned Baroness, Lady Butler-Sloss, equally made the point that it is right to encourage adoption. However, as my noble friend Lord Warner said, there is a risk of a hierarchy of options in which long-term foster care cannot always be supported in the way it should be. I worry that when this gets down to the level of children’s services there is a risk of perverse behaviour because of a belief that adoption is always to be preferred to foster care. I would particularly welcome further clarification and reassurance on that area.

On the issue of the child’s wishes and feelings, again, I am sure we will sort out the legal position. What has come from the debate is that in the experience of some of the courts, local authorities do not always seem to have found out the child’s feelings or wishes or to have taken proper account of them. Even if the legal position is okay—and obviously there are some concerns about that—some practice within children’s services needs to be improved.

Finally, my noble friend Lady King raised NHS mental health services. We will have further debate on this because we will be debating an amendment that looks at the problem of children covered by this legislation being sent for out-of-area placements. This is a horrendous problem, particularly for adolescents with mental health issues. Sometimes those young people can find themselves being sent to places 100 or 150 miles away. The NHS has some strong responsibilities here, which at the moment it is not discharging. I listened with great interest to what the Minister said about the work between his department and the Department of Health on care pathways. It is to be welcomed, but it is in the context of long-term consistent failure within the NHS in relation to mental health services for young people. Again, I hope we will have a further opportunity to debate that. This has been an excellent debate, and I beg leave to withdraw my amendment.

Tobacco and Related Products Regulations 2016

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Monday 4th July 2016 Lords Chamber

[Lord Hunt of Kings Heath]

No doubt we will of course be able to see in the future what a Government would do in the event of Brexit. However, to be fair, at the moment we are debating these regulations, which have come into force. I have attempted to signal some of my concerns that this would have a negative impact on the use of e-cigarettes without detracting from the overall regulations. I beg to move.

[Baroness Walmsley (LD)]

My Lords, I was most interested in the speech made by the noble Lord, Lord Callanan, and in particular his gallant admiration of his colleague the Public Health Minister, who in my experience has usually been quite on top of her brief. I venture to warn the noble Lord never to make a mistake in your Lordships’ House, because I suspect that Facebook might be watching. I was also very moved by his defence—in fact it was quite tear-jerking—of the discrimination against the multi billion pound tobacco companies compared with the multi billion pound pharmaceutical companies.

I agree with much of what was said by the noble Lords, Lord Callanan and Lord Hunt of Kings Heath, about the desirability of encouraging smokers to give up smoking. There is no doubt that vaping devices have an enormous role to play in this campaign, as many former smokers have managed to give up through using them. However, the regulations are not just about vaping devices but include, as the noble Lord, Lord Hunt, pointed out, standardised packaging regulations, which are essential for ensuring the effectiveness of the health information and warnings on cigarette packs. They also help to enable the UK to meet its obligations as a party to the World Health Organization’s Framework Convention on Tobacco Control with respect to tobacco packaging and labelling, and product regulation.

There is no doubt that vaping devices have already been an enormous benefit to public health—although I fail to see why we need 25,000 different kinds of them—and have saved the NHS a great deal of money. When the directive to which these regulations give effect was first discussed in the European Parliament, as has been said, the Liberal group, which contained at that time several Liberal Democrat MEPs, worked hard to ensure that while the regulation of tobacco packaging continued to be robust, the regulations about vaping devices would be proportionate. Given that the original proposals followed the World Health Organization’s recommendation that these products should be licensed as medicines and would therefore be extremely tightly regulated, the Liberal group had some considerable success in making them a bit more proportionate, resulting in the directive as it is now. However, one of the things on which the group was not successful was the prohibition of commercial advertising of vaping products. This is the major item contained in my regret Motion.

According to the Royal College of Physicians, vaping is 95% less harmful than smoking and half of all smokers die from diseases that result from smoking. That is why it is vital that smokers can get information about these products and their benefits, and I regret very much that publicity about them is to be restricted. However, I support the noble Lord, Lord Hunt, in his call for a new public information programme to inform smokers of the benefits of switching to e-cigarettes. It may surprise your Lordships to know that half of smokers are not aware of how much safer for their health e-cigarettes are. I also agree with the noble Lord, Lord Hunt, in regretting the cutting of smoking cessation services—one of the many results of the public health funding cuts which I have condemned many times in your Lordships’ House.

I suppose that one of the reasons for the advertising ban is the fear that advertising will attract young people to vaping even though they have never smoked. This is of course undesirable, because nicotine vapour is very addictive, and I would not want to see children being attracted to spending their money on something so addictive and with no known benefits to their health. Indeed, more research needs to be done on the effect of nicotine inhalation combined with the various flavouring chemicals used in e-cigarettes. Some evidence is emerging that if inhaled, some of the flavourings may be harmful to the delicate cells lining the lungs. But although e-cigarettes have been around for years, there is no significant evidence that they are attracting non-smokers to take them up. On the other hand, we now have a large and growing cohort of people who use vaping devices, which is why I call on the Government to fund research on the benefits and—if there are any—the dangers of vaping.

Everything should be done to encourage smokers to switch to vaping, which is why my Motion also regrets that little attention has been paid to those vapers who claim that they need the higher-end concentration of nicotine products, which would be banned by some of these regulations, to help them give up smoking. Only time will tell whether that is the case. That is why the Government need to monitor and report on the implementation of these regulations and their impact on public health. While the further regulations on cigarette packaging are likely to be good, those on vaping devices could turn out to be bad.

Therefore, like the noble Lord, Lord Hunt, I do not support the Motion in the name of the noble Lord, Lord Callanan—that the Government should withdraw these regulations—because we need the ones that affect tobacco. However, although I sincerely regret the Government’s current intention to withdraw from the European Union in the fullness of time and hope very much that it never happens, the current situation does give us an opportunity. As things stand we are not able to keep the good tobacco regulations and ditch the undesirable ones, but the forthcoming negotiations do give us an opportunity to do a bit of cherry picking.

I therefore ask the Minister, what is the Government’s intention with regard to these and other EU regulations? Do they plan to adopt them all and then repeal the ones they do not like? If so, I call on the Government to consider carefully any deterrent to smokers switching that might result from these regulations, and to repeal the ones that deter them as soon as possible. Of course, that would require careful monitoring and publication of the results. On the other hand, in the unlikely event that the Government plan to repeal all EU regulations and then adopt new UK ones, I call on them to replace only the ones that affect tobacco packaging and marketing to further decrease the public health burden of tobacco and the terrible effects on the health of individuals and the NHS.

Given that all these regret Motions are non-fatal, I do not intend to vote on mine, although if the noble Lord, Lord Callanan, votes on his, my colleagues and I will vote against it. We are where we are. What matters now is what the Government do in future. Lives depend on it.

National Health Service Trust Development Authority (Directions and Miscellaneous Amendments etc.) Regulations 2016.

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Tuesday 10th May 2016 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, in moving this Motion, I should make it clear that, in raising issues around the governance of NHS Improvement, I make no criticism of the relatively newly appointed chairman and chief executive of that body, both of whom have outstanding records and have, I know, much to contribute to the National Health Service. I want to raise two sets of issues: the governance arrangements for NHS Improvement; and, linked to that, the future of NHS foundation trusts.

The Motion and the order relate to the National Health Service Trust Development Authority, which was established, as a result of a special health authority order in 2012, to manage the performance of English NHS trusts with the objective of assisting them to become foundation trusts. In contrast, NHS foundation trusts are regulated by Monitor under a number of pieces of legislation, including the Health and Social Care Act 2012. Therefore, both the NHS Trust Development Authority and Monitor are responsible for overseeing and, where necessary, helping to improve the performance of their respective cohorts of providers —NHS trusts and NHS foundation trusts.

The Government have argued that, in recent years, both the NHS TDA and Monitor have been working more closely together and are increasingly utilising similar interventions with their respective cohorts. Last summer, the Government announced that NHS TDA and Monitor would come together under a single leadership and operating model. As part of these arrangements, they would share a single leadership team—comprising the chief exec, chair and a joint board—with the organisations to be known as NHS Improvement. In addition, safety and quality would be key components of the new arrangements, with the national safety function previously exercised by NHS England being transferred essentially to NHS Improvement but formally exercised by the NHS Trust Development Authority.

This seems to be a complex governance arrangement, and no one should underestimate the challenge for NHS Improvement, which has to manage a complex range of functions and accountabilities. Monitor’s duties, as economic sector regulator and its role in ensuring the regulation of foundation trusts, remain risk based and proportionate, in line with the “earned freedoms and autonomy” accorded to the foundation trust model. Alongside that, the function of the NHS TDA in supporting and offering oversight for NHS trusts is equally important in the current, challenging financial climate. Then there are NHS Improvement’s new duties to improve trusts and integrate the safety function formerly hosted by NHS England.

The governance structure is therefore complex. NHS TDA and Monitor remain separate institutions—one a special health authority and the other an organisation established in statute and subject to extensive provision in primary legislation. Indeed, the Health and Social Care Act 2012 contains no less than 85 clauses relating directly to Monitor and about 85 days were spent in your Lordships’ House debating them. There is no clause relating to the NHS Trust Development Authority because it is a special health authority, yet it seems to be the principal vehicle by which functions are to be transferred to NHS Improvement.

NHS Improvement is itself subject to no legislation, but a board using its name as a banner will oversee both the NHS TDA and Monitor with the same executive team and operating procedures. My understanding from what has been said is that, in statute, Monitor and the TDA will continue to have their own boards but these will have identical membership and meet as one NHS Improvement board. They will also continue to publish separate annual reports alongside an aggregate report from NHS Improvement. To all intents and purposes, NHS Improvement will operate as one board, with one set of staff and operating procedures, but the legislative provisions under which it operates will be quite separate for NHS foundation trusts and NHS trusts.

I ask the Minister how realistic it is to expect staff to work under a single operating procedure, given the hugely different legislative provisions relating to foundation and non-foundation trusts, unless the market and competition provisions in the 2012 Act are effectively ignored. The King’s Fund, in its analysis of the planning guidance for 2016-17, has said that it effectively spells the end of the emphasis on competition and the principle of autonomy.

Linked to this is the question of the future of NHS foundation trusts. In effect, if FTs and non-FTs are treated in the same way, overseen by the same board, the same members of staff and the same operating procedures, what on earth is the point of being a foundation trust? What will happen to non-FTs that were in the pipeline to gain FT status—what is the point of them applying? I raise this question as an unashamed supporter of the concept of NHS foundation trusts. I think they were the right approach and I am convinced that their governance model, whereby the board is accountable through the governing body to local members, has many advantages.

The noble Lord, Lord Prior, was a distinguished chairman of a very successful foundation trust, and I had a similar experience. While, having been the chairman of a board, I can say that meetings of the governing body were not always comfortable, I thought it was a strength that the board had to account to local people for its performance. Of course, that is not the situation for non-foundation trusts but, if I were now the chairman of a non-foundation trust, I could not see what advantage there would be to me in becoming a foundation trust, because essentially the economic regulator would manage my trust in the same way as it would a foundation trust. At least, that seems to be the implication of the regulations and the changes made to NHS Improvement.

I have seen an intimation that, following these regulations, there will be no further pieces of legislation in relation to operating procedures. I ask the noble Lord, Lord Prior, why that is and whether he can assure me that, with the same group of staff and the same board, the autonomy and independence of foundation trusts, as opposed to NHS trusts, will be respected. I also ask him how this then relates to the development of the strategic transformation plans at local level, which on any reading also signals to me that we are moving back to a planning model of the health service. Again, it would be very interesting to get the Minister’s comments on that. Above all else, I hope that he can reassure me that the Government are still committed to the model of foundation trusts, particularly regarding the strength that it brings to local autonomy and governance. I beg to move.

[Baroness Walmsley (LD)]

My Lords, I have no intention of detaining the Committee, as I agree with everything that the noble Lord, Lord Hunt, has said. I look forward to hearing the Minister’s reply. I am particularly concerned that a very complex system of governance will not produce transparency and accountability, and I look forward to reassurance on that score.

Junior Doctors: Industrial Action

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Monday 25th April 2016 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

First, my Lords, I thank the noble Lord for repeating the Statement made in the other place. No one could be in any doubt that tomorrow’s strike will be a very sad day indeed for the NHS and the country. What is so frustrating is that it could, I am convinced, have been prevented. Yesterday the Health Secretary was presented with a genuine and constructive cross-party proposal to pilot the contract and potentially avert this week’s strike. A responsible Health Secretary would have grasped the opportunity immediately or would at least have considered and discussed it. However, all we had was a tweet yesterday morning from the Health Secretary saying, “Labour ‘plan’ is opportunism”. That was a deeply disappointing response.

The proposal was not a Labour plan. It was co-signed by two respected former Ministers, the Conservative Member for Central Suffolk and North Ipswich, and the Liberal Democrat Member for North Norfolk, as well as the SNP’s health spokesperson, the honourable lady the Member for Central Ayrshire. It not only had the support of a number of medical royal colleges, including the Royal College of Surgeons, but, crucially, the BMA had indicated that it was prepared to meet with the Government and discuss calling off Tuesday’s and Wednesday’s action.

The Health Secretary has claimed that a “phased imposition” is the same as a pilot, but can the Minister explain how imposition on a predetermined timescale, with no opportunity to make changes to the proposed contract and no independent evaluation of the impact on patient care, can be the same as a pilot? Surely the Health Secretary should have welcomed independent evaluation. Surely he wants to know how changing this contract contributes in practice to his aspirations for more consistent emergency care across seven days of the week. And surely there was always a strong case for road testing the contract, thus enabling junior hospital doctors and managers in those hospitals to bring about changes in patient care and the outcomes that the Government want to see. The Government claim that any further delay will mean that it will take longer to eliminate the so-called “weekend effect”, but he has failed so far to produce any convincing evidence to show how changing the junior doctors’ contract by itself will deliver that aim.

On safety, NHS England’s update today says that the NHS is pulling out all the stops to minimise the risks to the quality and safety of care. We know that in many cases senior clinical staff will be stepping in to provide cover and ensure the provision of essential services. But there is no escaping the fact that this is a time of unprecedented risk, as regards what happens not just in the next two days but in the months and years ahead.

So can the Minister say how it will be safe to impose a contract when no one knows what the impact will be on recruitment and retention and when everyone in the service fears the worst? How can it be safe when we are running the risk of losing hundreds of women doctors, given the contract’s disproportionate impact on women—which, as the Minister knows, was disclosed by the belated publication of the equality assessment? How can it be safe to impose a contract that risks destroying the morale of junior doctors and to introduce a contract where there is no guarantee that effective and robust safeguards will be in place to control hours worked and shift patterns?

I noted that the Statement made some rather eloquent or exaggerated claims about the amount of money going into the NHS. I do not want to distract our focus from the essential point in question, but I point out to the Minister that we are on the longest period when the amount of real-terms growth going into the NHS has been less than 1% per annum, against an average increase since 1948 of 4% per annum. Our share of GDP spent on health is going back down to the days in the mid-1990s when we were spending about 6% of GDP. When you compare that to the demands being placed on the health service and the workforce demands that the new contract entails, it is very difficult to see how you can square the ambitions of the Secretary of State on the one hand and the practical reality of what resource has been made available.

Even at this late hour—and it is later than when the other place debated this Statement—I hope that sense will be seen and that the Government will recognise that there is a need to come back to the table to discuss not just the contract but the wider issues of the disengagement of the junior doctors, their concerns about the current approach to training, the fear that the imposition of this contract will lead to less well-trained doctors in the future, and indeed the issues around workforce and women doctors which have now been identified but on which I have yet to hear a convincing response from the Government. Even now, the case for getting round the table with the junior doctors is persuasive.

[Baroness Walmsley (LD)]

My Lords, instead of reeling off the litany of justifications and figures that we have just heard, is it not really time for the Secretary of State to put aside his pride, stop being pig-headed and listen to people in the national interest? He is clearly not listening to the junior doctors but will he not now listen to the sensible compromise proposal from other parties, including my own, which, I point out, does not undermine the Government’s objectives in the long term?

There are two big differences between the euphemistic “gradual introduction” that he is proposing and the pilot projects proposed by other parties. The first is that of course a pilot scheme can be independently evaluated. If the Secretary of State is so confident that this scheme will not damage patients or doctors, why is he afraid of proper evaluation? The proper and safe implementation of the new contract is surely worth a very small delay. Secondly, a pilot would mean that all junior doctors evaluated in a hospital would be on the same contract, whereas piecemeal introduction, which he is proposing, could mean that two doctors working side by side in the same department were on totally different contracts. Does the Minister not agree that this would be deeply divisive, as well as very difficult practically?

I am also very concerned about the idea of consultants manning A&E departments this week. While I am grateful to them for being willing to step forward in the interests of patient safety, I am concerned that it might work in the opposite direction in their own departments. Who will take the difficult decisions in, for example, cardiology or vascular medicine when urgent cases come up and the consultant is setting somebody’s broken finger in A&E? Has the Minister thought about that?

Should not the Secretary of State consider his position? Is he really the right person to solve this dispute? Patient safety, not the future of his own job, should be his prime consideration. This week, that will be at risk—website or no website.

Southern Health NHS Foundation Trust

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Thursday 10th December 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, these are truly shocking revelations and reveal deep failures at the trust. I start by echoing his remarks about the families so grievously affected.

As the Minister said, only 195 of the 1,454 unexpected deaths were actually treated by the trust as serious incidents requiring investigation. Perhaps most worryingly, it appears that the likelihood of an unexpected death being investigated depends hugely on the patient. For those with a learning disability, just 1% of unexpected deaths were investigated. For older people with a mental health problem, just 0.3% of unexpected deaths were investigated.

Obviously, we will expect a full response from the Government when the report is published, but in the mean time, can the Minister say whether he judges services at the trust to be safe? What advice can he give patients currently in the care of this trust, and their families? He explained that NHS England first received the report in September. Can he say why it has not yet been published, and when a final report will be made available?

Finally, I want to raise an issue the Minister himself mentioned. I understand that the trust disputes the analysis by the audit company Mazars, which produced the report. NHS England needs to sort this out. When the report is published, it is clearly vital that there be no question about its methodology or the robustness of its conclusions. Is he absolutely confident that NHS England has got a grip of this?

[Baroness Walmsley (LD)]

My Lords, our hearts go out to the family of Connor Sparrowhawk and all the other families who have struggled so hard to get investigations of the unexpected deaths of their loved ones. On many occasions they have struggled to find the financial support required to make that investigation. That is quite wrong. In this particular hospital’s case, the percentage of unexpected deaths that was investigated is pretty scandalous. In fact, across the board, only 1% of unexpected deaths of those with learning disabilities are investigated.

I very much welcome the Minister’s saying that a light will be shone on this, but will the investigation bear in mind the possibility that it should not be the hospital trust itself that decides which of its unexpected deaths should be investigated? Police forces no longer investigate themselves—that is done by another police force. Should that not be the case with hospitals too? My second question is about timeliness. The report is not the first indication we have had of problems with this trust. The coroners have complained on numerous occasions, and over a long period, about the timeliness and quality of the reports received by them on cases that were investigated. Surely this indicates that there have been problems with the administration, the collection of evidence and the systems of this trust. Why was that not picked up earlier?

Junior Doctors Contract

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Monday 30th November 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for repeating the Statement. My understanding is that since the Statement was read in the other place, progress has been made in the ACAS talks. Perhaps the Minister will update the House in response to my comments. I very much welcome the outcome of those ACAS discussions.

The Minister knows that the dispute has been very damaging to workforce morale. He also knows that many junior doctors have already voted with their feet, or are planning to over the coming months. What action is his department taking to stop the brain drain of our brightest medics to countries such as Australia and New Zealand? It is clear that the past few months have been very bruising to junior doctors and it is vital that this is turned around so that they come back to a positive view of working in our National Health Service. I hope that the progress that has been made this evening will mark a change in tone and approach on behalf of the Government.

No one disagrees that if you go to hospital in an emergency on a Sunday you should get the same treatment as you would on a Tuesday. But the Health Secretary has repeatedly failed to make the case for why reforming the junior doctors contract is essential to that aim. My honourable friend Mrs Heidi Alexander has made a genuine offer to the Health Secretary to work with him on a cross-party basis to do everything possible to eradicate the so-called weekend effect and to support any necessary reforms to achieve that aim. But in return, the Health Secretary needs to be absolutely clear about what needs to change in order to deliver that.

As many studies have concluded, there needs to be much more research into why there is a weekend effect so that we can make sure we focus efforts on the actual problem. We hope that the Health Secretary will commit to commissioning new independent research into how reforming staffing arrangements at the weekend might help improve the quality of weekend services. Will the Minister say what other steps are being taken to ensure that we have consistent seven-day services, including making sure that social care is available outside the working week?

We welcome the fact that the Health Secretary finally agreed to ACAS talks last week and I very much welcome the news from those talks tonight. Nobody wants patients to suffer and let us hope that we can put the whole sorry saga behind us.

[Baroness Walmsley (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. I, too, understand that the junior doctors have now agreed to call off tomorrow’s strike. Will the Government therefore apologise to the 4,000 patients whose treatments tomorrow will have been delayed by this going right up to the wire and the Government being so reluctant to go to ACAS for negotiation?

I understand that more detailed negotiations will now take place. Will the Government be entering those negotiations without prejudice and with the well-being of patients—and the well-being of doctors, upon which the well-being of patients depends—in their minds as they negotiate? Will they take very seriously the concerns that have been put to them by conscientious junior doctors, who work very hard for us?

I, too, have some scepticism about the data in relation to the so-called weekend effect. I echo the call of the noble Lord, Lord Hunt, for some independent research into the causes of the less good outcomes that undoubtedly occur in some places—to what degree, we do not know. I am quite sure that the junior doctors and their contract are not the only cause of any such weekend effect.

NHS: Reform

Debate between Lord Hunt of Kings Heath and Baroness Walmsley

Thursday 16th July 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the Minister for his Statement. The Opposition support much of what he had to say. I will focus my remarks on the plan for seven-day working and then touch on a number of the other issues that he raised.

Ensuring our health services are there for everyone whenever they are needed, be it a weekday or a weekend, is essential to keeping people well and making the NHS sustainable. Of course the Opposition support the principle of what the Government are trying to achieve with seven-day working, and we will certainly work with them on making that possible. Where I urge some caution is in the manner in which the Government are attempting to achieve those changes.

The Minister will be aware that the NHS is in a rather fragile state at the moment. A&E performance has been very disappointing in the face of enormous pressures. He will know that primary care services are overwhelmed. We discussed in Oral Questions the failure of some ambulance services to meet their performance targets. We talked particularly about the London Ambulance Service. There is a shortage of staff and an overreliance on agency workers and undoubtedly patients are suffering as a result—on this Government’s watch. Staff are feeling pretty demoralised and rather unloved by the Government. It is important that the way the Government approach seven-day working does not make matters worse.

I am entirely unclear as to how seven-day working is to be achieved without significantly impacting the rest of the NHS. The real danger here, given the way the NHS will approach this kind of target, is that more staff will be produced at the weekend by cutting staff during the week. The Minister will be aware of the study published in Health Economics, which concluded:

“There is as yet no clear evidence that 7-day services will reduce weekend deaths or can be achieved without increasing weekday deaths”.

Clearly, it would be an absolute nonsense if we reduced weekend deaths but the price was an increase in weekday deaths.

The Government have produced no facts or evidence for the assertions they are making. If we are to take this seriously, we need to know a bit more about how the resources challenge and the current acute shortages in many staffing areas are going to be met—bearing in mind that the Government are cracking down on the use of agency workers; the ludicrous 2012 Immigration Rules, which mean that nursing staff who are not earning £35,000 a year after six years will be sent back to their country of origin; and the serious issue of staff morale.

The Minister mentioned the 2003 contract but will he confirm that the contract negotiated then was actually very largely based on the one negotiated by the previous Conservative Government in the 1990s? How does he think the Government intend to work in partnership with NHS staff to make those changes? The briefing from his department—phrases such as “declaring war on NHS staff”—does not seem to have got this policy off to the right start. The kind of provocative statements that are currently emanating from his department, no doubt under the authority of the Secretary of State, do nothing to create the conditions in which people in the NHS will actually want to work with the Government on developing these policies.

I also want to mention the impact of another five years of, in effect, real-terms pay cuts. What impact does the Minister think the Chancellor’s announcement on pay will have on future staff numbers and retention? I want to raise one issue with him, which is the subject of a statutory instrument in your Lordships’ House. If the pay of NHS staff is to be held down, how can he justify the 12% increase in fees by the HCPC, one of the key staff regulators for the healthcare profession? Will he withdraw this regulation? Does he not agree that it is absolutely disgraceful that staff are being asked to pay more money by what essentially is a government-owned quango when their own pay is being held down? It is utterly unacceptable.

Can the Minister tell me how this is going to be funded? Either the staff are going to be thinned out during the week or extra staff will have to be found. It is not just consultants and nursing staff; it has to be the whole infrastructure to make this work, including community services and primary services, and there will be a knock-on impact on social care costs. How is this going to be paid for? If he says that the Government are giving £8 billion to the health service overall, he knows that is dishonest. We know that that will probably be paid in 2021, according to the Treasury briefing. We also know that £30 billion per annum will be needed by then. Nobody I know in the health service thinks that it has any chance at all of closing that gap because the kind of efficiency saving required has never been achieved in this or any other health service. The excellent report on efficiencies by the noble Lord, Lord Carter, in itself will produce only £5 billion by 2017-18.

On whistleblowing, I welcome the Freedom to Speak Up report, which contained a number of important recommendations to foster a more open culture. The Minister will know that in recent years there have been a number of other examples of appalling care in social care settings, including Orchard View, Oban House and, of course, Winterbourne View. Many of those scandals were exposed only once undercover reporters infiltrated the care home. Of course, we welcome the action the Government are taking, but does the Minister agree with the point I have made to him previously: that if the Government really want an open culture in which people can raise their concerns, that has to apply right up the line, meaning that the leaders of NHS organisations can speak openly about their own concerns about the direction of policy and the actions of Ministers? He will know that at the moment those people are slapped down if they make any criticism at all of the Government. You will not get an open culture until everyone in the system feels that they can be open. At the moment they cannot.

We support the steps in the Kirkup report to improve the regulation of midwives but if the Government are so concerned about modernising regulation, why have we not had the Law Commission Bill containing a comprehensive approach to the modernisation of health regulation for individual professionals? Why are we carrying on with this antiquated approach and these wretched Section 60 orders, which cause a lot more expense and delay in the Minister’s department? Why has the new speeded-up system of dealing with regulation, for regulators such as the Nursing and Midwifery Council, been held up for many months now? Of course, one of the reasons why it has had to increase its fees is that the Government will not agree to this legislation coming before Parliament to streamline its proposals.

It is pretty disgraceful that the Rose report, which was mentioned, was not published alongside the Statement. Why are we having to wait until after this Statement to look at it? The noble Lord knows that Ministers received it months ago. What is in the report that they do not want the public to see?

On the merger of Monitor and the NHS Trust Development Authority, I welcome the appointment of Mr Ed Smith, who is a high-calibre chair. He is also pro-chancellor of Birmingham University, which is a very strong recommendation. I also like the name “NHS Improvement”. But how many staff in Monitor and the NHS Trust Development Authority have any concept of improvement, given their current record of bullying, hectoring and intimidating the agencies they are responsible for? Can I assume that there is going to be a drastic change of personnel in that combined organisation? Will the Minister confirm that no one employed in that organisation will earn more money than the Prime Minister, given that the Government have chosen to attack NHS chief executives in relation to their salaries? Will he also confirm that they will not use agency staff? Does he not find it rather ironic that Monitor, in order to instruct NHS bodies not to use agency staff, has employed temporary staff? What is sauce for the goose is sauce for the gander.

There is a dangerous gap between the kind of fantasy land that Ministers talk about in the health service and the reality of life on the ground. On the ground, people are struggling every day to meet the pressures with limited money and no support from the Government. The health service is in real danger of falling over. The Government should stop blaming the NHS and take responsibility.

[Baroness Walmsley (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. It reflected much of what I heard this morning from the Secretary of State at the King’s Fund. It is a brave and realistic approach but there are some yawning gaps in it compared to what I should have expected in a major statement about NHS reform. However, I welcome several points.

The focus on culture change and nurturing staff is absolutely right. The NHS is the best and most cost-effective service in the world only because of the skills and commitment of its staff, yet we are told that in some places staff morale is poor. This is very sad to hear. It was good to hear earlier this morning about the beneficial effect on morale in those hospitals that are responding positively to being put in special measures.

I welcome the new personnel, processes and training that are being put in place to ensure that staff can safely express concerns about the quality of care, so that each member of staff can take part meaningfully in the improvement pathway of his organisation. We could do with ditching for all time the expression “whistleblower” with all its negative connotations. I welcome what the Secretary of State called “intelligent transparency”, a no-blame focus on what went wrong and how to put it right. In common with the noble Lord, Lord Hunt of Kings Heath, I think that merging the TDA and Monitor could be a good thing, with this focus on no-blame improvement. That should help, but we still need more signposting for patients and service users about how and where to complain if they have poor care in what is a very complex system.

I of course welcome the focus on better data-gathering, especially in the field of mental health, where we are rather short of it. Managers cannot make good financial decisions without the facts about what everything costs. Businesses could not survive like that and neither can the NHS.

I welcome the long-awaited publication of the Rose report and the acceptance of its recommendations. I look forward to seeing what they are. We need a new focus on the quality of NHS management. If we are to rise to the challenge of the £22 billion of efficiency savings, we need excellent managers and finance directors as well as excellent doctors and nurses. I welcome the fact that the noble Lord, Lord Rose, extended his remit to CCGs.

I also welcome the new requirement for hospitals and groups of doctors to provide a seven-day service but I share some of the concerns of the noble Lord, Lord Hunt, about how it will be delivered. People do not get sick to order just on weekdays, so that is important. I should, however, like assurance that this does not necessarily mean putting any further burden on individual hard-working doctors, nurses and laboratory staff. Good planning is needed to avoid further burdens. However, this will certainly mean the recruitment of more trained staff. We need assurance that they are in the pipeline. Can the Minister say, for example, what the Government are doing to stem the flow of staff, trained by the NHS at a cost to the taxpayer, who leave the country as soon as they qualify?

What was missing from the Statement and the speech this morning was context and understanding that filling the £30 billion black hole in the NHS requires a whole-Government response. If patients are to be in charge, they need good health education so that they know what a healthy lifestyle means. They need access to sports and leisure facilities and nutritious food, and they need warm, dry homes. Integration needs to be a lot broader than just integration between health and social care. Unless social care is properly funded, the NHS will not be able to find its expected £22 billion of efficiency savings while making the improvements outlined in the Statement because of the knock-on effect on acute hospital beds. Yet while there has been more money for the health service, there has been nothing but cuts in social care.

The thrust of the Statement was about getting it right first time and, if not getting it right the first time, then certainly the second and subsequent times. This has to be right for patient safety and confidence but also for cost-effectiveness. If we are to rise to the increasing demand on the health service, we must get it right as near as possible every time and we must support the staff in doing so.