Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

Moved by

[Lord Kamall]

225A: Clause 4, page 2, line 35, leave out from “objectives” to “, and” in line 38 and insert “specified by the Secretary of State under subsection (2)(a) for NHS England must include objectives relating to outcomes for cancer patients”
Member’s explanatory statement
This amendment changes the focus of the cancer outcomes objectives so that they cover matters other than treatment (e.g. early diagnosis).

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I will also be moving Amendments 225B and 225C in due course. Clause 4 sets a requirement for the Secretary of State to include objectives relating to cancer outcomes in the mandate to NHS England, and for these objectives to have priority over other objectives relating specifically to cancer.

I first thank John Baron MP in the other place, who introduced this clause, and noble Lords for their support in ensuring that the Bill best delivers on our shared intention of improving outcomes for cancer patients. I also thank the cancer charities that have contacted me to express their views, and the noble Baroness, Lady Morgan of Drefelin, for her engagement. The Government have worked with Mr Baron, NHS England and stakeholders to ensure that we deliver the greatest benefits for cancer patients while minimising the risk of unintended consequences. Amendments 225A, 225B and 225C, tabled in my name, have the full support of Mr Baron, and I strongly encourage your Lordships to support them.

In recognition of the range of services offered to cancer patients, Amendment 225A will ensure that the scope of possible outcomes-driven objectives is broad enough to capture all cancer interventions, such as screening programmes or targeted lung health checks, not just those relating specifically to treatment. Connected to this, Amendment 225C will ensure that these objectives have priority over any other objectives relating to cancer, not just those relating to cancer treatment.

Amendment 225B, meanwhile, makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer. When it comes to setting priorities for NHS England, including on cancer, it is vital to consider the outcomes that they should be directing the NHS to achieve. Improving outcomes means boosting survival rates—that remains our overriding aim. But the outcomes that matter to cancer patients are not limited to survival. They also include improving the quality of life for those living with cancer and the patient experience of those being treated.

We want to make sure the objectives we set benefit the outcomes of all cancer patients, whether the objectives relate to screening, early diagnosis or treatment. This is crucial as screening and early diagnosis interventions are one of the most effective ways of improving outcomes and chances of survival. I hope your Lordships can support these amendments.

[Lord Moylan (Con)]

My Lords, I greatly welcome the amendments proposed by my noble friend. In fact, I put my name to the equivalent amendments earlier, proposed by my noble friend Lady Morgan of Cotes. I rise to speak to my Amendment 294, the purpose of which is to draw attention to the dire state of the services and treatment offered to people suffering from cancer of the pancreas—although I could also say that there are other, equally forgotten and equally deadly cancers, such as bile duct cancer, that deserve a debate as well. I am grateful to my noble friend Lord Vaizey of Didcot and to the noble Lords, Lord Patel and Lord Aberdare, for their support of the amendment.

Many of us have seen family members and friends fall prey to this disease. Pancreatic cancer is the deadliest common cancer. It affects 10,000 people a year across the UK, and more than half will die within three months. Three in four will die within a year. Vague symptoms, lack of a simple early test, and low symptom awareness among both the public and primary care professionals result in three in five people with pancreatic cancer being diagnosed at a late stage, when curative treatment and life-saving surgery are no longer possible.

Research into pancreatic cancer has been underfunded for decades: it receives only 3% of the UK cancer research budget, despite being the deadliest common cancer. The result is that pancreatic cancer has the lowest survival rate of all common cancers, with five-year survival rates less than 7%. Five-year survival in the UK lags behind the rest of the world, with the UK ranking 29th out of 33 countries with comparable data. These survival statistics have barely improved in decades.

In addition, there is an unacceptable variability of services for pancreatic cancer sufferers, depending in part on geography, with those living near the few specialist centres able to access some services barely available elsewhere.

I wrote last year to my noble friend Lord Bethell with a particular suggestion being promoted by the small but excellent charity Pancreatic Cancer UK. In due course, on 1 December, I received a reply from my honourable friend Maria Caulfield, who said that NHS England and NHS Improvement had launched an audit of pancreatic cancer services with a view to reducing variations in treatment and improving outcomes. That is wholly welcome. The information we have nationally on pancreatic cancer treatment in the NHS is woefully poor. An audit is a good place to start. But she went on to say that the first data were expected in 2023—not the report, not the action plan that we need, and not the funding allocation, merely the first data.

My amendment seeks to impose certain reporting obligations on the Secretary of State, but its real purpose, and the real purpose of this debate, is to inject some urgency into the Government and the NHS. We cannot afford to wait years just to begin to understand the state of pancreatic cancer treatment and care, let alone to take action to improve outcomes. Pursuing the audit with urgency and dispatch should be a top government priority.

There is one thing the Government could do right away that would at least alleviate the suffering of pancreatic cancer patients—and this indeed is the subject I wrote to my noble friend Lord Bethell about at the urging of Pancreatic Cancer UK. The symptoms caused by pancreatic cancer have a very distressing impact. In particular, people are often unable to digest their food, ultimately starving the body of nutrients and calories, leading to rapid weight loss, malnutrition and loss of muscle mass.

The solution to these symptoms is pancreatic enzyme replacement therapy—PERT. PERT comes in tablet form; you take it with your food. It replaces the digestive enzymes that many people with pancreatic cancer can no longer produce. Taking the tablet helps food to be digested and absorbed by the body, and can vastly improve people’s quality of life. It can also, crucially, help them to gain the strength needed to undergo treatment. If people have lost weight and are too weak, they are sometimes not able to have surgery for that reason. NICE guidelines clearly recommend PERT for people with pancreatic cancer, whether the cancer is operable or inoperable, and there is widespread clinical consensus on its effectiveness. It is widely available and is cost-effective: it costs the NHS just £7 per day per patient.

However, a recent study has shown that only half the people with pancreatic cancer across the UK are prescribed PERT. The May 2021 RICOCHET study, undertaken by the West Midlands Research Collaborative, found that 50% of pancreatic cancer patients were not being prescribed the tablet they needed to digest food. The key reason people are not being prescribed PERT currently is a lack of dissemination of specialist knowledge about pancreatic cancer and the benefits of PERT to general healthcare settings. PERT is more likely to be prescribed in specialist surgical centres than in general hospitals, meaning that people whose cancer is operable are more likely to be prescribed PERT than those whose cancer is inoperable, because people whose cancer is operable are more likely to be moved to a specialist setting.

However, three in five people with pancreatic cancer are not diagnosed until their cancer is at an advanced stage and no longer operable, so they will tend to be treated with palliative care in a non-specialist setting. This means they will be far less likely to be prescribed PERT than if they had been diagnosed early.

What I would hope to hear my noble friend the Minister say this evening is that without waiting for the results of the audit, he will immediately set a national priority that PERT should be routinely prescribed as a feature of pancreatic cancer care. Without setting this focus and without corresponding leadership from national and local health bodies, knowledge and expertise will continue to spread far too slowly for the people with the quickest-killing cancer.

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[Baroness Merron (Lab)]

My Lords, we are very pleased to support the government amendments that we have heard outlined. Crucially, they focus on cancer outcomes. As the noble Baroness, Lady Morgan, underlined, that includes survival, quality of life, experience of treatment, end-of-life care as well as diagnosis—in other words, the whole experience in treating somebody as a whole person on a journey that they may have to face. I congratulate the Minister on bringing the amendments forward. I also thank the noble Lord, Lord Moylan, supported by the noble Lords, Lord Aberdare and Lord Vaizey, and others, for highlighting the fact that pancreatic cancer has such an aggressive nature, and yet the symptoms are so silent and often misunderstood that it presents a particular challenge in the context of the care that we are speaking of today.

A focus on outcomes that covers matters other than treatment will be particularly crucial following the backlogs that the pandemic has inevitably led to, with delays in people seeking check-ups and treatment. Macmillan has let us know that more than 31,000 people in England are still waiting for their first cancer treatment, and it has also said of the Bill that for those living with cancer

“not a lot will look different.”

It is therefore crucial that the Minister assures noble Lords that stakeholders are supportive of the changes outlined in this group.

On the point about survival rates lagging behind those of other countries, that is not because the National Health Service is worse than other healthcare systems at treating cancer once it is detected but because it may not be as good at catching cancers in the crucial early stages. In other words, late diagnosis lies behind our comparatively poor survival rates. A key advantage of focusing on outcome measures is that it will give healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of this new focus is that it will better align NHS priorities with patient needs, which, after all, are core to our discussions on the Bill today.

I have a final and gentle word for the Minister to back up the introductory comment of the noble Baroness, Lady Walmsley. It is of course usual to consult the Opposition and others in advance to ensure that amendments are acceptable and do what is required—in other words, to strengthen the case. I know that this did not happen until very late in this case, and I am sure the Minister will not wish to repeat that practice. In summary, however, we very much welcome these amendments.

[Lord Kamall (Con)]

I thank the Opposition Front Benches for being so gracious given the fact that we notified them late and did not use the correct procedure. I apologise for that once again and I know that the Bill team also apologises for it. We are all on a steep learning curve, as I am sure all noble Lords acknowledge. I thank both noble Baronesses. I hope the lesson has been learned, and we will not have an excuse next time.

I will address Amendment 294 before I come to our amendments. I thank my noble friend Lord Moylan for tabling it. To reassure him, the pancreatic cancer audit is included in the national cancer audit collaborating centre tender, which is currently live. Some reporting timelines are included in the specification for this audit, developed in partnership with NHS England and NHS Improvement, but I am told that during a live tender the document is commercially sensitive and cannot be shared beyond the commissioning team, as this could risk jeopardising the procurement process. The future contract is anticipated to start in autumn of this year. However, it is not possible to confirm the timelines for a new national audit topic for pancreatic cancer until the procurement completes and the contractual deliverables are signed. Unfortunately, therefore, this cannot be aligned with the passing of the Act.

My noble friend will be aware that NICE clinical guideline NG85 recommends that pancreatic enzyme replacement therapy, or PERT, should be offered to patients with inoperable pancreatic cancer and that consideration should be given to offering PERT before and after tumour removal. NICE acknowledges that this is a priority area for improving the quality of health and social care and has included PERT in its quality standard on pancreatic cancer.

We have taken and will continue to take steps to support Pancreatic Cancer UK’s campaign to encourage greater uptake of PERT by doctors treating pancreatic cancer patients, in line with NICE guidance. We are in the process of commissioning a PC audit and, while the scope of this is not confirmed, we will certainly include this in the scoping of the topic. As I said, NICE acknowledges this as a priority area and, while its guidelines are not mandatory for healthcare professionals, the NHS is expected to take them fully into account in ensuring that services meet the needs of patients.

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[Lord Moylan (Con)]

My Lords, before my noble friend sits down, on behalf of people who are currently suffering from pancreatic cancer or who might be diagnosed with it in the next few months, is anything going to happen faster in relation to dissemination of knowledge and prescription of PERT as a result of this debate than would have been the case had we not raised this with him?

[Lord Kamall (Con)]

I am afraid that I am not entirely sure of the answer to that, but I hope that we have raised awareness. I am very happy to have a conversation with my noble friend to see what more can be done, if anything.

Amendment 225A agreed.

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Moved by

[Lord Kamall]

225B: Clause 4, page 2, line 39, after “relating” insert “specifically”
Member’s explanatory statement
This amendment makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer.

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Moved by

[Lord Kamall]

232: Clause 136, page 112, line 10, leave out “an Act of” and insert “a Bill in”
Member’s explanatory statement
This amendment makes a drafting change to reflect the fact that consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 is given in relation to an Assembly Bill rather than an Assembly Act.

[Lord Kamall (Con)]

My Lords, I will speak to two minor technical amendments, Amendments 232 and 312. These amendments, which are made to Clause 111, in relation to HSSIB, and Clause 136, in relation to international healthcare agreements, do not impact the policy of either clause. They simply amend the drafting so that references are made to an Assembly Bill rather than an Assembly Act in relation to Northern Ireland. I beg to move the first of these minor technical amendments, Amendment 232.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I think now would be a convenient moment for her to speak.

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[Baroness Thornton (Lab)]

My Lords, I am extremely grateful to the noble Lord, Lord Sharkey. Several months ago, some of his staff came to talk to me about the international healthcare part of the Bill. I said pretty much what the House decided two and a half years ago, which the noble Baroness, Lady Brinton, described. I said that we would be very sceptical of it, because we had to cut a Bill in half all those years ago to take out the international bit and leave in the European and Swiss bit because of the powers that it gave the then Secretary of State to make agreements with persons—without specifying who they might be. I remember it very clearly. So when I saw that the noble Lord had put down clause stand part, I regretted that I had not put my name to it at that time, because I realised that we would have to address this aspect of the legislation. I will not object at all to the two minor amendments, as I realise that they are simply drafting amendments, but unless we can resolve this in some way which deals with the powers, I fear that we will return to this on Report, and we will certainly support a move to remove this clause from the Bill.

[Lord Kamall (Con)]

My Lords, I am grateful to the noble Lord, Lord Sharkey, and others for their comments and for their engagement with the Bill team on this issue. We currently have only limited healthcare agreements with countries outside Europe. They support people from the UK to access medically necessary healthcare but do not always provide comprehensive cover for those who need it. The powers included in this clause will enable the Government to implement comprehensive reciprocal healthcare agreements with countries around the world, not just with the EEA and Switzerland. This will allow the reimbursement of healthcare costs and the exchange of data to facilitate a reimbursement process. By implementing such agreements, we hope that we can better support people when they are abroad. We have listened to concerns previously expressed in the House, so the Bill will also remove Section 1 of the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which provided a freestanding payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland. This is no longer needed, following EU exit.

We are replacing this power with regulation-making powers which can provide for payments to be made in two circumstances: one, to implement healthcare agreements, and two, in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of that agreement and the Secretary of State determines exceptional circumstances exist to justify payment. These are not the same powers that were originally drafted in the 2019 Bill. We have listened to Parliament and limited the scope of the powers to those necessary to deliver the policy intention. We have, for example, revoked the unilateral payment powers, which would enable the Secretary of State to make wide-ranging payments for healthcare outside healthcare agreements. The UK recently successfully concluded a trade and co-operation agreement with the EU, which includes comprehensive reciprocal arrangements. Therefore we see this as an appropriate time to tailor existing powers so they allow us best to support the healthcare needs of UK nationals across the world.

We hope that these legislative measures will allow us to strengthen existing agreements with non-EU countries or form other healthcare partnerships should we wish to in future. This includes looking to improve our healthcare co-operation with key international partners, the Crown dependencies and our overseas territories. We also want to offer more healthcare cover to UK residents travelling abroad for tourism or short-term business purposes, similar to the arrangements available to them when they visit EU countries.

I take this opportunity to confirm that there are no Henry VIII powers in this clause; they were removed during the passage of the Bill in 2019 and have not been put back. In response to the question of the noble Baroness, Lady Finlay, the Bill requires consultation with the devolved Administrations over the drafting of regulations made under the powers in this clause, and we are pleased that the devolved Administrations have all agreed to recommend that legislative consent is granted for these provisions.

In addition, the negotiation of international health agreements is reserved, and the devolved Administrations have a role to play in implementing those agreements. That is why we laid amendments in the House of Commons on Report of the Health and Care Bill. These amendments give the devolved Administrations power to make regulations in the areas of devolved competence within reciprocal healthcare.

As we are all too aware, healthcare co-operation between countries is a vital aspect of the global society we are a part of. Reciprocal healthcare provides safeguards and support for our most vulnerable as well as greater opportunities to travel, for work or leisure. I thank the noble Lord, Lord Sharkey, for his suggestion that we have a meeting before Report for further conversation.

Amendment 232 agreed.

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Moved by

[Lord Kamall]

232A: Clause 140, page 116, line 41, leave out from beginning to end of line 9 on page 117 and insert—
“(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;(b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”Member’s explanatory statement
This amendment de-couples the costs that accrue towards the care cap from the costs specified in the budgets and simplifies the drafting for determining those costs that accrue.

[Lord Kamall (Con)]

My Lords, I will speak to Amendments 232A, 232B, and 234A to 234L in my name, made in relation to Clause 140. In the course of the detailed work on the operational guidance on charging reform in partnership with local authority representatives, it has become apparent that the existing legislative framework leads to unfair treatment of local authority-supported individuals in some areas and proffers incentives for self-funders in others. The intention of these amendments is to remove this. This applies even before this Bill, or whatever charging scheme we come up with, comes into effect.

Noble Lords may be aware that everyone who wants to meter towards a cap on personal care costs must have a needs assessment to ensure they have eligible needs. If there is a delay in the needs assessment through no fault of the person requiring care, they may wish or need to begin to pay for care before the local authority is able to intervene. At present, Clause 140 would enable self-funders to start metering from the point they request an independent personal budget, but the clause does not contain an equivalent provision for those whose needs are expected to be met by the local authority. These amendments will make the position the same for those whose needs are met by a local authority as for a self-funder, as well as clarifying that metering for those whose needs are being met by a local authority will be at the amount the local authority charges.

The amendments will also decouple how a local authority decides what meters towards a cap from the personal budget and independent personal budget. There are several practical benefits of this. Among the most important is ensuring that, having had an independent personal budget set by a local authority, nobody has a perverse incentive not to meet their needs. Without the amendments, somebody would meter the amount they are expected to spend set out in their independent personal budget even if they then purchased less care in order to save money.

The amendments also mean that any spending to meet agreed eligible care needs would meter towards a cap at the amount it would cost the local authority to meet those needs, where they are met by the local authority at the amount charged by it. This would happen even if it was omitted from the personal budget or independent personal budget for some reason.

Finally, there is an amendment to make a minor clarification of the circumstances in which an independent personal budget must be provided by a local authority and what the personal budget and independent personal budget must include.

I look forward to this debate and I am grateful to many noble Lords who, I am sure, wish to speak on this important matter.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baronesses, Lady Brinton and Lady Campbell of Surbiton, will be speaking remotely. I invite the noble Baroness, Lady Brinton, to speak now.

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[Lord Davies of Brixton (Lab)]

My Lords, I just want to contribute to this debate. I fully support the remarks of my noble friend Lady Thornton. I was particularly struck by her dissection of this Government’s totally preposterous claim to have a plan for social care. They do not have a plan. All they have is a regressive tax and a broken promise.

I am tempted by the remarks of my noble friend Lord Lipsey to enter into a broader debate on these issues. Clearly, this issue is not going to go away. This is not the end and the issues that were raised will come back again and again until we move towards something fairer and more comprehensive. I cannot resist saying that I am unconvinced that deferred annuities will have any part in any sort of mass market provision of care. As a product, they are fatally flawed, in my view.

My noble friend’s remarks also made me think of the extent to which this debate is taking place while ignoring the key factor in these issues, which is housing or, rather, property management. That is really what we are talking about, but we do not mention it in the context of these debates, which is unfortunate. I am glad my noble friend raised these issues. However, I think the substantive point this evening is the imperative of sending this clause back to the Commons where they can reassess it with greater time than they were allowed initially.

Finally, I just want to highlight the revealing and outrageous statement by the Minister in the Commons, Mr Argar. He said the Government

“have always intended for the cap to apply to what people personally contribute, rather than on the combination of their personal contribution and that of the state.”—[Official Report, Commons, 22/11/21; col. 110.]

I do not believe that means-tested benefits are any more money being given by the state than my pension that I get from the national insurance scheme. It is outrageous to cast people as, in a sense, recipients of charity. It is their rights as citizens to have this money, and it is their money; it is not the state’s money. It reveals the Poor Law mindset of this Government.

[Lord Kamall (Con)]

My Lords, I understand the concerns about the lack of debate in the other place on this issue. The Government are putting in place a package of reforms to be implemented in 2023. The introduction of the £86,000 cap on costs is part of a package through which we hope that no one will lose out when compared to the current system. I will get the source that the noble Baroness, Lady Thornton, asked me for. I think that is a reasonable question.

The Government believe that having the cap in place allows people to balance their personal responsibility of planning for later years and puts in place a system where we hope that no one faces unpredictable care costs. Without Clause 140, two people with the same level of wealth, contributing the same amount towards the cost of their care, could reach the cap at very different times, driven not by how much they are spending on their care but how much the local authority is. We wanted to address that perceived unfairness.

Instead, the Government made the decision to offer the same cap for everyone. However, the cost for people with more modest means will be reduced in two important ways: first, through means-tested support, including for those living in their home. This kicks in as soon as someone’s assets fall below £100,000, potentially right from the start of their care journey. We chose to offer the same threshold for means-tested support, no matter where somebody draws on care, because we want to support and encourage people to be able to stay in their own homes whenever they can. That was an ambition set out in our White Paper, People at the Heart of Care.

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[Lord Warner (CB)]

The proposition in relation to the age of 40 was in the report; it has been around for 10 years. It is a bit late in the day to be coming forward with the suggestion that it was an inadequate proposition from the Dilnot commission. Ten years is a long time to discover truth.

[Lord Kamall (Con)]

Perhaps I may move on to Amendment 235, on setting the cap based on the recommendations of the Commission on Funding of Care and Support and moving the implementation date by a year. For local authorities to make a change of this magnitude this year is undeliverable. They have told us that the original plan to implement for October 2023 is already an ambitious target.

Setting the level of the cap has been a fine balance. The Government have had to consider the longer-term cost of reform and what proportion of the future levy revenues to earmark for this purpose and other purposes. Retrospectively to impose a cap on care costs for everyone in the care system and to include their care costs during their lifetimes in the cap calculation is unfeasible.

I would like to have some further conversations with the noble Lord on Amendment 236A, if that is possible. I thank him for some of his suggestions to date. There is a real debate about how feasible a private solution is. I remember in an earlier debate the noble Lord rightly chastising me and saying that it was rather embarrassing for a Labour Peer to propose to a Conservative Peer a private sector solution. That hurt—but I completely understand. If it is possible, I personally would have been open to it, but the Government maintain that it is not feasible. We will probably need some more discussions.

This clause clearly needs a lot more discussion between now and Report. I could go into more arguments but, given that there was a lack of debate in the other place, I think that it needs more debate and more consideration overall. I am very happy to have more round tables with the Bill team, the charging team and noble Lords to explain the case, and for noble Lords to decide whether it is an acceptable case or still to disagree with it. With that in mind, I hope that noble Lords feel sufficiently reassured not to press their amendments at this stage and to allow the clause to stand part of the Bill. I beg leave to withdraw my amendment.

Amendment 232A withdrawn.