Health: Diabetes

Lord Low of Dalston Excerpts

Wednesday 3rd July 2013 Lords Chamber

[Earl Howe]

The key thing here is for NHS England, Public Health England and local commissioners to work closely together, which is indeed what they are doing, so that the patient experiences a seamless service. Essentially, the new commissioning arrangements for national screening programmes enable effective commissioning and oversight of the whole screening pathway, alongside integrating those with the diagnostic and treatment services. To ensure a quality service, local programmes are assured by NHS screening programmes’ quality assurance teams and services are measured against 19 standards.

[Lord Low of Dalston]

My Lords, I declare my interest as vice-president of RNIB. The Minister will be aware that NICE has recently approved the use of Lucentis as a treatment for those suffering from diabetic macular oedema. We are hearing reports from various parts of the country of queues building up of people requiring treatment for diabetic macular oedema. Will the Minister undertake to do his best to ensure that the necessary resources are put in place to relieve these backlogs and enable people to benefit from this new treatment that has now become available?

[Earl Howe]

My Lords, I am aware of the issue that the noble Lord raises. He will know that NHS commissioners are statutorily required to fund clinically appropriate drugs and treatments which have been recommended by NICE. The Centre for Workforce Intelligence has been commissioned to review the ophthalmology medical workforce after discussions were held between the royal college and Health Education England earlier this year. That review is due to report in the summer and the results of it should, I hope, point the way to a resolution of the issue that the noble Lord has raised.

Care Bill [HL]

Lord Low of Dalston Excerpts

Tuesday 21st May 2013 Lords Chamber

[Lord Low of Dalston]

My Lords, I am delighted to follow the noble Lord, Lord Willis. I must confess I felt my score on the hypertension scale rise as we went through the day and the debate got nearer, but we are ready in time. I thank the Minister for the very clear way in which he introduced the Bill, and I must apologise for missing the opening seconds of his speech.

There are six reasons why this Bill should be welcomed—and it is not often that one can say that about a government Bill. First, it consolidates and modernises the legal framework for adult social care. Secondly, it creates a framework for limiting people’s exposure to crippling costs for their care. Thirdly, it establishes the principle that the well-being of the individual should be the animating purpose of social care. Fourthly, it establishes rights for carers. Fifthly, it establishes the principle of portability of care. Sixthly—a slightly more parochial concern, in which I declare my interest as a vice-president of the RNIB and a visually impaired person—it renews the statutory basis for local authority-maintained registers of visually impaired adults. We still have some work to do to ensure that the system is maintained for visually impaired children. The Government are to be commended on all these things.

The Bill, therefore, makes important progress in getting the framework right. However, there is still major work to do to ensure that it is adequately funded and implemented in the right way. Without this, all this good work will come to nothing. Adult social care is now consuming more and more of local government’s budgets, and is set to consume virtually all of them in a couple of decades’ time. However, four in 10 disabled people who receive social care and support say that it does not meet even their basic needs for things like eating, washing, dressing and getting out of the house. At present, the shortfall in funding is conservatively estimated as being in excess of £1.2 billion a year. Over the past three years £2.68 billion, or 20%, has had to be cut out of adult social care budgets. If greater integration of health and social care budgets is to mean anything at all, it must mean a transfer of resources from the NHS budget to fund adult social care properly.

This has important implications for the sections of the Bill that deal with prevention—Clause 2; and eligibility—Clause 13. Getting these right will be key to delivering the Bill’s potential, and I will say a word about each of them. Prevention has the potential to be a win-win. It clearly matters to individuals, who see their care needs escalating without the kind of support that Clause 2 requires local authorities to put in place. However, it matters not just to individuals, but to cash-strapped councils as well. In the debate on the Queen’s Speech, the noble Baroness, Lady Hollis, spoke most interestingly of there being three stages of retirement:

“a decade or so of healthy life … a decade of some limiting disability, such as a lack of mobility, the inability to reach or difficulty in hearing, but with care needs sufficiently modest that … they can normally be met at home; and between two and five years of frail dependency, including dementia, during which substantial personal care is needed”.—[Official Report, 14/5/13; col. 292.]

The noble Baroness suggested that the second stage, of limiting disability, would most repay investment, because funding and supporting people at that stage is not all that expensive. All the evidence points to prevention being cost-effective.

An analysis by Deloitte of a range of British Red Cross services suggested that the charity achieves savings of £1.50 for every £1 invested. Its 2012 report, Taking Stock: Assessing the Value of Preventative Support, estimated savings ranging from between £700 and £10,430 per person, depending on the individual circumstances. This places a premium on the preventive aspect of care. Providing relatively low-cost, timely support—for example, when someone is discharged from hospital or loses their sight or hearing—makes obvious sense.

The Bill represents significant progress on the prevention agenda. The Care and Support Alliance, the coalition of more than 70 organisations working with people with care needs, particularly welcomes the references to preventing needs in the assessments and eligibility sections of the Bill, in Clauses 9 and 13. Yet the Bill says nothing about the importance of providing this kind of intermediate care—what is increasingly referred to as reablement, which we used to know as rehabilitation. Reablement perhaps focuses more on getting people over the immediate short-term crisis. The Bill says nothing about these things. This is especially regrettable when you consider that a structured programme of rehabilitation and the provision of minor aids and adaptations can be just the services that the blind and partially sighted, and many other adults who become disabled, need most if they are to remain independent. Clause 2 on prevention will therefore need strengthening if we are to move towards a care and support system with prevention at its heart. At the moment, the accountability for fulfilling the preventing needs duties is weak so, when we come to Committee, I shall look for amendments to strengthen the lines of accountability through health and well-being boards.

The Bill has changed to signal the Government’s intention to set out specifications for different types of preventive services and to whom or for how long they might be available. What are the Government’s intentions with regard to regulations here? Will those adults who need a short burst of intermediate care, or perhaps even longer bursts of specialist rehabilitation, get the help that they need? Can the Minister confirm that intermediate care and other qualifying services such as community equipment will remain free of charge, as today?

One of the most important areas for reform of social care concerns the question of eligibility. The Bill will fail to improve the social care system for disabled and elderly people if eligibility is set too high. We are all familiar with the impact that slashing social care budgets has had; many local authorities have been raising the threshold at which people become eligible for support. In 2005, 50% of local authorities set their eligibility criteria at moderate needs; by 2012, 84% were setting their eligibility criteria at the higher, substantial needs level. As a result, just 14% of those with moderate needs are receiving care, and at least 800,000 people with care needs are not receiving any support at all. The introduction of a national eligibility threshold under the Bill is thus most welcome, but it will do little good unless the threshold can be set at the equivalent of moderate under the fair access to care services system, and the Secretary of State is required to have regard to the duty of local authorities to promote individual well-being in setting the threshold.

There is no denying that this will be a daunting challenge, but there can only be dividends to be reaped from putting in the necessary support before things reach crisis level. In its Cutting the Cake Fairly report from 2008, the Commission for Social Care Inspection reported that needs assessments were unduly standardised. We need to get away from generic needs assessments and, instead, match disabled adults undergoing assessment with the specialist assessors who are best qualified to determine their care and support needs.

Clause 12 paves the way for specialist needs assessments. However, if I am not mistaken, Clause 12(1)(f) is actually weaker than the corresponding clause in the draft Care and Support Bill. This clearly needs to be put right. If blind, partially sighted and other disabled people who need one were to receive a specialist needs assessment undertaken by a person with expertise in the relevant field, there would be a stronger chance of their care needs being identified as the often substantial needs they really are.

NHS: Death at Home

Lord Low of Dalston Excerpts

Thursday 8th November 2012 Lords Chamber

[Lord Low of Dalston]

My Lords, I, too, thank the noble Lord, Lord Warner, for tabling this important debate. It could not be more timely, in the light of the Government’s plans announced this week to strengthen the NHS constitution. In life, we are largely trusted and enabled to make decisions for ourselves. There is no reason why people should be denied this right and responsibility when they are dying. As we have heard, surveys indicate that there is a large gap between where people say they would prefer to die and where they actually do die. One survey on behalf of Cicely Saunders International found that 60% of people would prefer to die at home, but in 2010 only 21% actually did so, with 53% of people dying in hospital. This is not a slight on hospitals and their dedicated staff, though misplaced ethics of keeping people alive in the teeth of the inevitable and conservative protocols on pain relief for fear of being accused of hastening the end mean that palliative care is not always all that is claimed for it. As Prue Leith so movingly testified in the Spectator article of 27 October, rather it is a comment on the benefits of dying in your own home. At the end of life it is often unquantifiable things which can greatly increase somebody’s comfort—being in your own surroundings with those you love—though, again, the importance of good palliative care cannot be overstated. The latest figures for 2010-11 show that whereas just one in five people nationally died at home, a third of those receiving specialist palliative care did. This demonstrates the importance of specialist care in enabling people to die at home with appropriate support and the variation in what is available in different areas.

Of course, some people would prefer to die in hospital. For others, with complex care needs, it may be impractical for them to die at home. However, when someone does want to die at home, we must strive to do all we can to respect and act on their wish. Specifically, we need to remove the barriers that prevent patients from dying in their preferred place of care: patients’ treatment wishes not being recorded, poor co-ordination of information, inappropriate emergency admissions, lack of effective discharge from hospital, and not having a specialist palliative care team in place.

With this in mind, I greatly welcome efforts both by this Government and their predecessor to improve access to good quality, patient-centred end-of-life care, as set out in the End of Life Care Strategy. Since the publication of the End of Life Care Strategy in 2008, there has been considerable progress in identifying patients nearing the end of life, planning for their care and recording their medical preferences. I am particularly impressed with Coordinate My Care, the electronic end-of-life care register to which the noble Viscount, Lord Craigavon, has just referred, and which was piloted in Sutton and Merton and is now being rolled out across London. Coordinate My Care records patients’ end-of-life preferences and can be accessed by all relevant professionals. The tool ensures that patient information is shared effectively. Alongside this, it prevents unnecessary hospital admissions and allows patients to have the kind of death they want by enabling healthcare professionals to deliver the level of medical intervention decided by the patient. Preliminary audit shows an increase in the number of patients dying in their preferred place of care. Indeed, the tool appears to have had quite a dramatic impact, with people dying in hospital falling from 66% to 21% in the pilot areas. If the success of the scheme is confirmed, I hope that it can be rolled out across the NHS.

That brings me to the NHS constitution and the proposed changes announced this week. On this, my glass is half full. I welcome changes to ensure that patients and, where appropriate, families and carers, are consulted on end-of-life care decisions. I also welcome the underpinning of compassion, dignity and respect as central values of the NHS. However, the constitution could go further. Specifically, the proposal that people should be given information about test and treatment options should be extended to ensure that patients are made aware of their care options, including the use of patient preference tools. This could encompass advance care-planning tools, such as Coordinate My Care, which allow patients to state their treatment preferences and a preferred place of care, and to decide in advance, with legally binding effect, that they do not wish to receive treatment. Good care and treatment go hand in hand, and this should be reinforced by the constitution. The development and provision of end-of-life care has come a long way in a relatively short space of time. The efforts of all involved should be applauded. However, we can do more and should do more in the knowledge that choice and control are central to ensuring dignity in dying.

Health and Social Care Bill

Lord Low of Dalston Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Rix]

My Lords, I wish to support Amendment 292A, tabled by my noble friend Lady Greengross. As I am sure your Lordships will appreciate, I approach this issue from the perspective of people with a learning disability and would argue that the provisions of the Human Rights Act should be universally applied and not dependent as to whether an individual receives personal care in a residential setting or in their own home. Such a disparity is both unfair and unjustified, and it is right that we take the necessary steps to clarify matters.

For example, let me remind your Lordships of the appalling abuse highlighted by the BBC’s “Panorama” programme in May of last year. Winterbourne View, near Bristol, was a privately owned assessment and treatment centre where residents with a learning disability were subject to an horrendous culture of ongoing bullying combined with physical and psychological abuse.

I make reference to the abuse at Winterbourne View because, following an amendment in 2008 to the then Health and Social Care Bill, which is now the Act, the law was changed to ensure that care homes in the private and third sectors, when providing care that is publicly commissioned, were within the scope of the Human Rights Act. This was the correct step to take and ensures that all legislation, regulations and guidance regarding personal care which is publicly commissioned and provided for in residential settings is underpinned by the tenets of the Human Rights Act.

For those who face the ongoing consequences of prejudice and discrimination every day of their lives—such as people with a learning disability—the Human Rights Act can have benefits that go well beyond the preconceptions of those who are eager to dismiss it as a dangerous irrelevance. However, while the individuals concerned who suffered abuse in Winterbourne View or any other residential setting are able to turn to the Human Rights Act in seeking recourse for what occurred, if a similar type of abuse happened while they were receiving publicly funded personal care within the parameters of their own home, it may be assumed by victims, local authorities and others that they would not be able to do so due to the lack of clarity. This is self-evidently a completely unacceptable state of affairs and we should not be willing to tolerate such an absurd inconsistency. I would also add that if the CQC had the resources to undertake a greater number of unannounced inspections in all residential settings, it would be easier to identify abuse at an even earlier stage.

When applying the Human Rights Act the principle question must be, “To what extent has an individual’s human rights been violated?”. It should not be, “Under what type of roof did the alleged abuse take place?”. In my view, abuse is abuse is abuse, and it is as simple as that. Respecting an individual’s human rights should be universally applied and not subject to arbitrary levels of determination, such as the situation in which we currently find ourselves.

The Government claim that the loophole does not exist and so there is no need for the matter to be clarified in the way that the amendment requires. What is not in doubt is that, under the current circumstances, it is explicit under statute that when receiving publicly funded personal care services in residential settings, an individual’s human rights can be upheld via the Human Rights Act. However, when that care is received in their own homes, the situation is much more ambiguous and less certain. Therefore, I remain hopeful that the support of Ministers for this amendment will be willingly and freely given.

[Lord Low of Dalston]

My Lords, I have put my name to this amendment because it seems very clear to me that we do need legislation to clarify the uncertain state of the law relating to the provision of health and social care services commissioned from the private and voluntary sectors. We know how we got to this point. Despite the intention of the then Government that responsibility under the Human Rights Act should generally follow the outsourcing of state functions, in the case of YL v Birmingham City Council the House of Lords held that a private company providing residential care under a contract with a local authority was not carrying out a public function for the purposes of the Human Rights Act. This human rights loophole was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. The YL case did not directly deal with the question of health or home care services contracted out by the NHS or local authorities, so neither did the Health and Social Care Act 2008 in seeking to undo the YL decision. Thus there remains a lacuna in the law which needs to be addressed.

During the debates on this Bill in Committee, and in a subsequent letter to Peers, the noble Earl, Lord Howe, raised no objections to the Human Rights Act applying to home care provided by private and third sector organisations. Indeed, his letter maintained that publicly commissioned home care is already covered by the Act.

Similar considerations apply in relation to healthcare, because the current Health and Social Care Bill will mean more independent providers being commissioned to provide NHS services. In correspondence with the Joint Committee on Human Rights, the Government raised no policy objections to the Human Rights Act extending to outsourced NHS services. Indeed, here too the Government have indicated that providing outsourced NHS services already qualifies as a public function under the Human Rights Act, so there is no need for the law to be clarified.

The Equality and Human Rights Commission, after exhaustive legal analysis, has concluded that the matter is by no means so clear-cut. I have a detailed legal briefing here, but your Lordships will be relieved to hear that I do not intend to read it out.

[A noble Lord]

A shame.

[Lord Low of Dalston]

There speaks a lawyer. Suffice it to say that everything about the matter is extremely complex and open to question, interpretation or qualification. The YL case took many by surprise. It was hardly clear-cut—the Law Lords were split three to two. They used a factor-based approach to determining whether an organisation other than a public authority is performing functions of a public nature. However, it is fair to say that each and every one of the factors employed is hedged about with qualifications.

In support of its view on outsourced NHS services, the Department of Health cites the Weaver case, where the Court of Appeal decided—once more by a majority—that a registered social landlord was performing a public function when allocating and managing social housing. However, some legal commentators thought that this was a surprising decision too, because it sits oddly with the YL case. This again emphasises the ambiguity of the case law and indicates that the outcome of future cases cannot easily be predicted. Indeed, an opinion obtained by the EHRC from senior counsel suggests that the reverse is the case. After detailed legal analysis of the statutory framework and case law, counsel concluded that each aspect of the Law Lords’ negative reasoning regarding residential care in the YL case applies equally to the provision by private care providers of home care services.

Health and Social Care Bill

Lord Low of Dalston Excerpts

Thursday 8th March 2012 Lords Chamber

[Lord Warner]

My Lords, I speak from a background of having been a director of social services and being involved in reforming youth justice. Collectively, the adult world is very bad at representing the needs of children to service providers. It would be a modest but important change in this legislation if we brought out that the term “people” does include adults and children. A lot of people in the adult world simply assume that “people” means “adults” and does not mean “children”. We see in the NHS, for example, particularly for the teenage years, that services are often provided in a way which is almost bound to deter engagement and involvement by young people in receiving those services and in dealing with some of the problems that they have.

We need to change the culture. We must ensure that in the new healthwatch system—whether it is the one that some of us would have liked or the one that there will actually be—people are sensitive to the needs of children, particularly at the local healthwatch level, and that those needs are not overlooked. It is not just a matter of making children feel better and that they are being listened to. It is actually about how we can get the services shaped to head off at a much earlier stage some of the trouble that is looming for many of these children, in terms of obesity, drugs, sexual health and unwanted pregnancy. I hope that the Government will listen sympathetically to this and move the kind of amendment that my noble friend Lady Massey has moved so ably.

[Lord Low of Dalston]

My Lords, I cannot speak with anything like the authority of the noble Baroness, Lady Finlay. Few of us can. The noble Baroness, Lady Massey, has obviously been working off the same brief that I have been looking at, so there is little that I can add to what she said. However, I was struck by the research findings that she told us about, which make clear the lack of attention that is paid to the involvement of children. I note also that there were concerns expressed around the involvement of children in patient and public voice mechanisms in the NHS. These concerns were reflected in the report of the Future Forum. Therefore, I think there is every reason to make the involvement of children explicit on the face of the Bill.

[Baroness Thornton]

My Lords, we welcome the amendments. Anxiety has been expressed by children’s organisations on two fronts throughout the course of the Bill. One is that the fragmentation and reorganisation proposed in the Bill mean that the safeguarding of children’s health may be lost in some way. The second is that it is not clear that children’s voices will be heard, which is the subject of these two very modest amendments. I hope that the Government will accept them. I cannot see any reason why they should not.

--- Later in debate ---

[Lord Low of Dalston]

My Lords, I will be briefer than but have a good deal of sympathy with the noble Lord, Lord Harris, who has just spoken. It seems that the consumer’s voice in the health service has been progressively watered down since the days of community health councils—almost to the point of extinction in the legislation before us. As is clear from the debate, there are many concerns over the question of independence, nowhere more than in relation to the proposed structure in which, as I understand it, there is no longer to be a distinct healthwatch organisation. Rather, local authorities will be able to put the local healthwatch functions out to tender on a piecemeal basis.

I apologise to noble Lords but my technology is playing up a bit today. Concerns have particularly focused on the threat to independence which might arise from the possibility that, in the current climate, local authorities will seek to retain some of the healthwatch funding for other purposes, given that it is not ring-fenced. The proposed funding regime is the same that obtains for LINks—that is, from central government via the local authority. We can perhaps gain some idea of the credibility of the concern by considering what has happened in relation to LINks funding.

In a study of LINks funding for the current financial year, the National Association of LINks Members revealed that most LINks had their funding cut. An informant from my local LINk told me that after discussion that he has had with other LINks it would appear that a number of local authorities will keep the funding of LINks for 2012-13 at the same level as for the present year. The effect is that while the Department of Health may have increased the funding of LINks to allow for inflation, that is not being passed on. He says that in respect of his own LINk in Hackney, in 2010-11 it received £206,000, which represented the whole amount of the funding provided by the Department of Health. In 2011-12, only £100,000 was provided, and the same amount will be provided for 2012-13.

In relation to the argument that local authorities may retain some of the funding for HealthWatch, the Government argue that local authorities will be under a statutory duty to fund HealthWatch. That may be true, but local authorities are currently under a similar duty in relation to LINks and that has not stopped them cutting LINks budgets. For that reason, as well as for conflict of interest and status reasons, HealthWatch needs to be a consolidated, coherent and independent body with standing—or at least, as a minimum, to have a ring-fenced budget.

Health: Breast Cancer

Lord Low of Dalston Excerpts

Thursday 12th January 2012 Lords Chamber

[Earl Howe]

We believe that in many instances private practitioners have a legal duty—certainly a moral duty —to address these matters on behalf of their patients. Eight private companies are offering to replace implants for their patients. We welcome that and are urging the Harley Medical Group to follow suit. I was encouraged to hear that the professional bodies representing cosmetic surgeons have sent out a letter, urging surgeons not to charge for their time when they remove these implants privately.

As regards the first part of my noble friend’s question, it remains to be seen whether there has been a failure of regulation. We are looking here at a deliberate criminal act by the manufacturer of these implants. It is very difficult to see how regulation, however tight and effective, could pick up something such as this, where there has been a deliberate effort to conceal facts from the inspectors.

[Lord Low of Dalston]

Would the noble Earl not agree with me that the kind of behaviour by private companies that we are talking about, whereby they seek to wash their hands of problems that they have created, is the kind of thing that we will see a lot more of once the provisions regarding increased competition in the National Health Service contained in the Health and Social Care Bill come into force?

[Earl Howe]

I could not disagree more with the noble Lord. He refers to the policy of “any qualified provider”. That policy gives absolute assurance to every NHS patient about the quality of the treatment that they get if they are treated by the NHS, whatever the provider setting. Therefore, the idea that this incident has any bearing on the provisions of the Health and Social Care Bill is absolutely misplaced. I cannot emphasise that more.

Health and Social Care Bill

Lord Low of Dalston Excerpts

Wednesday 21st December 2011 Lords Chamber

Finally, perhaps I may make an observation to the Minister. With good reason, the Government have put quite a lot of detail about the workings of the information centre into the Bill. I for one have no quarrel with that and have proposed a bit more detail myself. However, in this Committee, I and others have tried to have more detailed requirements on financial management and performance information put into the Bill, which are areas in which the NHS has often proved to be weak. The Government have resisted putting more detailed requirements of that kind into the Bill. I find that puzzling. Why is it so important to be more prescriptive about the workings of the information centre but not about the weak financial management systems of the NHS, which have contributed so much to previous NHS financial crises and will do so again as the NHS lurches towards the next one? I would welcome the Minister’s observations on this before I prepare amendments on financial management information for Report. I beg to move Amendment 346.

[Lord Low of Dalston]

My Lords, I want to speak to Amendment 347B to Clause 247. It teases out the kind of argument made by the noble Lord, Lord Warner, in a more specific form. This probing amendment has the aim of finding out more about the Government’s approach to information provided to patients in accessible forms. Perhaps I have missed something, but I could not find much in the Bill about the provision of information to patients, but given the importance of the principle of “Nothing about me without me”, this would seem to be a serious omission. The provision of information in a form that people can use is a sine qua non of patient empowerment. It allows patients to take control of their situation. Without it, you can hardly get to first base. Maybe the Bill could do with some fleshing out in this regard, and I would certainly welcome the Minister’s views on that.

In the rest of my remarks I want to concentrate on the question of providing information in a form in which people can use it. My particular angle on this is that it should be published in an accessible form so that people with a print disability can handle it, which is what my amendment deals with. It would enable the Secretary of State or the NHS Commissioning Board to publish information standards containing a requirement to record patients’ preferred reading format, whether standard print, large print, audio or Braille. This is an essential precursor to communicating effectively with patients who have print disabilities and giving them proper access to vital information about their health. It will immediately be clear that I have a direct personal interest in this, but I should also declare my interest as a vice-president of the RNIB, the leading charity representing the interests of blind and partially sighted people, for which improving access to information is a major objective of policy and campaigning.

I have raised this issue regularly in the House with cross-party support in debates on local democracy, local transport and other issues, and the matter was dealt with generically in the Equality Act 2010. Ministers have invariably been sympathetic, but I am sorry to say that we still have some way to go in making the provisions of that Act a reality in practice. Article 21 of the recently adopted UN Convention on the Rights of Persons with Disabilities on freedom of expression of opinion and access to information, which the UK has ratified, says that states parties should be,

“providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost”.

Yet in the area of health services it is not so long since a survey of blind and partially sighted people in the UK showed that 95 per cent of respondents had never received health advice leaflets or information from their local surgery in their preferred format; 96 per cent had never received letters from their GP, the results of tests or other correspondence in their preferred format; 95 per cent had never received medicines labelled in large print; and the NHS was apparently unable to send out appointment letters in an accessible format.

Research for the RNIB carried out by Dr Foster in 2010 showed that things had improved a bit in recent years but that there was still a considerable way to go. In the Dr Foster survey, 72 per cent of those questioned were given information by their GP in a form in which they could not read it. Similar, even higher figures were uncovered in relation to the rest of the NHS. This included information ranging from appointment letters to confidential test results, which is not the sort of thing that you would necessarily want someone else to read to you.

I recently moved house and joined a new GP practice. I was pleased to be asked on the form that I was required to complete in order to register whether I would like information in Braille. This was as novel as it was gratifying. I do not delude myself that this amendment would be a panacea, but it would take us a long way further forward than the guidance that we have at the moment, which clearly is not working.

[Lord Owen]

My Lords, I shall speak to Amendment 347A, particularly the phrase,

“to exercise informed choice by ensuring maximum transparency of dissemination”.

The House may remember that, at an earlier stage, I raised European Community law and the need to have a great deal more information about this issue. It is all very well for the Government to initiate this rather broad guidance about publishing information and information standards; it gives the impression that they are interested in having a wider debate on transparency. However, I got a letter from the Department of Health only late yesterday telling me that an application that I made under the Freedom of Information Act was being challenged. I started a request on 26 April 2011. I went through all the procedures of internal review on 1 June. I was eventually given a judgment in November, at which point I immediately re-requested the same information. One cannot read this correspondence without getting a sense of obfuscation, of a deliberate refusal to tackle the issues that I have been raising with the department and of a spinning-out of a process during the passage of legislation of the utmost importance to the department.

It is necessary to ask the Minister whether he knows that this letter has come to me following my request on the Floor of the House and his courteous reply that he would look at the question. I am now told that I would normally have to go through another internal review procedure, which would take, no doubt, another month or more, by which time this Bill will have gone through all its stages and probably left the House of Lords. So underneath this is a deeper question.

I also find it slightly objectionable to have received in reply to the request a more definitive statement of the ministry’s attitude. I shall read out one paragraph in particular:

“Furthermore, we agree that information relating to competition in the NHS and the delivery of healthcare services attracts the public interest”.

We can all agree on that. It goes on to say:

“However, there is much information already in the public domain about how competition law does and does not apply”.

But that is open to serious question. Professors on competition law have been writing to me from university departments saying that this is a very cloudy area and that it is difficult to get a lot of the information. The letter goes on to say:

“This includes recently published guidance by the Office of Fair Trading on the application of competition law to public bodies and comment on the case law relating to public purchases, which suggest that these are unlikely to be considered as undertakings and therefore could not be considered under competition law”.

Health and Social Care Bill

Lord Low of Dalston Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Ramsbotham]

My Lords, I rise to speak to my amendment, Amendment 330C, which relates to the fact that offender health is a public health—particularly prison health—issue. Since almost every prisoner will be released, their mental and physical state when they are is therefore a matter of public interest. I wish to speak to something related to imprisonment, rather than to imprisonment itself. There are two other activities associated with this part of the Bill which also affect activities of other ministries, the Ministry of Justice and of course the Home Office, to which I would like to draw attention.

As we all know, prisons are wells of psychiatric morbidity. At one end of the spectrum, some 500 prisoners have to be transferred to special hospitals each year. At the other end, some 70 per cent are suffering from at least two personality disorders which are bound to impact upon their behaviour. Prisons are also the unfortunate recipients of people who were in asylums, until these were abolished. To prevent that happening the previous Government initiated a report, conducted by the noble Lord, Lord Bradley, on diverting people with mental health problems away from prison. This was a very, very comprehensive report, with recommendations which affected the courts and the police in particular. This Government, as I understand, have accepted the recommendations and are working towards them. However, they of course depend on there being proper mental health assessment and treatment available at the point where a person comes into contact with the criminal justice system. This is usually at a police station, to start with, and then at a court. I have been to see one of the pilot schemes in Brighton, where an extremely able psychiatric nurse in the court was able to divert people away from imprisonment, not least because they had taken enormous trouble to ensure that the necessary support for people with mental health problems was available from that moment on. Without that support being available, the scheme becomes worthless. However, before that, the first time that people come into contact with the system is in police stations. What worries me about progress in the future is that unless there is a police representative on health and well-being boards able to represent the needs of the people who make those assessments at the police station, the diversion scheme could fail at its start. The purpose of my amendment, therefore, is to ask the Minister to consider very seriously the addition of a police representative on health and well-being boards, to make certain that the needs of police stations are represented at source, in every area of the country where diversion schemes will start.

I say this because when I started inspecting prisons, I discovered that prisons, alone in this country, were not part of the National Health Service. Indeed, they did not become part of the National Health Service until 2003. The result of that was that the needs of people from prisons were not built into National Health Service estimates, and so they were always competing for other requirements. To avoid that error being repeated, I therefore believe that it is essential to have police representation at the place where planning is carried out.

My second area is to do with probation. With regard to the plans—“Breaking the Cycle”, the rehabilitation revolution and all the noise that has come from the Ministry of Justice about reducing the prison population and providing alternatives to custody—most of that comes down to the probation service. There is absolutely no reason why the probation service should not carry out exactly the same programme as happens in prisons; that is, people are assessed, programmes are made and conducted, and then the person is transitioned into the community. There is no reason why the assessing, the programming and the supervision of mental and physical health treatment should not happen to somebody on probation in exactly the same way as it happens in prison. However, the probation service needs help and guidance in the provision of that assessment and programming. That is why I am asking the Minister to consider that a representative of the probation service should be included on the health and well-being board, in order to ensure that its needs are included in the plans, so that the probation service can make the delivery of community sentences more effective and more acceptable in the public eye, and is therefore able to contribute to what the Secretary of State for Justice is seeking; namely, a reduction in the prison population.

[Lord Low of Dalston]

My Lords, I add my voice very briefly to those of the noble Baronesses, Lady Wilkins and Lady Finlay, in support of Amendment 330A, which provides that health and well-being boards should include a representative of education providers in the area. The noble Baroness, Lady Wilkins, has spoken to the amendment very fully and ably; however, perhaps I can underline the point to which she has already alluded. When we considered the Education Bill in Grand Committee earlier in the year, there was great concern that the Government wished to remove the duty on schools which had only recently been laid on them, to co-operate with other services in pursuing the welfare of children. We were particularly concerned about this at the time of the riots, when people were emphasising the role that schools had to play in combating exclusion and disaffection among children. I am glad to say that the Government took the force of our point and withdrew the proposal to remove this duty from schools. I hope that the Minister will agree that a joined-up approach would suggest—as the noble Baroness, Lady Wilkins, has argued—that there should be a reciprocal duty on health and well-being boards, at least to include a representative of education providers on the board.

Health and Social Care Bill

Lord Low of Dalston Excerpts

Thursday 15th December 2011 Lords Chamber

Moved by

[Lord Low of Dalston]

317AA: Clause 178, page 177, line 4, leave out “, so far as practicable,”

[Lord Low of Dalston]

My Lords, I rise to move Amendment 317AA and shall also speak to Amendment 317AB, 336B and 336C and 318BA to 318BC, which are in the name of the noble Lord, Lord Whitty.

The Bill contains a number of provisions which relate to the handling of information by various bodies. Amendments 317AA and 317AB relate to HealthWatch England and Amendments 336B and 336C relate to health and well-being boards. Amendments 317AA and 317AB come in Clause 178 and seek to strengthen the safeguards against HealthWatch England publishing information which relates to the private affairs of an individual.

The Bill already contains some safeguards, but I do not believe that they are adequate. Clause 178(4) states that,

“any matter which relates to the private affairs of an individual”

and,

“would or might seriously and prejudicially affect that individual’s interests”,

should be excluded from the reports that HealthWatch England is empowered to produce. But it states that information should be excluded only when it “seriously” prejudices an individual’s interests, not if it prejudices their interests less than seriously—and who decides what is serious and what is prejudicial—and that it should be excluded only “so far as practicable”. It is not clear to me why information that relates to the private affairs of an individual should be published at all. It seems to me that the prohibition should be absolute and that, in Clause 178, proposed new Section 45B(4) should simply read:

“Before publishing a report under subsection (1)(b) or (3), the committee must exclude any matter which relates to the private affairs of an individual”.

That is what Amendments 317AA and 317AB would bring about. Paradoxically, this is a case where no safeguards would be better than the inadequate ones we have in the Bill.

Similarly, health and well-being boards are given wide powers under Clause 196 to request information—powers that are clearly wider than they need to be. As the Bill stands, a health and well-being board can ask a local healthwatch organisation for details of people who have complained or raised concerns about a service and, as the Bill stands, a healthwatch organisation would be obliged to disclose that information. Amendments 336B and 336C would stipulate that no information be requested which would require the disclosure of personal information within the meaning of the Data Protection Act.

The noble Lord, Lord Whitty, will speak in more detail to Amendments 318BA, 318BB and 318BC, which come in Clause 179, but I would like to indicate my support for these amendments. I am aware of concerns that have been raised about the independence of local healthwatch organisations arising from the fact that they will be both funded by and accountable to the local authority. It is explained in paragraph D35 of the integrated impact assessment that this is based on the importance of localism. Paragraph D106 of the integrated impact assessment states:

“There is a risk that tying local HealthWatch into local authorities could reduce their independence and effectiveness”.

So it seems that the imperatives of localism trumped those of independence and effectiveness.

The integrated impact assessment goes on to recognise that the duty on local authorities to fund local healthwatch arrangements may be perceived as giving rise to a conflict of interest for local authorities, given the role of local healthwatch organisations in relation to scrutiny. It is stated that work is under way to map out the concept of independence for local healthwatch organisations, and to use this to promote the arrangements as accountable to local government for performance and to local citizens for the issues raised with commissioners and providers, but we do not know the outcome of this work as yet. The Bill does not provide any detail on the membership of local healthwatch organisations. It is left to regulations to specify who makes appointments to these bodies, and how. It would be extremely helpful if the Minister could give some indication of how this separation of accountabilities, which is evidently envisaged, is to be realised and institutionalised.

In any case, however, the fact that the local authority holds the purse strings remains a risk to the independence of local healthwatch. There is therefore a strong case for local healthwatch organisations not to be funded by the local authority. The argument that the importance of localism requires accountability is not as strong as the need to have effective, independent local services. These amendments would make local healthwatch organisations responsible for their own activities and accountable only to HealthWatch England, rather than the local authority, but I fear the risk from local authority control of the purse strings would still remain.

[Lord Rix]

My Lords, I shall speak to Amendment 324, tabled in my name and those of my noble friends Lord Tenby and Lord Wigley, in this rather Christmas stocking grouping of amendments. This regards the provision of independent advocacy services for people who are in the process of making a complaint against the NHS. This amendment is particularly relevant to the needs of disabled people, including those with a learning disability, and I would like to take this opportunity to declare an interest as president of the Royal Mencap Society.

For those who are unfortunate enough to encounter it, the NHS complaints system is deeply flawed and ineffective. It is complex in its make-up and lengthy during the course of its deliberations. I welcome the Government’s proposal for local authorities to make appropriate provision to support people in the complaints process, through the use of advocacy services. Effective and high-quality advocacy services are of course an essential prerequisite for many families to secure the answers they want and the justice which they really require.

Without this amendment, there is a risk that advocacy support could be started and then abruptly halted some time before any conclusion to the ongoing complaint which has been made. As I have already mentioned, the NHS complaints system is a lengthy and complex process and the level and scope of advocacy support made available by local authorities should reflect this.

I am also aware that in some cases advocacy support services have been denied to families, as the level of support deemed necessary has been regarded as too onerous and burdensome on the provider. This is an unacceptable state of affairs, where people are denied the help they need on the basis that they may need too much help. At a time when families could be dealing with the emotional upheaval and distress of coping with the loss of a loved one, any uncertainty about the level and period of advocacy available to them is, to put it somewhat generously, an unhelpful distraction. This is why I believe it necessary to ensure that advocacy support during the NHS complaints system is not restricted in length and type for those families who need it. This amendment would help to provide such a guarantee.

--- Later in debate ---

[Lord Low of Dalston]

I am grateful to the Minister for the way in which she appeared to take the force of the points that I was making with my amendments about the use of information. When she referred to the overarching effect of the Data Protection Act it appeared that she was listening more to my amendments about health and well-being boards than those relating to HealthWatch England, but I will wait to receive the letter that she kindly has promised to write to see how fully she has taken the force of my points in relation to both those bodies. I was encouraged by what she said so for now I will withdraw my amendment.

Amendment 317AA withdrawn.

Health and Social Care Bill

Lord Low of Dalston Excerpts

Tuesday 13th December 2011 Lords Chamber

[Baroness Greengross]

My Lords, I was recently privileged to be the lead commissioner for the Equality and Human Rights Commission on an inquiry, looking at the human rights of older people in their own homes in need of care and support. This inquiry was a very large one with a lot of evidence, involving 500,000 people in total in this country. We found that half of the people were very happy with the care they received. The other half—250,000 people—were rightly not happy with what had happened. There were awful instances of people being abandoned for 10 or 12 hours, having no social interaction or opportunity to talk or chat. They were left without care for many hours. These are very bad instances of poor care and I really believe that had the staff of the 250,000 people been trained properly in what the tool of human rights can achieve—and if their managers had understood that—a whole lot of these instances of very poor care would not have taken place.

My amendment is designed to ensure some clarity on the application of the Human Rights Act to domiciliary care services commissioned from private and third-sector organisations. This amendment would clarify that providing these services is a public function within the meaning of Section 6(3)(b) of the Human Rights Act 1998. It would bring domiciliary care in line with residential care; similarly, this amendment would confirm that health care services commissioned from private and third-sector organisations fall within the scope of the Human Rights Act. It would clarify the extent of the public sector equality duty because the definition of public function under the Human Rights Act also determines the definition of public function under Section 150(5) of the Equality Act 2010 for the purposes of the public sector equality duty. My amendment also uses wording which is consistent with Schedule 1 to the Health and Social Care Act 2008.

In 2008, Parliament introduced amendments to the Health and Social Care Bill—now the Act—to overturn previous case law and ensure that private and third-sector care homes were defined as carrying out a public function. We were delighted that that applied and that they therefore came under the scope of the Human Rights Act. This received cross-party support and was the result of a long campaign by the EHRC and also the Joint Committee on Human Rights. The campaign aimed to ensure that organisations receiving public money were subject to proper regulation.

We also know that a similar problem is likely to be the case in healthcare if the care is commissioned by the health service to private or third-sector organisations. It is very important to make this clear because the fact that private and third-sector providers operate at the moment outside the scope of the Human Rights Act undermines, or threatens to undermine, the pioneering work of the Department of Health itself in promoting its Dignity in Care campaign. Further, the Health Service Ombudsman has recently documented 10 investigations into NHS care. All of that demonstrates that we need clarity in order to get this right and make sure that people are protected. We must be certain that people are not subjected to breaches of human rights which no one can do much about in the present situation.

I have cut short what I was going to say because it is late, but I do want to say that support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is, in providing that sort of service, performing a public function within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support the amendment.

[Lord Low of Dalston]

My Lords, I have added my name to Amendment 295G, to which my noble friend Lady Greengross has just spoken, and I strongly support it. As she made clear, it would put an extremely important point beyond doubt. I want briefly to underline three key points.

First, it would remove a major ambiguity about the scope of human rights legislation in relation to health and social care, and with it persisting doubt about the rights of those in receipt of health and social care services. Despite the then Government’s intention that responsibility under the Human Rights Act should follow the outsourcing of state functions, it was generally understood—this was confirmed in the case of YL against Birmingham City Council—that the Human Rights Act covered only residential care provided by local authorities. Private and voluntary organisations that provided care home services under a contract with a local authority were not considered to be performing public functions under the Human Rights Act because there was only a contractual relationship between the parties, and so were not covered. This loophole, as my noble friend Lady Greengross has explained, was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. It did not apply to contracted-out social care services provided in people’s homes. The purpose of the amendment is therefore to clarify that the Human Rights Act extends to services provided in people’s homes when provided under contract to a public authority and would remove all ambiguity as to whether the Human Rights Act applies to such services when commissioned from private and voluntary organisations.

As my noble friend has explained, a similar issue arises in relation to health services, especially given the significant increase in the commissioning of NHS services from private and voluntary providers envisaged by the present Bill. Amendment 295G would also place beyond doubt that private and voluntary providers of healthcare services fall within the scope of the Human Rights Act and the public sector equality duty, putting them on a similar footing to providers of residential social care. The amendment would therefore make it clear that those who receive publicly funded health and home care services provided by the private and voluntary sector are guaranteed the same levels of protection and rights to redress as those who receive services provided directly by the state, placing them on the same statutory footing as those who receive residential care services commissioned from the private and voluntary sector.

This is not just a matter of academic importance—the removal of a minor technical anomaly. Quite apart from the fact that it puts beyond doubt that a significant swathe of health and social care provision is within the scope of the Human Rights Act, local authority provision of home care services has been on a downward trend for the past couple of decades, with the result that the state now directly provides only 16 per cent of publicly funded services. This means that 84 per cent of such services are provided by the private and voluntary sector. This figure was less than 5 per cent in 1993. Indeed, the proportion of care delivered by the private and voluntary sector has gone up from 56 per cent to 84 per cent in the last 10 years. This means that the possibility that people in receipt of health and social care services may be deprived of the protection of the Human Rights Act has moved from being an issue at the margins of the field of health and social care to being one of central—indeed, dominating—importance.