Health and Social Care Bill

Lord Mawhinney Excerpts

Tuesday 25th October 2011 Lords Chamber

[The Earl of Listowel]

My Lords, I am most grateful to the noble Baroness for this debate on the primacy of patient care. It is very important. All noble Lords may well agree that this is fundamental, so I hope they will forgive me if I raise one concern with the Minister, which has been raised by people who practise in the NHS. The constant changes to the National Health Service over many years, particularly in England, have undermined, to some degree, our efforts to deliver the best to our patients. It is something I am familiar with from speaking to child mental health professionals in the past. They have complained that constant change undermines their ability to make relationships with other professionals work effectively around the child. Also, they get to know a commissioner who then changes. It is a different area, but social workers have also raised with me the issue of local authority changes. I remember speaking to a local authority social worker on a Friday evening who was despairing at yet another structural change to social service provision within the local authority.

In its briefing to Members of your Lordships’ House on the Bill, the Nuffield Foundation also expressed concern at the constant changes to the NHS and the short horizons. One Secretary of State may make changes but then a new Government arrive and there is another upheaval. I recognise what the noble Baroness, Lady Williams, says: flexibility and changes are needed, but my sense from speaking to the professionals and expert think tanks is that there has been too much change over a continual period. This was reinforced in the briefing that the presidents of the royal colleges gave to Members of your Lordships’ House this week, in which the president of the Royal College of General Practitioners finished with a very powerful plea: “Please, give us some stability; please stop changing the NHS”. She particularly alluded to the experience in Scotland. If I remember correctly, she said that for about the same investment Scotland has better productivity. She lays this at the door of the fact that over several years there has been some stability within the health service there. I take this opportunity to ask the Minister whether, in future, he will keep in mind the need to allow important changes to bed down. Perhaps we could build a bit more of a consensus on what needs to be done, recruit and retain the best professionals on the ground and allow them to evolve the best practices. Then we will see better outcomes for our patients, with a similar input.

[Lord Mawhinney]

My Lords, the noble Lord, Lord Hennessey, started by reminding us that preambles have somewhat gone out of fashion. Personally, that does not bother me one way or the other: if there is value in a preamble, we ought to get serious about that value, whether or not it is a common occurrence. However, I want very gently to take issue with the noble Baronesses, Lady Williams and Lady Jolly. I do not think we should be rushing on; this amendment requires serious consideration, not least because it is headed:

“Principles of the Health Service in England”.

I have been in this place, at both ends, for long enough to know that if we nod this preamble through so that we can get on to the meat of the Bill, for 10 or 20 days in Committee, or whatever it takes, noble Members will keep reverting to the fact that we have already established the principles in the preamble and that will determine how we should proceed. That is not helpful, certainly not if we have nodded this through as a “God, motherhood and apple pie” type of procedure.

I was struck by the introductory comments of the noble Baroness, Lady Thornton. I liked her phrase “borrowed and blue”—that was very imaginative. Whether it was meant to detract or distract from the substance of the words we will never know, because she did not spend much time talking about the substance of the words. However, I put it to her: how can you have a principle when the person who is moving it says, “I am a bit worried about the words ‘not the market’ but, hey, we all know what it means”? The truth is that we do not know what it means and I hope that the noble Baroness, Lady Williams, will not take it amiss if I say that if this is borrowed from a motion to a Lib Dem conference, we are probably even less likely to understand what it means. We cannot have a principle when nobody knows what its words are actually saying, including the noble Baroness who moved them.

Proposed new subsection (3) talks about:

“The primacy of patient care”.

I am an extremely privileged individual: I have served in this building for 32 years, as a Health Minister for a few of those years. No matter who is in government and who is in opposition, I have never heard anybody promote a proposal on the health service that is not predicated on the words “the primacy of patient care”. It is one of those phrases that we all use to reassure everybody, particularly those who do not agree with us, that actually, deep down, we are all right when it comes to the NHS. I have done it; I see others in this Chamber who have done it in my hearing, and I say to the noble Baroness, Lady Thornton, that I do not know what it means as a principle. It has to have some meat attached to it to have any substance, which it does not.

Since I have taken issue with the noble Baroness, Lady Williams, let me now agree with her comment about the reference to structure. I can hear us nodding this through and then saying, when we get into the meat of the Bill, “Of course, we have already dealt with the principle that the structure must not be changed, so we cannot have this particular amendment and we cannot pursue this particular idea. Let us move on”. Therefore, I have serious reservations about this; not the principle of a preamble, but the substance of what it is we are being asked to accept and the lack of clarity in the amendment. My concern is that this lack of clarity will then be used, unhelpfully, to shape our detailed consideration of the Bill when we get to the principles and the meat—to which I look forward.

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[Lord Mawhinney]

My Lords, it is hard to think of any group of people in this country who have had the opportunity to listen to six such distinguished medics talking about what is in the best interests of patients and the common good. It has been a privilege to listen to them all. I am conscious that I am not remotely on the same level as they are, although in a previous life I spent three years teaching medical students at the University of Iowa, 19 years teaching medical students at the Royal Free Hospital School of Medicine, and did a bit of radiography student teaching on the side. So I have some sense of the importance of the issue that we are discussing. I have a personal sense of its importance because, since I stopped teaching, at least two of those who I taught have subsequently offered me healthcare.

I am pleased that the Government have recognised the importance of education and training, and have tabled their own amendment. If there was any doubt about it, the six speeches that we have had thus far would have removed it. We spent some time in the debate on the previous amendment talking about the primacy of patient care. It does not make a lot of sense to talk about the primacy of patient care unless you have an education and training system that gives substance across the many activities that constitute our health service. Education and training are the sustainers of the importance of the primary care ethos.

My noble friend is in a slightly difficult position. If I understand the circumstances correctly, there will be more difficulties coming on education and training. The Government set out to produce an almost comprehensive re-evaluation of the health service. That was always a big ask. Here we are on day 1, and we have already discovered that that big ask is probably not going to be delivered in quite the way to which the Government aspired. I hope that my noble friend will not take the view that we will agree his amendment unadorned and wait for the next Bill that might come along. It is important that there should be some more substance to the Government’s amendment than that which presently exists; welcome though that is.

My noble friend has the privilege of having not only the Department of Health to advise him, but, as we have heard, international experts in this House, who I am sure will also be willing to give their expertise and experience to him to help draft what might also be helpful in a government amendment.

I finish with two very practical points. First, I absolutely agree with the noble Lord, Lord Winston, about the importance of communication. It is great that the medical profession know what to do to the best of their ability, but if they cannot convey that to the patient, that in itself constitutes a problem. I hope that my noble friend will think about that. The second point is something that I have raised in this House previously. I cannot be the only one who is concerned at the number of newspapers stories about patients going to see their GPs, to be told “You’ve got the flu”, or “You’ve got indigestion”, and within days they are dead because they had cancer, and nobody even identified it. That is a very good example of why training and education is so crucial. I give the Government high marks for their amendment, but I hope that my noble friend will be able to assure us that he can go a bit further.

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[Earl Howe]

I know that is the noble Lord’s concern and of course I understand it. However, it is the policy of the Government to confer functions where they best sit. If the Secretary of State were to intervene at any whiff of trouble, it would run counter to that vision. I believe that there will be ample scope in the next set of amendments to talk about this very subject; but it is very important to understand that we have quite deliberately taken the view that functions, duties and responsibilities should sit with individual bodies and that the Secretary of State should be there to ensure, to the public and Parliament, that those bodies fulfil their duties and functions correctly.

I suggest that we defer the particular issue raised by the noble Lord, Lord Owen—about the degree of system failure that has to occur before the Secretary of State intervenes—to the next set of amendments. The amendment we are dealing with now has to do with the ultimate accountability of the Secretary of State for the education and training system—which I am saying to the Committee is there in our amendment.

[Lord Mawhinney]

I understand why the Minister wants to take this issue in the next set of amendments. A number of us will contribute to that debate, because it is crucial. A moment ago, he said that the Secretary of State would have national co-ordination responsibilities for education and training, which I think was broadly welcomed. My question is simple: is my noble friend willing to put that phrase or convey that aspect in the Bill by amending government Amendment 43?

[Earl Howe]

The trouble with that is that we are straying into the mechanics and the detail of the education and training system, and we are still consulting on how it will work. That is the difficulty I have in answering some of the detailed questions that are being put to me. I can answer many of them, but once we move into particular questions on how the system for education and training will all fit together, it would be imprudent of me to put anything on to the record at this stage.

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[Lord Mawhinney]

I want to go back to what my noble friend said about the Government committing themselves to a national co-ordinating role for education and training. He specified that it was something that the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, would welcome, because they had been asking for it. He said that and we are all pleased that he said it. When I asked him if he would put that in Amendment 43, he said that he could not do it because they were still consulting and thinking and that that was a commitment that he did not feel able to make at the moment. But he has already made the commitment. It is on record that the Government will have a national co-ordinating role. I am not trying to put words in my noble friend’s mouth; those are the words that came out of his mouth. My question was simply, what is there to stop the Government putting those words, that commitment, in Amendment 43?

[Earl Howe]

I am grateful to my noble friend and, naturally, I will give full consideration to his suggestion. The government amendment represents the fulfilment of our undertaking, made in another place and more publicly, to put clearly in the Bill the Secretary of State’s accountability for an education and training system. That is what we have done. It may be that we can go further in the Bill; I will certainly consider that. Our intentions, as I have enunciated them, are clear, but I come back to saying that we do not want to pre-empt the findings of the Future Forum and the wider consultation that we are engaged in.

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[Lord Newton of Braintree]

My Lords, before the noble Lord sits down, to use the classic formula, perhaps I may take the opportunity to say that in a series of debates in which he and I have not always seen eye to eye, I agree with pretty much every word he has just said. In particular, I do not think that we should return to this until we have been through the rest of the Bill and seen where we are on things such as the powers of the Secretary of State, the wording of those powers and the like. The noble Lord has made a very sensible point by saying that we can then form a better judgment about what is required in this area.

[Lord Mawhinney]

My Lords, I want to associate my initial remarks entirely with what my noble friend Lord Newton has just said. The noble Lord, Lord Owen, has given the Committee good advice. I have sat through the whole of today’s debate, as have most of us, and it has been interesting to note how much we have learnt about this Bill simply by talking to and listening to each other. I share the view of the noble Lord, Lord Owen, that the learning process has only just begun and is not nearly complete, so it would be foolish to rush to judgments.

I would say to my noble and learned friend Lord Mackay that he knows there is no one I hold in higher regard than him. The formulation in his amendment is extremely helpful because it encapsulates the legal realities. So if I had to judge on the basis of the legal realities, I think I would favour my noble and learned friend’s amendment.

On the other hand, I should say to the noble Baroness, Lady Williams, that the strength of her amendment lies in the fact that it has 60 to 70 years of continuity. If we are looking for the constitutionally more helpful amendment, it may be that of the noble Baroness. I say that also conscious of the fact that out there, as we keep telling each other, there is a degree of nervousness about this Bill. Some of it is well founded and some of it is scaremongering, a word I have used before. But there is a sense of unease. The continuity of 70 years of using the same language might help to address the issue. That is why I say that constitutionally I lean towards the noble Baroness, Lady Williams, while legally I lean towards my noble and learned friend, and I do not want to make a choice at the moment.

Maybe it is partially because the noble Lord, Lord Newton, and I spent so many years in the other place but, as he said, I too believe that the reality is that out there £128 billion is really rather a lot of money. The idea that when somebody threatens to close the Peterborough Hospital my former constituents are going to settle for the chairman of a quango, no matter how illustrious, experienced or wonderful he is—I do not know the gentleman but I am sure that he is all of those and a whole lot more—is just not in the real world. I tell you that as somebody who can still fairly clearly remember what it was like to be a Member of Parliament. Indeed, I can remember fairly clearly what it was like to be the Health Minister and it is still not in the real world.

The noble Lord, Lord Warner—I promise not to keep doing this—was very helpful to this Committee because he pointed out the Secretary of State’s powers. Unusually, I am not sure my noble friend Lord Newton was quite right when he used Monitor as an example. He was right in the technical sense that the previous legislation set up Monitor apparently free. As my noble friend said that I thought about all the newspaper stories I have read recently about how PFI is falling apart and the mounting debt Monitor is having to deal with because the PFI arrangements for foundation trust hospitals were simply not in the real world. The idea that the Secretary of State for Health is not finding some way to intervene with Monitor—he would have to if Monitor wants more money to offset that debt—shows that the reality of what happens on the ground is extremely important.

I say to my noble friend the Minister that there is one other aspect of this on which, as a simple Belfast boy, I am confused. The NHS Commissioning Board has legal status. As the noble Lord, Lord Warner, reminded us, the Secretary of State gives it a mandate and then it has a legal status. Does that mean that the Secretary of State’s lawyers have to relate to the NHS Commissioning Board’s lawyers if the Secretary of State wants to have some involvement during the course of the year—even if it is only in the context that the noble Lord, Lord Owen, does not like of emergency or failure? We need to have a much clearer grasp of the practical realities of the consequences of this Bill. Whatever the intellectual framework and the ideas that coherently come together to provide esoteric new arrangements, this Bill has to work in the real world. This Committee needs to be encouraged by my noble friend to believe that the Secretary of State is going to be at the heart of making this Bill work in practice.

[Baroness Warwick of Undercliffe]

My Lords, I had not intended to speak but I feel quite anxious that we are contemplating the prospect of not producing an amendment of the kind the Minister suggested he would be willing to accept. I understand the points made by other Peers. I am really conscious of the anxiety that has been expressed in the huge amount of representations, letters, e-mails and so on that we have had.

A point about which I felt strongly at Second Reading is that our own Constitution Committee has indicated anxieties that I think are shared by a large number of people. We need to indicate we are going to take seriously the views of that committee.

Many of the anxieties expressed may either have been caused by scaremongering or become totemic, but they none the less exist. Some of them seem not to be so ill founded. Other speakers have already referred to the fact that, as the Explanatory Notes state, the commissioning and provision of services will no longer be delegated by the Secretary of State, but will be directly conferred on the organisations responsible. As the Select Committee indicates, the Secretary of State must secure that,

“any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate”.

There seem to be at least grounds there for anxiety that the Secretary of State may be seeking to offload responsibility.

I hope that, however long it takes us during these discussions—after some of the discussion on the previous amendment, I became even more anxious about the role of the Secretary of State—we will be able to find a form of words that satisfies the anxieties expressed. I do not know whether that wording should take the form of the amendment of the noble Baroness, Lady Williams, or that of the noble and learned Lord, Lord Mackay, but we should endeavour to allay that anxiety, because it is undermining an awful lot of interest in and support for other parts of the Bill.