Health and Social Care Bill

Lord Newton of Braintree Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I added my name to these amendments, so eloquently introduced, with the evidence behind them informed by my noble friend Lady Emerton. It is important to state that these amendments may not be perfectly worded, as the noble Lord, Lord Alderdice, has pointed out, but the principle behind them has a lot of evidence to it. This is not about protection of a certain number of jobs; this is about the fact that you cannot substitute without having skills, competencies and attitudinal evaluation within a particular area.

There may be staff at different grades who will work in a complementary way and there is complementarity, but you cannot substitute. Physio assistants cannot be used to do what physiotherapists do. The same applies right across the piece. It is not just baseline qualifications, however; it is all the other layers as well. You do not want to be in an intensive care unit nursed by trained nurses who are not fully trained in those ventilators that are in use on that unit, who do not have all the additional skills as well and cannot communicate with patients in that situation and with their families.

As the noble Baroness, Lady Murphy, said, the evidence is overwhelming when you look at intensive care units but it goes right across the piece. I would like to cite briefly what we tried to do in Wales in my own discipline. We set minimum levels for the level of staff and the competencies for palliative care across the whole of Wales. It was not easy to do but it has worked and it has been a lever to drive up standards and drive up quality and to get some people to increase their training and go back to doing more training, without it incurring additional cost.

I recommend to the Minister that the Government look carefully at this amendment and think about some way of ensuring that patients across the whole of the UK will know that they will be looked after by people with the appropriate competencies and that, in times of financial stringency, we do not find that people revert to substitution as a misguided way of saving money which will be at the expense of quality if not at the expense of more than that.

[Lord Newton of Braintree]

My Lords, I wonder if I might come in on the side of the “sympathy but” brigade, which makes me a member of the same club as all those who have spoken before me. I have a lot of sympathy with the purpose of the amendment of the noble Baroness, Lady Emerton, but I worry about the rigidity of their terms in relation to specifying ratios and a maximum number of people that any nurse can deal with. It seems to me that this is a prescription for a degree of inflexibility that could end up closing wards for reasons that would not be sensible.

I am scarred by something that happened at Birmingham Children’s Hospital in my period as Minister for Health; it arose from a shortage of paediatric intensive care nurses. I do not know whether they are still in short supply but that is the kind of problem that would be exaggerated by this kind of rigidity. Nevertheless, the basic thrust of the amendment must be right.

There is only one other point I really want to make. As I understand it, my noble friend is likely to say that this is not something for the health Commissioning Board, but for the Care Quality Commission. I do not accept that. The Care Quality Commission will be doing snapshots, perhaps a bit more vigorously than it has done in the past, sometimes unannounced and so forth, but nevertheless more often than not there will be a snapshot of the situation at a particular time. I cannot see that the Commissioning Board can commission services without specifying something about the standard at which it expects that service to be provided, and that is relevant to this question of staffing levels in a general sense. So while I believe that it would be wrong to say this is all a matter for the Care Quality Commission, equally I do not believe it would be right to be as rigid as some parts of the amendments are at present.

[Lord Patel]

My Lords, I have my name to this amendment and I support it. I agree with all the comments that the noble Baroness, Lady Emerton, has made. I have only two brief comments. One is based on the evidence and the strength of that evidence. The noble Baroness, Lady Murphy, mentioned California, which passed a law based on the evidence. So what is the strength of this evidence? I have looked at the literature, particularly at meta-analysis of all the literature that is produced relating to staffing levels and patient outcomes, including mortality. Meta-analysis involves looking at all the published literature and its methodology, and only those publications with a methodology that is felt to be good are included in the meta-analysis. The meta-analysis clearly shows that if you look at mortality, infection rates, response to arrest and serious episodes, the staffing ratios of registered, trained nurses to patients—I agree with the noble Lord, Lord Alderdice, that training is important—are important in delivering good outcomes.

The second issue is related to whose responsibility it might be to produce the guidance. If it is not the national Commissioning Board, then it ought to be the commissioners of services—the commissioning groups—that should be asked to consider the staffing ratios of each and every department in the provider’s unit before making contracts with them.

--- Later in debate ---

Overall, however, I would say to the noble Baroness, Lady Williams, that I do not think that there is any real disagreement of substance. What is clear is that the Secretary of State is, in the end, the boss and accountable to Parliament. He or she must have intervention powers. They should not be qualified.

[Lord Newton of Braintree]

My Lords, I wonder whether I could chip in, starting with an apology. As a result of the apparent abandonment of the previous set of amendments, I did not realise that this one had started and, therefore, have not followed everything that has been said. My remarks will be correspondingly brief. However, I have heard enough to know that I want to declare my general broad sympathy with the thrust of what the noble Baroness, Lady Williams, proposes and to link myself with the remarks that have just been made by the noble Lord, Lord Hunt, and not least those that were made while I was in the Chamber by the noble Lord, Lord Owen. They all echo something that I, and my noble friend Lord Mawhinney, have tried to say on a number of previous occasions—that there is beginning to be an absence of realism in the Government’s attitude to some of these matters. As I have said several times—and as has been said in other ways by other Peers during this debate—at the end of the day the House of Commons will not accept a Secretary of State who says, “Nothing to do with me, guv”, when something has clearly gone seriously wrong.

If the Secretary of State judges that something is happening that is not in the best interests of the health service, I do not see how he can fail to do something about it; and if he does not have a clear power to do something, I can tell you what will happen. The Government will scratch around in every corner of the Act until they find something that enables them to do something, because the Secretary of State will not be able to tell the House of Commons that he can do nothing. There is a real danger that the Government will immolate themselves, in this House at least, on the basis of an absurd proposition that the Secretary of State can somehow stand back and wash his hands of things when they are going wrong. I hope that this amendment will not be pressed to a Division tonight, because I do not think it would be sensible. We need to reflect on what the Minister says, but he needs to reflect on what is being said to him and to be prepared to come back with something different on Report.

[Lord Warner]

My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State’s mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.

The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.

--- Later in debate ---

That is a pretty wide range and it could have significant budgetary implications. How would those range figures compare with current PCT costs and when will we have firmer figures and a clear global sum for the running costs of CCGs? I hope the Government will not simply brush aside amendments of this kind. It will give me no pleasure to say “I told you so” in a few years’ time.

[Lord Newton of Braintree]

My Lords, perhaps I may chip in once again in seeking that my noble friend should at least listen very carefully to what has been said by the noble Lord, Lord Warner. I probably ought to declare a sort of interest in that my wife is currently a member of a PCT board. I would like some clarity about just what the situation is in this respect. As the noble Lord, Lord Warner, indicated towards the end of his remarks, the contrast between what is being put in place at the moment and what is prospectively going to be put in place is even greater than the actual number of PCTs at present because of what has been done about clustering. At the moment—I do not know the exact figure on clusters—there is an even bigger contrast between, as I say, the number of clusters and the potential number of clinical commissioning groups, with all the costs, potential fragmentation and the rest of it that that might entail.

There is another issue and I just want to find out exactly how the Minister sees the position. Clustering has been achieved not by abolishing or merging PCTs but by appointing the same people to the boards of several PCTs. I think that the House should be clear about that. I want to know from the Minister exactly what is the number of PCTs at the moment; whether that number has in any way been affected by clustering; and whether the PCTs, which still exist as legal entities alongside the clusters which are not legal entities, continue to have all the responsibilities and duties that are assigned to them under the statutory basis on which they were set up in the first instance. PCTs remain the statutory entities. The clusters have no statutory basis at all, and we need to be absolutely clear what the situation is, how many PCTs we have and what their responsibilities are.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group. At first sight the group might seem loosely hung together but there is a common theme running through all this, and that is: how much is all this going to cost? The back-office functions for commissioning are not inconsiderable, and the more that clinical commissioning groups come together, the more some of those back-office functions can be merged and cost-savings made—or at least the more that expenditure can be decreased, because it is not really cost-saving. The document Developing Commissioning Support is quite interesting because it reveals the complexity of many of the back-office support functions that clinical commissioning groups will certainly need. Indeed, GPs themselves are independent contractors to the NHS. In many ways, that is why the amendment in the name of the noble Lord, Lord Hunt, is so sensible. Many of the other people working in the community are actually salaried, so they do not get any financial gain from contributing to a clinical commissioning group, whereas there are financial incentives for general practitioners in different ways of commissioning. For example, they often run out-of-hours services and may effectively be commissioning those from themselves within a particular area.

I want to draw the Committee’s attention to the need for collaboration in commissioning for those patients and groups of patients who have relatively rare but not terribly rare conditions. I shall take motor neurone disease as an example. In Nottingham, there is a properly commissioned neurological network that works across different PCTs with a lead PCT and the patients with motor neurone disease are able to access a pathway of care—a complete package of care—that is consistent with the Motor Neurone Disease Association’s own Year of Care pathway, which it developed to inform commissioning some time ago.

In another area, Southampton, no end-of-life care has been commissioned for motor neurone disease patients over the past five years. That means that patients even have to move to other areas, such as Gloucester, simply to access specialist palliative care when they are aware that they are going to need it at the end of life. That cannot be right. We know perfectly well that when you provide good integrated care, the quality of patients’ lives as their disease progresses can be improved by appropriate interventions. However, without it, it is a council of despair. The PCTs in that area have refused to fund end-of-life care for motor neurone disease patients, and it is an ongoing problem. Recently, two of the commissioners in the PCT were so concerned that they made a business case, but it was not backed by the PCT on financial grounds, because it is short of funding.

There is another problem, and another reason that clinical commissioning groups need to come together and collaborate. Quite a few seem to be looking at using the map of medicine as a basis to inform their commissioning decisions, but the map of medicine was not devised and written to guide commissioning. It was meant to guide clinical decision-making, and it is not complete in any one sector. You need to put the different parts of it together. For example, if you take chronic obstructive pulmonary disease, it does not have end-of-life care within its module. So if you use that module, you will not get the complete package that patients need. You also have to go to the end-of-life care module. Some of us who have looked at it in detail do not think that it is an appropriate template to use for comprehensive commissioning of services integrating processes early in the disease and right on through.

The commissioning groups are going to be on a very steep learning curve. They are going to find things very difficult, and with many small groups, the cost of them trying to do the commissioning will go up, and that is before they have used their funding to actually commission the services for patients that they have responsibility for.

These are very important amendments. This group and the next one get right into the heart of some of the problems that are beginning to emerge over the way that clinical commissioning groups are defined in the Bill.

--- Later in debate ---

[Baroness Tonge]

My Lords, before the Minister gets up, I would like to ask him a very simple question. Noble Lords will have all realised by now that I have no faith in this Bill whatever, and never have had. I think it is totally unnecessary in the current economic circumstances, let alone other circumstances. Will the Minister tell us honestly what the reason was for clinical commissioning groups? Why could we not have kept the PCTs in whatever clusters they have formed together, and put clinicians, GPs, dentists and nurses into those groups to lead the commissioning process? Why did we have to have this massive upheaval to achieve what, according to what most of the speakers here tonight think, is not going to be achieved anyway, as the GPs will not have much input? Perhaps he could explain.

[Lord Newton of Braintree]

My Lords, I apologise for intervening a second time. I want to link with things I raised the first time, because I have been left in some confusion by the noble Baroness, Lady Wall—which is not her fault—said about what has been happening in London. My understanding is that at the beginning of the year the department issued a document suggesting four possible ways of doing clustering. One was along the lines that the noble Baroness spoke about. I forget what all four were, but one was that PCTs should informally group in clusters, create an informal board, and have one of the chairs, perhaps a rotating chair in some cases, who would oversee the informal cluster board. The legally existing boards would continue.

At the back end of September, the department, at least as interpreted in the east of England, issued an edict saying that there were no longer four options. There was to be one, and it would be clustering, based on appointing the same people to more than one PCT board. That raises a number of issues, as my noble friend Lord Mawhinney has indicated with unmistakeable clarity, to which he and possibly I might wish to return later. Meanwhile, how many legally separate PCT boards exist at the moment, who is on them, and were different policies pursued by the department in different parts of the country? What the noble Baroness—my noble friend—Lady Wall said suggested that a different policy had been pursued in London—not for the first time, I may say—than was being pursued in the east of England at least, and possibly everywhere else. We need some clarity, not just on what the future is going to be, but what the present is.

[Earl Howe]

My Lords, the principle behind clinical commissioning is that decisions about local services should be made as close to patients as possible by those who best understand their health needs. This is why the membership of CCGs should comprise GP providers, rather than other primary care providers, such as dentists, opticians and pharmacists who do not have the same relationship with patients or responsibility for a registered list. I hope this answers the question posed by the noble Lord, Lord Hunt, in his Amendment 154. However, of course effective commissioning will require the full range of clinical and professional input.

Although the members of clinical commissioning groups will be GP practices, the groups will be required to obtain advice appropriate for enabling them to effectively discharge their functions from a broad range of healthcare professionals. So this is not a matter of other professions being shut out; quite the opposite. Other professionals may also be invited by the CCG to be members of the CCG governing body and, as regards nurses, regulations may require that governing bodies include certain healthcare professionals, such as a nurse and hospital doctor. Also, other clinicians could be directly involved in influencing the decision-making of the CCG through, for example, membership of a committee of the CCG, without needing to be members. The basic point is that the function of clinical commissioning is directly linked to the function of the general practitioner and we should not risk diluting the effectiveness of the proposed approach.

The noble Lord, Lord Hunt, suggested that CCGs will not be led by clinicians. I am surprised to hear the noble Lord say that, especially as he has been paying tribute to the work of the NHS Alliance and Dr Mike Dixon for whom I, too, have a high regard. I understand that when Dr Dixon spoke at the NHS Alliance Conference this morning he said that we stand close to liberation of clinicians on a grand scale. That indicates to me that he believes that this is a huge opportunity for primary care clinicians.

My noble friend Lady Tonge asked what this is all about. The philosophy behind these new organisations is different from what we currently have. Clinical commissioning is about placing the financial power to change health services into the hands of those NHS professionals whom the public trust most and giving GPs the flexibility within the legislative framework to The Bill sets out high-level requirements for working together, including at new Section 14Z1 in Clause 23 provision for CCGs to enter into arrangements with other CCGs to exercise their commissioning functions. That addresses the point that was made earlier about commissioning for groups of patients who are smaller in number in a small area. One has to commission at the right level. These can include both joint and lead commissioning arrangements and this may be a topic which the board chooses to cover in its commissioning guidance.

The process of the local development of commissioning organisations is well under way, with pathfinders—emerging CCGs—coming together to begin to explore approaches to commissioning and building up their organisations, supported by the PCT clusters, about which I will talk in a moment. The board will be responsible for undertaking a rigorous assessment of all prospective CCGs, prior to authorisation, to ensure, for instance, that they are of an appropriate size, that they cover an appropriate area and have put the appropriate arrangements in place to be effective commissioners. I would say to my noble friend Lady Jolly that there will be a presumption in favour of coterminosity with local authority boundaries. But as we have previously discussed, and as advised by the Future Forum, local flexibility must include, in exceptional circumstances, the flexibility to cross a local authority boundary where that is appropriate to patient flows.

I am afraid that I do not agree that we should place arbitrary constraints on the number of CCGs or on their budgets as Amendment 157 would do. I appreciate the keenness of noble Lord, Lord Warner to ensure that the maximum resources available are devoted to patient care. The Government share that concern, but the way to do this is to ensure appropriate controls over administration costs and ensure good governance on how that money is spent and the outcomes that it delivers.