NHS: Waiting Times

Lord O'Shaughnessy Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Brooke of Alverthorpe]

To ask Her Majesty’s Government what assessment they have made of the effect of NHS Foundation Trusts offering private healthcare services on waiting times for NHS patients.

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

My Lords, since the founding of the NHS in 1948, NHS hospitals have been able to generate small amounts of additional income by treating both international and British private patients. Since 2010, this has remained well below 1% of hospitals’ total income. Any surplus created is used to improve the services that NHS patients receive.

[Lord Brooke of Alverthorpe (Lab)]

I am grateful to the noble Lord for his Answer. I declare an interest: I am an ordinary user of the NHS. I do not have any private medical care, nor do I make any private payments. Is it not true that there are now over 4 million people on queues waiting for treatment in the NHS? Did he see the article in the Times last Thursday headed “Patients pay £1bn to jump NHS queues”? Chelsea and Westminster Hospital recently offered me insurance, terming it the best of both worlds. How many trusts offer opportunities for people to go private, and what is the effect on ordinary users of the NHS? Surely with the shortage of resources, it can mean only that they will wait longer than at present.

[Lord O'Shaughnessy]

I am not familiar with the type of insurance the noble Lord is talking about, but would be delighted to see what he has been offered. The 2012 Act obliges income from non-NHS activities to be tied to a foundation trust’s principal purpose, which is,

“the provision of goods and services for the purposes of the health service of England”,

and that is the standard by which it should be held. He is right that waiting lists have been growing. The NHS is doing more than ever—2 million more operations in 2017-18 than in 2010—but we realise that we need to do more, which is why the Prime Minister made the historic commitment to increase funding in the NHS by £20 billion in real terms in five years’ time.

[Lord Watts (Lab)]

My Lords, is it not the case that people who can afford to see a consultant can jump the queue? In a civilised society, is that not wrong?

[Lord O'Shaughnessy]

The noble Lord well knows that we live in a society which has a mixture of public and private provision. That is true of every public service in most countries of the developed world. The critical point is that we need to invest in our National Health Service, and that is something the Prime Minister is determined to do.

[Lord Naseby (Con)]

Has the time not come for a further review of the previous policy when the right honourable Member for Rushcliffe, as Secretary of State, allowed for a tax reduction or costs to be set against tax for those who take themselves off the NHS list for a particular ailment, thereby freeing up the NHS to carry on the work it should be doing and does so well?

[Lord O'Shaughnessy]

I am grateful to my noble friend for the suggestion. I do not think that now is the time for such a use of public resources, but it is notable that over three-quarters of subscriptions for private medical insurance are paid for by companies as a benefit that they provide to their staff. That is an enlightened approach to looking after the welfare of staff that we want to encourage.

[Baroness Thornton (Lab)]

My Lords, the Minister has not answered the Question put by my noble friend, which was about the effect of this on waiting lists. Using the private sector to relieve waiting lists, particularly during the winter crisis, which hospital trusts were told they could do, suggests that the understaffing and underresourcing of the NHS is the problem. Who pays for that private sector use? Is it trusts or NHS England? Is the cost of the use of private hospitals set against the cost of providing enough funding to ensure that hospitals and primary care are fully staffed and resourced?

[Lord O'Shaughnessy]

With respect to the noble Baroness, I think I did answer the noble Lord’s Question because there are two different issues. One is the offering of private healthcare services and the second is the use of private providers to carry out NHS-funded provision—something that has been going on in the NHS for a long time and was accelerated under the last Labour Government. Of course, if private or independent providers are used to reduce waiting lists under the NHS, the NHS pays and the patient does not pay anything.

[Baroness Jolly (LD)]

My Lords, there is also a problem with the pipeline. Hospital beds are not clearing as patients recovering from surgery wait to get home or to less intensive settings. Had the Government’s Green Paper been published when it was due two years ago, NHS treatment might be available for those requiring surgery, so how long after its publication does the Minister expect the ideas in it to be fully implemented, so helping this situation to go away?

[Lord O'Shaughnessy]

Is the noble Baroness talking about delayed transfers of care? Of course, it is a major issue. We know that there needs to be better integration between health and social care. The better care fund provides that. We have seen some improvement in delayed transfers of care and the Government made an investment for further beds to come on stream this winter, to ensure that there are more beds for people and that we discharge people faster from them.

Childhood Obesity

Lord O'Shaughnessy Excerpts

Thursday 13th December 2018 Lords Chamber

[Lord Brooke of Alverthorpe]

To ask Her Majesty’s Government what progress has been made, if any, in discussions between the BBC and Public Health England regarding a joint strategic plan on childhood obesity.

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

My Lords, Public Health England and the BBC are firmly committed to working together on childhood obesity. Since July, the teams have met three times for discussions and are currently working on the detail of future plans.

[Lord Brooke of Alverthorpe (Lab)]

I am grateful to hear that there have been three meetings since we met in July. Unfortunately, the latest statistics on obesity in children aged from 12 to 16 show a further deterioration. It is time we really got something moving in the form of a national campaign on obesity. The BBC has an important part to play in that. Will the Minister persuade his Secretary of State to lean on the BBC and Public Health England to get a move on so that we can see programmes being introduced, and then issue chapter 3 of the obesity plan to incorporate that into it?

[Lord O’Shaughnessy]

I agree with the noble Lord about the importance of the issue and I am grateful to him for the role he has played in bringing that relationship together. He knows very well that the BBC has played a critical role over decades in many very important health campaigns, such as on HIV or the “Just Say No” campaign on drugs. The BBC is absolutely committed. Of course, it would be inappropriate for Ministers to lean on the BBC, which has editorial independence that I am sure we are all anxious to protect. However, it is committed to doing more. It is doing a number of activities through its programming, including the “Blue Peter” cooking club, various CBBC programmes and so on. I do not think anyone doubts the BBC’s commitment to this, and we will see the fruits of that soon, I am sure.

[Baroness Walmsley (LD)]

My Lords, is the Minister aware that food economists have calculated that, calorie for calorie, fruit, vegetables and high-quality proteins are much more expensive than foods high in carbohydrate and fat? Is it surprising that poor parents find that they have to fill up their children with those foods that eventually often lead to obesity? The structural underpinning of this problem is poverty, which goes much wider than the Minister’s department. It should be a whole-government issue. What are the Government doing about that?

[Lord O’Shaughnessy]

I absolutely recognise the problem that the noble Baroness has pointed out. The prevalence of childhood obesity doubles between the least deprived and the most deprived areas. The Government are committed to reducing that deprivation gap and taking a broad range of actions to combat poverty, none more so than making sure that everybody has the chance to work, which is why we have more people in employment than has ever been the case.

[Baroness Boycott (CB)]

My Lords, following that point, more than a quarter of year 6 children in the most deprived areas are now obese, compared with just 11% in our richest communities. Poorer people cannot afford the Government’s Eatwell plate. What will the Government do post Brexit? Every document I have read has promised rises of between 4% and 20% in food prices and not one has said that food will get cheaper. We already know that we have a deep problem here. What are the Government doing to help, whether through Early Start, by subsidising fruit and vegetable consumption, or through doctor prescribing, to ensure that poorer children can get the food they need to ensure that they do not become—looking at it economically—a time bomb for us later?

[Lord O’Shaughnessy]

The noble Baroness is quite right about the scale of the problem. It is worth pointing out that obesity and overweight issues cost the NHS alone £5 billion a year. There are two parts to the answer. First, the Government are making sure that plans are in place to ensure the continuity of food supply as we leave the EU, whatever the outcome of the negotiations. Secondly, there are two aspects to her key points: about £26 million is going into breakfast clubs as a result of the sugar levy, and of course free fruit and veg are available to young children in primary school.

[Baroness Jenkin of Kennington (Con)]

My Lords, ITV and Veg Power are teaming up to launch a major initiative in the new year designed to appeal to children, as well as a public health initiative through ITV’s programmes. Does the Minister agree that ITV and all the other broadcasters could look at similarly imaginative ways of doing this through their programmes?

[Lord O’Shaughnessy]

That is an excellent suggestion. Before this debate I looked at the Veg Power campaign, the ITV campaign to promote the eating of vegetables, which looks excellent. ITV has demonstrated its commitment and certainly shows an example to other broadcasters.

[Lord Dubs (Lab)]

My Lords, the British-Irish Parliamentary Assembly produced a report some months ago on childhood obesity, covering all the jurisdictions it represents. Could the Minister take another look at that, because a number of issues came out of it—for example, the need for local authorities to take action, the need for action in schools and the need for action in the voluntary sector? Could the Minister come back when he has looked at what further action could be taken on those recommendations?

[Lord O’Shaughnessy]

I should certainly be happy to do so. It is worth pointing out that that document and others have informed chapter 2 of the Government’s obesity strategy, which was published recently. Because the problem is not yet being dealt with, as we know, and we have an ambition to halve obesity, we are determined to act on things such as banning promotion of sugary foods and further restricting advertising.

[The Earl of Listowel (CB)]

My Lords, is the Minister aware of the report today from BBC News which shows that, while information has been provided that 600 calories is a decent meal, fast-food providers provide 750 or so on average, but chain-food suppliers provide 1,500 calories? What will the Government do to encourage those providers to provide lower-calorie-option meals for the public and for young people?

[Lord O’Shaughnessy]

The noble Earl makes an excellent point. That is why in chapter 2 of our strategy, as I mentioned, we propose mandating consistent calorie labelling in out-of-home settings; indeed, the consultation on that has just closed and we will be publishing our results shortly.

Brexit: Health and Social Care Workforce

Lord O'Shaughnessy Excerpts

Thursday 13th December 2018 Lords Chamber

[Baroness Wheeler]

To ask Her Majesty’s Government what assessment they have made of the report by the National Institute of Economic and Social Research, Brexit and the Health & Social Care Workforce in the UK, published on 6 November.

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

My Lords, the Government are determined to recruit and retain the staff that the health and social care sectors need. This will include a robust domestic recruitment drive as well as ensuring that EU staff, who play such an important role in caring for and supporting patients, are able to stay in this country. That is why on Monday 3 December, we launched the EU settlement scheme pilot for the EU workforce in health and social care.

[Baroness Wheeler (Lab)]

I thank the Minister for his response. The Cavendish report on the current and potential staff shortages across all the key health and social care professions makes for alarming reading and shows how dependent we are on the work and dedication of EU nationals. I want to focus on social care workers. What is the Minister’s response to the Government’s Migration Advisory Committee, which says that these vital staff fall into the category of “low-skilled” and therefore do not merit preferential rights here in any post-Brexit scenario? In the past he has acknowledged the skilled, caring jobs that these staff do in community services, people’s homes, nursing homes and care homes. Does he agree that they are definitely not low-skilled? What is he doing to convince the MAC otherwise? What is the strategy for recruiting the 130,000 new social care workers that we need each year just to stand still, let alone to address the future demands of the service?

[Lord O'Shaughnessy]

I thank the noble Baroness for her question. First, we want to ensure that EU staff working in Britain are able to do so, and course that is why the EU settlement scheme pilot is so important. The social care workforce in this country has increased a lot, with a mixture of domestic and foreign staff. One of the ways in which we are increasing the attractiveness of that profession is by increasing the living wage, which has benefited so many staff in social care. Of course, many of them are highly skilled, and we want to ensure that we continue to be able to attract such skilled staff. We continue to discuss with the Home Office exactly what the right thresholds are for our future immigration system so that we do not lose out on these kinds of staff.

[Lord Laming (CB)]

My Lords, does the Minister agree that the problem is caused primarily because of the low esteem given to social care staff? This is extraordinary because most people who find themselves dependent on those staff value their contribution enormously. Would it not be helpful if the Government attached greater importance to those staff, not only through reward but through training and proper support?

[Lord O'Shaughnessy]

The noble Lord is absolutely right. The Government certainly do not hold those staff in low esteem—quite the opposite. As we know, we need increasingly to think of health and care staff as one workforce and ensure that professional paths lead through all those professions. I am sure he will be aware of the work being done by Skills for Care, which provides the overarching policy in this area, has made recommendations about pay and helped to inform our increase in the living wage, and is providing better training facilities for those staff.

[Baroness Brinton (LD)]

My Lords, in addition to the report referred to, Coram has today published its annual survey confirming that there is not enough care available for older people, with only one in five local authorities reporting enough care in the area to meet demand. As a result, more than 4.3 million people aged 75 and over are living in an area with insufficient social care. The Minister talks about discussions with the Home Office, but we also see from the report that there was a big peak of EU staff leaving, and a big reduction in nurses, dentists and allied healthcare workers coming in from the EU. This is a perfect storm, so when will the Home Office understand that we need a range of staff in this country? Secondly, can the Minister confirm when the Government’s paper on health and social care will be published?

[Lord O'Shaughnessy]

Of course, care needs are increasing—a fact that flows from having a growing and ageing population. I should point out that the Government have increased funding for social care by more than £9 billion over three years in recent Budgets, so we recognise the seriousness of the issue. We of course want to retain those staff—it is good that there were more EU staff in the NHS in June 2018 than in June 2016, and we want them to stay. As for the social care Green Paper, it will be issued shortly.

[The Lord Bishop of London]

My Lords, I am grateful to the Minister for the value that he places on those working in the social care and health sector, but the National Institute of Economic and Social Research identifies that the sector is under considerable pressure, even before we consider Brexit. The Royal College of Nursing states that fewer nurses started training in our universities this year. Fifteen per cent of all our nursing roles have vacancies in London. Experience tells us that recruitment is complex. Can the Minister reassure the House that in an environment that uses the language of taking back control of our borders and controlling immigration, steps are being taken to reassure not just those within the EU but outside it that they remain a valued and essential part of our diverse health and social care sector?

[Lord O'Shaughnessy]

I am grateful to the right reverend Prelate for the opportunity to say that we value every person who works in this country in those professions. We want to ensure that they are able to stay and contribute to the health and wealth of our country. I point out we are improving both recruitment and retention not only through increases in the living wage but through changes to the Agenda for Change pay deal concluded earlier this year. It will give 1 million staff at least a 3% pay increase by the end of 2018-19, and increase the starting salary of a nurse by nearly 10% to almost £25,000 by 2021.

[Baroness Verma (Con)]

My Lords, we all value the increased living wage—I speak as a provider of social care, and my interests are listed in the register. Will the Government ring fence the extra funding that they rightly put into social care, so that local authorities have to pass it on to providers? Providers have increased costs, and we cannot pass the money on to our care workers because we simply cannot afford it.

[Lord O'Shaughnessy]

I recognise the picture that my noble friend paints. It is of course incredibly important that money gets to the front line. I am sure that she is aware of this, but I would point out the operation of the Better Care Fund, which brings together local authority and NHS funding specifically to support social care provision. The amounts of money going through that have been increasing over recent years.

[Baroness Pitkeathley (Lab)]

My Lords, the statistics quoted by my noble friend on the Front Bench are pretty frightening, but the knock-on effects on the 6.5 million unpaid carers upon whom our health and social care system depends are even more alarming. In a recent survey, 70% of them doubted their ability to continue caring if more support, much of which comes from these care workers, is not available to them. Will the Minister assure the House that the forthcoming Green Paper, which we know is imminent, and the NHS plan, will take full account of the needs of carers?

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for raising the matter and for her persistence in doing so; she is quite right to. We were pleased to publish the action plan earlier in the year and I can tell her that the Green Paper, as I have said before at the Dispatch Box, will contain more policy on supporting carers.

Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Lord O'Shaughnessy Excerpts

Wednesday 12th December 2018 Grand Committee

Moved by

[Lord O’Shaughnessy]

That the Grand Committee do consider the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 and the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018.

Relevant document: 14th Report from the Joint Committee on Human Rights

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

My Lords, by way of background, parental orders are an important mechanism that transfer the legal parenthood of a child born through a surrogacy arrangement from the surrogate and her partner, if she has one, to the intended parents. The effect of such an order is that the child born to the surrogate is treated in law as the child of the applicants for the parental order and that any parental rights of the surrogate and her partner are extinguished. This confers legal certainty of parenthood, parental responsibility and decision-making on behalf of the child to the intended parents. As noble Lords will be well aware, parental orders were introduced for married heterosexual couples only as part of the Human Fertilisation and Embryology Act 1990. This was extended by the 2008 Act to same-sex couples, civil partners and couples in long-term relationships where the relevant criteria were satisfied.

I am sure we all agree that surrogacy has an important role to play in our society, helping to create much-wanted families where that might otherwise not be possible. It enables the provision of an altruistic gift to people who are not able to have a child themselves and can help people to have their own genetically related children. The UK Government recognise the value of this in the 21st century, where family structures, attitudes and lifestyles are increasingly diverse. We have also recognised that the existing legislative framework has not kept pace with this social change and have therefore asked the Law Commission to review all surrogacy-related law and make proposals for improvement as part of a three-year project.

In the meantime, a more immediate piece of legal reform needs to be addressed. As noble Lords know, in 2015 there was a legal challenge by a father who had a child through a surrogacy arrangement in the USA who could not apply for a parental order because he was single. The High Court found that the Act was in breach of Article 14 of the European Convention on Human Rights combined with Article 8. In May 2016, the court made a declaration of incompatibility. The declaration related to the lack of any provision enabling a person in the position of the applicant, who was not in a long-term relationship, to apply for a parental order. The Government of the day made a commitment to rectify the incompatibility by means of a remedial order made under the power in Section 10 of the Human Rights Act 1998. The order inserts a new Section 54A into the Human Fertilisation and Embryology Act 2008 to provide for and set out the criteria for parental order applications from one applicant. The new section largely mirrors Section 54 of the 2008 Act, which provides for applications from couples.

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We know from the past that Parliament has to consider this sort of legislation very carefully indeed. We know that we are not looking at a short timeframe for the review of the surrogacy laws that needs to be undertaken. The Minister needs to assure us that the department will be keeping a watchful eye on this, because I think we might need to come back and deal with particular issues that we have not even imagined right now. I support these orders.

[Lord O’Shaughnessy]

I am very grateful to all noble Lords who have spoken. One of the great joys of working in this House is that we are privileged to have access to such expertise, be it scientific, policy or legislative. We have had a very good, if short, debate in which there were some interesting questions which I shall try to answer. The noble Lord, Lord Winston, made a point about tracing the genetic parents in the case of a donated gamete. I shall read out what it says in my pack to make sure that I get the wording right and then I am going to make an addendum which I think is also correct.

If a child is conceived via an HFEA-licensed clinic with donor gametes, it may be able to access information about the donor in line with the responsibility of the clinic to provide information under the HFE Act, but this would depend on the parents informing the child of the circumstances of their birth. Of course, that would be so that the child was aware that they could ask, but at the point at which they became aware, via their parents or anyone else, they would then have a right to that information. I think the point the noble Lord made was that however the line goes to the genetic forebear, the child would have the right to pursue it. Of course, it would rely on the child being aware of the circumstances of their birth and so on, and we cannot force that on somebody, but they would be able to trace it.

[Lord Winston]

Does that mean that the birth certificate would be like a normal birth certificate under those circumstances?

[Lord O’Shaughnessy]

Yes, because the court retains a copy of the original birth certificate. I am going to need to clarify this because it is tricky and there is a danger if I try to describe it now. I do not want to do that. I think the noble Lord is asking for clarification, but I am going to need to write to him, if he will accept that, to clarify the situation.

[Baroness Barker]

I hope I am going to be helpful. If I am right, I think that at the point at which a parental order is given, a new birth certificate is issued. That rather mirrors the procedure under adoption, which is the same. The point is that a child always has the right to find out their genetic history but they may not know the means of their birth. From all the things that I have listened to in this House, that makes them probably like a good 40% of people who were not adopted or the result of fertilisation but who have a different father from the one they thought they had; I do listen.

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[Baroness Barker]

I am glad that over the years I have had to do my homework because I am now going to be in debates with the noble Lord, Lord Winston. I think that the issue is covered by the licensing of the clinics which are under an obligation to maintain a record if they are HFEA-licensed in this country. I believe that in certain jurisdictions abroad to which people go for surrogacy, notably California and Canada, clinics are similarly required to meet certain standards of record-keeping.

[Lord O’Shaughnessy]

That is absolutely right. It is fantastic to be able to bow to the wisdom of noble Lords. In effect, although this is a rather inadequate way of describing it, there is a paper trail of whether it is the surrogate parent—the original genetic donor, if there is one, that is different from the parent who subsequently gets the parental order—when that is done through licensed clinics. The child has a pre-existing right to pursue that information and they are able to do so, if they want to, when they become aware of the circumstances of their birth. I think I have got that right. The noble Baroness, Lady Barker, is nodding, which means I can be confident.

I congratulate the noble Baroness on her tenacity in pursuing this issue and I congratulate other noble Lords as well. It has taken longer than it should have done to make this remedial order; I can only reflect on how much has happened in the last two and half years, which may be some of the reason behind that. The department is very aware of the need to watch this space. There are court cases going on. Clearly it would be inappropriate for me to comment specifically on them but, as the noble Viscount, Lord Craigavon, pointed out, thorny and difficult cases will continue to emerge and we need to deal with them as they arise if they have policy implications. We also need to ensure that we keep up the impetus through the Law Commission review, which I understand will be two years of inquiry and then a year of drafting legislation. That is why it will take three years; these things have a natural pace to them. The critical point is that at the end of the process, the Government—as the noble Baroness, Lady Thornton, pointed out, whoever is in government at that point—should then be in a position to take that legislation forward. One would hope that if the Law Commission has done its work, that is something on which there is a pre-existing consensus and we can all move forward.

I am incredibly grateful to noble Lords for their wisdom and sagacity. This has been a very high-quality debate. I will provide the specific clarification to the noble Lord, Lord Winston, and circulate it to other noble Lords who have taken part in the debate. I thank them once again for their contributions.

Motions agreed.

Blood Safety and Quality (Amendment) (EU Exit) Regulations 2019

Lord O'Shaughnessy Excerpts

Wednesday 12th December 2018 Grand Committee

Moved by

[Lord O’Shaughnessy]

That the Grand Committee do consider the Blood Safety and Quality (Amendment) (EU Exit) Regulations 2019.

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

My Lords, in proposing these regulations, I want to explain that they are made under powers in the European Union (Withdrawal) Act 2018 to make necessary arrangements for the UK Blood Safety and Quality Regulations. This statutory instrument will correct deficiencies in those regulations so that the UK is prepared if we leave the EU without a deal on 29 March 2019.

Current regulations set out the safety and quality requirements that cover all the steps in the blood transfusion process, from donation, collection, testing, processing and storage to distribution. The short shelf life of these products means that an uninterrupted process of donation and processing is needed to ensure that the UK has a safe and continuous supply of blood and blood components. As a responsible Government, we have been preparing for all scenarios, including the unwanted but potential outcome that we leave the EU without a deal in March 2019. This instrument will ensure that the regulatory regime in relation to blood safety and quality continues to function effectively after exit day in that scenario. It is vital to make these legislative changes to provide a functioning statute book that allows for the continued donation and processing of blood and blood components such as plasma and platelets to facilitate a wide range of essential and often life-saving treatments.

In moving these regulations, I want to be clear that they are limited to the necessary technical amendments to ensure that the legislation is operative on EU exit day. No policy changes are made through these regulations and we do not have any intention of making any at this point.

The main changes that the instrument will introduce are as follows. It transfers relevant Commission powers contained in the EU blood directives to the Secretary of State in relation to England and to the devolved Ministers in relation to the devolved areas. In addition, the Secretary of State may, with the consent of the relevant devolved Ministers, make regulations on their behalf. This will enable future updates to the blood safety and quality legislation to respond to emerging threats, changing safety and quality standards and technological advances. It contains modifications to how the annex to the blood directive should be read post Brexit. This is necessary to ensure that the requirements set out in the annex, which are referred to in our domestic legislation, continue to apply and function properly post exit. It also makes minor changes to amend EU-related references or EU obligations that will no longer be appropriate or will be redundant once the UK has left the EU.

Blood is a devolved policy area, so I am pleased to say that we have obtained the devolved legislatures’ consent to the provisions contained in this draft instrument. I beg to move.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for introducing these regulations. Given the state of the Brexit negotiations, deals and other matters that are going on in Parliament at the moment, it is probably just as well that we have this before us. However, I have to say, as I said to the Minister about the previous instrument we discussed, that it was there in case we crash out of the EU. This is really quite a waste of all our time and Parliament should not have to do this.

The regulations seem to be very straightforward. They will: amend or omit references to EU/EEA member states and third countries; omit provisions relating to EU obligations that will no longer be relevant to the UK; transfer relevant Commission powers under the EU blood directive to the Secretary of State in relation to England and the devolved Ministers in relation to the devolved areas, as detailed in paragraphs 7.12 to 7.15; and, as the noble Lord said, modify how the annex to Commission Directive 2005/62/EC is to be read after exit.

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[Lord O'Shaughnessy]

I thank both noble Baronesses for their questions. I do not quite agree that this is a waste of time; after all Parliament voted both for a referendum and for a withdrawal Act, so we have to prepare for every eventuality even when we hope that they will not happen. This SI is particularly important for the continuity of this important medical product.

To deal with the questions posed by the noble Baronesses, communication with agencies is absolutely happening. It is being co-coordinated by NHS blood and transport—sorry, I always say “blood and transport” because it transports the blood; I mean NHS Blood and Transplant—as well as the relevant agencies in the devolved Administrations. We know that sometimes relationships between the DAs and Westminster can be strained, but I think it is fair to characterise them as being positive and co-operative on this and other health-related issues. We are making sure that all agencies are involved in that process, with central co-ordination and collaboration and consent from the DAs.

Regarding reassurance for people with rare diseases in respect of imports, the whole point here is that we would be operating to the same standards as the EU. In a no-deal scenario, we would also be accepting, as it were, the regulatory standards and approvals of the EU to ensure that such products were not impeded on their way into our country. As the Committee will know, a range of activities are going on to ensure continuity of supply through the borders.

On the point made by the noble Baroness, Lady Walmsley, there is nothing untoward about my comment that there is no policy change at this moment. The critical point here is that under the Bill we are limited to technical changes to address flaws in the legislation that emerge as a result of technical flaws moving from one situation to another. Of course any future Government can change policy; I cannot bind the hands of any Government of any kind in future years. However, I can tell noble Lords that we have no intention of watering down the standards, so please be reassured on that point.

On the question from the noble Baroness, Lady Thornton, about when this would happen, in a no-deal scenario it would happen from 30 March 2019, so it would be from day one onwards.

I turn to the remaining issues raised by the noble Baroness, Lady Walmsley. In Wales we effectively have a single market in blood products—that is one way of putting it—all working to agreed standards. From that point of view, there is no difference in the products that are used in different domains. I understand her point about hip replacements but I am not sure that it is an exact analogy. Of course the beauty of devolution is that we have choice and experimentation.

Lastly, on the important point about communications with the EU, the reason why that has been removed is that it is a reciprocal obligation. Obviously it is illogical to have a reciprocal obligation that can be fulfilled only by one side.

[Baroness Walmsley]

I accept that, of course, but what I want to know is what is going to be put in its place.

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[Lord O’Shaughnessy]

Indeed. In a no-deal situation, if we picked up the kinds of concerns she has described, we have very good pharmacovigilance and other monitoring systems in this country. We would communicate that information with our European neighbours and we would hope and expect them to do that in return. However, of course we have no way of obliging them to do so in a no-deal scenario. We are absolutely committed to communicating with them not only about blood products but about all medicinal products and devices; that is our moral obligation. In a deal scenario, we would share that information anyway by dint of being part of a common regulatory authority. That is also true of the implementation period and it is our stated ambition in the White Paper for the period afterwards. I can reassure the noble Baroness that it is our intention to continue with the communication. Although, in part because of the phase we have reached in the negotiations, it is not possible to confirm that in a no-deal scenario there would be a bilateral or multilateral arrangement around communications, I am confident that all sides would want that because it is to no one’s benefit not to share the information. I am sure that that would happen.

I hope that I have provided answers to the pertinent questions put to me by the noble Baronesses and commend the regulations.

Motion agreed.

Health and Social Care (National Data Guardian) Bill

Lord O'Shaughnessy Excerpts

3rd reading (Hansard): House of Lords
Wednesday 12th December 2018 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, in moving that the Bill do now pass, I express my gratitude to all noble Lords for their interest in the Bill. I want particularly to thank the noble Baronesses, Lady Thornton, Lady Walmsley and Lady Kidron, and the noble Lords, Lord Patel and Lord Knight of Weymouth. Extended thanks must also go to my honourable friends in the other place, Jo Churchill, who introduced this Bill, and Peter Bone, its recent sponsor. My life was made a great deal easier during the passage of the Bill by the excellent work of the Bill team, and the continual assistance of the Minister, my noble friend Lord O’Shaughnessy, along with that of the Department of Health and Social Care. Before I sit down, I must also mention and thank the current National Data Guardian, Dame Fiona Caldicott, who has contributed so much to work in this area. I beg to move.

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

My Lords, I join my noble friend briefly in congratulating all those involved in the passage of the Bill. I also extend my thanks to her for her sterling work in raising this issue. The Government strongly support the passage of this Bill and we hope it will achieve Royal Assent swiftly. With the permission of the House, I need to clarify an important point raised at Second Reading on demographic data. I have laid a letter on this subject before the House as a more extended account.

The role of the National Data Guardian is, first and foremost, about good practice in supporting organisations and individuals who process health and adult social care data. The Bill is drafted widely to allow the NDG to issue guidance about the processing of health and adult social care data. This should be interpreted broadly and would allow for the NDG to produce guidance on issues that impact on the processing of health and adult social care data. This would include, for example, good practice in security standards for storing health and adult social care data. This is an example of where guidance is not strictly focussed on health and social data itself, but about the processes and issues that could impact it. Almost anything that should be taken into account when processing health and adult social care data—or which broadly has the potential to impact, affect or influence that processing—would fall within the scope of that definition. With that clarification, I hope we will be able to move forward and that noble Lords will support this Bill. I once again thank my noble friend and congratulate her on her sterling effort.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

Moved by

[Lord O’Shaughnessy]

In Schedule 1, page 16, line 12, at end insert—
“(2A) In determining whether either of paragraph (a) or (b) of sub-paragraph (2) applies, the responsible body must consider the views of any relevant person about the wishes of the cared-for person that are brought to the responsible body’s attention.(2B) In sub-paragraph (2A) “relevant person” means a person engaged in caring for the cared-for person or a person interested in the cared-for person’s welfare.”

--- Later in debate ---

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

My Lords, throughout the progress of this Bill both the Government and noble Lords have been keen to improve the protections and safeguards contained within the reformed deprivation of liberty safeguards system so that the welfare of the cared-for person is always of paramount importance. It is that principle which lies behind the amendment I have laid for debate today.

The amendment makes it clear that any relevant person who identifies that a cared-for person is objecting to arrangements is empowered to raise the matter with the responsible body and can trigger a review by an independent AMCP. Furthermore, the amendment specifies that the responsible body must consider the views of anyone engaged in caring for the person or a person who is interested in their welfare. Importantly, this amendment is explicit that staff of all kinds can raise concerns, as well as others with an interest in the person’s welfare, and it will support staff and others, such as families or carers, in their ability to do so. I take this opportunity to thank the noble Baronesses, Lady Finlay, Lady Thornton and Lady Barker, and the right reverend Prelate the Bishop of Oxford for highlighting this very important issue on Report, and for working with and meeting me to agree a way forward.

The amendment that the Government are proposing makes it easier for inadequacies in care provision to be addressed more swiftly. Recent issues with Gosport, Winterbourne View, Mendip House and, sadly, many other cases have highlighted how important it is that family, friends and staff feel empowered to raise concerns, and for action to be taken as a result. The amendment means that if a member of staff or a family member thinks that the person is objecting and that that is not being properly considered, they can raise it with the responsible body. That body, which of course is legally responsible for authorising a deprivation of liberty, will be able to use that to judge whether an AMCP should therefore complete a pre-authorisation review. Being able to raise such concerns directly with the responsible body is particularly important as it means that staff and others can raise concerns without having to go through those who may be directly involved in the care or treatment of the person. That will enable people to feel supported and more confident to take such action.

The Bill already requires that an AMCP completes the pre-authorisation review if it is reasonable to believe that the cared-for person does not want to reside or receive care or treatment at a place. However, I agreed with noble Lords on Report that we should have something in the Bill which is explicit about the sorts of things the responsible body must consider when making this determination so that staff and families feel supported in speaking up. That is what this amendment achieves. I should add that the Government are committed to ensuring that the measure created by the amendment forms part of the necessary training and support ahead of the implementation of the new system.

Noble Lords will note that this amendment relates to the pre-authorisation review process. We understand that it will also be necessary to make sure that the ability to trigger an AMCP review is in place as part of the ongoing review process. Due to time constraints, we have not been able to table an amendment on this subject now, but I commit that the Government will return to this issue at the Commons stages of the Bill.

I again thank noble Lords for raising this issue and for working with the Government to produce this amendment. I hope the amendment satisfies the demands that noble Lords rightly made to give family and staff a higher profile in raising issues and to include that in the Bill. I beg to move.

[Baroness Meacher (CB)]

My Lords, I hope the House will indulge me for one or two minutes. I welcome the amendment and have no objections to it at all. However, I note that the Government have not come forward with amendments in relation to three other issues. The first is the risk to others and the interface with the mental health review. It would be helpful if the Minister could give us an assurance that the Government will not seek in the Commons to clarify the interface between this legislation and the mental health review. There is talk of using “objection” as the key criterion, but in my view we also need to consider the risk to others as a possible principle to be considered. Can we have an assurance that the Government will not seek to resolve this issue during the progress of this Bill in the Commons?

The second issue concerns independent hospitals, which we have debated. Although I certainly do not wish to reopen that debate, can the Minister give us an assurance that work will be done in preparation for the Commons stages on the very serious situation in which many people find themselves in independent hospitals? These hospitals are often remote and—if I may say so—not well run. People are incredibly vulnerable in them, often far more so than in homes. An assurance that that will be addressed in the Commons stages would be helpful.

The third issue regards domestic situations. Whatever the Government decide to do in the Commons, can they bear in mind the importance of trying to limit the levels of bureaucracy and, ideally, of not continuing to use the Court of Protection? Again, many very vulnerable carers caring for very vulnerable people do not have the resources to deal with a lot more bureaucracy—they already have a hell of a lot to deal with. Can the Minister respond on that point?

--- Later in debate ---

[Lord O’Shaughnessy]

I am grateful to noble Lords for their acceptance of the amendment. It was tabled as a result of noble Lords’ input and their best endeavours to resolve the situation. It goes part of the way there, as we have discussed, and the Government are committed to solving it as the Bill moves to its Commons stages. There were specific questions on the amendment that I want to deal with. There were subsequent issues but I will deal with the Mental Health Act issues now. I shall leave the other issues until my closing speech because they anticipate what I will say when we come to the final part of the Bill’s passage.

On the amendment, the noble Baroness, Lady Finlay, asked about the code of practice and ensuring that protection is set out in whistleblowing legislation. We will make sure that we do that. As she will know, and as I have discussed before in the House, the Government are committed to doing more on that in the follow-up to the Gosport scandal. That is important. She also made excellent suggestions about the role of the CQC, its inspection framework and making sure that those provisions are well understood, and about helping to train responsible bodies to look for patterns. That is excellent advice, which we shall make sure is reflected in both the code of conduct and the regulatory regime. I think those were the only questions on the amendment.

Perhaps I may mention the Mental Health Act review before I finish on the amendment and move on. Clearly, it is an important piece of work. There are 152 recommendations and it is right that we take time to consider the right way to respond to them. The Government have already taken on board two of those recommendations, but there are many more to consider. One of the questions in front of us, which we have talked about to some degree during the stages of the Bill—and which will clearly come to the fore in the Commons stages—is: what is the right vehicle to deal with the interface between the suggestions that Simon Wessely has made?

There is a difference of opinion in this House about how that should be done. The noble Baroness, Lady Meacher, and others have a contrary view, but we need to solve the problem in front of us—which is that the deprivation of liberty safeguards system is not working—and then, when we have decided what the right thing to do is, to improve the Mental Health Act and its interface with the Mental Capacity Act at that point. It would be precipitous to try to do that now, before we have had an opportunity to consider it properly. In saying that, I do not mean it is not important—quite the opposite. It is so important to get it right that rushing through it could store up problems of a kind that we do not want.

The noble Baroness, Lady Jolly, asked about advocates, their training for the new dividing lines and various other questions. We will have to work through these matters as we consider the right way forward in the Bill. I disagree with the suggestion of the noble Baroness, Lady Murphy, that we should reconsider whether the Bill goes ahead because it is not intended to, and does not, reflect these issues. The Bill needs to go ahead. We know that it will not solve all the problems before us and we will probably need to act again. However, noble Lords will know that it is not always straightforward to get legislative time—let alone at the moment—and we need to take advantage of the opportunity that we have to do something good now and seek to do further good when the opportunity presents itself.

I will reserve my other reflections until my closing speech, when I will attempt to deal with them. Otherwise, I thank noble Lords for their contributions to and support for this amendment. I beg to move.

Amendment agreed.

--- Later in debate ---

Moved by

[Lord O’Shaughnessy]

That the Bill do now pass.

[Lord O’Shaughnessy]

My Lords, I will use the opportunity of my closing speech to offer my sincere thanks to all those in the House who have contributed to the passage of this Bill. I hope that I will not miss out any names from this list, but I want to thank the noble Baronesses, Lady Thornton, Lady Jolly, Lady Tyler, Lady Barker, Lady Wheeler, Lady Finlay, Lady Hollins, Lady Murphy, Lady Watkins and Lady Meacher, as well as the noble Lords, Lord Hunt and Lord Touhig, and the noble and learned Lord, Lord Woolf, for their contributions. I also thank my noble friend Lady Stedman-Scott for her steadfast support. In her first time at the Dispatch Box she was stupendous and set a high bar for future performances. Lastly, I thank my noble friend Lady Barran, who gave us an excellent maiden speech during the passage of the Bill, and congratulate her on her promotion to the Whips’ Office.

I believe that, by working together constructively over the past six months, we have much improved the Bill. In doing so, we have provided a system that will protect much better the 2 million people in our society who have impaired capacity. As noble Lords have brought to life during the passage of the Bill, that is something of which many of us have personal experience. I think that there is broad agreement that the current system does not work and needs to be changed, to put the cared-for person at the centre of it. I also believe that during the passage of the Bill through this House, and in response to suggestions and ideas from noble Lords, we have made some significant improvements. Once again I beg to disagree with the noble Baroness, Lady Murphy. We have not made just superficial changes: rather, some really important changes have been made.

The Bill will now apply to 16 and 17 year-olds as well as those aged over 18. We have carefully designed a role for care homes while eliminating conflicts of interest and being clearer about their role in the system. We have been explicit that the person completing assessments must have appropriate skills and knowledge, and a statement to the responsible body must be written. The Bill no longer contains the outmoded and unwanted references to “unsound mind” and we have also strengthened the provisions around appointing IMCAs, including a presumption that they now will be appointed. I hope that in practice that deals with the concern just expressed by the noble Baroness, Lady Barker. We have also made sure that the cared-for person must be consulted so that their voice is heard in every case, and today we have amended the Bill to enable families and staff whistleblowers to raise concerns much sooner and for those concerns to be acted on.

I should also say that the House has made its own opinion known in defeating the Government on the issue of specifying that arrangements should be necessary and proportionate in order to prevent harm to self, and I can confirm that the Government will not seek to change this position in the Commons. The Government will also carefully consider the amendment passed by noble Lords on rights of information being provided to the person.

The Bill will now move forward to the Commons and I can give some reassurance about several of the issues that noble Lords raised in the last debate. As I say, we have committed to make sure that the amendment passed today will be reflected in the sense of being able to raise concerns at the review stage. We will also provide clarification about referrals to AMCPs, including independent hospitals. That was a commitment I gave on Report and I am very happy to repeat it. It will look not only at independent hospitals but at whether there are other circumstances, and what they ought to be, when a referral to an AMCP ought to be direct.

I should also say a word in response to the noble Baronesses, Lady Meacher and Lady Hollins, about the definition of deprivation of liberty. Again, I can confirm that this is something we intend to deal with in the Commons. I hope the noble Baronesses will be reassured on that. We have achieved a lot, and even if there is more that we wanted to achieve, the contributions of noble Lords have directly influenced the changes that we intend to make in the Commons. So, although it is for those in the other place to pass the amendments, noble Lords should be congratulated on their role in designing them. I hope that they will get support when we move them in the other place.

A further question was asked about the flexibility of reviews by, I think, the noble Baronesses, Lady Hollins and Lady Barker. We will need to consider that. It is worth pointing out that it is a flexibility, not a timeframe, and that it is meant to allow for continuity in situations where the circumstances of the person are not changing. Clearly, safeguards in the system will allow for much quicker reviews if there is a reason for them. Indeed, the amendment we passed today is another way in which such a review could be triggered. So I will certainly take on board the noble Baronesses’ points about flexibility, but I think that there are enough safeguards in the system.

I hope that I have answered all noble Lords’ questions. I am sure that the conversation will continue. There is much work still to do. I thank the hard-working policy team for their engagement in this process, as well as all the stakeholders who have contributed, given us their thoughts, challenged us at times and as a consequence made this legislation better.

I want to end with some reflection. We know that these are difficult and divisive times in our country and in Parliament, but we have shown through the passage of the Bill that we can work together to improve legislation, reform public services and protect vulnerable people. We should all bear that in mind as we move through the days and weeks ahead. With that, I thank noble Lords for their contributions and I beg to move.

[Baroness Barker]

My Lords, I do not want to detain the House but I have one or two important things to say. First, the House owes a debt of gratitude to the ministerial team for their work in getting us to this point. The noble Lord, Lord O’Shaughnessy, should take a great deal of the credit for enabling all the things he listed as achievements of the House, going forward. Obviously, the Bill leaves us in a much better state than when it arrived.

There was one contribution by a Member of your Lordships’ House that we have not acknowledged but should: that of the noble Baroness, Lady Browning. She has not been able to take part in many of our debates but she made an important contribution when she stood up and said that the Bournewood gap still exists. For all our work, it does, and it will continue to exist until such time as we sit down and really consider mental health and mental capacity legislation, including who makes the decisions about who comes under what piece of law. Until we sort out that gap, people will still be deprived of their liberty. We can call it by a different name, but they will be.

I will ask the Minister to reflect on one thing. Nobody came to this legislation believing that DoLS had to be preserved. Everybody knew that it was wrong. Everybody understands that we need to make greater and better use of the limited professional resources for overseeing the lives of people detained for one reason or another. We should listen to the noble Baroness, Lady Browning, and reflect on what else Parliament may have to do over the next five, six or seven years to make sure that the gap is addressed once and for all so that people are not wrongfully detained.

NHS: Specialist Services in Remote Areas

Lord O'Shaughnessy Excerpts

Tuesday 11th December 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, despite the temperature, I beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, NHS England, which is responsible for overseeing the commissioning of specialised services, is committed to considering the centralisation of such services, such as stroke provision, where it will raise clinical standards and improve outcomes. However, in doing so, NHS England is bound by its statutory duty to reduce health inequalities, including for people living in remote areas. A series of adjustments to funding allocations for clinical commissioning groups are designed to deliver that obligation.

[Lord Beith]

My Lords, I am grateful for that Answer. As the Minister indicated, many specialist treatments and emergency admissions now take place in major hospitals for patient safety and better outcomes, but what about the communities that are 50 miles or more from those hospitals? Some patients must travel for three or four hours at a time for follow-up consultations and treatment. Does the Minister recognise that, in remote areas, community hospitals need to provide a wider-than-usual range of services and treatments—such as the chemotherapy we have in Berwick—including follow-up consultations, examinations and radiography, using modern technology to link the patient to the clinician at the distant hospital?

[Lord O’Shaughnessy]

I absolutely agree with the noble Lord that while it is important to specialise those services because they have been demonstrated to deliver better outcomes, we need to make sure that ancillary services can be delivered as close to the community as possible. In preparing for this Question, I was delighted to see that Northumbria Healthcare NHS Foundation Trust and the county council are building a new hospital in Berwick to provide that sort of care. That is welcome, but we also need to make sure that we protect community hospitals elsewhere in the country and that they can continue to deliver out-of-hospital care.

[Lord Turnberg (Lab)]

My Lords, there is one important way in which patients in remote parts of the country can access specialist care: telemedicine. It is quite easy to send X-ray pictures, scans and blood test results online, and even to interview patients. I send things via WhatsApp to my children almost every other day. It is entirely possible for me to do that on my iPhone; surely the NHS can do it too. I understand that Wales has managed to do it quite well. Is it possible for us to do the same in England?

[Lord O’Shaughnessy]

The noble Lord is right. Of course it is possible for us to do it in England; it is happening all over the country. Telemedicine offers fantastic opportunities, such as Skype-based GP consultations. Indeed, there is the example of Morecambe Bay’s remote clinician pilots in a variety of specialisms, such as gastroenterology and mental health care. Clearly, that is important. I point the noble Lord to the tech vision published by my relatively new Secretary of State this autumn, which points out the massive potential for digital health in reducing these kinds of inequalities.

[Baroness Redfern (Con)]

Within limits, a shifted out-patient model allows specialists to provide the same kind of consultations, investigations and procedures as in regular settings. Does the Minister not think a possible way forward would be to develop larger PCTs, as they would be more financially able and therefore have the capacity to provide that service in areas remote from the hospitals?

[Lord O'Shaughnessy]

My noble friend makes an excellent point. The number of CCGs is reducing over time, as they tend to merge. Of course, they are increasingly coming together into integrated care systems, which cover a larger geographic community. Every one of those makes sure that people have not only community care but specialist care available.

[Baroness Meacher (CB)]

My Lords, how many of the 3 million people who face the closure of their general practice in the coming year are in remote areas where they have a long way to travel to a hospital? What do the Government plan to do to ensure that some form of health service is available to those people? Telehealth can help, but people often need an examination.

[Lord O'Shaughnessy]

The noble Baroness is quite right. There is an urgent need to recruit more GPs. We continue to be committed to that. I am sure she will be pleased to hear there are more GPs in training than there ever have been. We are also providing a £20,000 salary supplement to GPs who go and practise in rural areas.

[Baroness Jolly (LD)]

As the noble Baroness said, there are occasions when a patient needs to see a specialist, but travelling to access specialist services is especially difficult for those on low incomes. What is NHS England doing to advertise the healthcare travel costs scheme to patients in rural areas? Do the Government hold information on how many eligible patients are claiming?

[Lord O'Shaughnessy]

There are a number of schemes, as the noble Baroness points out. As well as the travel costs scheme, there is the low-income scheme. They are designed to help people with those kinds of costs. I do not have the specific numbers about take-up, but I shall certainly write to her with those.

[Lord Clark of Windermere (Lab)]

The Minister is correct to highlight the building of new hospitals, but these are no good if you cannot attract staff to them. Can he comment on the pilot scheme in west Cumbria which is training senior nurses to undertake the work of some junior doctors? How successful has that been, and how many students will take part in the second year of the course, which starts in January? What plans do the Government have to increase the number of staff right across the health service?

[Lord O'Shaughnessy]

I shall look at the scheme the noble Lord mentions and would be delighted to follow up with him directly on that. We need more staff; we have more NHS staff than we did in 2010, but nevertheless we need more GPs and nurses. Of course, we also need to diversify the workforce in new ways. One of the most exciting innovations in the workforce sphere recently is the creation of several thousand nursing associate posts to support nurses and doctors in a range of settings.

[Lord Kakkar (CB)]

My Lords, I declare my interest as chairman of UCLPartners. The provision of centralised specialist services is predicated on the basis that there is an appropriate mechanism for integrated care across the tertiary, secondary and primary care institutions. Are Her Majesty’s Government satisfied that the regulatory framework to assess the quality of that care exists? If not, what mechanisms are being put in place to ensure regulation across integrated care pathways?

[Lord O'Shaughnessy]

The noble Lord makes an excellent point with great insight, as ever. We all want to move to an integrated care system which allows us to worry less about levels of care and think instead about patients and the care around them. We believe a lot can be done within the current regulatory framework but, when the Prime Minister asked the NHS to produce its long-term plan in return for the significant funding increase we are giving, she asked what legislation might be needed to complete that framework.

[Baroness Masham of Ilton (CB)]

My Lords, as president of the Spinal Injuries Association, I ask the Minister if he is aware of the terrible state of spinal injury specialised hospitals, which do not have enough beds. Is he aware that the association and our fundraisers have privately employed two specialised nurses to help the hospitals which do not have expert help available?

[Lord O’Shaughnessy]

I am of course concerned by the point the noble Baroness makes. She has raised it with me privately. I absolutely applaud the work that the association has done but I will come back to her about our specific plans on how to make improvements.

Diesel Emissions

Lord O'Shaughnessy Excerpts

Wednesday 5th December 2018 Lords Chamber

[Baroness Randerson]

To ask Her Majesty’s Government what steps they are taking to raise awareness among the general public of the health impacts of emissions from diesel vehicles.

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

My Lords, the Government raise awareness of the effects of air pollution, including from diesel vehicles, via the UK Air website and through supporting activities such as the annual clean air day. Furthermore, the Department for Transport’s Road to Zero strategy contains a range of policies aimed at reducing the use of diesel in transport and therefore the harms that flow from it.

[Baroness Randerson (LD)]

My Lords, despite the work that the Minister has outlined, many people are still not aware of this problem. We are condemning young children to a lifetime of ill health because of this invisible threat, and they are particularly vulnerable to the effect of emissions during the school run. Will the Minister commit to having discussions with the Department for Transport to ensure that emission levels outside schools are tested frequently and that suitable warning signs are displayed when necessary, and will the Government introduce a ban on engine idling for vehicles waiting outside schools?

[Lord O’Shaughnessy]

I absolutely agree with the noble Baroness that this is an issue of concern. It is a concern to all of us and it is certainly a concern to those of us with school-age children in urban areas, who experience the pollution every day. First, the UK has made progress on reducing pollutants, although clearly there is a long way to go, and in specific urban areas the problem is much worse than in others. Secondly, I point the noble Baroness to the clean air strategy, which will be published at the end of this year. It will contain a range of measures aimed at reducing pollution and, as a consequence, the public health damage that comes from it. I shall certainly feed in her comments about the importance of targeting these benefits on schools.

[Baroness Wheeler (Lab)]

My Lords, earlier this year the World Health Organization Science Panel reclassified diesel exhaust as a carcinogen, underlining that many cases of lung cancer could be connected to the contaminant and that exhaust could become as important a public health hazard as passive smoking. The European Public Health Alliance has pointed to the urgent need to develop research into the possible impact on other health conditions such as diabetes and dementia. Can the Minister tell the House what action is being taken in response to the WHO declaration and what research funding and programmes are in place to address the growing concerns on this issue?

[Lord O’Shaughnessy]

The noble Baroness is quite right: it is one of the biggest public health problems that we face. It is associated with around 30,000 deaths a year, and that gives us a sense of the scale of the problem. I mentioned the clean air strategy but two specific important pieces of research are also taking place. One is called the Exploration of Health and Lungs in the Environment, which is a London-based study looking at the links between pollution and children’s lung health. The Department of Health and Social Care has also commissioned a review of adverse birth outcomes and early-life effects associated with exposure to air pollution. Therefore, we take this problem seriously and are commissioning research to know not only the consequences but what to do about it.

[Lord Krebs (CB)]

My Lords, it is my understanding that much of the responsibility for delivering the clean air strategy will be delegated to local authorities. Can the Minister confirm that local authorities will be given both the necessary legal powers and the resources to deliver that strategy?

[Lord O’Shaughnessy]

The noble Lord is quite right that local authorities will have a critical role. The clean air strategy is supported by the Department of Health and Social Care and Public Health England, but it is Defra’s responsibility. I am not able to say any more than that at the moment, but it is clearly a very important strategy being led by the Government, and we will make sure that we support local authorities to do their bit.

[Baroness Jolly (LD)]

As the noble Lord said, local authorities are being supported by Public Health England in reducing their pollution levels. Can the Minister tell the House which local authorities are non-compliant and whether there are any sanctions for this, and what form the support from Public Health England takes?

--- Later in debate ---

[Lord O’Shaughnessy]

We provide a range of support. In fact, my colleague, the Parliamentary Under-Secretary of State for Public Health and Primary Care, wrote to directors of public health in October to remind them of their responsibilities and to make sure that they focus on this issue. Just yesterday, our Deputy Chief Medical Officer held a round table with stakeholders and others in local government to think about how we can improve policy and communicate locally with people to make sure that they understand the consequences of things such as idling and other unnecessary uses of diesel.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I welcome the news that there will be research in London. Will any assessment be made of the number of deaths and the damage to health in London due to Boris Johnson’s refusal to apply the congestion charge to west London?

[Lord O’Shaughnessy]

The important issue is that, whoever holds the post, the Mayor of London has the power to take action. It is notable that that has not been reinstated by a Labour Mayor of London, so maybe there was something in that decision in the first place.

[The Lord Bishop of Carlisle]

My Lords, does the Minister agree that, while electric cars are being developed, trees, plants, shrubs and especially hedges can make a very useful contribution to the absorption of harmful emissions, as well as having a therapeutic value for those who grow them and those who enjoy them? Can he tell us of any plans the Government may have to encourage the greening of our towns and cities?

[Lord O’Shaughnessy]

The right reverend Prelate makes an excellent point, with which I completely concur. We are making good progress in increasing the number of ultra-low emission cars. There is a huge amount that we can do to green our cities. I know that this is a priority of both the Ministry of Housing, Communities and Local Government and Defra. They will have specific details, and I will write to him with an answer.

[Baroness Hooper (Con)]

My Lords, harmful emissions are caused by traffic in queues, particularly in London, as a result of the new bicycle lanes, but also as a result of the inordinate number of roadworks, which are taking place in an unco-ordinated way. Can the Government find any research to prove these results, and can they do anything about the co-ordination of roadworks?

[Lord O’Shaughnessy]

I shall take that point to my noble friend the Minister for Transport, and I am sure that she will have an excellent answer, as she does for all these questions. I am not sure that I agree with my noble friend on the point about bicycle lanes. They are well-used, and bicycling is very good for your health.

Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2018

Lord O'Shaughnessy Excerpts

Tuesday 4th December 2018 Lords Chamber

Moved by

[Lord O'Shaughnessy]

That the draft Regulations laid before the House on 1 November be approved.

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

My Lords, in introducing the regulations before the House today, I want to stress how critical they are in maintaining the UK’s commitment to be a world leader in tobacco control as we leave the European Union. The Government strongly believe that tobacco control legislation is crucial for stopping people smoking and reducing the harms associated with smoking. Whatever the outcome of the Brexit negotiations, that belief is unwavering.

As noble Lords know, the Government are focused on the successful passage through Parliament of the deal which has now been reached with the EU. Nevertheless, we continue to plan for all scenarios. The regulations before us have been laid for a no-deal scenario. If the UK reaches a deal with the EU, the department will revoke or amend this instrument to reflect that deal.

This instrument will ensure that the UK domestic legislation that implements the two main pieces of EU tobacco legislation—the tobacco products directive 2014/40/EU and the tobacco advertising directive 2003/33/EC—functions effectively after exit day. The instrument, made under the EU (Withdrawal) Act 2018, makes appropriate amendments and revocations to correct deficiencies in UK legislation and retained EU legislation.

Regardless of one’s views on Brexit, I see no reason why the amendments we are proposing through these regulations should not be supported. The proposed amendments are critical to ensuring that there is minimum disruption to tobacco control in the event that we exit the EU without a deal in March 2019. I would like to draw the attention of noble Lords to three main changes that this instrument would introduce.

First, in the event of a no deal, the UK will need to develop its own domestic notification systems for companies that wish to sell tobacco products and e-cigarettes to the UK market. The notification process is essential for ensuring that companies are complying with legislation on product standards. Both Public Health England and the Medicines and Healthcare products Regulatory Agency have commenced work to ensure that domestic notification systems are in place and functional by exit day.

Secondly, in the event of no deal, the UK will not hold copyright to the EU library of picture warnings for tobacco products. Requiring the industry to continue to use these pictures would breach copyright law. Picture warnings are a key part of tobacco control, and it is therefore extremely important that we continue to require the inclusion of graphic picture warnings on tobacco products. The UK has therefore recently signed an agreement with the Australian Government to obtain picture warnings free of cost, and I want to take this opportunity to express this Government’s gratitude to the Australian Government for their assistance in this matter. I would also note that this approach has received endorsement from Action on Smoking and Health, which has said about our proposals on notification systems and picture warnings that they are, “pragmatic and practical, minimising the amount of additional work involved if there were to be a no deal Brexit. We support the Government proposals for dealing with this short-term issue”.

Thirdly, this instrument proposes a transfer of powers from the Commission to the Secretary of State, permitting the Government to respond to emerging threats, changing safety and quality standards and technological advances.

In introducing this instrument, I must be clear that it will have some impact on the tobacco and e-cigarette industry. The department ran a short technical consultation in October to seek feedback on the practical issues that will affect the industry in a no-deal situation. We received 32 responses. Tobacco control stakeholders showed support for the continued use of picture warnings and amendments to the notification system as an effective way of stopping people smoking and as a means of harm reduction. The tobacco industry did raise concerns about the timing of implementation and cost, primarily in relation to the changes to picture warnings. However, I would stress that we did not receive detailed evidence or a breakdown of costs.

As noble Lords know, we have no control over timing issues—or at least this government department does not—as the implementation timetable is dictated by the timing of EU exit. The Department of Health and Social Care has therefore consulted with external experts, who have confirmed that the change in timescale is likely to be difficult but manageable. To mitigate these issues raised in the consultation by the industry, we intend to publish detailed guidance on picture warnings and the notification process in January 2019.

Before closing, I would also like to stress that the devolved Administrations have provided consent for the elements of this instrument which are considered devolved.

I hope that noble Lords can see that this instrument constitutes a necessary and important measure to ensure that our tobacco control regulations continue to work effectively after exit day in the event of no deal. I must emphasise that, due to the instrument being made under the withdrawal Act, the scope of the amendments in it is limited to achieving this objective. At an appropriate point in the future, the department will review whether the UK’s exit from the EU offers us opportunities to reappraise current regulation to ensure that we continue to protect the nation’s health and so that the UK remains a global leader in smoking cessation and tobacco control for many years to come. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Lord for this opportunity to discuss e-cigarettes. It is also a great opportunity to press the Minister on the Government’s Brexit situation. I do not think that we have heard him on this matter before. It is interesting to reflect on the confidence set out in the Explanatory Memorandum that,

“as a responsible government, we will continue to proportionately prepare for all scenarios”.

That is just as well because I do not share the Minister’s confidence that the future is at all clear or, indeed, that all scenarios have been planned.

I am sure the regulations are sensible but the Explanatory Memorandum takes us back to our debate when they originally came through your Lordships’ House, during which a number of us expressed concerns that the directive on which they were based takes too draconian a view on e-cigarettes. I happen to think that e-cigarettes are one of the most successful public health measures to help reduce smoking that we have ever seen. It is a great pity that some elements of the public health community that I know well and love have such a downer on e-cigarettes that they have encouraged a disproportionate approach to their regulation. In Grand Committee, the argument was put that e-cigarettes should be regulated in a completely different way from tobacco-based products. I remain convinced of that.

Of course, we must be very careful about the potential impact on young people. I know there are those who think that attractive advertisements and the way e-cigarettes are marketed can sometimes lead young people to take up smoking. The evidence for that is very dubious. We know that e-cigarettes are attractive to people over whose heads most public health campaigns completely fly. Although I fervently hope that we do not exit the EU next March, if we do and if the Government bring forward at some point new regulations on tobacco products in general, I hope they will take note of our debates and look at e-cigarettes in a completely different way.

[Baroness Thornton (Lab)]

My Lords, I apologise to the House for being a minute or so late. I am afraid that business moved too quickly and the lift too slowly.

As the Minister said, the current regulations for tobacco and related products are designed to promote and protect the public’s health. Speaking as a veteran of tobacco regulation from the previous Labour Government and the Minister responsible for the point of sale retail advertising regulations that put tobacco products out of sight in our shops and supermarkets, all those actions were rigorously and energetically opposed by the noble Lord’s party and the Minister’s predecessor but one. I welcome the Government having definitely seen the light on this; it is wonderful. I am pleased to learn that the Government’s priority is to maintain the same high standards after the UK leaves the European Union, if that is indeed what happens.

The noble Lord and I are discussing regulations that will be necessary if there is no deal. I suspect they are the first of many. We have a whole load of embryonic and blood things to discuss next week. I wonder whether that is really a productive use of his time or mine.

On what these regulations do, in the event of no deal we will be obliged to introduce legislation to ensure that the policies and systems in place to regulate tobacco products and e-cigarettes will continue to function effectively and maintain continuity with current arrangements. The website and the Explanatory Notes use the words “where possible”, so I suppose my first question to the Minister is to explain the words “where possible” and where the current arrangements might not be possible.

If the UK leaves the European Union in March 2019 with no agreement in place, that will mean, as the noble Lord said, that the tobacco products directive and the tobacco advertising directive will no longer directly apply to the UK—which is ironic, as we were the pioneers in these matters all those years ago. UK domestic law that implements these directives, such as the Tobacco and Related Products Regulations 2016, would remain in force.

My understanding is that these regulations’ purposes are threefold: to introduce a new domestic system to allow producers to notify e-cigarettes in accordance with existing rules; to introduce a new domestic system to allow producers to notify tobacco products in accordance with existing rules; and to introduce new picture warnings for tobacco products, already mentioned by noble Lords, based on the picture library owned by the Australian Government. The noble Lord and I have both learned that the pictures in use at the moment come from a library based in Brussels. We will no longer have access to it.

I thank ASH for its views and vigilance on these important matters, and for its participation in the consultation process. I agree with it that the system set out for notification of e-cigarettes and novel tobacco products in the consultation document is pragmatic and practical, and would minimise the additional work involved in the notification process if there were to be a no-deal Brexit. Products notified to the UK prior to the UK leaving the European Union would not require re-notification and data will be accepted in the same format as currently submitted. Those arrangements seem satisfactory.

For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, since we would no longer have access to the rather revolting and graphic pictures in the SI—I have not seen any other legislation with pictures in it, but this instrument has them; I suggest that if noble Lords have not read the statutory instrument they should at least open it and look at the pictures it contains—the Minister has said we will switch to the ones used in Australia, which I gather are even more horrible. However, I remind the Government that, in the longer term, the Tobacco and Related Product Regulations 2016 require the Secretary of State to review the regulations and publish a report before 20 May 2021. This review needs to examine the objectives intended to be achieved by the regulatory provision made by these regulations, and to assess how far they have been met and whether they remain appropriate. That will allow a review of quite a fast-moving area in terms of product development to take place. Does the Minister agree that is the case?

For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, switching to the pictures from Australia is a short-term quick fix for this emergency. However, current best practice in Australia and the UK is to rotate, regularly review and update those health warnings. Therefore, it is essential that in the longer term the Government review the warnings—they are currently being evaluated by the Australian Government—and find ways to increase the number to allow for rotation, as is currently the case. When can we expect that review to take place?

I do not need to add to my noble friend Lord Hunt’s remarks about the importance of vaping and its role in reducing smoking. These statutory instruments serve their purpose.

[Lord O’Shaughnessy]

I am grateful to all noble Lords who have spoken on this statutory instrument. It is hard to believe that it has taken us this long to have our first Brexit outing on health issues. It could be the first outing of many and we may not always be in such agreement, but I am happy that we seem to be on this occasion.

On the point made initially by the noble Lord, Lord Hunt, and later reinforced by the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, about e-cigarettes, we have been working in a framework decided at a European level and have made the most of it. It inevitably involves some restrictions, whose boundaries we have tried to push in order to have what I think is the most rational and effective approach in Europe. It has worked. As we all know, it has contributed to improved smoking cessation and low use by young people—take-up among young people being one of the fears, which we are unfortunately seeing in the States. Some research is still required to understand better both the behavioural and the health impacts of vaping products, but the Government have no doubt about their central role in dealing with what is still one of the biggest public health issues that we face. I can give an assurance that we keep an open mind about the right way to regulate these products, bearing in mind their almost entirely positive benefits.

It is worth emphasising, as noble Lords have done, that the purpose of the instrument is not to change policy; it is to provide continuity and make sure that there are fixes. However, as the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, pointed out, the review of directives that the Secretary of State has a duty to fulfil gives us an opportunity to think about how they are operating in this and other domains. Certainly, we will fulfil that by 2021, but the Secretary of State may decide to do something sooner —of course, that is not something I can commit him to at this point. The policy is working and we want to make the most of it. For example, some of the restrictions on advertising may be stopping realisation of the full benefits of the use of e-cigarettes in smoking cessation; those are the kind of things we would want to think about.

The noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, talked about the Australian pictures. They are indeed more gruesome—it clearly shows that Australians have a higher threshold for what appals them. We are grateful to the Australian Government for helping us get through the transition by giving us those gruesome photos. It is also worth noting that Australia has a very successful smoking cessation regime—we are not taking these images from just anybody; we are taking them from a country that is doing really well, so there is good reason to think that they will be effective.

The noble Baroness, Lady Thornton, asked about rotation. Clearly, we are going to need to work with the Australian Government as well as design our own pictures. In a no-deal scenario we would need to do that so that we can have rotation and make sure that people do not grow desensitised to these pictures, which is of course one of the problems with them. Of course, in a no-deal scenario we may be able to work with a number of different jurisdictions. It may be possible to assemble a library that goes beyond one or two countries, but that is not something we have a timetable for yet.

In answer to the question from the noble Lord, Lord Rennard, I say again that there is absolutely no going back on the progress we have made on smoking cessation. The Government are a vigorous promoter of tobacco control. We know the health benefits: pretty much the best thing you can do for your health if you smoke is to stop, so I can reassure noble Lords that there is no going back.

On the final question regarding the language—“fixing where possible”—the point is that we are acting under the aegis of the European Union (Withdrawal) Act 2018, which gives us the power to deal with certain things. Let me give an example of what it does not allow us to do, because of the framework of primary legislation. In its 20th report of the 2016-17 Session, the Joint Committee on Statutory Instruments found some defective drafting, but we do not have the power under the withdrawal Act to fix that through this process; we would need some other process. So we have used all the powers we have under the withdrawal Act to make fixes and provide continuity in key areas, but it does not necessarily follow that we have fixed everything through this process; that will have to be done through other processes. That is just the limit of what we can do through primary legislation.

I hope I have been able to answer noble Lords’ questions and provide reassurance about our commitment to smoking cessation and, indeed, about our open-mindedness to future policy changes that may be required for us to go further and take advantage of some of the technologies available to us. On that basis, I beg to move.

Motion agreed.