Health and Social Care Bill

Lord Patel Excerpts

Monday 5th December 2011 Lords Chamber

Moved by

[Lord Patel]

225: Clause 27, page 55, line 33, leave out “acting jointly with” and insert “with the approval of”

[Lord Patel]

My Lords, while the House settles down, I thought I might tell your Lordships what a hazardous journey I had here today. The temperature difference is only 12 degrees.

The amendments in this group relate mostly to issues concerning public health. It is to be commended that the Bill places a duty on the Secretary of State to take steps to protect the public from diseases and other dangers to health, putting public health at a high level of government responsibility and particularly that Public Health England, once established, will be accountable to the Secretary of State. I look forward to the public health outcomes framework. It is none the less disappointing that, while the Bill places a duty on the Secretary of State to pay regard to reducing inequalities in health, it does not do so for public health. None of my amendments will alter the thrust of the policy in the Bill; nor will they alter the structures for the delivery of public health locally or nationally. I hope that they will be seen as genuine attempts to improve the Bill and improve the chances of the delivery of the public health agenda. I am pleased that the amendments have such widespread support among noble Lords on all sides and I look forward to their contributions.

I will speak to Amendments 225, 226, 229 to 232, 233A, 234, 259 and 339. Amendment 225 deals with the appointment of directors of public health. Amendments 226, 229 and 231 allude to their training and qualifications. Amendment 228 applies to their accountability within the local authority and Amendment 230 concerns registration criteria. Amendment 234 applies to duties regarding the termination of employment of directors of public health and Amendment 259 concerns employment conditions. Amendment 339 deals with the regulation and registration of public health specialists.

As regards Amendments 228, 229, 230 and 231, the director of public health will be the strategic leader for public health in his or her local authority, providing expert public health advice and guidance across health protection, health improvement and health services. In order to provide effective strategic leadership, the director of public health must be able to influence all aspects of the work of the local authority in the wider determinants of health, such as housing, employment, access to services and education. He or she will also work with other organisations, including local health and well-being boards, HealthWatch England and clinical commissioning groups.

The director of public health must be an appropriately qualified and registered public health specialist. He or she must report directly to the accountable officer of the local authority, the chief executive. That is important because if the director of public health is not directly accountable to the chief executive but to some other person and, therefore, is subordinate, their authority will be diluted. The majority of directors of public health are now appointed jointly by the primary care trusts which employ them and local authorities to which they are seconded. Under the new system, all directors of public health will by law be jointly appointed by local authorities and the Secretary of State. That function will be undertaken by Public Health England and they will be located within and employed by local authorities.

As it currently stands, the Bill simply states that a local authority should “appoint an individual” without any specification of the required skills, expertise or stipulation of how these appointments should be carried out. A local authority could, for instance—indeed, there is some evidence that some are actively seeking to do so—tack the public health responsibilities onto, say, the duties of the director of adult social services or even the director of education. Most of them of course are wise and will not do that but it is possible.

Perhaps I may allude to some of the core competences that will be required of directors of public health, although this is not an exhaustive list. They will need to ensure the proper design, development, implementation and utilisation of the major information systems to underpin public health improvement and action for the population across disciplines and organisations. They will need to interpret and advise on highly complex epidemiological and statistical information about the health of populations to the local authority, the NHS and voluntary organisations, and to develop a strategy for reducing health inequalities. As executive directors, they will need to take a leadership role in specified areas with local communities and vulnerable hard-to-reach populations. They will have responsibility for dealing with infectious diseases and threats, including food and water-borne diseases. They will also have responsibility for preparing for emergencies, including pandemic influenza, and for safeguarding the health of the population in relation to communicable diseases, infection control and environmental health, including delivery of immunisation targets.

There are a lot of tasks and they are much more exhaustive than the list I have given the House. Therefore the person appointed as director of public health must have the appropriate qualifications and experience to carry out those tasks. The statutory requirement to have an appointments advisory committee that appoints directors of public health is therefore necessary. When appointing public health specialists, it provides a system which exists in the NHS now for all consultant appointments of monitoring applications for specialist public health posts. Through this system, candidates’ qualifications, training and experience are scrutinised by experts in the field of public health, usually the UK Faculty of Public Health advisers, to ensure that only appropriately qualified and trained people are appointed. Therefore it is important that all directors of public health and consultants in public health are appointed through a statutory appointments committee.

I turn to Amendment 234. Directors of public health will not only have many tasks, but they will have other accountabilities apart from the local authority. While their primary accountability is to the local authority, they will also be accountable to the director of Public Health England and have regional or national responsibilities in the wider public health service and for health protection. Yet while any authority that wishes to dismiss a director of public health will be obliged under statute to consult the Secretary of State, the Secretary of State will not have a veto over any dismissal, although he will be approving the appointment of a director of public health. I believe therefore that it is essential that any local authority wishing to terminate the appointment of its director of public health must be required in statute to have the Secretary of State’s approval and not merely to consult him or her.

In my view, the director of public health’s ability to report independently on the health needs of their community and population is important and critically on how well or not these needs are being met. He or she may be compromised if there is no protection against being sacked at the request of powerful local influences. The need for the Secretary of State’s approval is therefore necessary to reduce this risk. My amendment seeks to address this exceptional—I believe it will be exceptional—but nevertheless quite real possibility where the director of public health’s ability both to define and implement a local health strategy comes into conflict with other strong local interests seeking to dilute the impact of this strategy and compromise the health of the local population.

Amendment 259 will ensure that as public health specialists move out of existing NHS structures into Public Health England and local authorities, they will be guaranteed equivalent national terms and conditions of service to those in the NHS. That is important to ensure continued workforce capacity in public health, cohesiveness and skills and that public health remains an attractive career path. Clarity over the terms and conditions of employment for public health specialists would provide some measure of assurance that the profession will continue to be developed as an attractive one on a par with other medical specialties. The move of public health away from the NHS could potentially make it a less attractive career choice, particularly for young clinicians. That is an important factor. There is a real risk that without national terms and conditions, at parity with existing NHS terms, the public health workforce will become fragmented. As we saw in a report published last week, morale at the moment among the public health workforce is very low because of uncertainties about their role and the employment situation in the future.

Amendment 339 deals with regulation and registration of public health specialists and directors of public health. As Professor Scally concluded in his Review of the Regulation of Public Health Professionals, a review commissioned by the Chief Medical Officer of England and which investigated whether statutory regulation was needed for individuals operating at consultant level in public health,

“public expectation is such that, without the introduction of mandatory regulation of public health consultants and specialists by statutory health professional regulatory bodies, confidence would be lacking in public health professionals engaged at a high level in public health policy, planning and actions”.

Currently, we have a system whereby all medically qualified public health specialists working as consultants or directors of public health must by law be registered either with the General Medical Council or the General Dental Council if they are public health dentists. Specialists with a nursing or midwifery background are regulated through the Nursing and Midwifery Council. However, that is not the case with public health specialists from non-medical backgrounds, even though they will often carry identical responsibilities to their medically trained colleagues. A voluntary system of regulation, operated by the UK Public Health Register, is currently in place for those from backgrounds other than medicine. At the present time, in order to work at consultant or specialist level in public health in the NHS, a person must be on a specialist register such as that held by the GMC or the GDC. Non-medical specialists must be registered on the UK Public Health Register. With the move to local authorities of the majority of the public health workforce, the danger of a two-tier system of regulation or, worse still, no system of regulation could prevail. That is a risk.

Doctors trained as public health specialists have to undergo five years of training as specialist registrars and obtain a certificate of specialist training to be on the specialist register of the General Medical Council. Subsequently, they have to provide evidence of involvement in continuous professional development and be re-evaluated every five years. Similar mechanisms exist for dentists. The role of director of public health in a local authority carries a level of responsibility in relation to the health and well-being of the local population. It requires public confidence and credibility from other organisations. The person who holds such a post should be properly trained and qualified and be on a register. That would be appropriate.

The amendment would establish that all public health specialists not on medical or dental registers should be registered and that the Health Professions Council should establish such a register. I beg to move.

[Lord Walton of Detchant]

My Lords, I warmly support this clutch of amendments relating to the future of the public health service in the UK, so ably proposed by my noble friend Lord Patel. No doubt the Government have taken full account of the House of Commons Health Committee’s detailed report on public health, 12th Report of Session 2010-12, which raises a number of crucially important issues.

There are three principal domains of public health: health protection, which addresses environmental threats to population health; health improvement, tackling health inequalities and lifestyle issues impacting on health and well-being; and healthcare public health, which applies public health expertise to the provision of healthcare services. It is a significant omission in the Bill that it does not include any statutory duty on local authorities to address health inequalities in discharging their public health functions. That is a serious omission in the Government’s plans.

As my noble friend said, all directors of public health will by law be jointly appointed by local authorities and the Secretary of State, with the latter function being exercised through Public Health England, but they would be located within and employed by local authorities. Does this mean that directors of public health who hold medical and dental qualifications will, as at present, hold honorary consultant appointments, with all that that implies, as indeed my noble friend raised in his proposals? I agree entirely with his proposal that the appointment of such individuals should involve an advisory appointments committee accredited by the Faculty of Public Health, as is currently the case in respect of directors of public health within the NHS. Can the Minister confirm that that will be the case?

As my noble friend Lord Patel said, young doctors and dentists training for a career in public health undertake a programme of training for five years as specialist registrars. Who is going to employ them in the future? Will it be Public Health England? Local authorities do not understand what a registrar is, and for that reason it seems extremely difficult to consider that those people training for careers in public health will also fall under the ambit of the local authorities. Perhaps the Government can give us an assurance on that point. I agree with my noble friend Lord Patel that it is crucial that the director of public health be appointed at chief officer level, reporting directly to the council chief executive, and that any local authority wishing to terminate the appointment of its director of public health must be required by statute to have the Secretary of State’s approval.

Another important issue is to recognise the fact that healthcare public health, the third domain, is a core part of the public health service. Its role is to bring public health skills and knowledge to bear on the commissioning of health services, helping to ensure their quality, safety, efficacy, effectiveness, value for money and accessibility. The Government’s initial proposals were seen as downgrading the role of public health in the commissioning of healthcare services, but, happily, it has been clarified. The directors of public health and their teams will provide public health expertise, advice and analysis to commissioning groups, health and well-being boards, and the NHS Commissioning Board. This will be one of the mandated public health services that local authorities must commission or provide. However, this is not enough. Can the noble Earl give us an assurance that the local director of public health will be a member of the board of each clinical commissioning group? There should be a qualified public health professional on the NHS Commissioning Board; and the board should routinely take advice from qualified public health professionals when commissioning decisions are taken. We seek assurances from the Minister on that particular point.

Finally, I support very strongly the comments made by my noble friend Lord Patel about the regulation of public health specialists, including directors of public health who do not hold a medical or dental qualification. Those who are in possession of medical and dental qualifications are of course regulated by the General Medical Council and the General Dental Council. What about the specialists in public health who are not so qualified? Is it the Government’s intention, as Professor Gabriel Scally has indicated, that these individuals should come under the Health Professions Council for their registration? In my opinion and that of many professionals, some form of formal registration rather than voluntary registration is very important and, in fact, absolutely essential. I support these amendments.

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[Baroness Northover]

I thank noble Lords for being so willing to receive letters about the areas that they are concerned about. I found myself retrieving what I learnt in my history degree, and I suppose this then becomes the Reformation. I will ensure that we write to noble Lords about these areas.

[Lord Patel]

I thank the Minister for her detailed answer. I know that this is a complicated group of amendments, each one referring to different aspects of public health. As I said in my opening remarks, it is extremely important that we realise that if we want a strong, reliable, effective, qualified, properly trained and accountable public health workforce, we need to address their accountability, employment status, registration and regulation. I did not put these amendments down lightly. They in no way seek to change the policy or structures of the Bill; they merely seek to strengthen the role of public health directors and public health consultants.

I do not know whether the noble Baroness passed the Warner test, but I listened carefully and I know she said a couple of times that the Government were looking at it and will produce a plan in early January. We will look at that carefully and carefully read what she said. I am very willing to engage with her because the public health faculty out there has great concerns. It is not concerned because it wants to be difficult; it is concerned that it will be asked to deliver something while its hands are tied behind its back. It would much rather come out into the open, to be told its status and to have that status put into the Bill so that it can begin to do the work that it is being asked to do. On that basis, I beg leave to withdraw the amendment.

Amendment 225 withdrawn.

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Moved by

[Lord Patel]

227: Clause 27, page 56, line 4, at end insert—
“( ) the exercise of the authority’s functions in relation to the control of any outbreak of disease or other public health emergency”

[Lord Patel]

In this group of amendments, Amendments 227 and 235 are particularly concerned with accountability in handling emergencies. It is essential that there is clarity about who, within the radius of local agencies involved, has the lead responsibility for managing the response in an emergency or an outbreak. I do not think the Bill makes that quite clear. There is a lot of ambiguity about it in the Bill, and my amendments merely seek clarification and to require it to be put into the Bill so that everybody is clear about who leads on it.

It is important to establish that at the local level this responsibility lies with the local authority and, on its behalf, with the director of public health. The director must have the experience, expertise and qualifications to make decisions about outbreaks and other health emergencies affecting the area. As we know, wrong decisions in the early stages of an outbreak—for example, failing to appreciate the seriousness of the situation, taking inadequate control measures or offering inappropriate advice—can quickly lead to a public health catastrophe. I will not go into the details of the E. coli outbreak, but it would be quite interesting to follow it. The Chinese pretty rapidly finally sequenced the E. coli that was affecting countries in Europe this summer, and that is a good case in point as to who takes the lead.

The Bill is unclear about the lines of responsibility or accountability for ensuring co-ordinated action. This lack of clarity about who is operationally responsible at the local level for ensuring that an effective response is put into place will result in delay and confusion. As the Bill currently stands, there is a great risk that emergencies, outbreaks and epidemic situations—for instance, the flu epidemic or recent outbreaks of E. coli— will not be properly managed or responded to and may quickly escalate and harm the health of the population.

The amendment makes it clear that the local authority will be required through regulations to ensure not only that plans are in place for responding to outbreaks or emergency situations but that an appropriate and effective response is made. Of course the local authority will not normally deliver the response itself; it will normally be provided by Public Health England, supported by the NHS and others in the local community, but the local authority will be responsible for ensuring that an effective, appropriate, integrated response is delivered. It will also then be able to hold Public Health England to account for the local services that it provides.

I inquired whether there had been any discussions between public health directors and Public Heath England about this, and I am encouraged that they met recently and that the relationship between the directors of public health and public health units—because Public Health England will have regional units—will be built on the fundamental assumption that the two arms of the public health system, the local authority through the director of public health and Public Health England, must work together and support each other to deliver an integrated service and to ensure that the population is effectively protected using all appropriate resources locally and nationally. Neither of them will duplicate the other’s functions.

There are four complementary principles that will define the working relationships. The local authority and the director on its behalf must be, and must be seen to be, responsible for the health of the local population. This will ensure that all aspects of public health are delivered in a locally coherent way. Under the Bill, the Secretary of State has a duty to protect the health of the population, which he or she will discharge through Public Health England. This will ensure a clear line of sight to the front line and the integration and consistency of health protection services across the country from national to local.

A principle of subsidiarity needs to be put in place, which is that the responsibility for health protection will be kept as close to local communities as possible. Public Health England will employ in local units the specialist expertise that it would not be cost-effective to replicate in every local authority. For instance, the Health Protection Agency currently has 25 units across England and national centres. The local authority through the director of public health will provide leadership for the public health system locally and must be responsible for ensuring that the system is prepared and delivers an effective health protection service.

I understand that more detailed work will define the range and scope of the core services that Public Health England will provide to the local authority. I know that we will come to a discussion about public health, and I do not wish to engage in discussion about Public Health England or my Amendment 260 at this stage. I merely refer to this in relation to the local authority’s responsibility for dealing with emergencies. I beg to move.

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[Baroness Emerton]

I thank the Minister and look forward to seeing the regulations.

[Lord Patel]

My Lords, I thank noble Lords who took part in this debate. As I said in my opening remarks, the amendment seeks to clarify the responsibilities of the local authority in situations that arise as an emergency, either locally or nationally, and within that the role of the public health director. I realise that the Bill says that the Secretary of State, through Public Health England, will be involved, but there is still a lack of clarity in the Bill. Apart from saying that local authorities will produce documents about their preparedness to deal with an emergency, it does not say who will take charge. Further clarification may be required, and the Minister might undertake to look at the amendments again to see whether there is some need to clarify this in the Bill.

[Baroness Williams of Crosby]

I thank the Minister. I will spend many happy hours working my way through every possible legal complexity and a number of different Bills. I am grateful for her explanation.

[Baroness Northover]

My Lords, I will write to noble Lords if it is not that wide a definition, but my assumption is that it is the wider definition that needs to be covered.

As a brief response to the noble Lord, Lord Patel, I can say that much of this will be in regulations. I know that the previous Government had problems when they said that they would put something in regulations. The House would say that it wanted to know while it passed a Bill exactly what it would be, but a distinction needs to be drawn between the kind of things that you want in the Bill, where there needs to be an architecture and structure that gives flexibility, and the kind of precision and more detailed explanation that you have in regulations. The noble Lord will be familiar with that. If we can take anything further and outline what sort of things might be in the regulations, as the previous Government also sought to do, I am sure that we will.

[Lord Patel]

I beg leave to withdraw the amendment.

Amendment 227 withdrawn.