Health Care Services (Provider Selection Regime) Regulations 2023

Lord Stevens of Birmingham Excerpts

Monday 27th November 2023 Lords Chamber

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

My Lords, the Government are committed to giving patients better, more joined-up healthcare services. To do so, we need to ensure that we have the right procurement regime so that the NHS can best allocate resources which meet the needs of patients. These regulations do that. They would establish the provider selection regime on 1 January 2024.

This House knows that the challenges we face as a country are changing, and the NHS is changing to address them—an ageing population, an increase in people with multiple health conditions, and persistent inequalities in health outcomes. We must respond to these challenges. To meet them, we need to provide an enabling and empowering framework that allows the NHS to combine the value of competition with the benefits of collaboration in the interests of patients.

In March last year, the Health and Care Act 2022 was passed. It sought to bring together NHS organisations and partners to tackle issues in our health and care system. This instrument builds on that progress. In 2019, engagement across the NHS identified that the use of the current rules on procurement presented a bureaucratic barrier to bringing NHS organisations and partners together. NHS colleagues wanted a framework that allowed them to use the right approach for different scenarios; a framework that included competition without defaulting to it and which supported the increased need for the alignment of services, including those provided by non-statutory organisations in the voluntary sector, to join up care for patients. The Government developed the legislative framework in the light of these requests. Furthermore, in June 2019, the Health and Social Care Committee also agreed that this was the right approach to

“ease the burden procurement rules have placed on the NHS, ensuring commissioners have discretion over when to conduct a procurement process”.

As our colleagues in the NHS and across the health system have emphasised, we must seek to balance a system-driven approach to planning services while recognising the importance of provider diversity for service innovation and value. That is also why my officials have worked closely with a broad range of colleagues and organisations across the system, including both commissioners and providers of healthcare services, to prepare the instrument before you today. This work has included extensive consultation. In 2021, NHS England published a consultation on the detail of the policy behind this instrument. Of 420 responses received from NHS representative bodies and individuals, 70% of respondents agreed or strongly agreed with the detailed proposals set out in that consultation. In 2022, the department published a further consultation to help inform the detail of our regulations.

Finally, we have not neglected to do the analysis of impacts associated with this regime change. Our voluntary impact assessment shows that, in the most likely scenarios, introducing this instrument will deliver savings to the NHS by reducing bureaucracy. Although it is difficult to provide a precise figure ahead of monitoring this regime, those noble Lords who have read the assessment will be aware that our central estimate suggests that savings of up to £230 million are possible. While I am on this subject, I was very glad to see that the Secondary Legislation Scrutiny Committee welcomed our consultation and voluntary impact assessment in its report on this instrument.

To summarise, the instrument reflects engagement and careful balancing to present commissioners with the right options for procurement so that they can find the most collaborative, value-add solutions that will work for patients. Engagement with providers has told us that both more collaborative approaches to healthcare—where those with services to offer can get around the table, help break down barriers and promote provider diversity—and putting a contract out to tender are valuable and need to be in the commissioner’s toolkit. That is why this instrument reaffirms the role of competition in arranging services by providing explicitly for those processes, while also providing some flexibility to commissioners to adopt a more direct approach.

As many noble Lords will know, getting the balance of a framework right to promote the best culture and behaviour on the ground is tricky. I am glad, therefore, that we have worked so closely with providers and commissioners to find and test that balance. One result of that engagement was to agree to establish an independently chaired panel which will act as a non-statutory advisory body for contested decisions made under this regime. We intend that this will help commissioners think carefully about the approach that they take to procurement, and its justifications.

Furthermore, we must ensure that the system understands these rules so that it can have the best chance of promoting the right behaviour on the ground. That is why NHS England is leading an extensive programme of familiarisation with those draft regulations and the draft statutory guidance, which is available online. Of course, legislation and guidance are only part of the story of how the new legislation will influence outcomes. That is why the department is committed to monitoring and evaluating this new regime from its implementation.

For these reasons, I am content to move these draft regulations, which, subject to the approval of the House, would bring the provider selection regime into force. I beg to move.

[Lord Stevens of Birmingham (CB)]

My Lords, I welcome these regulations. They get the NHS off the hook from inappropriate compulsory competitive tendering of clinical services but also avoid throwing the baby out with the bathwater. Open procurement will remain an option where it is in patients’ and taxpayers’ interests.

In my previous experience, there have been several problems with the way in which the accretion of UK procurement rules and the EU procurement regime have tied the hands of the NHS. We have often had to go through the motions of competitive clinical procurements for services that would quite obviously be provided only in one place and by one part of the NHS—for example, billions of pounds-worth of specialised cardiac and cancer services for which it was blindingly obvious that the Germans and Italians would not turn up and try to replace Leeds General Infirmary or St Thomas’ Hospital. These regulations make these processes honest, in that when we embark on procurements, it will be for a good reason.

A related problem is that the legacy procurement rules have tended to lead to too much service fragmentation. We have seen examples where community nursing services have had to be tendered out but core general practice services have not, so getting the community nurses and GP practices working together has been much harder. One of the fragmenting consequences of the 2012 Act was that a lot of what had previously been NHS services became local authority-procured, and so sexual health services and health visitors were operating on a different procurement process through local authorities rather than through the local NHS. The Health and Care Act 2022 and these regulations overcome that problem. The NHS will still be subject to transparent and fair procurement, but it will now be much more flexible and proportionate.

The regulations are quite complex. Those noble Lords who have read through the materials may agree that it is fair to say that they will not command the attention of the pubs and clubs of Barnsley or Barnstaple, but they will make a huge difference to the way in which care is delivered right across the country.

Draft Mental Health Bill

Lord Stevens of Birmingham Excerpts

Tuesday 28th June 2022 Lords Chamber

[Lord Kamall (Con)]

The noble Lord makes a very important point from his own experience. I thank him for all his engagement and for educating me on what happens in the community. We must be careful because often, these issues are not simple or binary but are multi-faceted, and we then have different initiatives from the Government, which overlap. There is probably an incredibly complex Venn diagram of who is responsible, where the funding pots are and at what level you get the funding—is it local government, national government or philanthropy networks, for example? I would love to make it easy—but will I be able to?

Also, whenever you have change there are often winners and losers. Often, those who lose out because of change are very concentrated and make their voices heard, while the winners are dispersed and we do not hear them saying, “This is a great change.” Therefore, we must be very careful with any change in funding. However, the noble Lord makes an incredibly important point. We must ensure that we are not squeezing out civil society and pulling people in many directions, and that it is much easier to access finance. The noble Lord, Lord Glasman, made the point that as a Labour Peer, he is incredibly proud of 1945 and the welfare state, but that he worries that in doing such things, sometimes the state squeezes out local community groups and breaks the bonds in local communities. We must ensure that we get the right balance.

[Lord Stevens of Birmingham (CB)]

My Lords, I welcome the draft mental health Bill. Prime Minister Theresa May was right to ask Sir Simon Wessely to develop these proposals, which command wide support across the sector. It was pleasing to hear the Minister commit to the Bill’s passage through Parliament before, and hopefully well before, the next election. However, as a number of noble Lords have pointed out, to will the end is to will the means. The Minister will know that the Royal College of Psychiatrists and others, in the impact assessment for this draft legislation, have shown that to make this work in practice will require more people working in mental health.

To that end, if the Minister does not mind me banging a familiar drum, it is surely paradoxical that UCAS is reporting that only 16% of applicants for undergraduate medicine and dentistry got an offer this year. We are turning bright and brilliant young people away at precisely the time when the NHS, and indeed our mental health services in the future, will need their services. Deans of medical schools report that this year is the hardest in living memory to enter undergraduate medicine. Can the Minister give us a date by which the Government will declare their hand on the needed expansion of undergraduate medicine?

[Lord Kamall (Con)]

I am sure the noble Lord is aware that one of the things we found when looking at the shortage of doctors—even though we have more doctors than ever before—was that some people are likely to stay close to where they were trained. That is why, for example, we have opened the new medical schools, and we are bringing more doctors into the system. Clearly, that will not happen overnight, since training to be a doctor takes a very long time.

We are also looking at what else needs to be done at that level. There are other pathways, such as nurses becoming doctors after a certain amount of time. Clearly, international recruitment plays an important role there. Our aim is to have an additional 27,000 mental health professionals in the NHS workforce by 2023-24. We are investing money to achieve that, but again, it is a question of how long it takes for the money to get through. At the same time, we must ensure that by having this additional workforce in the NHS, we are not squeezing out the voluntary sector but ensuring that we are working in partnership with it.

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, although my noble friend Lady Walmsley will be speaking from our Benches on the workforce amendments, I just want to commend the noble Baroness, Lady Cumberlege, on the eloquent speech she made on the need for proper and effective workforce planning. I support everything she said.

I will now speak to Motions D and D1 on genocide and modern slavery, having added my name to amendments at earlier stages of the Bill. I thank the Government for their Amendment 48A in Motion D. Frankly, a review of the NHS supply chains should undoubtedly happen, regardless of the Bill, but the amendment does not go nearly far enough to stop the practice of suppliers to the NHS purchasing goods where there has been a risk of slavery and human trafficking. The amendment talks only about the Secretary of State having to “mitigate the risk”. In the linguistic range of a Minister making commitments, mitigation does not hit even the halfway bar.

We need to be blunt. A very large quantity of NHS medical equipment is sourced, in whole or in part, from the People’s Republic of China. Despite the Government denying that any equipment is sourced from the Uighur region, reports have found that the UK Government have bought more than £150 million-worth of PPE from Chinese firms directly linked to abuses of Uighur rights abuses. As recently as this month, supply chain specialists revealed that the NHS continues to be supplied PPE from a company known to use Uighur forced labour programmes. Without legislation mandating transparency and due diligence, it seems very unlikely that the Government will be able to ensure that they are not sourcing goods from companies practising modern slavery.

Amendment 48B in Motion D1 in the name of the noble Lord, Lord Blencathra, goes beyond the Government’s proposals for a review by seeking to ensure that the Secretary of State must by regulation make provision to ensure that all procurement of goods and services for the health service in England avoids slavery. The UK Government have to face up to their obligations to prevent through the law any forced labour and people trafficking in UK health supply chains. From these Benches we will support Amendment 48B in Motion D1.

[Lord Stevens of Birmingham (CB)]

My Lords, I will speak in support of Motion B1 on workforce planning and Motion C1 on the Secretary of State’s powers on reconfiguration. As the noble Baroness, Lady Cumberlege, has just reminded us, there is a huge groundswell of support for the need to do proper workforce planning in the NHS, but the fact is that today we do not need to relitigate the fundamental arguments, because your Lordships have already decided, by a margin of 171 to 119 votes on 3 March, that that is indeed what is required.

Of course, if the facts change, we should change our minds. Have the facts changed since 3 March? Have we seen the long-awaited detailed workforce plan for the health and social care sector that has been promised yet suppressed for the last six years? Regrettably, we have not. Have we even had concrete commitments to the detailed, costed and quantified five, 10 and 15-year outlooks that will supposedly be forthcoming in the spring? No, we have not had commitments that those numbers will be able to be produced without fear or favour, or Treasury veto.

However, we have before us two new data points. One is the survey of 650,000 NHS front-line staff, half of whom—52%—are now telling us that they cannot do their jobs properly because of a shortage of staff in their local service. The second data point is the results of the British Social Attitudes survey, telling us that nearly half of our fellow citizens have noticed that fact; they too believe that one of the fundamental problems standing in the way of performance by the health service is the shortage of staff.

If the Government are not inclined to listen to the hundred or so organisations that have supported this amendment or, indeed, to the results of surveys of front-line staff or the public, perhaps they will listen to a commentator from the Spectator:

“The lack of workforce planning by the Government—and its continual refusal to commit to it—means satisfaction from patients and staff is likely to plummet still further.”


I do not believe the Government want that. Nobody wants that, which is why we should take this opportunity to listen to the clear message that we have been sent by patients, staff and the public.

I turn briefly to Motion C1 on the Secretary of State’s powers on reconfigurations. There is an obvious read-across between the discussion on workforce and the discussion on reconfigurations. In the real world, it is often staff shortages which give rise to concerns about the safe provision of services, hence the request for reconfigurations. In these circumstances, and coming just a few days after the Ockenden review of maternity safety, it is all the more dangerous that the new powers in Clause 40 and Schedule 6 would allow the Secretary of State to suppress changes needed to keep patients safe and to pre-empt and override the concerns of local clinicians, local patient groups, local authorities and even the Care Quality Commission.

There could be safeguards but, unfortunately, to date at least—perhaps, depending on what we do today, this will resurface after Easter—we are being asked to support the original text of the Bill, which has taken no account of any of the concerns that have been raised in both Houses during its passage. Instead, on the reconfiguration powers, today the Government are essentially praying in aid an argument not on the substance but on the merits of democratic oversight by the Secretary of State. This is despite the fact that previous Health Secretaries have managed democratically to supervise the National Health Service without requiring these new powers, despite the fact that former Health Ministers—Conservative Health Ministers, Labour Health Ministers and Liberal Democrat Health Ministers—all oppose these measures and have spoken out, including in your Lordships’ House, and despite the fact that democratically elected Health Ministers in just about every other European country have never sought and do not possess these types of powers.

If the Government want to argue Motion C on the crucible of democratic oversight, it seems that by that logic they should indeed support Motion C1 tabled by the noble Baroness, Lady Thornton, which further enhances the democratic oversight of the use of these proposed new powers, giving Parliament the ability to scrutinise these types of interventions. Therefore, for those reasons, frustratingly, perhaps, I find that we are in a position where Motions B1 and C1 are still necessary.

[Baroness Harding of Winscombe (Con)]

I rise to congratulate my noble friend Lady Cumberlege on her excellent speech and to support her on Motion B1. Addressing workforce shortages in our health system is a wicked problem. It is complex and complicated and it is a problem that is shared by every healthcare system in the world. I have no doubt that my noble friend the Minister and the Government are sincere in their belief that they are doing a lot to address the problem but, as my noble friend said, the problem is that we do not know its scale. Until we do and we are open and honest about the complexity and size of the problem. we will not be able to move forward.

Sadly, this ought to be one of the reasons why the NHS is the best healthcare system in the world. It, above all other healthcare systems, ought to be able to do this sort of long-term, complex, detailed planning as a single-payer, state-provided system. Most developed countries do not have those benefits, yet today we are in a place where the Government appear to be saying that we should just keep doing what we have always done. There is a basic maxim in life that if you always do what you have always done, you will always get what you have always got. The reality is that unless we are willing to bend and change, we will not get any meaningful, sustained solutions to this burning problem. My noble friend Lady Cumberlege has bent and changed and has adapted her amendment to try to address what I know were some of the major concerns of the Government about the risk of a verified, firm and unwavering false certainty in a forward forecast and the need to recognise that this is a complex problem where there is likely to be a range. If we are not open and honest about that, we will never really address the issues.

This is a wicked problem that requires us to be brave enough to admit that we do not have all the answers. That is the courage we would need to see in publishing a workforce plan and is why I support Motion B1.

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I shall speak to Amendment 82 in the name of my noble friend Lady Bennett of Manor Castle. I attended Second Reading and made my views felt then, but I have not been able to join the deliberations on the Bill since then because of the pressure of other Bills in your Lordships’ House.

Even I, as someone who does not know very much about medicine, know that the most urgent challenge currently facing our health service is a shortage of nurses. I have been lobbied very heavily by the Royal College of Nursing, because Amendment 82 is its number one priority. It feels that, without a co-ordinated work plan, a coherent forward view and knowledge of exactly how the situation is at the moment, it cannot possibly achieve the sorts of numbers that are needed. There were almost 50,000 vacancies before Covid, and you can imagine the pressure that Covid has put on to the NHS—extreme pressure at completely unsustainable levels, and with staff numbers that are actually unsafe. We all know this, yet Boris Johnson and the Conservatives made big promises at the last election—their manifesto made a promise of 50,000 more nurses—and instantly that number began to unravel, as it included existing nurses who do not quit. That is unclever and unsophisticated number crunching.

I do not understand why this Government will not live up to their manifesto commitments. One reason why I have not been able to speak on this Bill since Second Reading is because of all the other Bills coming through, on which the Conservatives have said that they are aiming to achieve their manifesto commitments. They are actually going rather beyond their manifesto commitments in lots of areas—but the fact is that they are picking and choosing as if from a box of sweets the ones that they prefer.

The Royal College of Nursing represents over 480,000 nurses in health and social care. These are people whose pay requests are constantly ignored—and who constantly have their pay cut; in real terms, it has reduced. Just at the point when MPs are getting very welcome extra pay, nurses hang on by their fingertips. We know that vacancies are also a huge problem, with retirement age approaching for a lot of nurses. Nurses need the certainty of planning, and I do not hear those plans coming from the Government, although this is really their job—to manage the economy and manage society in a way that benefits everybody. Clearly, if the NHS fails in any area, that does not benefit anybody at all.

I argue very strongly for Amendment 82, and I just hope that the Government wake up in time to see how necessary it is.

[Lord Stevens of Birmingham (CB)]

My Lords, I am very pleased to co-sponsor the amendment proposed by the noble Baroness, Lady Cumberlege, Amendment 80, and to speak in support of a number of the other amendments in this group. I declare my honorary fellowship of the Royal College of Physicians and the Royal College of GPs, and thank them and the 100 other organisations across the health and social care sector that have joined in the cross-party support that this amendment is likely to generate.

In considering how to vote on this amendment, I think it really boils down to two very straightforward questions. First, do we need regular, rigorous and independent workforce planning for health, social care and public health? The social care point, as the noble and learned Lord, Lord Mackay of Clashfern, has just reminded us, is so crucial here. The second question is: if so, will we get it, with appropriate rigour and independence, without this amendment? I suggest that the answer to that question is, unfortunately, no.

The first question is self-evident to most people. We discussed it throughout Committee: workforce pressures mean that it is obvious that we need regular workforce planning. The very long lead times make it critical. Earlier this week, your Lordships were debating pressures in young people’s mental health services and eating disorder services. It is worth reminding ourselves that a new consultant psychiatrist specialising in eating disorders, starting work in NHS mental health services this morning, will have entered medical school 15 years ago. It is worth reminding ourselves, too, at a time when the NHS is confronting long waits for routine operations and needs to deal with a backlog of care, that the new medical student starting undergraduate medicine in September will report for duty as a consultant orthopaedic surgeon in 2037.

So the lead times are clear, yet we have a paradox: more young people and, indeed, mid-career people, would like to join this great campaign, this social movement—the health service, social care and public health—but we are turning them away. In 1945, Nye Bevan said:

“This island is made mainly of coal and surrounded by fish. Only an organising genius could produce a shortage of coal and fish at the same time.”


I suggest that, if Bevan were recasting his aphorism for today, he would say that, at a time when the NHS and social care have such a clear need for more staff, only a workforce planning system of organisational genius could turn away bright and committed young people from undergraduate medicine and other oversubscribed university places for health and other professions.

We have to accept that there will be extra costs from getting this right. The noble Baroness, Lady Cumberlege, was quite right to draw attention to the fact that there will be savings, including from the £6.2 billion spent in 2019-20 on agency and bank staffing across the health service. But there will be extra costs: the Royal College of Physicians has estimated that doubling undergraduate medicine places would cost perhaps £1.85 billion, which is about one-seventh of the amount that the House of Commons Public Accounts Committee identified last week as being likely to be lost from fraud and waste through the various furlough and other schemes introduced during Covid. So I think we need to put these costs in perspective.

The fact that there will be those costs gives us the answer to our second question. Of course, we need workforce planning, but are we going to get it without this amendment? I am afraid that I do not think we are. In Committee—although I shall not rehearse it—using publicly available materials, I set out the sorry history of what I described as the “wilful blindness” that has been inflicted on the health and social care sector and, indeed, on health Ministers and the Department of Health and Social Care itself, as they have sought to go about this task down the years.

The question before your Lordships is: has the leopard changed its spots? I suspect—and I genuinely sympathise with the Minister’s predicament—that he will tell us that the baton has now been passed from the Department of Health and Social Care to NHS England, so that for the first time it has the responsibility for undertaking this task, and we should be reassured by that fact. In that case, I ask him to give clear guarantees at the Dispatch Box that the proposed new powers of direction for the Secretary of State will never be used to veto or censor any independent estimates that NHS England itself puts forward, including those with a financial consequence. Indeed, I ask that he goes further than that and gives us a Dispatch Box guarantee that NHS England will be entirely free to publish, every two years, without approval, veto or censorship from either the Department of Health or the Treasury, the workforce need, demand and supply models implied in Amendment 80. If those guarantees are not forthcoming from the Dispatch Box, I think your Lordships will be entitled to draw your own conclusions.

[Lord Hunt of Kings Heath (Lab)]

My Lords, would the noble Lord be surprised to hear the rumours that the Treasury has prevented the Minister from responding in a positive way to this amendment?

[Lord Stevens of Birmingham (CB)]

We await insight from the Minister himself on that point; it is indeed, of course, what the chairman of the cross-party Health and Social Care Committee, Jeremy Hunt, suggested in the House of Commons. We have an immediate litmus test before us, which should help us answer the question posed by the noble Lord, Lord Hunt. As your Lordships will remember, we noted in Committee the fact that, just 10 weeks before the start of the financial year, when it should have been planning 10 years out, Health Education England still did not have its operating budget for the year ahead. My understanding—I hope to be corrected by the Minister—is that, certainly, as of 10 am, Health Education England still does not have its workforce operating budget for just 29 days’ time. That is precisely because of a set of behind-the-scenes discussions—no doubt courteous, but nevertheless fervent—between the Department of Health and Social Care on the one hand and the Treasury on the other.

Health Ministers are more sinned against than sinning on this, frankly, and in that sense this amendment will strengthen their hand. I suspect that, privately, they will welcome the mobilisation of your Lordships to support their negotiating case. The very fact that Her Majesty’s Government oppose this amendment is proof positive that it is needed. We need it because we need to look beyond the end of our noses. To vote against this amendment would be to cut off our noses to spite our faces.

[Baroness Whitaker (Lab)]

My Lords, this whole group is worthy of government action, and I support Amendments 80 and 81 in respect of speech and language therapists. The NHS Long Term Plan itself states that speech and language therapists are a profession in short supply. The Department of Health and Social Care, in its submission to the Migration Advisory Committee’s review of the shortage occupation lists, argues that speech and language therapists should be added to them because of the pressures facing these professions, particularly in relation to mental health.

The Royal College of Speech and Language Therapists, for whose advice I am grateful, suggests that a minimum increase in the skilled workforce is required in the region of 15%. In recent years, the profession has grown by 1.7% in a year. The Government themselves recognise that they are clearly not delivering the speech and language therapy workforce that we need. No national assessment has been undertaken of the demand and the unmet need for speech and language therapy, which, I remind noble Lords, is essential for people to be able to communicate. Will the Government accept Amendments 80 and 81 or explain otherwise how they plan to improve workforce planning so that speech and language therapy is no longer a profession in too short supply?

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend. In particular I am grateful for his specific assurances on the powers of procurement and the question of resource allocation. We can be pretty confident that the Secretary of State would not interfere with the Advisory Committee on Resource Allocation or the NHS England response to it. If the Secretary of State were to start messing with the formula, we would get into a very difficult place.

I am still of the view that there was a very good reason we gave NHS England greater freedoms. I think it would not have been possible for NHS England to have published its Five Year Forward View in 2014 or even more so the Long Term Plan in 2019, in circumstances where it had occupied the same relationship with the Secretary of State as it did in the past.

This is taking NHS England from its current degree of independence to something that it was not in the past, but is a little more ambiguous. It will be difficult, for precisely the reasons the noble Lord, Lord Hunt of Kings Heath, explained, for the NHS to feel that, when the successor to the long-term plan is published by the successor to the noble Lord, Lord Stevens of Birmingham, it is the NHS’s own plan. That has been very important; Ministers have said it a thousand times. Why do we not let that happen? The measures in Clause 39 take a real risk of infringing on the idea that it is the NHS’s own plan.

It does not mean that the Secretary of State is not accountable, but that they are accountable in ways that they can legitimately control: the resource allocation and an expectation of the priorities and outcomes. That is where the Secretary of State should be putting the weight of the Government, not in trying to decide how outcomes in the NHS are best achieved. I do not agree in principle with what is proposed in Clause 39, but I am not going to press that point.

I will, however, if the noble Baroness, Lady Thornton, pushes it, support her on Clause 40. I say to my noble friend: look at Schedule 6. The structure of it does not even mention the Independent Reconfiguration Panel. As soon as there is a proposal for a reconfiguration from any of the NHS bodies, it quite clearly places in the hands of the Secretary of State the responsibility to decide whether to go ahead with it or not. That will be exactly the moment when the Secretary of State is drawn in and is not able to be extricated from it.

My noble friend has simply to look at the example of the reconfiguration of congenital paediatric cardiac services to realise that no sensible Minister would have been drawn into that debate at an early stage with any confidence of being able to make a decision that would have been accepted by any of the parties to that debate.

[Lord Stevens of Birmingham (CB)]

The noble Lord raises the congenital paediatric cardiac case, and the noble Baroness, Lady Cumberlege, raised the Kent stroke question. On that question, the estimate was that 40 to 50 people will have died or lost their ability to live independently as a result of that two-year delay. Is it not the case that, for the very reasons that the noble Lord, Lord Lansley, has just set out, those kinds of delays will now be invisible to the naked eye because these proposals will never get off the ground due to the self-censoring of necessary clinical change that would save lives, precisely as the noble Lord, Lord Hunt of Kings Heath described?

[Lord Lansley (Con)]

We all know that when these proposals come forward, there is a lot of local pressure. In many cases, it will be local pressure that is transmitted to the Secretary of State by Members of Parliament who are—

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

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

My Lords, in moving Amendment 2, I will speak to Amendments 57, 78 and 109 in my name. We have heard impassioned and compelling arguments here and in the other place for the need for greater emphasis on mental health in the Bill. We have listened and, as a result, have taken action. The result is the package of amendments brought before the House today. I take this opportunity to pay tribute to the many noble Lords across the House who have contributed to the development of these amendments and the advice we have received.

Let us first turn to defining health. I assure your Lordships’ House that this Government remain fully committed to delivering parity of esteem between physical and mental health. We want to support everyone’s mental health and well-being. We are very aware of the impact that the pandemic has had on a number of individuals and communities, particularly the impact on mental health and mental health services.

Amendment 109 removes any potential confusion as to whether references to health within the NHS Act 2006 include mental health. We have made it absolutely clear with our amendment that references to health includes mental health as well as physical health. I know noble Lords will acknowledge that it was our view that the current references to health in the Act would have included mental health, but this amendment is important because it sends a strong signal that health must not just be associated with physical health. Mental and physical health are equally important, and our legislation reflects that fully.

On the transparency and accountability of mental health funding, the Government remain committed to our ambitions in the NHS Long Term Plan to transform mental health services in England. The NHS Long Term Plan committed to increase spending on mental health services in real terms by at least £2.3 billion a year by 2023-24. For each year of the current spending review period, the spend on mental health will increase as a share of the NHS budget. This is in line with the Government’s ongoing commitment to grow investment in mental health services faster than the overall NHS budget. Our amendment seeks to bring added transparency to this commitment and will better enable Parliament, stakeholders and the public to hold the Government to account for meeting this commitment.

The Secretary of State will be required to publish and lay before Parliament, before the start of each financial year, a document setting out the Government’s expectation on mental health spending for the year ahead. This document, a Written Ministerial Statement, will set out whether the Secretary of State expects there to be an increase in the amount and proportion of expenditure incurred by NHS England and integrated care boards, taken together, in relation to mental health, with a supporting explanation. There will also be requirements for NHS England and ICBs to include in their respective annual reports information about such spending to clearly demonstrate performance against expectation.

I am very grateful to the noble Lord, Lord Stevens, as well as the noble Baronesses, Lady Hollins, Lady Merron and Lady Tyler of Enfield, for supporting amendments related to transparency and accountability of mental health funding in Committee, and for their constructive engagement since. I hope I have reassured noble Lords that this Government are committed to delivering parity of esteem between physical and mental health. I hope that our amendments address the issues and concerns previously raised and that the House will pass them today. I beg to move Amendment 2.

[Lord Stevens of Birmingham (CB)]

My Lords, continuing the outbreak of consensus, a large number of mental health stakeholders welcome the fact that the Government have accepted these amendments, which draw heavily on amendments a number of noble Lords brought forward in Committee. I think I said at that point that they would represent a spine-stiffener for the Government in their commitment to ensure that mental health sees a growing share of the growing NHS budget and an accountability booster for the NHS. I think they do that.

However, before the Minister concludes on this item, will he say whether, when setting the mandate for NHS England for the financial year ahead—the mandate that will therefore be laid at some point within the next 30 days—the Government might set the mental health waiting time standards, the very welcome consultation on which concluded last week, in a way that other amendments in this group would look to advance? None of that should detract from the fact that these amendments have wide support outside this place and will make a real difference to mental health in the years to come.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to speak to Amendment 184, tabled in my name. I shall first respond briefly to the government amendment introduced as a result of the discussions in Committee, which set the context for my amendment. I welcome the government amendment requiring the Secretary of State to publish his expectations about increases in the amount and proportion of mental health spending by NHS England and ICBs. I also welcome amendments requiring NHS England and ICBs to include information about spending relating to mental health in their annual reports.

However, it is stating the obvious to point out that their ability to do so is ultimately reliant on the Government—that includes the Treasury—prioritising sustained growth and investment in mental health. This is critical to avoid a widening care deficit in mental health and inequity between physical and mental health care standards. When I say “a care deficit” I want to explain briefly that the healthcare system is still operating in the context of a mental healthcare deficit, where not all those who need help and treatment will seek it or be able to access it and it is estimated that 1.7 million people are waiting to access mental health services.

That is the context of my Amendment 148. It is designed to build on the welcome government amendments and to provide what I call the critical third pillar of reform, which is service access standards. I welcome the measures that the Government have already taken in relation to access standards as part of the NHS long-term plan, but I believe we need to go a bit further and give them more teeth. Waiting time standards can play a critical role in making progress towards our shared ambition of achieving parity of esteem, particularly in service response times. Standards are a driver to secure the resources needed for services to be able to meet demand in an effective and timely way.

Key to the successful implementation of the service access standards will be two things: first, the funding to develop services in a way that means they can meet these standards without leading to unintended consequences, such as transfer of delays from accessing the system to further down the care pathway; and secondly, a clear expectation that these standards must be matched with a sufficient workforce so that the standards are delivering better care and not shifting problems further down the line.

Having these service access and waiting time standards underpinned by legislation would be a very effective lever for improvement by helping to identify where additional resources are needed. I have looked very carefully at the two points in the response published last week to the consultation on NHS access standards. I think the key points were clear: new targets cannot be introduced without additional funding to support them; respondents were generally strongly supportive of new targets in mental health; quality as well as speed of response is important; and expanding the range of the targets to include preventive and early intervention services would be beneficial.

I took heart from the news release that accompanied the publication of that response. I saw that the Minister for Mental Health, Gillian Keegan MP, said:

“Improving access to mental health services is a top priority. These new standards would help patients get support faster—including having a face-to-face assessment within one hour of being referred from A&E. I know there is more to do and that’s why we’re transforming mental health services in England with an extra £2.3 billion a year and will soon be launching a national conversation to inform a new long term Mental Health Strategy later this year”.


That is all very welcome. With such an endorsement from the Minister in the other place, I hope that the Minister will feel able to support my amendment, which provides that critical third pillar of funding, workforce and waiting time standards to ensure that all those aspirations become a reality.

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[Baroness Penn (Con)]

My Lords, in moving Amendment 7 in the name of my noble friend Lord Kamall, I will speak to the other government amendments in his name.

We had a passionate debate on climate change in Committee. There is no doubting the profound relevance of environmental issues to the NHS; indeed, it is already leading the way as a health system in tackling climate change. These amendments will ensure that the NHS can continue in that vital work with the confidence needed to deliver. They place a duty on NHS trusts, foundation trusts, ICBs and NHS England to have regard to the Government’s key ambitions on climate change and the natural environment in everything they do. This could mean preparing thousands of NHS buildings to adapt to climate impacts, protecting and enhancing biodiversity across 25 million square metres of trust estate, or decarbonising the millions of kilowatts of energy used by trusts every year. I must emphasise to noble Lords that this includes decisions about the NHS’s procurement of goods and services. The noble Lord, Lord Stevens, was quite right to underline in Committee that, according to NHS England’s data, the NHS supply chain accounts for some 62% of its emissions footprint. It is clear that the NHS will need to take urgent action to decarbonise procurement.

These clauses will give vital legislative grounding and confidence to the Greener NHS programme and further strengthen the commitments made by the UK through the COP26 Health Programme: namely, to develop climate-resilient, low-carbon health systems. Importantly, Amendment 7 includes a power for NHS England to issue statutory guidance on environmental issues to the system. As discussed in Committee, NHS England already has some targeted net-zero guidance in place for current ICSs, but the system currently lacks that critical statutory guidance that sets the direction for the whole NHS. We expect this guidance, in the first instance, to be issued within 12 months of the Bill receiving Royal Assent.

In developing these amendments, we have had to consider the excellent work NHS England has already undertaken on these issues and gain clarity over what value a legislative solution could add. This has included working across government with BEIS and Defra, while also looking closely at the individual amendments proposed by noble Lords in Committee. I believe the amendments tabled in my noble friend’s name achieve these aims, adding the right value in the right way, to the benefit of our natural environment, the NHS and the people who depend on it. I pay tribute to the work of noble Lords in helping us reach this position. I beg to move.

[Lord Stevens of Birmingham (CB)]

My Lords, I thank the Government for supporting these amendments, which reflect the substance of amendments that my noble friend Lady Hayman, I and others brought forward in Committee. That debate rehearsed the health case for action very clearly, as we have just heard, so I will not detain the House by repeating that.

However, I think the events of the last 24 hours have underlined two other reasons why these amendments are so important. In addition to the health case, there is clearly a financial case and we also now clearly see the security and humanitarian case for action. The financial case was underlined by yesterday’s IPCC report:

“The financial value of health benefits from improved air quality alone is projected to be greater than the costs of meeting the goals of the Paris Agreement.”


In respect of the security and humanitarian consequences, yesterday, the Government welcomed Shell’s decision to sever its relationship with Gazprom, yet Ministers may have seen an important story in the Health Service Journal suggesting that, over the last two years, at least 17 NHS trusts have continued to rely on gas sourced from Gazprom, which has confirmed today that it continues to get its gas supplies through Ukraine. Decarbonising the health sector will take pound notes out of the hands of dictatorial regimes that are engaged in acts of aggression. For all these reasons, the clarity that these government amendments provide, putting on a sound statutory basis the ability to take fundamental action across the NHS, is most welcome.

[Baroness Hayman (CB)]

My Lords, I declare my interest as co-chair of Peers for the Planet and apologise to the House that I did not declare that interest in my enthusiasm to get involved in a Question earlier today. I added my name to Amendments 7, 28, 87 and 94 and obviously welcome the way in which the Government Front Bench has responded to the debate we had and the amendments we proposed in Committee. As my noble friend Lord Stevens said, there is no point in all of us going through the arguments, although I think he added a new dimension in his remarks today; that interplay between health and climate is an important one that we should not neglect.

The Government have done very well in providing a comprehensive suite of amendments that make sure that the considerations of not just the net-zero targets but the targets in the Environment Act and the needs for adaptation, which will be extremely significant in the healthcare field, will be considered at all the correct levels within the new infrastructure that the Bill brings into place. The assurances that the Minister gave on the guidance that will be published and on making sure that procurement, which is such a large spend by the NHS, will also be governed by these considerations are extremely important.

I welcome these amendments across the board. They weave considerations of climate and the environment throughout the ecology of the NHS, and it is an excellent result. The next challenge is to persuade the Government to take the initiative on these issues and to embed these considerations throughout their policies and legislation, which would save a lot of time in the House. But I do not wish to be churlish, and I end by simply reiterating my thanks for the way in which the Government have responded to these amendments.

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly, rather enjoying this reunion from our debates during the passage of the Medicines and Medical Devices Bill of a group of people who taught me a great deal about dealing with legislation. We also looked at an amendment that was very like this. There is a phrase I use often: “Campaigning works”. I should make that “Campaigning by the noble Baroness, Lady Cumberlege, works particularly well”. We are seeing real progress here, although, as many noble Lords have already said, we need to make sure that this is mandatory and not some kind of voluntary extra.

When I was working on the then Medicines and Medical Devices Bill, I spoke to a number of people from the industry. They were very much concerned about the fact that they wanted tight rules that apply to everybody, otherwise those who cut corners and push the envelope have a competitive advantage against people who doing the right thing, being absolutely open and not flinging money around. Many parts of the sector are keen on tight rules.

It is interesting that it has taken us so long to get to this point when the noble Baroness, Lady Cumberlege, presented ways of doing this back in the Medicines and Medical Devices Bill. We have not heard the Government using their favourite phrasing “world-leading” or “world-beating” very often in this area. As the noble Baroness, Lady Brinton, said, we are very much trailing behind other countries in our transparency here.

I will make one final comment. We have a huge problem with public trust—we see this on the street outside your Lordships’ House quite often. Absolute transparency and openness is crucial and, as we heard in Oral Questions earlier, the fact that some companies have been able to profiteer hugely from the pandemic causes more damage to public trust. We need to tackle that with as much of the sunlight of transparency and openness as possible.

[Lord Stevens of Birmingham (CB)]

Briefly, I also support these amendments, including the Government’s comprehensive amendment, but I was spurred into action by the noble Baroness, Lady Bennett. It is worth saying that when it comes to public trust, a survey of 28 countries conducted at the end of last year found that British doctors were more trusted by people in this country than doctors in any of the other 27, so we start from a well-founded position of high trust. However, trust in a profession is of course founded on the basis that people will act in a way that puts the interests of the person they are looking after first, and these amendments help to deliver that.

I want to use the opportunity to try to draw the Minister out slightly on a couple of questions supplementary to those which my noble friend Lord Patel raised. Sunlight may indeed be the best disinfectant. but we have two types of shade going on at the moment. The first is that, through the voluntary register which the ABPI established in 2017, we have just under a third of eligible doctors who are not reporting. Therefore, obviously to the extent that the Government commence these amendments on a mandatory basis, that will deal with that aspect of shade; the 68% will become 100%, which will be most welcome.

The second type of shade relates to the scope of the payments that have to be declared. Here, I think the Government’s amendment is potentially very suitably broad. However, it would be wonderful to hear the Minister confirm that it will cover payments to all NHS bodies, not just to trusts or indeed teaching hospitals; that primary care will be in scope; that it will cover the independent sector as well as the NHS; that it will cover payments made to patients’ organisations; and whether, in time, the Government will consider extending it to payments made to health professionals other than doctors. I conclude by simply reporting that when you ask people in this country which profession they most trust, the answer is actually not doctors; it is nurses.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have my name on this amendment. I will not repeat all the points made by other people so far, but I point out that using the words “shall” or “must” avoids any argument over threshold. The problem with having a word that is not definitive is that there would be arguments over what would and would not have to be declared.

To put a slightly positive note on the whole situation, I say from clinical experience that patients want to go into trials and to contribute to the level of knowledge. Very often, people who are seriously ill will say, “I know that I won’t benefit from it, but I hope that other people will by me going into this trial”. But they want to know that the trial is properly conducted, that everything is open, that nobody is profiteering from their generosity and that they are genuinely contributing to the body of knowledge across the country. When people who I know socially contact me because they have been given a potentially devastating diagnosis and have been referred to somebody, the question is always, “Are they the best in the field?”, which is often followed up with, “Are they doing research in the field?” and “Are they completely up to date?” So often, when people realise that they are deteriorating, they will ask whether there is a trial that they can be entered into.

This goes much further than just being sunlight. This amendment would support future endeavours and innovation in the country and would encourage people to enter into studies.

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

The constitutional character of this legislation is part of a larger story of Executive aggrandisement by a Government who, armed with a large majority in the elected Chamber, have scant respect for other sources of authority or for the conventions of parliamentary government. That the Government’s majority in the House of Commons is decreasingly biddable does not make its Executive arrogance any less objectionable. Clause 40, like Clauses 39 and 64, should not stand part of the Bill.

[Lord Stevens of Birmingham (CB)]

My Lords, it is a privilege to speak to this group of amendments. I recognise that a public service as important as the National Health Service has to be democratically accountable to the Secretary of State and Parliament. I also recognise that the broad provisions of the Bill have wide support outside this House from organisations ranging from the Academy of Medical Royal Colleges to the representative organisations spoken of today, the Patients Association, and many others which, at the inception of these proposals, came forward to advocate for them.

However, unfortunately, when we turn our attention to Clause 40 and Schedule 6 there is no such support for the measures therein. These provisions manage, perhaps uniquely, to combine being unnecessary, undesirable and unworkable—a legislative trifecta that has little to commend it.

The measures are unnecessary for the reasons set out by the noble Baroness, Lady Cumberlege. There is already a well-established mechanism for local consultation, under which democratic local authorities can, if concern arises, bat a proposal up to the Secretary of State for a national decision with the advice of an independent expert panel. There is also established public law in this area, which can be tested through judicial review. Just about nobody, nationally, or locally, thinks that the proposals in this part of the Bill are needed. They are, in effect, a solution in search of a problem.

As well as unnecessary, these proposals are undesirable. They would confuse and obscure accountability for the quality and safety of patient care. The Court of Appeal held in Nettleship v South Tyneside and Sunderland CCGs in 2020 that there is no duty to include in a public consultation options which local commissioners deem to be unviable, unrealistic or unsustainable. Yet Schedule 6 would allow the Secretary of State to impose service changes that local clinicians, local patient groups and, indeed, local authorities deem unsafe or unviable. This clearly cuts across the statutory responsibilities of local boards for the safety and quality of care.

Where the Secretary of State has imposed such a service change on the local NHS, is it the Secretary of State who will then be in receipt of Care Quality Commission findings and scrutiny? Is it the Secretary of the State who will be on the receiving end of medical negligence claims, or potentially criminal proceedings? This set of measures completely obscures the well-established accountability for the quality and safety of local care.

I believe that these measures are unnecessary and undesirable, but they are also unworkable. As worded, the definition of a reconfiguration is vague and overly broad. It could capture just about any change in service provision. On page 197, the Bill refers to changes that have

“an impact on … the manner in which a service is delivered to individuals.”

That could cover just about anything, and if hospitals are proposing such a change, they have a duty to notify the Secretary of State.

By contrast, the long-standing Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, with which your Lordships will be intimately familiar, set a higher hurdle, which is that the consultation requirement applies to

“a substantial development or variation”

in services. In its place, we would instead have, through the Bill, a set of processes that would lead to second-guessing, centralising and politicising, a furring-up of the NHS’s decision-making arteries, which, had these measures been in place during the pandemic, would have handicapped the response, at precisely the time when the NHS needs to be agile and adaptable, and will do nothing to advance the changes needed across front-line care delivery.

For all these reasons, I believe that if the Bill is passed in its current form, Clause 40 and Schedule 6 will become a running sore, not only for patients and local service but for Ministers. There are two possible ways forward. There is the proposal that Clause 40 do not stand part of the Bill, as suggested by the noble Lord, Lord Lansley, which would surgically excise the problem, or there is the group of amendments tabled by the noble Baroness, Lady Cumberlege, which would apply sutures, analgesics and disinfectant. Either approach could work, but one or the other is needed.

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, I intervene briefly to say that I support the amendments in the name of the noble Lord, Lord Crisp. We are grateful to him for tabling them, and indeed for presenting them so very well.

I also rather enjoyed the opportunity from the noble Baroness, Lady Brinton, to think back to 2011, as I think it was, when I went to visit Watford General—I probably announced a new hospital then, but I cannot quite remember. She said the local connections were all funded by the local authority, and I seem to remember paying for the roundabout outside Watford General Hospital, because it was so instrumental to the process of the redevelopment. Anyway, that is by the way.

What I am really looking for from my noble friend on the Front Bench is to understand the mischief to which the Government’s proposals in Clause 54 are the remedy. Certainly, when I was Secretary of State—which is a long way back; we were not in deficit but we did not have a lot of money—the issue every year with the capital expenditure of FTs was that they always told us that they were going to spend a lot and then did not spend anything like as much. To account for that in the public accounting system, we had to make some heroic assumptions about how much less they would spend than they said they were going to spend.

It may be that the department is saying that the way we get round all this is to set very tight limits in the first place—to say where we think they are going and what we think they can spend. This, frankly, is a recipe for disaster for many trusts, because the reason they underspend is that there are so many difficulties in planning and executing capital expenditure projects.

I am trying to find out the purpose behind the Government taking such strong powers in relation to capital expenditure. I rather hope that they might see merit in the amendment from the noble Lord, Lord Crisp.

[Lord Stevens of Birmingham (CB)]

My Lords, I will be brief. In response to the noble Lord, Lord Lansley, in fairness, there is logic to the broad direction being set out by the Government here. As the financial health of foundation trusts improves, their ability to seek self-generated capital investment will, in all likelihood, be much higher, looking over the next four or five years, than it has been during the more constrained financial circumstances of prior years. So it is not unreasonable to have a set of measures in the Bill that would enable Ministers to ensure that the NHS sticks with the capital expenditure, voted for by Parliament, for the NHS in any given year; nor is it unreasonable on the part of the Government to seek to ensure that there is a mechanism by which that capital can be allocated fairly across the country according to need, rather than purely according to an individual institution’s ability to finance it.

All that being said, rather than this being a fundamental matter of principle in the way that our last two discussions have been, these amendments have a lot to commend them. They are entirely pragmatic and put the right safeguards around what should be only an emergency power. As the noble Lord, Lord Crisp, laid out, that was the basis on which a consensus was achieved back in 2019. It provides good incentives at trust level for sound financial management and, frankly, it provides a bit of a pressure release or a safety valve against an overly artificially constrained capital settlement in certain years or parts of the country.

I very much hope that, in the constructive spirit with which I think these amendments are being advanced, this is something that the Government might consider favourably.

[Baroness Neuberger (CB)]

My Lords, I declare an interest as chair of University College London foundation trust. I want to echo everything that has been said. I do not really understand why what was a carefully negotiated agreement seems to have been reneged on. I think it would be great to have some kind of explanation from the Minister as to why that should be the case.

I rather agree with the noble Lord, Lord Lansley, that some of those freedoms for foundation trusts are essential, and that fettering foundation trusts too much will not do much good. I really want to agree with everybody and not waste any more time, but please can we have an explanation?

--- Later in debate ---

[Lord Stevens of Birmingham (CB)]

I shall briefly make two points. First, having looked at this quite carefully, it is good to see that there is nothing in the proposals for the payment scheme that would intrinsically give rise to the concerns just articulated. Secondly, in response to the noble Lord, Lord Lansley, there are very good answers that can be provided, even if not now, to the questions that he poses. One starting point would be to look at the judgment that the Court of Appeal handed down at the end of 2018, which essentially confirmed that what he said is correct. It is just about possible to torture the 2012 tariff system to make it fit for purpose, but an incredibly elaborate set of workarounds is required to do so, with an enormous amount of bureaucracy and that covers only about 60% of the fund flows in the National Health Service. Hence the desire for something more flexible, which this set of clauses enables the NHS to take forward.

[Baroness Thornton (Lab)]

My Lords, it is very gratifying that so many noble Lords have decided to come in to take part in a debate about NHS finances tonight; I am very grateful for that.

I shall speak briefly to Amendments 199, 200 and 202A in my name. Amendment 199 provides that the Secretary of State must set out rules for determining the price to be paid for NHS services. Amendment 200 ensures that the key policy documents covering NHS services are approved by the Secretary of State. Amendment 202A provides that the rules must be subject to parliamentary scrutiny.

I am very pleased that the complexity of NHS funding was not mentioned in great detail tonight, but there has been speculation about how funding may work and how the various financial responsibilities in and across ICSs may develop. What we think we know is that complex funding approaches, such as payment by results, will become less important. In Clause 70 and the associated Schedule 10, however, the Bill is wonderfully uninformative. It just says, “Out with the old”—the national tariff—“and in with the new”, the NHS payment scheme. I am again with the noble Lord, Lord Lansley, in saying that these questions need to be answered, because they will affect the regulations, procurement rules and so on.

The payment scheme—actually, I am not going to talk about the history of the NHS payment scheme at this time of night, but, unless the Minister can justify it and answer the questions posed by the noble Lord, Lord Lansley, this part of the Bill should be quietly dropped. We seem to have something that works, so why replace it with something that we do not know very much about?

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Stevens of Birmingham (CB)]

My Lords, in theory these amendments should not be needed, but in practice they clearly are, as the noble Baroness, Lady Cumberlege, has just so forensically set out. It is a statement of the blindingly obvious, particularly coming out of the pandemic, to say that we need better workforce planning at a time when staff are exhausted from having dealt with Covid for several years and the NHS is confronting the need to deal with the backlog of care.

But, frankly, it would be a statement of the blindingly obvious at any time, because the lead times for decisions on training for health professionals are such that they go beyond any individual term of Parliament or government manifesto. Universities need a strong signal as to what future demand will look like. The interconnectedness between health and social care means that we are actually thinking about a workforce of 3 million plus, and the materiality of getting it wrong over a five or 10-year period is bigger in this sector of the workforce than any other part of the economy. As we heard earlier—I think from the noble Baroness, Lady Walmsley—estimates from the Health Foundation, for example, suggest that on the current trajectory the gap could be more than a third of a million staff in the health service by 2030-31; and in respect of the social care workforce, Skills for Care talks about perhaps 490,000 additional posts being required over the period to 2035. Those figures may be right or they may be wrong, but there is not a forensic forum in which those debates are scrutinised and choices made. This is not just about more; this is about different.

It is not all doom and gloom. Over the last two years, during the most intense challenge the health service has faced since its creation, nearly 160,000 people have signed up to join the health and care staff and professions. We have seen applications for undergraduate nursing up by more than a quarter and a huge increase in applications for and interest in studying medicine, yet we have an acceptance rate of only about 52% for undergraduate nursing, according to figures from UCAS, and we are turning away bright and brilliant young people with fantastic A-level grades who would like to study medicine. That is a paradox which stems from the fact that, unlike the day-to-day running costs of the health service, those items which have the longest planning horizon—workforce and capital investment—are the areas with the shortest financial horizon.

Of course, it may well be argued by the Government that we are about to turn a corner and that although there has been a degree of short-termism hitherto, things are about to improve. But I am afraid that I think we are entitled to treat that proposition with a degree of scepticism, because although what has been said up until now may be blindingly obvious, in fact what we have been confronted with is wilful blindness. Health Education England, which should be looking at 10 years, does not yet have its running budget for 10 weeks’ time. If we look back over the history of recent years, we can see a series of missed opportunities. The Minister may assure us that we will be presented with this 15-year further vision from Health Education England this coming summer, which will, of course, be welcome. But if we remind ourselves of the history since 2014 or 2015, as I say, we can perhaps be a tad sceptical. Obviously, I draw attention to my prior NHS interest, and everything I am about to say only draws on the public record, just to clarify that point.

It was back in 2014 that the NHS Five Year Forward View talked about the service changes that were required, but it was not permitted to talk about future capital investment, social care or workforce training, since they were being kept separate. So, in summer 2016, the Department of Health and Social Care was going to produce this detailed quantified workforce plan instead. Twenty-sixteen came and went and instead, in December 2017—three years after the Five Year Forward View—Health Education England launched a consultation document which said: “Your responses will be used to inform the full strategy to be published in July 2018 to coincide with the NHS’s 70th birthday.”

Twenty-eighteen came and went, and answers saw we none. Then in June 2019, we got another, in this case interim people plan, with lots of excellent content but unfortunately no actual numbers and no new pound notes. Despite the fact that it promised:

“We will aim to publish a full, costed five-year Plan later this year”


quantifying

“the full range of additional staff needed”.

But again, “later this year” came and went, and no such documents saw the light of day, until in July 2020 we had a one-year people plan which, at that point, was covering just the next eight months. Fear not, though, because it said:

“Further action for 2021/22 and beyond is expected to be set out later in the year”—


in 2020—

“once funding arrangements have been confirmed by the Government.”

That did not happen.

Instead, in July 2021, last summer, the Department of Health and Social Care again commissioned Health Education England to start from scratch. Last November, HEE published a short PowerPoint—commissioned from a firm of accountants—with the discouraging disclaimer on the first page that:

“We do not warrant or represent that the report is appropriate for your purposes”


and “no warranty is made as to the accuracy of any data”. As it happens, that does not really matter because there were no real data in the document anyway, which came to startling conclusions such as “workforce demand will be affected by demography and disease”.

I think we are entitled to say that this litany tells us that what, to everybody else, is blindingly obvious has instead been confronted with wilful blindness. What explains this? Is it a lack of interest on the part of the committed people to getting this right? No, it is not—some excellent work has been done. Your Lordships may take a clue from a statement that Jeremy Hunt, the former Secretary of State and now Chair of the Commons Health and Social Care Committee, made last Tuesday, when he said that “the Health and Social Care Committee has recommended on numerous occasions that we should have independently verified forecasts of the number of doctors, nurses and other staff that we should be training for the future. But that has been blocked consistently by the Treasury”.

Without in any way commenting on or editorialising that, the Minister may want to take the opportunity to confirm whether that is indeed the case. But just on the off chance that he does not refute the statement Jeremy Hunt has made, then that, I think, tells us that unfortunately, these amendments are necessary and will strengthen the hand of Health and Social Care Ministers in the future. I cannot help thinking that, in their heart of hearts, past Health Ministers know that they would have benefited enormously, were these amendments on the statute book. I am afraid that, if the Government choose not to support these amendments—as I hope will not be the case—that will be proof positive that they are very necessary. Therefore, I hope they will recognise that ignorance is not bliss and if we do find ourselves in that situation, this House will take the opportunity at Report to give the Commons another go.

[Lord Patel (CB)]

My Lords, listening to my noble friend Lord Stevens of Birmingham, I am beginning to feel the pain of his frustration at being chief executive of the NHS and not being listened to in order to fix such an important issue as workforce planning. Also, there is a bit of déjà vu that he may remember, along with some of my colleagues who were took part in the Lords committee inquiry into the long-term sustainability of the NHS and adult social care.

Let me argue the same issues that he just presented. The report on the long-term sustainability of the NHS and adult social care, published in April 2017, looked at data on demographic and disease burden projections of the population over the next 15 to 20 years. It identified a lack of long-term workforce planning as a key threat to the long-term sustainability of the NHS. The Committee heard from the then Secretary of State, the right honourable Jeremy Hunt, who had this to say:

“workforce planning is an area where we have failed… Brexit will be a catalyst to get this right… That is an area where we need to be much more strategic”.

That was nearly five years ago and yet, there is no strategic healthcare workforce plan from the Department of Health and Social Care, as we just heard.

The solution is not going to come from an outside body, no matter how influential. It has to come from the centre, from the leadership of the NHS and social care, and not one in the isolation from the other. What we have heard from the centre and NHS organisations is many publications identifying the problem, but not the solution with a long-term plan. We are told that this may be coming in April 2022—or perhaps later.

On the other hand, there are several detailed authoritative documents on the NHS workforce from think tanks, NHS providers, the BMA, the nursing councils and many others, who have been grappling with this issue and trying to find a solution for a long time and advising the Government on how to do this. There is no lack of authoritative reports based on data related to long-term projections of population, its demography, health needs and the workforce needed to deliver them. For example, an extensive, well-researched report by Dr Latifa Patel, a respiratory paediatrician, and Dr Wrigley, a GP of medical staff in England, projected to 2045—based on population and disease data—the number of doctors needed in each speciality and possible models of plans to deliver on this by 2032. A document extending to 60 pages is not only highly informative and well-researched but identifies a way forward.

Since the Health and Social Care Act 2012, there has been inadequate workforce planning, fuelled by inadequate regional and national workforce data and a lack of accountability for it at government level. We are not training enough doctors, despite record numbers of people applying. The latest figures, as the noble Lord, Lord Stevens of Birmingham, mentioned, show a 21% increase on previous years in applications to medical schools of highly talented young people. This means the NHS is ill-equipped to tackle the backlog of care, is not prepared for future public health crises and cannot meet patient needs, either now or in the future.

If we compare England with EU nations within the OECD, which have an average of 3.7 doctors per 1,000 people, the medical workforce in England is currently short of around 49,000 full-time equivalent doctors. Without significant intervention regarding the current rate of growth, the estimate is that the future medical workforce shortage will be between 26,889 and 83,779 full-time doctors by 2043. Such precise numbers show how well-researched this document is. Each full-time doctor in NHS England is doing an average of 1.3 full-time equivalent roles. I have three of them in the NHS and I can see what they do—although I tell them they are lazy compared to me.

Health and Care Bill

Lord Stevens of Birmingham Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[Lord Warner (CB)]

My Lords, I support all the amendments in this group, particularly Amendment 74, to which I have added my name. I was one of the successors to the noble Lord, Lord Hunt, as a Health Minister responsible for NICE. I pay tribute to his sterling work in establishing it. However, I encountered the same difficulties as he encountered with the NHS speedily taking up NICE recommendations and had to wrestle with this same problem.

I had a long and slightly exhausting chat with the chief executive and the chairman of NICE about what they could do to help the NHS implement their recommendations. We arrived at a concordat, and the NICE people went away and developed a rather helpful system for enabling the NHS to prepare for a NICE recommendation and to implement it. As far as I am aware, looking at the NICE website, it still has that system in place, so it is not as though NICE is simply putting its recommendations in the public arena and leaving the NHS to get on with it; it has done its level best to produce a way of helping the NHS to prepare to implement those recommendations.

What I do not understand is why we have not moved faster over time to recognise that more action needs to be taken with the laggards within the NHS to make this happen. I think that one method is captured in the amendment from the noble Baroness, Lady Finlay.

If NICE is so important and it is so important that the NHS implements its recommendations, that ought to figure in the regulator’s assessment of the performance of those NHS bodies. I can see no reason it should not, and I wonder whether the Minister could tell us a little more than I know—and more, I suspect, than the Committee knows—about the current position on the failures of NHS bodies to pursue NICE recommendations. Do the Government accept that the regulator of these bodies should take account of their ability and willingness to implement NICE recommendations? Perhaps the Minister could clarify some of those issues. If he cannot clarify them today, perhaps he could write to us.

[Lord Stevens of Birmingham (CB)]

My Lords, I had not intended to speak but, animated by the contributions of colleagues who, like me, were there at the conception of NICE, I thought I would offer a couple of contextual remarks to this group of amendments, supporting their underlying motivation, which is to ensure the spread of best practice as fast as possible across the National Health Service.

I was also motivated by the noble Baroness, Lady Watkins, who spoke earlier about the Crimean War, to recall that this is not a new problem. The world’s first controlled clinical trial took place in 1754 on board HMS “Salisbury”, when the Royal Navy was trying out the use of citric fruit—in lemons and limes—to combat scurvy. That experiment showed that scurvy could be tackled with lime juice, and it took the Navy 41 years to mandate its introduction more widely—fortunately, just in time for the Napoleonic Wars, which is why some argue that, contrary to Winston Churchill’s dictum that it was “rum, sodomy and the lash” that contributed to the Navy’s success, it was in fact lemon and lime juice.

The point is that this is not a new problem. We have been grappling with this but, despite that, we have seen the remarkably quick adoption of new clinical practices over the last two years during Covid, as new randomised control trials, following in the wake of the 1754 example, have shown the benefits of treatments such as dexamethasone. My point of context is that we need to be clear, if this group of amendments is to advance, about the terminology incorporated in the amendments. These will inevitably be, if they find their way into the Act, litigated against in the High Court and Court of Appeal.

In the drafting, there is reference to the marketing authorisations given by NICE, although I think it is the MHRA that provides marketing authorisations. There is a clear distinction to be made between the technology appraisals NICE undertakes and the development of guidelines. Although a number of noble Lords have referenced the importance of the guidelines, it is worth saying that a quick look at the NICE website reveals there are 1,591 guidelines, pieces of advice, quality standards and all the rest of it—most of which have not been subject to the full cost-effectiveness and affordability assessments that the gold standard technology appraisal performs. Before there could be a legal mandate for those guidelines, there would be some very significant methodological considerations for NICE. Without those, the risk is that mandating those guidelines would take resources away from other parts of needed care, such as mental health and community nursing—Cinderella services that have not been subject to those same processes.

We should also recognise that, vital though NICE is, the bigger contribution to the diffusion of best practice will probably be made in other ways. Certainly, reporting could help. Although one amendment makes the perfectly reasonable proposition of an annual report from integrated care boards on their adoption and uptake, that still feels a slightly 20th-century solution. If you go to Oxford University’s superb www.openprescribing.net, you can see your own GP practice and your own CCG’s prescribing patterns against the national norm, including, as the noble Baroness, Lady Finlay, said, for the DOACs, the anticoagulating medicines. Those technologies are already available, and the role that clinical pharmacists are now playing, including the thousands of new clinical pharmacists hired to work alongside GPs to improve their prescribing habits, is also likely to have an important influence.

Finally, there is this question of whether, just occasionally, conflicts of interest might arise on the part of prescribers or clinicians over the medicines or devices being used. The noble Baroness, Lady Cumberlege, has drawn attention to this in her important work, and that is perhaps something the House might return to at a later date.

[Lord Lansley (Con)]

My Lords, I want to intervene at not too much length. I welcome these amendments and am grateful to my noble friend Lady McIntosh of Pickering for bringing hers forward. It enables us to touch on a subject which those of us involved in the Medicines and Medical Devices Act will recognise. This is a short version of the debates we had then, but it gives us an opportunity to update a little on those and me an opportunity to ask my noble friend on the Front Bench a few questions arising from that. We are all grateful to the noble Lord, Lord Stevens of Birmingham, who clarified some of the terminology, which saves us going wrong. But I want to do a bit of clarification about some of the amendments as well.

The timing of this is terrific. We are discussing this today and NICE published the outcome of its methods review yesterday, so we can respond immediately. My starting point is to applaud NICE for having taken up and accepted the proposition that there should be a modifier in relation to its appraisals and assessments on severe diseases. We can argue about the precise detail, but it has taken that up.

Secondly, randomised control trials are terribly important but they are not the whole story. NICE has rightly accepted it should look at more real-world evidence and that, too, we can welcome, but it leads me directly to a question. Part of that real-world evidence, and one of the reasons it is not going directly to NICE, though NICE can use it, is the innovative medicines fund. NHS England published its proposal for the innovative medicines fund in July and said that it would consult on it, but it has not done so yet. My first question to my noble friend is therefore: when will NICE and NHS England consult on the innovative medicines fund?

The third point on NICE’s methods review is that it will take account of the wider impacts of the treatments it appraises. That is terribly important, especially given the present opportunities for personalised medicines and gene-based treatments, when one looks at how these can impact substantially on people’s lives from a relatively early stage and the contributions they can make to society and the economy. That is all good news.

The press release from NICE, however, did not draw specific attention to where it had proceeded in a way that its stakeholders did not support. It has maintained a reference-case discount rate of 3.5%, although NICE itself admitted that there was evidence that a lower discount rate would give significant benefits. It said that there would be wider implications for policy and fiscal complexities and interdependencies if it were to do this, which I think means “The Treasury said no”. We need to think very hard about whether a discount rate as high as 3.5% is appropriate for NICE’s application of its appraisals. I ask my noble friend, though he will not be able to give me the answer to this: who is telling NICE that it cannot adopt what it regards as the evidence-based discount rate for the appraisals it undertakes?