Health and Care Bill

Lord Warner Excerpts

2nd reading
Tuesday 7th December 2021 Lords Chamber

[Lord Warner (CB)]

My Lords, fancy having to follow that. I first congratulate the noble Lord, Lord Stevens, on his excellent maiden speech. I have known him, on and off, for several decades, and am pleased to see that, after seven years of managing the NHS, he retains his sense of humour.

I declare my interest as a member of the Dilnot commission and I certainly welcome the decision finally to implement our proposals, 10 years after we reported. I note that even now the Treasury cannot resist using a meaner means test than we proposed. That approach does not do much for the Government’s levelling-up agenda and I wonder whether Michael Gove’s department was consulted before the decision was made.

We must reverse this mean-spirited approach. The Dilnot commission’s proposed individual cap was served up to deal with a problem that we were asked to solve: the unpredictable high care costs that fell on individuals randomly and unfairly. We were not asked to deal with the underfunding of the adult social care system that has built up under successive Governments. However, back in 2011 we did say that there was an underfunding of £1 billion a year on annual expenditure of about £15 billion. That £1 billion a year has now risen to at least £8 billion, with no credible plan to rectify matters. Publicly funded adult social care faces an existential crisis, which this Government have simply failed to address and do not address in this Bill.

I will now identify a few issues that I shall be raising during the Bill’s passage. The first is the issue of timing, whatever the contents of this Bill. I have been involved with two NHS reorganisations. As a civil servant, I was involved with Keith Joseph’s disastrous and expensive 1974 reorganisation. In 2005, as the Minister for NHS reform, I was involved in tidying up someone else’s reforms. Like others, I am also a veteran of the passage of the 2012 Act, which this Bill is correcting. Perhaps I can give a little advice to the Government from this experience.

NHS reorganisations are always more expensive than their architects think. They take longer to complete than they think, and their implementation disrupts service delivery. The 2012 Act changes were estimated to have cost about £3 billion and to have disrupted NHS operations for about three years. A large number of deficiencies in this Bill have been identified this afternoon and evening, and these cannot easily be put right in time for the Bill to be implemented from next spring. I shall therefore raise the issue of a sunrise clause in the Bill, given the variable pandemic that the NHS is handling and the backlog of treatments it faces. There is a backlog of 5.8 million patients if we believe government estimates, or a queue of 13.6 million patients if we believe the recent estimate by the LCP health consultancy. Whichever one we plump for, this is hardly the right time to get a tired NHS staff distracted and anxious about another NHS reorganisation.

I turn very briefly to other issues. Clauses 18 and 68 deal with patient choice, which I welcome, but I hope to table amendments that would provide a mechanism to enable patients to exercise choice from among public or private providers of NHS services at NHS prices when they face long waits for treatment.

I do not have time to go into many other details, other than to raise again my intention to resurrect two recommendations, 33 and 34, from this House’s 2017 Select Committee report on the long-term sustainability of the NHS and adult social care. The recommendations proposed an independent office for health and care sustainability. Such a body would have no operational responsibility and it would report to Parliament regularly on issues around health and social care funding and the workforce. The recommendations were not taken up by Jeremy Hunt when he was Health Secretary. Since then, however, he seems to have had a change of heart and thinks that something along these lines is needed to keep Governments honest, as I think he said. Blessed is the sinner who repents, and we need to return to this issue in Committee on the Bill.

Health and Care Bill

Lord Warner Excerpts

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

[Lord Crisp (CB)]

My Lords, it is a great pleasure to follow the right reverend Prelate, a former esteemed colleague, and I had better follow her and the noble Lord, Lord Stevens, in declaring an interest as a former chief executive of the NHS in England—as opposed to NHS England—as Permanent Secretary at the Department of Health and as an honorary fellow of the Royal College of Psychiatrists. I support most of the amendments in this group and shall speak particularly about Amendments 5, 12 and 136, about expenditure, and Amendments 91, 92 and 99, about parity of esteem and ICSs.

The most telling comment, I think, from my noble friend Lady Hollins was when she said that mental health is too often forgotten. It is a really sad point. I am struck, when I look through the amendments we are considering today, how the legislation is trying to catch up with where we have got to as a society and how we think about health. It is obvious with mental health. I thought the great speech by the noble Lord, Lord Howarth, emphasising the role of the nonclinical—the people outside the health system and their role in health—and of salutogenesis, the creation of health, not just pathogenesis, the dealing with disease, was really impressive. The other area where this is very obvious is where we are going to come to in a bit, talking about inequalities in a later group.

This is very much part of the new agenda, but it is interesting that we still have the overhang of what I think of as the 20th-century model of healthcare, which is about the acute sector, not the primary sector; it is an NHS focus; it is about doing things to people, rather than with people; and it is about illness. This Bill is, in a way, the first health Bill of the 21st century and it is really important that it sends out some very clear messages and that so many of these amendments can be picked up to make sure those messages are sent out very clearly.

I will pick up the detail very briefly. Amendments 5, 12 and 136 from my noble friend Lord Stevens of Birmingham on measuring and increasing expenditure on mental health—or at least showing the Government’s hand and revealing what they are expecting—and, later, the monitoring of it are fundamental. However, let me put in a caveat: they are pretty blunt. They are imperfect, because they are about inputs rather than outcomes and outputs, thinking of some of the things we talked about earlier. They can also be gamed.

Also, as the noble Baroness, Lady Jones of Moulsecoomb, said, physical and mental health are not distinct; actually, most people in civil society treat mental and physical health at the same time, so there will be some arbitrary distinctions. I remind noble Lords, as we all know very well, that there is a major problem for many patients with mental health problems in trying to access help with their physical health. As Professor Sir Graham Thornicroft has said, mental health diseases are killer diseases, because people die earlier—sometimes because of that impact on physical health.

These are imperfect measures. However, I support them as a blunt instrument for offering steering and pushing the system the right way. They are a real measure that will help bring about change and they should be supported at the macro level.

Amendments 91, 92 and 99 are about achieving parity of esteem within the integrated care systems, and it is right that they are broader based, because people have to make choices at a local level about what they are doing. It is really important that the planners on those boards take full account of mental health and achieve parity of esteem across the whole spectrum, from levels of investment right the way through to ensuring that people with mental health problems can access physical healthcare when they need it. As the noble Baroness, Lady Hollins, reminded us, in 1948 the first meeting of the World Health Assembly defined health as being about

“physical, mental and social well-being”.

It is time we got back to that.

I applaud these amendments and very much hope that the Minister will indicate the Government’s support for a much bigger emphasis on mental health in supporting these and other amendments.

[Lord Warner (CB)]

My Lords, I support these amendments, particularly Amendments 5, 12 and 136, so powerfully spoken to by the noble Lord, Lord Stevens of Birmingham.

As a kind of self-appointed historian to this Committee, I will take us back to 2005-06. There was a massive public consultation, leading to the White Paper Our Health, Our Care, Our Say. A thousand people of diverse socioeconomic and age backgrounds gathered in Birmingham to vote on what the public thought were the top priorities for the NHS. Much to the shock of the six members of the ministerial team—including me—who attended that event, and the top management of what was then the Department of Health, led by the noble Lord, Lord Crisp, the public were several decades ahead of the political, managerial and clinical decision-makers of our revered NHS.

It has taken us a really long time to catch up. We have moved since then through a period in which, with great rhetoric, we have inserted into legislation a desire for parity of esteem between physical and mental health. However, no one of any political party has had the temerity to do what the noble Lord, Lord Stevens, has done in suggesting we should actually put our money where our mouth is. It simply has not been done.

The NHS, in my experience, is quite strong on doing things if you give it money. If we do not start putting into the allocations some requirements to at least level up, as the noble Lord, Lord Stevens, says, we will make no progress whatever with our rhetoric. I strongly support these amendments and hope the Government will listen very carefully to this House. I, for one, will be quite happy to march into any Lobby in support of amendments which give some financial equality of recognition to the needs of those with mental health problems.

While I am on my feet, I mention a group which is neglected even within the mental health set-up—those with autism. It is one of the great disgraces of this country that we have such poor arrangements for diagnosing young people, particularly girls, with autism. We need to do a better job of putting our money where our mouth is on that subject.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 11th January 2022 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I support Amendment 60 in the name of my noble friend Lady Thornton on the need for ICBs to share innovations and good practice widely, in the spirit of collaboration. The NHS has for many years been rather poor at sharing and adopting innovations compared with, for example, local government, where several effective networks exist for the sharing of good practice and there is a real culture of such sharing.

The Science and Technology Committee, under the chairmanship of the noble Lord, Lord Patel, reporting on its inquiry into the life sciences, found that the NHS ought to be a unique opportunity for the spread of innovation across the system—that is what the “N” in NHS is all about—but that it was a long way from realising that aspiration. The evidence from NHS England’s director of innovation was lacklustre in the extreme, and progress from NHS Improvement was slow. The Select Committee report said that the current structure of the NHS “stifles innovation”.

When I was chief executive of Diabetes UK, I discovered how even getting innovations and improvements that would save the NHS substantial money was like pulling teeth. In frustration, I wrote to the then Chancellor—slightly tongue in cheek—to tell him how to save a billion quid by implementing the best practice patient pathways for diabetes patients. I am still waiting for a response.

In an effort to see how other countries’ health systems handled improvement and innovation in diabetes care, I went to Canada and the USA, and came to the conclusion that collaborative health systems such as Canada’s were better at sharing and then adopting improvement and innovation than competitive ones like the United States. My noble friend Lady Thornton’s amendment is highly necessary and sets the tone for a collaborative rather than a competitive approach, which should be at the heart of the NHS for the future.

[Lord Warner (CB)]

My Lords, I will say a few words about specialised services on the basis of a committee that I chaired about five or six years ago at those services’ request. It followed the demise of strategic health authorities under the 2012 Act. The one thing that this committee demonstrated very clearly was that population was significant and that, if you ignored population, you were not likely to get good outcomes. There was no magic figure on population but it was of a size common in the territories of most of the SHAs. That is not to say that the SHAs did a crackingly good job, but they were the organisations with the size of population necessary for good commissioning of many of these specialised services.

The trouble was—and it is the same trouble mentioned by the noble Lords, Lord Lansley and Lord Sharkey—that if you have a regional system, by definition you give it some degree of control over its priorities. It follows almost as night follows day that different regions will take different views about the significance of specialised services in their particular region. We have struggled with this issue for many decades and not found it easy to come up with a solution.

You can go the whole hog and put it on NHS England, but that poses the problems that the noble Lord, Lord Sharkey, honestly owned up to: many of the people with these conditions are getting a range of services outside that specialised commissioning service. I came to the conclusion that you have to have something that is of the size of, or of a similar size to, the former SHAs, but you do need a role at the centre trying to ensure a level of consistency of approach in those larger areas. I think we are still fumbling our way towards the right mix of that and I cannot see that we will be able to put in this legislation a definitive answer to that particular set of conundrums.

While I am on my feet, I shall speak to Amendment 215, to which I have added my name. To some extent, I reinforce the seriousness of the situation that Ministers and the public face with the enormous backlog of patients awaiting treatment that the noble Baroness, Lady Wheeler, drew attention to. I refer the Committee’s attention to the excellent report by the National Audit Office published about six weeks ago. This report made it absolutely clear that in September 2021 there were nearly 6 million people on the waiting list for elective care and that one-third of these people had been waiting longer than the waiting standard of 18 weeks. Some 300,000 rather unlucky people had been waiting in pain and discomfort for more than a year. The NAO made it clear that even before Covid-19, many parts of the NHS were not meeting the waiting time standard and that about one in five cancer patients was not meeting the waiting standard for urgent referrals by GPs—that is a pre-Covid situation that has simply got worse as time has progressed.

I recognise that the Government have promised to provide an additional £8 billion between 2022-23 and 2024-25, some of which they expect the NHS to use to increase elective capacity by 2024-25 by 10% more than its pre-pandemic plans. I have to say, as a former Minister responsible for reducing waiting times and implementing the original 18-week maximum wait, that Ministers need to realise that announcing the extra money is the easy bit; putting in place a system for ensuring that the NHS leviathan actually uses the money for its intended purpose and can demonstrate delivery of the promised outcome is an entirely different matter. It took the Blair-Brown Governments from late 2004 to early 2008 to deliver the 18-week maximum wait and the cancer targets, using a lot of different tools in the ministerial toolbox.

There is not one simple solution to delivering these changes. The regimes that were implemented by those two Governments used a lot of extra money; a relentless, transparent measurement; and a great deal of clinical and political management pressure. They used expanded patient choice, so that patients could drive change, and I have to say to the noble Lord, Lord Davies of Brixton, that they also used the private healthcare system to increase diagnostic and surgical capacity by about 10% to 12%, but they did so at NHS prices. So, there is not a single solution; there are a lot of solutions that have to be applied and measured.

A critical factor in this is keeping everybody honest through transparent information about how progress is being made. If that is lacking, you are probably doomed to fail. The strength of Amendment 215 is that it puts in place a system for regular reporting of progress being made—or not being made, in some cases. It is important, as my own experience has shown, to know which parts of the country are doing well and which are not doing so well, so you can actually ensure that some action is taken on the slowest ships, as they say, in the convoy.

It should come as no surprise from what I have said that I strongly support Amendments 6 and 19 and do not support Amendment 21. I recognise, as we were discussing earlier this afternoon—time flies; I mean this evening—the whole issue of health outcomes and outcomes frameworks. Those are very important. However, at the end of the day, you cannot secure good outcomes without speedy access to clinical services. You do not get them. Waiting times of the length we currently have can lead only to poor outcomes. We must put in place systems that measure the progress being made in driving these waiting lists down. Given the seriousness of the situation, we need something about this in primary legislation to ensure that people across the country and the NHS are moving in the same direction in driving waiting times down.

[Lord Bethell (Con)]

My Lords, I want to say a brief word in support of the amendment on innovation in the name of the noble Baroness, Lady Thornton.

Having just been the Minister for Innovation, I can tell noble Lords that they could fill their entire diary travelling the country and seeing fantastic innovation in the NHS up and down the country. Noble Lords could fill their Zoom calls speaking to countries around the world that look to the NHS for some of the best innovation and partner with it on innovative programmes. However, that innovation is often extremely isolated and rarely spread evenly across the whole country. In fact, I often thought that my job title should have been not Minister for Innovation but Minister for Adoption because my role should have been to take the best that the NHS does and spread it across the country more evenly. That is the objective of the Government’s health policy at the moment: to see a much more even spread of best practice right across the country.

Although we cannot legislate for culture, we can give signals to the system about what we think is important. I therefore think that the noble Baroness, Lady Thornton, is on to something in suggesting this amendment. It should be given careful thought by the Minister.

Health and Care Bill

Lord Warner Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, it is clear from the number of noble Lords wishing to speak in this debate that this group of amendments is extremely important. I want to speak particularly in favour of the amendments from the noble Baroness, Lady Hollins, about integration, which she put before us so eloquently.

In the 40-odd years that I have been working on these issues, I have never heard anyone say anything other than that collaboration would be a lot better than the current situation and that collaboration between health and social care is absolutely vital. Everyone always says that, and in recent years we even have had the hope that, when the Department of Health changed its name to the Department of Health and Social Care, we would begin to see more movements towards integration. Sadly, little progress has been made.

If one asks any patient about integration between health and social care, they think that it already exists. Most patients have absolutely no idea about different jurisdictions, how one sorts out a medical bath from a social bath or how different pots of funding ensure different points of view. That is, of course, until the patients start to find their way around the system in the way in which the noble Baroness, Lady Barker, brought so amusingly to mind. The lack of incentives to integration in the Bill are disappointing. I have not seen anything in it that will stop 15-minute visits by overworked and underpaid care staff or any ideas about integrating services and having much better integrated budgets—still less about data sharing. Those are all the things that we need if we are truly going to move to proper integration.

As the noble Baroness, Lady Barker, reminded us, at a time when waiting lists for the NHS are growing longer by the minute, should it not be a priority to ensure that no one stays in hospital longer than they have to by having discharge procedures that provide a seamless transition and making sure that the all-too-frequent readmission because of inadequate co-operation between the NHS and local authorities does not happen? We hear that care jobs are unfulfilled and that requests for care are turned down because of staff shortages. Local authorities struggle to recruit enough workers to meet increasing demands. No wonder that that is the case when one can earn more by filling shelves at Sainsbury’s.

A truly integrated service would mean that, the minute that someone is admitted to hospital, plans should be being made between health services, social care and the often-ignored but often significant voluntary services about what is going to happen on discharge. Sadly, the usual pattern is for a conflict to emerge, usually on a Friday afternoon, between a hospital ward desperate to empty beds and social care services inadequately prepared or even informed. What happens? The person goes home, the care services are not adequate and so the person is readmitted to hospital. I know someone in my local area in Herefordshire, an elderly lady who has been admitted 14 separate times since last July, and still care services to keep her adequately at home are not provided.

The Bill is a failed opportunity because we are seeing social care once again as the poor relation, the tail-end Charlie, that is considered after everything else is settled. Social care could be at the heart of a levelling-up agenda if we had a vision for its workforce and the impact that it has on the health of a community in the broadest sense. Care providers could be encouraged to diversify their businesses to reach out creatively into the community by providing tax incentives, for example, or reductions on business rates. If we want a high-skill, high-wage economy, what better place to start than social care, with its huge workforce badly paid but certainly not unskilled? Those skills could be developed by providing training, and retention could be dealt with by better career progression and recognition of qualifications. It is sad that we are not looking at practical ways in which to develop that integration in the Bill.

Fixing social care requires two things: money and better integration. We will come on to money later in the Bill. For the moment, I hope that the Government will give proper recognition of and acceptance to the amendment on integration in the name of the noble Baroness, Lady Hollins.

[Lord Warner (CB)]

My Lords, I will speak briefly in support of the amendments in the name of the noble Baroness, Lady Hollins. I had intended to put my name to them; I apologise to the noble Baroness for being so slow off the mark. I also strongly support the amendment in the name of the noble Lord, Lord Layard.

Both these amendments, in their different ways, go some way to righting what I consider to be two big wrongs inflicted on local government in the past, where responsibilities have been transferred to it but have not had their funding sustained into the future. The first was the closure of long-stay hospitals in the 1980s and 1990s. When I was a director of social services, I was the NHS’s favourite person when building provision and making available services for people coming out of long-stay hospitals. After a few years, I and my many colleagues became forgotten men and women because the money that was transferred was never maintained in real terms over a couple of decades.

Fast-forward to the 1990s and the setting up, with much enthusiasm, of the Roy Griffiths community care changes. These enabled the Government to get off the hook of an expanding social security budget. It was another repeat performance: the money was not maintained in real terms in the longer term. What we saw in both cases was local government having to pick up the tab without support from the Government—successive Governments, that is; I am not making a party-political point—to ensure that those services could be maintained for the people who became the responsibility of local government.

The amendments in the name of the noble Baroness, Lady Hollins, remind people that there is an obligation to make sure that both health and social care produce good outcomes for the people who are now primarily the responsibility of local government, which, as the noble Baroness, Lady Pitkeathley, gently reminded us, has been underfunded over a long time in terms of maintaining these services. The amendment in the name of the noble Lord, Lord Layard, is another righting of a wrong and we should all get behind it.

[Lord Scriven (LD)]

My Lords, I support Amendments 85 and 88 in the name of the noble Baroness, Lady Hollins.

We must be clear. The previous two speeches highlighted the elephant in the room: you cannot have integration on a sustainable basis unless you reform health and social care together. We have to be honest with ourselves that this Bill is predominantly about the reform of healthcare.

That was highlighted eloquently in the speech by the noble Lord, Lord Hunt, in response to my noble friend Lady Barker, about who should commission sexual health services. These have been lobbed to the side of the commissioning silo but it should be about how to break down this silo so that we have joint and sustainable commissioning around outcomes, rather than around which silo or which part of the health and social care framework should deal with it. It is the elephant in the room, but we are where we are so we must make this Bill better knowing that that is the real issue.

This is about three little words: social care services. It is clear to those who understand health and social care that the Bill has been written predominantly through the lens of healthcare. I do not blame anybody for that but clearly this is a healthcare commissioning reform Bill, with a little tinkering with the structure, and does not deal predominantly with those people who do not understand social care—unless they are asking for an NHS long-term care package, when the argument tends to be about not the care provided but the funding, including who is going to fund what part. That is when it affects people’s outcomes. Those three little words are really important, which is why the noble Baroness’s amendments are important. If they were accepted, the Bill would actually say that social care service and health outcomes are jointly important.

It is important that this is about integration. The noble Baronesses, Lady Pitkeathley and Lady Hollins, said that there is a significant difference between collaboration and integration. You can have two people collaborate but, if their silos send them in different directions, the outcomes will not be joint. The real issue is how we bring about integration. It will not solve all the problems but it will help to bring about the first stage of integration if you have a joint framework on outcomes for which both healthcare and social care are held accountable. That is why Amendment 88 is so important.

The Bill’s intention goes in the right direction but the three amendments in the name of the noble Baroness, Lady Hollins, will significantly help in that journey. They will not solve the problems fully but they are an important way to say to people who work in health and social care that they will be held responsible for the outcomes of individuals, whether their needs come under healthcare or social care. That is why I support these amendments.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

The architecture is very curious regarding why we must have an integrated care board and integrated care partnerships. It has never been clear to me why the Government have not attempted to set up a health and care board to bring those services together. We know that the funding systems will be different and that there is a clear difference between free at the point of use and means-tested social care, but surely that is what an integrated board, jointly owned by the NHS and local government, with councillors at the table not officers, is trying to sort out. Why have we ended up with this nonsense of a structure? We are carrying on with health and well-being boards as well. That is the great puzzle here.

If the Government are not willing to move on that, we must come back to the point made by the noble Lord, Lord Scriven. By splitting it, you then must say to the integrated care board, “Ah, but in your duties, you must ensure that you integrate with social care as well.” It really is a mess. The Minister said earlier that this is what the NHS wanted. Yes, this is an NHS Bill designed by NHS managers with a focus on the NHS. I do not know why it is called a care Bill, because it has nothing to do with care.

[Lord Warner (CB)]

Before the Minister responds to that, can I amplify what is being refused here by the Government? As I understand it, he is trying to rely on the Care Act to get local government to co-operate and integrate care with the great elephant, the NHS. This is asking a minor player to take on a major player with far more resources. Amendment 89, tabled by the noble Baroness, Lady Hollins, makes the NHS come back every two years about the outcomes. That is a fairly modest challenge to the NHS and I fail to understand why the Government cannot simply accept that in principle and then negotiate the drafting.

[Baroness Walmsley (LD)]

I am so sorry to delay the Minister again, but briefly. After we have pushed this Bill through Parliament, we will have an integration Bill and a White Paper and legislation on social care. When we have had this, those and those, can we come back to this?

--- Later in debate ---

Since the Government clearly value the work of NICE, I urge the Minister to take the opportunity of these amendments to ensure that NICE guidelines are put into practice. Therefore, I look forward to the Government’s support for the amendments.

[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.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Lord, Lord Hunt, and the noble Baroness, Lady Brinton, for raising this issue. I should be honest; I was not aware of the suggestion that CCGs often delay and whether that situation will be transferred to ICBs. I ask noble Lords whether I can look into that situation further to understand it more. I simply say that I was not under that impression.

[Lord Warner (CB)]

When the Minister is looking into that, will he also look at the issue of the usual suspects? The problem that the noble Lord, Lord Hunt, probably encountered—I certainly encountered it—was that many of these areas that are slow to implement NICE recommendations are the same areas where overall performance is pretty poor. There is an issue here about whether we can clearly identify the laggards and take action with them, rather than have a generalised look at the performance of particular areas.

[Lord Kamall (Con)]

Perhaps I may suggest, following the interventions of both noble Lords and their experience of being Health Ministers and of NICE, arranging a follow-up meeting with them to discuss this matter in more detail so that I can understand the situation more. As I am sure noble Lords will appreciate, I have been in this job for only four months and am still learning an awful lot. In fact, I am learning far more in this Committee than I have in my first four months. That shows that sometimes there is no substitute for learning on the job.

NICE has a suite of more than 300 guidelines and, as the noble Lord, Lord Stevens, said, more than about 1,900 medicines, spanning the whole of health and social care. It makes dozens of recommendations that can be complicated. We do not think it proportionate or feasible to require compliance with NICE guidelines but, given what I have just mentioned, I should like to consult previous Health Ministers with experience in this area and perhaps have further discussions to see what is relevant in the future.

I shall end with the CQC reviews of ICSs. We will look more broadly at the entire system of how the ICS areas are performing. A requirement for the CQC to specifically consider compliance with NICE guidelines as part of these reviews risks adding a considerable burden to this process. I can, however, assure the Committee that the Government expect the healthcare system to take NICE’s recommendations fully into account, subject to what noble Lords have told me about the performance of some CCGs. I am also aware that NICE works closely with system partners to support implementation where possible. It is probably best henceforth for me to have those conversations with the two noble Lords and any others with experience of this matter. There are more than two former Health Ministers in this House and we should have those conversations.

Let me see if I can answer some of the specific questions. As regards VPS—how do I put this in the most diplomatic way?—I have been asked to look at that issue. The industry has complained, for example, because we also have therapeutic tendering at the same time as expecting this. I am grateful to my right honourable friend the Secretary of State for asking me to look into this issue in further detail. I have asked what would happen, for example, when some of the life sciences companies ask whether it makes the UK less attractive in some ways. I am assured that it does not but I am looking into this issue as part of the life sciences aspect of my portfolio.

I think that I have covered all the questions but all that I ask at the moment is to let me have further conversations. That is probably best. In that spirit, I ask noble Lords to consider withdrawing or not moving their amendments.

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[Lord Scriven (LD)]

My Lords, I have attached my name to a whole raft of amendments in the name of the noble Lords, Lord Crisp and Lord Hunt. I am pleased to follow the noble Baroness, Lady Uddin, who has explained powerfully and passionately why primary care in one area is so important to the health and well-being of people. I also thank the noble Lord, Lord Low, for introducing this suite of amendments with such a graphic and powerful explanation of why primary care, particularly for people with learning disabilities, is also important in relation to ophthalmology.

I wanted to put my name to these amendments, because they go right to heart of the purpose of the Bill. Let us be clear about the purpose of the Bill. Its purpose is to integrate healthcare to improve health outcomes and to reduce health inequality. You cannot do that if your focus is purely on the acute sector. The acute sector is the repair system. It is not the part of the system that can really deal with the prevention and innovation that keeps people out of hospital. I am sure that was never the intention of the drafters of the Bill, and I am sure that it is not the Government’s intention. However, the way the Bill is written, the power emphasis is with the acute sector in monitoring, reviewing and strategic plans.

I am sure the Minister will say that that is not the case, but the way the Bill is written it is the acute sector that will have the power over who sits in the ICB and whose plans they are. So I say to the Minister in a very friendly way that the noble Lords, Lord Crisp and Lord Hunt, and I have been involved in the management and leadership of health in different parts of the system. I was involved in acute and primary care myself. When I came into the health service, the noble Lord, Lord Crisp, was so powerful and mighty that he was the chief executive of NHS England. It was the same with the noble Lord, Lord Hunt. I feel in very esteemed and very grand company.

However, the point we are trying to make is that the real way in which healthcare works and how it is developed is that the acute sector is very powerful, even at place. If you do not give a voice and power to primary care, you will not have the innovation and the change that you require. These amendments are a way of trying to make sure that the purpose of the Bill at least moves faster and is eased by having that primary care voice right at the heart of the ICB, and, being statutorily in the Bill and having been there right at the beginning in the planning, monitoring and evaluating, being able to determine what is happening. That is what these amendments are about, nothing more. They are not amendments that should be deemed difficult or trying to slow things down. They are genuinely helpful amendments.

I say very gently but powerfully to the Minister that he really needs to incorporate these amendments. If he cannot incorporate and accept them now, the Government need to come back with a set of amendments that really crystalise the role of some great primary care people, whether they are in GP surgeries, ophthalmology, pharmacy or dental, who can actually help with the purpose of this Bill, which is to improve health outcomes, integrate healthcare and reduce inequalities. It is vital.

[Lord Warner (CB)]

My Lords, I will speak in support of Amendment 218, in the name of the noble Lord, Lord Hunt, to which I have added my name. Before I get down to that, perhaps I could make a few remarks about the amendments from the noble Lord, Lord Crisp, and the other remarks that have been made.

When I was sitting in Richmond House as a Minister, we had a description for the chief executives of the acute trusts. They were called “the barons”. When the House of Lords Select Committee, chaired by the noble Lord, Lord Patel, took evidence on the long-term sustainability of the NHS and adult social care, three or four of them—I cannot remember exactly how many—came in to give evidence. Their opening salvo was, “We need 4% a year real-terms increase every year, stretching into the future”. I suspect that culture has not changed that much since I was around in Richmond House, and it has to be changed—forcibly if necessary—if we are actually to deliver the sustainability of the NHS.

Since 1948, the acute hospitals have been magnificent in laying down the law about how much money they need. Even when money was short, they were pretty good at it. My personal experience as a Minister was that, if I wanted the go-to people on change, I would go to the GPs. They were much more flexible and willing to have a go at doing things differently. We need to bear some of that in mind.

About 90% of people’s encounters with the NHS are with primary care, not with acute hospitals. People’s vision of the NHS is those encounters. I just want to mention an encounter my wife and I had over vaccinations which illustrates some of this. Our very efficient, local general practice was fast out of the starting blocks and we had two jabs very quickly. Some months later, we were both individually approached by two NHS acute trusts, which shall remain nameless. They asked us when we were going to get round to having our vaccinations. There was absolutely no contact between these two parts of the NHS. One part had no idea that another had dealt with the patients perfectly satisfactorily. This is what we are up against. The least we can do is accept the amendments suggested by the noble Lord, Lord Crisp.

I turn to Amendment 218. I will not repeat the arguments set out by the noble Lord, Lord Hunt. The numbers speak for themselves. In any service that claims to be national, it cannot be right to have such a wide range in the per capita workloads of GPs. After all, these doctors are the gatekeepers of patient access to specialist diagnosis and treatment. They should not be required to handle case loads that vary from around 1,000 to more than 6,000 patients. Such variations are likely to create significant variations in patient treatment outcomes.

I will make two further brief points in support of the amendment in the name of the noble Lord, Lord Hunt. First, there have been many worthy amendments tabled about the long-standing, serious problem of health inequalities. Many places with the most serious health inequalities are places where the patient load of GPs is very high. So the patients with the most need of clinical attention and help have the doctors with the least time for individual attention. I have to say, that is a brilliant piece of public policy that we have managed to develop.

My second point relates to the Government’s worthy aspiration to level up the quality of life in many neglected areas of this country. We now have a Secretary of State for Levelling Up, and no doubt we eagerly await the game plan he has for living up to his title. A fairer share of the national supply of GPs would be a tangible piece of levelling up in many of those deprived areas. Can the Minister say whether the Government have considered a move in the direction of the amendment tabled by the noble Lord, Lord Hunt, as a useful part of their levelling-up strategy? I hope the Government will give that consideration on those grounds alone.

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[Lord Kamall (Con)]

I thank the noble Lord for that clarification and also for the advice he has given me in my first few months in this job. I do appreciate his experience. I will take the noble Lord’s point back and make sure it is clearly understood by the department when we consider how we respond to it. We believe in working with appointed ICBs, but we expect primary care to be consulted.

NHS England has also stressed the importance of ensuring that there are robust place-based structures in place. We hope that the ICB will exercise functions through place-based committees, where a wider group of members can take decisions, and we expect that primary care, including individuals from medical, dental, pharmaceutical and optical committees, will be particularly involved at the place-based level under the principle of subsidiarity. We will have some influence on the drafting of the forward plan of the ICB. Additionally, guidance that NHS England publishes for ICBs will include the commissioning of primary care at the place-based level.

[Lord Warner (CB)]

I have listened very carefully to what the Minister is saying in response to these amendments but, at the risk of being a historian again, is he aware that influence on key decision-making in the NHS is diminishing for primary care in general and GPs in particular? If we go back to 1990 and the GP fundholding changes to the NHS made by the noble and learned Lord, Lord Clarke of Nottingham, if we move through the Blair years of practice-based commissioning and go to the changes by the noble Lord, Lord Lansley, with clinical commissioning groups, these are three examples where GP influence on decision-making—strategic, local and tactical—is very considerable.

As far as I can see, that has been diminished in this Bill and they have been put back in their box without a lot of influence on key decision-making. They are poked down at the local place level. That is not right. What the Committee is saying needs to happen in the NHS. The Minister must go back to his department and talk through what is happening here, because it is diminishing the role of the GP in particular.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord has said that the Bill came because this is what the NHS wanted. But we must be clear who in the NHS wanted it, and it is obvious that it was the senior chief executives at the local level and NHS England. No wonder primary care has been completely squeezed out of it. Listening to this debate, it seems to me that the proposals from NHS England never had any scrutiny. Ministers just accepted this and, because NHS England does not engage externally, there has not been the testing that you would normally get, and we are having to do it now. Frankly, the wheels are falling off. It is tempting to invite the noble Lord, Lord Lansley, to come in, because clearly CCGs were all about putting primary care in the driving seat. This seems to be removing them altogether and it is worrying.

Health and Care Bill

Lord Warner Excerpts

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

Moved by

[Lord Warner]

72: Clause 20, page 17, line 4, at end insert—
“(2) Where patients are unable to secure treatment in an NHS facility after waiting 3 months, they may choose to seek treatment, including diagnostic treatment, from a registered private service provider at NHS prices.(3) Providers of services under subsection (2) must provide NHS England with the information NHS England considers necessary to enable it to conduct and publish a national annual survey on the extent to which patients have been offered a choice of provider.”

[Lord Warner (CB)]

My Lords, the first part of this amendment links the issue of patient choice to tackling the serious problem of huge NHS waiting lists. We cannot have a meaningful policy of patient choice in the area of elective treatment without sufficient NHS capacity. Many parts of the NHS lack that capacity and will do so for a long time to come unless they draw on independent sector capacity or spare capacity in other parts of the NHS. In short, the NHS must accept a degree of competition in the area of elective diagnosis and treatment if it is to reduce huge backlogs. That extra capacity and choice was being put in place at NHS prices 15 years ago, when at least half the country had that choice. Since then, the situation has deteriorated, but that is the direction of travel that we need to return to now if we are serious about removing patients from the huge NHS waiting lists.

The evidence for the seriousness of the situation that the NHS faces was set out in a National Audit Office report published in early December 2021. It revealed that 6 million people in England are on waiting lists for elective care, with 300,000 of them waiting over a year. The NAO also estimated that, between March 2020 and September 2021, there were between 7.6 million and 9.1 million fewer referrals for elective care. It is unclear whether or when these “missing people” will seek NHS treatment. However, if half of the missing referrals for elective care do return, and assuming that NHS activity improves by 10% more than its pre-pandemic levels, which is what the Government are expecting for the extra £8 billion that they are investing by 2025, the NAO considers that there will still be 7 million people left on the waiting lists in 2025.

So, can the Minister tell me whether the Government accept the NAO’s analysis and calculations? How much elective capacity—NHS or independent sector—will the Government fund in the next two financial years to reduce elective care waiting lists? Are there any plans to encourage patients to choose other NHS hospitals or private hospitals instead of waiting for their local hospitals to get around to treating them? If he cannot answer these three questions today, I should be grateful if he would write to me with answers, as a matter of some urgency.

Before I turn to the second part of my amendment, can the Minister clarify the significance of the front-page story in the Times of Tuesday 18 January, which might have a bearing on my amendment and the Bill more generally? This headline read, “Javid plans NHS revolution modelled on academy schools”. As a former Blair Health Minister, I commend the Secretary of State for moving in this direction, but how can such a move be compatible with the current Bill? If the Times article is accurate, it would seem to have implications for the new provider selection regime provided for in the Bill. However, I am reliably informed that the draft regulations governing the new regime have yet to be published.

So are these regulations being held up because the Secretary of State is changing his policy? Certainly, I know—the matter has been impressed on me—that independent sector providers are unclear about the arrangements for providers to appeal against ICS decisions that are at odds with the regulations. I am assuming of course that ICS will not be allowed to mark its own homework, but can the Minister clarify when there will be a public sighting of the draft regulations? Again, if he cannot say today, I should be grateful if he would write to me.

Finally, I turn to the right of patients to choose where they receive care. I will not go over the period 15 years ago when a lot of progress was made on the reality of patient choice, but I will mention some King’s Fund research in 2011 which drew attention to a significant barrier to exercising that right. That barrier was NHS staff. If patients are not informed of their choices and are discouraged from exercising them, they will go on forlornly waiting for their local hospital to get around to treating them. Rights can be enforced only if there is information available. This is the purpose of the second part of Amendment 72. My information is that not since 2015 has NHS England published an official annual survey of whether patients have been offered a choice of provider when receiving treatment. That is why we need a statutory provision that provides for the regular measurement and public reporting of patients’ experience in whether they have been offered choices about their care.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I put my name to Amendments 109 and 226, in the name of the noble Lord, Lord Rennard. I also have my own Amendment 204, which I will not move or speak to, because we dealt with Healthwatch in a debate which seems a long time ago but was only two Committee sittings ago.

I refer to the remarks of the noble Lords, Lord Warner and Lord Lansley. It seems to me that behind this is the hard issue we face that the huge increase in the number of people waiting will, I am afraid, take us back to the very bad old days of the perverse incentives existing within the NHS for patients to be encouraged to go for private care because of the length of the waiting list and waiting times. The noble Lord, Lord Warner, will recall that under the Blair Government, as part of our attack on waiting times, we had to tackle this issue of certain consultants—I suppose I should declare my interest as a member of the GMC board, though I am certainly not speaking on its behalf—and certain perverse incentives for patients to be encouraged to go to the private sector. Of course, much maligned though they were, that was why independent sector treatment centres were set up, and they were part of the process of driving waiting times down. We now have a huge problem of huge waiting times and a huge number of waiting lists, and we have to be very careful to ensure that these kinds of perverse incentives do not come back into the health service.

[Lord Warner (CB)]

Does the noble Lord recall that, when independent sector treatment centres were established, they operated on the basis of NHS prices, so people were getting NHS treatment in these independent sector treatment centres at the same price that the NHS would have had to pay for that treatment?

[Lord Hunt of Kings Heath (Lab)]

My Lords, that was a very important intervention, and I am grateful to the noble Lord for jogging my memory. I think that he would agree, though, that apart from the price, the point was that it was an important element in getting waiting times and waiting lists down. At the moment, we are clueless about how the Government are going to do this. As the noble Lord, Lord Lansley, said, we will have a debate—I hope tonight—in relation to procurement, but I say to the Government that the open-ended nature of the regulation-making power that they propose to give to Ministers in such an important area is utterly unacceptable and has been drawn to the House’s attention by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, as the noble Lord knows.

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[Baroness Finlay of Llandaff (CB)]

My Lords, this has been a very interesting short debate. I have two issues to raise. I am grateful to the noble Lord, Lord Hunt, for having raised perverse incentives and, indeed, the danger with perverse incentives that senior consultants with a great deal of experience could be absent from NHS premises when undertaking work such as surgery in other premises; they would therefore not be available to their NHS patients in the event of a problem and some surgery being left to more junior members of staff.

The other issue is the difficulty of ensuring true consent and information for patients when they are offered choice, with respect to their awareness of the staffing levels in the premises to which they will be going. In some of the private providers, there is not very comprehensive out-of-hours medical cover—particularly at night—with somebody on site. There is also a problem that, if a patient should develop a complication, foreseen or even unforeseen, and is in need of an intervention, they may then need to be transferred to a local NHS intensive care unit. In that event, it would be important for the money to follow the patient. If that intensive care unit is out of the area from which the patient has come, I hope that the regulations will allow for appropriate funding of that NHS facility.

[Lord Warner (CB)]

Is the noble Baroness aware that, during the arrangements in which there were contracts with the independent sector to provide elective surgery in independent treatment centres, the quality of that care was both reviewed by the then Chief Medical Officer, Liam Donaldson, and looked at, with evidence taken, by the Health Select Committee? They found that claims about shortcomings in these private facilities were exaggerated—their provision of services was equally as good as that of the NHS facilities.

[Lord Lea of Crondall (Non-Afl)]

My Lords, I shall briefly support what has just been said by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, with a personal anecdote. When I recently needed an MRI scan on my neck, the doctor said, “Well, of course, you can have it done quite quickly if you go private.” She then added, “In case you are worried about doing that, it takes the pressure off of the health service.” The point made by the noble Lord and noble Baroness is exactly that it does not take the pressure off the health service; for the previous few weeks, these doctors have been working for the National Health Service. I hope that the Government will take this on board and will not start using the argument that going private takes the pressure off the health service.

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[Baroness Chisholm of Owlpen (Con)]

My Lords, I shall start by addressing Amendment 72 in the name of the noble Lord, Lord Warner. The Government are wholeheartedly committed to addressing the backlog of hospital treatment, much of which, as we are all aware, has resulted from the unprecedented efforts that our country and our health system have taken to combat the Covid-19 pandemic. This includes continuing to work closely with independent sector providers of acute care to provide the capacity to deliver more treatments and to reduce waiting times. I shall explain that a bit further. As of 10 January, NHS England has entered into national arrangements with 10 independent sector providers, to meet the needs of their patients and to reduce waiting times for treatment. This will also allow a wider range of patients to be treated in the independent sector, such as those needing some forms of cancer surgery and other treatments not normally delivered under existing arrangements.

The Government will continue to monitor this collaboration and work closely with the NHS and the independent sector to ensure that patients receive the best possible treatment and care. I welcomed the shadow Secretary of State’s comments on the use of private providers in recent weeks, supporting the use of the private sector where necessary to address the backlog.

We do not, however, believe that the amendment as written offers the right approach to effectively support collaboration between these parts of our health system at this time. The system already has arrangements between the NHS and the independent sector to address specific needs and to target areas where the greatest benefit can be gained. In addition, in most cases, patients already have the legal right to ask for their appointment to be moved to a private sector provider if they are likely to wait longer than the maximum waiting time specified for their treatment. This includes where patients have to wait more than 18 weeks before starting treatment for a physical or mental health condition, or more than two weeks before seeing a specialist for suspected cancer, with some specified exceptions. This does not limit patients to a private provider, as the amendment would, but allows them to choose from a range of providers. Currently, patients waiting for treatment are prioritised by the NHS so that those in the greatest need are treated first, when their clinical urgency and the length of time they have been waiting for treatment has been reviewed.

At present the NHS captures information on patient choice, which includes the use of e-RS at referral, where NHS England can see the number and nature of choices offered to patients. There is also a national e-RS pop-up survey for patients, which provides data on patient choice; information on choice offered to waiting list patients is also recorded.

The noble Lord, Lord Warner, wanted to know about the timing of the publication of the regulations on patient choice. That will be the same as for the provider selection regime regulations: as close to July as possible, subject to parliamentary passage.

The noble Lord also asked about work on the elective recovery plan. The Government have announced that we will spend £2 billion this year through the elective recovery fund to tackle the elective backlog, as part of the biggest catch-up programme in the NHS’s history. This will continue with £8 billion in the following three years, from 2022-23 to 2024-25, and a further £5.9 billion was announced in the October 2021 spending review to support elective recovery diagnostics and technology.

The independent sector is bolstering NHS capacity in a wider range of areas—MRI scans, providing cancer diagnosis and treatment, treating women with gynaecological health issues, and much more. Thousands of patients are receiving tests and treatments for a wide range of conditions, thanks to the arrangements in place in the NHS and the continued strong partnership with the independent sector.

The noble Lord, Lord Warner, also wanted to know about the story in the Times on academisation of hospitals. Significant NHS reform is already under way through this Bill, our plans for integration, the health and care levy, and our upcoming electives plan. No further plans have been agreed. High-quality hospitals will always have a central role in our health and care system, and the Bill will ensure that they do so in a way that supports integrated and patient-centred care.

I think that the noble Lord, Lord Hunt, said that he did not want to move Amendment 204, so I will not speak to that.

I thank the noble Lord, Lord Rennard, for bringing Amendment 226 before the Committee today. Supportive self-management is part of the NHS long-term plan commitment to make personalised care the norm. However, we do not believe that having an additional duty on NHS England, as proposed by this amendment, would further support this work. Indeed, having a stand-alone duty of this kind could make the work more disjointed, rather than complementing the existing holistic approaches to personalised care, which aim to empower individuals to live well with their conditions. The department is working with NHS Digital and NHS England and NHS Improvement to encourage innovative new approaches and organisations to support services and to collaborate in an effective way with the NHS.

Amendment 109 deals with the access to innovation technology among diabetes patients, and I thank the noble Lord, Lord Rennard, for bringing it before the Committee today. He is a much-valued contributor to all debates on this subject, and we learn something new ourselves every time he speaks on it. We have existing tools at our disposal to monitor the use of innovations. This includes NHS Digital’s innovation scorecard and the AAC scorecard. We are committed to further strengthening these innovation metrics and to improve our understanding regarding the use of innovations in the NHS.

This amendment seeks to add a new subsection to new Section 14Z49, which would create a requirement for guidance published by NHS England for ICBs to include performance metrics on the uptake of innovative technologies among diabetes patients. I understand that the amendment would seek to set specific requirements for the system oversight framework for ICBs in respect of diabetic patients. However, this could risk creating a confused system of reporting requirements, which I am sure we are all keen to avoid.

The amendment would also cut directly across the existing mechanism for setting priorities, by which the priorities set by the Government for NHS England, and in turn by NHS England for the system, are translated into reporting requirements—this flows from ICBs to NHS England and to Parliament. However, I hope I can give the noble Lord some reassurance that the Government take the issue of diabetes very seriously. I assure him that we will continue to hold NHS England to account for the performance of the system against those metrics, as I am sure your Lordships’ House will hold Ministers to account.

I hope this has been a helpful debate, and I will make sure that we get letters to explain any questions I have not fully answered from the noble Lord, Lord Warner. With that, I hope that he will feel able to withdraw the amendment.

[Lord Warner (CB)]

My Lords, this has been a helpful short debate, and I am particularly grateful to noble Lords, especially the noble Lords, Lord Lansley and Lord Hunt, and the noble Baroness, Lady Wheeler, for their contributions and for opening this subject up a little.

The purpose of my wording of this amendment—I did not think it was a perfect piece of parliamentary drafting—was mainly to flush out what the Government are going to do on patient choice and provider regimes. We have an answer on the latter. We will not know what is in the provider selection regime regulations until after Parliament has passed this legislation. That does not seem to me to be a particularly satisfactory position to be in, for the reasons that the noble Lord, Lord Lansley, said. So, I strongly encourage the Government to get on to the Department of Health and Social Care officials and speed the process up. Even if they are only draft regulations, they should be made available to your Lordships so that we can see what the Government’s practical intentions are.

I will not go into a defence of the private sector—I do not particularly want to do so—but, in the past, when it has been bought in on NHS contracts, it has brought more professionals to the party. Part of the original contracts for ISTCs made it clear that the private sector could not swipe NHS consultants; it had to find its own staff, who were not working in the NHS, to deliver on those contracts. So, they added to the capacity. I remind Members of this House that the thing about diagnostics, which the noble Baroness, Lady Barker, rightly raised, is that you can use the spare capacity in the private sector at marginal cost, so that you are not paying the full cost you would normally have to pay. So, there are some advantages there, if a Government know what they are doing in their contracting.

Finally, I was not satisfied with the noble Baroness’s answers both in relation to the NAO report and more generally. It is very easy to give me and the House figures for expenditure. I was asking how many patients will actually benefit, because the currency for waiting lists is patient numbers. We want to know how many people will be taken off those waiting lists as a result of the Government’s expenditure—that is the issue I was looking for some enlightenment on.

The background to this is: will I go further on Report? The answer is: I look forward to hearing what the Government say between now and then, but, at the moment, my inclination is to come back and test the opinion of the House. I beg leave to withdraw my amendment.

Amendment 72 withdrawn.

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[The Lord Bishop of London]

My Lords, I will speak briefly on Amendments 170, 171 and 173. As a former Chief Nursing Officer, I recognise the challenge of ensuring the right number with the right skills of those providing healthcare to meet the needs and the future needs of the population. As someone who, while the Government’s Chief Nursing Officer, was given the objective of finding 60,000 nurses, I understand that it requires a whole-systems approach. I often felt it was about science and art—the science was in the work that went on nationally but the art was in the way it was applied locally on the ground. The noble Baroness, Lady Walmsley, talked about how work on the ground is often not about intuition because that is about experience and knowledge; it is about how it is applied on the ground. I also reflect on the fact that although it was my role with all those working around me to find 60,000 nurses some years ago, we are seeking to find almost the same number today. That demonstrates the fact that we do not have a sustainable model of workforce planning and that we need to do better.

We have already heard how the Bill requires the Government to publish a report that describes the systems in place for assessing and meeting the needs of the workforce. We have already heard that that does not go far enough. In meeting workforce needs, systems are required for both planning and supply, but that does not ensure that it will happen. I believe that we need a system that has accountability, that puts into place long-term planning, and that is funded.

The Secretary of State needs to be held accountable for both workforce planning and supply, because there are some things that only the Secretary of State can do. For example, if the workforce planning systems are not co-ordinated at a national level, there is often limited ability to respond to local variations on the ground, such as those between rural and urban settings or between professions or sectors. For example, responding to local variations may require national changes, such as in training or registration.

There are also parts of the workforce planning system for which only the Secretary of State can be accountable. For example, you can assess and put in place workforce plans but unless they are funded, it is done in vain. There are also actions that are often taken at a national level by government, which can impact on workforce supply and which only the Secretary of State can resist. We have seen national policy influence recruitment and retention: for example, as we moved away from the nursing bursary, as we have seen changes in immigration policy and in the challenges faced by the medical profession around its pensions. All those impact on recruitment and retention.

The Health and Care Bill must have embedded in it accountability for workforce planning and supply sitting with the Secretary of State. This will not only ensure good supply but will prevent staff shortages, improve patient safety and the quality of care. If this is not resolved, we will see those deteriorate.

Finally, on sustainability, we have heard how planning for the workforce takes time. We have heard how long it takes to take train a doctor or a consultant or even a clinical nurse specialty. These periods of training reach over the span of a Government. We need a system that does not just respond to the needs of a Government but beyond them, to ensure that our horizons are not limited by politics but by the needs of a population. Our workforce provides not just quality care to an individual but to a community. We have heard how, if we fail to provide the right workforce, we will fail the other aspirations in the Bill.

[Lord Warner (CB)]

My Lords, I have added my name to Amendment 146 in the name of the noble Baroness, Lady Merron, but I support all the amendments in this group. Taken together and perhaps integrated a bit better, they strengthen the focus in the Bill on workforce issues and workforce planning. I also congratulate the noble Lord, Lord Stevens, on his contribution to open government.

For too long, we have been preoccupied with the funding of our health and care system and have tended to assume—I confess that as a Minister I certainly did this to some extent—that if Governments made enough money available, we would be able to acquire the staff we needed, always forgetting, I think, that health and care is a highly labour-intensive industry, possibly the most highly labour-intensive industry in our country.

We were often very good at masking the shortcomings in our planning system by historically relying on recruitment from abroad. There were doctors from Africa, India and Europe, nurses from the Philippines and elsewhere, and we had a lot of staff coming in from the EU to work in our social care sector. Brexit and our national preoccupation with limiting immigration has changed all that, and that is before we calculate the effect of Covid on health and care staff recruitment. To give your Lordships just one example, pre-Brexit, 40% of the social care staff in London came from the EU. You simply cannot make that ground up very quickly.

Today’s reality for recruiting health and care staff is that we are operating in a highly competitive national and international labour market. That situation will not change any time soon. The probabilities are that we will have to pay more for staff and give more thought to our working practices and conditions. We will have to do a much better job of planning ahead and take much more seriously the training, support and recruitment and retention of this increasingly scarce resource—people.

I suggest that Ministers—I include all of us who have been Ministers—must stop political bragging about how many new doctors and nurses a Government will produce, often without the foggiest idea of how long it will take to do so. Ministers might want to give more consideration as to whether they have the right skills in the sector in the first place, before commissioning the training of highly paid, highly skilled professionals. We have not done a very good job of looking at the extent to which many of the jobs done by doctors could be done by other professionals. Our attempt to train nurses in prescribing has been only half-hearted in using the skills that we have paid for them to develop.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

Having said all this, I see that the number of amendments that have been tabled reflects the strength of feeling in this House and the other place on workforce issues and workforce planning. I hope I have been able to assure the Committee of the department’s extensive, ongoing work to support the entire health and social care workforce.

[Lord Warner (CB)]

I am sorry to interrupt the Minister. I have been listening extremely carefully to his response to these amendments and have to say, as gently as I can, that I did not hear many concessions to the points made by noble Lords across the Committee. Unless something really exciting is going to come in the last couple of pages of his brief—I have been watching him turn them over—I suggest that he needs to go back to those above his pay grade and bring home to them the level of distrust about whether the Government are serious about putting proper amendments on workforce issues and planning into this Bill.

[Lord Kamall (Con)]

You can tell the noble Lord used to have my job, because he clearly anticipated the exciting bit—perhaps not exciting, but more practical—I was coming to. It is quite clear there is a strength of feeling on this issue—

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[Lord Warner (CB)]

My Lords, I will briefly speak in support of the amendment in the name of the noble Lord, Lord Hunt, and echo many of the points made by the noble Lord, Lord Lansley, although I draw slightly different conclusions to him.

We have been around this track on social enterprise over the last 15 or 16 years and, in what I might call the good old days, there was a social enterprise unit in the Department of Health. That arose—it is worth remembering this—because many NHS staff preferred to work in a social enterprise unit rather than be direct employees of the NHS. The early days of social enterprises saw a number of groups of staff, particularly nurses, producing, in effect, co-operatives to work as social enterprises. While the noble Lord is entitled to feel a little anxious if there is nothing in the Bill even as modest as Amendment 93 in the name of the noble Lord, Lord Hunt, that arrangement gives some degree of protection to social enterprises which have served the NHS pretty well over the last 15 or 16 years. So, the least the Government could do is accept Amendment 93.

To some extent, the points made by the noble Lord, Lord Lansley, relate to the points I made earlier about Amendment 72. The bottom line on all this is that the way the Government have gone about trying to say, in Clause 70, that there needs to be a new provider selection regime, while not declaring their hands, has actually created the worst suspicions. If indeed, as the noble Lord, Lord Lansley, says, there is adequate provision already, why create the suspicion that some dastardly deed is going to be produced at a later stage by putting in Clause 70 and then not producing the draft regulations before the House clears the Bill?

The Government have got themselves into a fair tangle over this issue, and the Minister would perhaps do well to take this back to the department and try to reassure people as to what the Government are up to. Are they trying to change the Section 75 arrangements, and, if so, in what way? We want a lot more clarity about what the future provider regime will actually look like.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak very briefly, having attached my name to a couple of amendments in this group. The issues around Clause 70 have been very clearly addressed, and I will just add one reflection, looking back to a discussion on an earlier group last week, when I said that if the Secretary of State gets great power, with that comes great responsibility. From the debate in your Lordships’ House, the noble Lord, Lord Hunt, is right to say that the Bill will not leave the House in this condition, but, if it were to, or if, after future amendments and ping-pong it were to end up back in this condition, the Secretary of State would really be in quite a dangerous place.

I pick up on social enterprises and the amendment of the noble Lord, Lord Hunt. We will be coming to some amendments, perhaps on Wednesday, when I will be talking about the impact of privatisation on social care. There will at some point—we have already seen this several times—be a huge crisis of the financialised social care sector, particularly care homes. When large chains fall apart and we have to find a way forward, social enterprises will be one way. I am aware that Clause 70 mentions healthcare and associated services, but to think about this in a whole and integrated way, we should ensure that there is recognition for social enterprise.

I attached my name to Amendment 208 because I thought it was important to demonstrate maximum cross-party support. Dare I say that events in the House earlier today demonstrated the need for transparency and openness in official contracts? There is great public concern about the misallocation of resources and the need for a guarantee of openness in government and official spending, so that amendment is crucial.

I do not know how I missed Amendment 209 in the name of the noble Baroness, Lady Thornton, but I certainly would have attached my name to it had I not done so. It is often commented that I cover a very broad range of subjects in your Lordships’ House, so I often talk about trade deals in other contexts, but there are very grave concerns about trade deals undercutting principles and priorities that have been identified in British politics, so that amendment is also important.

Finally, on Amendment 211, we have seen that giving government contracts to the lowest cash bidder has had disastrous consequences across a whole range of sectors. It has benefited a handful of giant companies, some of which have collapsed, some of which have engaged in rampant fraud and all of which have delivered a disastrous quality of services, exploiting poorly paid staff. Social enterprise is a different approach, a different way of commissioning and a way out of that. It is a way of relocalisation: stopping those few large companies that keep winning contracts because the whole thing is structured so that only a handful of companies can bid for them anyway. These are all really important amendments.

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[Lord Warner (CB)]

Before the Minister answers that question, could he make clear whether the primary concern of the Government is the interests of the patient or of the NHS? They could be in conflict. Much of what he has said implies that they are the same but they are not, and some of the issues on which the Minister is saying “We’re doing what the NHS wanted” concern me about where the patient’s perspective is in that kind of approach.

[Lord Kamall (Con)]

The noble Lord raises a concern that I have heard a number of times: that we should be careful about saying “This is what the NHS wanted”—that the focus has to be about patients. We clearly take the view that this should be patient-centred and patient-focused. Indeed, I have had a number of conversations with many noble Lords about how we make sure that it is patient-focused. We understand, however, that concerns have been raised that Clause 70 may in part be a temporary measure, to be replaced or significantly edited by the Cabinet Office procurement Bill to follow. This is not and never has been our intention, but I understand the concern and recognise that there is value to aligning processes when such alignment is in the wider system interest. We continue to engage with the Cabinet Office on its proposals.

Amendment 213 would make regulations under Clause 70 subject to the super-affirmative procedure. I appreciate the intention behind this amendment. However, we do not feel at the moment that the super-affirmative procedure is necessary. As set out in our delegated powers memorandum, the powers created by Clause 70 are inserted into the NHS Act 2006, in line with the vast majority of regulation-making powers under that Act.

We know that there is significant parliamentary interest around the rules determining how healthcare services are arranged, so it is vital that we strike the right balance between democratic scrutiny and operational flexibility. The negative procedure provides that balance and ensures transparency and scrutiny. We will continue to engage widely on the proposals for the regulations to be made under these powers, to ensure that they will deliver—

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[Lord Kamall (Con)]

I take the point that my noble friend makes, and I completely understand the concerns; that is why it is important that I take many of the concerns raised today back to the department.

Clause 70 inserts a new Section 12ZB into the NHS Act 2006, allowing the Secretary of State to make regulations. I have a lengthy explanation here but, frankly, I am not sure that it will pass muster. If noble Lords will allow me to go back to the department—I may be a sucker for punishment, but I accept the concerns and I will go back—

[Lord Warner (CB)]

Would the Minister like a few of us to go along to the department with him?

[Lord Kamall (Con)]

As the noble Lord will recognise, when I was appointed to this job, I did say that I wanted to consult as many previous Health Ministers as possible, as well as people who have worked in the field. It is clear from this debate that more consultation and discussion are needed, so I would welcome noble Lords’ advice. On that note, I beg that Clause 70 stand part of this Bill and hope that the noble Lord will withdraw his amendment.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Mawson (CB)]

My Lords, I am very supportive of what the noble Lord, Lord Farmer, said. My colleagues and I have been in this space for 37 years and we have built rather a lot of things in it. It has been very interesting to watch what happened in east London, when this new scheme from a new Government arrived in the middle of a group of communities that already had well-established relationships with very vulnerable families, with a whole range of opportunities emerging. I am sure it was unintentional—it is part of the danger of being overinfluenced by the idea that local authorities will sort this stuff out in the same old usual way that they have tried to before—but it was very disruptive for the social enterprise sector, which was already doing this stuff very effectively, with all the numbers to show it. I will not go into the detail now, but when you look at the detail of what actually happened, the present facilities cost £100,000 more than those being delivered by the social enterprise sector.

These ideas are really important. I am happy to take the noble Lord into this in a lot more detail. I encourage him to spend more time in the detail in some real places to look at the unintended consequences of what happens when new government programmes arrive in communities, with the best will in the world, with an overconfidence in what they think the state can deliver. I am very happy to have a further conversation with the noble Lord, but the detail of the long-term relationships with these families really matters.

[Lord Warner (CB)]

My Lords, briefly, I support these amendments, partly from my own experience as a director of social services and Children’s Commissioner, but also because of the points that the noble Lord, Lord Mawson, raised.

I have three key points from history. As a director of social services in the 1980s and 1990s, I offloaded my local authority family centres to the voluntary sector because a survey of parents suggested that they would not come to a service run by the organisation that was likely to take away their children. That was a perfectly rational position and we should listen to what people say about that.

Fast forward to 1999 and parenting orders under the Crime and Disorder Act. We find that compulsion brought parents to the party but, when they actually attended, they found—not so much men but women—that they were being treated and given skills that enabled them to manage children, largely teenage children, much better than they had been. It was a great shame that we used the criminal justice system to bring people to a parenting tuition experience that they should have been given many years before.

This is a final point from history. Michael Gove made me—this was madness on my part, as well as his—children’s commissioner for the failing Birmingham City Council children’s services. Ofsted report after Ofsted report had been telling them of their deficiencies. We found that the group they could not handle, for which they had no effective responses, was teenagers. If we are to make any progress in helping people to help the family unit, we need to address the support given to parents during the teenage years, because they are really struggling, particularly mums.

[Lord Bethell (Con)]

My Lords, I will briefly say that I am extremely optimistic about family hubs. They answer the challenge to solve the complexity around integration incredibly well. My noble friend Lord Farmer made the point that one cannot think of a better example of what integration looks like than family hubs. The noble Baroness, Lady Tyler, talked clearly and persuasively about the journey they have been on.

My noble friend has made the case for these amendments. Other noble Lords have made the case for updating the legislative framework. I ask the Minister to look carefully at what can be done to bring these laws up to date so that family hubs can thrive, as I believe they will.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, I shall intervene relatively briefly. The noble Lord, Lord Hunt, quite rightly said that this is a significant departure from the intentions of the 2012 legislation. The 2021 Act, among other things, created the body that is now NHS England and gave it independence. None of that independence was intended to mean, nor has proven to, that it was not responsive to even the day-to-day wishes of a Secretary of State, as I am sure the noble Lord, Lord Stevens, would verify. What it did put in statute was that, if the Secretary of State wants to set something as an objective of NHS England, they put it in the mandate. If the Secretary of State requires a change to those objectives, they publish a revision to the mandate.

Going beyond it is, I think, the product of circumstances where we had a Secretary of State who was encountering an emergency and thought he could press lots of buttons and things would happen, but pressed some and they did not. I think, even in his experience, that was more outside NHS England than inside it— I may be wrong, but that was certainly my impression. The point is that the Secretary of State did not even realise what powers he had in an emergency; they are all there and he was not required to change the mandate, because it was an emergency. In a public health emergency, none of this, strictly speaking, is within the same bounds.

Ministers have quite rightly said that this is the Bill the NHS asked for. But Clause 39 is not the clause that the NHS asked for; it is the opposite of what it is asking for. There are many practical issues. The noble Lord, Lord Hunt, is right; if it appears, including to the senior people and bright youngsters, that power is going to shift from NHS England back to the Department of Health and Social Care, they will go and work in the department. One of the things I was most pleased about was that some of the brightest and best, including civil servants in the department who I knew well, went to work in NHS England, because they thought, “This is a great future.” That is terrific, because one of the problems was that NHS managers were being imported into the Department of Health, rather than bright policymakers going to the NHS. The NHS is too important an institution for it not to have the best possible policymakers under its own purview.

The noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Walmsley, have done a sterling job in trying to mitigate a general power of direction for the Secretary of State. Frankly, I have not heard a case for it, it is contrary to where we are and where we need to go, and the simplest thing is to simply take Clause 39 out of the Bill.

[Lord Warner (CB)]

My Lords, it is a delight to follow the noble Lords, Lord Lansley and Lord Hunt, on this set of amendments, with which I totally agree. I want to dilate for a few moments on the realpolitik of being a Minister in the great, august organisation called the Department of Health and Social Care. I can say some things that the noble Lord, Lord Lansley, as a former elected Minister, possibly cannot.

When I ceased to be a Parliamentary Secretary and was promoted to work with the big boys and girls as a Minister of State, and had to deal with issues such as reconfiguration, poor performance and so forth, I became used to regularly meeting elected MPs who wanted to tell me about the errors of their ways in decisions that had been taken in the public interest. There was a steady flow of them, which, if I may say, tended to get bigger the nearer you got to an election. If people wanted to go through the archives, I would refer them to the history of Lewisham Hospital and of Chase Farm Hospital, to name but two.

Very often in these situations, it is not about closing a whole hospital but about re-engineering—we will come to some of this in the next group. I give the example of stroke services in London. It is re-engineering a particular set of services, which the local MP is then put up for trying to ensure that change does not happen. That is where you need to help Ministers do the right thing, when it is in the public interest to make changes. The amendments from the noble Lord, Lord Hunt, help Ministers do the right thing.

The point the noble Lord, Lord Lansley, made is absolutely valid. In many of these circumstances, it becomes very difficult if you are an elected Minister—as distinct from an appointed Minister, who does not have to face the electorate—to resist some of the local pressures to avoid change which would be disadvantageous to a local hospital. For those realpolitik reasons, I think the noble Lord, Lord Hunt, is on the right track and we should support the amendments.

[Baroness Walmsley (LD)]

My Lords, I support the noble Lord, Lord Lansley. Clauses 39 and 64 give the widest possible powers of intervention to the Secretary of State and even the power to delegate that power to someone else. The noble Lord, Lord Hunt, and other noble Lords clearly believe that the Government are going too far, hence the large number of amendments in this and the next group.

I believe that the Clause 39 powers could justifiably be used only in the case of some cataclysmic failure of the NHS. There are four questions to ask. Is it possible that the Secretary of State would ever need these powers of intervention at an operational level, given that he already has the mandate? Does the Secretary of State have any other powers which could be used prior to this atomic bomb of a power? Has the NHS survived well enough over the last 10 years without the Secretary of State having such powers? Does Clause 39 upset the balance between the Secretary of State and the autonomy of NHS England? I think the answers are no, yes, yes and yes—your Lordships can work it out.

The Health and Social Care Act 2012 removed the Secretary of State from this sort of meddling. I thought at the time that it might also avoid him or her taking the blame for failure, but that was just me being cynical and there has actually been no failure of political accountability over the last 10 years. The ninth report of the House of Lords Constitution Committee refers to this issue. It notes that, in 2011, it

“raised concerns that that Bill could erode ministerial responsibility due to the proposed duty on the Secretary of State to promote autonomy for persons exercising functions in relation to the health service. What is now section 5 of the Health and Social Care Act 2012 was amended, such that the Secretary of State instead must have regard to the desirability of securing autonomy. This helps ensure a balance between enabling those providing health care services to deliver services in a manner that they consider appropriate, whilst ensuring ministerial responsibility.”

The Constitution Committee believes that, in combination with Clause 64, the powers taken for the Secretary of State by Clause 39 would undermine that autonomy and upset the balance. They also risk

“undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”

The fact is that the Secretary of State already has the power to change the mandate of NHS England—as the noble Lord, Lord Lansley, pointed out—to adjust its funding or to bring political pressure upon it to behave in certain ways, without the need for the powers in this clause. Indeed, I think it would be very unwise to use these powers, and he or she will certainly get the blame if it all goes pear-shaped. The Bill, as has already been pointed out in some detail by noble Lords, the DPRRC and the Constitution Committee, gives the Government considerable regulatory and guidance powers, about half of which allow no parliamentary scrutiny at all. Does that not give the Secretary of State enough ability to ensure things are done in the way the Government wish? The Secretary of State already wants to be Henry VIII; does he also want to be King Herod?

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[Lord Lansley (Con)]

Let me give my noble friend one simple example of how this could shift decision-making from NHS bodies to the Secretary of State. We discussed previously, in an earlier group, the availability of in vitro fertilisation services. There will be pressure on the Secretary of State to issue a direction that the NICE recommended availability of in vitro fertilisation services should be provided. By what means is the Secretary of State going to say, “No, I can’t issue such a direction”? It is entirely within his power to do so. The pressures will all be on the Secretary of State to issue directions to do things that the NHS locally may choose or choose not to do. The power will shift. Is he aware of what he is wishing for?

[Lord Warner (CB)]

Before the Minister answers that question, could I add another? We have had 10 years’ experience of NHS England under three chief executives and a number of different chairmen. Can the Minister give any examples of where the powers the noble Lord, Lord Lansley, gave the Secretary of State have been inadequate for them to give direction to NHS England?

[Lord Kamall (Con)]

The Secretary of State cannot issue a direction to CCGs or ICBs on any of this using this power. We have been clear that direction cannot be given in relation to drugs, medicines or on treatments that NICE has recommended or issued guidance on. I gave the example of where we want this guidance—with the draft guidelines published for ICBs. The Secretary of State would be able to intervene and ask to see that guidance—

Health and Care Bill

Lord Warner Excerpts

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

[Lord Hunt of Kings Heath (Lab)]

Indeed, we have a rigorous process involving the overview and scrutiny committee, as has been said, plus an Independent Reconfiguration Panel. As the noble Lord, Lord Stevens, said, it is rather like the last debate: before us we have a set of amendments which seek to constrain the power of Ministers, and then an amendment which seeks to remove this power. I am clear that we should try to remove this power, and that this is the best course. It will be very interesting to hear from the Minister exactly why Ministers want to put this burden on them, and what benefit they can possibly see in it.

[Lord Warner (CB)]

My Lords, I want to briefly make clear my support for this group of amendments and try to be consistent with what I said on the previous group. The only amendment which causes me to have pause for thought is Amendment 183. The NHS, perfect in every form of course, has been known to have its arteries fur up occasionally. Sometimes there is a need for scale in some services. I want to mention three or four services where scale, after clinical consideration, is important. Pathology is a good example, where we need to have more scale than many of the local pathology departments. Another one, which the Royal College of Surgeons has advocated, is elective surgery hubs, which may mean taking stuff away from a particular local hospital. Another good example is the issue of stroke specialisation, which is beneficial for patients. I have given you three examples where we do not want to totally neutralise the Secretary of State. Sometimes Ministers have a use; it may be few and far between, but occasionally they have some use. We do not want to say that you cannot ever be a catalyst for change. That seems a bit drastic in Amendment 183, and I ask the noble Baroness, Lady Cumberlege, to think about that, because sometimes scale is important, with clinical advice for the benefit of patients.

[Baroness Walmsley (LD)]

My Lords, I am in favour of surgical excision. I oppose the powers of the Secretary of State in Clause 40 and Schedule 6 to intervene in decisions on reconfiguration of health services. Far be it from me to want to protect Conservative Secretaries of State for Health from themselves, but I warn that if they use these powers they will eventually get the blame.

The noble Lord, Lord Stevens, gave a number of very good reasons why this clause should be deleted from the Bill. My reason is somewhat different. I think these powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding from a proposal, let us say, to build a new school or improve infrastructure in a particular constituency have got them into trouble. We have heard allegations made against Government Whips by Members of Parliament of actions which could be criminal offences of bribery. It is alleged that, in seeking to ensure support for their leader, they are threatening Members of Parliament that funding for their projects, which have already been declared to be in the public interest of their constituents, will be withdrawn unless they behave in a certain way, so political considerations would trump public interests.

Like the former Member of Parliament to whom the noble Lord, Lord Hunt, referred, all politicians know that the provision of a new hospital or clinic or, on the contrary, the closing of a healthcare setting are very sensitive considerations in elections. All parties ensure that the voters know their views on these matters at election time and in between elections. The Prime Minister knows this. Why else would he put such emphasis on his promise of 40 so-called new hospitals by 2030 if this were not the case? It makes a good headline, even if we know that some of them are not new and some of them are not hospitals.

The powers of reconfiguration sought by the Secretary of State in Clause 40 would give the Government the ability to change the decisions of those put in place locally and well qualified to make them in a non-partisan and needs-based way, thus allowing the Government to wield unwarranted political power. It is probable that this Government would not be able to resist doing so, for the wrong reasons, and it is incumbent on all parties to stop them by deleting Clause 40 from the Bill. Indeed, I do not think that I would be in favour of giving these powers to any Government of any political party; they are just too liable to be misused.

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[Lord Hunt of Kings Heath (Lab)]

There are a lot of marginal seats, and there is going to be a general election in two and a half years—maximum. A lot of the reconfiguration proposals usually relate to smaller places with smaller hospital or DGHs because their viability is often in doubt. So it is quite clear to me that any MP, particularly government MPs, will immediately take any threat of that sort to their local services to the Secretary of State. That will not speed up the process; it will guarantee the opposite. The signal that I would get from the health service as a result of this is: “Forget reconfiguration proposals until after the next election because you ain’t going to get any through.” That is why we think this is a disastrous move.

When the Minister says there will not be many interventions, that is just nonsense. The moment that MPs know the Secretary of State has the power to intervene at any stage, they will be knocking at the door of the Government, who will wilt under that pressure, because that is what happens. Then they will go back and say, “We need to have an independent review of that before you start the process.” There are so many dodges available to a Minister, if you want to dodge making a hard decision in this area, that it will completely paralyse the health service. That is why this debate is so important because it is related to the last one; the result of Ministers gaining direct control will be to delay and reverse, and I am afraid that the hopes that Ministers have for a dynamic, forward-looking health service will come to nothing.

[Lord Warner (CB)]

My Lords, following on from the noble Lord, Lord Hunt, I ask the Minister to consider the point that I was trying to make about Amendment 183. The Minister and the Government have got this the wrong way round: if he is actually concerned about levels of efficiency, the supply of services and the issue of scale—and the issue of scale is a very real one—then he needs to be at the front of the process, not the end of it. It is a bit late in the day to be having these ideas about scale in a particular set of services when you have gone through the agony of the local consideration of reconfigurations. As a Minister, it would be better, if I may say so, to set out your views at the beginning with the clinical arguments for why this makes sense. Doing it at the end is bound to lead to suspicions. That is why I was asking the noble Baroness, Lady Cumberlege, to look at the wording of Amendment 183. I say to the Minister that he is putting his involvement at the wrong part of the process.

[Lord Kamall (Con)]

We agree with the noble Lord. We do not want to waste time by being able to come in only late in the process. To avoid egregious uses of power, all uses are subject to public law principles and challengeable by judicial review.

We agree with the intention behind Amendment 216 but we do not feel it is necessary. Commissioners, NHS England, NHS trusts, NHS foundation trusts and a range of other bodies are required to have regard to the NHS constitution in performing their functions, as set out in Section 2 of the Health Act 2009, which goes wider than this proposed duty that would apply to the Secretary of State.

In addition, the NHS pledges that all staff will be empowered to put forward ways to deliver better and safer services for patients and their families. If a service change is material, the commissioner has a duty to consult with all impacted parties to understand their views and these existing engagement duties can encompass NHS staff. Anyone can respond to a public consultation and there is well-established process and precedent for taking these views into account. Beyond the pledge itself, it is the responsibility of an employer to ensure that staff are appropriately engaged and involved in service change decisions. The need to engage and consult is contained within organisational policies and relevant employment legislation.

I have heard what a number of noble Lords have said, especially former Ministers, Secretaries of State and others involved in the system, and it is quite clear that I need to go back and consult further. In that spirit, I ask that noble Lords do not move their amendments, and hope that I have explained the reasons why.

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[Lord Warner (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Forsyth. This is an unusual position for me; I do not remember in 22 years ever having supported an amendment tabled by the noble Lord. I am beginning my third decade in this House supporting change in the law. Who knows? I may have reached my fourth decade before we have got there.

During this time, I have watched many parts of the English-speaking world use their Parliaments to debate these issues and change their laws. This has now happened in Canada, New Zealand, five Australian states and 10 states in America and the District of Columbia. These changes have not been rushed through; they have been measured, considered and debated, and the populations have been consulted in the way described by the noble Lord, Lord Forsyth. It cannot be said to be right, if we live in a democracy, if the only way forward on an issue that is of great personal concern to many people is having to rely on Private Members’ Bills, which can be treated to wrecking amendments which make it almost impossible to progress a discussion and debate this issue. In the statesman-like way that the noble Lord, Lord Forsyth, has set this out, we should be impressed by the need to facilitate this debate within Parliament, as other countries have managed to do both in the English-speaking world and across Europe. Even countries such as Spain, with strong religious traditions, have allowed this debate to take place and changed their law as a consequence.

At the end of the day, this issue comes down to being a matter of personal choice. It is right that Parliament should be able to debate that issue of personal choice and facilitate the exercising of it by many people who are terminally ill if they wish to do so. They are not forcing anybody else down that path—it is a personal choice; it is a personal decision. Changing the law does not mandate anybody to do this; it is left to the individual, within the safeguards provided for in the legislation, to exercise that personal choice.

I have also added my name to Amendment 203 in the name of the noble Baroness, Lady Meacher. She makes it clear in that amendment that end-of-life issues are a matter of personal choice. We make many speeches in this House about patient choice, so why is it wrong to have more patient choice at the end of life when we have a lot of patient choice during it? We need to focus much more on patient choice. I support Amendment 203 as well as Amendment 297.

[Baroness Young of Old Scone (Lab)]

My Lords, I think I am about to score a historic double whammy. I thought that I had stayed tonight to let some momentous words cross my lips that I never thought would do so—that is, I agree with everything that the noble Lord, Lord Forsyth has said—but, and I never thought I would say this, I also agree with every word that the noble Lord, Lord Warner, has said. How is that for a double whammy?

I do not want to delay the Committee, because it is late, but let me touch briefly on Amendment 203 in the name of the noble Baroness, Lady Meacher. I sat on the Commission on Assisted Dying, and we heard endlessly and quite heartrendingly from medical professionals, patients and relatives of those who had already passed away about the inadequacies of the discussion about choices at the end of life. At the moment, the legislation makes it almost impossible for healthcare professionals to open up that sort of conversation—we are not talking necessarily about assisted dying; we are talking about any sort of choices at the end of life. The amendment in the name of the noble Baroness is therefore much needed.

However, for heaven’s sake, on Amendment 297, the whole process of Private Members’ Bills is doomed to failure for something as important as this, which has been tackled by legislatures across the world. Yet we are frozen in this grand old Duke of York scenario, where we march up to the top of the hill at Second Reading on a Private Member’s Bill, then absolutely sod all happens after that and we all march back down again. We cannot continue to do that on a five-yearly basis for ever. This is not asking the Government to nail their colours to any particular side of the debate but simply to open up parliamentary time. I very much commend the noble Lord, Lord Forsyth—good grief— on his foresight in seeing this opportunity.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I rise to make just a short contribution. I listened carefully to the words of the noble Lord, Lord Forsyth, for whom I have great personal respect. I watched him in another place and saw his great ability in debate, and I have no doubt whatever that he has much to contribute to the debates here in this House and will do so in the future. However, I have to say that I profoundly disagree with him in this case.

The noble Lord said that he had changed his mind on assisted suicide. He mentioned personal circumstances within the family and then he said that he thought about his own personal circumstances if he were in that position. I do not believe that that is the best way to bring legislation forward, based on your own personal circumstances; you are therefore bringing legislation in for the whole country to meet your own personal circumstances. I have empathy with him and understand the personal circumstances he has had to face.

I say to the noble Lord that I come from a different perspective. I have personal experience of the awful pain of the suicide of a loved one. I know what it is for a family member to come to their wits’ end because of their personal circumstances, where cancer had ravaged the whole family circle, even taking a little child of four, and they could not face life any more. Were they terminally ill? I tell your Lordships, they had died within because of their circumstances. Were they mentally competent to make a decision? They made a decision, and I am sad to say that the rest of the family circle has had to live with that awful pain within their hearts.

This is not an easy situation. I understand that we say that we are not talking about the particulars of a Bill, but this amendment says:

“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill to permit terminally ill, mentally competent adults legally to end their own lives with medical assistance.”


That is certainly assisted suicide. I heard other noble Lords saying that this was simply asking for parliamentary time to have a debate. We had a long debate in this House on the Bill in the name of the noble Baroness, Lady Meacher, which is in fact progressing.

I notice that the noble Lord is shaking his head. I have to ask this question. Numerous Private Members’ Bills are going through this House and are progressing, perhaps at a slow speed. Why is this one different from the others? Do we ask the Government simply to pick this one out and forget about all the rest, or are we saying that they should do it in a timely fashion? Let the Government give this special time to those that are already in that process, and when it comes to the Bill in the name of the noble Baroness, Lady Meacher, time can be given for that to progress and to provide a Bill.

Over these past two years this whole nation has been fighting to save life, not take it. We have spent billions of pounds in trying to do that and I pay tribute to the health service for all its efforts. An assisted suicide law, however well intended, would alter society’s attitude towards the elderly, the seriously ill and the disabled, sending a message that assisted suicide is an option that they ought to consider. Society should not allow a double standard in allowing some people an assisted suicide while we do all we can to prevent young people and other vulnerable groups committing suicide—

[Lord Warner (CB)]

I am sorry to interrupt the noble Lord but is he aware that in all the countries I cited in my speech, parliaments played a facilitating role in changing the law and consulting their citizens on these kinds of changes? Is it not a bit strange that so many English-speaking and non-English-speaking democracies that we all respect managed to go down that path with the help and facilitation of their own parliaments?

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, there is a process that the noble and learned Lord, Lord Mackay, outlined tonight for how this issue could proceed. I believe we should bow to his legal and learned knowledge concerning this matter.

I think society should give everything financially and provide palliative care to those who are in need at the end of life. I trust and pray that this House will send a clear message that we will do everything to ensure people live with decency and honour rather than telling them that we will help them to die.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, it is a pleasure to follow my new room-mate, the noble Baroness, Lady Hollins, and I agree with every word that she has just said. I also agree with the other speeches that we have heard in favour of the various amendments. I pay particular tribute to the noble Baroness, Lady Pitkeathley, for her tireless campaign over 40 years on behalf of carers.

I have added my name to Amendment 219 but I will focus on my Amendment 269, which focuses on young carers. I am grateful to the three noble Baronesses who have added their names. Might I be allowed a word on one line in Clause 80, whose future I thought we were debating in this group but which has now been incorporated into the Bill? The line is:

“The Community Care (Delayed Discharges etc) Act 2003 is repealed”.


Noble Lords with long memories may remember that Bill. At the time, I said it was the worst I had seen in 30 years. Instead of doing what this Bill seeks to do —to bring together health and social care to facilitate closer co-operation—it established an antagonistic relationship between the NHS on the one hand and social services on the other by enabling one part of the public sector unilaterally to fine another part. It was a friendless piece of legislation, heavily criticised in your Lordships’ House, as the noble Lord, Lord Hunt of Kings Heath, who had the misfortune to pilot it through, will doubtless confirm.

At the end, my noble friend Lord Howe said, nearly 20 years ago:

“On a more philosophical level, we need to ask ourselves whether this system of financially driven imperatives is what we want to see pervading the fabric of our public services wherever the NHS and social services interact. I am clear that it should not”.—[Official Report, 17/2/03; col. 929.]


How appropriate that, 20 years later, my noble friend helps to put the final nail in the coffin of that Bill. However, it had one redeeming feature: the obligation to assess prior to discharging a patient from hospital. However, as drafted, as other noble Lords have said, the proposals could have the unintended consequence of weakening protections for children who look after adult relatives.

My amendment is about young carers and is shaped by my experience when in another place of working with Andover Young Carers. Children barely in their teens were combining education with caring for disabled parents. The organisation was based in a small bungalow on a local authority estate, and it did heroic work, forging closer links with schools and children’s services. Some of the children spent more than 30 hours each week looking after parents and elderly relatives—almost the equivalent of a full-time job—as well as often having caring responsibilities for younger siblings. They cooked, did the housework, shopped, collected prescriptions, leaving little or no time to enjoy their childhood. The noble Lord, Lord Howarth of Newport, spoke movingly about the work of young carers in Kingston.

According to research from 2018, as the noble Baroness, Lady Wheeler, told us, there are more than 800,000 young carers in the UK. Recent figures show that 180,000 children in England who care for an ill or disabled relative are missing out on support, simply because they are not known to their local authority. Hence the need for this amendment which ensures that young carers are identified before adults are sent home from hospital to be looked after by them. If contact with adult carers is necessary, as we have heard, it is doubly necessary for young carers.

This is because we have clear evidence from Barnardo’s—I am grateful for its briefing—which shows that adults are being discharged from hospital into the care of children, without first making sure that these children are aware of their new responsibilities and that they have the support necessary to enable them to discharge them. I fear this is set to only get worse, placing more caring responsibilities on small shoulders, unless the Bill as currently drafted is amended.

The Care Act 2014 gave a young carer under the age of 18 the right to a needs assessment and placed a duty on local authorities to take reasonable steps to identify young carers in their area who may need support. Yet, in its report Still Hidden, Still Ignored, Barnardo’s found that young carers were still slipping through the net. Its finding is reinforced by the latest CQC survey, which found that 21% of people did not have their family or home situation taken into account when staff prepared them for discharge, a point referred to in the excellent paper which many noble Lords received today from Dr Moore at the University of Manchester.

This amendment places an obligation on the NHS to ascertain whether a patient will be cared for primarily by a young carer and, if so, to contact the local authority concerned for an assessment and the necessary support. This will not delay discharge but would ensure that hospital staff ask if a child under 18 will be the primary carer. If the answer is yes, the hospital should contact the relevant local authority which will ensure that a needs assessment is carried out.

I know the Government have made positive steps to ensure that the needs of young carers are recognised in the guidance which will accompany this Bill, and for that I am grateful. However, without a clear duty on hospitals to establish whether a patient is being discharged into the care of a child, the current situation is likely to continue. Guidance is worthy, but sadly not definitive. Therefore, the pathway for young carers to get the local authority assessment they are entitled to needs to be strengthened and here the health service is the key missing link. I speak to this amendment today because young people who care carry huge responsibilities and we must, as a society, do more to ensure they can live the flourishing lives they deserve.

[Lord Warner (CB)]

My Lords, I strongly support all the amendments in this group. The noble Lord, Lord Young, has been so persuasive and I endorse what he said about young carers. As someone who has been involved with carers for almost as long as the noble Baroness, Lady Pitkeathley—I now regard her as my general in these matters—I want to focus on Amendment 221, to which I have added my name.

It is worth remembering that this Bill is being considered in the context of adult social care funding having been starved, in my view, by three successive Governments. Even when huge sums of money are being raised for health and care through a national insurance levy, social care has to wait its turn. A bit like Oliver Twist, it is at the end of the queue—hopefully there will be some money left in the coffers after the NHS has removed a substantial part of it. That context is very important.

In that context, I find it surprising that somebody somewhere in the Department of Health and Social Care thinks it is a good idea, as the noble Baroness, Lady Pitkeathley, said, to weaken the protections for carers. It is worth bearing in mind that one in five carers now waits over six months for an assessment. In a survey from last November, only 24% of carers had received a carers’ assessment or reassessment in the past year. This is the context in which officialdom and Ministers have thought it a good idea to weaken the protections provided in the 2003 Act. There may have been some weaknesses in that Act, but this was not one of them, as it provided for the NHS to undertake these assessments before people were withdrawn. The noble Lord, Lord Hunt of Kings Heath, is not in his place, but he was the person who took that Bill through and achieved support for that protection for carers.

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We also know that know that local authorities are already under existing duties to assess and meet carers’ needs for support. We are concerned that duplicating these duties by placing them on the NHS in addition to local authorities might not offer a clear benefit to carers, and this should be done at the ICB level. The draft hospital discharge guidance that I mentioned is clear that people should be discharged on to the right pathway, not only on the discharge to assess model but whatever is the most appropriate model.

[Lord Warner (CB)]

I am sorry to interrupt the Minister’s flow. I have been listening very carefully to this. What I do not understand is what happens if there is not enough resource in the local authority. Local authorities have had pretty poor treatment over the last decade compared with the NHS. If there is not enough resource to either do an assessment or meet the needs of that assessment, does it then fall to the NHS to plug the gap if it wants to get the person out of hospital? We would like a little more clarity on that particular aspect.

[Lord Kamall (Con)]

I thank the noble Lord for his question. The goal is to make sure that the NHS and local authorities work better together. The noble Lord talks about resources. One of the reasons for the levy—whatever one thinks of it—is to help plug that gap and to make sure that there is more money going into social care as well.

Turning to the points made about the term “carer”, we believe that the term is used to capture the whole spectrum of carers, including children and adults who care, unpaid, for a friend or family member. By not imposing a statutory definition, we avoid inadvertently excluding groups, and ensure that ICBs and NHS England promote the involvement of all types of carers and representatives.

Turning to the last amendment in this group, existing legislation already requires local authorities to carry out an assessment of need for all young carers upon request or on the appearance of need. This assessment must consider whether it is appropriate or excessive for the young carer to provide care, in the light of the young carer’s needs and wishes. Indeed, as some noble Lords have said, sometimes what happens is that the hospital may decide it is appropriate but those who are supposed to be doing the caring at home do not feel they have the ability.

We hope that under this, as part of the discharge planning, the current discharge guidance can set out any considerations that should be given to young people in the household who have caring responsibilities. We want to strengthen current processes in respect of young carers too. We are also working with the Department for Education to ensure that protections for young carers are reflected in the new guidance, including setting out where young carers should have a needs assessment arranged before a patient for whom they provide care is discharged, or as soon as possible afterwards.

Given the comments from noble Lords, especially the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Warner—sorry, I should say, General Pitkeathley and Major Warner—clearly there are still some concerns over how this will work. It would be worthwhile having some more conversations on this issue to better understand how we see integrated care working, where there may well be gaps in our understanding and whether we can help to close the gaps between the two sides.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

Moved by

[Lord Warner]

225ZA: After Clause 80, insert the following new Clause—
“Regard to the reports of the Office for Health and Care Sustainability
The Secretary of State, in discharging his or her responsibilities under Part 1 of this Act, must have regard to the reports of the Office for Health and Care Sustainability established under section (Office for Health and Care Sustainability).”

[Lord Warner (CB)]

My Lords, I rise to move Amendment 225ZA and will also speak to Amendment 285. I thank the clerks for their help in devising Amendment 225ZA, which enables us to discuss Amendment 285, which I regard as important, today. Amendment 285 is the substantive amendment I shall address.

The amendment is important because it places in legislation recommendations from the 2017 report by this House’s Select Committee on the Long-term Sustainability of the NHS and Adult Social Care. I am delighted to see two members of that Select Committee, the noble Lords, Lord Ribeiro and Lord Scriven, here this evening. Unfortunately, the Select Committee’s chairman, my noble friend Lord Patel, who did an extremely good job, is unable to be here, but I believe he will join my noble friend Lord Kakkar to discuss a less detailed amendment, Amendment 286, which tries to achieve the same objectives as Amendment 285. For the record, the two Select Committee recommendations which are germane to this amendment are recommendations 33 and 34, found on page 98 of our report. In the interests of time, I will not spell these out, because they are effectively set out in Amendment 285, but I will draw the Committee’s attention to some of the evidence which caused us to make these recommendations.

On page 84 of the report there is a section on:

“A culture of short-termism”.


This starts at paragraph 322 with the sentence:

“Our inquiry uncovered endemic short-termism in almost every area of policy making.”


We made it clear on that occasion that the noble Lord, Lord Stevens—then plain Simon Stevens, the chief executive of NHS England—was “the most notable exception” with his Five Year Forward View.

The committee was very concerned about the approach of what was then the Department of Health, particularly the evidence given to it by its Permanent Secretary, now Sir Chris Wormald, who remains in post today. I draw the Committee’s attention to paragraph 324 of our report, which sets out what the Select Committee made of the Permanent Secretary’s evidence:

“Although we questioned him at length on the work taking place in his department on the long-term future of the NHS, revealingly, we were not provided with any concrete examples. Moreover, he questioned whether this was work that should even be taking place in his department”.


We concluded at the end of paragraph 324:

“We were unconvinced by the answers he provided and we are left with no choice but to conclude that the Department of Health is failing to plan for the future”.


I have been in this place for 22 years. This was a pretty damning conclusion for a cross-party committee of this House to come to. The Permanent Secretary of the government department with the biggest budget after cash benefits, and which would be spent on the biggest public or private workforce in the country, was saying that it was not the department’s job to do long-term planning. This seemed to have been left to NHS England’s chief executive, who had been given no responsibility for securing the workforce he needed or settling the pay and conditions of service for that workforce—matters determined by the government department, whose boss thought it was not his job to do any long-term planning. The Select Committee was rather stunned by this view of what the job of a government department was.

Is it any surprise that your Lordships’ Select Committee made the recommendations it did? I see no evidence that much has changed for the better since the Select Committee’s report. When the noble Lord, Lord Stevens, spoke in the debate on the amendment on the workforce tabled by the noble Baroness, Lady Cumberlege, he seemed to confirm, if one looks back at Hansard, that this was the case, with his account of endless delays before any kind of workforce future plan saw the light of day.

The workforce amendment tabled by the noble Baroness, Lady Cumberlege, has much to commend it, as I said when we debated it. It is certainly a big improvement on the current situation and puts statutory pressure on the Secretary of State to produce regular workforce plans. My worry is that the plan that that amendment would produce may not be long term enough or closely tied to funding streams. Moreover, any planning done under the noble Baroness’s amendment would still be subject to Whitehall negotiation and Treasury and No. 10 interference if it had data or messages that were politically uncomfortable at the time of publication. I had serious doubts about the wisdom of leaving health and care workforce planning totally in the hands of elected politicians and their civil servants. I say that having been a senior civil servant and a Minister.

Two recent stories in the Times have reinforced my view. When we discussed my Amendment 72 on 24 January, I raised the matter of the front page headline in the Times of 18 January: “Javid plans NHS revolution modelled on academy schools”. I thought this was odd, given that we have not completed the legislation on this NHS reorganisation. The noble Baroness, Lady Chisholm of Owlpen, did not totally reassure me when she said in response:

“No further plans have been agreed.”—[Official Report, 24/1/22; col. 37.]


I therefore assumed something odd was going on.

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[Lord Warner (CB)]

My Lords, that is pretty much what I expected from the Government Front Bench, so no surprises there.

I am grateful to noble Lords who have spoken in support of Amendment 285. I also support Amendment 281, though I did not mention that in my opening remarks. I want the Government to reflect on the fact that, when the person who had been Secretary of State—for what was then health only—for five or six years was released from office, and what I might call the adrenaline of office had calmed down a bit, he was able to give a pretty lengthy interview in the Times in which he effectively said, “I should have accepted that recommendation”. He explained that it was an amendment which would keep Governments honest—those were his words, not mine. This was someone who had been through the mill, had seen it all, had had to deal with these issues and had had a damascene conversion when he had left office. It is a bit like when Permanent Secretaries suddenly become supporters of freedom of information legislation after they have collected their pension.

We cannot ignore the fact that a person who actually did the job saw benefit in having this kind of body. If the Government are resting their case for long-term planning on Health Education England, I am more than ever reinforced by this amendment, having listened to my noble friend Lord Stevens of Birmingham telling us what went on in the workforce planning that he had experience of. It is a pretty unusual situation to be running a big organisation in which two-thirds of the budget is spent on staffing and workforce issues, where the guy or gal in charge of it is not actually responsible for the long-term planning of the workforce. That is an extraordinary system that Stuart Rose—the noble Lord, Lord Rose of Monewden—and others have found very difficult to understand.

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[Lord Lipsey (Lab)]

My Lords, this is a rather strange grouping. In the earlier debates we were dancing at times on the heads of pins, and now we have the noble Baroness, Lady Greengross, with her proposals for a lower cap, and the noble Baroness, Lady Bull—with whom I agree—largely exempting people of working age with a disability, and it is difficult to cover the whole field. However, I will attempt to give a small synopsis leading up to my own amendment, which is about the taper.

I first declare an interest as an unremunerated president of SOLLA, the Society of Later Life Advisers—the people who really know a lot about this stuff. I should also apologise for not having participated in the Second Reading debate but, like the noble Baroness, Lady Bull, I was in a crucial meeting of our House’s Communications Committee, which made doing so impossible.

On Mondays, Wednesdays and Fridays I am a strong supporter of the cap as recommended by Andrew Dilnot, for the obvious reason that it ends an unfairness to people who happen to live for a long time and therefore lose their assets. Unfortunately, in 54 minutes’ time I shall go back to the way I am on Tuesdays, Thursdays and Saturdays, which is to be broadly opposed to a cap of the kind that has been proposed. That is for two reasons. First, all parties should take into account that it is wildly expensive—some £3 billion, which will rise as the number of old people rises. I would much rather that that money was spent on better care for those who need it than on paying for the rich. Do not be in any doubt: whatever gloss is put on it, half the people in care are paid for by the state now, so all the expenditure on the Dilnot cap will go on the other half. A lot of them are not rich people—some of them are quite modestly wealthy—but it is the richer half of the population that this cap supports. As a socialist, that is why I cannot go along with it—at least on Tuesdays, Thursdays and Saturdays. It is not too long until next Sunday, when the good Lord will advise me on what final position to take.

Starting from that scepticism about the concept of a cap, I will say one thing about Dilnot’s proposals. Whatever you think, whether you are for it or against it, the case for the cap is much less strong than it was when Andrew Dilnot proposed it in his brilliant report, and for three reasons. First, no one now has to sell their house to pay for care. They did then but they do not now: they can borrow the money from the local authority and pay it back afterwards. Secondly, house prices have risen by 30%, so many people have more assets they could spend on their own care without leaving themselves with no assets to leave to their children. Thirdly—an important point which has been wholly missed so far in the debate—the private sector, belatedly but slowly, has started to get its act together about this. There are two relevant products: equity release, which enables somebody to get some money out of their house to pay for their care without selling the house, leaving plenty for the children; and, more importantly, annuities and deferred annuities, which are paid from the point of care in the case of an annuity, or after you have been in care for two years or so in the case of a deferred annuity. I was amazed to read through the impact assessment, which went through every possible argument on caps and alternatives to them, and not see a single reference to deferred annuities. They are part of a holistic solution.

I ask the Minister in all sincerity—I know he is very open to suggestions—that, before this Bill completes its passage and, preferably, before we have decided whether to leave Clause 140 as part of the Bill, we look at the role that the private sector can play in supplementing a cap, for example in allowing people to pay for better care for themselves, or indeed possibly replacing it with a less regressive way of paying for care. It should be looked at; it has been ignored since Dilnot, and the case that Dilnot then made against it is not quite the same today, so it really deserves to be looked at.

Finally, on my own amendment on the taper, I am very distribution-minded about this cap. What motivates me is that I hate taking scarce state money, which is needed to provide decent services for people who cannot provide decent services for themselves, and spending it on a subsidy for “Disgusted of Tunbridge Wells”. This seems wrong to me. I would love to see the welfare state expand. I am rather shocked to find a Conservative Government seeking to expand it in order to help the better-off at the cost of much more public spending. The better-off should be able to look after themselves.

If we are to have a cap, we should make it as good in terms of redistribution as we can, with less favouring of the rich than is the case with the present cap. That is why I brought in another thing that has not been mentioned in the debate: the taper. At the moment, the taper does not matter much; it applies in only a very narrow band of incomes. However, under this system, the taper will apply to assets of between £20,000 and £100,000. For every £250 you have in the bank, you lose £1 a week in benefits. That will hit the people who have between £20,000 and £100,000 in assets. They are not rich; they are the kind of people I want to help, but they are being struck by this taper.

Of course, addressing this will cost money, and I am reluctant about that. For every £50 you put on the £250 for the taper, it would be about £200 million a year; it is not nothing, but it is less than the £1 billion or so that would be lost if Clause 140 does not stand part of the Bill. If the Government want to show that they are interested in redistribution, as well as pleasing their richer supporters, I ask them to look at the taper as an alternative. I saw the vote in the Commons: Clause 140 is down the pan. It is not going to win. If he takes it back to the other place, he will be voted down, so it is not going to happen. Therefore, we all, particularly in your Lordships’ House, need to use our imagination to find alternatives to the proposal that the Government have put forward. That proposal will not pass this Parliament in its present form and in its entirety. Working with the Minister, we need to find a better proposal that meets the various considerations I have put forward and, in particular, uses the private sector and does not protect the assets of just the rich.

[Lord Warner (CB)]

My Lords, a little belatedly, noble Lords might like to hear from one-third of the Dilnot Commission; I declare my interest as that third. I have to say that our ideas have been presented in a whole variety of ways over the last 10 years. This evening, they have been presented fairly accurately, which is refreshing.

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I shall briefly touch on some of the other amendments. Amendments 233 and 234 work in conjunction to require the Secretary of State to specify in regulations that people entering care under 40 will not face personal care costs in their lifetime. There have been previous iterations of the policy, including different caps for different ages, but we did not feature them because they were considered unfair. For example, someone entering care the day before their 40th birthday would benefit from a personal care cost cap of zero and free personal care for their lifetime, but a person entering care after their 40th birthday would not benefit from the same free personal care by a two-day margin. We considered that a cliff edge of that magnitude would be unfair. I have also heard—

[Lord Warner (CB)]

The proposition in relation to the age of 40 was in the report; it has been around for 10 years. It is a bit late in the day to be coming forward with the suggestion that it was an inadequate proposition from the Dilnot commission. Ten years is a long time to discover truth.

[Lord Kamall (Con)]

Perhaps I may move on to Amendment 235, on setting the cap based on the recommendations of the Commission on Funding of Care and Support and moving the implementation date by a year. For local authorities to make a change of this magnitude this year is undeliverable. They have told us that the original plan to implement for October 2023 is already an ambitious target.

Setting the level of the cap has been a fine balance. The Government have had to consider the longer-term cost of reform and what proportion of the future levy revenues to earmark for this purpose and other purposes. Retrospectively to impose a cap on care costs for everyone in the care system and to include their care costs during their lifetimes in the cap calculation is unfeasible.

I would like to have some further conversations with the noble Lord on Amendment 236A, if that is possible. I thank him for some of his suggestions to date. There is a real debate about how feasible a private solution is. I remember in an earlier debate the noble Lord rightly chastising me and saying that it was rather embarrassing for a Labour Peer to propose to a Conservative Peer a private sector solution. That hurt—but I completely understand. If it is possible, I personally would have been open to it, but the Government maintain that it is not feasible. We will probably need some more discussions.

This clause clearly needs a lot more discussion between now and Report. I could go into more arguments but, given that there was a lack of debate in the other place, I think that it needs more debate and more consideration overall. I am very happy to have more round tables with the Bill team, the charging team and noble Lords to explain the case, and for noble Lords to decide whether it is an acceptable case or still to disagree with it. With that in mind, I hope that noble Lords feel sufficiently reassured not to press their amendments at this stage and to allow the clause to stand part of the Bill. I beg leave to withdraw my amendment.

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[Lord Warner (CB)]

My Lords, I will speak briefly in support of Amendment 289. It is worth remembering that the NHS used to have convalescent beds—I went to one as a boy, recovering from peritonitis. These have disappeared over time. When in the 1980s and 1990s nursing homes were set up in increasing numbers across this country, we found that they ended up on the means-tested side of the boundary between health and adult social care. In a way, the NHS lost out because these resources were on another side of the boundary, which was defended with jesuitical force to make sure that people did not drift into the NHS who might get care that was not means tested but free. We have ended up shooting ourselves quite badly in the foot by allowing these services to drift out of the NHS and into the adult social care system.

Shortly after the 2010 election, I facilitated a proposal from a few large nursing home groups to take recovering patients from hospital to free up acute hospital beds. This was rejected by the Treasury which thought it would lead to large numbers of people who were being means-tested getting free NHS care. In fact, they were two separate groups and the NHS was punishing itself by keeping people in beds in the NHS at high cost. We know that about 25% of the people who are in acute hospital beds should not be there—they need not be there clinically—but they are holding on to those beds because there is nowhere else for them to go within the NHS system. We have ended up unnecessarily blocking beds and spending a lot more money because we cannot put in place a service that the NHS badly needs. I suggest to the Minister that we revisit this issue in the interests of the NHS and its patients.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords for the debate this evening and for the amendments put forward, which have focused on what I would call a complete continuum of care and support where people need it most; my thanks also to the noble Baroness, Lady Finlay, for leading the debate. What we hear tonight is the need to drive up standards and availability in what can be accessed for reablement and rehabilitation.

As the noble Lord, Lord Warner, reminds me, I fear that, over time, we have perhaps lost a broader range of provision, and the word “convalescence” has somewhat left our vocabulary. The amendment tabled by the noble Baroness, Lady Greengross, to ensure that accommodation is available to people who are in rehabilitation—people who no longer need to be in a hospital ward but cannot return to their own home—is creative and practical. I hope that the Minister will look at exploring that idea.

Health and Care Bill

Lord Warner Excerpts

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

[Lord Warner (CB)]

My Lords, very briefly, I support Amendments 171 and 178 in this group, spoken to so ably by the noble Baroness, Lady McIntosh, and the noble Lord, Lord Hunt. I do so as a former pharmaceuticals Minister and a former NICE Minister. The rather boring thing about all this is that the postcode lottery issue was alive and well when I stopped being a Minister, 15 years ago. It has continued to flourish throughout that time. The noble Lord, Lord Hunt, does not exaggerate in any way how the NHS is quite creative at finding ways around implementing speedily some of the drugs and medicines recommended by NICE.

For a long time, part of the problem has been—Amendment 178 starts to make a move in the direction that I think has been lacking—that we simply do not monitor enough what has happened to NICE recommendations and the take-up of new medicines. It is not really built into the regulatory system. If we are serious about inequalities—I have listened to many of the debates on inequalities today and previously—and levelling up, access to new medicines is pretty important. I have a terrible suspicion that, if we looked around very carefully, we would find that the same parts of the country, year in and year out, are not taking up the medicines as speedily as others. The reason I say this is that we know from the regulator’s evidence that the financial and clinical underperformers are, much of the time, the same places, year after year. I suspect that these are many of the places we need to look at if we want to tackle the postcode lottery of NICE recommendations.

[Lord Lansley (Con)]

My Lords, I join the debate briefly to add my thanks to the Government for the amendments on research that they have brought forward in this group. It is extremely helpful, as the noble Lord, Lord Kakkar, said, to entrench the concept of a research culture inside the NHS. In our various ways and guises, we have all encountered some of the difficulties of diffusing innovation and the take-up of new medicines in the NHS.

The point was made very well by the noble Lord, Lord Hunt of Kings Heath, but he did not say why the NHS does not adopt new medicines as rapidly as some other European systems have. I do not think we have more conservative clinicians than other countries, but we do not have a third-party payments system. We do not have a system whereby the patient can ask “What about this?”—these days, increasingly, they do—and the clinician can say yes, and pass the bill to somebody else. Instead, our system centrally determines the extent to which new medicines will be available. We have a particular requirement in the National Health Service for a system which looks for areas where there is value in innovation, disseminates it, takes it up and makes it available to patients.

I make two other points. One is to say thank you, as I am not sure I will get another opportunity to do so. We had substantive discussions about rare diseases; the noble Lord, Lord Sharkey, in particular spoke very well and fully about the needs involved, and the Government published their England Rare Diseases Action Plan yesterday. On orphan drugs, that will give significant additional impetus to the availability of treatments for those with rare diseases. I very much welcome that.

Secondly, Amendment 178 in particular is interesting. I do not necessarily advocate that we adopt it, but it asks the Government do something that they generally have not done and ought to do, which is to come back to the issue of access to medicines and treatments—and, I would add, to medical devices—and ask how well we are doing at the process of bringing that into effect and how well our Accelerated Access Collaborative, which is supposed to look at all these things and make them work together, is making that happen.

The beauty of Amendment 178, on which I will add just a little, is that we ought to have a very clear timetable for how we move the system forward. I hope the Government will adopt this. In January 2024, we will have the next voluntary pharmaceutical pricing and access scheme. The industry will be looking, rightly, to arrive at a position where all the initiatives mentioned give patients access to medicines in this country as soon as in any other healthcare system. On that basis, the industry will be prepared to understand that not just the NHS but the Government will look to get some pretty cost-effective prices out of it.

Now I do not happen to think that it is NICE’s job to make that relationship happen. I happen to think that NHS England is increasingly equipped to be a central player in this process. It should sit alongside NICE when it carries out health technology assessments in what is effectively a trialogue with the industry and say, “Well, how can we ensure that the patient has access to this medicine, and at what price? Can NICE act as the referee to establish whether the price and the incremental benefit are reconciled to be cost effective for the NHS?”

We should build that into the system over the next 18 months so that, when we start the new scheme in January 2024, the system is understood to work. It should not depend on large-scale transfers of money, with overpriced new branded medicines on the one hand being recycled back to the NHS to go into the innovative medicines fund on the other. This tracking of money around the system is not the best way to make it happen. We should aim for the industry to be paid what the health technology assessments and the NHS budget requirements mean is a fair price for the medicines it is providing—and that is what the industry should expect.

Everybody should be working to arrive at a position where, when a medicine obtains authorisation—in other words, when it is deemed safe, clinically effective and of good quality—and a clinician recommends it for a patient, the patient should have access to that medicine through the NHS. That is what we are aiming for. It has not always been true, but it ought to be in the future. We need a system that people, including clinicians in the NHS, understand and that supports their ability to prescribe medicines in that way.

Health and Care Bill

Lord Warner Excerpts

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

Finally, whether or not these amendments are pressed, I hope that the Minister will reconsider whether the Goldacre review should be published before the final version of the new NHS data strategy, Data Saves Lives. I welcome the fact that the Goldacre review is going to deal with information governance, but it is important that we should see that before the final version of Data Saves Lives.

[Lord Warner (CB)]

My Lords, I rise even more briefly to support Amendment 116. It is worth reminding the Minister and the House that the Government Statistical Service is independent. It was made so by the Blair Government so that Ministers could not withhold, distort or delay the publication of uncomfortable statistics. Rebukes on dodgy statistics secure public reprimands of Ministers and departments.

The logic of this position is that you do not put the collection or publication of health statistics in the hands of an operational arm’s-length body, particularly because there could be a conflict of interest. That point has already been made. These functions should be left in the hands of an independent non-operational body, which is what the amendment in the name of the noble Lord, Lord Hunt, does. Can the Minister explain why the Government are making this change? My instinct is to be mightily suspicious.

[Baroness Walmsley (LD)]

My Lords, I simply rise to say that I agree with all noble Lords who have spoken and look forward to the Minister’s reply.

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[Lord Lansley (Con)]

My Lords, I will intervene. I was not intending to speak but I was prompted by a recollection arising from the reference to anaesthetists by the noble Baroness, Lady Finlay. I recall that the Centre for Workforce Intelligence produced in February 2015 a report on the future supply and demand of anaesthetists and the intensive care medicine workforce. I have just checked the report, and it projects for 2033 that the number of full-time equivalent staff required will be 11,800, and supply will be 8,000. Therefore, in February 2015, we knew of this set of projections produced by the CWI. It said, among other things, that there should be

“a further review in the next two to three years.”

However, the CWI was abolished in 2016 and its functions were restored, I think, to the Department of Health.

The noble Lord, Lord Stevens, did not refer to this directly, but we must bear in mind the general presumption that there has never been workforce planning, although in certain respects, there has. The report on anaesthetists is only one of a whole string of reports—I could list them, but I do not need to—produced by the Centre for Workforce Intelligence before it was abolished. Their main purpose was to say to Health Education England, “This is the level of education and training commissioning you should be undertaking in the years ahead”. As the noble Lord said in Committee, it did produce a set of proposals; it is just that they were not acted upon.

I just say this: legislation may be the right way to proceed now, but let us not lose sight of what is actually required, which is for Health Education England not to have its budget cut, as happened in 2016, but to have its budget increased and for that budget to be turned into an education and training commissioning programme that delivers the numbers of trained professionals in this country that we project we will need. It is no good saying, “Oh, we’ve never had planning; we passed a piece of legislation.” I am sorry, it could be a case of legislate and forget unless the money is provided and the commissioning happens. There have been organisations whose job it was to do it—Health Education England, the Centre for Workforce Intelligence—but they were not supported, and in one case, abolished.

[Lord Warner (CB)]

My Lords, I support Amendment 111 in the name of the noble Lord, Lord Hunt, to which I have added my name, and Amendment 80 in the name of the noble Baroness, Lady Cumberlege. On Amendment 111, I want to emphasise two points. First, GPs are and have always been the gatekeepers to the NHS. Without GPs, there is less primary care and less access to the NHS. Over 90% of patients access the NHS through their GPs and primary care. If you are unlucky enough to live in an area with a serious shortage of GPs, your access to NHS services is highly likely to be diminished and your health put at greater risk.

My second point is that it follows that a shortage of GPs is also likely to contribute to health inequalities, a topic much discussed during the passage of the Bill. In addition, this is likely to mean that you live in a place which the Government say they want to level up. So, if the Minister accepts the amendment of the noble Lord, Lord Hunt, he will be helping to deliver two government objectives: reducing health inequalities and levelling up. What’s not to like? Who knows—he might even get a promotion out of it.

I turn briefly to Amendment 80, which I support and will vote for if the noble Baroness pushes it to a vote. I want, however, to emphasise two points that follow on a great deal from what the noble Lord, Lord Lansley, said. For too long the NHS has relied on buttressing its inadequate system for training home-grown staff by recruiting from abroad. Brexit and tighter immigration policies have significantly reduced this supply line. It will take long-term planning and consistency of purpose over many years to rectify the health and care workforce supply problems.

My second and last related point on workforce is that the track record of the Department of Health on long-term planning is appalling. It is not just me saying that; it was made absolutely clear in the report by this House’s Select Committee on the Long-term Sustainability of the NHS and Adult Social Care, so ably chaired by the noble Lord, Lord Patel, who unfortunately, as we all know, is laid low by Covid. Those who support Amendment 80 should hear the arguments in the debate on Amendment 112, which would support its implementation. The noble and learned Lord, Lord Mackay, thought that something more elaborate than Amendment 80 was required. That may be the case, particularly for social care, but Amendments 80 and 112 complement each other. They are not rivals or alternatives; they put in place a structure thoroughly independent of government and which requires the Government then to pay attention to what has been independently provided.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, it is clear that there remain huge and serious concerns across the House and beyond regarding how the Bill addresses the chronic staff shortages in our health and care services. I say health and care services, because as we know, the staff shortages affecting the delivery of services are not just within the NHS but felt across the board, in health, care and public health services. While this is a current and urgent issue, future workforce planning will be the single most important factor in limiting our ability to deliver the ambitions we all have for the future of health and social care and importantly, the ambitions of the Bill.

Like many other noble Lords, I have the greatest respect for my noble friend Lady Cumberlege, and if she feels that the current duties the Bill places on the Secretary of State in Clause 35 to report at least every five years are inadequate, then I urge the Government to take note. As my noble friend said when she introduced her amendment, she is not alone: at least another 100 organisations are calling for this aspect of the Bill to be strengthened. I ask the Minister today, therefore: if the Government are not planning to accept the amendment, how do they plan to address the challenges of future workforce? How will they assess the future needs of health, social care and public health services? Previous work has not quantified the workforce numbers needed and we cannot wait for another review.

I have a couple of observations on the amendment itself, which I commend in that it does require the Secretary of State to report on this wider health, social care and public health workforce, unlike the current Clause 35, which refers only to the health service. However, I sound a note of caution, because if we simply assess vacancy rates, or get into the mindset of needing to replace like for like, role and service development, which will be essential to support future health and care services as they evolve, risk being stifled, as my noble friend Lady Harding referred to.

Those who hold much of the data on health and care professionals are not only the royal colleges, as the noble Baroness, Lady Finlay, mentioned, but also the regulators. I note that proposed new subsection (4) of the amendment does not mention health and care regulators, which I think should be consulted, in the spirit of my noble friend’s explanatory statement.

Finally, when describing the system in place for assessing and meeting workforce needs, as training and regulation are UK-wide, I hope there will be a spirit of co-operation between NHS England and the devolved nations to ensure that we are training the right people for the right roles across the UK NHS: this needs to be in any future workforce assessment as well. I also cannot understand why we do not accept that the royal colleges in Glasgow and Edinburgh can help us recruit. That seems completely bananas—that is the technical term. Will the Government accept that we cannot put workforce planning yet again into the “too difficult” box? We need to do more and go further, as my noble friend Lady Cumberlege urges. I accept there are no silver bullets, but the regular publication of independently verified projections of future demand and supply of workforce could, over time, create a sustainable model for improvement that would have a positive impact on both patient care and staff experience.

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[Lord Kamall (Con)]

My Lords, I am grateful to noble Lords for bringing the discussion of workforce planning before the House today. Perhaps before I go further, all noble Lords will want to join me in wishing the noble Lord, Lord Patel, a speedy recovery. He definitely would have spoken in this debate if he had been able to join us. I should also say that I was particularly impressed by the double act of the noble Lords, Lord Hunt and Lord Stevens. Perhaps they will be known in future as the Morecambe and Wise of the House of Lords.

We all agree that the workforce is at the heart of our NHS and social care. It is right to ensure that we have the workforce that we need for the future to keep delivering world-class, safe and effective healthcare. Some noble Lords may not like to hear this, but I remind them that we have a record number of nurses. We continue to look at different ways of recruitment, and in response to Oral Questions I have referred to the way that we are looking at different pathways into nursing for British people. It is also a fact that we have always recruited people from overseas. Indeed, our public services were saved, post-war, by people from the Commonwealth coming to work in public services. I remind noble Lords that now we have left the EU we will no longer give priority to mostly white Europeans over mostly non-white non-Europeans. We will focus on ensuring that we have equality across the world.

I will not repeat what I have said about other issues, but if you are to have workforce growth, which we all want, it must be accompanied by effective, long-term workforce planning. That is why the department has commissioned Health Education England to work with partners to develop a robust, long-term strategic framework for the health and regulated social care workforce for the next 15 years. This includes regulated professionals working in adult social care, such as nurses and occupational therapists, for the first time.

[Lord Warner (CB)]

I am sorry to interrupt the Minister but when I listened to that last statement about Health Education England, I wondered whether he had seen the article in the Economist of 5 February, which shows that the guaranteed forward funding of Health Education England extended to less than a month ahead.

[Lord Kamall (Con)]

I am grateful to the noble Lord because that was a point I was hoping to come to when I lost my line. The budget will be agreed by the start of the new financial year and, as in all previous years, following the outcome of the 2021 spending review, spending plans for individual budgets in 2022-23 to 2024-25 inclusive will be subjected to a detailed financial planning exercise, and it will be finalised in time. We have also commissioned NHS England to develop that long-term workforce strategy and the key conclusions from this work will be set out.

Clause 35 will increase the transparency and accountability of the workforce planning process. Noble Lords referred to Her Majesty’s Treasury. The department is working closely with the Treasury to deliver a bigger and better NHS and social care workforce. The spending review 2021 provides a further £23 billion for the NHS for April 2022 to March 2025 and gives a three-year settlement. It will keep building a bigger and better-trained workforce.

Noble Lords also referred to agency staff. The flexible staffing policy aims to provide sufficient temporary staff to the NHS to meet fluctuations in demand. In 2015 the Secretary of State announced the introduction of several measures to reduce the agency spend, including price caps, procurement frameworks and expenditure ceilings. These have contributed to the NHS reducing spending on agency staff by one-third, but we recognise that there is more work to be done. We also recognise that the health and social care workforces are often spoken about separately, and the department is working to integrate the two workforces, as outlined in the integration White Paper. Noble Lords will recall that, in addition, we have started a voluntary register for care staff, which we hope to move to being mandatory in due course, following a consultation to better understand the landscape of the workforce, and to look at different qualifications and make it a better career.

We know that work on long-term workforce planning at a national level will need to be replicated at a local level. Subject to the passage of the Bill, ICBs should be the vehicle to support that. To guide that work, in August 2021 NHS England published draft guidance for ICBs explaining their central role, ensuring that the health and care system has the necessary workforce to meet the needs of the populations it serves. A copy of this guidance has been laid in the House Library. In addition, the amendments on ICBs’ forward plans and annual reports will require ICBs to report on how they exercise their duty to promote education and training for the current and future workforce.

Amendment 82 refers to safe staffing. The Government are committed to ensuring that we deliver safe patient care and that there are safe staffing levels across the NHS. Safe staffing should remain the responsibility of local clinical and other leaders, supported by guidance and regulated by the Care Quality Commission. The ultimate outcome of good-quality healthcare is influenced by a far greater range of issues than how many of each staff group are on a shift, even though that is clearly important, and it is why the Government are committed to continuing to grow the workforce.

I now turn to the amendment addressing GP distribution. We fully support the intention, particularly as part of our agenda to level up and recover from the pandemic. However, the pandemic’s impact on the workforce is not yet fully understood and the system is moving to meet the impact in new ways. As a result, a review of GP distribution is likely to be premature but, as noble Lords will recall, we have opened new medical schools in areas where there has been a lack of workforce, in the knowledge that many people stay in the areas where they were trained. That is part of our plan to make sure that there is more equitable distribution. We will also use the targeted enhanced recruitment scheme to incentivise trained doctors to work in hard-to-recruit areas.

Health and Care Bill

Lord Warner Excerpts

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

Briefly, Amendments 98B and 98C are intended to ensure that the unions are among the consultees on the likely impact of payment schemes. I am grateful to the noble Baroness, Lady Brinton, for her support for that proposal. The Minister sees no place for unions in setting the terms and conditions of external providers, so it is even more vital that trade union consultation is made an explicit requirement of the pricing process. This is particularly so given that the providers themselves are to be consulted on the prices they are to be offered—in stark contrast to the workers, under the current draft. I hope the Minister will agree to modify these provisions accordingly.

[Lord Warner (CB)]

My Lords, my Amendment 100 requires NHS England to

“conduct a public survey of whether patients have been offered choices about where they obtain treatment and must report to the Secretary of State what action they will take as a result of the survey.”

I am grateful for the support of the noble Lords, Lord Hunt and Lord Lansley, and the noble Baronesses, Lady Cumberlege and Lady Brinton.

Currently, there is no regular survey of whether patients are aware of their right to choose or of how many have exercised it. The last NHS England official survey of whether patients were aware of their choices was in 2015, when just 47% of those questioned said they were aware.

Waiting times vary enormously by geography. Knowing about the right to choose could mean a significant cut in the waiting time for treatment. For example, waiting times for orthopaedic care vary from 89 weeks in Bedfordshire Hospitals NHS Foundation Trust to 25 weeks in the relatively nearby Milton Keynes trust. Recent polling by the Royal College of Surgeons showed that 73% of patients questioned would willingly travel to a surgical hub which was not their local hospital if they could be treated more quickly.

There is no system for monitoring whether patient choice is working. Amendment 100 fills this gap and restores the situation to where it was before 2015. I hope the Minister will accept this simple amendment in the interests of patients.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am implacably opposed to privatisation of the NHS—not for ideological reasons, although the Green Party is strongly opposed as well. I think it is inefficient. Privatisation has not worked. It has failed to deliver on promises to increase quality, decrease cost and help patients. Rather than save money through reduced bureaucracy, the main cost savings of privatisation seem to be in cutting the terms and conditions—chiefly the pay and pensions—of staff. If private companies can compete for public services, let them compete on a level playing field, rather than simply capturing staff and paying them less.

I am pleased that the noble Lord, Lord Lansley, explained his Amendment 98 because I had understood it completely the other way around—that he was protecting private services. I was going to have a word with him afterwards about it, but there is now no need.

As the noble Lord, Lord Hendy, just said, most people in Britain do not want a privatised NHS. They want a public service because that is what will give them the best results.

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Tabled by

[Lord Warner]

100: Clause 69, page 63, line 21, at end insert—
“6H Survey relating to patient choiceNHS England must annually conduct a public survey of whether patients have been offered choices about where they obtain treatment and must report to the Secretary of State what action they will take as a result of the survey.”

[Lord Warner (CB)]

I am grateful to the Minister for his reassurances on the issue of patient choice. I suggest that the arrangements that he outlined in his response to my amendment are not well known, even to those such as the Independent Healthcare Providers Network, so I wonder whether he might look at the arrangements for publicising that information. In the meantime, I shall not move my amendment.

Amendment 100 not moved.

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Moved by

[Lord Warner )]

112: After Clause 80, insert the following new Clause—
“PART 1AHEALTH AND CARE SUSTAINABILITYOffice for Health and Care Sustainability
(1) There is to be a body corporate, independent of the Government, called the Office for Health and Care Sustainability (“the Office”) to safeguard the long-term sustainability of an integrated health and adult social care system for England. (2) The Office must be established within six months of the passing of this Act and must publish a report of its initial findings relating to its main functions within a year of its establishment.(3) The role of the Office is to continually assess the outlook for the health and care system over the coming five, 10 and 15 years.(4) The Office has no function in operational or service delivery aspects of the health and care system.(5) The Office must—(a) monitor and publish data relating to demographic trends, disease profiles and the likely pace of change relating to future service demands,(b) assess the workforce and skills mix required to respond to those changes and publish regular reports on those matters, and(c) consider the stability of health and adult social care funding relative to changing demographic and disease trends, including the alignment between health and adult social care funding, and publish regular reports.(6) The functions of the Office are to be exercised on behalf of the Crown as if it was a public department.(7) The Office is to consist of—(a) an executive chair appointed by the Secretary of State with the consent of the Public Accounts and Health Select Committees of the House of Commons,(b) two other members appointed by the Secretary of State with the consent of the Public Accounts and Health Select Committees of the House of Commons, and(c) two other members nominated by the Office and appointed by the Secretary of State.(8) The initial appointments under subsection (7) are for a term of five years and no more than two terms may be served.(9) The remuneration of the executive chair is to be agreed by the Secretary of State but may not be less than that paid to the Permanent Secretary of the Department of Health and Social Care; and all other salaries and gratuities for members may be agreed by the Office with the consent of the Secretary of State for Health and Social Care.(10) The Office may employ staff on terms and remuneration consistent with that of the civil service.(11) The Office may—(a) establish such committees and sub-committees as it deems necessary,(b) determine its own procedures and those of its committees and sub-committees, and(c) do anything calculated to facilitate, or conducive or incidental to, the carrying out of any of its functions.(12) The annual budget of the Office is to be provided by the Secretary of State after consultation with the Public Accounts Committee of the House of Commons.(13) The Office must keep proper accounts and records in relation to its accounts, and must prepare and publish each year an audited statement of accounts.(14) The Office must prepare an initial report on its work within one year of its establishment, and thereafter annually, and may at any time publish a report on its functions when it considers that this assists safeguarding the long-term sustainability of an integrated health and adult social care system in England.(15) The Secretary of State must lay any report prepared by the Office before both Houses of Parliament.”Member’s explanatory statement
This amendment implements recommendations 33 and 34 of the 2017 report by the House of Lords Select Committee on the Long-term Sustainability of the NHS and Adult Social Care. It draws on the legislation setting up the Office for Budget Responsibility.

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[Lord Warner (CB)]

My Lords, Amendment 112 is my name and the names of the noble Lords, Lord Hunt, Lord Scriven and Lord Kakkar. I am grateful for their support. This amendment goes much wider in terms of independence from the Secretary of State than Amendment 80, moved so convincingly by the noble Baroness, Lady Cumberlege, earlier today.

Amendment 112 establishes a new body to help to secure the long-term sustainability of our health and care system. That body is an independent office for health and care sustainability as recommended by this House’s Select Committee on the Long-term Sustainability of the NHS and adult social care. This new body is based on the model of the Office for Budget Responsibility. That body is widely accepted as having worked well over a number of years. My amendment draws heavily on the 2011 legislation setting up the OBR.

The new office of health and care sustainability has three main functions which are set out clearly in the amendment, so in the interests of time I will not repeat them. The new body would look five to 10 to 15 years ahead and publish regular reports which would be laid before both Houses of Parliament. It would produce an initial baseline report within a year of its establishment. Like the OBR, the new body would have an executive chair and five members. The chair and two members would be appointed by the Health Secretary but—and this is a very big but—with the consent of the House of Commons’ Public Accounts Committee and Health and Social Care Committee. The remaining two members would be chosen by the office itself. Like the OBR, the new body would not have a membership controlled by Ministers.

The new office of health and care sustainability would be much more independent of the Secretary of State than is provided for in Amendment 80. It would have a much wider remit in terms of improving the balance between the NHS and social care, on both staffing and funding. The greater long-term independence seems essential given that the Department of Health—now the Department of Health and Social Care—has a political and official track record which was revealed to the Lords Select Committee as pretty unsatisfactory.

The Department of Health has been failing to plan for the future for a very long time. The evidence given by its Permanent Secretary totally failed to convince the Select Committee that it took long-term planning seriously. That Permanent Secretary is still in place. I do not like personal attacks, but in evidence to the Select Committee this person actually said that he did not see long-term planning as part of his job description. So we have a situation where the long-term planning of the NHS and social care is simply not on the agenda of the government department responsible for it.

With this track record and the Covid recovery programme that the Department of Health and Social Care now faces, it seems to me a triumph of optimism over reality to rely on that department and its harassed political head to undertake long-term planning. I say that despite the House passing Amendment 80. We are looking for a situation in which there is more independence of the Secretary of State and, indeed, more independence in the collection of information, the sifting of that information, and the analysis that that information shows—and that covers funding as well as workforce issues.

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[Baroness Penn (Con)]

My Lords, I thank noble Lords for bringing this debate before the House today. As mentioned in the debate in Committee, the specific functions described in Amendment 112 are crucial functions that the Government are committed to ensuring are discharged. This commitment is underlined by the fact that there are already bodies and mechanisms in place to fulfil these functions. These are core components of the Government’s commitment to evidence-based health provision. This commitment has been made clear in many of the Bill’s provisions, in our wider programme of public health reform and in the proposals set out in the Government’s plan for health and care.

The amendment makes recommendations on both appraisal and scrutiny of funding and of social and demographic trends. With regard to the monitoring of trends, the department already publishes data relating to disease profiles, which incorporates demographic trends where relevant. This is supported by independent academic modelling from the Care Policy Evaluation Centre, CPEC, to produce projections of the long-term demand on adult social care services. As for funding, noble Lords will also be aware that successive Governments have used the well-established spending review process to set public service budgets. This takes into account the needs of service users, but crucially also considers the fiscal context and how healthcare expenditure balances with the range of priorities across government.

As noble Lords have noted, aligned to those spending decisions, the Office for Budget Responsibility already scrutinises the Government’s fiscal approach and our management of fiscal risks. For example, in October 2021 the OBR provided an independent analysis of the Government’s reform to the funding of adult social care in England and has announced that it will provide more analysis of the long-term implications in its next fiscal sustainability report. There is also, as noble Lords will know, a wide range of highly influential non-governmental bodies dedicated to the kinds of functions proposed for this new body—the King’s Fund, the Health Foundation and the Nuffield Trust to name just three. All of these contribute richly to the public debate on financial sustainability and on the size and composition of the workforce, as well as other related issues, and to the ability of this House to scrutinise government decisions on spending and policy.

The Government therefore do not think that the creation of a further body would add value. At this crucial time for the health and care system, we must proceed with the reforms we have outlined. For these reasons I hope that the noble Lord, Lord Warner, will feel able to withdraw his amendment.

[Lord Warner (CB)]

My Lords, no chance. I wish to test the opinion of the House.

Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Lord Warner (CB)]

My Lords, I rise to speak to Amendments 141, 143 and 144A—to all of which I have added my name. In the unavoidable absence of the noble Lord, Lord Lansley, through Covid, I shall be moving Amendment 144A with his agreement. I also declare my interest as one of the three members of the Dilnot commission and, unsurprisingly, I shall be supporting the findings of the commission’s report in speaking to these amendments.

The coalition Government passed the Care Act 2014 to enable the Dilnot cap to be implemented but, since then, there has been no action to do this until now, with Clause 155 of this Bill. Unfortunately, that clause has major unfairnesses and shortcomings, as has been pointed out by all three speakers—the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Campbell—so I am not going to repeat what they have said. This is a deficient clause, and no reasonable person would see it as a fair and reasonable implementation of the Dilnot proposals on the cap. As far as I am concerned, Clause 155 is an unsatisfactory attempt at implementing that commission’s report and should be deleted from the Bill.

I turn to Amendment 144A in the name of the noble Lord, Lord Lansley. The purpose of this amendment is very simple: to require the Government to bring Sections 15 and 16 of the Care Act 2014 into force by April 2023. That is the time when one might expect the Government to bring the cap into force if Clause 155 remained in the Bill, so I do not think we are doing anything very adventurous by putting that date in the amendment. However, the removal of Clause 155 without any replacement would create uncertainty as to whether Sections 15 and 16 of the Care Act would be activated. If, as I and the noble Lord, Lord Lansley, hope, Clause 155 is deleted, Amendment 144A would ensure that the cap was brought into force by April 2023, but also on the basis that the cap was calculated to include the costs of all eligible needs met by the responsible local authority. In short, Amendment 144A would ensure a date for the Dilnot report on fairer care funding to finally start being implemented.

I acknowledge that if the noble Lord, Lord Lansley, were here to move this amendment, he might be more trusting than I am and willing to accept assurances from the Minister that Sections 15 and 16 would be activated by April 2023. I am afraid that someone who wrote and contributed to a report over a decade ago—which has been subject to prevarication ever since then—is rather less trusting, and I think it is absolutely essential, if we want to implement the Dilnot recommendations, that we should not offer that comfort of assurances to the Minister.

I turn briefly to Amendment 143, spoken to so well by the noble Baroness, Lady Campbell, in the absence of the noble Baroness, Lady Bull—another Covid casualty. The Government have made—if I may put it this way—a total hash of the Dilnot recommendations on page 24 of our report. These made it absolutely clear that anyone born with an eligible care need—or who developed an eligible care need before the age of 40—should have a zero cap. We set out the evidence and the arguments for this recommendation extremely clearly. The Government have chosen to ignore our clarity and have muddled up—for charging purposes—the income and capital circumstances of two very different groups of people: older adults and disabled working-age adults. As the noble Baroness, Lady Campbell, has shown, this is very unfair to working-age disabled people. I suggest to the Minister that the Government need to remember the title of our report was Fairer Care Funding—that is what it said on the tin, and that is what we expected to be implemented. The extra cost of sticking to our recommendations on working-age disabled people is—at the most—about the cost of 10,000 people by about 2030. That, if I may put it crudely, would be about the cost of a few rather dodgy PPE contracts.

These three amendments—141, 143 and 144A—work together well as a package. They remove dubious government amendments; they restore the Dilnot proposals for younger disabled people at a modest cost; and they start the implementation of the Dilnot cap in April 2023 on the basis that we recommended.

[Lord Lipsey (Lab)]

My Lords, it gives me great pleasure to follow the noble Lord who sat on the Dilnot committee. I think it was a first-class report, which, at the time, I was prepared to endorse as the least bad solution to the social care problem. But I have changed my mind since then. Why? Because the facts have changed. I set out some of those facts when I spoke in Committee, and they include the large rise in house prices that makes many people much more able to pay for care for themselves at the moment. The facts have changed again in the last couple of weeks because of this disgusting war that has broken out in Ukraine. As a consequence, we are going to have to spend more on defence, as the Germans have already recognised. Therefore, public budgets are going to have to be squeezed in other areas. I regret those squeezes, but it is President Putin’s fault, not ours.

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[Lord Kamall (Con)]

I thank all noble Lords who have spoken in this debate and I am sorry I was unable to engage as much on this issue as I was on others. I will speak first to government Amendments 128 to 140 and 187. We believe that these amendments are crucial to make the adult social care charging reforms work as intended. If they do not stand as part of the Bill, it will lead to unfairness between those whose needs are met by a local authority and those who self-fund their care. The intention of these amendments is to correct this.

Without these amendments, some costs which individuals have incurred will not meter towards the cap when they should do so. Currently, individuals eligible for funded support who have not had a timely needs assessment may incur costs in getting their needs met in the interim. This applies whatever system of charging we come up with. The costs incurred during periods of delay currently do not count towards the cap, and my amendments fix this. We came across this issue when we were looking back at previous Bills and unintended consequences.

I have also tabled an amendment to clarify the circumstances in which an independent personal budget must be provided by a local authority and what information those documents must include. We want these to be forward-looking documents, personal to the care user. To support this and to simplify the metering process, we are also removing the link between these documents and what meters.

Finally, as set out in the recent impact assessment, our charging reform implementation plan includes a small number of trailblazer local authorities that will implement charging reform earlier than others. I have tabled Amendment 187 to allow these trailblazer local authorities to begin implementing the reforms before others. For these reasons, I ask that noble Lords support my amendments.

On the other amendments, a number of noble Lords have asked questions and I will try to answer them. We believe that the £86,000 level set for the cap balances people’s personal responsibility for planning for their later years with a need to put in place a system to ensure that nobody faces unpredictable costs. Removing Clause 155 or simply omitting Clause 155(2) would have the effect of removing the ability to meter towards the cap by individual contribution only. Instead, progress towards the cap would be based on both individual and local authority contributions to care costs. This policy is unfair. However, it is also considered unaffordable.

Removing these clauses would increase the cost of the overall reforms by about £900 million per year, if you keep all other parameters the same—although. of course, other noble Lords have asked for other amendments, so those parameters would not necessarily be the same. This would require raising the cap, reducing means-tested support or expecting people to make contributions towards their daily living costs that are unaffordable from most people’s income. None of these is preferable to the approach that the Government are proposing to take.

We argue that the Government’s reform package is affordable and deliverable. We have indeed seen many reports over the years, and I understand that the noble Lord, Lord Warner, was on the Dilnot commission, but we have to ask ourselves why these were not implemented. Although we may see many merits in a number of a different systems, and we all have our own biases or views on what the system should—

[Lord Warner (CB)]

May I give the Minister the answer to why they were not implemented? Successive Conservative Chancellors declined to implement them.

[Lord Kamall (Con)]

The noble Lord may say that, but I have been advised that they were considered unaffordable.

On Amendment 142, I thank the noble Lord, Lord Lipsey, for his engagement with me on his very interesting idea. I agree with him; I regret the fact that the private sector has not come forward sufficiently to offer products. I agree that that could have solved a number of problems, but I should clarify that the taper rate is not linked to income, as suggested. It is what people are considered to be able to afford to pay towards the costs of their care, based on their capital.

The amendment would make the means-testing regime significantly more generous than in the Government’s proposal, and I can see why that is attractive. However, once again, to answer the questions from many noble Lords, that would be considered to make charging reform unaffordable. We would be unable to afford to invest in wider improvements in the social care system that we are all keen to see. The Government’s plans balance providing protection and predictability when it comes to care costs with how much additional burden should be placed on the taxpayer. We believe that our reform is responsible, deliverable and affordable. I repeat that although it may not be optimal, our proposal is better than the existing system, where there is no cap.

Amendment 143 suggests a zero cap, which would equate to free personal care for those identified as having eligible care needs before the age of 40. We considered this issue carefully and, as acknowledged by the noble Baroness, Lady Campbell of Surbiton, we looked at this system and engaged with her, but, as she rightly said, the issue was the cliff edge. One may disagree about the cliff edge, and there are other cliff edges, but we felt that one of this magnitude was unfair. We also believe that younger adults will benefit from the announced charging reforms. From April 2022, the social care allowances will be uprated in line with inflation to allow everyone to keep more of their income.

The noble Baroness, Lady Campbell, asked about data on the under-65s. We need to improve the data that we hold on under-65s who are drawing on care and support so that we better understand their needs and how reforms impact them. The Minister for Care and the Minister for Disabled People this week met a large number of organisations representing working-age disabled adults to discuss this and other issues. This group will continue to meet as our reform programme progresses. I hope that that offers some reassurance to the noble Baroness.

Amendment 144A would require the full rollout of the government reforms to be commenced before 1 April 2023. One of the reasons we looked at October is that we recognise that implementing reforms of this magnitude —noble Lords will have heard me say previously that we have grasped the nettle—requires a significant lead-in time to enable local authorities to prepare. We have invested £3.6 billion in preparation for these reforms, and we cannot do it overnight. In addition, we want to have the flexibility to work with some of those trailblazer authorities to make sure that we really get the best of the discovery process to ensure that it works and that we can spot any unintended consequences.

We do not believe that there is sufficient time for local authorities to prepare for full national rollout by April 2023. It is vital that we take the time to work with the sector and local authorities on the process of implementation if we are going to get this right. To enable a successful rollout, we want to see how the trailblazers will work before we go for the full national rollout by 2023. Trialling and engagement with the sector would have to happen anyway, whether Clause 155 stood or not. As I have said, if Clause 155 does not stand, we would not be able to afford to implement charging reform.

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Moved by

[Lord Warner]

144A: After Clause 155, insert the following new Clause—
“Commencement of sections 15 and 16 of the Care Act 2014
The Secretary of State must make regulations under section 127(1) of the Care Act 2014 (commencement) to ensure that all provisions under sections 15 and 16 of that Act have come into force before 1 April 2023.”

[Lord Warner (CB)]

I wish to test the opinion of the House.