Health and Social Care Bill

Lord Warner Excerpts

Monday 5th December 2011 Lords Chamber

[Baroness Jolly]

My Lords, I rise to underpin much of what has already been said, so I will say it very briefly. The appointment of a DPH to a local authority will be critical. Not only will he or she play a key role in something like an outbreak of E. coli, when that sort of expertise is looked up to and expected from the community. They will be absolutely pivotal in delivering and making health plans, both through the health and well-being board and working with the CCGs. There is no way that DPHs could be a shrinking violet; as my noble friend Lady Cumberlege has just said, they really have to be able to mix it and get in there, but what they do has to be totally evidence-based. So it is a really interesting balance for someone who has their hands on all the facts but is not necessarily an introverted individual. One key thing that they really have to have is the support of the chief executive of the local authority. Furthermore, they have to report to them and have exactly the same status as, say, the director of adult social services so that they have that level of authority when going out and talking to various people in the health and social care community. That will be absolutely critical if the localism and local decision-making built into this Bill is going to work.

I have attached my name to Amendments 228 and 229. The person described in the amendments really should be seen as a person of standing, so they should have director status and be responsible to the chief executive of the authority. I was a bit alarmed when talking to my own MP this weekend. He was saying that he had learnt from his conversations with the chief executive of the local authority that the authority was not at all minded to do this with the appointment. That would completely undermine any sort of position that the director might have. They have the key role and need to be a person of standing. Without them having such a position within the council, many of the plans will be totally undermined.

[Lord Warner]

My Lords, I support the thrust of most of the amendments in this group and have added my name to Amendments 226, 259 and 339. As others have said, it is essential to have in the Bill a clear commitment from the Government, and indeed from Parliament, that three things are very clear when it comes to directors of public health. First, we have to make sure that they should be registered public health specialists, with appropriate qualifications and expertise. That seems to me a given if these people are to have standing in the local communities and, perhaps, even in a wider area. Secondly, the director should be accountable to the local authority’s head of paid service and be able to report directly to the local authority itself, particularly when there is an area of great concern in that local community. One does not want people intervening between the director and local authorities’ main committees when a serious incident is taking place locally.

Thirdly, for the reasons that everybody else has mentioned, we have to ensure that a director of public health cannot simply be fired on a whim because they are doing something which is uncomfortable or unpopular, or has brassed off a local interest of one kind or another. That is particularly critical when we see the difference of approach that the noble Baroness, Lady Cumberlege, put very well: between the evidence-based approach of a director of public health and the commitments that local authority members, quite reasonably, have to seek re-election from time to time. That is how the system works, but a different approach is likely to run through some local areas when something is uncomfortable for the local authority but is backed up by the evidence that the director of public health can put in the public arena.

Directors of public health need to be seen to be capable of doing the job and to be able to deliver bad news—as well they may have to. They should be able to expect to be supported and protected locally when they have to deliver uncomfortable news. Amendment 226 is part of that package of armour that we need to wrap around directors of public health. There may be better ways to do that in these amendments than in Amendment 226, but its purpose certainly ought to be in the Bill.

Amendment 259 is an important part of the protective armour that I have mentioned for directors of public health, in that it aims to ensure that they simply do not lose ground financially over time in their pay and conditions of service with NHS medical equivalents. I am not a supporter of creating situations where there are bidding wars between local authorities and the NHS. We have seen that with occupational therapists over the years, where one side decides that it can secure some advantage by upping the ante a bit for a specialist group when there is a degree of local competition for a sometimes scarce resource, so I am not in favour of doing that.



However, my experience—and I have worked six years in local government—is that where there are these bidding wars, usually the NHS specialist is further up the greasy pole in terms of pay and conditions of service, and the specialist at the local level is trying to catch up with what has happened. That is why Amendment 259 is important, in that it ensures that there is a catching-up process. Much more importantly, it tries to ensure that it is not necessary to have a catching-up process, because there is an agreed alignment between the pay of those specialists who are employed by the NHS and those who are employed by local authorities.

In speaking to Amendment 339, to which I have put my name, I should declare an interest, in that my daughter is a non-medical public health specialist, although I hasten to add that I have in no way discussed this with her, so she should not be held responsible for the views I am about to express. It is vital that public health specialists are brought within the purview of the Health Professions Council and that there is a separate register for non-medical public health specialists which comes under the purview of that council.

Increasingly, the behavioural aspects of successful public health policies and their implementation are absolutely critical. This is not an area where we should be relying only on personnel with medical or dental qualifications. If we are to have successful public health policies, it is vital that we have people with the kind of background where they can communicate, understand, and do research on the emerging areas of the behavioural sciences. I hope, therefore, that we can have a register which has public standing and is supervised by the Health Professions Council.

Before I sit down I would like to start this session with a mild chastisement of the Minister. I said at Second Reading that I had a benchmark for the Minister’s flexibility in accepting amendments to this Bill. However, he has been uncharacteristically inflexible in responding to many of the noble Lords’ concerns in their amendments. Of course, he has always been very polite; but we have not seen much evidence of the Government being willing to take away some of these issues and come back with amendments at a later stage. I would say to him that this set of amendments gives him a good chance to turn over a new leaf. They do not affect the Government’s policies in this Bill. However, they strengthen the ability of the Government to deliver those policies in the way that they have strengthened the arrangements around the appointment, the pay and the safeguarding of the independence of the directors of public health. I do hope, therefore, that we will see a different type of Earl Howe appearing in relation to these particular amendments.

[Lord Marks of Henley-on-Thames]

I, too, support this suite of amendments. I shall speak only briefly, not in favour of a reinvigorated Earl Howe but in support of Amendments 234 and 234A, which are to the same effect and concern the termination of the appointment of directors of public health.

The Bill provides for joint appointment of the directors of public health, by the local authority and the Secretary of State, and it is right that it does so. I entirely agree with the noble Lord, Lord Patel, that it is therefore essential that the Secretary of State should also have a crucial vetoing part to play in the termination of such an appointment. It is not only that it is logical and sensible that he should do so. It is also that it is more important upon termination that the Secretary of State has that power of intervention. It is important because the director of public health has to have a sense of independence and security. As my noble friend Lady Cumberlege and the noble Lord, Lord Warner, have pointed out, there is considerable potential for disagreement between the local authority and the director of public health. It is therefore crucial that, in the event of friction, the director of public health can act with confidence to disagree.

This is exactly the kind of decision in which it is the Secretary of State, having ultimate responsibility for the health service, who should have that role. The Secretary of State’s role is therefore the best guarantee of the independence and the freedom of action that directors of public health ought to have.

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[Baroness Northover]

I am absolutely delighted.

In answer to the noble Lord, Lord Warner, it may be that the version of my noble friend Lord Howe that he is seeing now is slightly different from the one that he usually sees, but I am surprised at his comment about my noble friend having made little movement. The noble Lord will know—

[Lord Warner]

I thank the noble Baroness for giving way. I encourage her to reflect on what she might experience in terms of surprise on Report if we do not see a little more flexibility.

[Baroness Northover]

As a former Minister, the noble Lord, Lord Warner, will be familiar with how—much more familiar than I was when I came into this position—change is discussed and then moves forward. I can assure him that the Government are very much listening and discussing the issues that have come up in your Lordships’ House. As he will know well, it is usually in Committee that noble Lords probe issues and flag up concerns, and usually on Report that shifts occur. I hope that the noble Lord understands that we are indeed listening. Perhaps noble Lords will bear in mind the fact that there has already been much discussion of issues such as ministerial accountability, education and training, research, HealthWatch England and patient involvement, among other issues. Public health is undoubtedly one such issue. I can assure him that that is the case. As the Bill moves along there will undoubtedly be open discussion. I have certainly seen that from the inside.

As noble Lords will know, we previously discussed the high-level provisions relating to the public health powers and duties of local authorities and those of the Secretary of State. We are now focusing on the process of local engagement whereby health improvement responsibilities will return to local authorities. When discussing Clauses 8 and 9 I briefly referred to the role of the director of public health, but I should like to take this opportunity to highlight the importance that the Government attach to the role of director of public health and local government within the new system.

The director of public health will be ideally placed to embed public health across the work of the local authority, acting corporately but exercising the appropriate professional autonomy where necessary, to advocate for the health of the local population. As the noble Lord, Lord Patel, put it, he or she indeed needs to be the strategic leader on public health in the local authority. Other noble Lords echoed that view. We understand that there are a number of concerns about the status of the director of public health but I hope that I can reassure noble Lords on the points they have raised. We are indeed seeking the kind of status that they referred to.

Amendments 228, 229, 232, 233 and 233A relate to the status of the director of public health. As my noble friend Lady Cumberlege noted, given the importance of their leadership position, we would expect a director of public health to be of chief officer status with direct accountability to the chief executive. We hear what noble Lords say about the importance of that.

We have progressed this important issue—the noble Baroness, Lady Cumberlege, wanted an update—and we expect to make a formal announcement in the new year about how we will ensure the senior status of the directors of public health. We are committed to addressing that further. I hope that noble Lords will be reassured by what I have said.

Amendments 229, 231, 233 and 233A relate in particular to the qualifications and experience of the director of public health. The director of public health will be jointly appointed by the Secretary of State, who will be able to ensure that only appropriately qualified individuals are appointed. The fact that the Secretary of State, in the shape of Public Health England, will play an active part in directors’ appointments will help to bind the system together and help to ensure consistency of approach to the role without infringing unduly on local authorities’ independence.

In the National Health Service, some standardisation is imposed by the NHS (Appointment of Consultants) Regulations. The joint appointments process for directors of public health would allow the Secretary of State and local authorities to agree similar standards for local government.

Amendment 225 would require the Secretary of State to agree the appointment. I can reassure the Lord, Lord Patel, that the joint appointment process would already involve the agreement and active participation of the Secretary of State. The local authority and the Secretary of State could not properly imply with their duties and conduct a fair appointment process unless the individual chosen was suitably qualified with appropriate professional expertise. The joint appointment gives the Secretary of State more involvement in the Bill as it stands than under the amendment, which would limit his role to approval.

Amendments 234 and 234A would require the local authority to obtain the agreement of the Secretary of State before dismissing a director of public health. Under new Section 27(2) of the 2006 Act, the director of public health is an employee of the local authority, although any local authority wishing to dismiss its director of public health would have to consult the Secretary of State. Directors of public health will also have the full protection of employment law. Given that their employment relationship is with the local authority, we believe that this provides an appropriate level of protection.

I thank the noble Lord, Lord Patel, for Amendment 236. The amendment would allow the Secretary of State to issue guidance to which local authorities must have regard in relation to the appointment and termination of the director of public health. My noble friend Lord Howe and I will commit to considering this further.

Amendment 339 inserts a new clause which would require the Health Professions Council to establish a register for currently unregulated public health specialists. This links to Amendments 229 and 230, which would require that all directors of public health are on a register. I share the desire to assure the quality of all public health specialists in a way that is robust and effective.

The consultation on Healthy Lives, Healthy People and the NHS Future Forum identified a number of options for assuring the decision-making of public health specialists, including assured voluntary registration and compulsory statutory regulation, and we have sought further evidence from the public health profession to demonstrate whether compulsory statutory regulation is needed. We want to assess this evidence carefully before making final proposals. I assure noble Lords that we are listening.

I also reassure noble Lords that if compulsory statutory regulation of all public health specialists is introduced, we would seek to ensure that the bodies responsible for regulation would be subject to oversight by the Council for Healthcare Regulatory Excellence, which is renamed the Professional Standards Authority for Health and Social Care in the Bill.

Amendment 259 would place in the Bill requirements in relation to the terms and conditions of public health staff working in Public Health England and local authorities. I reassure the noble Lord, Lord Patel, that employees who are compulsorily transferring with their current work function from the NHS to a local authority or Public Health England will—by virtue of either the Transfer of Undertakings (Protection of Employment) Regulations, TUPE, or a statutory transfer scheme under Clause 294, where the Cabinet Office statement of practice on staff transfers in the public sector, COSOP, applies—have their pay, terms and conditions protected.

The Government are currently working with stakeholders to develop a public health workforce strategy, and a formal consultation will be published in due course. We are now beginning the detailed work of developing a new set of terms and conditions for Public Health England and we have started work with trade union colleagues to negotiate a package on that.

The noble Lord, Lord Walton, asked about health inequalities. This is an issue that we covered when we talked previously about public health. I reiterate that we intend to encourage local authorities, through the conditions that we attach to their new funding, to consider the need to reduce inequalities when they discharge their public health functions. The noble Lord also asked whether the CCGs and the board will have duties to obtain appropriate advice. Again, this is an issue that has come up before. They will explicitly need to do that. He also asked whether they should be on these boards. We intend to require local authorities to have a core offer of public health advice to the NHS and we will publish more information about that shortly.

Coming back to the question of local authority terms and conditions of transfer, work is currently under way on a concordat, which will provide principles and standards relating to the transfer, selection and appointment processes affecting public health staff moving to local authorities. This is expected to be published shortly.

Various noble Lords made reference to emergencies. As the noble Lord, Lord Beecham, said, we will be talking about that when we come to a later group of amendments, so perhaps we can postpone consideration of that subject until then, when I can answer any questions that have come up.

In conclusion, I commend noble Lords for their great expertise in this area—expertise in public health and right across the domain, and also, as the noble Lord, Lord Beecham, showed, in local government. It is very important that this is put together effectively. Many have welcomed the move of public health to local authorities, and this should, as noble Lords have previously noted, present many very useful opportunities to put public health centre stage. We hear the concerns that noble Lords have flagged up as these changes take effect but I hope that they will note that we are taking back many of the issues for consideration. I see scepticism on the face of the noble Baroness, Lady Thornton, but I hope that noble Lords will have listened to what I have said in the key areas that they have flagged up. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment and that noble Lords will continue their constructive engagement with the department in this area.

[Lord Warner]

Can the noble Baroness write to us about central government approval of people who are employees of the local authority? There are three areas where I should certainly like to be a lot clearer. The first is what the position with medical officers for health was in the past. My memory is that they were approved by the then Health Secretary. The second is the position of directors of social services. In the past, as I recall, they used to be approved by central government and were employees of the local authority. The third is the current position of chief constables. As I recall, they certainly had to be approved by the Home Secretary and I think may technically—although I am not sure—be employees of the local authority. It would help us to understand the Government’s position on this if we could have more clarity—certainly on those three examples.

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I know that the Minister has undertaken to look in detail at all aspects of education and training, but I want to have on the record the postgraduate deans’ need to be independent. That is supported both by the deans themselves and the General Medical Council, because in considering the future, it is very important that we do not lose the educational expertise from the current set of deans.

[Lord Warner]

I suggest that this group of amendments has been provoked by the extremely unconvincing nature of the Government’s organisational structure for delivering the reforms they consider necessary to the NHS; they would in themselves, I suspect, attract a wide range of support. I want to address my remarks to Clauses 30 and 31 on the abolition of SHAs and PCTs. I think the concerns many of us have were well put by my noble friend Lord Hunt.

I want to divert a little from my remarks to congratulate the noble Lord, Lord Mawhinney, on his detective work. If he wants to continue in that vein, I suspect that he could find some examples in other parts of the country that go wider than that in Peterborough. He might want to entertain us with more of those examples at a later stage in the Bill because I suspect there are plenty of them. In a spirit of helpfulness, I say to him and to the Minister that among the department’s papers of around 2005 are quite a lot showing how you go about consulting local people about the removal of PCTs and how you use a proper legislative basis for abolishing them and replacing them with new, properly authorised and properly appointed PCTs. I would be very happy to give my approval to the opening up of those papers so that the Minister can help the noble Lord, Lord Mawhinney, see how you can go about this. It is often controversial, but there is a process for doing it, which is well documented, and you do not have to go along the path of clusters. It is perfectly possible to engage with people—sometimes they do not like it—and go through a proper process for replacing a number of them. It can be done, and it can be done in a proper way, but it takes a bit longer. I would be very happy for those papers to be made available to the noble Lord, Lord Mawhinney, and the Minister so that if they are struggling a bit in seeing how it can be done, they can draw on that example.

Some of us on these Benches have acknowledged that the 2002 NHS reorganisation rather overdosed on the number of SHAs and PCTs and, as I have just said, we tried to put that right in 2005 and 2006 with a reduction to 10 SHAs and 152 PCTs. Some of us would have liked to have gone a bit further and reduced PCTs further, but that’s life. You do not always get what you would want. In practice, that further reduction could have led, as I think the noble Baroness, Lady Finlay, said, to a much more straightforward way of making the changes that needed to be made and could have included a very large increase in the number of clinicians involved in the process of commissioning. I do not think anybody in this Chamber is opposed to the Government’s idea of increasing substantially the amount of clinical and, in particular, GP involvement in the commissioning of services. However, it could have been done without this process, and it could have built on the lessons of GP fundholding, on which I have always been a supporter of the Government’s approach. I thought it was a bold experiment, and I do not say that with any sarcasm at all. It was a bold experiment that was well worth trying and which we built on further with practice-based commissioning, so I do not think there is a lot of political dispute about more clinical involvement in commissioning.

The Government could have done that without clusters by simply reshaping PCTs, changing their membership, probably reducing their number and possibly increasing—dare I say this to some of my colleagues on these Benches?—the involvement of private sector skills in the commissioning function with the data analysis and information gathering. They could even have done it with a little more democracy in the membership of PCTs on which, as I recall, the Liberal Democrats were rather keen at one point. The coalition partners could have been brought onboard with a bit more democracy in PCTs as well. That might have been a good mix to go forward.

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I would say again to the noble Lord, Lord Hunt, that the local workings of the board will be accountable through their work sitting on the health and well-being board, as well as needing to have regard to the joint health and well-being strategy. However, I think that what he said begs a question. The noble Lord paints a somewhat halcyon picture of PCTs and SHAs being accountable to their populations. As I tried to indicate on Second Reading, I do not share that analysis. No one disputes the valuable role that PCTs have undertaken. They have some good people and some important skills. However, under the current system PCTs attempt to combine two roles: they must make clinical decisions about commissioning NHS services; and they must understand the needs of their population, involving and accounting to local people.

[Lord Warner]

I am sorry to interrupt, but I am really bemused by what the noble Earl has just said about the accountability of the local entity of the national Commissioning Board to health and well-being boards. Health and well-being boards have no budgetary responsibility whatever, as I understand what the Government are saying; whereas the national Commissioning Board has two lots of budgetary responsibility—for its own specialist commissioning and for its oversight of the money that it hands out to clinical commissioning groups. Perhaps the Minister can explain it to me. I can understand that it might want to consult the health and well-being boards but, in terms of accountability, I cannot understand how it can be accountable for its budgetary priorities and decisions to the health and well-being boards.

[Earl Howe]

It is accountable for its decisions at a regional or sub-national level in a real sense. If it was not interacting with the boards, the noble Lord, Lord Hunt, might have a point; but it will be. I think that that is accountability in a meaningful sense. The noble Lord, Lord Warner, talks about budgetary accountability, and I understand that that is a real issue. Of course there will be no budgetary accountability, but there will be accountability for the decisions and actions taken by the field forces.

I was saying that the structure means that all too often neither of the roles that PCTs perform is performed well. GPs, who actually make the clinical decisions, are not properly involved in PCT commissioning; and PCTs do not have the detailed understanding of their communities or the link to other local public services. The result is an unsatisfactory compromise, with commissioning that fails to deliver improvements in health outcomes and local services that are fragmented and not integrated.

It has been suggested by some noble Lords that one could have kept PCTs and parachuted in a whole lot of doctors, perhaps filtering out some of the administrators. Anyone who has visited any pathfinder CCG and put that question to the doctors and other clinicians involved will know the answers to why that would not have been a valid and sensible idea. The way in which services are commissioned has to depend on the judgment of clinicians and the wisdom of establishing geographic areas for commissioning groups that make sense in terms of patient flows and in terms of links with local authorities, social services and public health. It does not make sense to retain structures that, frankly, are administrative constructs that do not necessarily bear any relation to patient flows or relationships with local authorities. These clinical commissioning groups are being created from the bottom up by those who know what is in the best interests of patients, and it is to patients that we must always return in our thinking. We currently spend £3.6 billion a year on the commissioning costs of PCTs. PCT and SHA management costs have increased by £1 billion since 2002-03. That is a rise of over 120 per cent. We cannot make savings on the scale that we need to while retaining the administrative superstructure of the NHS.

The noble Lord, Lord Hunt, suggested that the pathfinder CCGs were being built on nothing at all. They are not being created from nowhere. They are building on, and are indeed a logical development of, practice-based commissioning groups, of which there were a very significant number. There are currently 266 pathfinder clinical commissioning groups covering 95 per cent of GP practices in England. As I have indicated before, I cannot say how many we will eventually end up with, but that will give noble Lords a rough indication of the order of magnitude.

The noble Lord, Lord Rea, quoted some words of mine from a debate of several years ago. I would simply say to him that I was speaking then of something completely different from the Government’s current proposals, and I am grateful to the noble Baroness, Lady Murphy, for pointing that out. These reforms place leadership of commissioning firmly with clinicians. I completely agree that giving leadership to a non-statutory, private-sector firm would be a bad idea. That is why there are very clear safeguards against this happening. With PCTs, I feel that there was a genuine question over where commissioning leadership really lay, and this is very firmly no longer the case.

On Amendment 236A, I must clarify one point. It is not the case that a clause stand part debate on Clause 30 would be consequential if a Division was to be called on Amendment 236A and won. It would simply amend this clause and not entail that it needs to be removed.

I hope that I have sufficiently covered the issues raised by noble Lords. I do not suppose that I have satisfied everyone, but I hope that I have at least indicated the direction of government policy in a coherent way.

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[Lord Warner]

Could the Minister give us an assurance that before Report he will give us some idea of the extent to which the current arrangements are going to meet the targets set by the Government for delivering the Nicholson challenge for this coming year, so that we can see the extent to which the Government are at risk if they abolish the SHAs from April 2013?

[Earl Howe]

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.