Health and Social Care Bill

Lord Warner Excerpts

Tuesday 13th December 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, I strongly support the two very powerful and convincing speeches by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.

I add only a couple of points. First, it is extremely important for the integration of social care from local authorities with health service healthcare to have a similar regime of rules and standings applying to both. All of us in this House have said repeatedly how much we believe in the integration of these two attempts at providing proper care for older people, chronically ill people and disabled people. It is therefore important that we set a standard which is common between the two. That is the first reason why we should all strongly support the amendment that is before us.

The second reason, from my point of view, is that I very much like the phrases used in the amendment, which state in effect that this kind of service is a public service. It is, in a way, ennobled by the fact that it is a service to the public generally, regardless of whether it is provided by the voluntary, independent or NHS sector. That is also very important.

The third point I briefly make is that it has implications which we have to face up to. There is no time to discuss this tonight. But if we actually want there to be a huge improvement in the relationship between the staff of health service and local authority care organisations, whether voluntary, private or NHS, and the elderly and vulnerable people whom we are talking about—and we do want that—then, as this quite clearly implies, the staff themselves must be treated well. It is no good having profoundly exploited, overused, overcriticised staff and expecting them to live up to the great principles of the Human Rights Act. To my mind the importance of this amendment is not just that it passes. It has clear implications for the training, education, support and attitude towards NHS staff, who too often are heavily criticised for what is a difficult yet often extraordinarily well conducted job. In that spirit I strongly support the amendment of the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.

[Lord Warner]

My Lords, I also support the amendment of the noble Baroness, Lady Greengross. I do so from the perspective of someone who as a special adviser was involved in the framing of the Human Rights Act in 1998. At that time, much of the thinking in the devising of that Act was on the basis that publicly funded services were pretty much synonymous with public delivery of those services. Much of the language around public functions and public authorities was based on that assumption. In fact, that was already out of date at that particular time. Since then, we have never really put this point beyond doubt in legislation. It is timely to do so now, when so many of the services in people’s own homes are contracted out by public bodies to voluntary and private providers. It is a lacuna in the arrangements, despite some of the assurances given by Governments of both persuasions since the Human Rights Act 1998.

[Baroness Wheeler]

I also support Amendment 295G from the noble Baroness, Lady Greengross, replacing the similar amendment from the noble Baroness and the noble Lord, Lord Low, both of whom have argued the case strongly and convincingly on this matter.

The importance of addressing current loopholes in the application of the Human Rights Act to publicly funded healthcare and home care services is underlined by the scale of the legal anomaly that the amendment seeks to address. As we have heard, almost 500,000 older people receive essential care in their own homes provided by the local authority. Some 84 per cent of them lack the protection of the Human Rights Act because their care is provided by private or third sector organisations, or independently by 150,000 self-employed personal assistants who care for people in their homes through the application of personal care budgets or direct payments.

The noble Baroness’s own work in highlighting the inadequacy of at least 50 per cent of the home personal care received by older people as part of her recent inquiry underlined the prevalence of human rights abuses in home care settings. The report makes painful reading for all who want dignified and appropriate standards of care for older people in their homes. The stark reality is that, if their human rights are violated through inappropriate standards of care, they at present have no direct legal redress against their care providers.

Of course, we need to make the caveat that good practice is often exemplified by the private and voluntary sector. As a carer, the care provided by the private sector agency to the person I care for at home is of good quality and the care support workers are committed and dedicated professionals, despite long hours and low pay. Their care for the person that I care for is not covered by the Human Rights Act but would be if he were in residential care. That is a serious anomaly. I hope that the Minister will be able to reassure us that the Government recognise that this is a major problem and will take the opportunity presented in the Bill to address the matter. With an increasing number of people receiving home care from a private or voluntary sector organisation rather than directly from their local authority, there is a vital need for certainty around the application of the Human Rights Act to these care providers.

I was going to comment on four other amendments but none of them was spoken to so I will leave it at that.

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Moved by

[Lord Warner]

295AA: After Clause 130, insert the following new Clause—
“Prior actions to health special administration orders
(1) Monitor shall produce annually a report to the National Commissioning Board setting out those trusts and their associated health economies where it considers that, on the evidence available, trusts are at serious risk of Monitor seeking a health special administration order unless urgent action is taken to review existing services and agree reconfiguration of those services to ensure their clinical and financial sustainability and this report shall be made available promptly to the Secretary of State, Parliament and the relevant clinical commissioning groups and health and wellbeing boards.
(2) It shall be the responsibility of the National Commissioning Board, in consultation with the relevant clinical commissioning groups and health and wellbeing boards, to establish a mechanism for producing a response to Monitor within six months of the annual report’s publication on how the services in specified areas can be made clinically and financially sustainable and the extent to which these proposals are agreed by local organisations on behalf of the public.
(3) It shall be for Monitor to decide whether the Board’s response is adequate to secure clinical and financial sustainability in particular areas and, after informing the Secretary of State, to publish its decisions on proposed changes and should the Secretary of State decline to accept Monitor’s decision in a particular case he or she should inform Parliament with his or her reasons, together with his or her alternative proposals for securing clinical and financial sustainability in the particular health economy.
(4) It shall be open to Monitor, by agreement with the Secretary of State and the National Commissioning Board, to establish a panel of independent people with appropriate expertise to assist with securing local agreement on the reconfiguration of services required to secure clinical and financial sustainability.”

[Lord Warner]

My Lords, I rise to a rapt audience to move Amendment 295AA, which will really test the concentration powers of your Lordships’ House. The amendment would insert a new clause on actions that could be taken to reconfigure services in the interests of sustainability before the Bill’s failure regime kicks in. It follows on from the previous group of amendments spoken to, in particular, by my noble friend Lady Thornton.

I had one go at this issue at an earlier stage in our discussions and did not get very far. I have now discussed this issue further with a range of opinion inside and outside your Lordships’ House. This amendment, which has the support of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, is the product of a continuing interest in this issue. There is now widespread recognition across the NHS that there has to be a major reconfiguration of services to make them more fit for purpose, more clinically sustainable and more financially sustainable, given the financial and demographic challenges faced by the NHS for the foreseeable future. In a nutshell, specialist services need to be reconfigured on fewer sites, and many district general hospitals have to be reshaped on their sites with a different kind of health and healthcare campus and more social care services alongside them. Far more services need to be delivered in a community, rather than in a hospital, setting.

As was borne out in the discussion on the last group of amendments, the Government seem to be placing a great—and, I would say, undue—faith in local commissioners facing up to this reality and delivering the necessary changes. Meanwhile, MPs, including Cabinet Ministers, continue to march with placards in front of their local hospitals, opposing change and trying to protect their parliamentary majorities. They fear being “Kidderminstered” as majorities and the number of seats shrink. It will only get worse as 2015 approaches.

Much sensible opinion in the NHS simply does not believe that local areas and commissioners can deliver the scale of change required on an unaided basis. It fears that people will stand on the burning platform until failure engulfs them or a cheque arrives. The Government have said that the cheque is not going to arrive, so they are going to stand on the burning platform, as I see it, until the failure regime kicks in. Monitor does not want to be placed in a position where it is endlessly using the failure regime. It will want to intervene when the warning signs are there, rather than waiting for the special administration system to be required. Despite the Secretary of State’s promises of robust decision-making on service reconfiguration, there is little experienced NHS opinion that believes that the elected political class will take the tough decisions fast enough and in sufficient numbers to produce a more orderly reconfiguration of NHS services.

I asked the Secretary of State following one of his robust public utterances at a conference whether he had actually told his Cabinet colleagues how robust he was going to be. The example of Chase Farm continues to affect NHS opinion and behaviour. People want a more reliable pre-failure regime that can be triggered in a timely way that does not totally rely on local commissioners to take action on their own and that imposes some discipline on the elected political class—if I may so describe them—to take decisions in a timely way. That is what Amendment 295AA attempts to do.

Subsection (1) requires Monitor to report annually to the national Commissioning Board those trusts and their associated health economies that are in real danger of clinical and financial unsustainability that will trigger the special administration regime. This report would put everybody from the Secretary of State to the local clinical commissioning groups on notice that action needs to be taken.

Under Subsection (2), it would then be for the national Commissioning Board to gather everybody together locally and agree a mechanism for producing a response within six months of service reconfigurations that would achieve financial and clinical sustainability.

Subsection (3) gives Monitor the decision on whether the solutions proposed are adequate, and if so, to inform the Secretary of State accordingly. The Secretary of State is not cut out of the loop. The Secretary of State could decline to accept Monitor’s decision, but in doing so he or she would have to inform Parliament of their reasons for rejecting it and publish alternative proposals to secure,

“clinical and financial sustainability in the particular health economy”

concerned. To aid this process, subsection (4) enables Monitor,

“by agreement with the Secretary of State and the National Commissioning Board to establish a panel of independent people with expertise”,

to help local area commissioning groups with the necessary reconfiguration of services.

No one under this amendment is cutting out the people at the local level and no one is cutting out the Secretary of State. We are just introducing a bit more discipline into this particular process, one in which it has proved very difficult to achieve change. I hope that the Minister will take this amendment in the spirit with which it is offered. It is there to respond to a widespread concern that we need a better and clearer pre-failure regime that can be used to bring about a more speedy reconfiguration of services in the interests of clinical and financial sustainability, but that also preserves local involvement with expert external facilitation and keeps the Secretary of State involved, albeit with disincentives to political deferment of decisions. The challenges that the NHS faces over the rest of this decade make this an issue that we should address urgently, and in my view we should have something on the face of the Bill to help the NHS engineer the reconfiguration of services that it will so badly need in the coming years. I beg to move.

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Mindful of the time, I hope that that is helpful. I undertake to engage with the noble Lord following this debate to see what more we might be able to do to reassure him. He presented a cogent case; I understand the arguments that he is putting and the reasons for them. I would like to end in the same place as him and provide the Committee with more certainty on these issues. I hope that with the assurance that my ear, as ever, is listening, he will be content for now to withdraw his amendment.

[Lord Warner]

My Lords, I am grateful to everyone who has spoken in this debate for the support that the thrust of the amendment has received. I reassure the Minister that it is not the purpose of the amendment to exclude local commissioners or local people from involvement in reshaping their services. They would feature in the report to the national Commissioning Board mentioned in the amendment only if they were clearly not getting on with the job of making changes. If they were getting on with that job, fine—they would not feature in the report.

I think that we struggle with the situation that the noble Baroness, Lady Murphy, mentioned, that you cannot solve the problem of a particular hospital trust without looking at the problems around the much wider health economy. Often, the local clinical commissioning groups will struggle with the breadth of the economy that they have to consider.

I do not want to delay the House any further. I will certainly take up the Minister’s offer of discussions and I would welcome any contributions from other noble Lords. We need to make progress on this issue before we complete the Bill’s consideration in this House. Meanwhile, I beg leave to withdraw the amendment.

Amendment 295AA withdrawn.