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.

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[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?

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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.

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[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.