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.