Care Bill [HL]

Lord Warner Excerpts

Tuesday 4th June 2013 Lords Chamber

[Baroness Emerton]

My Lords, I support the noble Lords, Lord Hunt, Lord Turnberg and Lord Willis, in their recommendation that a registered nurse should be on the board.

An issue that Francis picked up after the report is that the nursing voices are not strong. He said he was disappointed in the response from the nurses. We now have to ensure that the nurses on the board are equipped with the knowledge and expertise to be able to speak out and hold their own. The training of senior nurses in standing at the board table and making their voices heard and understood on quality, safety and the patient experience is going to be very important. Therefore, it links very much with the leadership training, which we also need to address, in terms of their preparation. Perhaps the noble Earl will comment on that.

[Lord Warner]

My Lords, I support these amendments. I will pick up the point made by my noble friend Lord Hunt about managers. The public sector needs all the quality management it can get and many of its problems rest on the fact that we do not have a cadre of managers to take many of our public services through the difficult years ahead. The NHS is no exception.

For too long—and my own party has been guilty of it in the past—we have dismissed managers as men, and indeed women, in grey suits who are dispensable. We have to give some strong messages to HEE that if the NHS is to develop and evolve and cope with the problems ahead, we need a strong cadre of managers and we have to develop them over time. It is not too early to start now because we have a real problem not just in staffing chief executives now but in staffing the next cadre of chief executives and the middle management and development programmes for that. The Government would do well to give some strong messages to HEE and possibly even consider strengthening the legislation on this issue because it would be a missed opportunity if we do not strengthen that body of people to help us run the NHS in the coming decades.

[Baroness Finlay of Llandaff]

My Lords, I will briefly add my support, particularly to the amendment in the names of the noble Lords, Lord Turnberg and Lord Patel. I will draw the House’s attention to the wording, that it is,

“expertise in medical education and training”

that is being asked for, not just medical education, and that the expertise in research is not tied to medicine.

I understand the arguments that HEE must not be too tied or have a board that is too rigid, but if it is to meet the enormous challenges that it faces—and it has come from many, many discussions—to be able to have questions asked at board level about education and training will be essential if we are to have a workforce that can adapt rapidly as new technologies and new ways of providing care come along. It will need to have people with expertise and understanding of the most efficient and effective ways to upskill the workforce in particular areas, because there are enormous unknown challenges ahead.

--- Later in debate ---

[Earl Howe]

My Lords, Health Education England will have responsibility for the NHS workforce, but not for the social care workforce. We will reach a group of amendments that bear closely on the issue of integration, where I am sure that we can explore the relationship that Health Education England will have with those bodies charged with delivering the social care workforce. The noble Baroness is absolutely right: there needs to be co-ordination and joined-up thinking in those areas. If she will allow, we can wait until we reach that group of amendments before debating the issue further.

[Lord Warner]

Let me assure the noble Baroness that I shall be in good voice on the subject of social care on Amendment 13.

It was helpful to hear what the Minister had to say about advisory committees and advisers. I listened carefully. I did not note anything about those advisory committees or an adviser for what I might call the sub-professional group. I am sure that the professions will be extremely well looked after in HEE, but the groups which we often have the most problem recruiting and ensuring are properly trained are those below the professional level. Can the noble Earl say a little more about those unsung heroes working at the sub-professional level and what kind of advisory capacity HEE might have in that area?

[Earl Howe]

It will certainly be open to the board of HEE to establish an advisory committee that specialises in unregulated professions. Although, again, I cannot make a firm commitment about that, the very fact that we are dealing with a workforce of substantial size on which the NHS crucially depends—I am now talking about healthcare support workers—means that it would be very surprising indeed if the board were not to have some form of specialist advisory service to inform its decisions.

Care Bill [HL]

Lord Warner Excerpts

Tuesday 21st May 2013 Lords Chamber

[Lord Warner]

My Lords, let me say at the outset how much I welcome this Bill and in doing so I pay tribute to the contributions made to its construction and arrival in this House by Paul Burstow and Norman Lamb. I should also declare my interests, as a member of the Dilnot commission and as a member of the Joint Select Committee on the draft Care and Support Bill. I emphasise that it produced a unanimous cross-party report with more than 100 recommendations for improvements, mainly in relation to Part 1 of the Bill. The evidence given to the Select Committee showed strong stakeholder support for the Bill, but there were important proposals for further improvements that we reflected in our recommendations.

At this stage I shall not comment on the Dilnot recommendations, other than to distance myself slightly from the remarks of my noble friend Lord Lipsey and to associate myself with the excellent remarks made by the noble Lord, Lord Sharkey. I will come in a moment to some of those Joint Committee recommendations that were not accepted by the Government. First, I would like to ask the Minister about the Bill’s silence on the key area of public health to which the noble Baroness, Lady Greengross, referred.

We know that the NHS’s core business is the management of 17 million people with long-term chronic conditions, many of which have been largely caused by—if I may put it this way—lifestyle decision-making. We know that nudging on its own does not really cut the mustard with issues around smoking, alcohol consumption and poor diet and that legislation may be needed. It was disappointing to many people outside this House—certainly, I have had a lot of approaches about this—that the Government did not use this Bill to bring forward the standardised packaging of cigarettes, the minimum pricing of alcohol and some kind of simplified system of food labelling. They have failed to do so. Will the Minister tell us a bit more about the Government’s plans for introducing legislation in these three areas? If it is not to be this Bill, when will we see legislation tackling these issues, on which there is a very large measure of public support for something to be done?

I now turn to some areas in Part 1 that require fuller scrutiny in Committee and probably amendment. The principle in Clause 1 of promoting well-being has been warmly and widely welcomed, as the noble and learned Lord, Lord Mackay, mentioned earlier. The Joint Select Committee considered that this principle should be applied to Ministers when exercising their responsibilities under the Bill. Ministers in oral evidence seemed slightly sympathetic to this idea, but when they got back to Richmond House they seem to have gone cold on it and rejected the Joint Select Committee’s recommendations. I will be interested if the Minister can produce more convincing arguments than I have heard so far on why the Joint Select Committee’s recommendation was rejected. If we are not convinced by the arguments of the Minister and his colleagues, I hope that some of my colleagues on the Joint Select Committee will join me in prodding the Government a little further with an amendment to see what they are made of.

I shall flag up briefly for the Minister some other areas in Part 1 where I am minded to put down amendments. On integration, I think the response to some of the Committee’s recommendations suggests that the Government are a bit happier talking the talk rather than walking the walk with practical ideas such as—dare I suggest it?— pooled budgets, joint commissioning, joint provisioning and a number of others. Like the noble and learned Lord, Lord Mackay, I still think that implementing the Bill’s changes effectively over time requires a statutory code of practice, and I would favour an amendment to achieve that. As noble Lords have said, the Bill needs strengthening on young carers, advocacy and human rights protection for those in private care homes. We have been over that latter ground a number of times in this House, and it is time to deal with this once and for all. I do not think the outside world is convinced by the Government’s position on this or, indeed, by the previous Government’s position on it. We need some careful drafting that gives proper protection to those in care homes who are paying their own way. It is not good enough to leave things as they are.

Let me flag up some issues around whether there will be a credible way of dealing with what is likely to be a considerable number of disputes over this legislation. The noble Lord, Lord Sharkey, mentioned this. There will be two types of dispute: disputes between service users and the local authority, and disputes between the local authority and service providers. We could leave things as they are, but if we really want a lot of judicial reviews and to clog up the courts, that is the right way to go about it. We need to hear a bit more from the Government about their further thinking on some tribunal-type way of dealing with these disputes without relying on the courts.

I am genuinely puzzled by the Bill’s drafting on the boundary between the NHS and social care, as is the noble and learned Lord, Lord Mackay. I am still unclear whether the boundary has been changed. I would very much like to hear the Minister’s response to the view of the noble and learned Lord, Lord Mackay, given the attention he has given to this issue in the Joint Select Committee and outside it.

The issue in Part 1 that is of greatest concern to most people is Clause 13 on eligibility criteria, as a number of noble Lords have said. They are to be dealt with by regulations and, as I understand it, drafts will not be published before the spending review announcement scheduled for late June. The Government have promised to establish a minimum national threshold of service need to be met under these criteria. It is still a bit unclear to me where in the Bill we find that. Will the Minister explain how this will be done?

More widely on Clause 13 there are widespread concerns that this threshold will be set too low to ensure that enough effort is put into preventive help to protect independence and preserve well-being. I think consideration will have to be given in Committee to placing in the Bill a stronger framework of requirements on eligibility criteria rather than leaving so much to ministerial discretion within regulations. I certainly feel a set of amendments coming upon me on this issue, and I welcome any contributions on this issue—the more, the merrier.

There are some other issues I want to raise on Part 1, such as including social care savings in auto-enrolment schemes for pensions, the right to die at home and free social care at end of life for patients suffering from cancer. However, the last point I wish to raise today on Part 1 is one that a number of other noble Lords have raised: funding for social care. The Dilnot commission’s report made it crystal clear that its proposals would not solve the existing shortfall in social care funding. I do not wish to trade figures today with the Minister on this issue, but what is beyond doubt is that there is a major funding shortfall relative to need. It is fair to say that historically under successive Governments social care has been less generously funded than the NHS, and promising a brave new future under this Bill without adequate funding for implementing the new system would be a cruel deception to inflict on many vulnerable people. More immediately, the funding crisis in social care is having a major impact on the NHS in terms of the major flow of people into A&E departments, especially at night, and the lengthening of hospital stays as discharge packages cannot be funded.

Social care has never had a review of its funding like the review that the late Derek Wanless carried out for the previous Government on the NHS. We should consider bringing forward an amendment to the Bill to provide for an independent review of the funding required for adult social care. I would like the Government to be willing to contemplate asking the Office for Budget Responsibility to conduct such a review, and I would like to be in a position to put down an amendment so that we can debate this issue fully during the passage of the Bill. I know that the King’s Fund will be undertaking a further review of social care funding, but Derek Wanless did one for it on this some time ago. It simply does not have the clout and authority that an organisation such as the Office for Budget Responsibility has.

There are a few issues on Part 2 that I will wish to raise. I shall not dwell on them for very long today, but I want to mention to the Minister some of the issues around Clauses 76 and 77, which are concerned with trust failure. As I understand these clauses, they relate to foundation trusts only, but the trusts with the possibility and risk of failure are those within the remit of the NHS Trust Development Authority. They are the trusts with the longer-standing financial problems and, by association, they present the greater risks to quality for patients. Indeed, the TDA’s mandate, in a ministerial letter of 7 May, says that the TDA is expected to “make a significant contribution to improving quality of care”. Can the Minister explain to us why the TDA trusts are not covered by the Bill when they appear to have a less robust approach to failure than Monitor? Does this not put patients in these trusts more at risk than those in foundation trusts?

National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Lord Warner Excerpts

Wednesday 24th April 2013 Lords Chamber

[Lord Warner]

My Lords, I would like to reassure the noble Lord, Lord Clement-Jones, that I will be speaking in this debate. I oppose the Motion in my noble friend’s name. He will not be surprised by that, although I know that he hoped that I would have more pressing engagements elsewhere. I should declare my registered interest as an adviser to two companies.

I begin, briefly, with some context in which these draft regulations sit. Much of the comment and briefing that I and, I suspect, some other noble Lords have received has an underlying assumption that, somehow, competition is bad for NHS patients. It would let in what are usually described as slightly distasteful people called private providers and should be prevented at almost any cost. Much of that seems to overlook the legal procurement framework that the NHS operates within now and within which it operated when I was a Minister some years ago.

The NHS has to operate within the terms of EU competition law, with certain constraints related to clinical services. NHS bodies operate under a set of process rules in how they conduct procurements. There are regulators that patrol the territory of competition with jurisdiction in relation to the NHS, namely the Office of Fair Trading and Monitor. That is not new. It is not a nasty invention by the coalition. We can get all fanciful about it but it has been around for some time. We may not like it, we may prefer it to be different, but that is the legal context in which the NHS has had to operate for some time.

I would argue—this may be rather uncomfortable for some of my colleagues on these Benches—that this contextual framework makes any persistent attempt to make NHS providers preferred providers, irrespective of these legal constraints, profoundly anti-competitive. I believe that it is vulnerable to successful legal challenge. We got quite close to that before the 2010 election. This set of contexts in which the NHS has to operate means that we have rather a complex area for NHS commissioners to operate in. They need a clear set of rules to guide their conduct on procurement and competition, and that is provided for in Section 75 of the legislation, which we passed after a great deal of discussion and debate. That is the context in which these draft regulations are being prepared.

They are also operating in another important context, one in which the NHS itself faces enormous financial and clinical challenges over the rest of this decade. It was the Public Accounts Committee under a Labour chairman that made it very clear that virtually every NHS trust was financially and often clinically unsustainable in its present form. Change is absolutely inevitable within the NHS, whether we have these regulations or not. A massive programme of service reconfiguration awaits the NHS to meet the unavoidable fiscal, demographic and morbidity challenges it faces. In the past two months, two acute hospital trusts have gone bust, and in my view another 20 may be well on the road to the same fate. The idea that we can somehow solve these problems without an injection of new providers with some new ideas and some better management techniques is fantasy.

[Lord Hunt of Kings Heath]

I am most grateful to my noble friend for his enormously helpful speech tonight.

[Lord Warner]

There is plenty more to come.

[Lord Hunt of Kings Heath]

I am delighted and I look forward to making further interventions. My noble friend and I very much agree on the need for a massive reconfiguration of services. We have argued that this needs to be done from the centre with authority and vigour, but what does the noble Lord say to the interventions of the OFT and the competition panel into perfectly sensible reconfiguration proposals? Does he not see that that is entirely consistent with the general direction in which the Government wish to take us, whereby in essence they are saying that the integrity of the marketplace is more important than reconfiguring these services?

[Lord Warner]

I am not prepared to second-guess the OFT before it has done its inquiry into this set of arrangements. I cannot see the point of having regulatory jurisdictions such as the Office of Fair Trading and Monitor if, every time they do something some of us disapprove of, we jump in and tell them they are out of line in undertaking that kind of investigation under the legislation on competition as it stands today. I am not prepared to engage with my noble friend in a discussion about whether the OFT has behaved reasonably. I would sooner wait and see what action it takes to investigate these arrangements, and that is the position that most of us had to take when these things happened while we were Ministers sitting in the same place as the noble Earl, Lord Howe, is today. We have to be a bit more statesmanlike about some of these things.

In the UK, we seem to prefer a situation in which we bail out what are in many cases public monopolies. We seem to forget that in our sister organisation of adult social care we have had a mixed economy for nearly 30 years, and that local government has quite amiably—

[A noble Lord]

That is a separate issue.

[Lord Warner]

It is not a separate issue because there is considerable overlap between those who are providing adult social care from outside the public sector and those who operate in the NHS market. They are very often the same providers. It is that market in social care that in this country has built and run a whole nursing home sector because the NHS turned its back on nursing home provision more than 30 years ago. It turned its back on providing a pattern of services that might have been relevant to today’s needs. Alongside the NHS we have a market-driven service—and very soon we shall probably be discussing something called the care and support Bill, which I and a number of noble Lords have been considering on the Joint Committee. The bad news for some is that within that legislation are some provisions for market-making, and that is the term that was being used in adult social care. Even as we speak, the Local Government Association and the Department of Health are enhancing the skills of local government in market-making in this area. However, the NHS does not seem to want to play in that game. It does not seem to want to pursue—

[Baroness Young of Old Scone]

I am afraid I cannot resist interrupting. Does the noble Lord’s pride in the social care market extend to the number of fairly large companies that have either almost gone bust or indeed have gone bust in the social care market in the past 12 months, or indeed to the failure of a considerable proportion of the social care market to deliver standards that are acceptable to the Care Quality Commission? I wonder if the social care competitive market is actually delivering what he wants it to deliver.

[Lord Warner]

I do not think anybody in the private nursing home and residential care market has achieved the dizzy heights of Mid Staffordshire trust in the way they looked after patients.

[Noble Lords]

Oh!

[Lord Warner]

If we are to have a debate about whether one sector is better than another, we ought to see the other side of the coin in terms of public sector failure as well as private sector failure. Too much of the debate about this is taking place somehow with no acceptance that the public sector ever fails, and it is only all those nasty people outside the public sector who do a bad job. Even where some of these homes have failed, they are failing in a context—this is a criticism of the Government—where local authority budgets have been trimmed to a much greater extent than NHS budgets. It is not a fair comparison blithely to assume that people can go on funding care in the adult social care sector when they have not been given the resources to do so. We have a difference, but the point I am trying to make is that in an area that is analogous to the healthcare sector there has been a private, independent sector market for about 30 years and it has widened the range of services available to service users. They are much wider than what was there before.

I am always happy to have a few more interruptions, if people want, but I am going to finish what I have to say. I came here to say some things and it is important, if I may put it this way, that one or two people take their medicine on this issue.

[Noble Lords]

Oh!

[Lord Warner]

Before we all get too excited, let us look at some of these issues. In my view, these regulations only put on a statutory footing the competition and procurement rules produced under the previous Labour Government but with the addition of—

[Baroness Meacher]

I would simply like to ask the noble Lord, Lord Warner, whether he has any interests in private sector provision and, if he does, whether he would like to declare them to this House.

[Lord Warner]

If the noble Baroness was listening, I think I declared my registered interests at the beginning of my utterances. She is very welcome to look at the register, which will show those particular interests, but they do not shape my view. I would like to finish the argument. If noble Lords want to go on interrupting me that is fine, but I would like to finish the arguments which substantially substantiate the case for accepting these regulations.

As I was saying before I was interrupted, these rules are very similar to the rules produced under the previous Labour Government but with the addition of some sensible provisions on integration. Let me remind colleagues that these regulations are totally compatible with the policy of using the independent sector in the NHS set out in the 2005 election manifesto of the Labour Party. Some may recall that Labour won a third election on the trot with that manifesto. I also remember, as a Minister, implementing the NHS parts of that manifesto with a policy of “any willing provider”. Many of the interests opposing these regulations look remarkably familiar to me from those days.

Even in the swashbuckling new Labour days of modest NHS competition, most PCTs’ contracts were rolled forward each year under that regime without any tendering process, competitive or otherwise. My guess would be that there were probably somewhere of the order of 50,000 of those contracts each year. It would have been totally impracticable and unnecessary to put many of those out to competitive tender each year, or even every three years. It will be the same with the 211 clinical commissioning groups. They will not be able to put out to tender on any great scale a large number of contracts, and they will be operating with a smaller number of staff than the PCTs.

The clinical commissioning groups will have to concentrate their change efforts on those services where there is continuing failure or underperformance, or where it is clear that there is a bigger prize of patient benefits from a major overhaul and out-tendering of services. I suggest that it is almost a paranoid fantasy to suggest that David Bennett and Co. at Monitor, with about 40 staff working on competition issues, will be able to act as a kind of Stasi outfit, rounding up clinical commissioning groups which have not recorded enough competitive tendering processes.

I am afraid that I have to disagree fundamentally with many of my colleagues. My sympathies are with the Minister over these regulations. He has done his best, in his customary patient way, to clarify them. In my view, they are perfectly acceptable in their present form and can always be amended in the light of experience. To my colleagues on these Benches, I would say that we ought to remember what was satisfying to the British public when we were winning elections. This approach of injecting, on an agreed basis, some measure of competition and change where NHS public providers are consistently failing is in the best interests of patients.

[Lord Owen]

My Lords, the noble Lord and I served together in the Department of Health many years ago, and he will remember that his then boss, Barbara Castle, warned in the 1975 referendum about the impact of the European Economic Community, as it was then called. I thought she was greatly exaggerating the challenge, but it was interesting in that campaign that the allegation that the European Economic Community contained within it the capacity to interfere in the National Health Service was specifically denied.

As I understand the last two speakers, a great deal of justification for this regulation comes from an obligation under EU legislation to go in the direction that we are presented with—competitive tendering, potentially in all aspects of NHS care. Why is this not being done in Scotland, Wales and Northern Ireland, all of which are in the European Union and all of which ought, if this is so compelling, to be under this obligation? Why is it not being done in Finland, Denmark and other countries? Why was specific provision made in the European Union for people to exempt publicly provided services? Why did successive Governments argue that the National Health Service was not going to be covered by EU legislation?

The last speaker’s intervention was painful for many of his colleagues on the Labour Benches, and it is probably right that we should be discussing, as has been already suggested, the 2010 regulations as they affected PCTs. Were they driven by EU legislation? The Minister knows that I tried to get from him through a freedom of information request the advice on which the Government’s legislation was founded, because I felt that we were not being told the truth behind our relationship with the European Union. It was very difficult to hold this debate without knowing the actual legal advice. I hope we will get that. I do not want go too far into all these issues in this debate, but underneath it there is a fundamental question. The National Health Service, as it was conceived, had a substantial element of public provision within it. There then came the provisions of the internal market, which I thoroughly supported and have always believed was necessary. Doctors had to be more conscious of costs. The whole health service had to be aware that it was making considerable economic decisions, often involving budgets of millions of pounds. There had to be a mechanism for cost comparison as a simple measure of good management.

In this regulation we are presented with the full impact of the 2012 Act. It has been hitherto denied, but within this Act is the potential—and I agree somewhat with the remarks that it will take some years for it to evolve—to have a fully marketised National Health Service. If that is the choice, the people of this country should be told about it. They should know that this is the direction in which we are going.

I will now deal with the regulations. We have had the fiasco in which our own scrutiny committee on statutory instruments has been highly critical not just of the statutory instrument that has been withdrawn but of the present one. The committee has also felt that the regulations have not been understood and have had sufficient consultation. We do not even have the consultative document, which we are told is so important, in front of us today. Maybe that is a good thing because it focuses our mind on the legislation. What is the law? That is why subsection (5) is so difficult for many people.

Let me say here what Help the Hospices and Marie Curie Cancer Care think about this. They say:

“The Regulations as they are currently worded will mean that competitive tendering could become mandatory in all but the most exceptional circumstances”.

I stress the word “could”. We cannot leave this as an open question. They say:

“Given the burden of having to put each individual service out for tender”—

which has been mentioned—

“CCGs will tend to bundle services together to put out for contract, as currently happens in local government”.

Quite apart from the fact that the comparison between local government and the NHS does not stand up for one moment, they are right—this, again, has been said—that bundling will take place. The problem for charities and for small funded organisations is that if contracts are bundled, this could put them out of the reach of the voluntary sector providers, which by their very nature are providers of specialised care—unless they are going to be embraced by the bundled commercial companies, and many people think that that is the direction in which we are going.

The charities say:

“If voluntary sector providers are forced out of the market then this could have a negative impact on patients and the communities they live in”.

Most of us have heard of the hospice movement in our localities, which has brought about a massive change in attitudes in the health service that has been very beneficial. Most of us have also had experience of the effect and the value of the Marie Curie foundation. Are we seriously just to ignore these charities when they come forward with these views? Are these changes politically motivated? Are they driven by some ideological persuasion? Are they committed to what was being experimented with in 2010, 2012 and now 2013? We are warned by many professional people, particularly public health doctors, of the effect of these changes.

We have looked at the NHS over many years and pride ourselves on it. It is not perfect, it never was, but it still provides a hugely cost-effective rationed health service and is popular. Why is rationing popular under the NHS? One reason is that it is democratic. People feel that in the general sense it is fair. However, we are now being asked to put all these decisions to an unelected quango. We are now accompanied by a letter that tells us when we can expect to get answers from Ministers and when we will have to have answers from quangos. Is this a change in the NHS? You bet it is. Is this the health service that Aneurin Bevan conceived of? Is this the idea that I thought the Labour Party was wholly, absolutely and totally committed to?

The charities go on to say:

“The problem hinges around the use of the word ‘capable’ in Section 5 of the Regulations”.

They are right to say that. They fear that,

“‘capable’ will be interpreted narrowly to mean only that a provider is able to provide the service within the budget set out by the commissioner. This means that … There will be few if any services where there is only one capable provider … Providers will feel confident to regularly challenge CCGs’ commissioning decisions … Without legal cover to award contracts without advertising, CCGs will simply put all services out to competitive tender to avoid challenge”.

Lawyers in this area tell me that of course they should be opposing this legislation, but in terms of their own financial development—the income that they are going to get—they are of course wholly in favour of it. Consultancies in healthcare are straining at the leash in the United States to come over here and make profits that they cannot make even under some of the HMO arrangements in the US. For 18 years I was on the board of a massive healthcare company in Chicago, and it used to watch the NHS. My wife is American, and she still thinks the NHS is the best thing that she found in coming to this country.

I warn this House: do not think that this is a minor step. If this goes through, the NHS as we have seen it, believed in it and persuaded the electorate that we support it, will be massively changed. It will take five, 10, 15 or maybe 20 years, but unless we pull back from this whole attitude there will be no National Health Service that any of us can recognise, and tonight I feel one feeling only: overwhelming sadness.

NHS: Leeds General Infirmary

Lord Warner Excerpts

Tuesday 23rd April 2013 Lords Chamber

[Earl Howe]

My Lords, children’s heart surgery has been the subject of concern for more than 15 years. Clinical experts and parent groups have repeatedly called for change, and there is an overwhelming feeling in the NHS that the time for change is long overdue. The review that has taken place was about making sure that children’s heart services are as good as they possibly can be, and that has to be the message to the parents involved. It is of course an extremely complex issue but it is generally accepted that concentrating surgical expertise will deliver better outcomes for the children concerned. In view of the legal proceedings, it is very difficult for me to go any further than that at the moment.

[Lord Warner]

My Lords, if NHS England decides, under its new responsibilities, to undertake and control the specialised commissioning functions within the NHS, and if it chooses to implement the McKay panel’s recommendations on paediatric surgery, can the Minister say whether they would accept that judgment by NHS England or whether they would seek to overturn it?

[Earl Howe]

I take the noble Lord’s question to mean: would the Government accept that decision? Yes. This is a matter for the health service to determine. As I mentioned earlier, the Safe and Sustainable review was an NHS review. The Government and Ministers were not in any way involved in it, and that is appropriate. Therefore, the answer to the noble Lord’s question is that the Government would stand back from any such decision.

NHS: Mid Staffordshire NHS Foundation Trust

Lord Warner Excerpts

Monday 11th March 2013 Lords Chamber

[Lord Warner]

My Lords, I recognise that Robert Francis performed an important public service in his first report by identifying appalling failures at the Mid Staffordshire trust. However, as others have said, things have moved on since then. Frankly, I found Francis’s second report much more of a curate’s egg. His call for candour and more transparency in the NHS deserves our support, as does identifying board members and managers who are not fit and proper persons. The CQC needs to improve its effectiveness, especially in its use of provider registration, but I hope the Government will see the 290 recommendations as an à la carte menu from which they can select judiciously.

I want to raise three key questions. First, is there good evidence in this second report that the behaviour at Mid Staffordshire was widespread? I have read very carefully the 115-page executive summary—probably the largest executive summary I have read in my life. I did not find in that summary compelling evidence about the widespread failings that have been identified across the NHS. After the expenditure of £13 million on producing this second report, I would have expected to be more convinced than I was. Without appearing complacent, we must avoid tarring 1.3 million NHS staff with the Mid Staffordshire brush, particularly if we do not have the evidence to do so.

Secondly, is it right to concentrate such huge new efforts on monitoring and regulating hospital care? We know that too many people in acute hospitals should not be there. The estimates vary from 25% to 40%. The NHS operating framework has identified this problem for some time. I found nothing in the Francis report touching on this issue. If we now put huge amounts of regulatory effort into hospital care, presided over by a new, shiny chief hospital inspector, we miss a critical point for the future sustainability of the NHS. If we really want to hold David Nicholson to account, we should concentrate on what is being done to change the commissioning of services so that many fewer elderly people are admitted to and moulder in the medical wards of acute hospitals. That is the real systemic failure.

Lastly, I would like us to question whether the answer to failed regulation is more regulation. I question the good sense of new criminal sanctions for staff and board members. We already struggle to get good board members for what can seem a rather thankless task. Will there really be more whistleblowing if staff think they might send a colleague to jail? We need a better rating system for hospitals, but also for GPs and community services, with more publicly available standardised comparable data for the NHS service providers. This is a topic that the Government rejected amendments on during the passage of the Health and Social Care Bill. Perhaps they might like to think again on this issue.

The case for merging the CQC and Monitor has not been made out. Let us use the bits of this report that improve the NHS for patients and their families, but avoid a political virility contest on how many of the 290 recommendations are accepted.

Care Services: Elderly People

Lord Warner Excerpts

Wednesday 6th March 2013 Grand Committee

[Lord Warner]

My Lords we are all grateful to my noble friend for securing this debate and for his usual masterly introduction and analysis. Whatever our views on the right size for the total health and social care budget, it will always have a cash limit and, in the long period of fiscal austerity we face, that limit will be very constrained. That makes it imperative that we get our expenditure priorities right, especially in relation to the NHS. Our failure to do this is damaging care of the elderly at a time when we are all living longer and, on present demographic evidence, will continue to do so. The number of over 85s will double to 3 million by 2030, with increasing numbers suffering from dementia, as my noble friend has mentioned.

I will confine myself to three strategic points. First, we may be living longer but we are not living healthier lives when compared with many other affluent countries. We are 12th out of 19 such countries, according to a recent study by the Institute for Heath Metrics and Evaluation in Seattle. We can expect in this country 68.6 years of healthy life from birth before disease and disability take their toll. This compares with 70.9 years for Spain, which is top of the pops. Better healthcare is unlikely to change our position much, but a higher priority for expenditure on public health and prevention services is more likely to do so.

Secondly, the balance of what we spend on the NHS and social care is fundamentally wrong for our demographic and disease profile. Under successive Governments we have overfavoured the NHS and have neglected adult social care. There is, however, an opportunity to change this with the proposed Care and Support Bill, now undergoing pre-legislative scrutiny. Here I declare my interest as a member of the Joint Select Committee that will report shortly. That Bill has received a wide measure of support, publicly and politically, especially for its provision for an overarching principle of securing well-being for the recipients of care and support services.

We will no doubt debate the committee’s findings another day. All I want to do here is register the widespread concern that exists that the Bill’s reforms, including the Dilnot changes, will not be adequately funded because of the existing shortfall in funding that has developed over the years. I do not blame this Government particularly for that. In my view, that shortfall now stands at about 10% of the adult social care annual budget, or approaching £1.5 billion, and I suggest it is growing despite the Government’s partial efforts to close the gap. We must not pass a reforming Bill without appropriate funding to implement those much needed changes.

Thirdly, and finally, we need to re-engineer and rebalance our healthcare services and associated expenditure away from our preoccupation as a country with 24/7 services delivered through acute hospitals to more community-based services integrated with social care. Here I may diverge a little from the approach of my noble friend. The core business of the NHS is care with an acute treatment adjunct, not the other way round as it has been for 60 years. We cannot carry on with this pretence that it is in the best interests of patients to have so many clinically and financially unstable and unsustainable district general hospitals claiming to provide a wide range of 24/7 acute services. Do not believe me: listen to what specialist clinicians are saying, particularly the current president of the Academy of Medical Royal Colleges. Sir Terence Stephenson said last July:

“I don’t think it is possible in quite a small country ... to have 200 to 300 24/7 acute centres offering every single discipline … we need to move to a smaller number of bigger centres giving treatment that’s either hi-tech, risky and rare”.

I do not have time to develop this theme today but will return to it in one of our NHS debates next week. Suffice it to say that we need to start educating the public on the need, in their interests, to consolidate these acute services on fewer hospital sites and to create a 10-year development programme and funding for integrated 24/7 community-based services embracing primary community health services—including mental health services—and adult social care. I recognise that none of this will be easy for elected politicians but this direction of travel is inevitable if we are truly interested in preserving our NHS and meeting the needs of our growing elderly population in a sustainable way. I hope the Minister will feel able to reflect seriously on this kind of reorientation as the Department of Health prepares for the next public expenditure review.

Health and Social Care Act

Lord Warner Excerpts

Tuesday 5th March 2013 Lords Chamber

[Earl Howe]

My Lords, it is my intention to issue an invitation to noble Lords to join me in a meeting so that we can discuss these matters. I am very happy to do that over the coming days. The answer to the second question is yes. We read these regulations in conjunction with the Explanatory Memorandum and the line-by-line interpretation that we have also published in this case which make it crystal clear that these regulations do no more and no less than reflect the law and the Government’s policy. However, others have chosen to misinterpret the regulations, and that was something that I could not predict.

[Lord Warner]

The Minister may know that I do not always see totally eye to eye with all my colleagues on these Benches on the subject of competition. Will he say how much discussion there has been with the voluntary sector and social entrepreneurs on these regulations? In my experience they have always struggled to make their presence felt when contracts are available within the NHS.

[Earl Howe]

My Lords, the department consulted on its proposals for these regulations between August and October last year on the basis of the commitments that had previously been given. All sectors had an opportunity to feed in their comments. Our proposals for the regulations did not give rise to any anxieties at that time.

Social Care Funding

Lord Warner Excerpts

Monday 11th February 2013 Lords Chamber

[Earl Howe]

My Lords, I am grateful to my noble friend for her remarks. She is of course quite right; many of us have heard for years the concerns of members of the public, friends and family about what might be the catastrophic burden of care costs in old age. If there is one thing that everyone should welcome, it is that aspect of this announcement. With regard to a rebate, no, that is not in our sights at the moment. If someone were to die in the circumstances posited by my noble friend, the arrangement would have to remain as set out to that person at the outset. We would not expect to move the goalposts after that person had died.

[Lord Warner]

My Lords, I should declare my interest as a member of the Dilnot commission. It would be churlish not to welcome the Government’s acceptance in large part of the Dilnot architecture for reforming the funding of social care for the medium and longer term.

I have a couple of questions for the Minister. As I understood what he was saying, the new capping system is likely to start in 2017-18. I understood him to be saying that a new national threshold for eligibility criteria would start at the same time. That would therefore mean that the present eligibility criteria, interpreted by local authorities, would stay in existence for another four years, so we would have four more years of the tightening of those eligibility criteria.

I remind the Minister of a paragraph in our report that drew attention to the fact that there was strong evidence of a major shortfall in the existing funding of social care that could not be put right by our recommendations, and that if those problems were not resolved on a cross-party basis, they would simply undermine the functioning of our recommendations in the medium to longer term.

[Earl Howe]

My Lords, I hope that I can put the noble Lord’s mind at rest. In doing so, I thank him once again for the work he did on the Dilnot commission. It is our intention that the eligibility criteria will be introduced from April 2015—so, in advance of the Dilnot arrangements. As he well knows, that national minimum eligibility will be set to make access to care more consistent around the country. In addition, carers will have a legal right to an assessment to care for the first time. I take his point about trying to achieve cross-party consensus on social care funding.

As for funding in the existing system, in the last spending review we made, as he knows, an additional £7.2 billion over four years available for care and support. Since then, we have provided local authorities with an additional half a billion pounds. We believe the challenge creates an opportunity for local authorities to innovate and to explore new ways of working better to meet the needs of their local populations and to optimise the use of the resources that they have. Many local authorities are already innovating, and we are committed to supporting them to deliver further service improvements.

NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Lord Warner Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Warner]

My Lords, I support the points made by my two noble friends in their eloquent speeches. I speak as someone who was given assurances about campaigning on Report by the noble Baroness, Lady Northover. My filing system is not up to discovering whether she sent me a letter, but I have no recollection that she withdrew her assurances in any way. The set of regulations in Regulation 36(1) and (2) of Part 6, taken together, totally neuter the ability of local Healthwatch organisations to campaign effectively.

As my noble friend said, the extraordinary thing is that the Government have chosen, with absolutely brilliant timing, to bring this before the House on the day before publication of the Francis report. My noble friend was wise. He did not know when the Francis report was coming out, but the Government had an opportunity to offer the chance to defer these regulations. It is very odd that we are having this debate when no doubt tomorrow there will be an unleashing—a positive avalanche—of rhetoric about the need to put the patient at the centre of the NHS. There was a warm-up on “Newsnight” yesterday. We can see it coming. Now we have a set of regulations that will set up local Healthwatch alongside Healthwatch England. The organisations will be totally unable to campaign against policies that they regard as not in patients’ interests.

I will spend a few moments on the text of the regulations. The Explanatory Note on page 38 of the regulations states:

“Regulation 36 sets out certain political activities which are not to be treated as carried out for the benefit of the community”.

This is an extraordinary statement, but Regulation 36(1) and (2) go rather wider than that. The Explanatory Note does not accurately reflect what is in the regulations. Consideration needs to be given to the quality of the drafting of either the Explanatory Note or of Regulation 36(1)(a) and (b), interrelated with Regulation 36(2). Regulation 36(1)(a) and (b) prevents a local Healthwatch organisation promoting or opposing changes in the policy adopted by any governmental or public body in relation to any matter, including the promotion of changes to the policy, unless under Regulation 36(2)(a) they can reasonably be regarded as incidental to other activities which are acceptable. So it is left to a multitude of small local social enterprises around the country to make a judgment, day by day, about whether what they are doing offends the provisions in Regulation 36(1)(a) and (b), as modified by Regulation 36(2)(a).

Even if we assume that there is some scope under that wording for them to campaign—which I very much doubt on any reasonable interpretation of the words—they will be in a state of uncertainty, and they will be expected to resolve that uncertainty with the minuscule amounts of money they have to carry out their operations. So if the Government want them to be effective with the small amounts of money there is likely to be, why do they want them to be tied-up by and concerned about obscure regulations which call into question their right to do the sane and sensible thing on behalf of patients in their area?

This House operates on the basis that one can accept assurances from government spokesmen while legislation is going through and we do not pursue matters when we are given them. However, as an individual Member of this House, I take umbrage about the assurances we were given on our ability to campaign. And not only me—the point about campaigning was repeated by my noble friend Lady Pitkeathley and again we were given assurances. We did not press this point further at Third Reading but, had we not been given those assurances, I am sure we would have come back to this issue at that stage. The Government have some explaining to do about why those assurances were not reflected in the wording of these regulations.

I support the point made by my noble friend Lord Collins about the extraordinary definition of a lay person. As other interests said to the Secondary Legislation Scrutiny Committee, this definition of lay person and lay involvement creates a situation in which it is possible to have people in local Healthwatch organisations who could be said to be in a position to manipulate discussion and debate on behalf of the very people that a local Healthwatch organisation is supposed to be monitoring and looking into.

Finally, I draw attention to the requirement provisions in Regulations 40 to 43. If one looks at these as a normal human being, they again pose a bureaucratic nightmare that will be excessively burdensome for the small organisations which will have to understand what it all means. I do not think it is beyond the wit of the Department of Health, Ministers and civil servants to produce proportionate regulations in relation to small bodies which spend relatively small amounts of public money.

These regulations are totally disproportionate to what they are trying to regulate in the interests of patients. The best thing the Government can do is graciously to withdraw the regulations, think about what is going to happen tomorrow, reflect on this and, after further consultation with stakeholders, come back with regulations which live up to the promises that the Government made and are more appropriate for the organisations being regulated.

[Baroness Jolly]

My Lords, just under a year ago on 8 March 2012 we were asked, during the passage of the Health and Social Care Act, to accept a last-minute change of structure of local Healthwatch because, as the Minister put it at the time, on reflection the Government realised that greater flexibility was needed over the organisational form of local Healthwatch. It was not entirely clear what lay behind this sudden realisation, which happened after the Bill had been through the Commons. The House was given only five working days within which to make sense of 50-plus government amendments that were put down at the time to achieve this change.

This was a very unusual action for the Government to have taken and very little explanation was given. Stakeholders in patient and public engagement were not consulted; we were asked, effectively, to give the Government the benefit of the doubt. We continued to put our faith in the Government’s intention as stated in the White Paper, Equity and Excellence, which aimed to strengthen the collective voice of patients through a new independent consumer champion within the Care Quality Commission, manifested at a local level as local Healthwatch with a strong local infrastructure.

During the debate on Report, the Minister described Healthwatch as, indeed, the voice of the people. At that time, we were dealing with the third reform of the way in which local communities influenced their NHS in three years, and there was a general view that, for their sake, we needed to get on with it. To avoid switching off the power for local communities to have a say in local services for too long, we felt the turbulence of further reform needed to be kept to a minimum. We hoped that secondary legislation would give the system its real shape and we would have an opportunity to ensure that the essentials were in place, changes in structure notwithstanding. This secondary legislation, which is among the most difficult to fathom, really fails to reassure.

My noble friend Lady Cumberlege will deal with freedom of speech and action. I would like to ask my noble friend the Minister about two issues relating to who will make local Healthwatch’s decisions on what it does and how it does it, and what type of involvement lay people or volunteers will have in those decisions.

Local Healthwatch must be a social enterprise contracted by a local authority and may have many subcontracts with other organisations—which may or may not be local or social enterprises—to support or carry out its statutory functions. To try to cut through this structural tangle and preserve the essence of local Healthwatch as the Minister intended it to be—the “collective voice of patients” operating through a “strong local infrastructure”—in March 2012 we focused on who would be involved. We debated the independence of local Healthwatch from the local authority that contracts it, and similarly the independence of Healthwatch England from the CQC, of which it is a committee.

We felt that if local people wholly outside the health and social care system were leading this new structure, they would make it work properly, despite any inherent inadequacies which we were not afforded the time to correct. Therefore, we were pleased when on Report the Minister gave a clear and unambiguous undertaking on behalf of the Secretary of State. She said:

“I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords”.—[Official Report, 8/3/12; col. 1990.]

Despite the evident good intentions behind this undertaking, something seems to have gone wrong with its execution. There is a serious legal contortion in the regulations around the definition of “lay persons and volunteers”. Suffice to say, it can include staff of health and social care commissioners or providers, as long as they are not clinicians.

This brings me to the role of the Secondary Legislation Scrutiny Committee of your Lordships’ House. It considered this SI on 15 January and its 23rd report draws these regulations to the specific attention of the House,

“on the grounds they give rise to issues of public policy likely to be of interest to the House and that they may imperfectly achieve their policy objective”.

The committee noted that staff could be decision-makers in local Healthwatch. The department did not dispute this in its response to the committee, which therefore concluded that,

“the current wording may leave Local Healthwatch vulnerable to manipulation”.

The committee has been unequivocal in highlighting the errors it perceives in the secondary legislation, saying:

“The Department has offered a legal and policy response, but that may not be enough: the Department needs to address urgently the points raised to the satisfaction of the public because without trust in the basic structure the Department simply may not get the volunteers it wants”.

These regulations do not deliver on the undertaking we were given. There is no assurance of independence, credibility or a strong collective voice for patients. Local Healthwatch could be a mere proxy voice spoken by others—indeed, those others are the very people against whom that voice may wish to speak.

To help reassure both this House and the committee, perhaps the Minister could help me with two scenarios. First, could the manager of a care home sit on its local Healthwatch? If he or she did so, how confident would local people be in the conclusions of that local Healthwatch about the quality of services both at that care home and others? Secondly, could a local profit-making provider of primary care be a local Healthwatch contractor? If so, could its manager sit on the local Healthwatch decision-making group? How confident would local people be in the information they obtained from local Healthwatch in helping them choose a GP?

Moving on, what exactly constitutes “involvement”? The regulations require,

“a procedure for involving lay persons or volunteers”,

although the distinction is unclear. As the Secondary Legislation Scrutiny Committee points out, “involvement” is not defined. The main problem is that in paragraph 38 the regulations deliver,

“the involvement of lay persons and volunteers in the governance”,

but not participation in decision-making, which one would have expected to see in Regulation 40(4).

We know from Sections 23 and 26 of the Health and Social Care Act, which relate to the national Commissioning Board and CCGs, that involvement in the context of patient and public involvement may simply mean giving information. There are no criteria for when more is required.

--- Later in debate ---

[Lord Warner]

I am sorry to interrupt the Minister, but I must follow up my noble friend’s comments. The noble Earl seems to be saying that if the local authority takes agin what a particular Healthwatch is doing locally, the local authority can say, “Hey guys, your contract’s up and we’re going to retender”.

[Earl Howe]

That is not what I am saying. As I said earlier, it will be important for a local Healthwatch in any campaigning or public statements to assure itself that it is truly representing local people and patients, and has the evidence to back that up. If it does, and if it can show that what it is saying is genuinely supported by local people, it has nothing to fear. It is only where the Healthwatch may latch on to one or other political party without reference to local people that it may be vulnerable.

Social Care: Funding

Lord Warner Excerpts

Monday 21st January 2013 Lords Chamber

Asked By

[Lord Warner]

To ask Her Majesty’s Government when they will announce their decision on the Dilnot Commission’s recommendations on capping the cost of adult social care for individuals.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Prime Minister and Deputy Prime Minister have committed to announcing further details before the Budget on capping the potentially huge costs of long-term care, giving people the certainty that they need to plan for their long-term care needs. The Government have agreed the principles set out by the Dilnot commission. We expect further details shortly.

[Lord Warner]

My Lords, I am grateful to the Minister for that reply. Progress is being made, albeit a little slower than many of us would like. Will the Government prepare draft clauses on a capping system for consideration alongside the draft Care and Support Bill? Does he agree that, to work effectively and fairly, national capping of individual liability will require the draft Bill to provide for portable national eligibility criteria?

[Earl Howe]

My Lords, as the noble Lord is aware, the draft Care and Support Bill is currently going through pre-legislative scrutiny. Our proposals can be amended to support the cap in law and we would include the appropriate provisions when legislation is introduced. I can tell the noble Lord that work is going on drafting such clauses. We have said that we will build national eligibility criteria into the Bill.