Health and Social Care Bill
Lord Warner Excerpts(12 years, 9 months ago)
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Baroness Thornton
My Lords, I think the noble Earl has answered the question as far as it goes, but he raises several points. First, this Bill did not need to be in front of us at all because many of the changes that are taking place do not need primary legislation. Secondly, his colleagues in another place have constantly said that the Bill cannot be dropped because it has gone too far. We are not in the same place now as we were at the end of Committee; millions of people in the health service have now expressed their view that this Bill should not happen at all. Given that, do the Government have a plan B in case they need to withdraw the Bill? Do they have people working on that in case the Bill has to be dropped?
Lord Warner
My Lords, before the Minister responds to that question, will he consider later—if he cannot answer now—the budgets for clinical commissioning groups? I understand from a meeting of the national Commissioning Board, which was held in open session on 2 February, that Sir David Nicholson is reported as having said that clinical commissioning governance is, in effect, moving on apace, and that more than 95 per cent of clinical commissioning groups have now agreed their constituent practices and geographies and are already seeing benefits in their services from the work that they have been doing. At the high level, around 50 per cent of the commissioning spend is already delegated to clinical commissioning groups from PCTs under various delegation schemes. That seems fair enough, but there is a final point on which I would welcome the noble Earl’s clarification. It says that the ambition is for all this to be so delegated to clinical commissioning groups by 1 April 2012. Will that delegation still be part of the present powers, or is it in anticipation of the legislation being passed in time?
Lord Howarth of Newport
My Lords, has the noble Lord, Lord Owen, not drawn our attention to a particularly egregious example of a problem that is, however, long-standing? Have successive Governments not taken the will of Parliament for granted following Second Reading of measures and begun to spend money and implement transitional arrangements on that basis? Has it not always been improper, and should Governments not be particularly careful when they are well aware that the policies embodied in their legislation are highly contentious? I hope that we may hear some considered reflections by the Government on the generality of this practice, as well as on this particular incidence. It may be that the relevant Select Committees of both Houses of Parliament will want to consider this problem.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 9 months ago)
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Baroness Finlay of Llandaff
My Lords, I wish to raise some questions because I have put my name to the amendment suggesting that Clause 4 be deleted. The Government’s guidance notes published with the amendment that has been tabled appear to make the duty of autonomy subject to the Secretary of State, but there is ongoing concern that there remains the risk that the clause could be used by clinical commissioning groups to justify not providing a full range of services or putting inappropriate services out to tender. While local organisations should have the freedom to respond appropriately to the health needs of the population, local commissioners should not be able to act totally autonomously and commissioners must have regard to national guidance. In his closing summary, the counsel to the chair in the Francis inquiry pointed out that there is a need for far greater standardisation of operating and quality standards in the NHS and close monitoring of compliance.
Concern about the inclusion of Clause 4 continues to lead to some uncertainty, confusion and concern about how competition would be applied in the new system. Phase 2 of the Future Forum recommended that the Government clarify the rules on choice, competition and integration. The concern is that if the restraint on autonomy is not as tight as it possibly ought to be, services could fragment. The Government need to clarify that integration will trump competition. I ask the Minister to clarify that the national Commissioning Board will be prepared to intervene if clinicians feel that the type of competition that is being proposed could fragment services. We have heard quite a lot about commissioning along whole-care pathways, such as musculoskeletal services and mental health services, and in whole-function areas, such as community services. There is concern that where this has happened in the east of England with musculoskeletal and respiratory pathways, there is a sense that they should have been put out to tender more than they have been. There is concern that there are times when whole-care pathways should not be subject to competition. The difficulty with the clause is that it leaves in doubt how much integrated whole-care pathways, which may not leave complete autonomy to different parts of the system, will trump competition between different parts of the system.
Lord Warner
My Lords, I had not intended to intervene in this group of amendments, but I want to make a couple of points and leave a question with the Minister. I have always been in the camp that feels that Clause 4 was misguided and should be abandoned. I can see the case, which was put very well by the noble Lord, Lord Marks, for retaining Clause 4 with these more controlled features. Listening to this debate, I have a number of concerns.
There is genuine concern that there might be a really rogue clinical commissioning group, but listening to the noble Baroness, Lady Finlay, has revived my concern that somewhere along the line, if we are not very careful and are too controlling, we will stop the initiatives that we want from commissioners as the NHS faces considerable challenges. As the House knows, I do not have the same fear that other Members of your Lordships' House have about third-sector or independent-sector providers, so I would not want anything in the peace that we see breaking out here to inhibit creative clinical commissioning groups setting off on new paths for new types of services simply because major people in the NHS have not woken up to the need for significant change. I hope that the Minister can reassure me that, in accepting this more nuanced version of Clause 4 on autonomy, we are not really inhibiting the creativity of clinical commissioning groups to bring in new players, even if it may seem a rather radical idea when they start to do it.
Finally, as the Minister knows, I have a mild obsession with the whole issue of a pre-failure provision in this legislation, which we will come to later. One of my continuing concerns is that we do not want to end up with a situation where we are restricting the ability of the National Commissioning Board to begin to intervene—to tackle failure at the local level—simply because autonomy requires people to flounder along as long as they like on the grounds that it is all about localism. I hope the nuanced version of Clause 4 that we are getting is still accepted as something that would enable the National Commissioning Board to intervene when there was a total failure by providers and commissioners at the local level to tackle the problems of clinical and financial unsustainability.
Lord Harris of Haringey
My Lords, every time I look at Clause 4—[Laughter.] I cannot understand what my noble friends find so amusing, but every time I look at this particular clause—if that makes it easier for them—and particularly listening to the remarks of the noble Lord, Lord Marks of Henley-on-Thames, I have been confused as to what problem the Government think they are solving by the clauses on autonomy.
There is apparently a concern about micromanagement. There is a desire to have local innovation, flexibility and local responsiveness. What is it about the current arrangements in the NHS that necessarily prevents local innovation, flexibility and local responsiveness? Why are we having these discussions? If there is a concern from the Government that they are micromanaging, they have a solution—they stop micromanaging. Again, what are we trying to do here?
However, once you include,
“the desirability of securing, so far as consistent with the interests of the health service”—
or whatever form of words you choose to have—this principle of autonomy, you are setting up an automatic conflict. If the form of words that the Minister and the noble Lord, Lord Marks of Henley-on-Thames, have put their names to was in the Bill, does this mean that the Secretary of State will be intervening when there are clear cases of postcode lottery? That presumably is the implication. Or is the Secretary of State now going to say that in fact a postcode lottery is what this legislation is designed to create? We should be clear about what these clauses are trying to prevent. What is the problem that they are trying to solve?
The noble Lord, Lord Marks of Henley-on-Thames, was moving in his description of how the Secretary of State would weigh these difficult issues of the possible conflict between,
“the desirability of securing, so far as consistent with the interests of the health service”,
autonomy and the priorities of the fundamental role of the NHS. This is a balance that has to be weighed. He talked about this line of accountability that will exist between the NHS Commissioning Board and the CCGs—these tentacles that the NHS Commissioning Board will put throughout the NHS. They will be unaccountable and anonymous, and individuals will be operating at regional or at local level.
There will be an army of people operating as the tentacles of the NHS Commissioning Board. They will be informing the Secretary of State so that he can exercise his judgments about the balance between autonomy and meeting the principles of the NHS. I wonder whether the Secretary of State is creating the most extraordinary bureaucratic monster to solve a problem that could be easily solved simply by resisting his tendency to micromanage.
Lord Willis of Knaresborough
My Lords, it is a very pleasant duty to know that amendments proposed in Committee have been accepted by the Government in their totality. I thank the Minister for doing that. Amendment 11 removes from the Secretary of State the idea of “having regard to the need to”, and gives a clear duty to promote research—and that is the case in Amendment 60, with commissioning boards, and in Amendment 103, with the local commissioning groups.
The broader research community—from the Wellcome Trust; the Academy of Medical Sciences; and members of the organisation that I chair and declare an interest in, the Association of Medical Research Charities—is incredibly grateful to the Minister for persuading his colleague, the Secretary of State, to accept far stronger policy on the duty to research. I also put on record my thanks to noble Lords on all sides of the House, including Cross-Benchers and Front-Benchers, for supporting this. It is very rare that you get such an area, which will clearly make a fundamental difference to patients, bringing the latest research to the bedside as quickly as possible—and to get the whole House to support that.
The result of this, if we make it work, will be the only research-led health service in the world. That is an incredible achievement in your Lordships' House and in many ways surpasses some of the debates that we have had about other areas, which frankly will not make a great deal of difference. I include the debate on Clause 4, which we have just had. I know that Members on the Labour Benches like debating Clause 4; it gives them a feeling of déjà vu. However, in reality, for us as a nation to say that we have a research-led health service, where we can bring our huge clinical research base very quickly to patients, gives us an opportunity not only to deliver wonderful healthcare but to use that as an economic generator right across the world, and to bring high-quality healthcare to people who desperately need it. In fact, they need it a great deal more than we do.
In order for that to work and for these to be more than simply words in a Bill or rhetoric in this House, there have to be mechanisms to ensure that the duty which we have now agreed for the Secretary of State—or which I hope we will agree—concerned with the commissioning board and the commissioning groups, is actually brought to bear. There is nothing left in the Bill which gives me the comfort of saying that is going to happen.
We asked in Committee whether the commissioning board, and indeed the commissioning groups, should have to include in their commissioning plans what activity is taking place in research. If we get the health research authority up and running—I commend the Minister for all that he has done in terms of the special health authority—and if we start to get the 70-day permissions for clinical trials in, we will have a Rolls-Royce system, if I may use that analogy, for bringing research programmes right through into our hospitals for our patient development. However, unless we are able to have that built into the commissioning plans, and unless the commissioning board and the Secretary of State drive that—and this House and another place hold him accountable for that duty—quite frankly, it will be a hollow gesture.
We also sought in Committee a requirement to report on that activity. How telling it would be if patients asked the commissioning groups or their local GP, “What is the activity in the cause that I have?”? We had that wonderful debate earlier on prostate cancer. That is the way in which we will get research developments brought into the clinics and into GPs: by patients being able to query what is happening in research. In thanking my noble friend the Minister, I ask him whether, in responding to this short debate, he will outline to the House very clearly how we are going to make this work. How will we make that duty to promote research into having an NHS that is world-class in terms of its research? How will it work?
Lord Warner
My Lords, I intervene briefly to echo everything that the noble Lord, Lord Willis, has said. We should not rest on our laurels as regards research. I do not want to go over the ground of micromanagement, but the NHS is very quick indeed to forget its responsibilities on research—and I say this as a Minister who was responsible for NHS research and development under the previous Government. We do not want to go back over the micromanagement debate, but the mandate is a critical issue if the NHS is really to keep research at the forefront of its thinking.
That is because at local level, too often on the provider side of the NHS research is forgotten. It is a Cinderella service which comes second to service delivery, and we end up seeing that people at senior levels and at local level absolve their responsibilities in this area. Nothing is a better example of that than the way in which local ethics committees and the people around them have inhibited the advance and the speedy development of research. I do not think that the Secretary of State can absolve himself of these responsibilities here with just this duty. Year in, year out, he will have to use the standing rules and the mandate to make sure that the NHS’s nose is kept to the research grindstone in the very way that the noble Lord, Lord Willis, has said. I hope that the Minister will be able to convey some of that back in the department as well as on the Floor of the House.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 11 months ago)
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Lord Warner
Lord Warner
My Lords, owing to a slight miscommunication, my noble friend Lord Patel and I intended not to move Amendment 345, so we will move to Amendment 346, which is very similar in purpose to Amendment 345. As I informed the Government Whips’ Office earlier this morning, I shall move into this group Amendment 348, which has some similarity to the amendments in this group. I hope that the noble Earl will be able to find his briefing and order it accordingly.
We now reach Part 9, which is concerned with information standards and the Health and Social Care Information Centre. I should declare an interest because, as a Minister, I was a kind of male midwife at the birth of the information centre some years ago. It is an organisation that has had its ups and downs, but it has grown in stature and I support the Government’s wish to put it on to a statutory basis. There is nothing between us on that issue.
I also welcome the idea of an information standard specified in legislation, but I wish to strengthen the provision on this set out in Clause 247(1). Amendment 346 would replace the word “may” with “shall” in Clause 247(1) so that the Secretary of State had to prepare and publish an information standard. Amendment 347 would extend the subsection to define that the standard covers the collection, processing and dissemination of information rather than just processing.
Lord Warner
I was the Minister of State responsible for competition policy in the NHS in 2006, when this legal advice was sought by me and, I think, by Patricia Hewitt as the Secretary of State. As I recall, it was at the point when we were considering the whole issue of regulation reform and Monitor becoming an economic regulator. For my part—I cannot speak for Patricia Hewitt—I would be only too happy for that information to be made available to the noble Lord, Lord Owen. If, in a sense, I am the client, I waive my client’s responsibilities in this area, and I am very happy for that information to be shared.
Earl Howe
I note the noble Lord’s liberality of spirit in this Christmas season. The problem is that it is not up to him, or indeed me as an individual, to cut across the practice which has been laid down across government. However, I have undertaken to look further into this question and I shall indeed do so.
Lord Warner
In the spirit of Christmas, I make myself available to attend the Permanent Secretary’s office. I hope that the coffee in the Department of Health is a bit better than it was when I was there. I would like to take up that offer, which is a very good and constructive suggestion by my noble friend. I hereby deliver the request to the Minister.
Earl Howe
I am grateful to my noble friend. I cannot predict what the collective view of the Government would be in a situation in which the decision on appeal went against my department. We have not reached that stage yet but it is potentially the case that the Government as a whole would wish to pursue the matter further in that eventuality.
Perhaps I should now revert to the amendments before us, beginning with Amendment 346. The noble Lord, Lord Warner, is absolutely correct: information standards are important. However, we need to remember, too, that standards have to be appropriate. There can be burdens associated with them as well as benefits. There are a number of different types of information standard that could help to support the health and social care system—for example, standards to ensure the comparability of data or information governance standards to protect patient information. We intend to consider the detail of which standards we would require following the publication of the information strategy. As a result, we think that it is better to create an enabling provision that does not tie the Secretary of State or the Commissioning Board to an obligation to prepare a standard, and gives us an opportunity to consider where we can adopt standards that already exist.
The amendment also seeks to remove the authority for the Secretary of State or the Commissioning Board to prepare an information standard. This means that the Secretary of State or Commissioning Board would have the power to adopt only an information standard designed or prepared by another body. However, in some cases they may need to design a new information standard themselves, rather than rely on one prepared by another organisation. We believe that the Secretary of State and the NHS Commissioning Board would be best placed to develop or commission an information standard if, for example, it became apparent that one had not been prepared by another body or needed to be modified to be appropriate.
Turning to Amendment 347, I should like to reassure the noble Lord that, under the current drafting of the Bill, the collection and dissemination of information would also be subject to information standards. This is because the “processing” of information, as the term is used in this clause, has the same meaning as in the Data Protection Act 1998, which includes collecting and disseminating information. Therefore, the additional wording is unnecessary.
I am sympathetic to the sentiment in Amendment 347A. There are many intended benefits to using information standards, which include those highlighted in the amendment. However, prescribing the anticipated benefits or beneficiaries of the policy in the Bill is not necessary. In fact, it could prevent the development of information standards that do not fit into those categories. I hope that those comments will reassure the noble Lord.
The noble Lord, Lord Warner, asked me why we put so much about information standards in this part of the Bill, compared to what we put in the Bill about accounting standards. Our view is that it is essential that information standards are set at a national level to allow different systems to talk to each other. That is an approach that the noble Lord shares. With accounting standards, the arguments are slightly different. I do not agree that it is appropriate to put accounting standards on the face of the Bill. We need to ensure that the management information collected by local organisations is of use to those organisations; that is, the organisations have the flexibility to determine their management information needs. However, I will write to the noble Lord on this matter before Christmas, and no doubt he and I can have a further conversation about it. I look forward to that.
On Amendment 347B in the name of the noble Lord, Lord Low, we agree that it is vital that people receive information in an appropriate format. This point was clearly made in the responses to our consultation on an information revolution. For example, the RNIB, of which the noble Lord is vice-president, highlighted the importance for health professionals to be made aware of, and respond to, people’s need for information in alternative formats.
We fully recognise the need for people’s communication and information requirements to be recorded—for example, in their care records—and for that information to be shared with professionals along care pathways. I reassure the noble Lord that the department is currently working with stakeholders on the best way to achieve this, which could be through an information standard or through other mechanisms. Further detail will be included in the information strategy, which we plan to publish in April next year.
I realise that I have not covered Amendment 348 in the name of the noble Lord, Lord Warner. This amendment would require the information centre to arrange for and publish an independent audit of its processes every three years. I completely accept that effective oversight and scrutiny of our arm’s-length bodies is important so that the department and the public can be assured that they are performing their functions effectively and are providing value for money. However, we do not believe that this amendment is necessary. I shall briefly explain why. First, as a department, we plan to undertake formal performance and capability reviews of each of our arm’s-length bodies at least every three years, including the re-established information centre. This would consist of reviewing its performance, financial controls and internal governance, and what one might term its “organisational health”, including the centre’s relationships with its key partners in the system.
In addition, the information centre, as a non-departmental public body, would be required to establish an audit committee that would provide independent and objective oversight and assurance of the centre’s systems of internal control, including risk and financial processes. The Bill also requires the information centre to prepare annual accounts each financial year. These would be examined and certified by the Comptroller and Auditor-General and laid before Parliament.
Finally, the Bill makes provision for the re-established information centre to be subject to the Parliamentary Commissioner Act 1967. This means that the Parliamentary and Health Service Ombudsman would be able to investigate complaints that the information centre had not acted properly or fairly or had provided a poor service in the exercise of its functions. With those assurances, I hope that the noble Lord, Lord Warner, will feel able to withdraw the amendment.
Lord Warner
My Lords, I am grateful to the Minister for his full reply to my amendments. I will certainly study it very carefully. I think that he and I probably differ on the issue of information standards and accounting standards. I still think that there is an issue in that area given how significant it is for the NHS. Therefore, I will probably return to it.
Before I sit down, I should also mention that in recent days the King’s Fund has produced a report on the very serious situation in London, which is extremely relevant to the consideration of the risk register as it shows that more than 50 per cent of the NHS’s historic deficit is held in London. London is in serious financial difficulty as regards converting many of its trusts, if any, to foundation trust status. The Minister might like to look at that report when considering this whole issue of access to the risk register. In the spirit of Christmas, I say to the noble Earl and to the noble Lord, Lord Low, that I recently bought a case of Chapoutier wine, the labels of which are also printed in Braille. Therefore, I say to the noble Lord that if a French winemaker can do that, the Department of Health ought to be able to do it. I beg leave to withdraw the amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 11 months ago)
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Lord Warner
My Lords, Amendment 344 in this group, in my name and that of the noble Lord, Lord Patel, and the noble Baroness, Lady Thornton, has been prompted by the Government’s apparent wish to remove NICE from technology appraisals of new drugs to assess their cost-effectiveness.
I join my noble friend Lord Hunt in paying tribute to the work that NICE has done. These technology appraisals were the original purpose of NICE when it was set up, against the wishes of the pharmaceutical industry. It has done sterling work in this area which has provided it with an international reputation. One of the strange ironies of this is that the pharmaceutical industry has come almost to love NICE, because the commercial value and standing given to some of its new products when companies receive a positive appraisal by NICE has been considerable. When I went to America to make my peace with some in the pharmaceutical industry after cutting their prices, and after they sometimes broke down in tears over the drop in their profits, they would say that if the mean NHS was willing to pay for those drugs, they must be good things in themselves.
Value-based pricing still looks to be some way off and it seems premature to many to remove NICE from the sphere of technology appraisals—here, I should declare my interest, because I have been a Minister with responsibilities for NICE. I want to press the Minister to tell us more about the arguments for removing NICE from this work, particularly given the financial challenges faced by the NHS, and whether the Government will think again about technology appraisals and NICE’s responsibilities there. That is the purpose of the amendment; I look forward to hearing the Government’s views.
Lord Owen
My Lords, I wish to extol the merits of NICE after watching it from the other side, which is the pharmaceutical industry. It is certainly true that the United States pharmaceutical industry was appalled initially by the appointment of NICE and there are still a lot of people who dislike it intensely. Nevertheless, it has established a scientific credibility which is rare in regulatory activities and which it would be absurd to forgo.
I am worried about a lot of the language used about NICE in this legislation. I know that “direct” will be discussed in another context, but there is an overall intent effectively to bring the body into the Government and make it answerable to them. The important quality of NICE, which was established particularly when it first arose, is its measure of independence. If that measure of independence is lost, NICE’s authority and credibility will go with it. I see a lot of merit in ensuring that the appointment of the chair carries not just the imprimatur of the Secretary of State but the imprimatur of Parliament. The Select Committee on Health, which has shown itself over many years to take an informed and knowledgeable view of the National Health Service, is a credible check on NICE becoming not just another annexe to the Department of Health.
I am also concerned about the additional responsibilities being given to NICE. NICE’s quality came from the fact that it was highly focused. That focus was on the pharmaceutical industry but it was also on science and scientific appraisal. It is a great help to the department to have this authoritative, independent view. We all know how easy it is for so-called wonder drugs to get sponsored by newspapers, individuals or trends. What NICE did was to give an authoritative viewpoint, as far as possible objectively, and to take its time sometimes when there was great pressure for an early pronouncement. It was able to withstand that pressure and say, “Until we get more evidence, we will not be able to form a judgment”. We all know that it is very difficult for the department, for Ministers and for people who are in the front line to have that measure of detachment, but scientific evaluation requires it, as well authority that has been built up over a substantial period.
I hope that the Government will not only listen to the proposers of the amendments but take this issue away and ask themselves whether they are not scoring an own-goal. NICE is an organisation that has worked; not many of our organisations in this field work quite so successfully and build such a substantial reputation within the profession which was sceptical about it. I agree with the noble Lord, Lord Warner, that even the pharmaceutical industry has come to see its value. A lot of other countries are looking at NICE and want something similar to be established. A lot of the language in this part of the Bill goes against that trend. I will listen carefully to the Minister’s reply, but I hope that the Government will have a fresh look at this matter.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl. At heart, there are two key issues here. One is the independence of NICE—I am grateful for what the noble Earl said on that. I certainly support the change in status. The reason there is some anxiety about independence is that in two parts of the Bill the NHS Commissioning Board has powers of direction over NICE. We will come on to this in relation to Clause 231 on quality standards—it applies also to Clause 236 but this is where some of the concern comes from. I am very dubious about whether quangos, to put it kindly, should have power over NICE. That is where the concern comes from and why scrutiny by the Health Select Committee of the chair would be important.
The noble Earl has reassured us that the technology appraisals will continue and that, until value-based pricing is introduced, there will be a clear understanding that NHS bodies will implement the technology appraisals. He said that it would not be appropriate for those directions to the health service to be in the Bill, but can he clarify that the current order will be amended so that instead of directions to health authorities, primary care trusts and NHS trusts in England, clinical commissioning groups will appear in the title of the order? It is quite clear that although this will be done by secondary legislation, clinical commissioning groups will be required. I take his point about the need for discretion when it comes to primary legislation, but I would like to ask him about that point.
My third point to the noble Earl is about value-based pricing. One of the joys of talking about value-based pricing is that no one understands it, and, frankly, having read all the reports and the original OXERA report, I confess that I am still rather puzzled by it. It sounds good, but I caution the Government that the PPRS has served us reasonably well. It has allowed the Government to cap the profits of the pharmaceutical industry but has given them complete discretion about the price of individual drugs—the advantage being that prices set in the UK have then been influential throughout the rest of Europe. My concern about value-based pricing is that, combined with issues around the regulation of medical health research, it makes the UK a less attractive place for the industry to invest in R&D.
My noble friend Lord Warner toured the boardrooms of New York and New Jersey, and I followed him to sweep up—
Lord Hunt of Kings Heath
—not the mess, my Lords, but my noble friend’s vigorous discussions—because of the wish to ensure that those global companies continued to invest in the UK. The problem with the Department of Health is that while it sponsors the industry, its real concern, when it comes down to it, will always be the cost of drugs to the National Health Service—hence my concern that powers of direction by the NHS Commissioning Board will not be used in a way that is conducive both to the independence of NICE and to the continued R&D spend on pharmaceuticals in this country. I do not really want to institute a debate on value-based pricing at this point, but I hope that the Government will look very carefully at its introduction and all the consequences from it. Having said that, unless the noble Earl wishes to answer the point on direction, I certainly beg leave to withdraw.
Lord Warner
Lord Warner
My Lords, briefly, Amendment 342 is in my name and that of the noble Lord, Lord Patel, who will speak to Amendment 343, which I also support and to which I have added my name.
Amendment 342 was prompted by the rather slow progress that seems to have been made so far on developing clinical quality standards. I accept that these are very important, so there is nothing between me and the Government on the virtue and value of those standards. However, the rate of progress seems to be about five a year, on the information that I have managed to obtain, and at the present rate of progress it looks to be well over a decade before the exercise is completed—and then, I suspect, the whole process will have to start again because standards are likely to be out of date, and science and clinical practice will have changed. This exercise could become rather like painting the Forth Bridge.
I am all in favour of taking care in the preparation of clinical quality standards and of the need for proper consultation to ensure that a spectrum of expertise and discussion is brought to bear on each clinical quality standard. It is important to get clinical support for those standards, but in this area speed is also important if patient care is not to suffer. I wonder therefore whether the processes for preparing these standards do not need some review. It is possible that the resourcing of the work may need to receive some attention. In addition, I believe much work has been done in other jurisdictions—certainly, a lot has been done in the United States—and I wonder whether the Government and NICE could not draw on this work in an effort to speed things up.
To buck things up a bit, Amendment 342 requires the Secretary of State to “agree with NICE” an annual,
“programme of clinical quality standards to be completed or revised”,
in that year. This should ensure that the process and resourcing are kept under review and that faster progress is made. These clinical quality standards are critical to delivering improved quality and efficiency in the NHS at a time of great financial challenge and rapid clinical and scientific advance. We need to press on with their preparation and to ensure that the Secretary of State and NICE give proper priority to this issue. I hope the Minister can agree that an amendment of this kind will help to achieve this. I beg to move.
Lord Patel
My Lords, briefly, I support this amendment and Amendment 343, which has been tabled in my name. Although the amendments refer to “clinical quality standards”, I am well aware that the Bill itself refers to them as “quality standards”. It was I and the noble Lord, Lord Warner, who suggested in previous amendments that “clinical” should be introduced, but I recognise of course that these quality standards will concern not only clinical but social care, and there should therefore be a reference to clinical and social care.
I have also made the point before that these standards ought to cover the patient’s journey of care, which goes from diagnosis through primary, secondary and tertiary care and on to social care.
I believe that I know something about clinical quality standards, and while the noble Lord, Lord Warner, referred to standards written in the United States, closer to home there have also been hundreds of standards written over the past eight years. I bet your Lordships now that the methodology that will be used by NICE will be exactly identical, but that is an argument which I will have with the chairman or chief executive of NICE—no doubt over a dinner some time.
What is important about these standards is that they are evidence-based so that it is possible to defend them, just as technological appraisals are evidence based and therefore possible to defend. The evidence that we are looking for is that which will deliver the best outcome for the patient, in terms of safety of treatment, diagnosis, patient experience and outcomes in terms of diseases.
It is also important that they should stand the test of time—that they are written and based on evidence that is tested over time, so that they do not have to change every three months and have people complaining that treatment has moved on. Experience has taught us that it is possible to write those kinds of quality standards, which stand the test of time but, as the noble Lord, Lord Warner, said, they are time consuming to create and therefore they have to be resourced. If you are creating standards for over a patient’s journey of care, it will require several months and expertise to do so. If you intend to have more than five or six standards a year, you require to resource them fully.
Another important issue is that standards have to be tested before they are finalised so that, just as with the technological appraisal of drugs, you do not get complaints from clinicians or anyone else. I can tell noble Lords that doctors are very good at complaining afterwards if they are not consulted. There have to be consultations with both clinicians and the public so that they will feel happier that the standards are evidence-based and will deliver the outcomes that we expect.
A third important aspect is that the standards should be easily understood. I was clear when I did the job that every one of the standards written should get a crystal mark, so that they were written in a language that people could understand. If we are going to evolve and develop information standards, a further value is that each of the quality standards is an opportunity to inform the patient about what they should know about their disease and its treatment. There can be simply written questions that the patients or relatives can use to ask about the problem in question. That gives us an opportunity to use the standards not only to manage the care of the patient but to inform the public and the patients about their disease. That way, you make the public better informed and able to demand the kind of quality care that they should get, so the systems will be operating in a way that delivers care.
My Amendment 343 says that standards should also cover long-term conditions. To me, that deals with the problem of complex long-term diseases, which need to be managed in both the acute sector and the primary or community sector. The standards should therefore be written as a patient journey of care over a longer period of time. Those are the quality standards that we should be embarking on and the numbers that we should provide for.
Earl Howe
The noble Baroness is quite right and no legislation can provide for that culture change, as she will appreciate. At the same time, we can put in some important building blocks to encourage a change of culture. One is to have maximum clinical input into how the quality standards are framed and formed and, indeed, input from patient representative groups. It is very important to see things from their perspective. We can create duties, as we have in the Bill.
The work that my department has done on accelerating the uptake of innovation is relevant here. The NICE implementation collaborative—the NIC—that was part of our announcement about the growth agenda some days ago is designed to bring together the relevant stakeholder groups to see how the uptake of innovation can be accelerated and how people can be made to look at working practices in rather a different way so that cultures shift. However, it is easy for me to stand here and say that; it is less easy to drive this forward. I would not pretend that the Government are necessarily in the best place to do that, although we are clear that this shift in approach, which largely underlines the QIPP agenda as well, has to take place. However, it will take a little time.
Lord Warner
My Lords, the total purpose of my Amendment 342 was to inject some momentum into the process of delivering these quality standards. I am much reassured by what the noble Earl has said. I think my noble friend’s point about directions for the national Commissioning Board is important. It can be misleading. I hope that the revelations of the noble Lord, Lord Owen, about the chairman of NICE’s past associations will do no damage to his reputation. I beg leave to withdraw the amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 11 months ago)
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Lord Warner
My Lords, I want to say a few words about children in this group of amendments. I know and agree with the arguments put forward by the noble Baroness, Lady Cumberlege. We do not want this to become a huge talking shop. I sympathise with and support that idea, but I think that children are different in kind, in part for the reasons given by the noble Baroness, Lady Benjamin. If we are serious about investing in the future, we need to pick up some of the issues around children much earlier. Diabetes and obesity are big issues facing our society. Many of our services are not very good at picking up the needs of children and responding to them in a comprehensive manner. There are lots of organisations that speak on behalf of them, just as there are lots of organisations that speak up for other interest groups, but I would say that the investment issue on children is much more significant than the investment issue on 80 to 85 year- olds, or even 70 year-olds. That is not to say that those people do not need a good or compassionate set of services responding to their needs, but if we as a society neglect the voice and needs of children, we are just bringing a lot of problems upon ourselves as a society—more so than if we have less good care at much older age groups.
From my time as a Minister, I thought that the voice of the child in the NHS was really quite muted. The working across boundaries in the needs of children is often far less good than it should be. We need to put in the Bill a stronger requirement to listen to the voice of children and to have their representatives fully focused in the health and well-being boards. They are different in kind and their voice has not been heard enough. Too often, public services operate through parents rather than going straight to the child. That is particularly an issue with young carers and with adolescents. We need a bit of a wake-up call on the needs of children in our NHS and social services and across the spectrum of their needs. I hope that the Minister will look carefully at this issue in the particular circumstances of children.
Lord Beecham
My Lords, these few clauses relating to health and well-being boards are perhaps less politically exciting than many of those that we have spent days debating—days that are rapidly drawing to a close—but they are potentially highly significant and their importance will be realised over time. The purpose of these boards is to facilitate integration between local government and the National Health Service in the planning and provision of all services relevant to the health and well-being of the present and the future population. They should take a strategic view of a range of services—health in its conventional sense; public health, which is now effectively to be restored to local government; social care; children’s services; housing; environmental services; leisure; and the criminal justice system, all of which have been mentioned by various of your Lordships this morning.
In addition to that fundamental strategic role, these clauses provide for greater democratic accountability at local level and the engagement of the community and the voluntary sector. As we have heard, they also ought to provide for the engagement of staff with a range of professional skills to be brought to bear on the issues that communities face.
I listened with some care and, frankly, growing concern to the observations of the noble Baroness, Lady Cumberlege. If I may say so, she got it wrong about the purpose of the health and well-being boards. They are not operational boards. They are to produce a health and well-being strategy. They operate at that level. They will not be directly involved with implementing that strategy. They will not be responsible for the range of services which will be required both to work together and to work efficiently to impact on the health and well-being of an area.
The noble Baroness also perhaps misunderstands how influential bodies like local government can be. When I had responsibility in the area of social care in Newcastle, many years ago, I was able, with a committee of 15, to drive through a significant programme of change in our authority. We created one of the first welfare rights services, we trebled meals on wheels, we doubled the home help service and we made vast changes in the way that we provided for children’s services and adult services alike. It is perfectly possible to do that with a reasonably sized committee, provided that there are people on it with the kind of vision which is necessary, and people in the employ of whatever authority is providing those services who, equally, have drive, sensitivity and vision.
In looking at the role of the health and well-being boards, then, we have to have regard to that area of responsibility. Of course they will be working to an agenda which will actually be set rather separately, in a sense, because it is the local authority and the clinical commissioning groups which will be responsible for the preparation of the joint strategic needs assessment. That is the basis upon which matters will have to be carried forward.
I am afraid that the noble Baroness, Lady Jolly, joins the noble Baroness, Lady Cumberlege, in possibly having slightly misunderstood the nature of one of the problems that she touched upon. She is absolutely right that housing has to be an integral part of the programme to deal with health, both for communities and individuals, but her amendment is the wrong way around. It is not that the health and well-being board has to take into account the views of the planning authority. It is the other way around—the planning authorities and housing authorities should be drawing up their plans on the basis of the strategic needs assessment and the health and well-being strategy that follows it. We are not at odds about that, really; it is perhaps simply the wording of the amendment. I will have to make a confession about the wording of my amendments later, so I might also plead guilty to the charge that I have levied at noble Baronesses opposite.
Before coming on to the amendments as such, there are two or three questions upon which I would like to hear the Minister’s views. The first is in relation to the relationship between the national Commissioning Board, and its local outposts in particular, and the health and well-being boards. The Bill refers to the position of the national Commissioning Board, but I am interested to learn how he sees the role of the local outposts—I think that is the phrase—which will be established, because part of the agenda which will remain with the national Commissioning Board will impinge pretty directly upon the local strategy and will have very significant and very specific local implications.
Going beyond that, perhaps the Minister would comment upon whether the Government intend to replicate at national level the kind of joint working across departments that they are, perfectly properly, looking to create at local level. Will we see some ministerial committee or some forum for relevant government departments? I go beyond even those that have so far been mentioned. I am thinking in particular of the Department for Work and Pensions and the impact of the Welfare Reform Bill, as well as its general responsibility for benefits; and, bearing in mind the observations of many noble Lords about having regard for the needs of children and young people, but also adults and people with learning disabilities and so on, the Department for Business, Innovation and Skills clearly has a role. It would be interesting to learn whether the Government’s thinking has taken them beyond the local level to looking at how these matters might be addressed nationally.
In addition to that, there is the question of community budgeting, as the phrase now is: whether it is envisaged that it has a role in this context and whether some of the pilots being considered nationally could address those issues.
I will now speak to the amendments in my name and those of my colleagues, Amendments 330ZB, 330ZAB, 331A, 331AAA, 335A, 336A and 336AA. Amendment 330ZB requires the publication of an integrated commissioning plan to which all partners must have regard. That might go somewhat beyond the terms of the Bill as it stands at present, but it seems essential that there should be an integrated commissioning plan across the piece. We are, after all, talking about very considerable sums of public money being spent. Since most of the health budget as such is being devolved to clinical commissioning groups, we are talking about £80 billion nationally. That would be translated into smaller but nevertheless significant sums of money locally, to which would be added the local authority’s own contributions in any given area across its own responsibilities. For a large authority, we are probably talking of a budget of close to £1 billion —possibly more—which will be encompassed within, though not directly administered by, the health and well-being board.
Amendment 335A calls on the health and well-being board to have the responsibility of signing off the clinical commissioning group’s commissioning plan. This is to ensure consistency and a degree of accountability for the work undertaken by the clinical commissioning groups. That is backed up by another amendment which gives the health and well-being board the right to request information as to the progress in implementing the strategy, so that, in addition to the scrutiny committee of the local authority—it in any event has a wide range of possibilities to scrutinise what is happening—the board itself, having set the strategy, is able to see how it is being implemented.
We now come to the question of membership. This is certainly a somewhat difficult issue. There are a whole range of amendments, most of which I would agree with, setting out the wide range of organisations which should be included in membership of the board. They include representatives of education providers; pharmacies; the probation and police services, mentioned by the noble Lord, Lord Ramsbotham; allied health professionals, about whom the noble Baroness, Lady Finlay, spoke; and people from the field of alcohol and drug abuse and the field of safeguarding. It is a significant number.
The Bill at present constitutes the health and well-being board as a committee of the local authority, yet somewhat paradoxically, as the noble Baroness, Lady Jolly, pointed out, only requires a single member of a local authority to be appointed to a board. Admittedly, this is as a minimum, but it could hardly be less. Interestingly, my own authority in Newcastle recently agreed a shadow board, in my absence, which is 25 strong. That strikes me as slightly on the high side, but it includes two representatives from each of the two clinical commissioning groups in the city, from the three trusts that serve the city and from a range of other organisations —many of which reflect the bodies to which noble Lords have referred this morning in debate or in amendments—as well as just three councillors.
Lord Warner
Lord Warner
My Lords, I shall speak also to Amendments 335 and 336, which I degrouped from the previous grouping.
Amendments 332 and 335 provide an opportunity to press the Government again on securing more precision in this Bill about what we mean by integration. The integration that means most to patients and service users and their carers is the integration of service delivery. That is what Amendment 332 tries to bring out, by replacing reference to people working “in an integrated manner” with wording that ensures that they work in,
“a manner that integrates the delivery of services to individuals”.
Amendment 335 has another go at trying to persuade the Government to include in this Bill a definition of integration. I find it very odd that the Government go to all the trouble in Clause 192—as elsewhere in the Bill—of providing definitions of health services, health-related services and social care services, but will nowhere provide a definition of integration even though the term is liberally sprinkled throughout the Bill. I congratulate them on that liberal sprinkling, and I think that the intentions are very good. However, using the term “integration” in a variety of ways, without being clear what the important meaning of it is to patients, promises a lot but risks ensuring that there is a likelihood of delivering very little change that actually benefits individuals or helps break down the barriers between health and social care. My particular concern is that some people will take away from this Bill that they have met the needs of integration by organisational integration rather than focusing on the thing which matters to individuals, which is the integration of service delivery.
I hope that the Minister will think further about inserting a definition of integration in the Bill, to give it more precision. I would be happy, as I am sure other noble Lords across the Benches would be, to help him to try to secure a definition. I do not claim that getting that definition right is easy, but I think that while the Bill is in this House it is worth the trouble of trying to get a more precise definition of the integration that would really benefit individuals in the area of service delivery.
Amendment 336 also seeks to push integration, but in a very specific way. It proposes that a local authority with a health and well-being board may approach the national Commissioning Board about assuming,
“some or all of the functions (and associated funding) of a clinical commissioning group where such a group agrees that this is in the best interests of patients”,
particularly if it improves integration. The Government are very keen to argue that people at local level should be able to shape their local arrangements for commissioning and providing services. I have a great deal of sympathy with that approach. This amendment would enable clinical commissioning groups and health and well-being boards to come together to form a single body for commissioning services in accordance with a joint service needs assessment. Given the variation in the size of clinical commissioning groups, there may be some large ones that would like to share staff and reduce overheads by amalgamating their activities in the way that this amendment permits. In addition, some of us believe that it will not be possible to sustain 250 or more clinical commissioning groups, which might then raise the issue of merging those groups and possibly going further and merging the merged with a health and well-being board as well.
There is no compulsion or pressure in this amendment. It merely enables clinical commissioning groups and health and well-being boards to come together, integrate their activities, share priorities and work closely together in the way that public money is spent, particularly in relation to integrating services across the NHS and local government boundaries. I hope that, in the spirit of local decision-making, a permissive but non-mandatory power of this kind could be inserted into the Bill.
I would very much like to hear the Minister’s views on this probing amendment and whether he sees merit in it. I shall be returning to the issue of integration, and a definition of it, on Report. I think there is support for this across many parts of the House. I beg to move.
Baroness Williams of Crosby
My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.
Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.
I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.
I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.
Baroness Barker
My Lords, my name is not on these amendments, but I want to make a couple of points, partly because I have a longstanding interest in this and partly because in recent weeks it has been a very personal feature in my life.
The noble Lord, Lord Warner, is absolutely right to keep pressing the Government to come up with a definition of integration. Like him, I struggle to know what it is. I know the factors that should be focused on, which create or prevent integration. One is the overall sense of purpose in your work. For many of the health and well-being boards, the key role will be in the prevention of illness. The biggest challenge for hospitals and the acute sector, which perhaps they have not yet woken up to, in the way in which they are going to have to work with health and well-being boards is about discharge from hospital and ensuring that people who have been ill, particularly older people, have access to nursing care in the community that enables them to live with long-term conditions.
One of the most important factors is money. The noble Baroness, Lady Murphy, made me flash back to many a meeting that I have been involved with, but one in particular in a borough in south London where the local Age Concern had an excellent handyperson scheme. They worked with the OTs to dramatically speed up the process of older people being assessed and given aids and adaptations that enabled them to live with long-term conditions. I well remember sitting in the meeting when somebody from the health service announced that the health service were going to start their own rival service. Why? Because a pot of money had come along and they were going to use it. Patterns and flows of money have been the bedevilment of integration, very often.
Integration can work well, particularly when both parties take a strategic view of what they are supposed to be doing. I cite again the case in Islington, when my colleagues were running the council. The local authority took the decision that it would do everything related to children and the PCT decided that it would take responsibility for adults and long-term care. That is a very imaginative way to start addressing problems at a strategic level. If you address them properly at strategic level, the greater the chance that when it comes to individual cases, you will indeed get integration of services around a person.
I am therefore pleased to see Amendment 336, tabled by the noble Lord, Lord Warner. I would just query one point with him on drafting. As drafted, there is a slight problem, because it seems to imply that any move towards integration has to be approved by the commissioning board. I know that is not what he intends. Small-scale schemes should just go ahead without reference up the line, so I think he needs to look at the wording, but that is very helpful.
The noble Lord, Lord Patel, is absolutely right. Three different outcomes frameworks setting the agenda for the three different parts of what will make up a health and well-being board is wrong. It is only when people in the NHS understand that they have to help social care outcomes to happen that we are really going to move forward towards integration as a mindset for professionals and a reality for patients.
Lord Warner
Could I just clarify for the noble Baroness that I do not claim that my wording is perfect? I brought the National Commissioning Board in—slightly against my better judgment, I have to admit—because it has the responsibility for, in a sense, approving the commissioning arrangements and spending the money. My instincts were that it would not support this unless it had been consulted and was satisfied with the commissioning arrangements.
Baroness Thornton
My Lords, I will be very brief because my noble friend and other noble Lords have pretty much covered the territory here. This small group of amendments is rather important and significantly improves the Bill. I realise that they are probing amendments, but they do three things. The first amendment is about changing culture. It talks about the manner of the integration of services, not just an integrated manner. The second one says that we need to define integration. This must be perhaps the third or fourth debate that we have had on integration in the past however many weeks. It seems quite clear that there needs to be some definition of integration in the Bill. My noble friend Lord Warner explained that. Given that many parts of the Bill offer a list of different ways in which things can be described and done, I see no reason why the same list on integration cannot be included. The third point in the amendment to which I was pleased to be able to put my name is about encouraging co-operation across the piece. Having the national Commissioning Board mentioned in that is rather important.
Those three points about changing the culture, defining what you mean and encouraging co-operation seem to me to be the type of message that any health and well-being board will look to as it starts up its work. It will look to what is in the Bill, what is in guidance and what is in statutory instruments to help it to work out what to do. To have something that defines the kind of culture that is expected, defines integration and the way the bodies should work, lists the bodies that should work together, if not in the Bill then certainly in guidance, and explains the manner in which they are expected to work seems to me to be a very helpful way forward.
Lord Warner
My Lords, I am grateful to all noble Lords for the support that they have given, and indeed am gratified by it. I hear what the Minister says, but we have been talking about integration for 25 years. You have to be one of life’s supreme optimists to think that just because the Government have passed this Bill you are going to change the culture of 25 years. It is very important that we try to have a go at a definition in this Bill. I will read very carefully what the Minister has said but I can assure him, as a Christmas present, that I shall be returning to this subject on Report, after taking some soundings at the local level. He is quite right: we do need to be sure what people at the local level want, but I do not think that we can move away from trying to give a lead on what we mean by integration. In the mean time, I beg leave to withdraw the amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 11 months ago)
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Baroness Williams of Crosby
Perhaps I may respond briefly to the points raised by the noble Lord, Lord Mawhinney. I apologise if I spoke too briefly, but I am conscious that there are an awful lot of amendments to get through and I do not want to steal the time of other people on other crucial amendments.
On the group of four amendments that the noble Lord is in accord with me about, as he will be well aware, consideration has been given to the material put before us by my noble friend Earl Howe, the Minister of State, about an attempt to bring together discussion within the House and among lawyers about the issue which the noble Lord, Lord Mawhinney, rightly identifies as being central to the Bill: the responsibility and powers of the Secretary of State. Because we are in Committee and the Committee will, we hope, be ending in a few days’ time, the only opportunity we have to table amendments that would bear on the issue of the Secretary of State’s powers is on the Bill as it stands—prior to any changes that may be made. It is in the light of that that we tabled this group of amendments to highlight the areas where, in our view, the responsibility of the Secretary of State is central. That is true of this group of amendments, and I am delighted that the noble Lord, Lord Mawhinney, takes the view that they should be seriously considered by the Minister.
The point of Amendment 296 is to recognise that, in many cases, CCGs have to take account of the services given by foundation trusts—not least in respect of, for example, pathways and networks for people with chronic conditions. We thought, therefore, that it was important that there be not just sharing of information between the two but, rather, a process of interactive education, where the foundation trusts become increasingly aware of the responsibility that CCGs bear, particularly for those clinical conditions that lie beyond the capacity of a single CCG. That is why we suggested that a governor should be named by the national board to set up that communication—which, as the noble Lord, Lord Mawhinney, knows far better than I do, because he is an expert on the subject, sometimes, sadly, does not exist.
Lord Warner
My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.
Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.
As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.
Baroness Murphy
My Lords, I echo many of the words of the noble Lord, Lord Warner, although I wish to put a slightly different slant on the issue. It is crucial that we press on with the project to get all trusts to foundation status. There is no doubt in my mind that having this two-tier system, which we have allowed to continue for too long, has led to difficulties in foundation trust hospitals becoming more self-reliant, more seriously entrepreneurial in the way that they think about their services, and more responsive to the local agenda, and so on. They have not had to bother because they have always had Big Brother watching. The de-authorisation process, which threatens to drag them back to the Department of Health, has acted as a sort of brake on their thinking. That has been quite difficult. I seriously think that we should move trusts to foundation status. The noble Baroness, Lady Thornton, is looking puzzled, but I think that it has been a really serious problem.
Baroness Murphy
Some kind of break in the system? I shall continue with my theme: it is crucial that we move all trusts to foundation status. I quite agree that the dates that have been set before have come and gone, but quite often they have come and gone because the strategic health authorities have not provided the necessary support to move trusts to foundation status. In fact, some strategic health authorities were positive blocks in the system to the development of expertise within the foundation trust. I accept that there are some at the moment which, as the noble Lord, Lord Mawhinney, has mentioned, face the PFI problem. Te recharge is too great for them to subsume and the debt is too great. Others have long-standing debts that cannot be written off. Some are not viable because of the populations they serve. Unless we have a definite aim and objective to get them there, they will never get there. We can get there if there is a concentration on the problem. Each hospital is different. I share the concerns of the noble Lord, Lord Warner, about some of the projects to merge one failing hospital with another, or one failing hospital with a less than successful one.
The evidence from NHS trusts’ failing hospitals merging has been that they continue to fail in a bigger way. The Barking, Havering and Redbridge three-trust hospital merger was a striking example of one that did not work and never could. I have that anxiety. If we are going to move away from the process that we have put into this Bill and retain de-authorisation and NHS trusts, we accept that we are continuing with a two-tier system for ever. That would be seriously detrimental to trying to get everyone moved over into a properly regulated system. It is going to be difficult. Certainly, the role of governors needs strengthening. Governors in some places are wonderful. In other trusts, they are mixed-ability classes, let us say. They will need considerable support and development to get there. Nevertheless, it would be catastrophic to have a two-tier system continuing to run after the introduction of the Bill. We need a fixed end point to work to.
Lord Warner
I totally support the idea of getting everybody into foundation trusts. I am questioning whether the processes that we have in place will actually deliver that in the time scales that are being set by the Government. I suspect that in practice you can make the kind of progress required to achieve the Government’s objective only if you reconfigure services rather than just pursuing merger mania.
Baroness Noakes
More than 20 years ago, I was director of finance of the NHS, on secondment from my firm, as some of my noble friends will recall. One of my areas of responsibility was something we called the income-generation initiative. It was sponsored wholly by the Department of Health which was to encourage NHS hospitals to maximise their assets and to generate income for the purposes of the NHS. The origins of the private patient income lie with the Department of Health wanting to ensure that the NHS maximised the returns from its assets and took opportunities to generate income solely for the NHS. Those of us who were involved in developing that initiative would regard all these discussions as a mark of success of the initiative, as it has generated so much income that other questions are now asked.
I never supported any kind of cap, because the circumstances of individual foundation trusts vary so significantly that any cap would never be effective. The way in which income can be structured to flow into a trust can markedly change the impact of the cap. By structuring your relationships with partnership organisations, for example, you can massively change whether a cap bites or does not.
I support the amendments in the name of my noble friend, because perhaps it now needs stating that you should concentrate largely on the NHS—although, as I said, those of us who started this find it a rather surprising conclusion—and I support transparency. If I ever had one concern about the income-generation initiative, it was that costing was never particularly well understood in the NHS, and, therefore, neither was the net result from the activity nor how that activity was used. It is important to have transparency. I hope that other noble Lords will not encourage the Government to keep any limits which constrain the NHS from maximising its assets for the purposes of the NHS.
Lord Warner
My Lords, I was not going to speak in the debate and I certainly do not want to speak on the subject of the cap, in case I get into too much trouble from my Front Bench. I would like to pick up the point made by the noble Baroness, Lady Noakes. We are moving into a world in which the NHS will have to look at how it uses its assets. As I have said in earlier discussions, the NHS footprint on its sites and its utilisation of buildings is relatively small given the size of the sites.
We are also moving in a direction where, across the House, we favour integration of health and social care. It would not be surprising if, in the next few years, on some sites of district general hospitals, there were nursing homes run by the private sector which had self-payers as well as state-funded payers. The way the Government are approaching this creates flexibility in how income might be generated. I hope we will not be so prescriptive in how we meet the legitimate concern that NHS trusts should concentrate on their core business, if I may put it that way, that we shoot ourselves in the foot again by having a cap that actually works against the best interests of the NHS.
Baroness Thornton
My Lords, I have never known my noble friend to show particular restraint about how he felt about his Front Bench.
This discretion has morphed into something that says that making efficient use of assets and being effective is the same as maximising private income. Of course, that is not the point here. The point is getting the balance right. The noble Baroness, Lady Noakes, made a very good point: the NHS does not exist to maximise private income profit.
Lord Warner
“(2) Healthwatch England is to be appointed in accordance with regulations made by the Secretary of State.”
Lord Warner
My Lords, unfortunately the noble Lord, Lord Patel, had to leave before we could get to this amendment so I shall speak on his behalf in moving Amendment 306.
The amendment brings us to Clause 178, which is about HealthWatch England. In simple terms, the amendment seeks to make HealthWatch England an independent body and not a sub-committee of the Care Quality Commission. That is its purpose. We have to some extent already touched on this issue and made the arguments in earlier debates about why we think, in terms of public credibility for HealthWatch England, it should not be nestling within, hosted by or whatever else you want to call it the Care Quality Commission. I shall turn to the issue about that particular body in a moment but, as a matter of principle, whether it is the Care Quality Commission or some other body, we take the view that it should be a free-standing body so that it can exercise—and, perhaps just as importantly, be seen to exercise—a very independent role in pursuing the purposes and interests of patients and the public.
The whole area of public and patient involvement and them having their say in the running of the NHS, the way it works, its standards and its standards of care has caused difficulty across the political spectrum in getting it right. The Government deserve considerable congratulation on having another go at this. It is not a matter of principle, certainly as far as the noble Lord, Lord Patel, and I am concerned, that we should not have a body called HealthWatch England—we totally favour that—but you might as well go the whole hog if you are going to claim that it is an independent body. Calling it a sub-committee of the Care Quality Commission does damage to the public perception of its role.
I know that the noble Earl, Lord Howe, has seen recently the NALM to discuss these issues and I want to quote from some of the briefing that it used in that meeting with him. The NALM made it very clear that it saw collaborative working between HealthWatch England and some of the other bodies as important, but that did not mean to say that it wished it to be hosted in one of those bodies. The briefing is most interesting. It says:
“Our work with the CQC over the past year has given us little confidence that this is the right location for the public’s independent national body concerned with health and social care”.
It is concerned that it will not be seen as independent. Whatever arguments the Government may have, we have to take careful note when representatives of the public and patients do not believe that they will be seen as independent if they are placed in the CQC.
Baroness Northover
What the noble Lord has said bears out the point. This was a nationally established commission which we all agree did not work. We therefore need to learn from that costly experience to try to move on and to work out a way in which you can have local healthwatch organisations as the local eyes and ears, feeding through to HealthWatch England, a national organisation. We are at the moment looking at how that national organisation should be sited. Everyone has said that the relationship between the national organisation and local organisations did not work previously. We are seeking here to make that relationship work much better. I can see another noble Lord is about to hop up.
Lord Warner
The Minister will be pleased that it will be the noble Lord who pulls his punches, as my noble friend said earlier. I wish to pursue this issue of how much money the Government think they need to spend on funding HealthWatch England. This is the real issue: say, for example, it has £10 million—I do not know what figure is being considered, but there will be a sum of money. It seems to be agreed that there ought to be some kind of national body. I do not altogether understand the Minister’s argument that we got it wrong in the past, because we fully accept that we got it wrong. However, it does not follow from that there should not be a national public body called HealthWatch England. The Government seem to accept that. The argument is over whether you should place that body in the Care Quality Commission. I can see that one might argue that costs could be reduced by doing that, but we first need to know what the Government are prepared to spend on this body, and then we can discuss the best way of spending that money in terms of independence.
Baroness Northover
Perhaps I may come on to the points that I was going to make regarding why we are making our proposals in light of the experience of the national organisation that did not work brilliantly. They address some of the issues that the noble Baroness, Lady Pitkeathley, raised and are implicit in the points made by the noble Lords, Lord Warner and Lord Harris, and others about the independence and status of the new organisation.
I cited what happened with the previous national organisation, and the point about where we are placing HealthWatch England is that it is an attempt to ensure that it is in a strong position to influence the regulator, the CQC, rather than sitting off to one side and not necessarily being listened to. A lot of concern has been expressed about how that relationship would work, but I point noble Lords towards the other side of the issue. If HealthWatch England is sitting there alongside the CQC, with local healthwatch feeding into HealthWatch England, what better way to make sure that you flag up to the regulator concerns from local areas. Noble Lords should try to look at the issue from that point of view, as opposed to seeing the CQC as somehow silencing HealthWatch England. It is vital that the views of patients and other service users are taken on board by the CQC and that it does not close its ears and eyes to what is happening.
Lord Warner
I am still struggling. I am sorry to keep interrupting the noble Baroness, but let me give her an example. Could HealthWatch England, as a sub-committee of the CQC, run a national campaign against what is being done by that regulator on an issue such as feeding elderly people in hospital?
Baroness Northover
HealthWatch England has a statutory obligation to represent the position of patients and, if it is concerned about the feeding of patients, yes, it indeed has the right to set its agenda, to campaign on that and to argue that this must be checked on and brought up to a much better standard. As my noble friend Lady Cumberlege said, we have throughout the NHS and through its recent and long-term history, problems and challenges in meeting basic standards of care and attention. All of us know that, whatever party we come from. The previous Government did not get this right; we are seeking to move forward, and we need to ensure that we consider these questions fundamentally and address why these problems continue to arise. They have been intractable; we will continue to address them; I welcome noble Lords’ contributions on that.
Baroness Northover
HealthWatch England will represent the voice of the patients. It will publish on that; it will advise on that; to take up a point raised under one of the earlier amendments, it will no doubt make recommendations within the areas of its advice. It has the obligation to make those recommendations to various organisations within the NHS. Various organisations, including the CQC, have the responsibility to respond to that. All those obligations will flag up problems, so I do not see that I have made a startling admission. I would have thought that the noble Lord, Lord Harris, would know that transparency—publishing information—was the best way forward.
However, I agree with many noble Lords that this has been rather a patchy area. We have to try to give greater strength to these organisations both locally and nationally. Much of that is not based on their structures, because all sorts of structures have been tried, but we are trying to take them further forward.
Lord Warner
I just want to pursue the issue of the campaign, because it is very important. Currently, there has been a very effective campaign about literacy run by the Evening Standard. That has attracted lots of voluntary money to run it and led to some interesting changes and the Government supporting it. To be absolutely clear, I ask: are we saying that a sub-committee of the regulator—the Care Quality Commission—could run a campaign on the feeding of elderly people in the National Health Service in association with a national newspaper and criticise the Government strongly, implicitly, about the way that they are running the NHS in that area? If the Minister, on behalf of the Government, is saying that yes, it can, I start to get more convinced about the Government's commitment to independence of the sub-committee of the CQC.
Baroness Northover
As I said, HealthWatch England will need to look at what works well and what works not so well right across the country, gathering the information from local healthwatch. It will flag up things which, no doubt, will be uncomfortable at all levels of the NHS and the Government. Noble Lords would not expect change to be driven in any other way. If things are unsatisfactory locally, as fed by local healthwatch to HealthWatch England, if it is doing its job it will obviously flag up areas where change is required.
Lord Warner
I am not talking about flagging up; I am talking about a campaign. A campaign means that you take action, using the media, to put serious pressure on the Government in relation to their record in running the NHS for elderly people. I am not saying that that should happen; I am trying to understand what power this body would have as a sub-committee of the regulator, which is the point that we are discussing.
Baroness Cumberlege
Does the noble Lord, Lord Warner, agree that much depends on the membership of this body and whether it is independent? I am not sure why people call it a sub-committee. In the Bill it is called a committee. I have chaired the top board in organisations and I know that you get very close to some of those committees—you listen to them. If an organisation is totally independent and it goes left field, making a whole lot of noise, you just dismiss it and say, “Oh, they’re always making problems”. The opportunities are far greater if part and parcel of what it does is informing you of what is going on. I honestly think that you will listen much more carefully to people whom you meet in the corridor, in the chambers or wherever the debates are going on.
I take the point made by the noble Baroness, Lady Emerton. The Care Quality Commission does not always say that everything is dreadful. The Healthcare Commission used to say, “This bit’s good; this bit needs addressing”. I can see that this committee—not sub-committee—of the Care Quality Commission will serve a very useful purpose. It could put enormous pressure on the Care Quality Commission really to understand what is going on and it would not just be an irritant that is offside.
Baroness Northover
It is clearly important that the information goes back and forth between the local and national organisations.
If HealthWatch England were significantly failing in its duties, the Secretary of State has powers to intervene. An amendment addressed whether the Secretary of State should consult local healthwatch. This was on the assumption that HealthWatch England was in effect failing local healthwatch. While the Secretary of State should not be bound into a rigid consultation—something else entirely could be in question here—we would fully expect him to seek the views of others where appropriate in coming to a decision to intervene. I hope that that will reassure noble Lords.
My noble friend Lady Jolly talked about local healthwatch needing to look widely at all groups of patients, including those with rare diseases and so on. She is right. We will be coming on to other amendments where we look at this a bit more. LINks and its predecessors recognise that they have not had as wide a coverage as they would like or been as representative of their communities as they would need to be. This concerns us. The noble Baroness, Lady Pitkeathley, referred to it briefly in relation to whether local healthwatch should elect to HealthWatch England. We are seeking to learn from this. We want to try to make sure that local healthwatch has as broad a spread as possible. It is worth bearing in mind that it has a place on the board of the health and well-being boards and so there will be information feeding back to local healthwatch from the others on the health and well-being boards and from local healthwatch into the health and well-being boards. We will come on to local healthwatch in relation to local authorities, but there is synergy there too.
While I feel that the Bill provides safeguards for the independence of HealthWatch England within CQC, I would like to repeat my commitment that we are prepared to listen to further views. It is very clear that we are all trying to head in the same direction. There is a variety of views about how best to do this. We would welcome noble Lords’ continued input as we take this further forward. In the mean time, I thank noble Lords for flagging up these issues. I hope that the noble Lord will withdraw his amendment.
Lord Warner
My Lords, this has been an interesting and spirited debate. I will certainly reflect on the Minister’s willingness to consider some of these issues further. My noble friend Lord Harris and I will certainly be considering this further and I would not rule out the possibility that we might come back to this on Report. I beg leave to withdraw the amendment.
Baroness Thornton
My noble friend Lady Massey is, as usual, correct about these matters. I am always happy to take my lead from her. All my experience of working with NCH and lots of children’s organisations over the years, and, more recently, of talking to YoungMinds, leads me to think that this is a matter that the Government need to take into consideration.
Lord Warner
My Lords, my name, too, is on the amendments. I support what my noble friend Lady Massey and the noble Baroness, Lady Finlay, have said. I want to refer to adolescent health services. We know that primary care services are not often very user-friendly in relation to adolescent health needs. I have come across GPs who have had special sessions and even private doors so that adolescents can come into their surgeries without being spotted by nosy neighbours. There are some real issues of privacy with young people in the adolescent years. They do not always find these services easy to use, when they often have considerable health needs and sometimes quite serious mental health needs. In my time as chair of the Youth Justice Board some time ago, we were starting to find that for many young offenders the origin of their offending was when someone significant in their family had died. It was the absence of any bereavement services that caused them to go off the rails. It is more than just symbolism to put these extra words in the Bill; it is a very important signal to the NHS that Parliament recognises the need to pay attention to the needs of children, to listen to them and to meet a set of needs which are often not being met.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Massey, for flagging up this issue and for the work that she has long done in this area, which I saw particularly clearly when she and I were both trustees of UNICEF. Our aim is that HealthWatch England and local healthwatch organisations should be there to understand the views and needs, locally and nationally, of patients and other service users and members of the wider public—everyone.
I reassure noble Lords that, at both national and local level, this clearly includes children and young people. I realise that the concern expressed by noble Lords arises from deficiencies in how things have operated in the past. The Future Forum flagged up the need to ensure that, for example, local healthwatch should be more representative of communities than had been the case previously, which why is my honourable friend Paul Burstow in the other place introduced an amendment to the effect that local healthwatch should represent the breadth of views and diverse characteristics within a community, whether it be carers, young people or otherwise.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 11 months ago)
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Baroness Williams of Crosby
My Lords, I strongly support the two very powerful and convincing speeches by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.
I add only a couple of points. First, it is extremely important for the integration of social care from local authorities with health service healthcare to have a similar regime of rules and standings applying to both. All of us in this House have said repeatedly how much we believe in the integration of these two attempts at providing proper care for older people, chronically ill people and disabled people. It is therefore important that we set a standard which is common between the two. That is the first reason why we should all strongly support the amendment that is before us.
The second reason, from my point of view, is that I very much like the phrases used in the amendment, which state in effect that this kind of service is a public service. It is, in a way, ennobled by the fact that it is a service to the public generally, regardless of whether it is provided by the voluntary, independent or NHS sector. That is also very important.
The third point I briefly make is that it has implications which we have to face up to. There is no time to discuss this tonight. But if we actually want there to be a huge improvement in the relationship between the staff of health service and local authority care organisations, whether voluntary, private or NHS, and the elderly and vulnerable people whom we are talking about—and we do want that—then, as this quite clearly implies, the staff themselves must be treated well. It is no good having profoundly exploited, overused, overcriticised staff and expecting them to live up to the great principles of the Human Rights Act. To my mind the importance of this amendment is not just that it passes. It has clear implications for the training, education, support and attitude towards NHS staff, who too often are heavily criticised for what is a difficult yet often extraordinarily well conducted job. In that spirit I strongly support the amendment of the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.
Lord Warner
My Lords, I also support the amendment of the noble Baroness, Lady Greengross. I do so from the perspective of someone who as a special adviser was involved in the framing of the Human Rights Act in 1998. At that time, much of the thinking in the devising of that Act was on the basis that publicly funded services were pretty much synonymous with public delivery of those services. Much of the language around public functions and public authorities was based on that assumption. In fact, that was already out of date at that particular time. Since then, we have never really put this point beyond doubt in legislation. It is timely to do so now, when so many of the services in people’s own homes are contracted out by public bodies to voluntary and private providers. It is a lacuna in the arrangements, despite some of the assurances given by Governments of both persuasions since the Human Rights Act 1998.
Baroness Wheeler
I also support Amendment 295G from the noble Baroness, Lady Greengross, replacing the similar amendment from the noble Baroness and the noble Lord, Lord Low, both of whom have argued the case strongly and convincingly on this matter.
The importance of addressing current loopholes in the application of the Human Rights Act to publicly funded healthcare and home care services is underlined by the scale of the legal anomaly that the amendment seeks to address. As we have heard, almost 500,000 older people receive essential care in their own homes provided by the local authority. Some 84 per cent of them lack the protection of the Human Rights Act because their care is provided by private or third sector organisations, or independently by 150,000 self-employed personal assistants who care for people in their homes through the application of personal care budgets or direct payments.
The noble Baroness’s own work in highlighting the inadequacy of at least 50 per cent of the home personal care received by older people as part of her recent inquiry underlined the prevalence of human rights abuses in home care settings. The report makes painful reading for all who want dignified and appropriate standards of care for older people in their homes. The stark reality is that, if their human rights are violated through inappropriate standards of care, they at present have no direct legal redress against their care providers.
Of course, we need to make the caveat that good practice is often exemplified by the private and voluntary sector. As a carer, the care provided by the private sector agency to the person I care for at home is of good quality and the care support workers are committed and dedicated professionals, despite long hours and low pay. Their care for the person that I care for is not covered by the Human Rights Act but would be if he were in residential care. That is a serious anomaly. I hope that the Minister will be able to reassure us that the Government recognise that this is a major problem and will take the opportunity presented in the Bill to address the matter. With an increasing number of people receiving home care from a private or voluntary sector organisation rather than directly from their local authority, there is a vital need for certainty around the application of the Human Rights Act to these care providers.
I was going to comment on four other amendments but none of them was spoken to so I will leave it at that.
Lord Warner
“Prior actions to health special administration orders
(1) Monitor shall produce annually a report to the National Commissioning Board setting out those trusts and their associated health economies where it considers that, on the evidence available, trusts are at serious risk of Monitor seeking a health special administration order unless urgent action is taken to review existing services and agree reconfiguration of those services to ensure their clinical and financial sustainability and this report shall be made available promptly to the Secretary of State, Parliament and the relevant clinical commissioning groups and health and wellbeing boards.
(2) It shall be the responsibility of the National Commissioning Board, in consultation with the relevant clinical commissioning groups and health and wellbeing boards, to establish a mechanism for producing a response to Monitor within six months of the annual report’s publication on how the services in specified areas can be made clinically and financially sustainable and the extent to which these proposals are agreed by local organisations on behalf of the public.
(3) It shall be for Monitor to decide whether the Board’s response is adequate to secure clinical and financial sustainability in particular areas and, after informing the Secretary of State, to publish its decisions on proposed changes and should the Secretary of State decline to accept Monitor’s decision in a particular case he or she should inform Parliament with his or her reasons, together with his or her alternative proposals for securing clinical and financial sustainability in the particular health economy.
(4) It shall be open to Monitor, by agreement with the Secretary of State and the National Commissioning Board, to establish a panel of independent people with appropriate expertise to assist with securing local agreement on the reconfiguration of services required to secure clinical and financial sustainability.”
Lord Warner
My Lords, I rise to a rapt audience to move Amendment 295AA, which will really test the concentration powers of your Lordships’ House. The amendment would insert a new clause on actions that could be taken to reconfigure services in the interests of sustainability before the Bill’s failure regime kicks in. It follows on from the previous group of amendments spoken to, in particular, by my noble friend Lady Thornton.
I had one go at this issue at an earlier stage in our discussions and did not get very far. I have now discussed this issue further with a range of opinion inside and outside your Lordships’ House. This amendment, which has the support of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, is the product of a continuing interest in this issue. There is now widespread recognition across the NHS that there has to be a major reconfiguration of services to make them more fit for purpose, more clinically sustainable and more financially sustainable, given the financial and demographic challenges faced by the NHS for the foreseeable future. In a nutshell, specialist services need to be reconfigured on fewer sites, and many district general hospitals have to be reshaped on their sites with a different kind of health and healthcare campus and more social care services alongside them. Far more services need to be delivered in a community, rather than in a hospital, setting.
As was borne out in the discussion on the last group of amendments, the Government seem to be placing a great—and, I would say, undue—faith in local commissioners facing up to this reality and delivering the necessary changes. Meanwhile, MPs, including Cabinet Ministers, continue to march with placards in front of their local hospitals, opposing change and trying to protect their parliamentary majorities. They fear being “Kidderminstered” as majorities and the number of seats shrink. It will only get worse as 2015 approaches.
Much sensible opinion in the NHS simply does not believe that local areas and commissioners can deliver the scale of change required on an unaided basis. It fears that people will stand on the burning platform until failure engulfs them or a cheque arrives. The Government have said that the cheque is not going to arrive, so they are going to stand on the burning platform, as I see it, until the failure regime kicks in. Monitor does not want to be placed in a position where it is endlessly using the failure regime. It will want to intervene when the warning signs are there, rather than waiting for the special administration system to be required. Despite the Secretary of State’s promises of robust decision-making on service reconfiguration, there is little experienced NHS opinion that believes that the elected political class will take the tough decisions fast enough and in sufficient numbers to produce a more orderly reconfiguration of NHS services.
I asked the Secretary of State following one of his robust public utterances at a conference whether he had actually told his Cabinet colleagues how robust he was going to be. The example of Chase Farm continues to affect NHS opinion and behaviour. People want a more reliable pre-failure regime that can be triggered in a timely way that does not totally rely on local commissioners to take action on their own and that imposes some discipline on the elected political class—if I may so describe them—to take decisions in a timely way. That is what Amendment 295AA attempts to do.
Subsection (1) requires Monitor to report annually to the national Commissioning Board those trusts and their associated health economies that are in real danger of clinical and financial unsustainability that will trigger the special administration regime. This report would put everybody from the Secretary of State to the local clinical commissioning groups on notice that action needs to be taken.
Under Subsection (2), it would then be for the national Commissioning Board to gather everybody together locally and agree a mechanism for producing a response within six months of service reconfigurations that would achieve financial and clinical sustainability.
Subsection (3) gives Monitor the decision on whether the solutions proposed are adequate, and if so, to inform the Secretary of State accordingly. The Secretary of State is not cut out of the loop. The Secretary of State could decline to accept Monitor’s decision, but in doing so he or she would have to inform Parliament of their reasons for rejecting it and publish alternative proposals to secure,
“clinical and financial sustainability in the particular health economy”
concerned. To aid this process, subsection (4) enables Monitor,
“by agreement with the Secretary of State and the National Commissioning Board to establish a panel of independent people with expertise”,
to help local area commissioning groups with the necessary reconfiguration of services.
No one under this amendment is cutting out the people at the local level and no one is cutting out the Secretary of State. We are just introducing a bit more discipline into this particular process, one in which it has proved very difficult to achieve change. I hope that the Minister will take this amendment in the spirit with which it is offered. It is there to respond to a widespread concern that we need a better and clearer pre-failure regime that can be used to bring about a more speedy reconfiguration of services in the interests of clinical and financial sustainability, but that also preserves local involvement with expert external facilitation and keeps the Secretary of State involved, albeit with disincentives to political deferment of decisions. The challenges that the NHS faces over the rest of this decade make this an issue that we should address urgently, and in my view we should have something on the face of the Bill to help the NHS engineer the reconfiguration of services that it will so badly need in the coming years. I beg to move.
Lord Warner
My Lords, I am grateful to everyone who has spoken in this debate for the support that the thrust of the amendment has received. I reassure the Minister that it is not the purpose of the amendment to exclude local commissioners or local people from involvement in reshaping their services. They would feature in the report to the national Commissioning Board mentioned in the amendment only if they were clearly not getting on with the job of making changes. If they were getting on with that job, fine—they would not feature in the report.
I think that we struggle with the situation that the noble Baroness, Lady Murphy, mentioned, that you cannot solve the problem of a particular hospital trust without looking at the problems around the much wider health economy. Often, the local clinical commissioning groups will struggle with the breadth of the economy that they have to consider.
I do not want to delay the House any further. I will certainly take up the Minister’s offer of discussions and I would welcome any contributions from other noble Lords. We need to make progress on this issue before we complete the Bill’s consideration in this House. Meanwhile, I beg leave to withdraw the amendment.
Health and Social Care Bill
Lord Warner Excerpts(12 years, 11 months ago)
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Lord Warner
I thought there was going to be an intervention from my left. I was not going to intervene in the debate on this group. I am sorry if I missed something by missing the debate on the first group of amendments. I have some concerns about the dual role of Monitor as the arbiter of foundation trust status and the raft of new duties that it will undertake as an economic regulator. Let me make it clear that I have no problem whatever with the role of Monitor as the economic regulator and the functions that go with that. However, I want to share with the Minister and the House some of the previous Government’s thinking on whether Monitor could combine being the economic regulator and the arbiter on the passage to foundation trust status. The situation, if anything, is more difficult now. We finally concluded that we could not make Monitor the economic regulator until we were much, much further along the path of completing the job of trusts becoming foundation trusts because there were potential conflicts of interests, which we will come to later.
I raise this issue at this point because there are accountability issues here as well. I can see the very strong arguments—and I have every sympathy with the Government on this—for setting up an economic regulator and the Secretary of State not dipping in and out of those functions. If you are going to have a regulator, let it be independent and leave it to get on with the job. I am very comfortable with that. My concern is that we are already going to be loading a very large number of functions on to this economic regulator, and to expect it to carry on, even with Chinese walls, as the arbiter on foundation trust status is a big ask, given that most of the promising candidates for foundation trust status have already jumped over the bar and we are getting down to the ones that have been finding it rather difficult to jump over the bar. That could be because the Government have set themselves the target of 2016. We set ourselves targets of 2008 and 2012, and quite a lot of trusts have still got nowhere near jumping over the bar, so I certainly would not bet the farm on them all having cleared the hurdles by 2016.
Monitor, in its role as the arbiter on foundation trusts, needs to keep a very close eye on those that have cleared the bar and to intervene when it needs to. The Secretary of State is actually embroiled in that process. The cases have to be cleared by the Department of Health and the Secretary of State before they go on to Monitor. That is a long-established process. The Secretary of State is going to become involved to some extent if trusts lose their foundation trust status; they go back into the pool in a sense.
We are now dealing with a situation that is much more difficult financially and much more challenging than it was under the previous Government. We are trying to get Monitor to do an even more difficult job with the most difficult trusts in an extremely difficult climate and to take on the job of being an economic regulator. There are real issues about whether that can be done and about separating out the areas where the Secretary of State has a legitimate role. It is legitimate for the Secretary of State to have a presence in the build-up to a foundation trust application and when a trust loses that status. However, that set of issues is separate from the accountability issue when Monitor performs the role of an economic regulator. Will the Minister share with us some thinking about how those separate functions will be handled in the real world that we will face over the next three to five years?
Baroness Williams of Crosby
My Lords, I wish to address my Amendments 274AA, 274C, 274D and 274E in this group. I shall speak as briefly as I can. I share many of the concerns expressed by the noble Lord, Lord Warner, on whether we are overloading Monitor with too many requirements to make judgments, to intervene and to be responsible to enable any single body to function, however brilliantly led it might be.
This amendment is about the conflict of goals on the part of Monitor. I believe that it is a very important amendment, although it looks modest enough. The Bill states that if Monitor has a conflict of objectives—or, more clearly, a conflict of duties—that will in essence be resolved by the head of Monitor making a statement about the nature of that conflict and the ways in which it could be resolved and then turning it back to the perpetrators to solve the problem as best they can. Those conflicts are substantial. We should make it clear that they are fundamental to the whole argument that we have been having, including in the brilliant previous debate because, first and foremost, the general and primary objective of Monitor is supposed to be the promotion of patient health and patient care. That is fundamental. We heard in the very eloquent speech of the noble Baroness, Lady Meacher, how she thinks Monitor has changed its philosophy of life within the NHS and has become much more concerned with patient care and patient protection than with the pursuit of competition primarily for its own sake. That is a very important step forward in our understanding of the Bill.
However, it still leaves open the possibility of a conflict arising between the duties of Monitor. I have just mentioned the first of those duties—the care and concern about patients who are dependent on the health service. The second duty continues to be a concern with anti-competitive policy, and the third is concerned with integration and collaboration, about which there has been a great deal of discussion and many amendments in this House. The Bill gives us very little guidance on any conflict over which of those duties should be given priority over the others. It says that a conflict of duties or a conflict between responsibilities is to be resolved in this rather heavy-handed way of a statement being made about the nature of the conflict and how it might be resolved, which is then distributed to all those concerned. However, there is no resolution of the conflict. It remains part of what one might describe as an ongoing negotiation that some day might resolve itself in one direction or another. It has interesting parallels with yesterday’s events. However, Amendment 274E sets out very clearly that we believe that ultimately conflict should be resolved by the Secretary of State. We accept all the intervening proposals in the Bill at present—that statements should be made, that the conflict should be defined, and that it should then be passed on to those involved to try to find a solution. If, at the end of the day, no solution is found, it is absolutely crucial, in our view, that this becomes the responsibility of the Secretary of State as the ultimate goal of any accountability or responsibility within the service itself.
In this House I think we have got much closer to recognising how significant this final duty over a range of issues is. The Secretary of State is open to accountability to Parliament and to the general public, the people of England, so we say in Amendment 274E that if no solution can be found, there should ultimately be a reference back to the Secretary of State, who then has to make this ultimate decision. We have deliberately framed it to say that he is the ultimate decider, not one of those deciders on the way, although Monitor certainly has a role in resolving the conflict.
Since the future health service will in part be defined by what is seen to be the most significant of those duties, I think the Minister and most of us in this House believe that that central duty has to be responsibility to the patient and to the care and protection of the patient. I urge us to give this very serious consideration, because it is part of the pyramid that was set out in the brilliant speeches in an earlier debate by the noble Baroness, Lady Thornton, by my noble friend Lord Clement-Jones, and by my noble friend Lord Newton of Braintree, who has now had to leave us. I therefore propose the amendment in that spirit. It puts into a microcosm the concept of where the most responsible and urgent duties on Monitor lie.
Lord Warner
Lord Warner
My Lords, this amendment is in my name and that of the noble Lord, Lord Patel. I begin by briefly making clear my position on competition, which underpins this amendment. I am sorry that I had to miss the discussion on the first group of amendments. However, my position on competition is no different from what it was when I was the NHS reform Minister in the Blair Government, but it is somewhat different from that of the current Front Bench, as will become clear.
I start from a position of being opposed to monopolies, whether they are in the public or private sectors, and I consider that such research evidence as is available—such as that by Dr Zack Cooper at the LSE—supports the view that competition—
Baroness Murphy
I apologise. I think that the group we should be addressing begins with an amendment in my name. Unfortunately, I withdrew that amendment last week but it has continued to appear in the Marshalled List, for which I apologise. I believe that we should be moving on to the next amendment in that group.
Lord Warner
Is the Committee happy for me to continue? I consider that research evidence as is available, such as that carried out by Dr Zack Cooper at the LSE, shows the benefits of competition and supports the view that competition, when used sensibly, improves services for patients and can indeed save lives. It is perfectly possible to support both competition and integration; they are not mutually incompatible. I shall not pursue the evidence base for my views today. However, I should like to clarify briefly the circumstances in which we should be supporting the use of competition in the NHS in the best interests of patients and why it is important to tackle barriers to entry to the NHS market. It is important to recognise that we already have an NHS market in which many NHS providers do indeed compete for patients against other NHS providers. The Bill does not suddenly inject competition into the NHS but merely tries to impose some better rules and a system for regulating that competition.
There are basically three sets of circumstances in which competition could—not should—be used. The first is that, as a matter of principle, all NHS providers should be subject to market testing periodically. The second is when there is clear provider failure and it seems sensible to test the market to establish the best set of arrangements for replacing the failed incumbent. The third is where there is a set of circumstances when the NHS itself—the commissioners in practice—wish to change significantly the way in which services are provided and it is not apparent that the current incumbents can adjust quickly to the patient’s needs. The first set of circumstances has often caused a great deal of angst in the discussion of competition. I certainly do not start from that position. I believe that it is the second and third areas that I have described where we need to examine whether there are real barriers to entry by new providers, irrespective of whether those providers come from elsewhere in the NHS—from the private sector, social enterprise or the voluntary organisations.
Amendment 266 is concerned to establish much more clearly than now what the barriers to NHS market entry are. We know from the work of the collaboration and competition panel that primary care trusts have behaved in anti-competitive ways and have frustrated the best interests of patients. We know from the experience of the East Surrey nurses when they tried to set up a social enterprise how frustrated they were at changing themselves from NHS employees into a social enterprise so that they could compete for NHS business. We know that across the voluntary sector, voluntary organisations have been frustrated over their attempts to compete for NHS services over a long period of time. We also know that many private providers of services find the tendering processes for providing NHS services prolonged and excessively expensive and that they are too often frustrated by shifting political opinions about the desirability of competition.
I could go on with examples of the way in which the NHS has effectively shut the door to new entrants. Some of the most recent examples are the ways in which many primary care trusts divested themselves of their provider services without any proper system of market testing when it was clear that many of those services were extremely inefficient. We need to take the NHS out of its comfort zone in a future where it faces a huge set of demographic and financial challenges. Keeping it in the NHS family is no longer acceptable or in the public interest. We need an independent, authoritative and robust analysis of the barriers to entry to the NHS market so that we can consider what action should be taken to remove those barriers. Amendment 266 proposes that Monitor does this within a year of Royal Assent. I believe that Monitor would welcome being given this assignment but I would be more than willing to consider alternatives if the Government thought, for example, that the Office of Fair Trading was a more appropriate organisation to do the job. It is important that we get this job done as speedily as possible. I also support Amendments 278 and 287 to which the noble Lord, Lord Patel, will be speaking and to which I have added my name.
Baroness Williams of Crosby
My Lords, I am very grateful that Amendment 265C has somehow managed to escape from the tsunami of amendments so that I can bring it to the Committee’s attention very briefly. It is again an amendment that seeks to make sure that when competition is allowed or encouraged—the noble Lord, Lord Warner, has spoken on these lines himself—it should be because it clearly improves the quality of health and the quality of provision within society as a whole. The purpose of Amendment 265C is to make it clear that competition is welcome when it improves the quality of the service; it narrows inequalities; it ensures, in particular, that there should be a better outcome as a result of that competition; and it is, therefore, a relatively qualifying condition to permitting competition to flourish.
We have heard a number of very well informed speeches in the House, not least from the noble Baroness, Lady Meacher, to the effect that in some situations competition can clearly encourage innovation, can improve new approaches and can help in providing the NHS a way forward to deal with the huge problems that we all recognise exist. However, in large part we are also very worried about the idea of competition as the ruling principle of the health services in this country, and we heard a very moving set of evidence from the noble Lord, Lord Owen, and the noble Baroness, Lady Thornton, about the devastation that unrestrained competition can exercise on a health service.
However, having spent 10 years of my life in the United States, I absolutely corroborate that. I know far too many people, one or two of whom are National Health Service refugees to this country, of outstanding talent, who are not in a category where they can afford the huge prices that are charged for complex and chronic conditions in the United States. How do we achieve this difficult balance so as to have competition that improves the quality of the health service but does not bring about the devastation of a great many human beings because they simply cannot afford the cost of complex operations or looking after the chronically ill? The situation of the chronically ill in the United States is pathetic in very many cases.
Therefore, this amendment and several others in this group would enable us to walk this delicate line in a way that permits competition, but competition that is in the interests of the patients of the health service and not competition that could devastate the health service itself.
Lord Warner
I want to briefly respond to what the noble Earl said about Amendment 266, particularly in the light of the points that the noble Baroness, Lady Murphy, made about a good deal of anti-competitive behaviour being already quite well entrenched in the NHS. Simply waiting longer to get it even more entrenched before Monitor has a go at the issue of the barriers for new entrants to the NHS market simply gives the signal to the NHS that it can go on as it has been going on. It seems to me that it is important to give a signal that there is a new show in town and that the issue of the barriers to entry, particularly in the light of the report by the Co-operation and Competition Panel, are going to be addressed. I am not sure that waiting longer for the new systems to settle down is going to be in the best interest of the NHS or Monitor and I wonder if he might think a bit more about this and perhaps we could have a further discussion.
Lord Warner
I beg your pardon. I am rather dozy this afternoon on this group of amendments. I beg leave to withdraw the amendment.
Lord Warner
My Lords, I apologise that my enthusiasm for Amendment 274ZZB caused me to speak to it partially in an earlier group. The amendment in my name and that of the noble Baroness, Lady Pitkeathley, was put down because we regard it as a probing amendment to the end of Clause 62 that relates to matters that Monitor must have regard to in the exercise of its functions. Its purpose is to raise the issue of the financial stability and governance of adult social care providers in the light of the Southern Cross experience, and to seek the views of the Government on how they propose to use the new regulatory system in the Bill to protect the vulnerable users of adult social care services from providers whose financial structures are fundamentally unstable.
Let me say at the outset that I thought that the Department of Health managed quite well the difficult situation that Southern Cross presented. Few, if any, elderly people had their care seriously disrupted. 20/20 hindsight is a wonderful thing in public policy post-mortems. The truth is that across the political spectrum few were alert to the dangers of overleveraged providers of adult social care. However, we are now alert to the dangers of creative financing arrangements in this area, particularly those instituted by boards of management that do not hang around to face the consequences of their action but simply take the money and run.
It is clear that the way in which care providers are financed and their governance wraparound are matters for rigorous inquiry before they are allowed to contract for the provision of services to vulnerable people. In the case of adult social care, this relates not simply to elderly people whose adult social care is funded by the state but to self-payers. Most of these service providers have a mix of state and self-funders in their homes, with many of the self-funders in effect subsidising the state-funded residents in today’s inadequately funded, state-financed, adult social care. That inadequate funding is itself going to cause some providers to withdraw from the market, and others to merge. It will also distort future investment decisions by those who wish to enter this market, because they will favour investments that concentrate on self-funders.
We face a period of turbulence and uncertainty in the adult social care provider market that makes the detailed working of the regulatory system even more important. That is particularly the case with the positive flood of findings of unsatisfactory care of elderly people in the NHS and adult social care environments. The question of how providers are financed and governed is an integral part of ensuring stable and quality care environments for vulnerable groups. A bright light needs to be shone on these areas in a new regulatory system. Can the Minister say how the Government are going to proceed on this issue and what role Monitor should play? Do the Government intend to move quickly to bring adult social care into Monitor’s remit, or do they see some other approach being pursued? I recognise the heavy burden that is already being placed on Monitor and the range of things that it now has to do. However, I think that the Committee needs to know whether and when this will be transferred to Monitor or whether other mechanisms will be used. The purpose of this amendment is to find out the Government’s intentions.
Lord Walton of Detchant
My Lords, I support the amendment proposed by my noble friend Lady Finlay because this is an extremely important matter. When I was a consultant working as a neurologist in the NHS, if I had a patient who, for instance, had a peripheral neuropathy and turned out to be diabetic, I had no problem in referring him to a colleague within the same hospital for the care of his diabetes or to a colleague in the ophthalmology department for the care of his eyes. I am horrified to discover that in the recent past such individuals have been told to go back to their GP for yet another referral to a different consultant. This is an extraordinary situation. Can the Minister assure us that something in the Bill will stop this kind of nonsense occurring?
Lord Warner
Perhaps I could ask the noble Baroness to go a little further. Does she envisage that after this consultation, the Government are going to require primary legislation to take effective action in this area, or are the Government confident that there are sufficient powers to enable them to deal with that, either by guidance or secondary legislation?
Baroness Northover
Perhaps the noble Lord is seeking for me to pre-empt what will emerge from the discussion document that I mentioned. It is extremely important that this is considered fully and carefully. Therefore, it would be inappropriate for me to pre-empt the conclusions of that—tempting though it might be.
Lord Warner
Perhaps I could pursue this a little further. Is the Minister saying that the current legislation is insufficient and therefore the Government are consulting on what strengthening might be needed? Surely it is possible that this great and glorious machine, the Department of Health and its lawyers, can tell Ministers whether the current legislation is adequate to deal with this issue.
Baroness Northover
The noble Lord himself mentioned that things did not work out quite as badly as one might have expected. I know that my honourable friend Paul Burstow was working night and day to make sure that that was the case. However, I will resist the noble Lord’s invitation to pre-empt the conclusions of those who are far more expert than I am on this matter.
Lord Warner
I asked a very straightforward question. I am quite happy to pursue this through a Written Question. I just want to know whether the Government consider that the current primary legislation is adequate to deal with this particular issue. That seems to me a yes or no answer, but if the noble Baroness would prefer me to put down a Written Question, I am quite happy to do so.
Baroness Northover
I seem to have been inspired. We do not need primary legislation, it seems, we need regulations subject to the affirmative procedure. However, we are consulting on the best approach to using these. I am sure that that informs the noble Lord far better than my earlier answer, but I return to the point that it is extremely important that we get this right, because we certainly do not want to find ourselves in a situation where things are not as well protected as they were in this last instance.
I will now briefly address government Amendment 270A, which is a minor and technical amendment that makes clear that Monitor is concerned with services provided for the purposes of the NHS. On that basis, I hope that noble Lords will be happy to support it and content to withdraw their own amendments.
Lord Davies of Stamford
My Lords, I shall speak to—I had better read this out; I cannot possibly remember it—Amendment 294AZB in my name. This is a probing amendment, intended to smoke out the Government’s real feelings about price competition in the health service market. There have been some conflicting signals on this, as we all know, with the general expectation that the Government intended to introduce a greater measure of price competition, and then a spectacular U-turn earlier this year, which the Government said was not a U-turn because they never intended to introduce price competition anyway. A whole lot of clauses were introduced into the Bill that had the effect of banning price competition in the NHS.
I was assured by the Minister only yesterday that the Government’s true thinking on this is best set out in the document Protecting and Promoting Patients’ Interests, and I am grateful to his officials for giving me a copy. I shall quote what it says on this subject in paragraph 35 under the heading “No price competition”, which sounds very decisive:
“We have strengthened the Bill to ensure that where a national or local tariff is in place, providers and commissioners cannot undercut this”.
That seems to be straightforward, coherent and, as I shall argue, completely wrong. Paragraph 36 says:
“Where competitive tendering is undertaken for services not covered by the tariff, bids would be evaluated in terms of best value (i.e. awarding contracts to those bidders who provide the best balance of quality and cost”.
That seems to be incoherent and complete rubbish. Once you introduce the idea of a balance of quality and cost, you are into price competition. Every time you buy a car, you compare the quality and price of the cars on the market and come to a balance between quality and cost. Every time you go for a coffee and you choose between Costa and—what is the other one?—Starbucks, you are striking a balance between quality and cost. That is clearly incoherent and the result of very sloppy thinking.
Let us assume that that is just bad exposition or bad thinking on the part of the Government, and their real conviction is represented by the first quotation—they do not believe in price competition at all. Why is that a mistake? For two reasons: first, it involves a considerable potential loss of money from public funds. Surely if you can save money with no detriment to the purposes of the health service or the interests of patients, it should be the obligation of the Government to do that.
The second reason is a little more complicated: if you deny price competition a role in the system at all, you are denying the use of the mechanism for price determination. Competition is the only way in which you can really make sure that you understand how prices are put together. If you have a tariff that does not involve any price competition, you are basically into a form of cost-plus price determination, and anyone who knows anything about this—I know a little, having been Minister for Defence Procurement; sometimes we have to use cost-based pricing because there is no competition in the product that we need to acquire—knows that if you produce prices on that basis, you find that you can never exert any downward pressure on the prices that your suppliers are quoting to you. They will put in whatever they think is necessary for that activity and whatever costs they think they ought to put in. They will use the technique that they traditionally prefer to use for producing the goods or services that you are buying. You will never be able to second-guess that or look beyond it. It is an extraordinarily wasteful system of procurement and it is completely wrong.
We should have a commonsensical agreement that we should use price competition wherever we can where it does not do damage to other desirable objectives, particularly the objective of patient outcomes. I have endeavoured to produce an amendment—it is a purely probing amendment; I am sure that it is technically deficient, and I do not intend to take it any further in its present form—that establishes one way of doing that. It says that when commissioners wish to use price competition and they find that they get an offer of a price that is more favourable than the tariff price, they should be allowed to take it, subject to checking with Monitor to ensure that there is no damage to other purposes of the health service, to the interests of patients or to the structure and capacity of the health service. In health, there are often good reasons why you might not want to take the nearest offer, and I shall come to a couple of those in a moment, but, where there are no such reasons, surely the onus should be that you should take that offer and save the public money.
There are reasons why in health it may not always be sensible or in the interests of the health service or of patients to take the lowest offer, and I entirely accept that that may often arise. One is in the case where you are making a strategic investment in a new capability. We have had examples that have struck me in the course of these debates—for example, the new stroke systems in London and cardiac systems that cover London. I do not come from London but I believe that they have been a great success. That has consisted of ensuring that a quasi-monopoly has been given to perhaps half a dozen units that contain the best expertise and the best equipment that can be brought together for these purposes. That has been found to be the best solution for maximising patient outcomes or, to put it rather more straightforwardly, actually saving people’s lives, which is clearly the priority. I totally accept that there may be decisions of that kind that need to be taken irrespective of cost. Indeed, I welcome that they should be taken irrespective of cost and I have provided in this amendment a mechanism for making clear that when that happens and there are arguments of that kind they can prevail and it can be quite clear and quite transparent why the decision has been taken.
The second reason is also rather specific to healthcare, although not exclusively so. One of the features of the economics of healthcare is that it has a very high operational gearing; in other words, a very high ratio of fixed costs to total costs. In any sector of the market where that prevails there is obviously a great temptation for people to bid opportunistically when they have spare capacity at a price that represents a return over their variable costs and some contribution to fixed costs though not necessarily a very great one. You may get some very cheap offers coming in from people who happen to have spare capacity at a particular moment. It may be dangerous to take those offers rather than ones from other suppliers, such as traditional NHS suppliers which are more expensive, because if you do that you will put those NHS suppliers out of business. By definition, if people are bidding at a price below their full costs but over their variable costs then they will not always be providing it on that basis. They will certainly not be investing in new capability or sustaining capability on that basis. One has to be very careful about predatory pricing in the health service. I totally recognise that, and it would be a very good reason for saying, “We do not want to take this particular offer because if we do we shall put out of business capacity we need over the long term that can only be sustained long term at a higher price”.
I am very open and sensitive to the reasons for not taking the lowest price in many individual cases, but it seems to me that the Government have got this thing completely the wrong way round. The default option should be to take the cheapest price. We should be saving money. We should be exerting downward pressure on cost. We should be encouraging people to come up with new, cheaper and more efficient ways of doing things consistent with the quality that we require. It goes without saying that quality should be absolute and should be determined for every diagnostic related group, every service and health service procedure. For each of these we should have a clearly defined specification of quality and we should not go below that for reasons of price. Where we can get that quality cheaper and we do not do structural damage to the service it seems to me completely crazy not to go in that direction. I am sorry that the Government carried out the U-turn in February and I hope they may now turn back again.
Lord Warner
My Lords, I have some sympathy with some of the remarks made by my noble friend Lord Davies of Stamford in the sense that a blanket ban on price competition seems rather misguided in the situation the NHS faces. To give one example, under the last Government the price we paid for spot purchasing from the private sector when there were peaks of demand in the NHS was often much cheaper than had previously been the case and could, on occasion, be below a tariff price for some of the services. That was in the interests of the NHS and patients. A blanket ban does not seem to me to be the most sensible way forward.
I want to speak to Amendment 291C which should have been in this group. Assiduous readers of the groupings list will see that there are two commas after Amendment 291B. Between those two commas should have been Amendment 291C and the Whips’ Office has confirmed to me that was indeed the intention, so I wish to speak to the missing amendment and I also wish to speak to Amendments 294AA and 294BA which were included in the list.
Amendment 291C adds to Clause 141 some principles that should be applied to the construction of the national tariff. We have already had one debate about the tariff and how the national Commissioning Board might be encouraged to move the tariff away from its dependence on pricing episodes of care, which tend to favour acute hospitals, to a greater emphasis on periods of care that are more appropriate to the high volume of NHS patients with long-term conditions. I withdrew my earlier amendments on this issue but discussed the issue much further with outside interests and experts to see whether there was anything we could usefully do to further this particular cause. I think the Minister was not unsympathetic to some of the ideas in the earlier amendment.
These discussions have persuaded me that there is widespread support for trying to move the tariff currencies and pricing in the direction of periods of care but also a belief that this will take quite a long time and it involves a good deal of new data collection and analysis. In the mean time, people seemed to be saying that there was some merit in being clear about what should be the underpinning key principles for developing the national tariff in the future. I have had a shot at encapsulating these key principles—drawing very much on work by the NHS Confederation and I am extremely grateful for the help and advice it gave me—so that principles of this kind could be placed in the Bill to guide those who will be taking forward the difficult but important work of shaping the national tariff. I hope the Minister will be able to agree that we should try to have some guiding principles on the tariff in the Bill even if he does not like my particular wording because this is an important issue. We need to use this legislation to try to shape an important piece of work that will stretch over quite a few years to develop a new national tariff.
Amendments 294AA and 294BAA are technical amendments that reflect concerns expressed to my noble friend Lord Darzi and me by representatives of specialist medical interests about the current wording in Clause 116 on consultation on proposals for the national tariff and Clause 128 on the responses to those consultations. Amendment 294AA is intended to ensure that the relevant specialist groups are consulted on proposals for the tariff. It does not seek to specify the particular groups—that would be left to Monitor in the light of what the particular proposals were, affecting particular specialties. The amendment simply seeks to require that specialist clinical groups are consulted when tariff proposals are made so that they are involved and can bring to bear their expertise on the tariff-setting processes that can be involved with particular quite highly specialised sets of services. Amendment 294BAA merely seeks to ensure that when there are objections to a tariff proposal, assessing the weight of opinion for or against should be restricted to specialist licence holders undertaking work of comparable complexity. This is really to ensure that any objections are raised by the people undertaking work of a similar complexity defined in the original proposals for tariffs. I know that specialist opinion will be much reassured if the Minister could look favourably on these two amendments.
Health and Social Care Bill
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Lord Turnberg
My Lords, I had a previous bite of this cherry when I spoke at some length in my prayer to take note of the statutory instrument to set up the Health Research Agency a few weeks ago, so I will not be long and will not repeat what I said on that occasion about the need for a research regulatory authority that was more than simply a home for the national research ethics committee. Highly important though that is, my message was that it was essential but not sufficient. If we are to get over the barriers to research posed by the regulatory processes that delay research approval, we must include more functions.
I was very taken by the Statement that the noble Earl repeated yesterday on the life sciences. It was a marvellous demonstration of the Government’s commitment to research and innovation—I could not have said more myself in many of its aspirations. However, if you were looking for a reason for us to have a fully functioning research regulatory authority, as set out in this group of amendments, you need look no further than that Statement. It points out quite clearly where the barriers to innovation lie—with excessive regulation, access to patient data and delays in taking up innovation into practice.
On regulation, the Statement says:
“Excessive regulation can mean that the uptake of new treatments and technology is slow. That is a challenge felt acutely by an industry that sometimes feels that the return is not there quickly enough to satisfy investors. It is felt even more acutely by patients”.—[Official Report, 6/12/11; col. 685.]
There it is; we need a more strongly established research regulatory authority. Let me give one example of where we are in danger of losing out. The NIHR—the National Institute for Health Research—sponsored the North West Exemplar programme to see whether it could engage both the pharmaceutical industry and the NHS in trying to get approval for multicentre clinical trials in a reasonably short time. This involved getting the strategic health authority in the north-west to convince the various hospital trusts in its area to approve the research as efficiently as possible. It has worked—their rate of research and development committee approvals are rapid and compare very favourably with the rest of Europe. They are certainly better than the rest of the UK.
However, there is a danger of that being lost when we lose the strategic health authorities. The driving force of the strategic health authorities will disappear shortly. That is another reason for a research regulatory authority to take on this leadership role: to drive this exemplar forward and spread its message more widely. We need it, therefore, not only for the National Research Ethics Service and the ethics committee on the use of data—a separate ethics committee—but for many of the other functions described so forcefully by the noble Lord, Lord Willis.
I heard exactly what the Minister said about the HTA and the HFEA, and what my noble friend Lady Warwick of Undercliffe said about the HTA. I accept that that should be looked at as a separate set of items. These amendments would allow that; I do not think that they are obviated. However, we need this critical role if we are to take advantage of our excellence in research and if we are to fulfil the Government’s ambitions, as set out yesterday in the Statement. The dangers are evident already, as we see the pharmaceutical industry withdrawing and moving elsewhere. If we are to draw it back, we must have something in the Bill that sets up a full—and fully empowered—health research authority. I hope that the amendment has some sympathy in the Government.
Lord Warner
My Lords, my name is on Amendment 258. I speak as a former Minister responsible for NHS R&D in the pharmaceutical industry in 2003 and 2004. We were having exactly the same discussions then. Since that time, the National Institute for Health Research has been set up, we have had the Cooksey review, OSCA has been set up, and we have had the review by the Academy of Medical Sciences. All these cases come back to the issue of a faster, smoother regulatory approval system. The same blockages that are being talked about now were being talked about five, six, seven years ago.
In that time the UK has lost large numbers of clinical trials. We continue to lose trials and we are going to lose more to south-east Asia. UK plc suffers while we continue with these present arrangements. I understand the Minister’s anxieties about this. However, at the end of the day it is difficult to see that a new authority would be in place, even with a very smooth passage, until at least a year later than if we went along with the amendment. We need to move faster on this.
I end with one question to the Minister. Have the Government actually talked to the big beasts in science research in this area—to the Wellcome Trust, the MRC, the Academy of Medical Sciences? Have they asked them directly whether they would you sooner have the Willis amendments or wait for a Bill in the next Session. I would like to know what their straight answer to the Minister would be on that particular question.
Baroness Finlay of Llandaff
I have my name on the amendments about setting up the authority. In his response to the questions posed, I hope that the Minister will address how exactly we are going to streamline the process, as has been outlined so eloquently, and whether mechanisms such as commencement orders could be used so that we do not delay the process of speeding up research, because some parts, such as the Human Tissue Authority and the HFEA, are not yet clarified. It would be very sad to go at the slowest pace rather than storm ahead. This Government have demonstrated an understanding of research as an important economic driver to the UK as a whole, but that infrastructure, as suggested in these amendments, has to be in place and cannot wait. I hope, therefore, that the Minister will also address the timetabling in detail when he replies.
Health and Social Care Bill
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Baroness Scotland of Asthal
My Lords, I think we need to be clear that my noble friend Lady Thornton’s Motion is simply for this House to express its regret. It is not a fatal Motion but an opportunity to express a view.
I have to say, and this is rare, that I disagree with the noble Baroness, Lady Williams; indeed, this may be one of the first times I have done so when not sitting where the noble Earl, Lord Howe, now sits. The whole purpose of the Information Commissioner is that he is charged with looking at the most delicate and difficult issues and seeking to come to a balanced view on whether the public interest points in one direction or another. It is clear that both parties have an opportunity to appeal if they disagree with him, but I hope that Members of this House, if they have had an opportunity to read the commissioner’s decision, will have found it sound, well argued and balanced. So we have a well argued, balanced view from the Information Commissioner that he believes, having had the advantage of looking at the documents, that the risk register would enable this House to better scrutinise the Bill to the effect of helping us to make a better Bill for the people of our country.
I agree with those who say that this opportunity has to be sparingly used, and it is clear that the commissioner agrees. This will not open the floodgates, which it sounded as if the noble Lord, Lord Turnbull, was suggesting would happen if we agreed to this Motion of Regret. It is clear that the National Health Service is dearer to the people of our country than almost any other institution, so this touches every single citizen. Be they a baby or a person in their third age, it is of equal importance. If we compare it to the importance of the third runway at Heathrow, I hope that the House will think the NHS is a tad more important. Notwithstanding the difference in importance and, as my noble friend Lady Thornton made clear, the great reluctance from my own Government—it took over a year—we gave way, because it was right and proper to do so and there appeared to be an overwhelming public interest. If there was an overwhelming public interest in that case, how much more is there an overwhelming interest in this?
I suggest to the House that the noble Lord, Lord Pannick, is right that this goes to our power and ability to properly scrutinise the Bill. I therefore invite your Lordships to join my noble friend in gently saying to the much beloved noble Earl, Lord Howe, that this is may be a moment when he has to take a message back to his department and say, “Can this not be released?”. If it is as cogent, sound and well placed as the Government believe it is, surely that will only persuade those of us who have anxieties and assist in our scrutiny.
Lord Warner
My Lords, I hesitate to intervene but it is a Motion of Regret, and one element of the regret the House would express would be regret for the position the noble Earl has been put in. Much of our debate so far on this Bill has been on the basis of how it would work in practice and how things would happen on the ground. I suspect there is a lot of information about how things would work in practice in the risk register. My concern is that the noble Earl is being put in a very difficult position and at risk of misleading the House—I am not saying he has; I am not saying he has not—as he has been put in a position where, because he is unable to use that information, he may be forced to hedge his bets to reassure the House on some of the practical issues. I hope that is not the case and he has not been put in that position, but we need to be sure and I hope he can give us some reassurances.
Lord Mackay of Clashfern
My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.
The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.
Lord Warner
Lord Warner
My Lords, in moving Amendment 240, I shall also speak to Amendment 242 in this group in my name and that of the noble Lord, Lord Patel.
Amendment 240 inserts the words “cost and” before “effectiveness” regarding the exercise of functions by various bodies that the Secretary of State must keep under review. The NHS faces an unprecedentedly long period of having to survive on short financial rations. This is now likely to extend at least two years after the 2015 election, if we are to believe the Chancellor’s utterances last week on the public finances and deficit reduction. The NHS has never delivered in any one year of its history the productivity and cost-saving requirements set by the £20 billion Nicholson challenge, which is to be produced at least four years on the trot. Most informed commentators expect a financial crisis of some kind in the NHS in the next few years, so the reality is that the Health Secretary will have to keep under close review the expenditure and costs of all the bodies listed in Clause 49. The Government should face up to this reality, in my view, as the Chancellor seems to want us to, by adding the words in Amendment 240 to the Bill.
Amendment 242 is another part of that reality checking of the NHS in the Bill. On earlier amendments I raised my concern about keeping in check the overheads and management costs of the national Commissioning Board and clinical commissioning groups, and was duly told that these were not necessary. I acknowledged then that my amendments were probably not framed as they should be. However, I am returning to this issue with Amendment 242, which requires the Secretary of State to report annually to Parliament the administrative costs of the bodies listed in Clause 49, together with the percentage of the NHS budget they represent and their percentage increase over the previous year. If the Secretary of State is doing his or her job properly, they should have this information available to them and be monitoring it closely, especially in the financial climate the NHS faces over the coming years.
We know from history how, left to their own devices, bureaucracies can expand their remits and resource consumption. Ministers never like to own up to this happening on their watch. To improve the prospects of keeping Ministers and, if I may put it this way, these big NHS beasts on the financial straight and narrow, it would be extremely helpful if the Bill required the reporting of administrative costs and their movement over time to Parliament once a year. I hope the Minister can be constructive about accepting such an amendment as it in no way challenges the Government’s reforms. I beg to move.
Baroness Cumberlege
My Lords, I have two amendments in this grouping and, lest I be drummed out of the Brownies, I would like to explain that there is a typo in the Marshalled List. It should read not “detailed merits” but “detailed remits”. As noble Lords will appreciate, there is a great difference, and I do not need any persuasion as to the merits of this Bill.
The purpose of my two amendments is to be probing; I am really just seeking clarification. The Future Forum was very widely welcomed by most people, but it further complicated the new proposals in the Bill regarding how we are to organise and manage the NHS. After years of being dictated to and micromanaged, there is a real risk of paralysis, and this at a time when commissioners need to reach decisions and be truly radical.
As I understand the proposed structure, the national Commissioning Board and clinical commissioning groups will be supported by clinical networks, clinical senates, commissioning support organisations and health and well-being boards, which will work in partnership with them. In addition, we have a new public health system, which we debated last Monday, with the creation of Public Health England and the establishment of HealthWatch England and Local HealthWatch to try to improve patient and public involvement. This has the potential to cause confusion and duplication if the Government are not clear about the accountabilities, roles and responsibilities of these different organisations. I would like to take a very serious example: it is still unclear who will take the lead on the commissioning of specialist doctors and nurses responsible for safeguarding children within the NHS.
At a national level, the movement from a single department of state to a more dispersed range of organisations, including the national Commissioning Board, Public Health England, HealthWatch England, Monitor and the Care Quality Commission, could have a similar effect. The danger is that the NHS could find itself in paralysis at just the moment that it needs to make key decisions that are crucial for the sustainability of parts of the service. In particular, some of the important decisions on potential service reconfigurations are urgent if the NHS is to meet the Nicholson challenge and at the same time fulfil its commitment to high quality and safe services to patients.
It is still unclear to me, and I know that it is to some others, how the respective responsibilities and accountabilities of commissioners, providers and regulators for quality are intended to work together. We also need to ensure that additional complexity does not result in an increased administrative burden or financial cost, as the noble Lord, Lord Warner, has said, falling on healthcare organisations. I think that my noble friend gave an undertaking on that on Monday but further clarification would be welcome.
Because of these concerns about the complexity of the new structure, I am asking the Minister if he could look seriously at this issue; go beyond the organograms and design detailed remits and powers for all those in the system to minimise confusion, gaps and duplication; and be as clear as possible at the outset as the reforms are implemented, while at the same time keep under review and address any confusion, gaps and duplication between the components in the system. Change is always a challenge. The more we can reduce muddle and confusion from the outset, the more successful these reforms will be.
Earl Howe
My Lords, as I have observed on earlier occasions, I believe that this Bill increases Ministers’ accountability for the health service through a range of mechanisms. However, perhaps I may begin by saying to the noble Lord, Lord Hunt, that I agree that the Secretary of State’s annual report is an important mechanism through which he will account for the system. I am sympathetic to the objective behind Amendments 243 and 243A, which seek to specify areas for inclusion in the Secretary of State’s annual report, but I can reassure noble Lords that I expect to see mention of areas such as the reduction of inequalities set out in the report, as these issues are the foundation of a high-performing health service.
The Bill also sets out extensive powers of intervention in the case of failure, which are essential if Ministers are to be able to retain ultimate accountability for the health service. The intervention powers in the Bill are specific to the organisations to which they apply, which is the issue covered by Amendments 245B and 245C. With that point in mind, I believe that the powers set out by the Bill strike the right balance, enabling appropriate freedom for NHS bodies while ensuring that the Secretary of State can intervene in the event of their failure.
The Secretary of State’s duty of keeping performance under review only applies to national arm’s-length bodies. It does not refer to CCGs. The noble Lord, Lord Hunt, questioned why that was. We think that is right; however, the CCGs will very definitely be kept under review. The Bill sets out a robust process for the board to hold CCGs to account and sets out extensive powers for the board to keep the performance of CCGs under review and to step in where they are not performing.
The noble Lord also queried why there was no mention of a range of other bodies, such as senates and field forces. The answer is that they are part of the NHS Commissioning Board, which is specifically mentioned. As regards health and well-being boards, as the noble Lord will know, we intend them to be part of local government. I do not think local authorities would take very kindly to the Secretary of State for Health keeping them under review.
There are also a number of amendments in this group that are concerned with the transparency and accountability of arm’s-length bodies, such as the amendments of the noble Lord, Lord Warner. Much like the Secretary of State’s annual report, each arm’s-length body’s annual report and accounts must be laid before Parliament. I simply remind the Committee that all ALBs are under a duty to exercise their functions effectively, efficiently and economically, and the Secretary of State is required to keep under review how effectively they are exercising their duties and functions.
Finally, I turn to co-operation between the bodies in the system. The Bill sets out a formal duty on each organisation to co-operate, and the department will hold organisations to account for the way they work with each other, not just how they perform their own functions. As regards Amendments 240A, 243ZA, 350 and 351, I hope I can reassure noble Lords that, through these two routes, the department will work to ensure that duplication is prevented and gaps do not emerge. If the Secretary of State believes that the duties of co-operation are being breached or are at significant risk of being breached, he will be able to write formally and publicly to the organisations. If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself.
Amendment 245ZA looks to reinstate a power at Section 2 of the National Health Service Act 2006, which would enable the Secretary of State to provide services. We believe that the role of the Secretary of State should be one of oversight, direction-setting and intervention when organisations are failing. We have had many hours of valuable discussion on this topic; so while I fully understand the various concerns raised by noble Lords, I remind the Committee that all sides of this House have agreed to a process of engagement and discussion on this subject. The noble Lord, Lord Hunt, asked specifically in relation to this amendment whether this issue was covered by that process. The Clauses 1 and 4 process, as I call it, is considering the issue of the Secretary of State’s accountability for the NHS in the round rather than specific clauses in the Bill; so, yes, this would be covered by that process.
I hope that I have provided enough detail on these clauses to enable the noble Lord to withdraw this amendment.
Lord Warner
I wonder if the noble Earl could enlighten me, and indeed the House, on the story that is trailed in the Times today that the Secretary of State is going to have 60 benchmarks or indicators—which some of us would think looked like 60 targets. Are they going to be a key part of his process of keeping performance under review? Will he give the House a little more flavour of what that is going to mean?
Earl Howe
My Lords, that story in the press was about the outcomes that the Secretary of State is proposing should form the basis on which the health service is held to account. It is likely that the outcomes framework will form part of the annual mandate. These are proposals which we are hoping for comment upon. Therefore the answer to the question of the noble Lord is that the health service—I am not talking about the ALBs other than the board, but the National Health Service Commissioning Board—will be held to account against those outcome measures.
Lord Warner
My Lords, I have listened very carefully to the Minister. I am disappointed that he cannot agree to put something more specific in the Bill about administrative costs. I am concerned about those getting out of control, when the NHS faces a very difficult set of financial challenges. However, I hear what he says. We may want to come back to this at a later stage, but in the mean time I withdraw the amendment.
Lord Warner
As I said in our recent debate on the Dilnot commission report, secured by my noble friend Lady Pitkeathley, we need to consider whether this Bill is a suitable vehicle for progressing implementation of that report. Here I should declare my interest as a member of the Dilnot commission. First, I shall make some remarks on the growing crisis, if I may put it that way, in social care and the implications of that crisis for the NHS and patients, particularly as, despite the extra money the Government have provided for social care in the spending review—I commend the Government on that—we still face a £1.2 billion shortfall by 2014, according to the King’s Fund.
The NHS and social care are in a symbiotic relationship with each other, in that what happens in one sector can have a profound effect on the other. That is what is happening now. The current problems have their roots in the past. Both sectors face the challenge of a service response to an ageing population. The fact that we live longer is, of course, something to celebrate, but it does have consequences for health and social care. By 2030 there are expected to be £2.5 million more people aged 75 or over. The current 1.5 million over 85 will double in the same period. The number living with dementia in the UK is expected to reach 1.4 million by 2040. We have nearly 18 million people living with long-term conditions that require treatment and care, but not necessarily in hospital. Getting the balance right in the resourcing, co-operation and delivery of services between the NHS and social care is critical to the quality of care and quality of life for this ageing population and for the cost to the taxpayer of those two services.
What is clear is that doing nothing and letting the current system carry on is not really an option. For example, the King’s Fund has shown that even if we do nothing to the current inadequate adult social care system, its cost will rise from £6.7 billion in 2011 to £12.1 billion in 2026. In that situation, the eligibility criteria for social care will get tighter and tighter, despite the extra expenditure, and the pressures on the NHS will increase as social care is unable to cope. Both systems need rebalancing and improved integration between the two.
However, they do not start from the same position. Since 2003-04, spending on social care has increased by 19 per cent in real terms, which is half the rate of increase in NHS spending in England over the same period. Despite this increase in spending on social care, access to state-funded services has reduced. In 2005-06, 60 per cent of local authorities restricted their service eligibility threshold to those whose needs were substantial or critical, leaving those with low or moderate needs to fend for themselves. By 2010-11, that 60 per cent had risen to 82 per cent of local authorities. As local authorities try to balance their budgets, they have cut the price they pay to providers, with a consequential impact on the quality unless they can persuade a growing number of self-funders to subsidise the care of those who are funded by the state. The impact has meant increasing burdens on informal carers, whose health is often not of the best, and rising costs in the NHS. Perversely, we can now end up with the taxpayer spending £3,000 a week to care for an 85 year-old in the medical ward of an acute hospital when they would be better off in a medically supervised £1,000-a-week single room in a nursing home.
At the heart of this problem is that social care simply does not have the standing of the NHS. If we are to improve social care and its integration with the NHS for the benefit of service users, we have to improve that public and political standing and realign the financial balance between the NHS and social care. I suggest that a good starting point for that would be the statutory duty placed on the Secretary of State. Leaving aside our current dispute over the precise wording of Clause 1, the Bill as it stands gives the Secretary of State the clear duty, which he has had for a long time, to promote a comprehensive health service designed to improve the physical and mental health of people and the prevention, diagnosis and treatment of illness. There is nothing equivalent to that duty in relation to the NHS for adult social care.
In subsection (1) of my new clause in Amendment 260DA, I have tried to even things up a bit by placing a clear duty on the Secretary of State to secure continuous improvement in the quality of social care services. This would mean that, when considering his priorities in relation to health and social care, the Secretary of State would have to consider securing a proper balance between both sectors. I suggest that both will face similar demographic challenges and careful consideration would then have to be given to how to allocate resources and priorities between the NHS and adult social care.
The rest of Amendment 260DA is intended, if I may put it this way, as a helpful encouragement to the Government to use the Bill to secure the legislative framework to implement the ideas in the Dilnot commission’s report but without the Government, at this stage, committing themselves to the precise financial figures in our report or the timing of implementation. The Government would be able to consider the responses to the consultative process that closed last Friday and prepare their White Paper in the spring as they are proposing to do. The amendment would remove the need to worry about whether they would have a piece of legislation on this subject in the next Session. I have to say that a number of us, both inside the House and outside, have a fair degree of scepticism about whether that Bill will actually happen.
There is widespread support for the direction of travel pointed to by the Dilnot report, with widespread consensus among stakeholders that this is the road we should tread if the finances of adult social care are to be placed on a more secure footing over time. It is no purpose of mine today to go into the detailed merits of the Dilnot commission’s report. However, I would like to hear, especially from the Liberal Democrats who have been supportive in this area, whether they support moving forward swiftly as many of us do. What I should make clear is that I regard subsection (1) of Amendment 260DA as standing on its own merits irrespective of the Government’s attitude to using this Bill to create a legislative framework for implementing Dilnot. I cannot say that my optimism on that aspect is all that great. However, I hope we can secure support across the House for inserting something in the Bill along the lines of subsection (1) so that when the Bill leaves this House there is a bit more equilibrium between the duty placed on the Secretary of State in relation to the NHS and that placed on him in relation to adult social care. I am not wedded to the precise wording of my amendment but I hope we can actually secure some cross-party consensus on the need to put something that follows the spirit and thrust of that subsection into the Bill before it leaves your Lordships’ House.
Amendment 244 simply requires the Secretary of State, when he publishes his annual report on the NHS, also to report on the health service’s integrated working with adult social care. This is such an important part of how the NHS will work in the future, particularly with the financial challenges that are faced, that I believe we should make specific reference to it in the Bill. I hope the Government agree. I beg to move.
Baroness Pitkeathley
My Lords, my name is attached to Amendments 244 and 260DA. I want to emphasise how vital integrated working is from the point of view of the patient. Most patients, especially older ones or those with a long-term condition, do not experience either health or social care but some kind of combination of both—combinations that fluctuate according to variations in their condition.
This, as we have been reminded, is a Health and Social Care Bill yet the Committee debates thus far have not reflected the experience of patients and their families but have been very focused on acute care and the role of hospitals. I am delighted that consideration of these amendments gives the Committee the opportunity to focus more acutely—no pun intended—on the social care aspect of the proposed legislation. I strongly support the call for social care provision to be subject to annual review. I remind the Committee of the multifaceted nature of social care—residential care, home care, respite care and increasingly tele-care—and of the range of providers such as private, voluntary and social enterprises. Many of these services are facing huge challenges because of increased demand and reduced resources so it is clearly vital that a review is carried out regularly and I can see no reason why the Government should not agree to this amendment.
Baroness Cumberlege
I just ask the supporters of the two amendments a question—the noble Lord, Lord Warner, may be the appropriate one, having been a director of social services. The amendment talks about breaking down the barriers. We are all at one with that. I was very interested in what the noble Baroness, Lady Pitkeathley, said about the Dilnot report; the noble Lord, Lord Warner, was a distinguished member of that committee, of course. Having listened to the amendment’s promoter, I thought it was very persuasive and one could see a real future there.
One of the blocks that has not been addressed in this debate is the difference in accountability in terms of the democratically elected councillors who are responsible for social care. I wonder whether the Lord, Lord Warner, had thought about ways to try to harness that to get that integration. To try to bring together two very different accountabilities is a real challenge.
Lord Warner
I shall briefly respond to that. We should never forget that the lion's share of the money that goes on state-funded adult social care comes from central government and is passed through local authorities to be spent on that group through the commissioning of various domiciliary, residential and even nursing home care. Although what I have crafted is a duty on the Secretary of State, a lot of this comes back to where the balance is struck between the NHS and adult social care in terms of priority and funding in Richmond House. They are all under the same departmental expenditure limit at department level.
The sense I had as a Minister was that it is a bit like the Army: you have to put a musician in the canteen. A former director of social services is kept well away from social care in Richmond House. I saw a reluctance in the NHS culture in Richmond House—which, thankfully, has changed with the arrival of David Behan —to fight for social care at the time of expenditure reviews. That is a real and serious issue. The big guns of the acute sector are alive and well in Richmond House when the expenditure review comes around. My noble friend Lord Hunt is nodding—I think enthusiastically, given his current job as chairman of a foundation trust. This is a real issue. We need a bit more balance in the statutory duty on the Secretary of State in order to align the money going into social care vis-à-vis the NHS.
There is a perfectly good point to be made at the local level. You want to see priority being given to adult social care at the local level, and you want to see openness on the part of local government—which, if I am honest, has not always been there—in working across the boundaries with people in primary care and in the NHS. That is absolutely an issue. However, if in local government you have only enough money to deal with people with substantial or critical needs, then your ability to help people with moderate needs and stop them getting worse will be restricted by the amount of resources available. It will then be extremely difficult to work across that boundary. We know that many local authorities have reprioritised their services, taking money away from other services and putting it into adult social care, but a very clear finding from the Dilnot commission was that the adult social care pot is simply not big enough. It is no good for us to keep uttering that there is a need for integration if there is not enough money at the local level for adult social care to work across the boundaries.
Baroness Greengross
My Lords, I strongly support the amendment and the remarks of the noble Lord, Lord Warner, and the other noble Lords who have spoken. Over the past 50 years we have seen a huge rise in longevity. In this century and at the end of the last century, that rise in longevity has been largely due to medical success in taming many acute and terrible diseases that once we could hardly even talk about. Now, many cancers can be lived with for a long time. However, the big and difficult condition to be dealt with now is dementia. This is a long-term illness and it is terminal in various forms, yet the care for people with dementia is funded largely through social care. This, in itself, is an enormous anomaly. One in four patients in hospital who are elderly and a huge number of people in the community have dementia, but that illness is treated as being due for social care, not NHS care, although the borders do blend to some extent.
We need to celebrate that huge medical success but we cannot do so if we go on as we are with the funding of, and attitude towards, social care, which remains very much as the Cinderella between the NHS and the community. Many people now say that this differential means that in reality we should close 20 per cent of acute hospital beds and transfer those patients to a different sort of care—perhaps hospitals transformed into community hospitals. It is not a case of killing them off; they should be transformed into care centres where people with these long-term conditions can be properly treated. We really must work towards that and accept the truth of it. If we do that, there will be an obvious need to integrate health and social care quite differently from the way that we have done it in the past. What is needed is not a transfer of resources but integration. We must get this right.
I have recently been involved in the EHRC’s inquiry into the care of older people in the community. We found that while a quarter of a million people are happy with the social care they receive in their homes, another quarter of a million are not—and understandably so because some of the ways in which they are looked after are, frankly, appalling. This is partly because of the huge diversity and differential in the allocation of resources, as well as the status and training of staff in dealing with the most difficult issues and problems. I am not going to go through everything I learnt from that inquiry. The report has been published, and I hope it will be helpful to many people in policy-making and in practice.
If we get this right and we keep people in the community for longer, we will save an enormous amount of money. At the moment, adult social services directors have no choice but to give money to the people in the most acute need, which means that the social care needs of all these other people are therefore not being met. If I were one of those directors and I had to choose where my money was going to go, that is what I would do. That needs to change because of the necessity of resource integration. We must find a way to intervene earlier, for dementia for example, with drugs, early diagnosis, and treatment in the community. People will then be able to live in the community for much longer and many will die in the community. An enormous amount of money will be saved. Care for people with dementia, in particular, in hospital is really unsuitable. It is bad for them and it is extremely bad for other patients. It really must change.
One reason that community care goes wrong is annual budgeting. If, like local authorities, one has to have an annual budget, one can do no preventive work. At least a four-year cycle is needed. It is like starting a business, investing in it, and expecting the return within a year—it cannot be done. One must wait a few years for the return. However, local authorities cannot wait because they lose their central government grants; we need to change that. The well-being boards need to be given the resources to integrate care properly so we can get rid of this imbalance.
Further, the Dilnot recommendations—and I congratulate the noble Lord, Lord Warner, on the distinguished role he played in this—are the first realistic proposals which bring together all sectors—public, private and voluntary—to get it right, with what seems to be a political consensus. This is such an opportunity, and we really cannot afford to lose it. Older people will suffer the most. There is still an enormous amount of discrimination. The social care we offer to younger disabled adults and to people with physical or learning disabilities is totally different; the attitude, and the range of resources and skills available to younger adults are quite different. This is direct and really damaging discrimination. The only way to change this is by integrating resources through the well-being boards. We need to make Dilnot a reality so that in the longer term all of us know enough to save for our pensions and our care. This amendment is essential if we are to get some action now. I support it very strongly.
Baroness Barker
My Lords, I will speak briefly in support of the amendment and answer the point made by the noble Lord, Lord Warner. Since 1948, we have had a system whereby there has been an agreed national settlement on a person's entitlement to healthcare. It is delivered to national criteria and demand is managed largely by waiting times. Running in parallel is social care, where there is no national entitlement and demand is managed by eligibility criteria. The two systems are administered in parallel by completely different people, side by side. Successive reports have set out for us all the different ways in which the two systems do not work together. People have analysed the reasons why the systems do not work together.
The most telling thing for me is that we have known for a very long time, because we have evidence to prove it, that if older people are discharged from hospital and are supported through the period of discharge, the likelihood of them being readmitted to hospital is very low. We also know, because of that, that the cost to the NHS decreases. I am afraid to say that those of us who work in the charitable sector also know how impossible it is to get the NHS to run a hospital discharge system. The noble Baroness, Lady Emerton, is absolutely right. I do not want to throw blame about, but it leads to my point about why I think the amendment is important. The biggest single thing that will make an impact on the NHS is cultural change. There are a lot of barriers in the NHS to that change. We have heard the point echoed in our debates over the past few weeks. Some of our most eminent clinicians have made the point very glibly that there is very little evidence about what works in social care. That is true; social care has some way to go in developing an evidence base. However, we have some evidence and it still gets ignored because social care is not up there with healthcare.
Noble Lords have talked throughout our debates about specialist nurses and how important they are. I have come to the conclusion that the greatest asset of a specialist nurse is that they know their way around social care and can explain it to people in the NHS. I do not wish to denigrate specialist nurses in any way; they do a fantastic job. However, part of me thinks that if they are the only ones who understand the system, are they letting the rest of the NHS off the hook? The biggest single thing that will make the Bill work or not work is whether everyone in the NHS sees it as their responsibility to understand and work with social care.
The amendment of the noble Lord, Lord Warner, is cleverly worded. I congratulate him on that. It is based on Dilnot and the Law Commission, although he has crafted it using general terms so that it is not specific to those two reports. I commend him for that. On balance, the most important part of the amendment is proposed new subsection (2)(b), which reflects the Law Commission report. Until we get nationally agreed standards of eligibility, assessment and charging policies, it will be impossible for anyone who works in the NHS to know what it is they are supposed to be integrating with. That is the key point. I understand that Dilnot is important in terms of funding, but the Law Commission report is the important one.
I listened very carefully to what the noble Lord, Lord Turnberg, said. I always do. It is a very good report; I agree with that. However, he said that all these local developments in integrated care depend on funding. He is right, but there is a huge amount of wastage of resources throughout the health service. I pick up on this at local level. It comes down to two things: data are not shared and there is no understanding of common assessment of needs. Those two things cost the NHS and social care a fortune. Proposed new subsection (2)(b) of the amendment is so important because it covers the key area on which we have to work.
Perhaps noble Lords have been slightly pessimistic about the Bill. The existence of health and well-being boards is important. It will be possible, locally if not nationally, to begin to work on these issues. It will be possible for some areas to do highly innovative stuff. Noble Lords have talked about the work done in Torbay. When my colleagues were in charge of the borough of Islington, they had a very interesting approach. Social services took responsibility for everything that was to do with children and the NHS took responsibility for everything that was to do with older people, which included social care. I would like to see more of that and I hope that health and well-being boards will bring it about.
Presumably the noble Lord, Lord Warner, was told to have a go at the Liberal Democrats today. I was surprised that he asked about our attitude to the Dilnot report and the Law Commission report. At our conference in September we passed a resolution to the effect that we welcomed the reports and wished to see the Government implement them quickly. We have not come up with a series of bureaucratic provisions to hold up implementation. I pay tribute to Paul Burstow. He came into government when the previous Labour Government had not resolved the issue in 13 years. He found extra funding for social care and went out of his way to make sure that the Dilnot review was set up. He laid down a challenge to us that I pass on to noble Lords. He challenged us to campaign on social care with all the passion and vigour that we do on the NHS. I challenge noble Lords to do that. Actually, I would like to challenge 38 Degrees and everybody else to do that, because there are an awful lot of people who are willing to be as vociferous as you like on the NHS but are suddenly silent when it comes to social care. Some of us have had enough of that. I commend the noble Lord’s amendment.
Lord Warner
I was not doubting the enthusiasm on the Liberal Democrat Benches regarding this area. I just wanted to provoke the noble Baroness into giving the kind of excellent speech that she has given. I was hoping that we would hear from her. I also join her in paying tribute to Paul Burstow, and indeed Norman Lamb, for the very supportive way in which they have approached this issue.
Baroness Thornton
My Lords, we have had a very interesting debate on this imaginative amendment from my noble friend Lord Warner. Today’s debate might well be the only debate on social care in the whole life of this Bill, including in the Commons. I would like to talk about some real people, with real conditions and real problems, because it is only by testing this Bill against those that we will know whether it is going to work, and whether the issues that are being raised by noble Lords across the House are going to be taken into account.
I would like to pick up where the noble Baroness, Lady Greengross, left off, and talk a bit about dementia, partly because I have a very close friend whose wife has dementia and I have been following the path of this for the last seven or eight years, but also because this is an issue that affects hundreds of thousands of people. The Alzheimer’s Society reckons that: there will be 1 million people with dementia by 2025; dementia costs the country £20 billion now; one in three people over 65 will die with dementia; only 40 per cent of those have a formal diagnosis—that figure varies enormously across the UK; and, of course, which is the reason why they are important to this debate, people with dementia are very significant users of health and social care services. We know that people over 65 with dementia are currently using up one-quarter of hospital beds at any one time. The current system of charging for care, such as help with eating, hits people with dementia hardest, as the noble Baroness, Lady Greengross, has said, and amounts to what the Alzheimer’s Society calls a “dementia tax”.
We know all of this. The All-Party Parliamentary Group on Dementia, the National Audit Office and the Alzheimer’s Society have identified that significant resources are wasted on poor-quality care—for example, through crisis admissions into hospital or long-term care. There are opportunities to save money in dementia care across a wide range of settings; for example, by investing in early intervention and prevention services. In a way, those matters are the test of this Bill. Can we save the money and deal with the people who have got dementia? How can we promote a shift of NHS resources away from acute hospitals into community-based services, as recommended by the NHS Future Forum and the recent inquiry by the All-Party Parliamentary Group on Dementia?
I know that the Government recognise that a sustainable NHS in the future requires a new long-term settlement on social care to ensure quality for people facing disability and long-term illness. We think that this amendment will help with that. When I was looking at this amendment, I remembered that I myself was given a speaking note that said, “Of course, health covers social care, too”. That is not good enough any more; it is not good enough to say that by writing health into the Bill and giving the Secretary of State responsibility for it, we are somehow covering social care. Apart from anything else, it has not worked. We know it has not, and we are where we are. There are some very serious issues.
Lord Warner
My Lords, I have listened carefully to what the Minister has said. I am not totally astounded to hear his remarks and I am grateful for the generous way in which he made them. However, I also listened carefully to other people in this House, in particular, the noble Baroness, Lady Barker. I certainly cannot see why the Government cannot move on Amendment 244. It does not pre-empt in any way their decision-making on the Law Commission, Dilnot or anything else they want to write about in terms of their White Paper in the spring.
The flavour of this debate is that we need to give some particular attention in this Bill to integration between health and social care. Requiring the Secretary of State specifically to deal with that issue in his annual report is a very good signal to be given to the outside world and, particularly, to the NHS. A number of people who have spoken today have suggested that that signal needs to be given.
I was not expecting to get a lot of progress on Dilnot but I want to come back briefly to subsection (1) of the new clause to be inserted in the Bill under Amendment 260DA. I feel strongly that we need a duty of this kind on the Secretary of State to balance the equation with the NHS. I shall take advice from a lot of people outside this House on whether we should come back to this issue on Report. At the moment, my instincts are that we will want to but I want to hear what people outside this House in the sector have to say. But I certainly reserve the right to come back on that issue, which I am happy to discuss with the noble Earl further if he wishes to do so. In the mean time, I beg leave to withdraw the amendment.
Lord Warner
“( ) On the abolition of the Health Protection Agency, the Secretary of State will allocate their functions and any others he or she considers appropriate to an Executive Agency with its own chief executive as accounting officer with a management board with an independent chairman and at least three non-Executive Directors with expertise in its functions selected by the Department’s Chief Scientific Adviser.
( ) In allocating these functions the Secretary of State shall ensure that staff of the Executive Agency should have freedom to secure and discharge external research contracts.”
Lord Warner
My Lords, we come now to Clause 53 and the proposed abolition of the Health Protection Agency. I shall speak to Amendment 257ZA in this group, but in doing so I should make clear that I do not support the abolition of the Health Protection Agency, and I have every sympathy with the Front-Bench amendment that Clause 53 should not stand part of the Bill. I should not be unhappy if I lost my amendment because the clause itself was removed.
However, if the Government are going to proceed with this casual vandalism against an internationally respected organisation, I would hope that we could secure some damage limitation, which is what this amendment attempts to do. I will leave it to my co-signatories of this amendment, who have much more scientific and clinical expertise than me, to explain why we need to protect the independent scientific and research expertise of the Health Protection Agency in any new organisational form that there is for it.
As the Minister who helped to shape the Health Protection Agency in its present form by bringing together a wider range of scientists in one organisation, I want to put on record that it has acknowledged the importance of that and the improvement in the cross-fertilisation of ideas that has come about because we brought a wider range of scientists into the organisation.
I should also make clear that when confronted with crises involving areas of great public concern—I cite as examples the great concern in 2003 and 2004 about the growth in healthcare-acquired infections, and, later on, the Litvinenko affair and the concerns about polonium-210—the independent scientific advice from the arm’s-length Health Protection Agency was absolutely vital to giving the public confidence in how we were moving forward and dealing with those issues. It was the people from the Health Protection Agency, particularly during the Litvinenko affair, who were able to stand up in public and give scientific reassurance in that area. It is that independence of scientific expertise that I am very anxious we should preserve in the move to abolish the Health Protection Agency.
Amendment 257ZA would ensure that if the functions of the Health Protection Agency are to be transferred to the Secretary of State and the Department of Health, there should be a distinct executive agency with its own chief executive as accounting officer, and a management board with an independent chairman and at least three non-executives with expertise in its functions, selected by the department’s chief scientific adviser. The amendment would also ensure that staff had the freedom to secure and discharge external research contracts.
These changes will help to retain high calibre staff over time, and indeed the scientific reputation of what is currently the Health Protection Agency, in its new guise. I believe that they have the support of the staff of the HPA and reassure them about scientific independence and the ability to carry on seeking research contracts.
We need this reassurance in the Bill, not just warm words, however well intentioned the Minister is. I beg to move.
Lord Turnberg
My Lords, my name is also attached to Amendment 257ZA. I also do not like the idea that the HPA is to be abolished, so I hope my amendment is not necessary, which it will not be if the proposal that the clause should not stand part of the Bill is agreed.
I have, of course, extolled the virtues of the HPA on a number of occasions in your Lordships’ House. You could say that I would do that, wouldn’t I?, having been the chairman of the predecessor of the HPA, the Public Health Laboratory Service, but it is certainly true to say that it is the envy of the world, and I am not the only one who says that. The Centers for Disease Control and Prevention in Atlanta, in the United States, are a very well funded counterpart with which we collaborated very strongly, and even they recognised this excellence and envied the fact that we, unlike them, had a network of laboratories across the country primed and ready to detect outbreaks of infection wherever they occurred. Those laboratories were linked into a central laboratory at Colindale, where highly specialised tests could be carried out when needed for unusual infections and where epidemiologists could link up outbreaks in one area of the country with outbreaks in another, so that it was possible to track the speed and spread of infections and prevent them developing into epidemics.
The fact that the HPA is hardly ever in the news is testament to its success in protecting the population. If your Lordships think that because it is so good there is now less need for such surveillance, let me point to the fact that just one set of infections—those responsible for food poisoning—remain a considerable health hazard, and gives rise to about 1 million cases per annum in the UK. Although it is usually fairly mild and often not reported, some cases, such as those due to E. coli, can be very severe indeed, and in the particularly vulnerable can be fatal. Food poisoning is, unfortunately, not showing any signs of decreasing, so the need for constant vigilance is high and the role of the HPA remains absolutely vital.
The amendment sets out two of the planks needed for the agency to contribute to its key roles. The first is the degree of independence that it needs to be able to give advice not only to those out in the field who need to act but very specifically to the Secretary of State and the Government. The HPA must not be seen to be simply the mouthpiece of government. It must have the independence that is so necessary to its credibility. It has stood it in good stead over the years. Its advice is respected and accepted, and we should not lose that now.
The other element of the amendment is the need to be able to undertake research. If the agency is to keep ahead of ever-changing bacteria and viruses, which seem to mutate every week, and to be able to develop new ways of rapid detection, it needs access to research funds. For example, it has excellent high quality researchers, two of whom have recently been elected to the fellowship of the Academy of Medical Sciences, which is a demonstration of their esteem. Over the years it has been fortunate to have access to research funds from the Department of Health, and I understand that that will continue. That, of course, has been of enormous value, but the agency has also attracted research funds in fairly large amounts from external grant funders, and this is funding won in open competition. There is a fear that as an authority that is rather more closely identified with the Department of Health, access to those external funds will be denied to it.
The amendment makes the clear case that the agency must continue to have access to these funds in order for it to function at the highest level. I hope that the Minister will accept the case and look sympathetically at the amendment.
Baroness Cumberlege
My Lords, I speak to Amendment 260, in the name of the noble Lord, Lord Patel. It is probably not the time to go around memory lane, but I want to draw on some experiences that I have had. I was the hapless Minister responsible for the Health Education Authority. Some people may remember the Health Education Authority. It was largely independent and its funding came through the department. I should not speak ill of the dead, but it really was a nightmare. One of my lasting memories of my modest ministerial career was when we had a Starred Question in this House, asking why government money and very scarce resources should be spent on a leaflet, produced by the Health Education Authority, entitled, I think, 69 Ways for Better Sex. It was the first that I or the department had ever heard of it. Perhaps one of the interesting things was the number of noble Lords who said they could not take part in the debate unless they had seen a copy of the leaflet.
The HEA went completely off the rails. It was only when we were reading or listening to the media that we found out what it was up to. In the end, it not only alienated the Department of Health and the Government, it alienated local health authorities, with their responsibilities for public health. It was they in the end who asked us to close it down. Well, we did. Listening to the current proposal for Public Health England to be an agency, I think that is a good idea, although I know it is very unpopular with the Faculty of Public Health and others. An executive agency, although not totally independent, will operate with a degree of autonomy from Ministers on a day-to-day basis. While not as independent perhaps as a health authority, it will be recognisable as an entity and have its own identity.
The only model that we have got in health of an executive agency is the MHRA. Its chairman, noble Lords will know, is Professor Sir Alasdair Breckenridge, who has been the chair since its inception. Sir Alasdair is a very strong individual and somebody people really respect highly. In the vernacular, he is the sort of person you do not mess with because you know you will not win; you do not even try because he is somebody with enormous integrity and presence, and runs a very good organisation. It seems a good idea to look at the MHRA model and see how it is organised. Sir Alasdair tells me that there are eight non-executives on the agency board, who form the majority and are the board. They have a very good chief executive who is a civil servant but the non-executives are not. They are drawn from right across the country with different experiences and, again, they are people of huge distinction who are very much respected.
Here is an example or model that actually works. It has been tried and tested, and is a model we could certainly adapt for Public Health England. However, I suggest to my noble friend that the important thing is to keep the public health constituency with us on this. It is important that it has a real involvement in choosing the chairman of this new agency. If it is involved, that will go someway to ensuring the agency will be a success. It should also be involved in the recruitment and appointment of the non-executive members. We have a highly credible organisation here that could be a very good model for Public Health England and I hope my noble friend will consider those points about the appointment of the chairman and the non-executives, and the formation of that board.
Lord Warner
I was the Minister responsible for the MHRA and very much share the noble Baroness’s views on this. There are some slight differences, one of which is that a lot of the funding for the MHRA, in effect, comes from the pharmaceutical industry, in terms of licence fees. However, I was well aware of the MHRA experience, and my own experience of it, in trying to craft Amendment 257ZA, which does bear some resemblance to that. I certainly would not argue with the idea that the number of non-executives under my amendment should be larger than three—it does say “at least three”. I will certainly go along with her that some outside expertise, in quite substantial numbers among the non-executives, is an extremely good model.
Lord Beecham
My Lords, I am tempted to open by invoking, if not the Health Protection Agency, then perhaps the protection of the local environmental health department, because conditions in this Chamber, at this temperature, are hardly conducive to anyone’s good health. However, that is a matter perhaps for the House authorities to look at.
I rise to express the view that Clause 53 should not stand part of this Bill and to support my noble friend Lord Warner’s Amendment 260. I do the latter on the basis that that would be a fallback position, because I entirely concur with the view expressed in particular by the noble Lords, Lord Turnberg, Lord Patel and Lord Walton, and the noble Baroness, Lady Finlay, who have of course such a distinguished history as leading clinicians in these and other medical fields. Part of the thrust of the argument is the need to maintain not only a functioning organisation which has, as we have heard, an international reputation, but also to ensure that any such organisation has the requisite degree of independence from Government—that is, the right and in fact the duty, as the noble Lord, Lord Turnberg, made clear, to advise the Secretary of State and the Government generally without fear or favour.
Amendment 260 would create an executive agency for the Health Protection Agency. It is arguable that executive agency status would not of itself lead to the required or desired degree of independence whereas perhaps a special health authority would conceivably achieve that. There is a difference of view from the Government about the status of a special health authority. Their preference for Public Health England is that it should be an executive agency. They argue that a special health authority would not be appropriate. They point to analogous situations of agencies created for the Medicines and Healthcare products Regulatory Agency and curiously, by way of analogy, the Met Office, as organisations which are deemed to have sufficient independent status, albeit operating as executive agencies of their respective departments.
Neither of those arguments can be sustained. The role of Public Health England is a much wider one than either of the two bodies to which their document published earlier this year refers. A regulatory agency is not the same as an organisation which has to advocate and oversee a wide range of services, such as Public Health England would be required to do, and the Met Office is hardly an organisation which is required to be independent of Government in preparing its weather forecast. The analogy is somewhat ludicrous.
There is also, of course, the very important point made by noble Lords about the need for independent status in order to attract some of the funding, both charitable and contractual, on which in particular the Health Protection Agency is critically dependent and which might be endangered by its absorption into Public Health England in a way which would make it clear that it is no longer independent. That is not to say that the creation of Public Health England in the form of a special health authority would not of itself be desirable. The bringing together of a range of functions under the auspices of Public Health England, although not, I would argue, the Health Protection Agency, would be welcome.
A number of professional bodies have commended the principle but clearly have reservations about how the new structure would work. The Association of Directors of Public Health, for example, makes it clear that Public Health England should include health protection and emergency planning, health improvement and health services in its main areas of work and, in addition, provide an independent science base and advice to the Government and the devolved Governments. One of the arguments against creating a special health authority was that it would not be able to deal with devolved Governments. I would have thought that that is something that the Government could deal with relatively easily.
The role of Public Health England should also support the national Commissioning Board and provide support for local directors of public health. However, the association expressed concerns about the role and status of directors of public health. We recently discussed some of those in Committee. It also had concerns about the input into the national Commissioning Board and the lines of accountability. We will have Public Health England, the clinical commissioning groups, the directors of public health and various other functioning arms of the National Health Service, and it is not clear how the relationship would work and, in particular, what the role of Public Health England would be. The association has argued strongly for consolidating public health capacity into Public Health England with overall responsibility for improvement, protection and promotion of health care, and for public health intelligence and analysis.
Baroness Northover
I thought that noble Lords would be delighted to hear my announcement, but I hear that they are less than thrilled. I will take that back and consider carefully what my noble friend has said about striding further forward, and see how best people’s concerns can be addressed.
My noble friend Lady Cumberlege asked whether the public health community would be involved in selecting the chair and non-execs of Public Health England. We will give very serious consideration to how the chief executive and the non-executive directors are appointed although in the case of the chief executive the final decision must of course be with the Secretary of State.
Some noble Lords have suggested that a special health authority model might be appropriate and Amendment 260 would have that effect. The key issue here, as the noble Lord, Lord Beecham, correctly identified, is that Public Health England will exercise functions that are wider than just the health service in England. In particular, Public Health England will have UK-wide responsibilities. I heard what he said about believing the devolved Administrations could somehow or other be sorted out but I am not so certain. Public Health England will have responsibilities for highly specialised health protection functions such as radiation protection and will therefore need an organisational form that can operate across the whole of the United Kingdom, and a special health authority is normally established in relation to England only. It cannot be established under secondary legislation to exercise UK-wide functions that relate to reserved matters or in relation to functions in England that do not relate to the health service—that obviously would be a challenge.
On the points raised about Amendment 257ZA, I hope I can reassure noble Lords that the chief executive of Public Health England would be appointed through an open and fair competition and would be solely responsible for its day-to-day operation. Ministers will agree the business objectives for Public Health England and the chief executive will be responsible for putting in place the management structure and using the budget appropriately to deliver these. This operational freedom will be supported by a framework agreement between the Department of Health and Public Health England which will set out the roles and responsibilities of both organisations.
During an earlier debate the noble Lord, Lord Turnberg, raised the question—it has been raised again today particularly by the noble Lord, Lord Patel—about the ability of Public Health England to receive research grants. Public Health England will be able to receive research funding from most, if not all, of the sources from which the Health Protection Agency currently receives research income. In the light of the concerns that the noble Lord, Lord Turnberg, flagged up last time, I asked for an analysis of where the HPA currently got its research funding from, in terms of proportions, organisations, amounts and so on. I then asked what would happen in each case. I was reassured to see exactly how Public Health England would be eligible, right across the board it seemed to me, for the kind of grants that currently exist. I am very happy to discuss this further with the noble Lord if he wishes.
In particular, there was concern about what money could be received from the EU and it is very clear that, in terms of the funding rules on intergovernmental organisations such as the EU, the executive agency would no doubt work in conjunction with an academic or analogous institution, as is the case now, to apply for that kind of funding. I appreciate noble Lords’ concern about that and how important it is that this is got right. I therefore hope that they will have a really good look at how this would carry across.
Clearly it is extremely important for Public Health England to have scientists who are not only independent but also able to publish—it is important for their own future careers as well as the work they are doing within Public Health England—and to continue to be able to publish. Public Health England would have a very important role in filling evidence gaps and building on the evidence base to improve and protect public health. That is a critical part of what it would be doing, so that would continue. I am not quite sure where the noble Lord, Lord Patel, got some of his concerns from but he is right to probe and to make sure that this is going to work in the future.
Lord Warner
I am slightly bemused by what the noble Baroness has said on research. I would certainly like to know in writing, rather than poring through Department of Health files, what the risk assessment is of Public Health England losing research grants out of the total of £150 million that the noble Lord, Lord Patel, mentioned and in particular, whether it is at risk of losing the MRC grants that the noble Baroness, Lady Finlay, mentioned. We need something clear in writing and not just vague assurances. We also need some guarantees from the Minister about the right of people who are doing research in Public Health England to publish peer-reviewed articles without any censorship from the Department of Health and Ministers.
Baroness Northover
I am sorry if I am being at all opaque. As noble Lords have said, the HPA generates income and conducts research which it is in effect selling out. There is some commercially sensitive information in what I have here: I am sure that we can clarify it but I am a little bit concerned not to say something that is commercially sensitive. As I said, I looked all the way through here and have seen organisations such as the Wellcome Trust. In fact, I have just been passed a note with large writing saying, “A lot of this information is commercially sensitive but we will write saying what we can”.
Lord Warner
I do not wish to have any commercial-in-confidence information and I am sure my friends do not either. We want to know what is at risk out of the £150 million the Health Protection Agency is getting now under the new arrangements. If you can guarantee, in writing, that Public Health England is not at risk of losing any of that money I think we will be much more confident. We do not want the details of the commercially sensitive stuff we just want the global figure and the assurances of what it is at risk of losing.
Baroness Finlay of Llandaff
Can we also have the assurance that it will be eligible in the future to apply for a broad range of funding even if currently it does not hold a grant from a particular grant-giving body? I think that that applies to the MRC.
Baroness Northover
I hope the cameras are not shining down on this piece of paper of mine so I can try to give you some of the information that may be less commercially sensitive: there are organisations such as the Wellcome Trust and Research Councils UK. Noble Lords should be very reassured as to how this will work, but as a very junior Minister I have to be extremely careful.
The noble Lord, Lord Turnberg, flagged this up, I took it back and asked for a breakdown of the funding the Health Protection Agency gets. I asked in every instance what would happen in the future and I have a comprehensive answer because I thought it was extremely important. I hope noble Lords will be reassured both by my probing and these answers, even if I dare not reveal them all. I hope we can therefore write and reassure noble Lords that those working for Public Health England will indeed have access to the same kind of grants that they have at the moment.
Amendments 257A and 257B are minor and technical government amendments to Clause 54. These amendments would allow the Secretary of State or the Northern Ireland department acting alone to exercise functions in relation to biological substances for the whole of the United Kingdom. I was asked about sub-national structures. Indeed, Public Health England will have hubs. The precise details of these arrangements will be published shortly. As stated in Healthy Lives, Healthy People, we will provide further detail on the operating model for Public Health England.
I was also asked about emergencies. As I mentioned on the previous occasion when we debated public health, Public Health England will act on behalf of the Secretary of State as a category 1 responder. It will also be able to offer support or leadership in dealing with local incidents short of a full-blown emergency.
Reference was made to one or two other areas. If noble Lords will forgive me, I will write to them to sweep up what needs to be covered. I hope that noble Lords are reassured by what I have said. It is extremely important to the Government and to both Ministers in the Lords concerned with this matter that Public Health England is very strong and has the necessary independence. As the noble Lord, Lord Turnberg, put it, it should not be the mouthpiece of the Government. It needs to be able to conduct expert research. I hope that I have reassured noble Lords who have raised these very important points that all this is built into the Bill, and that the noble Lord will withdraw the amendment.
Lord Warner
My Lords, my reaction is, “C+: Must work harder”. The noble Baroness has given some reassurances but they are certainly not sufficient. She should have a lengthy chat with her noble friend Lady Cumberlege on the MHRA. I would be happy to join them as it is an interesting model and has a lot to offer. The noble Baroness, Lady Northover, may remember the Cadbury inquiry’s report on the governance of companies in which it advised that there should be a separate chairman and chief executive. Therefore, the principle of promoting good governance through having a separate chairman and chief executive is well established in both the public and the private sector. She might think about that a bit more.
I do not know about other noble Lords but I was not swept off my feet by the assurances on research. We would like some good assurances in writing, particularly with regard to the ability of the new body to compete for MRC research funds. I continue to have concerns about the ability of any body in this position to publish peer-reviewed articles and findings from research that are uncensored. The road to hell is paved with good intentions. Once a body is inside the Civil Service code, the ability to publish independent utterances and research tends to become a bit more circumscribed. Therefore, we want further assurances in that regard.
I will want to discuss with my colleagues whether we will come back to this issue on Report. In the mean time, I beg leave to withdraw the amendment.