Health and Social Care Bill Debate
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Paul Burstow
Main Page: Paul Burstow (Liberal Democrat - Sutton and Cheam)Department Debates - View all Paul Burstow's debates with the Department of Health and Social Care
(12 years, 8 months ago)
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The Minister of State, Department of Health (Paul Burstow)
I beg to move, That this House agrees with Lords amendment 63.
Madam Deputy Speaker (Dawn Primarolo)
With this it will be convenient to discuss the following:
Lords amendments 64 to 73 and 75 to 147.
Lords amendment 148, and amendments (a) and (b) thereto.
Lords amendments 149 to 167, 295 to 298 and 343 to 365.
Paul Burstow
The amendments cover Monitor, the regulation of NHS services and the governance of foundation trusts. Before I deal with them, I would like briefly to address some of the myths that have grown up around part 3 of the Bill. [Interruption.]
Madam Deputy Speaker
Order. I am sorry to interrupt the Minister, but I am having some difficulty hearing his response to these amendments. May I ask Members to leave the Chamber quietly, so that we can continue with this debate and hear his comments?
Paul Burstow
Thank you, Madam Deputy Speaker.
Part 3 is a key element of the Bill. As the Government have made clear, commissioners will decide whether, when and how to use competition to deliver services for patients. Where they decide to do so, part 3 will ensure that competition is regulated effectively and in the patient’s best interests. Under the Bill, Monitor will, in future, regulate all providers of NHS services, so that all patients are protected, irrespective of who supplies their treatment and care.
In the earlier debate, my hon. Friend the Member for Southport (John Pugh) asked about the applicability of competition law to the function of commissioning. I draw his attention to European case law, which makes it clear that commissioning is not subject to competition law. It is the function that matters when it comes to determining whether this is applicable—
Paul Burstow
I am responding to my hon. Friend and, if the hon. Gentleman does not mind, I am going to carry on doing so.
In addition, the Office of Fair Trading has published guidance that is consistent with the view that the Department has expressed on this matter. I will write to my hon. Friend with the detailed case law, so that I can quote the case reference for him.
Claims have also been made that part 3 does something else. Specifically, it has been suggested that it introduces competition and competition law into the NHS, as if that were the case for the first time. Part 3 does not do that, nor does anything else in the Bill. The NHS will, as a result of the Bill, be better insulated against the inappropriate application of competition law, particularly as it develops more integrated services, which are now embedded throughout this legislation. Without Part 3, the NHS would continue to be exposed to price competition and the preferential treatment of private providers introduced by the previous Labour Government. Indeed, Labour’s 2006 procurement regulations assume that public authorities will be securing services from a market—that will not always be appropriate in the NHS—and so, under the existing regulations from the 2006 legislation, commissioners are placed at greater risk of legal challenge whenever they decide to secure services without competition.
Karl Turner (Kingston upon Hull East) (Lab)
Will the Minister say whether Monitor will keep its role as an independent regulator of foundation trusts?
Paul Burstow
I am coming on to deal with a whole section of amendments that were made in the other House and which this Government have accepted, when I will address that very point. If the hon. Gentleman is patient, he will get an answer to his question.
Grahame M. Morris
I wish to seek a point of clarification on the Minister’s reference to what Earl Howe said about the Bill providing
“insulation against inappropriate application of competition law”.—[Official Report, House of Lords, 6 March 2012; Vol. 735, c. 1689-90.]
Concerns were raised in the Minister’s own party about American-style private health care interests being able to use these mechanisms to provide health care services. Will he give an example of how this “insulation” would protect an NHS trust from being taken over by a north American private health care company?
Paul Burstow
That shows a fundamental flaw in the hon. Gentleman’s argument and in his understanding of what the Bill actually does. I commend to him the contribution made by Earl Howe, the Minister in the other place, on 6 March 2012, when he set out in great detail—this can be found in column 1689—all the aspects relevant to how this Bill protects the NHS, creating insulation for it against the application of competition law under the current framework, as provided by the 2006 legislation, which does not offer those protections. It certainly does not give commissioners the ability to exercise their discretion over whether, when and if to use competition. In those circumstances, the measures give for the first time, because of the sector-specific regulator, the ability to decide which services will be exempt from competition altogether—something that does not exist as a result of Labour’s legislation. That is one reason why so many hon. Members in this House are concerned about the impact of competition—because they are seeing the NHS being exposed to competition under the 2006 Act. This Bill will sort those defects out.
Barbara Keeley (Worsley and Eccles South) (Lab)
Will the Minister give way?
Paul Burstow
No, I am going to make some progress and then I will be more than happy to give way. [Interruption.] I am sure there will be more opportunities and I will give way in a moment.
On how Monitor exercises its powers, the Government have supported amendments made in the House of Lords, which were tabled by my noble Friend Baroness Williams, providing that the Secretary of State can give Monitor guidance to help ensure it exercises its functions in a manner consistent with the Secretary of State’s duty to promote a comprehensive health service. The amendments also help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and to ensure that Monitor carries out its functions to that end. I therefore commend the amendments to the House. Both this House and the Lords have stressed the need for Monitor to use its powers to support integrated services and co-operation between providers. The Government therefore tabled amendments in the other place to provide express powers for Monitor to set and enforce licence conditions that would enable integration and co-operation between providers.
On the detail of Monitor’s specific regulatory powers, Monitor would have powers to intervene proactively to support commissioners in ensuring continued access to NHS services if a provider became unsustainable. Amendments tabled by the Labour peer Lord Warner, which we agreed in the other place, provide that Monitor will have to identify and publish evidence where it identifies risk that it considers arises from unsustainable service configurations. Those amendments would require commissioners to act on that information where necessary. Hence, they make clear the expectation that commissioners will address problems proactively and ensure that patients continue to have sustainable access to the services they need. These are sensible provisions that had support from all parts of the House of Lords and I hope that this House will also agree to them.
I want to say a bit more about the powers and responsibilities of Monitor, which relate to further amendments made in the other place. The extent of the various matters that Monitor would have to take into account was the subject of considerable debate in this House and the other place. I want to be absolutely clear about where we are regarding the overarching duty that Monitor has to take into account. Monitor will have a single, unequivocal duty—to protect and promote the interests of patients by promoting provision of NHS services that is economic, efficient and effective and that maintains or improves the quality of services. Beyond that overarching duty there is no hierarchy. No preference is given to competition or integration because integration is clearly a responsibility that sits with commissioners and Monitor’s role is to support it.
Peers also raised concerns about proposals for the Competition Commission to undertake seven-yearly reviews of competition in the provision of NHS services. The Government were sympathetic to the arguments and were concerned that it might be taken to suggest that competition was being given a higher status than the interests of patients. In order to avoid that, we accepted an amendment tabled by my noble Friend Lord Clement-Jones that removed the provision in the Bill for Competition Commission reviews. We also supported other amendments tabled by my noble Friend Lord Clement-Jones requiring the Office of Fair Trading to seek advice from Monitor whenever it considers mergers or potential mergers involving foundation trusts. The amendments will help to ensure that benefits to patients are evaluated on an informed basis by a sector-specific regulator giving its expert advice to the OFT in the discharge of its responsibilities and as a paramount consideration.
Jim Shannon
Many hon. Members will probably have received correspondence from the Nuffield Trust saying that
“much of the behaviour of providers will in practice be shaped by detailed guidance and the work on pricing conducted by both Monitor and the NHS Commissioning Board. The two organisations have a major task ahead of them to ensure there is the necessary information, data exchange, contracting and payment tools to support patient choice, integrated care, efficiency and quality.”
How would the Minister respond to the Nuffield Trust on that question?
Paul Burstow
What I heard the hon. Gentleman set out was a rehearsal of the interrelationship that exists between the NHS Commissioning Board and Monitor, particularly in the area of setting NHS tariffs and prices. For the first time, as a result of this legislation, there will be greater transparency and requirements about consultation in the design of those tariffs. At the moment, that process is obscured within the bowels of the Department of Health without accountability or public scrutiny. For the first time, this Bill puts that on a footing that ensures that transparency. As a result, it will produce much better tariff design for the future.
On Monitor’s role as the regulator of foundation trusts, it is important to be clear about this important part of the legislation. Foundation trusts will remain the principal providers of NHS services. The Government do not expect that to change. Monitor must therefore be able to continue operating a compliance regime transparently to assess and manage the risks, intervening proactively to address problems where necessary. The Bill is designed to reflect this and for Monitor to protect patients’ interests by regulating foundation trusts so that they continue to be able to provide NHS services in line with their principal purpose. Where Monitor identifies significant risk to a foundation trust’s continued ability to provide NHS services, the Bill provides Monitor with powers to intervene proactively to ensure that the risk is addressed. The Government agreed amendments in the House of Lords to clarify that further. In particular, the amendments clarify that Monitor’s powers to direct foundation trusts to do, or not to do, things to maintain essential standards of governance, or to ensure their continued ability to provide NHS services, will not be transitional powers. We accept that that previously was not as clear as it needed to be and we have made it clear.
We think that the Bill has been improved as a result of the amendments that were made in the House of Lords in that regard. Under clause 94 in the latest version of the Bill, Monitor’s enduring powers will include the power to set and enforce requirements specifically on foundation trusts to ensure that they are well governed. Monitor does that now and those requirements will need to be differentiated for foundation trusts to reflect their unique role and legal status as public benefit corporations financed by the taxpayer with a principal purpose defined in statute as being
“to provide goods and services for the purposes”
of the NHS. Monitor will also have enduring powers to set and enforce requirements on foundation trusts to ensure that they remain financially viable and to protect NHS assets. These measures deal with one of the concerns that has often been rehearsed about the privatisation of the NHS. The Bill does not provide that opportunity, but it provides for the protection of NHS assets. Those are necessary conditions of a foundation trust’s continuing ability to provide NHS services; they are not transitional issues.
Grahame M. Morris
I would appreciate the Minister’s clarification about reports that have been made available as a result of freedom of information requests indicating that senior officials of Monitor have been meeting on a regular basis with representatives of the private health care consultancy, McKinsey. Is the Minister aware of the nature of those discussions and do they have any relevance to the assurances that have been given at the Dispatch Box that there is no conspiracy to privatise the health service?
Paul Burstow
Absolutely not; the reports to which the hon. Gentleman refers, which had a substantial exposé in The Mail on Sunday, really do not bear as close an examination as he would like of them. We know that the relationship that existed in terms of contracting McKinsey to provide services was one that the previous Government engaged in far more freely than the current Administration. The amounts that this Government have contracted and the nature of the relationships that this Government have are far smaller.
Barbara Keeley
I have asked the Secretary of State about McKinsey and Co. in this Chamber and through a written question, but neither he nor anybody in the Department seems able to confirm whether it has access to the risk register. It seems very strange to me that the Department is not able to answer the question of an hon. Member about what access that organisation has to those documents. It is a very strange set-up.
Paul Burstow
The hon. Lady says it is a strange set-up and refers to her endeavours to get an answer to the question. I have not seen details of her exchange with the Secretary of State, but I will look at that and write to her with an answer to the question.
Simon Hughes (Bermondsey and Old Southwark) (LD)
My hon. Friend is dealing with matters of great concern outside this place, and I am clear that all these amendments are a move in the right direction. Will he put it on the record that as a result of the Bill, first, it will not be possible in future for any hospital to move, as Hinchingbrooke did, from the public sector to the private sector, and, secondly, that the proportion of private sector business cannot be increased up to the 49% that has been mentioned and will be increased only if the hospital decides, according to the amendments, to increase it by the small percentage that the amendments now allow?
Paul Burstow
I am grateful to my right hon. Friend for his questions. Let me start with the issue of Hinchingbrooke, which is an important one. It is worth remembering that the vast majority of the process that led to that franchise arrangement was completed under the Labour Government, not by the current Administration, and was part of the arrangements put in place by the Labour Health Act 2006 and Health and Social Care Act 2008. The Bill makes sure that in future there can be no scope for sweetheart deals to incentivise new entrants into the NHS, it ensures that there cannot be price competition of the sort that was allowed under the 2006 Act, and it ensures a protection for commissioners to decide when and if it is appropriate to use competition. That is not a protection that they enjoy under the 2006 or the 2008 Acts.
Paul Burstow
I have answered the hon. Gentleman’s question. He should read Hansard later.
I was asked, finally, whether there is a cap of 49%. Let us go back to the deliberations in another place before Christmas, when the issue first came up. Our noble Friends were concerned to make sure that we put it beyond doubt that foundation trusts were protected from the full force of competition law and that those organisations would continue to have as their principal purpose their service of NHS patients. That is why we have further amendments, which I shall come to shortly, about how a 5% increase would trigger further consultations and votes by the governors.
Paul Burstow
No. I shall make some progress, if the hon. Lady does not mind.
In addition, Monitor could also, in exceptional circumstances, use the enduring powers that I was describing to direct a foundation trust to remove its directors or governors. In other words, a direct intervention power is preserved by the amendments and changes that we have made.
The Government’s ambition is that eventually foundation trusts should have more responsibility for their governance than they do under the current arrangements. This will depend, in particular, on strengthening the role of foundation trust governors in holding their boards to account. We have listened to the concerns about the pace of change. Hence, we have amended the Bill so that Monitor will also have, on a transitional basis, express powers to remove, suspend or replace directors or governors of a foundation trust directly, without the prospect of an appeal to the first-tier tribunal. We would expect Monitor to use these powers to address failure of governance, which puts the trust at risk of not meeting its licence conditions, such as the requirements that I have already described.
Karl Turner
Is it right that the only provision preventing privatisation is the requirement in clause 161 that foundation trusts must use the NHS more than they use private providers? Is that not, in effect, the 49% cap?
Paul Burstow
No, because the overarching duty is that the service remains free at the point of use. Also, there are protections—[Interruption.] The hon. Gentleman asks a question, but when I try to give him an answer, he shouts and screams at me. That does not help the debate. What I wanted to say was that when it comes to mergers and acquisitions, there are clear requirements to protect NHS assets from a transfer out of the NHS and out of the state sector. The powers that I was describing would be retained as long as Parliament considered necessary, and they could not be removed before 2016 at the earliest and would then be subject to criteria that Monitor determines, with the Secretary of State’s approval.
Barbara Keeley
I do not know whether I am alone in this—I do not think so—but the notion of foundation trust governors having to approve an increase in private patient income does not feel like much of a safeguard, especially as the governors are inclined to balance the books. It just means that the proportion of private patient income will slowly grow to 49%, rather than jump to it straight away. While we are thinking about this aspect of clause 163, I understand that the Department of Health still has an explicit target in the operating framework to increase the proportion of non-public sector provision purchased with NHS funding. There are so many pressures and drivers that the denial that it is privatisation and the influx of competition—[Interruption.] It is privatisation that will slowly grow to 49%.
Paul Burstow
Absolute nonsense. That is part of the rhetoric and fantasy that we have heard throughout the Bill’s passage. Let me deal directly with it by reference to examples of current practice. The Royal Marsden and the Royal Brompton and Harefield all earn very high levels of private income but are consistently rated highly as providers of NHS services. They use those resources to reinvest in NHS services.
Mark Simmonds (Boston and Skegness) (Con)
Will the Minister confirm that most of the foundation trusts that are interested in raising and removing the cap want to invest the money that they would generate from private income to improve services for NHS patients? [Interruption.]
Paul Burstow
That is exactly the point; those moneys have to be reinvested—[Interruption.]
Madam Deputy Speaker (Dawn Primarolo)
Order. Members will not keep shouting across the Chamber, from either Front Bench or elsewhere.
Paul Burstow
My hon. Friend’s point seems to have upset some hon. Members, but it was entirely—
Paul Burstow
Let me at least do my hon. Friend the courtesy of answering his point before taking another intervention.
It is absolutely right to make the point about the use of those resources. Indeed, that has been one of the benefits of the system, as we have seen in the performance that some of the trusts that have had historically high caps have delivered in NHS services. However, it is worth noting that it is not just in relation to foundation trusts that there have been concerns about caps, because NHS trusts have never had caps, and it has been entirely possible for NHS trusts to increase their income without any of the constraints or controls that foundation trusts have found themselves under. The Labour party, in crafting its manifesto, seemed to have understood that, but it has now decided to run away from that in order to paint a picture about privatisation that is not part of this legislation.
Paul Burstow
We have also clarified a foundation trust’s principal legal purpose to show that it must continue to earn the majority of its income from NHS activity and that that is its overriding priority. Revenue for treating NHS patients could absolutely not be used to cross-subsidise private care, and we would expect Monitor’s licensing regime to prohibit that categorically. The amendments provide important safeguards, so I urge the House to support them.
Finally, this group contains a number of minor and technical amendments, including those implementing recommendations from the Delegated Powers and Regulatory Reform Committee that provide for greater consultation and clarify various matters. I urge hon. Members to support the Lords amendments in this group and to reject the Opposition’s amendments to Lords amendment 148.
Andy Burnham
I am not going to debate that now. The right hon. Gentleman is going to have to defend himself on whether he has his facts right. I do not think that he has.
We need to put firmly on the record that there are real flaws in the Liberal Democrats’ proposal. They say that it is a safeguard to state, “The governors will decide and it is better done at a local level,” but the governors are going to be under pressure from the management of the hospital because of the pressure on the hospital’s finances. If they make a decision that is in the interests of that hospital, it does not mean that it is in the interests of everybody and of NHS patients.
Paul Burstow
The model that the right hon. Gentleman describes is one that he was only too happy to go through the Lobby and support during the introduction of foundation trusts in the first place. He has omitted to mention Monitor’s role in overseeing the situation through its powers of intervention to ensure the safeguarding of a comprehensive health service, and to mention the guidance that the Secretary of State will give Monitor in order to do just that.
Andy Burnham
I am afraid that I am not at all reassured by that, or in fact by anything the Minister says. The letter that we have from the Deputy Prime Minister spoke of insulating the NHS from European competition law, but I am still waiting to see the amendment that delivers that. As I understand it, one of the Minister’s noble Friends tabled an amendment and then withdrew it, because they did not have the courage to press it to a vote, and accepted a statement on the record instead. This is different from what the Minister keeps saying that we did in government, because he is envisaging a huge expansion of the role of any qualified provider and the putting out to tender of commissioning support units. He has overseen a situation in which three community services have been compulsorily tendered.
The truth is that the Clegg-Williams letter, with the amendments that followed, does not only fail to deliver but sells out the national health service, as does so much of what the Liberal Democrats have agreed to. Our amendments, particularly amendment (b), would provide a measure of systems regulation in the best interests of the NHS, and that is why we will seek to press amendment (b) to a vote.
Simon Hughes
I will give way to my hon. Friend and then to the shadow Secretary of State.
Paul Burstow
I am grateful to my right hon. Friend for setting out these issues again so clearly and for putting to rest the myths that are yet again being fanned by Opposition Members. I confirm that the Bill provides two further safeguards. First, Monitor will continue to have a direct oversight role in this regard. It will be able to intervene and use its licensing powers and other powers to deal with concerns if NHS services are put at risk by the decisions of a foundation trust. Secondly, there are the contractual relationships that commissioners have directly with these organisations.
Simon Hughes
I accept that. That is why the amendments tabled by the right hon. Member for Leigh (Andy Burnham) are not necessary. Monitor already has a control that it can exercise to ensure that what he calls strategic control or central control is retained, as well as local decision making.
I will end this point by saying that although, technically, there could be a vote of the governors of any hospital—in the right hon. Gentleman’s constituency or mine—every year to increase private income by more than 5%, that is not the real world. In the real world, the people of this country love their national health service, NHS staff love their national health service, and the governors of the hospitals that I represent love their national health service. Those people are not suddenly going to change their attitude after 60 years of the NHS.
In the post-war Parliament, when the Labour party, supported by the Liberal party, put through the plans drawn up by Beveridge, the Liberal, for the NHS, it accepted from the beginning that there would be some private sector activity. From the beginning, GPs and some dental services were in the private sector, and they have remained there.
I am clear that the Bill does not mean that there will suddenly be a market, a route or a tramway for privatisation. Others say I am wrong—I know that there is a lot of concern—so I am clear that when the Bill becomes an Act, we need to sit down with the health professionals who still have concerns—[Hon. Members: “Too late.”] No, it is not too late if people understand what is really in the Bill, rather than what some people say is in the Bill. It is not too late if people look at the wording of the legislation, and do not just listen to the arguments about it.
I say to the right hon. Member for Leigh, whom I respect in many ways, that he has often distorted what has happened in the past and what will happen now. He has ignored the facts that Labour forced privatisation on the health service in many parts of England and that Labour paid more to the private sector to carry out activities for the NHS. I am here to support these provisions in the Bill because I want to end the incentives for the private sector and to end the enforced privatisation of the health service. I will ensure that there is no chance of any hospital in my part of the world voting significantly to increase private sector activity, because the NHS wants to remain in the public sector and deserves to be supported by us to do so.
I refuse to be misrepresented by Labour colleagues who accuse us of doing something that we are not doing. We have a public national health service, paid for through our taxes. Everybody has an entitlement to the best care in the country. I will not do anything that undermines that. I hope that the right hon. Member for Leigh will not and that Ministers will not. I agree that we have some work to do to reassure people outside this place. I hope that, from today, the right hon. Gentleman will join me in telling the truth about the Bill and not tell untruths.
Lords amendment 63 agreed to.
Lords amendments 64 to 147 agreed to, with Commons financial privileges waived in respect of Lords amendments 132 to 141.
Clause 161
Goods and Services
Amendment (b) proposed to Lords amendment 148.—(Andy Burnham.)
Question put, That the amendment be made.
Mr Deputy Speaker (Mr Nigel Evans)
With this we will consider Lords amendments 12, 43 to 53, 61, 62, 168 to 241, 243 to 245, 247, 249 to 251, 253 to 286, 288 to 291, 327, 333, 334 and 366 to 374.
Paul Burstow
This group encompasses a number of Lords amendments relating to public health, public involvement, local government, the Health and Care Professions Council, the National Institute for Health and Clinical Excellence and the NHS Information Centre.
We believe that the Bill has been improved as a result of the amendments made in the House of Lords. For example, the Government have directly addressed the concerns raised in this House and elsewhere about the status and security of directors of public health within local authorities. We have also introduced safeguards to ensure that local healthwatch organisations and HealthWatch England can operate effectively within the Care Quality Commission, and that the CQC can have better links with, and transparency to, local healthwatch organisations.
Throughout the Bill, we have emphasised the importance of public health. In particular, local directors of public health will have a leading role within their local authorities in ensuring that public health is a consideration across the full range of local government activity, not just its health responsibilities. For example, they will use their participation in health and wellbeing boards, alongside directors of adult social services, directors of children’s services and clinical commissioning groups, to find innovative solutions to local health needs.
To further strengthen the status of public health in local authorities, amendments tabled by my noble friend Earl Howe establish directors of public health as statutory chief officers of their local authorities. They also give the Secretary of State the power to issue guidance on the role of directors and other public health staff, to which local authorities must have regard. Along with the guarantee of chief officer status and statutory guidance, that is equivalent to the situation that currently applies to directors of children’s services and of adult social services.
Other Lords amendments will enable us to give directors of public health a key new role in considering applications for the licensing of premises for the sale of alcohol, and enable the national child measurement programme to continue once it is transferred to local authorities.
Beyond the provisions of the Bill, we have stated clearly that Public Health England will have a board with an independent, non-executive majority and an independent chair, to provide the chief executive and the Secretary of State with frank and expert challenge. Public Health England’s ability to undertake research and bid for external funding for health protection research in the same way as the Health Protection Agency is also provided for in the Bill as now drafted. Finally on public health, we have announced our intention, subject to consultation, to require the registration of non-medical public health specialists with the Health Professions Council.
We introduced safeguards in the other place to ensure that HealthWatch England could operate effectively within the CQC and have better links with, and transparency to, local healthwatch organisations. That will help to ensure that issues arising between them can be addressed, and local authorities and local healthwatch organisations will have to have regard to similar guidance. HealthWatch England will also exercise additional functions to assist local authorities with the arrangements that they make for local healthwatch. HealthWatch England may make recommendations of a general nature to local authorities about the making of those arrangements. When it is of the opinion that local healthwatch activities are not being properly carried out, it can draw that to the attention of the local authority.
The Lords amendments will ensure that regulations are able to, and in some cases must, make adequate and appropriate provision about HealthWatch England’s membership. That will include specifying that the majority of members must not be members of the CQC board, and setting out the procedures for selecting members or proposing persons for appointment as members. We listened to the concerns on that issue and have now undertaken a public consultation on the proposed regulations. The results are currently being carefully analysed.
A number of the amendments in this group apply to local healthwatch organisations. They will strengthen the statutory powers of those organisations, enabling them to become a powerful champion of patients’ interests locally. As a result of the Bill, they will have stronger and more wide-ranging powers than local involvement networks do under the current arrangements. The Government are ardent proponents of localism and of local authorities being able to take account of local needs and be accountable to their local population for the decisions that they make.
Simon Hughes
One thing that has got lost in all the noise about the Bill is the fact that there will be more opportunity for local authorities and local people in England to be engaged. Will my hon. Friend put on record how an ordinary constituent of his in Sutton, mine in Southwark or anywhere else—not a professional such as a GP or a nurse—will be able to get involved? I think there will be a much better system in future than there has been.
Paul Burstow
My right hon. Friend is absolutely right. Hard-wired throughout the Bill are requirements on patient and public involvement in clinical commissioning groups and health and wellbeing boards. Local healthwatch will provide a vehicle for delivering much wider engagement. One criticism that has often been levelled at past attempts at public and patient engagement has been the absence of hard-to-reach groups, which are seldom heard from in our health system. As a result, their voices have not helped to shape commissioning decisions. We need to ensure that they do, so that CCGs commission effectively for their whole population. That is a key part of what the Bill provides for.
As the Bill makes its way on to the statute book, Members of all parties will need to look closely at the opportunities for far wider public involvement that will result from how it has been improved. We have listened closely to groups such as the Richmond group, which has been a powerful advocate on behalf of a wide range of patients’ groups. It has talked about the importance of involving patients far more in co-production and commissioning decisions. That is an essential component of how we intend the Bill to be given effect in the months to come.
In tabling our amendments in the House of Lords, we wanted to ensure that local authorities had greater flexibility in the organisational form that local healthwatch takes. Local authorities are best placed to make decisions about the right way to commission a local healthwatch service for their area, but they cannot decide not to have a local healthwatch organisation, and we would not allow them to do that. It is essential that the voice of patients and carers is heard loud and clear in the decision-making processes of our NHS and social care services.
Andrew George
I am grateful to my hon. Friend, particularly for his last remark. I know that he will come on to Lords amendment 181, but I could not find anything in the debate in the House of Lords justifying the rationale behind the provisions relating to the establishment of local healthwatch organisations as statutory bodies corporate. I am sure that he is just about to provide that rationale.
Paul Burstow
I am grateful to my hon. Friend for the opportunity to do just that. First and foremost, I want to be absolutely clear that local authorities are under a statutory duty to ensure that local healthwatch arrangements are put in place. The Lords amendments do not change that one iota, and they do not in any way weaken the statutory functions conferred upon local healthwatch organisations. Nor do they enable local authorities in some way to limit, restrict or censor what local healthwatch organisations can do. Indeed, we tabled amendments to ensure there are better safeguards in relation to how local authorities carry out their role. The Secretary of State will be able to publish guidance relating to potential conflicts of interest between a local authority and its local healthwatch organisation, to which both sides must have regard. We have provided for HealthWatch England to make recommendations in that respect, but to be absolutely clear, local healthwatch has a statutory basis. All that has changed is that we want to enable local decisions about whether it is a social enterprise, a voluntary organisation or another format.
Grahame M. Morris
Will the Minister clarify that point and the issue raised earlier by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)? One Lords amendment allows a local authority to commission a community interest company, charity or other form of social enterprise that meets the prescribed criteria to be the local healthwatch for its area, and allows local healthwatch to make arrangements with others to carry out its functions—it effectively allows local healthwatch to delegate its functions to a community interest company. How does that address the concerns raised by the right hon. Gentleman? How would an individual constituent have their interests represented through a local healthwatch if it is no longer a statutory body?
Paul Burstow
The point is that the body will discharge a number of statutory functions. The models that the hon. Gentleman describes—community interest companies and other forms of mutual or social enterprise—are exactly the sort of organisations that are likely to engage more effectively with community interests and bring in a wider range of them. That is why we want that flexibility in the organisational form, against a set of criteria to safeguard the interests of the public. The public can tailor those organisational forms to meet the needs of their local community. That corporate envelope does not guarantee anything; the legislation still provides a statutory basis.
Simon Hughes
One last time—I am grateful to the Minister. Will he put on the record what constituents all over England can do if, for example, they hear that their hospital might want to close a ward for the mentally ill, or close accident and emergency services, or if it realises that there is no day care for people with mental illness? What power do they have to stop or start something?
Paul Burstow
Despite the noises off, the fact is that there is considerable scope for that sort of public shaping.
Let me talk my right hon. Friend through some of those changes. We are establishing local health and wellbeing boards, which are made up of clinical commissioning groups, elected local authority members, the various directors to which I just referred, and, importantly, local healthwatch organisations. They have the statutory responsibility for identifying population need for their area and for then framing the strategy to meet those needs. The local commissioner must evidence that the strategies for delivering that—the local commissioning plans—reflect the commissioning strategy that has been produced by the health and wellbeing board. That is the first opportunity to intervene and to help shape the nature of services that are being commissioned for a local population. Indeed, we made amendments that make it clear that health and wellbeing boards must involve their population in that work.
The next stage when people can be involved is when the clinical commissioning group produces its commissioning intentions and plan. CCGs have obligations to consult on their plans and to involve the public in their formulation. That is a further opportunity, but beyond it there is a role in commissioning decisions, or decisions to change or reconfigure a service, for the local authority’s health and overview scrutiny committee, which we are retaining and enhancing, so that, for the first time, NHS providers in the public sector or private providers providing NHS-contracted services can be held accountable for their decisions. That is a change from the arrangements under the previous Administration.
Those are just a few of the steps, but ultimately we have retained the provisions for a reference by the local authority to the Secretary of State to make decisions regarding major reconfigurations. There are a number of steps. I hope that that reassures my right hon. Friend and gives the lie to those who suggest that the provisions have been watered down—the contrary is the case.
We have committed to use the Secretary of State’s powers to specify the criteria that local healthwatch organisations must satisfy when it comes to strong involvement by volunteers and lay members, including in their governance and leadership. We want to ensure that local healthwatch organisations break out of existing models and find ways of reaching and involving far wider and more representative populations than hitherto.
I can confirm that there are a number of amendments, the majority of which are technical in nature, relating to the Health and Care Professions Council, NICE, and the NHS Information Centre. Part 7 of the Bill relates to the regulation of health and social care workers. The Government have made a technical alteration to the provisions amending article 12 of the Health Professions Order 2001 to enable the Health Professions Council to recognise training undertaken in Wales, Scotland and Northern Ireland as sufficient for admission to its register as a social worker. The amendments also give the council the power to assess training or professional expertise and experience in social work gained outside England but within the UK.
Part 8 of the Bill establishes the National Institute for Health and Care Excellence—I emphasise the word “care”—and extends its remit to adults’ and children’s social care. NICE will play a central role in driving quality improvement through the production of robust, evidence-based quality standards and other guidance across the NHS, social care and public health. That is yet another measure in the Bill that supports and drives greater integration of health and social care than has existed in the past. The Government have made minor and technical amendments to part 8 to avoid the potential for misinterpretation and to ensure that NICE’s functions can be exercised effectively in practice.
It is important that patients continue to have access to NICE-approved drugs and treatments in line with the NHS constitution and accompanying handbook, whether those fall within the future responsibilities of the NHS or of local authorities. We have therefore amended the regulation-making power in clause 234 of part 8 so that the provision in regulations to replicate the effect of the current funding direction for NICE technology appraisal recommendations may also be applied to local authorities in respect of the drugs and treatments that they may prescribe for public health purposes, such as smoking cessation aids.
Part 9 establishes for the first time the NHS Information Centre in primary legislation, setting out its powers in relation to the collection, analysis, publication or dissemination of information. The Government have made a number of amendments—to clauses 255 and 257—and inserted new clauses after clauses 252 and 257 that further strengthen the protection of individuals’ confidential personal information while ensuring that the wider benefits of safely and securely sharing information, which include improvements in the quality of services and treatments, can be realised.
The amendments will, for example, restrict the people who can require the centre to collect confidential, personal, identifiable information; clarify the circumstances in which the centre may require others to provide it with confidential, personal, identifiable information; and require a code of practice to be published, setting out how confidential information must be handled. That provides an essential safe haven that can provide a powerful driver to support research and quality improvement in the NHS.
To support these amendments, we have made a number of minor and technical amendments to part 9 and to schedule 19. Finally, we made a minor and technical amendment in part 11 relating to the transfer scheme, which is set out in clause 294. That provision allows for flexibility in how the Secretary of State holds his shares in any property company. That is normal for company structures and is in a form already used by the Secretary of State with his other companies.
I urge hon. Members to support these amendments, including amendment 181.
Liz Kendall
I start by sharing with hon. Members a letter to the Prime Minister on 13 March from Malcolm Alexander, who is the chair of the National Association of LINks Members, the national body representing 150 statutory independent local involvement networks that promote the public and patient voice in health and social care. The letter is about the amendments to HealthWatch that were made in the other place and are before us now. He wrote to register his
“strong objections to the government’s major policy change on Healthwatch—specifically your decision to abandon plans to establish statutory Local Healthwatch bodies…Instead of creating independent statutory bodies led by local people who can monitor, influence, involve the public, hold the local authority and NHS to account; the government plan to create weak bodies that will not be independent, but will be funded by and accountable to the local authority they are monitoring. There will be no genuine accountability to the public.”
He then makes this rather perceptive comment:
“Plans for a statutory Healthwatch body were probably the only part of the Health and Social Care Bill that had any public support.”
He continues:
“Your government’s ambition”—
not your Government, Mr Deputy Speaker, but the Prime Minister’s—
“to establish independent, statutory Healthwatch organisations that would help achieve equity and empowerment in relation to access to NHS and social care services, has been diminished to such a degree, that Healthwatch will have little impact…The aspiration to achieve equity and excellence in public involvement in health and social care, especially for the most vulnerable people, has been replaced by a model that has lost its central purpose of building effective patient and user led bodies that can influence the planning of health and social care.”
Paul Burstow
Just to be absolutely clear, may I say that clinical commissioning groups cannot subcontract decision making about their commissioning functions—that is crucial to the effective delivery of this. On the issue of the local healthwatch organisations, the Bill makes it clear that local healthwatch has to exist in each locality, and that local authorities have to contract for it to exist and to provide the range of services that the Bill provides for it to undertake.
Simon Hughes
I absolutely understand both those points. I understand that commissioning groups cannot subcontract their decisions, but the point I am making to my hon. Friend and to other Ministers is that we have to ensure that the groups do not end up in the position where, although they retain the decision, they leave lots of the thinking about it to the people they employ to do the work. The decisions have to be made by the health professionals. In reply to the Labour amendment, the Minister rightly said that it is a safeguard that local authorities will have the decision on the local healthwatch. Where a local authority is concerned that it should remain in a particular format, it will be able to do so.
In conclusion, I am clear, as I have said to Labour’s Front-Bench team, to constituents and to my friends on the ministerial team, that our constituents still have a huge amount of concern about this Bill; I am clear that a lot of it has arisen because of misinformation and misrepresentation; and I am clear that this is not a privatisation Bill and not a “carve up the NHS” Bill. However, everyone, including Government Members, will need to continue to be vigilant and to continue to talk to the health professionals. I hope that the Government and the health professionals will start talking again very soon. We will also all need to make sure that we understand their concerns and pass them on. I know what my constituents want at the end of this debate; they do not actually want lots of conversations about structures of the health service.