Care Bill [Lords]

Paul Burstow Excerpts

Tuesday 11th March 2014 Commons Chamber

[Dr Wollaston]

I thank the shadow Minister for making the point that £5,000 is woefully inadequate. The financial penalties—significant ones on a sliding scale commensurate with the wealth of the individuals or organisations concerned—should be set out, but I believe that people should go to prison for such data breaches. Organisations should be clearly held accountable. It should be made clear to them that, should such breaches occur, requests from them will not be looked on favourably. There should be a clear penalty. Currently, those penalties simply do not exist.

How do we explain to the public the small risks and how we will address them? One significant risk has not been covered: the powers of NHS England to direct the Health and Social Care Information Centre to collect information when it is considered “necessary or expedient”. That could include full identifiable, confidential data. Will the Minister address one point on that? I have been told that NHS England has, in meetings with senior researchers, discussed the fact that, in the next releases of care data, it plans to include free text. Free text takes us into an altogether different area, so will the Minister give categorical reassurances on it? I support the principle of a default opt-in, but might not support it if the data included free text. Free text is deeply and intensely personal data and is not coded, and the public need specific reassurances on it.

[Paul Burstow (Sutton and Cheam) (LD)]

Given that the intention, as I understand it, is to create wholly anonymised data, surely the use of that contextual information creates the possibility of re-linking to an individual’s identity. The hon. Lady is right to make that point, and I hope the Minister can reassure us, but surely that is a step too far.

[Dr Wollaston]

I agree with my right hon. Friend. Free text takes us into a different territory. People say things in free text to their doctor knowing that it will not appear in a coded form.

There are other ways in which we can improve reassurance for the public. Perhaps we could pseudonymise data before they leave the practice, which would introduce another important layer of protection. That suggestion has been made to the Minister on a number of occasions.

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[Barbara Keeley]

In my early career, I worked as a systems programmer and engineer for IBM. I do not usually have much opportunity to mention that, but it is probably appropriate in this debate. I have been struck in recent weeks by how many people with an IT background—as well as those with medical backgrounds—have serious concerns about care.data and the plans of the Health and Social Care Information Centre.

The Minister was not keen to take interventions last night, so I will ask my questions now. I want to touch on the important issue of consent for the uses of patient data. As I said earlier in the debate, the hospital episodes statistics database was originally an administrative database. When did any of us sign up to having our data used to recalculate the cost of insurance cover for long-term illness? Given the points I made about the use of our confidential hospital patient data in commercially chargeable systems in the US, when did we sign up to have our data used on a chargeable basis by companies such as BT and MedRed on their cloud systems in the US? I do not recall doing that, and I suspect no one else does either. Does the Minister agree that patients should have the option of having their data used only for clinical care and for commissioning that care? If the genie is not completely out of the bottle yet, that is a question worth asking.

[Paul Burstow]

The hon. Lady is making important points about the need to be clear about what these data are used for. There is an argument that anonymised and properly controlled data have a part to play in the area of medical research. Does she think that should be out of scope, or can we have safeguards that enable it to be in scope? Understanding whether a medicine works in a particular way with a population is a very powerful use of such data. In her view, is that appropriate or not?

[Barbara Keeley]

In the concerns I am listing, I am not touching on the use of data in medical research. My concern is about the revelations we have had in recent weeks. I am citing commercial uses. Those data are being used on a chargeable basis and the companies involved seem to be crowing about it.

Can a project such as care.data guarantee that what patients sign up to now—or at any point in time—will not mean something different in future months when new datasets are gathered? The hon. Member for Totnes (Dr Wollaston) touched on some of the exciting possibilities for data, but new uses are being planned all the time. I mentioned systems in the US, but the Health Secretary recently signed a memorandum of understanding with the US Health Secretary for secondary uses sharing. The Minister last night said that he would not comment on a US system, but our hospital patient data is on those systems being used on a chargeable basis. Should patients have the right to withdraw their consent if new uses are developed that they do not approve of? The data have gone, and people are developing new uses for them, way beyond what any patient may have felt they consented to.

My right hon. Friend the shadow Health Secretary raised the issue of lack of transparency over the patient’s right to opt out. He asked about the junk mail leaflets— as they have been called—that were not even delivered to every household. What do Ministers propose to do to explain to all patients about the extraction of their identifiable personal data, and what precisely the dissent codes mean? We touched on this in our Health Committee inquiry sessions, and it was not clear, although some people thought they knew. It is a pity that Ministers have not taken the opportunity to answer the questions that were put to them in Health questions—the information changed on the HSCIC database on the very day we had Health questions in the morning.

We know that NHS England and the HSCIC can require GPs to upload patient data in an identifiable form from every GP practice in England, to be linked with the hospital episode statistics and other datasets. That is concerning enough, because it is a powerful new use of a lot of data, but the hon. Lady suggested that the HSCIC is talking about free text. That is a concern, because that is the place where people open up to their doctor and might give information that they do not want to be shared.

It is important that we know exactly how the HSCIC is funded. In the spirit of transparency, will Ministers request full disclosure of all funding sources of the HSCIC, including outside earnings from third parties for the use of data? I have talked about seeing our hospital data now being used on a chargeable basis by companies such as BT in the US. Who pays for the HSCIC’s staff? Are staff seconded to the HSCIC? Who pays the transaction costs? We have seen examples recently of networks of private organisations coming into NHS England to write and fund reports and lead consultations. Who pays for staffing and transaction costs, if it is third parties, is a key aspect of transparency.

The Health Committee has held an initial inquiry into care.data, and I and other Committee members expressed real concerns about the scheme and the impact it could have on the trust between patient and doctor. Our concerns have been compounded by news that commercial companies have been allowed to pay for NHS patient data, and use them for purposes unknown to the public. The use of our data has gone beyond our control, the data are in other countries and uploaded to cloud servers, and we do not know where they are.

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[Mr Dorrell]

I was told a long time ago that it is important in certain circumstances in life to be careful with pronouns. It is fair to say that in the evidence we heard last week not all the witnesses were as careful as they could have been with their pronouns. However, I do not want to follow the hon. Lady too far down that road. Instead, I want to make a couple of broader points that I think are important if we are to deliver the objective of the efficient use of data within the health and care system in a way that respects the sensitivities of patients and the people who work in the system.

In the policy arena, when we talk about data and the safeguards around data, there is quite properly an instinct to be concerned about the power of information technology to make information available on a scale that was undreamt of a generation ago and to recognise that that requires proper safeguards. The default question is: what are the safeguards? That is a perfectly proper question, which has to be answered, but it is important that we do not lose sight of the benefits that can come from proper and efficient use of data.

I want to dwell on one illustration of that in the context of the health and care system. Traditionally we have been moderately good, in particular in the hospital service, at measuring episodes of care. What we have been almost completely blind about are the patterns that link one episode of care to another along an individual patient’s life journey. Care.data, as I understand it, is designed to address that weakness in a properly anonymised way, recognising that if we connect the patterns, one episode of care is often linked to another, and another and another, in that patient’s life journey. If we are to build a health and care system that is more joined-up, to use one bit of jargon, or, to use another cliché that is often repeated, treats patients or people not conditions, we need to equip ourselves with an information system that traps, and allows us to see, the experience of those people around whom we are trying to build the system.

The current information systems available to the health and care system simply leave that gap wide open. They do not connect up the individual episodes of care experienced by individual patients. They measure the numbers of people who go in for diagnostic services or the numbers of people who are treated for a particular condition or the number of attendances of care workers at home. They measure all those things, but they do not connect the individual patient-person experience through the line. Addressing that weakness is fundamental to what we are trying to do, and we must not lose sight of that in the concern we properly have about the safeguards that are required if care.data is to proceed with the public and professional support it needs.

[Paul Burstow]

The right hon. Gentleman is making an important point about why the programme has to succeed. Given that about 70% of what the NHS spends goes on the management of multi-morbidity—on people suffering from long-term conditions, often physical and mental—the ability to look at those data across the journeys people make through our care system is an essential part of good commissioning for population health.

[Mr Dorrell]

The right hon. Gentleman is 100% right. That is precisely what the care.data programme is designed to address.

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[Jim Dowd]

My right hon. Friend is right; that is precisely the point and that is precisely what this Government intend. I have absolutely no doubt about that; their writ will run whether people want it or not.

After all that, what is the current position of South London Healthcare NHS Trust—after that £5 million? Princess Royal in Orpington is now an adjunct of King’s College hospital. The TSA was quite happy to say the whole thing should be passed lock, stock and barrel to King’s. There was a rather unseemly squabble about the size of the bung King’s should get for taking on Princess Royal, but there was no specification about the services that should be provided there or anywhere else; that was entirely up to King’s. Queen Mary’s, which of course is not a fully functioning district general hospital, is now being managed by Oxleas NHS Foundation Trust, the primary care trust in that part of the world. Again, the TSA made no recommendations about what services, or what range of services, should be provided there.

Queen Elizabeth, which, of course, is the biggest problem in what was South London Healthcare NHS Trust, has now merged with Lewisham university hospital in the Lewisham and Greenwich NHS Trust. It is now managing a very difficult proposition; I do not dispute that for a moment. I have my doubts about whether that is the best move for the people of Lewisham, but I understand why it has been done. Yet, the board at university hospital Lewisham was prepared to enter into that agreement before the TSA even set foot in the area. So what we have now in south-east London was entirely possible by rational argument and reasoned consent without the need for the TSA and all the disruption, anguish and distress he and his acolytes have caused. I say to Members voting on this tonight, “Remember; you may not want to visit a TSA and I don’t blame you, but that won’t prevent them from visiting you if this clause goes through.”

[Paul Burstow]

I start by acknowledging the receipt of a petition handed to me yesterday, containing 159,000 signatures collected by members of 38 Degrees, expressing their concerns about the matter we are debating today. I know that a great many Members will have received e-mails about that and will have their own opinions, and I want to discuss the issues.

[David T. C. Davies]

Will the right hon. Gentleman refresh my memory? Is that the same pressure group that a few years ago was saying that the NHS was going to be privatised, which is completely untrue, and which a couple of months ago was saying that it was about to be silenced by some Bill the Government were pushing through yet is now very noisily campaigning once again? Surely this cannot be the same completely unreliable group of left-wingers with links to the Labour party, can it?

[Paul Burstow]

That was a lot of accusations and I will leave 38 Degrees to answer for itself. All I wanted to do was formally announce that it had given me this petition because, out of conscience, I thought that was the right thing to do. I want now to share my concerns about, and view of, new clause 16.

First, however, I want to reflect on what the shadow Secretary of State, the right hon. Member for Leigh (Andy Burnham), said. He made the point, on which I think there is consensus, that we should not reach the stage at which a trust special administration process is embarked on, and that we need to take every possible step to avoid that. That means that we must learn the lessons from the successful reconfigurations and reorganisations. Unfortunately, there are too few successful reconfigurations that do not lead to people mounting the barricades to oppose the change. The right hon. Gentleman referred to the example of stroke services, but such successes are few and far between. Part of the reason for that is that, historically, the NHS has not been good at engaging with its population in a way that brings them with it and gives them a feeling of being jointly involved in the process. People need to feel part of a shared endeavour and that their health services are fit for their community. That is what we need to instil in the process if we are to avoid the need to use the power that the Government are proposing.

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[Bob Stewart]

What worries me is the trigger for the process. What level of debt would have to be achieved in order for one of these extraordinary witchfinders-general suddenly to appear in our area to sort out our hospitals?

[Paul Burstow]

The hon. Gentleman anticipates my next point. It is far from clear how the judgment should be made that a trust is failing. In my view, the gateway to the process should be a narrow one, and it should be jealously guarded. My concern is that so many trusts are sitting on top of private finance initiative debt, and that hospitals could be at risk as a consequence. That debt amounts, over time, to about £70 billion; a significant burden has been hung around the neck of the NHS. I want to ensure that we have processes that can recognise and manage that without tipping organisations into crisis unnecessarily.

[Joan Walley]

Does the right hon. Gentleman agree that trust special administrators coming in and making recommendations, as they have done in the case of Staffordshire, can completely undermine the hospitals that are being asked to take over the failing hospitals? Such a process brings about no resolution to the problem at all.

[Paul Burstow]

I think the hon. Lady will find some sympathy for that view.

Local commissioners and trusts should be responsible for sorting out difficulties that could lead to a failure. Again, it needs to be clearer what happens at the pre-failure stage, and Ministers need to work with NHS England and Monitor to set out the pre-failure regime so that it is crystal clear what needs to happen to avoid triggering the TSA process. It might be argued, as Labour did in 2009, that when an NHS trust fails, there needs to be a fast way of making decisions about its future. Those decisions might have knock-on effects, but that should not mean that one trust’s failure triggers a wholesale re-engineering of local health services without proper checks and balances and accountability. Decisions about local health services should be taken by clinical commissioning groups.

I have tabled new clause 16 because I believe that two principles established by the Health and Social Care Act 2012 deserve to be protected. The first principle is—

[Andy Burnham]

Will the right hon. Gentleman give way?

[Paul Burstow]

If I may develop my point, I shall be happy to give way to the right hon. Gentleman.

The first principle is that, in the absence of failure in the arrangements set up by local commissioners, decisions about what services should be provided at an NHS trust or an NHS foundation trust should be taken by local commissioners working within their local health economies, and should not be foisted on the local NHS from outside. This autonomy principle is reflected in the absence of any general right for the Secretary of State or NHS England to direct local commissioners about the discharge of their functions. The previous position under the Labour Government was that the Secretary of State could issue directions to primary care trusts. We did not replicate that in the 2012 Act.

[Andy Burnham]

The right hon. Gentleman has made an outstanding contribution to proceedings over the past couple of days and I pay tribute to him for that. He was centrally involved in the development of coalition health policy after the last election. Does he agree with us that clause 119 represents a major departure from some of the statements that were being made by him and by others in this House when the Health and Social Care Act was going through?

[Paul Burstow]

I am grateful for that intervention. As I develop my argument, I think the right hon. Gentleman will hear where I sit on the spectrum of viewpoints. He may be interested in what I am about to say.

The second principle is that commissioners who have successfully managed the quality and demand in their area should not have decision making taken away from them. Decision making can be removed from the trusts that are failing, and this may mean that commissioners of such bodies have to accept unwelcome changes. But local decision making should remain in place where a local commissioner and provider are working successfully together. Thus the first purpose of my new clause is to seek to place with the commissioners of services at NHS foundation trusts and NHS trusts that are not in special administration the same decision-making powers as are given to commissioners of services of NHS trusts that have been found to fail and are in special administration.

At present the Bill creates two classes of commissioner. Where there is a trust in special administration, the clause provides that commissioners of services at that trust are able to define the services that the failing trust should continue to provide. The commissioners are thus entitled to ring-fence certain services that they feel must be preserved for the benefit of local patients. They are, in effect, given a veto on the extent of changes that can be made to a troubled trust because of the statutory objectives set for the administrator. The commissioners are thus able to act to preserve local services.

However, the present text of section 65DA does not give the same rights to the commissioners of adjoining trusts. They are relegated to second-class status. Clause 119 as drafted envisages that a special administrator is entitled to make recommendations for changes at trusts other than the trust in special administration which are not approved by local commissioners. In its present form clause 119 does not provide that the commissioners of the services at trusts other than the trust in special administration enjoy the same veto over the extent of any changes as the commissioners of a trust in special administration. There is a fundamental lack of parity of esteem between the different organisations and the different commissioners in a locality. It is that inequality that I am seeking to change.

[Heidi Alexander]

rose—

[Paul Burstow]

I give way finally to the hon. Lady.

[Heidi Alexander]

I am grateful to the right hon. Gentleman. Will he explain to me whether, if his new clause had been on the statute book at the time of the south London TSA process, only Lewisham clinical commissioning group would have had a veto over services at Lewisham hospital that it was proposed to change, or whether commissioners of services at Lewisham hospital, such as Greenwich, Bexley or Southwark CCGs, would also have had such a veto? Exactly who is he talking about?

[Paul Burstow]

What I am saying is that in a situation where trusts that are not themselves in special administration are being brought into the process, the commissioners of those trusts should be given equal standing in the process. At present they are not given the same standing as the commissioner of the failing service. The commissioner of the failing service is given a greater role in determining the outcome of the process. I want to ensure that if we use this process in future, in the way the Government intend, there is a parity of esteem between all commissioners, representing the clinical interests in the area and the interests of patients.

[Heidi Alexander]

Will the right hon. Gentleman give way?

[Paul Burstow]

Forgive me, but I will not give way. I want to ensure that others have a chance to debate the clause and my new clause, and I need to make some progress.

Why therefore should responsible commissioners who have worked successfully with their local NHS trusts to produce a sustainable set of NHS services be prejudiced by the failure of a commissioner who has not secured such an outcome? Clause 119 risks penalising responsible co-operation between commissioners and providers, and it gives a veto to the potentially irresponsible. My new clause removes that inequality by providing that commissioners of services at an NHS trust that is affected by any proposed changes should be placed in the same position as the commissioner of those services covered by the administration process.

Secondly, my new clause makes it clear that, if the special administrator issues a final report recommending changes at a trust that is not in special administration, the decision makers to decide whether those changes ought to be accepted should be the commissioners of services at the successful trust and not the trust special administrator, the Secretary of State or Monitor. Clause 119 envisages that the TSA can recommend changes at an NHS foundation trust which is not in special administration, but fails to provide any mechanism to put those changes into effect. It follows that the recommendation from the TSA is left hanging in the air. The TSA cannot impose decisions on a reluctant CCG, because the Secretary of State is unable to direct CCGs and cannot, through Monitor, require changes to the services by the foundation trusts.

When making submissions to the Court of Appeal in the Lewisham case, leading counsel for the Government accepted that chapter 5A of the Health Act 2009 was a purely procedural statute. Chapter 5A does not provide any additional powers for the Secretary of State or Monitor. It simply defines the process that must be followed before existing powers may be exercised. The TSA takes over the role of the board of the trust in administration, so that it can make decisions about that organisation. The Secretary of State and Monitor have powers to dissolve NHS bodies, but the TSA does not have a role with regard to any trust that it is not administering. There is therefore a fundamental problem with clause 119 in that particular case, and that is what my new clause attempts to address.

I am proposing a new clause that would make it clear that a TSA report is to be provided to commissioners of services at any affected trust who are the decision makers as to whether they wish to accept or reject the recommendations. They are the relevant decision makers —in other words, the local commissioners.

[Heidi Alexander]

Will the right hon. Gentleman give way?

[Paul Burstow]

I will conclude, because I want to ensure that there is time for other people to speak. I am sure that the hon. Lady will make a speech. If she comments on my remarks, she might be gracious enough to allow me to intervene to clarify if she is still unclear.

Obviously, if the local commissioners decide that they are minded to accept recommendations, local people who use services provided by trusts that are not deemed to be failing should not have changes foisted on them without proper consultation.

In conclusion, I am grateful to the Government for what they have already done by including Healthwatch and local authorities as consultees in the process, but we need to go further to ensure that all the commissioners who we in this House, under the 2012 Act, said should be the primary decision makers in arranging health care should be treated the same and have a genuine say in any trust special administration process. That is an essential safeguard, but it is not clear at the moment; it needs to be clear in the future, so that we ensure that this process works in the interests of patients and the local public.

[Heidi Alexander]

I want to do two things in my contribution: first, to speak in support of amendment 30, which would delete clause 119; and, secondly, to make a few comments on new clause 16, which was tabled by the right hon. Member for Sutton and Cheam (Paul Burstow). I would be content to support the right hon. Gentleman’s new clause, but I have some reservations and some questions that I would like his assistance in answering.

I do not want to rehearse everything that has been said about the case of Lewisham and the trust special administration process that took place in south London. My hon. Friend the Member for Lewisham West and Penge (Jim Dowd) summed up well the feelings of frustration and anger that existed in Lewisham at the time. Like him, I do not wish to inflict that process on other communities across the country.

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[Heidi Alexander]

That is useful. I am sure that Members are grateful to hear that from the Minister, but we know that there are many trusts in serious financial difficulties. Given the huge pressures on the NHS at the moment, this regime could be applied in many more places in the future. The truth of the matter is that the TSA regime will be used as a steamroller to force through the closure and downgrading of hospital services with limited public consultation, using a process that is set up in a way that creates public scepticism and mistrust from the word go.

The Government want to change the law to allow them to do elsewhere what the courts told them they could not do in Lewisham. As I have said already, I would not want to inflict that chaos on anyone else. It damages trust not only in NHS leaders who are meant to be leading change but in our democracy.

I wish to say a few words about new clause 16. As I have already said, I will vote for the new clause if the right hon. Member for Sutton and Cheam pushes it to a vote this evening, because it offers a limited improvement on clause 119. None the less, it raises its own set of questions. The new clause leaves clause 119 in the Bill, so it still allows an administrator appointed to a failing hospital trust to make recommendations about services provided at successful neighbouring hospitals, which are not part of the trust to which the administrator has been appointed.

As I understand it, the right hon. Gentleman’s new clause would give power to the commissioners of such services at the affected hospital outside the failing trust to have some sort of veto over whether the recommendations go any further. It suggests that if the commissioners of services at the affected hospital, such as Lewisham, agree with the changes being proposed, full public and patient consultation would kick in, consistent with the normal levels of communication and engagement that are required in full-service reconfigurations. If the local commissioners disagree with the recommendations, they can, if I understand his new clause correctly, call the process to a complete halt. I can see why that has some attractions, because it seems to provide some kind of brake on the all-encompassing powers of an administrator, and for that reason I am content to support it. However, it does not provide an entirely coherent solution to the problem that lies at the heart of clause 119.

[Paul Burstow]

The hon. Lady is helpfully setting out her concerns and her support for the new clause. The first proposition must be that we should never even get to that stage, so we need to have much better processes in place beforehand, and I hope that we will hear something about that from the Minister. More importantly, the commissioners, all of whom have a stake in a local health economy—the different trusts—ought to be around the table to sign off on what a TSA will actually do.

[Heidi Alexander]

I am grateful to the right hon. Gentleman for that answer, but I am still not clear whether the new clause would provide a direct veto to commissioners of services at a hospital located outside the trust to which an administrator has been appointed.

[Paul Burstow]

That is the intention, so the new clause has been drafted to have that effect. We will hear shortly whether the Government find it to be technically deficient.

[Heidi Alexander]

I am sorry to be down in the detail of the new clause, but I think that it is very important, not least because many of us have received hundreds of e-mails about this. We need clarity on which commissioners are being given an effective power of veto by the new clause. Is it just the primary commissioner of services at a hospital, or does it go wider than that? To take the Lewisham example, it is not clear whether the power of veto would be given only to Lewisham CCG or also to the commissioners of services at Lewisham hospital, such as Greenwich or Bexley CCGs.

It is also not clear from new clause 16 whether there is a definite guarantee that full consultation would kick in if commissioners agreed to the recommendations of the TSA, because with reference to commissioners it includes the words

“if they are so minded”.

It is not clear what would happen if they were not so minded. Where is the redress for the public in that?

Another concern about new clause 16 is that if commissioners of services at a trust outside the failing trust disagree with the TSA’s proposals, potentially millions could have been spent bringing in the administrator and the management consultants and working up a whole series of proposals, but it could then be brought to a halt by a group of commissioners. I cannot help but question whether it would not be better either to apply the TSA regime to one individual trust or to go through a proper reconfiguration process, with all the safeguards that would include.

I am also intrigued as to why the right hon. Member for Sutton and Cheam tabled new clause 16 at this time. It is quite detailed, and given that he was a member of the Public Bill Committee, it might have been wise to introduce it in Committee and thrash out the detail there. I would like to add that he has always struck me as a man of principle. He has a deep understanding of how the NHS works and, I believe, a deep commitment to tackling the care crisis we face. However, tabling the new clause as some kind of alternative to voting against clause 119 seems to me to be tinkering at the edges. What we really need to do is vote to remove that clause from the Bill, because it poses a significant danger to hospitals across the country.

I am conscious that I have spoken for a long time, so I will say just a few words in conclusion. We know that the Conservatives stated in their manifesto that they would stop the forced closure of A and E departments and maternity wards. We know that in the coalition agreement both the Liberal Democrats and the Conservatives talked about stopping the centrally dictated closure of A and E departments and maternity wards. The truth is that neither the Lib Dems nor the Conservatives are stopping these closures; instead, they are legislating for them. They are paving the way for a wholesale programme of hospital closures and downgrades. We might stop them if we vote for new clause 16, but for me “might” is not good enough. In my view, amendment 30, which would delete clause 119, is our best hope for putting the Lewisham debacle behind us and providing the public with a fair and transparent means of making decisions about the public service that matters most to people—the NHS.

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[Mrs Lewell-Buck]

I could not agree more with my hon. Friend.

TSAs can consider the impact on neighbouring authorities when making their recommendations, but they cannot and should not reconfigure services in well-performing trusts. Well-run trusts can and do collaborate with their neighbours, and play a role in reconfiguring services to help to achieve financial stability, but that must be voluntary. It is wrong for the Government to act through TSAs to reconfigure services in well-run trusts, and to do so against the wishes of local people and clinicians. It is also wrong that the opinions of health care professionals should be overruled by financial concerns, especially when the decisions being made affect trusts that are not at financial risk. That undermines the ability of health care professionals to act in the interests of their public.

The Government’s defence of the proposal is that clause 119 is a clarification of existing law, and yet the amendment was tabled in the other place while the Government’s appeal over the downgrading of services at Lewisham was still being considered. Surely it is the role of the courts to interpret and therefore clarify the law. It is more likely that the Government anticipated that their appeal would be rejected, as it was, and acted to expand the powers of TSAs so that reconfigurations such as that proposed for Lewisham could go ahead in future. I want to be clear: when any Government amends legislation so that it can be interpreted differently in the courts, they are not clarifying things but changing them.

[Paul Burstow]

I take the hon. Lady’s general point and understand why she is making it, but yesterday we debated new clause 11, which would have made clear a mistake that hon. Members on both sides of the House believe the courts made on the applicability of human rights legislation to social care that is publicly provided within private institutions. In that instance, we were not changing the law, but trying to ensure that the courts interpreted it correctly in the first place. There are instances when we do that.

[Mrs Lewell-Buck]

I agree with the right hon. Gentleman, but I do not believe it applies to clause 119.

My constituents are not especially concerned by the technicalities of legislation. The letters and e-mails I receive show concern with the practicalities of clause 119. People tell me that they fear for local services because, as more trusts fall into financial difficulties—more than 30 are reported to be in serious danger of doing so—the Secretary of State’s power will spread over a wide region. Perhaps the trusts that those people or their relatives use will not have a TSA appointed, but it is likely that services in their area will collaborate with trusts that do have one appointed. That makes them a target.

If the heroic efforts of the people of Lewisham and my hon. Friends are anything to go by, public concern will quickly turn to public outrage and protest if clause 119 makes it to the statute book. Lewisham has shown the Government the strength of opposition they can expect when they attempt to force unpopular reconfigurations on local communities. It is difficult to understand why they propose using that model throughout the country, but it appears that that is their intention.

I am concerned that, by taking that approach and using the TSA regime for a purpose for which it was never intended, the Government will make it more difficult to have a level-headed discussion on meeting financial challenges. We need a mature debate on how to adapt services to improve sustainability, but clause 119 will lead to pitched battles up and down the country over the closure of individual departments. The clause has attracted more controversy than any other in the Bill, and with good reason. It ignores the will of clinicians and the communities they serve. It puts at risk services in every corner of the UK. The Government must change course now.

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[Dr Poulter]

The spirit of the previous Government’s legislation was to look at the wider health economy when a trust is in extremis and has reached the point at which it is failing patients, either because of its financial failure or the direct effect that has on the quality of patient care. There then needs to be a wider look at the whole health economy. I know the Princess Royal university hospital in my hon. Friend’s constituency very well. I also know Lewisham hospital very well, having done some of my medical training there. They cannot be seen in isolation from King’s college hospital, Woolwich, Sidcup and all the other hospitals in the area, because they look after patients in that part of London as part of an integrated health and care service. When a hospital fails in that way, it has to be looked at holistically. It is a power of last resort, to be used when a trust is in extremis, not a routine power, which is why we have the TSA process set up by the previous Government.

[Paul Burstow]

I am grateful to the Minister for some of the clarifications he has given so far. When he concludes his comments on new clause 16, will he confirm that the review of the guidance that he has invited me to chair will also consider the issue of consultation to ensure that it is genuinely pervious to public opinion and other clinical opinions in the area?

[Dr Poulter]

I am happy to give my right hon. Friend that assurance. It will be for him to lead the review, and we look forward to the work he does.

New clause 16 would make a second key change: to prevent the Secretary of State or Monitor from making decisions about recommendations affecting other trusts. Instead, local commissioners would have to undertake a further process of consultation and make their own decision. The effect would be to completely undo the changes that clause 119 is seeking to make—

[Dr Poulter]

It would take outside the administration process and the timetable recommendations that affect other trusts. It could mean that a complete solution for the trust in administration and local patients could not be found. As before, my right hon. Friend the Member for Sutton and Cheam said that examining in isolation a trust that is failing significantly would be like throwing it to the wolves on its own. New clause 16 would render the strict legal timetable for the regime ineffective by significantly delaying resolution. I know that it is not his intention, but the new clause would undo the core purpose of clause 119 and the very aims of the regime, which are to put in place sustainable and safe health care services for patients when a trust has significantly failed.

[Paul Burstow]

I think I have heard the Minister tell us that there will be an equivalency between commissioners whereby they will all have to agree to changes being led by a trust special administrator, that there will be further examination of the consultation issues, and that we will make sure that the process is used rarely and exceptionally. Given his confirmation of those things, I want him to know that I am satisfied that my concerns are being addressed. On that basis, I do not intend to press my new clause, and I urge colleagues to do likewise.

[Dr Poulter]

I am very pleased that my right hon. Friend is reassured. I pay tribute to the tremendous work that he has done throughout the passage of the Bill in scrutinising and pushing the Government to ensure that we produce better, and good, legislation. I commend him for the work he has done on that.

It is important to point out that clause 119 makes a number of changes to strengthen patient, public and commissioner involvement in the process. In concluding, I shall draw out its important aspects. First, the clause would extend the public consultation period from six to eight weeks so that the public and others in the wider health economy can give their views and improve the recommendations. It would also give the administrator more time than the previous Labour Government did to produce draft recommendations, extending the period from 45 to 65 working days.

Secondly, the clause would allow a more holistic view to be taken of the wider local health system by allowing an administrator to make wider recommendations, but only as long as those recommendations are necessary for, and consequential on, primary recommendations about the failing trust.

Thirdly, the clause would widen consultation to affected trusts, their staff and commissioners. In addition—I thank my right hon. Friend the Member for Sutton and Cheam for suggesting this—we are providing in amendments 11 and 12 greater public and patient representation in the regime by requiring the administrator to consult local authorities and healthwatch organisations. That will ensure that the voice of local communities is at the front and centre of the administrator’s final recommendations. This important clause makes sure that patients and local commissioners are properly consulted. Indeed, we make sure that Healthwatch is put at the heart of everything that happens. The clause also improves arrangements for the administrator in seeking the support of commissioners affected by their recommendations, as we have discussed. That means that an administrator could develop recommendations that provide a solution for the future of failing trust services, ensuring that all those affected are fully involved. That has to be the right action.

We have heard a lot from Labour Members about the trust special administrator regime. Let us remember that this was their provision and their regime. We are putting in place measures that are true to their intentions when they put this in place, so that a trust is not thrown to the wolves when it meets their circumstances of severe failure. We will make sure that we always act in the best interests of patients. The right hon. Member for Leigh (Andy Burnham) is good at playing politics and good at spin. I am a doctor. I will always do what I believe is in the best interests of patients, and that is exactly what clause 119 will achieve.

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[Andy Burnham]

I begin by thanking my shadow team, particularly my hon. Friends the Members for Leicester West (Liz Kendall) and for Copeland (Mr Reed), who have spent many hours trying to make sense of this unwieldy piece of legislation. I, too, want to thank members of the Public Bill Committee for their work, as well as the officials, Officers and staff of the House who enabled the Committee’s work to take place.

It is right also to pay tribute at this point to the Care and Support Alliance, a very important association of organisations working to be advocates and champions for some of the most vulnerable people in our society. The alliance worked with the previous Government and is working with this Government; indeed it works with all sides of the House. It can take some credit for some of the steps forward that are coming as a result of the Bill, and it is fair to say that there are some steps towards a better social care system.

I would argue that the Bill builds on the work of the previous Labour Government in that regard, particularly in the overdue recognition of carers. We welcome stronger legal recognition and rights for carers. We welcome better access to information and advice, which will make a difference to some people using the care system. The idea of portability—that if people move from one place to another, their entitlement to care goes with them—is a good principle and one that I put forward. We welcome the fact that it has been carried into the Bill. The principle of a cap on what people should pay for social care is in itself an important step forward. I recognise that but, as I will go on to say, we do not believe that all is at it seems.

There are measures in the Bill, as the Secretary of State said, to implement parts of the Francis report, such as the organisational duty of candour and moves to strengthen regulation. We welcome these steps but we would have encouraged the Government to go further.

The big problem with the Bill is the gap between what Ministers claim it does and what it actually does. It is not what it seems and it will not deliver on the claims made for it. Worse, it is no answer to the problems posed by an ageing society, and it is not equal to the scale and urgency of the care crisis that the country faces.

[Paul Burstow]

The right hon. Gentleman expresses concern about the care crisis. Why did he abstain in yesterday’s vote on the Local Government Association’s proposal that there should simply be an assessment of the adequacy of funding?

[Andy Burnham]

I do not think that the right hon. Gentleman is in a very strong position to talk about Members’ abstaining in votes on amendments. I shall say more about that shortly.

Let me now list three reasons for our argument that the Bill is not what it seems. First, as I have said, it is no answer to the care crisis. It proposes that a cap should be paid for by the restriction of eligibility for care, and the removal of care from some people who are already receiving it. Last week we heard from Age Concern that 800,000 people who had previously received support no longer received it. The problem is that local authorities are being asked to implement the system with no additional resources, and are therefore having to move funding from preventive social care to the administration and funding of the cap and the deferred payment scheme. Rather than taking from one area of social care to give to another, the Government should have put new resources into social care.

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[Paul Burstow]

The Bill deserves a Third Reading because it replaces 60 years of piecemeal, dog’s breakfast legislation. In place of that it will put a system focused on promoting the well-being and quality of life of the individual. It provides a foundational set of changes of the sort that my right hon. Friend the Member for Charnwood (Mr Dorrell) was talking about.

My 18 years in this place have been about campaigning for the changes that the Bill brings about. I have seen countless Green Papers and heard countless promises of reform. This legislation brings that reform home and delivers change—change that I hope all Members will support, because it is for the good of our constituents that we are here and the Bill delivers a lot of good.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.