Health and Social Care Bill

Simon Burns Excerpts

Tuesday 20th March 2012 Commons Chamber

[The Minister of State, Department of Health (Mr Simon Burns)]

I beg to move, That this House agrees with Lords amendment 1.

[Mr Speaker]

With this we will consider the following:

Lords amendments 2 to 10 and 13 to 30.

Lords amendment 31, and amendment (a) thereto.

Lords amendments 32 to 42, 54 to 60, 74, 242, 246, 248, 252, 287, 292 to 294, 299 to 326, 328 to 332 and 335 to 342.

[Mr Burns]

The aim of this Bill is to secure a national health service that achieves results that are among the best in the world. Through it, the Government reaffirm their commitment to the values and principles of the NHS: a comprehensive service, available to all, free at the point of use and based on need, not ability to pay. However, we have always been prepared to listen and make changes to improve the Bill, and we have continued to do so in another place. The Lords amendments in this group fall within five main areas.

First, we recognised that concerns had been expressed about the Secretary of State’s accountability for the health service. Although it was never our intention in any way to undermine that responsibility, we have worked with Members of another place and the House of Lords Constitution Committee to agree Lords amendments 2 to 5, 17, 18, 24, 39, 40, 74, 246, 287 and 292. Those amendments put beyond doubt ministerial accountability to Parliament for the health service. In addition, they amend the autonomy duties on the Secretary of State and the NHS Commissioning Board, to make it explicit that the interests of the health service must always take priority. They also amend the intervention powers of the Secretary of State and the board, to clarify that they can intervene if they think a body is significantly failing to exercise its functions consistently with the interests of the health service. Finally, a new provision will make it explicit that the Secretary of State must have regard to the NHS constitution in exercising his functions in relation to the health service.

Although clinical commissioning groups will have autonomy in their individual decisions, Lords amendment 9 clarifies that CCGs must commission services consistently with the discharge by the Secretary of State and the board of their duty to promote a comprehensive health service, and with the objectives and requirements in the board’s mandate.

The Government also tabled amendments in response to the recommendations of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, all of which we have accepted. Amendments 15 and 16 ensure that the requirements set out in the mandate, and any revisions to those requirements, must now be given effect by regulations.

Commissioning will be led by GPs, who know patients best. However, with that responsibility must come accountability. Therefore, further to the amendments made in the House requiring CCGs to have governing bodies, the other place has strengthened requirements in relation to CCGs’ management of conflicts of interest. We recognised how important it is to ensure the highest standards of probity in CCGs and accepted amendments 31, 300, 301 and 302, which were tabled by the noble Baroness Barker, and which require CCGs to make arrangements to ensure that members and employees of CCGs, members of the governing body, and members of their committees and sub-committees, declare their interests in publicly accessible registers.

The amendments also require CCGs to make arrangements for managing conflicts of interest and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes. The board must issue statutory guidance on conflicts of interest, to which CCGs must have regard.

Taken together, those amendments provide certainty that there will be clear and transparent lines of accountability in the reformed NHS. However, I cannot support Opposition amendment (a) to Lords amendment 31. The Bill is clear that CCGs must manage conflicts of interest in a way that secures maximum transparency and probity. In most cases, that would mean that a conflicted individual withdraws from the decision-making process, but that might not always be possible, for instance when a CCG is commissioning for local community-based alternatives to hospital services, and determines that the most effective and appropriate way to secure them is to get them from all local GP providers within its geographic area. In that event, it would not be possible for every GP to withdraw from the decision-making process. We cannot, therefore, agree to a blanket ban.

[Andrew George (St Ives) (LD)]

Will the Minister clarify something in view of what he has just said about the conflict that all members of the board and the CCG will have with regard to decisions on the provision of new services? Does he share my fear that the structure of CCGs results in bodies that will continue to be conflicted? Does that continuing conflict not undermine that important structure within the health service?

[Mr Burns]

I appreciate the hon. Gentleman’s intervention, but I am afraid I do not share that view. I hope that what I shall go on to say will help to give him additional reassurance on that.

There will be additional safeguards in the Bill to ensure that those processes are transparent, including the regulations that Monitor will enforce on procurement practices and its accompanying guidance. In addition, the board must publish guidance for CCGs on their duties in relation to the management of conflicts of interest. Of course, the CCGs' commissioning intentions will have been set out in its commissioning plan, which is subject to consultation with both the public and the health and wellbeing boards.

The second area in which the other place has strengthened the Bill relates to the duties placed on commissioners to ensure a patient-focused NHS. It has always been the Government’s intention to put in place reforms that support the simple principle, “No decision about me without me.” To achieve that, commissioners will for the first time have a duty in relation to patient involvement in decisions. The House strengthened those duties following the listening exercise, and they were further improved by amendments 19, 32 and 33 in the other place, to make it explicit that the duty means promoting the involvement of patients in decisions relating to their own care or treatment.

Another core principle of the White Paper was the need to eliminate discrimination and reduce inequalities in care. The Bill will for the first time in the history of the NHS place specific duties on the Secretary of State and commissioners to have regard to the need to reduce health inequalities.

To reinforce that further, the other place agreed amendments 22, 23, 36, 37, 38 and 60. These ensure that the Secretary of State, the board and CCGs will be better held to account for the exercise of these duties through their annual reports, the board’s business plan and, in the case of CCGs, their commissioning plans and annual performance assessment by the board. However, improvements in quality, outcomes, and reduced inequalities will not happen unless we better integrate services for patients. That is why we placed duties on commissioners, again for the first time, to promote integration in new sections 13M and 14Y, and made clear, following the listening exercise, that competition will not take priority over integration.

[Mr Robert Walter (North Dorset) (Con)]

I met GPs and consultants in Tavistock in west Devon the other day. One of the great concerns that consultants have, particularly in the field of paediatrics, is the integration of children’s services. A great deal of work has gone into that. In dealing with these amendments, what assurance can my right hon. Friend give that the integration of children’s services will be particularly emphasised in these changes?

[Mr Burns]

I hope that my hon. Friend will be reassured by two points. First, the Bill contains far greater duties and responsibilities for integration over the whole provision of care within the NHS, and that will obviously include children’s services. Secondly and more precisely on the narrow issue that he raised, the children’s health outcomes strategy, published some time ago, will ensure that commissioners provide services to improve integration and that there is greater working together between the NHS, public health bodies and commissioners in securing an improved pathway of care and greater integration.

Lords amendment 320 ensures that the NHS continues to provide funds to local government for investment in community services at the interface between health and social care.

Thirdly, amendments in the other place have placed a greater emphasis on the duties of the Secretary of State and commissioners with regard to system-wide issues, such as education, training and research. Amendment 7 ensures that the Secretary of State will remain responsible for securing an effective system of education and training. Amendments 21, 26, 35 and 42 will place duties on the board and CCGs to have regard to the need to promote education and training, and the Government supported the noble Lord Patel’s amendment to ensure that providers of health services were required to participate in the planning, commissioning and delivery of education and training.

The Government have also listened further to concerns that the strength of the research duties on the Secretary of State, the board and CCGs did not properly reflect the importance of the NHS as a world leader in supporting research. Amendments 6, 20 and 34 have strengthened these to a more direct duty to promote research.

Fourthly, concerns were expressed in the other place about the treatment of charities, other voluntary sector organisations and social enterprises that provide or want to provide NHS services. We are committed to a fair playing field for all providers of NHS services, regardless of their size or organisational form. We see voluntary organisations and social enterprises as key to this vision. For example, they can play a key role in understanding the needs of local communities and delivering tailored services.

Amendment 8 commits the Secretary of State to undertake a thorough and impartial statutory review of the whole of the fair playing field for NHS-funded services. I can confirm that it will cover all types and sizes of provider, including charities, social enterprises, mutuals and smaller providers. It will consider the full range of issues that can act as barriers for providers, including access to and cost of capital, access to appropriate insurance and indemnity cover, taxation and access to the NHS pension fund. The Secretary of State will be required to keep consideration of these issues under review. As my noble Friend Earl Howe set out in another place, during preparation of the report there will be full engagement with all provider types, commissioners and other interested stakeholders to ensure their concerns are looked at.

Finally, I turn to the amendments relating to mental health services. I would like to thank my noble Friend Lord Mackay for his work in developing amendment 1, which inserts the words “physical and mental” into clause 1 in order to promote “parity of esteem” between physical and mental health services. In response to the Royal College of Psychiatrists’ concerns, I would like to offer the reassurance that the definition of “illness” in section 275 of the National Health Service Act 2006 would continue to apply to section 1, meaning, for example, that learning disabilities, mental disorders and physical disabilities would continue to be covered by the comprehensive health service.

Although our view is that the most important work in achieving genuine parity of esteem will be non-legislative—for example, through our recent mental health strategy, “No Health without Mental Health”—we recognise the symbolic significance of including these words in clause 1. Mental health is a priority for this Government, so I commit to considering further the role that the mandate, the NHS and public health outcomes frameworks can play in driving improvements in mental health services. Similarly, we decided not to oppose amendment 54 by the noble Lord Patel of Bradford relating to mental health aftercare services provided under section 117 of the Mental Health Act 1983, and tabled a number of consequential technical amendments.

I am grateful for the scrutiny that the Bill has received in another place. There is no doubt that it has been strengthened and improved as a result. It will help to ensure that the Secretary of State will remain accountable overall for the health service and provide a robust framework for holding commissioners to account. I urge hon. Friends and hon. Members to agree to the Lords amendments in this group, but to reject Opposition amendment (a) to Lords amendment 31.

[Liz Kendall (Leicester West) (Lab)]

There have been 1,000 Government amendments to this disastrous Health and Social Care Bill—374 in the other place alone—and it is unacceptable that elected Members in this House have been given so little time to debate amendments that will affect patients and the public in every constituency in England.

It is essential that we reach the second group of amendments, on parts 3 and 4 of the Bill, which deal with Monitor, foundation trusts and the Government’s plans to raise to 49% the private patient cap in foundation trusts, but I want to start with the Lords amendments to the Secretary of State’s duty to ensure a comprehensive service in the NHS. I will remind hon. Members where this all began.

On 10 February last year, my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) challenged the Secretary of State, in his evidence to the Commons Bill Committee, over why he was removing the Secretary of State’s responsibility to provide a comprehensive service in the NHS. He said:

“I have not... It is in the original language. It is reproduced the same way.”––[Official Report, Health and Social Care Public Bill Committee, 10 February 2011; c. 166, Q402 and 404.]

On 15 February, my hon. Friend the Member for Halton (Derek Twigg) challenged the Minister of State, Department of Health, the right hon. Member for Chelmsford (Mr Burns) about the removal of the Secretary of State’s duty to provide comprehensive NHS services. Again, this was categorically denied. The Minister said:

“Clause 1 retains the overarching…duty which dates from the original 1946 Act”.––[Official Report, Health and Social Care Public Bill Committee, 15 February 2011; c. 178.]

He also said that any amendments to the clause were “unnecessary”. Today the Government are being forced to eat their words.

For the record, it was the determination of Labour Members in the other place, not Liberal Democrat Members, that forced the Government to place the clauses relating to the Secretary of State’ duties on promoting a comprehensive service and on autonomy within the remit of the Lords Constitution Committee, chaired by the noble Baroness Jay of Paddington. The result of the Committee’s deliberations are the amendments before us today. The amendments do not deliver exactly the same duty as the National Health Service Act 2006, but they are a significant improvement. Pressed on this issue by Labour Members in both Houses and at every stage of the Bill, the Government have been forced to concede.

A similar thing has happened on education and training, which is the subject of Lords amendments 7, 21, 26, 35 and 42.

--- Later in debate ---

[Grahame M. Morris]

I am grateful for that intervention and I share the hon. Gentleman’s concern that this amendment, which deals with the Secretary of State’s powers, and, indeed, the whole thrust of the Bill, are likely to lead to a fragmented service, when what we all want to see is co-operation and integration. I am concerned about the direction of travel in that respect.

The point about autonomy is relevant, because Lords amendment 2 reiterates that

“The Secretary of State retains ministerial responsibility to Parliament for the provision of”

health services. Lords amendments 4 and 17 would further amend clauses 4 and 20 in order to downgrade the duty to promote autonomy even more, through the idea that the Secretary of State must only

“have regard to the desirability of securing”

autonomy instead. When it comes to ministerial accountability for the Secretary of State, we have a yearly mandate to the NHS Commissioning Board, which will remove the Secretary of State—and therefore Parliament—from being involved in or interfering in the running of the NHS. In that case, I ask the Minister: what would be the point of Health questions? As private health care interests take over the provision of health services, they will not be subjected to freedom of information requests or other forms of accountability to which NHS providers are subjected.

[Mr Simon Burns]

Will the hon. Gentleman give way?

[Grahame M. Morris]

I will in a moment, but I want to pose a few questions first. The Secretary of State clearly cannot answer for private companies that are exempt from FOI requests. He cannot answer for GP commissioning groups, which are essentially independent contractors and private bodies. Surely, it is clear that the Secretary of State is handing over a big chunk of the NHS budget to private GP commissioning groups, cutting himself and Parliament out of the loop. I therefore believe that it is a fantasy to say that the Secretary of State will remain accountable.

[Mr Burns]

There is almost—no, there is—an air of déjà vu to this part of the hon. Gentleman’s speech, as there always is. We discussed this in Committee, and I am a bit frustrated that he cannot quite get it. The fact is that at the moment there is virtually no transparency and no real accountability as to what a Secretary of State does with regard to the provision of health services. The fact is that the mandate will be published; it can be debated in this House either on a motion from the Government or from the Opposition; there will still be Question Time at which hon. Members will be able to ask questions; there will still be an opportunity for Adjournment debates, urgent questions and statements. There will be accountability.

[Grahame M. Morris]

Well, as Aneurin Bevan said, “You give your version of the truth, and I will give mine.” In my assessment, yes, there will certainly be a mandate, but this House’s power to scrutinise and hold Ministers to account will be severely diminished under the new arrangements. Writing down that the Secretary of State has the duty

“to exercise functions to secure the provision of services”

is thus rather perverse—one might even say ridiculous—when the rest of the Bill hands over those duties to other bodies, often private bodies outside the NHS such as the clinical commissioning groups. Indeed, the National Commissioning Board—the world’s biggest quango—will also secure provision through clinical commissioning groups, which will not be done through the Secretary of State. [Interruption.] I think the Minister is being extremely disrespectful, Madam Deputy Speaker, in the way he is gesticulating when I am trying to make my points.

In effect, the Secretary of State’s only duty seems to be to pass over the money or the resource and write one letter a year—this mandate—to the National Commissioning Board.

On the issue of the duty to promote a comprehensive health service and secure the provision of services as opposed to any duty to promote autonomy, this surely remains a conundrum, as they are virtually mutually exclusive. How the Secretary of State thought that those two competing principles could sit side by side or that he could balance the two is beyond me. This is the problem with the Bill as a whole. No matter how much tweaking is done to clauses 2, 4 or 20 by these amendments, we cannot escape this dilemma. That brings me back to my key point that this Bill’s driving ideological purpose remains to commercialise and privatise each and every service in the NHS.

Finally, let me return to the definition of autonomy—[Interruption.]—for the information of Conservative Members, who are shouting across the Chamber. According to the dictionary, autonomy means

“the condition of being autonomous; self-government or the right of self-government; independence”.

What we are talking about here is being autonomous or independent of the Secretary of State. My contention is that only central planning can deliver a comprehensive service. Otherwise, we will have postcode lotteries—identified in the risk registers we have discussed, such as the one from the Faculty of Public Health—and unprofitable services being cut back. Once the private sector is too big to control, what then?

[Mr Burns]

rose—

[Grahame M. Morris]

I have concluded my remarks, so perhaps the Minister can address those points in his summing up.

--- Later in debate ---

[Liz Kendall]

The fundamental difference is that under the Bill only two lay people will be appointed as members of clinical commissioning groups, and no independence will be involved. Under the old system, lay members of primary care trusts were independently appointed. The degree of independence that provided checks and balances has gone.

[Mr Simon Burns]

rose—

[Dr Poulter]

I thank the hon. Lady for her intervention, but I will give way to my right hon. Friend the Minister before I respond to it.

[Mr Burns]

The hon. Lady may not fully appreciate this, but the regulations refer to a minimum of two lay members. There is nothing to stop a clinical commissioning group from appointing more than two.

--- Later in debate ---

[Mr Simon Burns]

No.

[John Pugh]

The Minister says “No”, but I tabled a question recently in which I asked him whether he had taken advice from the European Commission. He told me that he had not. [Interruption.] We are talking about European law—

--- Later in debate ---

[Grahame M. Morris]

Will the Minister give way?

[Mr Simon Burns]

Sit down.

[Madam Deputy Speaker (Dawn Primarolo)]

Order. Minister Burns, I will chair the debate in this Chamber. You will not. Unless you want to sit here and allow me to take—

[Mr Burns]

indicated dissent.

[Madam Deputy Speaker]

No? In that case, be quiet.

--- Later in debate ---

[Andy Burnham]

It is not rubbish. They can earn 49% of their income, according to this Bill, from the treatment of private patients. That is a fact, and why the hon. Lady shouts “rubbish” I have no idea.

[Mr Burns]

Will the right hon. Gentleman just confirm that when his Government brought in controls on foundation trusts, they allowed non-foundation trusts, which were the majority of trusts at the time, to have a 100% cap?

[Andy Burnham]

Non-foundation trusts were managed by the Department, and the Department’s policy, during our time in government, was to have a tight cap—[Interruption]. There was a tight cap on the income that trusts could earn, so the very fact of foundation trusts’ creation gave rise to the question of whether there should be a cap. The Minister is effectively abolishing that cap with his Bill.

[Mr Simon Burns]

Answer the question.

[Andy Burnham]

I have answered the right hon. Gentleman’s question. It was an entirely different situation altogether.

On the suggestion that we are setting our face against reform, we have not said that, and I as Secretary of State initiated a review of the private patient cap, because the issue came up before the election. I was prepared to allow a modest relaxation of the cap if it could be demonstrated to benefit private patients, but I was talking about single percentage points: 1% or 2% becoming 2% or 3%. I was not in any way conceiving the possibility that 49% of a trust’s income might be made from the treatment of private patients—that half their theatre time, beds and car parking spaces could be turned over to the treatment of private patients.

--- Later in debate ---

[Mr Simon Burns]

No.

[Ms Abbott]

She will, you know. Does she agree that it is apparent over the years that it is one thing to see an intention built into a Bill, but quite another to see it implemented on the ground? It is the contention of Opposition Members that, worthwhile as the statements in the Bill are, in the context of this particular car crash of a Bill, some of those intentions around public health will be dead on arrival.

[Liz Kendall]

I thank my hon. Friend for her, as always, powerful and eloquent description of the realities of the Bill.

[Mr Burns]

Will the hon. Lady give way?

[Liz Kendall]

No, I am not giving way to the Minister.

Although I have said that a number of amendments in the group make minor improvements regarding NICE and the functioning of the information centre, they are overwhelmingly—

[Mr Burns]

Will the hon. Lady give way?

[Liz Kendall]

I have told the Minister that I am not giving way to him.

These amendments are overwhelmingly outweighed by the huge change put forward by the Government in abolishing an effective statutory model for healthwatch bodies locally, which was supposed to give patients and the public a strong and independent voice in the NHS. Labour Members cannot accept the Government’s removal of that statutory body, which they promised and have now betrayed. The amendments make a mockery of the Deputy Prime Minister’s claim in the letter he wrote with Baroness Williams to Liberal Democrat Members that the Bill will ensure “proper accountability” to the public. It makes a mockery, too, of the claims made by the Secretary of State and the Prime Minister that this Bill will put real power into the hands of patients and the public, and that there will be “No decision about me without me.” And, as the national body that represents patients and public involvement in the NHS has said, it is

“a betrayal of public trust”.

This is what has happened throughout the proceedings on a Bill for which the Government—Conservatives and Liberal Democrats—have no mandate, and for which they know they have no mandate. They promised that there would be no top-down reorganisation, but did not present any proposals for an independent regulator on the basis of the system that exists in the privatised utilities because they were worried about what people would say. Above all, on this fundamental issue, which concerns the say that the public and patients have in the NHS, the Government have—as the National Association of LINks Members said—betrayed people’s trust in what they promised, and for that reason we will not support the amendments.