(12 years, 5 months ago)
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Baroness Emerton
“13O1 Duty as to staffing ratios of registered and non-registered staff
(1) The Board must, in the exercise of its functions, establish for health services, and may subject to regulations establish for other services, the ratio of registered to non-registered workers required at any given time by reference to any appropriate register established for workers in those areas.
(2) In the discharge of this duty the Board must publish a list of appropriate registers for the purpose of subsection (1).
(3) The Board must produce guidance to health services to assist in the maintenance of ratios for the purpose of subsection (1).
(4) The Board must also issue guidance on the maximum and minimum numbers of patients per registered nurse.”
Baroness Emerton
My Lords, while workforce planning is to be a devolved activity at local commissioning level, this Bill states that the overall duty of the national Commissioning Board is to arrange the provision of services for the purposes of the health service in England. Therefore, it would seem appropriate that the national board undertakes to give guidance on a range of issues, as some have already stated, and I would like to see this amendment added. I declare an interest as recorded in the register, speaking as a retired nurse, not named, on the NMC effective register.
The commissioning of the nurses, midwives and health visitors workforce is complex. It covers the community and hospitals; projecting numbers to meet the training requirements; commissioning university places with the right numbers for the services to be provided; and establishing the right number in the right place at the right time. In practice, this requires skilled planners who understand 24-hour service and the different levels of dependency in each speciality, to effect holistic care in hospitals and the community. The economic situation we find ourselves in is already having an effect on workforce numbers. Only a week ago the Royal College of Nursing reported on the effects that the Nicholson £20 billion cut is currently having on services. The detailed analysis by the RCN of 41 trusts revealed that clinical posts were affected, or were planned to be affected. An analysis of the trusts in England showed that the reductions are not only contained within administration, management and other back-room offices, but also affect nursing. Registered nurses are being affected by the freezing of their posts, leading to lower staffing levels, the down-banding of high-grade nursing posts, the loss of specialist skills and those working in preventive services, and cuts in the mental health field, where demand for nursing is rising.
This spells disaster for patients and their families. We know that in Mid-Staffordshire the nurse staffing ratios were changed from 60 per cent registered and 40 per cent support workers, to 40 per cent registered and 60 per cent support workers, in order to make financial cuts, but at what expense? It does not need much intelligence to see that nursing care suffered and the effect was dire.
International research evidence clearly demonstrates that low nurse staffing levels correlate with higher patient mortality and morbidity. We know from evidence in the UK, the United States and Australia that the quality of patient care is affected by the ratios of registered nurses to support workers. The higher the ratio of registered nurses to support workers, the higher the quality of clinical outcome, providing faster throughput and reduced infection rates that in turn reduce readmissions. In addition, the patients receive safe care, and they favour it by way of experience.
To give an example, in a US study, every one patient added to the average hospital-wide nurse workload increased the risk of death following common surgical procedures by 7 per cent. There was a 31 per cent difference in mortality between hospitals in which registered nurses cared for eight patients each and those in which nurses cared for four patients each, taking into account the severity of the patients’ illness, comorbidity conditions and the level of technology and teaching status in the teaching hospitals.
A study in the UK in 2007 found that patients in NHS hospitals in the upper quartile, where nurses had the heaviest patient workload, were 26 per cent more likely to die overall and 29 per cent more likely to die following a complicated stay in hospital. The nurses in the hospitals with the heaviest workload were between 71 per cent and 92 per cent more likely to show negative job outcomes, burnout and job dissatisfaction, and to rate the quality of care on their wards as low and the quality of care in their hospitals as deteriorating. Similar evidence was produced in Australia.
The Bill works towards high-quality, integrated holistic care. Equally important as plans for the hospital workforce in nursing and midwifery are those for the community workforce: community nurses, midwives and health visitors. Last week, the Queen’s Nursing Institute published a report entitled Nursing People at Home, which demonstrated worrying trends in community nursing that could be remedied if more nurses were specifically trained, year on year, to work in the community. It recommended that there should be support for the newly qualified through preceptorship; that healthcare assistants should be regulated; and that commissioners of services should set standards for the qualifications of community team leaders. Likewise, the Royal College of Midwives launched a report last week into the state of maternity services in 2011, recommending that more births take place in midwife-led units and at home, that properly trained and supervised midwife support workers should be appropriately deployed and calling for a guarantee not to cut midwife training places.
There is a common thread running through the recommendations of all three professional bodies that, in essence, supports the amendment. There is widespread concern across the professions that, unless the national Commissioning Board issues guidance on staffing ratios, local commissioning of the workforce could lead to unsafe ratios of trained to untrained staff, resulting in unsafe care and increased cost to the NHS. It is a false economy to meddle with safe ratios. It would be more effective to move quickly towards a totally registered nursing workforce in hospitals, knowing that patients were receiving holistic, high-quality care, leading to shorter stays and reduced readmissions to hospital, resulting in bed closures and real savings.
There is no need for me to go in to more detail. The current situation is very bleak and we are in the midst of amending a Bill that aims to improve the health of the nation and provide high-quality care in hospitals and the community. The latest report and front-line survey by the Royal College of Nursing expresses concern, especially on the urgent issues that face the nursing profession if growing demand is to be met, with the demographic figures showing an urgent need for care of the elderly, the vulnerable, those suffering from long-term conditions and those requiring end-of-life care. We continue to trot out, at every opportunity, that evidence-based clinical care is essential. Will the Minister consider the inclusion of guidance concerning the issues raised by this amendment as a duty of the national Commissioning Board? I beg to move.
Lord Alderdice
My Lords, I have a good deal of sympathy with the thoughts behind the amendment in the name of the noble Baroness, which she has put forward in her usual forceful but thoughtful way. However, there is difficulty in some areas.
The amendment does not state so clearly but it appears to assume that registered and non-registered are the same as trained and untrained. I also draw your Lordships’ attention to something to which I have returned fairly regularly for more than 10 years, the fact that psychotherapists and counsellors are not registered. There is no statutory registration, and yet there are areas of care—for example, in alcoholism and drug addiction, child and adolescent psychiatry and psychotherapy, the care of some very disturbed patients—where psychotherapists, particularly trained ones, and counsellors are extremely important.
Many of these are people with very long trainings, much longer than would be the case, for example, for a nurse. They are well trained people and they are well supervised but there is no register and therefore they would fall foul of a proposal like this. Were it the case that all the appropriate people were not only trained but registered and that therefore one knew that those who were not registered were not fully trained and supervised, I would have a great deal more sympathy with the detail of it.
I have difficulty not with the thought behind this amendment but with the fact that it seems to some extent to ignore some quite important groups. My fear is that if we move down this road, in the new world the pressure will be further against the employment of people who have had substantial psychological training. It has been made clear to me—this is one of the reasons why I use this opportunity—that some of those with a high level of training and a substantial length of experience are already feeling themselves marginalised because the larger professional groups that have registers are using that to strengthen up the stance of their members, which is entirely justifiable and entirely reasonable.
I would be much more reassured and much more able to support the amendment if either it was very clearly and simply referring to trained and registered nurses or unregistered people who are working in nursing, rather than the more general statement which is in the amendment, or—perhaps even better—if my noble friend the Minister was able to indicate that the Government were going to make progress on the registration on those other groups that need to be registered; that involves in particular, from my point of view, psychotherapists and counsellors. However, I do have a good deal of sympathy with what the noble Baroness says.
Baroness Murphy
We have been urged to hurry up today; we have all heard of speed dating so this is going to be speed debating.
When I first read the amendment of the noble Baroness, Lady Emerton, I did not agree with it on the basis that if you legislate for a minimum number of registered people or nurses, there is a tendency for people to adopt the lower level. I have looked at international evidence and I know that 10 years ago in California they mandated by specific legislation a minimum qualified nurse staffing level in surgical wards in intensive care. It has had a dramatic effect not only on the wards in those hospitals but on other hospitals in California where the standards have risen, mortality rates have fallen. There has been a very large study of 8,000 patients in California, and the other two comparative sites were in Pennsylvania and New Jersey; there is no doubt whatever that there has been a dramatic change and a very positive change, and most hospitals staff above the minimum. Those fears have not been founded.
The Dr Foster document that came out this week clearly showed the relationship that we know about internationally between poor staffing levels on wards for older people and mortality rates and care levels, and its relation to the morale of staff who work on those wards. I am, almost reluctantly, driven to accept the wisdom of the amendment of the noble Baroness, Lady Emerton, which I support.
Lord Walton of Detchant
My Lords, I, too, wish to support the principles underlying the amendment proposed by my noble friend Lady Emerton. However, one concern I have particularly relates to paragraph (4) of Amendment 139. Concerns have been expressed in many quarters over the past two years about the variable quality of the health care assistants employed in many of our hospitals. Some of them are absolutely excellent, but some of them—particularly in certain care homes—have had very little training and there is no process at the moment by which such care assistants can be registered; nor is there any formal requirement of a specific training or educational programme for these individuals. The time is approaching when there must be minimum standards of education and training laid down for such people. I trust that, in relation to what is said in paragraph (4), we can have an assurance from the Minister that this is an issue that the Government will consider.
As the noble Lord, Lord Alderdice, said, the same problems arise in relation to psychologists. Clinical psychologists have a formal training programme but not all psychotherapists, who do not hold a medical qualification—they do not have any such programme, although many of them make an outstanding contribution. The regulation of psychologists has been discussed for several years but little progress has been made. Can the Minister tell us whether that is still under consideration?
My final point relates to the fact that the regulation and registration of many of the other professions working in the NHS, in hospitals and the community—occupational therapists, physiotherapists and others—of course comes under the Health Professions Council. This is a Health and Social Care Bill. Only two years ago, a statutory authority for the registration and regulation of social workers was created, the General Social Care Council, and that body is in existence. I want to ask the Minister: is it proposed, as I believe is the case, that the Government are going to bring that body within the ambit of the Health Professions Council, or are they going to make it subject to the oversight of the council for regulatory excellence? That is a matter upon which the Committee needs to be reassured.
Lord MacKenzie of Culkein
My Lords, my name is down on this group of amendments. I very much agree with what the noble Baroness, Lady Murphy, said about the situation in California, because the importance of being attached to the mandated levels of staff is self-evident from that.
This issue has been around for as long as I can remember. It was around when I was practising a long time ago. It was around when as a leader of a predominantly nursing trade union I had discussions with health departments in the days when there was perhaps more famine than feast in nursing levels. However, Ministers and Secretaries of State never seem to want to make a real effort to engage with stakeholders on this difficult issue.
There have been a number of efforts over the years, a number of tools used to measure patient dependency to staffing levels and to skill mix ratios as an adjunct to professional judgment. Some of these were useful, some—particularly imports from abroad—were much less so. I can remember one of them, an import from the USA, probably at some considerable expense, which was known by the particularly ugly acronym of GRASP. That stood for, if I remember correctly, “the Grace Reynolds Application and Study of PETO”—I am never quite sure who or what “PETO” was. It sought to measure direct care activities and interventions, so that the correct nursing staff levels were always available. In reality, that tool caused uproar, because far too often it managed to show that wards were overstaffed when the reality was that staff were struggling.
There have been other, more useful, tools and systems, but some of them used up a lot of nursing time on paperwork, and more often than not, nurse managers had to retreat in the face of financial pressures. They have to retreat in the face of financial pressures because there is no mandate to defend a professional judgment in the face of these financial pressures. There is no agreed ratio of nurses to numbers of patients, and no agreed ratio of trained nurses to healthcare assistants.
That is the issue addressed in these amendments, and if the wording is defective, as the noble Lord, Lord Alderdice, is suggesting, I really want to concentrate on nursing here, and if need be we can bring that back at Report. We cannot escape the fact that the correct levels of staffing, with the correct skill mix ratios, are vital for the proper level of care, whether that is in acute wards, in primary care or in care homes.
Healthcare is complex, and I am not suggesting for one moment that the correct staffing level will in itself always guarantee good technical and good compassionate nursing care. However, it is a sine qua non that getting staffing and skill-mix ratios wrong means that it is difficult, if not impossible, for nurses and midwives to deliver anything like the high quality care that they want to deliver. We know that outcomes and mortality are affected, and I associate myself with the figures given by the noble Baroness, Lady Emerton.
Given the fears about financial pressures relating to future reductions in clinical posts—and certainly in relation to frontline nursing posts—it is no good for the Government to express expectations that quality is going to be improved or maintained without taking steps to ensure that their expectations are translated into reality and into practice. There will be more problems to come, as in the recent CQC report, as evidenced in the inquiries into the Mid Staffordshire NHS Foundation Trust, unless the steps proposed in these two amendments, or something like them, are taken on board.
We all want the best for patients and these amendments will go some of the way to ensuring that that will be the reality for the future. A mandated guarantee of safe staffing levels and ratios is essential for one principal reason and one principal reason only—patient safety and outcomes. These amendments have my wholehearted support and I look forward to the Minister’s response.
Baroness Finlay of Llandaff
My Lords, I added my name to these amendments, so eloquently introduced, with the evidence behind them informed by my noble friend Lady Emerton. It is important to state that these amendments may not be perfectly worded, as the noble Lord, Lord Alderdice, has pointed out, but the principle behind them has a lot of evidence to it. This is not about protection of a certain number of jobs; this is about the fact that you cannot substitute without having skills, competencies and attitudinal evaluation within a particular area.
There may be staff at different grades who will work in a complementary way and there is complementarity, but you cannot substitute. Physio assistants cannot be used to do what physiotherapists do. The same applies right across the piece. It is not just baseline qualifications, however; it is all the other layers as well. You do not want to be in an intensive care unit nursed by trained nurses who are not fully trained in those ventilators that are in use on that unit, who do not have all the additional skills as well and cannot communicate with patients in that situation and with their families.
As the noble Baroness, Lady Murphy, said, the evidence is overwhelming when you look at intensive care units but it goes right across the piece. I would like to cite briefly what we tried to do in Wales in my own discipline. We set minimum levels for the level of staff and the competencies for palliative care across the whole of Wales. It was not easy to do but it has worked and it has been a lever to drive up standards and drive up quality and to get some people to increase their training and go back to doing more training, without it incurring additional cost.
I recommend to the Minister that the Government look carefully at this amendment and think about some way of ensuring that patients across the whole of the UK will know that they will be looked after by people with the appropriate competencies and that, in times of financial stringency, we do not find that people revert to substitution as a misguided way of saving money which will be at the expense of quality if not at the expense of more than that.
Lord Newton of Braintree
My Lords, I wonder if I might come in on the side of the “sympathy but” brigade, which makes me a member of the same club as all those who have spoken before me. I have a lot of sympathy with the purpose of the amendment of the noble Baroness, Lady Emerton, but I worry about the rigidity of their terms in relation to specifying ratios and a maximum number of people that any nurse can deal with. It seems to me that this is a prescription for a degree of inflexibility that could end up closing wards for reasons that would not be sensible.
I am scarred by something that happened at Birmingham Children’s Hospital in my period as Minister for Health; it arose from a shortage of paediatric intensive care nurses. I do not know whether they are still in short supply but that is the kind of problem that would be exaggerated by this kind of rigidity. Nevertheless, the basic thrust of the amendment must be right.
There is only one other point I really want to make. As I understand it, my noble friend is likely to say that this is not something for the health Commissioning Board, but for the Care Quality Commission. I do not accept that. The Care Quality Commission will be doing snapshots, perhaps a bit more vigorously than it has done in the past, sometimes unannounced and so forth, but nevertheless more often than not there will be a snapshot of the situation at a particular time. I cannot see that the Commissioning Board can commission services without specifying something about the standard at which it expects that service to be provided, and that is relevant to this question of staffing levels in a general sense. So while I believe that it would be wrong to say this is all a matter for the Care Quality Commission, equally I do not believe it would be right to be as rigid as some parts of the amendments are at present.
Lord Patel
My Lords, I have my name to this amendment and I support it. I agree with all the comments that the noble Baroness, Lady Emerton, has made. I have only two brief comments. One is based on the evidence and the strength of that evidence. The noble Baroness, Lady Murphy, mentioned California, which passed a law based on the evidence. So what is the strength of this evidence? I have looked at the literature, particularly at meta-analysis of all the literature that is produced relating to staffing levels and patient outcomes, including mortality. Meta-analysis involves looking at all the published literature and its methodology, and only those publications with a methodology that is felt to be good are included in the meta-analysis. The meta-analysis clearly shows that if you look at mortality, infection rates, response to arrest and serious episodes, the staffing ratios of registered, trained nurses to patients—I agree with the noble Lord, Lord Alderdice, that training is important—are important in delivering good outcomes.
The second issue is related to whose responsibility it might be to produce the guidance. If it is not the national Commissioning Board, then it ought to be the commissioners of services—the commissioning groups—that should be asked to consider the staffing ratios of each and every department in the provider’s unit before making contracts with them.
Baroness Pitkeathley
My Lords, we shall have extensive debates about regulation at a later stage of the Bill, but it is important to remind the Committee that the ability to regulate healthcare assistants and quality assure them already exists for employers without the need for further statutory regulation. Perhaps in my role as chair of the Council for Healthcare Regulatory Excellence it might be convenient for the Committee and perhaps save the Minister a little time if I respond to the points made by the noble Lords, Lord Alderdice and Lord Walton of Detchant.
The Council for Healthcare Regulatory Excellence, in its new guise as the Professional Standards Authority, will be given the role of quality-assuring voluntary registers. Talks with psychotherapists are already under way and are going very well. The General Social Care Council is going to become part of the HPC, which will in turn change its name and be overseen by what will then become the Professional Standards Authority. That is just for the clarification of the Committee.
Baroness Howe of Idlicote
My Lords, I have listened to what has been said by all these expert professionals and I am very much persuaded in favour of something along the lines of this amendment. I think that one of the most worrying things from the public viewpoint has been the sheer number of concerns about nursing that we have had in the press—not least, I may say, about the mortality rates et cetera going up during weekend staffing. Quite clearly there is a need for better reorganisation.
I go back quite a long way, to the time when I sat on the Briggs committee on the future of the nursing profession, and will never forget one of the nurses saying to me at the time: “I’ve been nursing for”—however long it was; she had just got her qualification—“and now I’m going to have a rest”, which was roughly what she was up to. I had a great deal of sympathy with her from that viewpoint.
I hope the Minister will bear in mind—I am sure that he must be more than aware of it—that the number of cuts in nursing staff are considerable in the present plan. Something like 8.3 per cent of qualified nursing jobs are to be lost. As the Royal College of Nursing pointed out in its briefing, that is on top of something that was done no less than about 18 months ago and is more than 10 times the original figure. Axing up to a quarter or a third of nursing posts will undoubtedly have a deep and potentially dangerous impact on patient care. Of course the training of the nurses—the experts in the really expert places—is essential. The training and up-skilling of those nurses on the real needs of patients is vitally important, but so are the numbers.
Baroness Thornton
My Lords, I thank the noble Baroness, Lady Emerton, the noble Lord, Lord Patel, and my noble friend Lord MacKenzie and other noble Lords for bringing these important amendments into Committee. Amendments 138 and 139 make provision for the NHS Commissioning Board to mandate safe nursing staffing levels and the number of patients a registered nurse is designated to care for. At the risk of stating the absolutely obvious about safe and effective staffing levels and patient ratios, where there are insufficient nurses and too many patients allocated to care for, then the level of care that can be administered will be affected. These amendments are about patient safety and well-being and the noble Baroness, Lady Murphy, hit the nail on the head. In response to her remark about speeches and the length of speeches, my observation, which is shared on these Benches, is that the Cross-Benchers are not the problem. They have been making admirably short and speedy comments. I hope that mine will be also. Other noble Lords might think about that.
This is a current problem as well as a long-term problem. As my noble friend Lord MacKenzie said, it has been with us for a long time, but it is current at the moment. The Royal College of Nursing tells us that some NHS trusts are diluting the skill mix on wards and in other care environments. This dilution is when non-registered healthcare support workers are employed in the place of a registered nurse. Healthcare support workers are paid—as one might guess—significantly less than registered nurses due to their comparative lack of vocational qualifications, so are seen by employers as a cheaper option. We think that that potentially puts patient safety at risk. Recent research by the Nursing Times has highlighted a significant variation in skill mixes between different hospitals in different regions. It seems to us that when cost becomes the overriding factor at the expense of the quality of service, patient outcomes and even patient safety become endangered. The most high-profile recent example of this was the care failings of the Mid-Staffordshire NHS Trust. Sadly, due to a range of factors—including financial pressures—costs were cut, nursing staffing levels were reduced and patient safety declined. It is vital, therefore, that stakeholders, including the RCN, work together with the national Commissioning Board to set the appropriate staffing levels and standards. There is some evidence from the NHS Information Centre that there is an accumulating problem here. Between January and August, the decline in terms of full-time equivalents in nursing, midwifery and health visiting staff in England fell by 1.6 per cent, from 310,989 to 306,028. There is evidence of a growing problem.
I would like to ask the Minister about an exchange in October when the Secretary of State gave evidence to a Select Committee. He stated that he was not aware of the down-banding, which is the issue at stake here, relating to the ratio. He was not aware that this was a problem or that the Royal College of Nursing had raised it with him. The Director of Nursing at the Royal College of Nursing then gave evidence to the same Select Committee the following day. She claimed that the Secretary of State was aware of down-banding practices; that the Royal College of Nursing, among others, had drawn it to his attention; and that it was a matter of some concern. I ask the Minister whether the department is aware that this is a problem and what it is intending to do about it.
These Benches support the amendments, and we are keen that this issue should be addressed robustly.
Earl Howe
My Lords, these amendments from the noble Baroness, Lady Emerton, clearly reflect an important issue: that there should always be appropriately skilled staff available to meet a patient's healthcare needs. I appreciate the concern behind the amendments and recognise the central point of principle; nor am I in a position to contest the evidence that has been cited by various noble Lords. I do not wish to do that. Where I am afraid I part company with the noble Baroness is in her argument that it would be appropriate for the board to mandate staffing levels or skills mix within local services. Although she would probably expect me to say this, these decisions really are best made by local clinicians and managers on the ground.
As the noble Baroness will know, determining staff requirements is not an exact science. The number of staff on wards and ratios between nurses and patients, and between nurses and healthcare assistants, will vary according to such things as the individual needs of patients, their levels of acuity and dependency, the nature of the clinical care they require and the layout of the clinical area. It is right that nurse leaders, doctors and managers have the freedom to agree their own staff profiles. This gives them the flexibility to respond swiftly to changes in patient demand to ensure safety and quality. Rigid ratios really are not the way to do this.
In being responsive to different situations, providers of NHS services are expected to meet their obligations under the NHS constitution—which, incidentally, they do not have in California. This states that patients have the right to be treated with a professional standard of care by appropriately qualified and experienced staff. Suggested nursing staff ratios and the proportions of registered to unregistered staff are, of course, available from, for example, the Royal College of Nursing. But it would itself say that these should be used only as a guide and as the basis from which to ask questions about staffing if there are wide variations from the suggested norms. The amendments say the board’s duty is to establish or mandate “the ratio” as a legal requirement. That is simply not appropriate.
The other reason why I resist these amendments is that there is already a regulator overseeing these kinds of safety issues. All providers of regulated activities, including NHS providers, must be registered with the Care Quality Commission and meet the essential requirements around safety and quality. These include a requirement to take appropriate steps to ensure that, at all times, there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purpose of carrying on the regulated activity. That is an essential standard. Compliance with it is assessed as part of the registration process as well as ongoing monitoring. So it is not, as my noble friend Lord Newton suggested, just a question of a snapshot.
What follows from this is that it is unacceptable for organisations to persistently fail to ensure that there are enough skilled and competent staff to deliver the care required; and the Care Quality Commission can take independent action where an organisation is not taking appropriate steps to ensure that there are sufficient numbers of suitable staff at all times. If the CQC judges that an organisation has failed to comply with any of the requirements for registration, then that organisation has committed an offence. That is a very powerful sanction. So while I completely agree that it is important to monitor these issues carefully, I do not agree that it is necessary to create a role for the board in this regard. A role for the board would prevent the necessary flexibility in local decision-making, and interfere with the role of the Care Quality Commission, and indeed the future role of Health Education England. That would not be desirable.
Various questions were asked of me about other professional groups besides nurses. I happen to know that, in answer to the noble Lord, Lord Walton, clinical psychologists are already subject to mandatory registration with the Health Professions Council under the title of practitioner psychologists. As regards other groups, a number of points were raised about non-registered workers, including their education and training, and the Government’s position with regard to those matters. I suggest that we will come to those matters when we reach Part 7, and it is perhaps more appropriate that we tackle them at that point.
The noble Baroness, Lady Thornton, asked me whether the Department of Health was aware of the problem of down-banding. We are aware of concerns in this area from the Royal College of Nursing and others. We are of course committed to ensuring that safety is a priority across the NHS, and we are looking at the concerns within that context.
That is essentially the Government’s position. It is not that we are unsympathetic to the point of principle to which the noble Baroness has drawn attention, but we think that there are mechanisms already in place to address those issues, and that it is essentially a matter of local and clinical and managerial judgment.
Baroness Emerton
My Lords, I thank the noble Lords who have taken part in this debate, which has opened up many questions. I thank the Minister for his answer. There is one point that I would take issue with, which is the Care Quality Commission, because it is almost too late if the Care Quality Commission comes in when there is a failing. We are trying to prevent failings, and move forward. There is an issue there, in determining the ratios.
I agree that it is for the local commissioners to be involved in the planning, but it is such a complex issue that, as we move into the care quality groups, there is an issue in terms of their expertise in being able to do this. This is why I raise the issue, supported by the Royal College of Nursing, which is very close to the scene. I appreciate that that is where it should be, and perhaps the way forward is to make sure that there is training in the workforce planning issues. It is complex. As has already been said, it concerns not just nursing but also the other disciplines. The evidence that has been shown ought to be followed up, and I ask that the Minister take that away, so that we can look at the evidence. There is an article today in the nursing press demonstrating quite clearly that morbidity and mortality is reduced by a higher level of trained staff. On that basis, I beg leave to withdraw the amendment.
Lord Warner
Lord Warner
My Lords, I rise to speak to Amendments 146, 148 and 149 in my name, and in support of Amendment 151, which the noble Lord, Lord Patel will speak to. These amendments are about keeping in check the cost of running the biggest quango in the country and holding it to account, through published information on its financial and service performance in the main part of its job, which is commissioning NHS services either directly or through clinical commissioning groups. My Lords, I fully accept that it is not common to put budgetary control of new bodies in the Bill that creates them. However, it is not that common to create a new huge quango that will be spending in excess of £80 billion pounds a year. As someone with long experience of quangos, I am only too aware of their capacity to grow their management budgets and roles, often through mission creep and always with plausible reasons for doing so.
When these bodies have regional and local arms, as seems increasingly likely to be the case with the national Commissioning Board, their scope for consuming more taxpayers’ money is only increased. These bodies are notoriously difficult to control in terms of their running costs and their activities over time. The history of British public administration is littered with examples of Parliament setting up bodies and then finding a decade later that they have grown in size and cost much more to run than was originally intended. That is why every so often, under successive Governments, we have culls, mergers and budget cuts to these bodies, as we have seen recently, and it particularly occurs when their running costs clearly become disproportionate to what they are actually delivering.
I do not usually do prediction, but I can predict with absolute certainty that the national Commissioning Board will follow the trajectory I have outlined, whatever well-meaning assurances the Minister gives us and whatever honeyed words are uttered by its chairman and chief executive. Our job in Parliament is to frame the Bill so that they are more likely to deliver those assurances in practice. I suggest that from the outset the Bill should impose constraints on the board’s running costs, not only to ensure that the maximum amount of NHS budget goes on delivery of front-line services but also to thwart the growth of bureaucratic procedures and curb the temptation for the board to become excessively controlling of local initiatives. We are already hearing concerns from clinicians who will be undertaking commissioning about the board becoming too controlling and, some would say, too big for its boots.
It is to these ends that I have framed Amendments 146, 148 and 149. Amendment 146 makes it clear that the board’s annual business plan must clearly state its proposed operating costs. This will enable everyone to see what they are as a proportion of total expenditure and to make comparisons over time. Amendment 148 is the really meaty amendment in this trio because it tries to make clear that from the outset the board’s operating costs are going to be controlled. It proposes that its base operating costs should be 30 per cent lower than those incurred by the predecessor bodies whose functions will be transferred to the board.
The Government say they want to cut bureaucracy—here is an opportunity to show what they are made of. Figures would be audited under this amendment by the National Audit Office but the Secretary of State could change the discount rate of 30 per cent shown in this amendment if he published reasons for doing so. In subsequent years the board’s operating costs could not go up by more than a price increase in line with the consumer price index, unless authorised by the Secretary of State. I am sure there will be lots of arguments about these kinds of amendments being inappropriate in primary legislation and the inflexibility they will cause—well, they are intended to cause a bit of inflexibility—but if the board’s operating costs increased by just 1 per cent of the total expenditure over a number of years, that would be another £1 billion spent on administration rather than service delivery.
In the tight financial climate that all public services face, it is incumbent upon us as parliamentarians to reduce from the outset the risk of the board’s operating costs getting out of control, given the size and scale of its expenditure. Amendment 149 tries to complete the controls by requiring the board’s annual report to include a statement on the financial and service performance of its own commissioning and that of clinical commissioning groups collectively. We need to know on a regular basis what the board is delivering for a given amount of money. If my wording can be improved, I would be delighted, but this is too important and potentially expensive an issue to be brushed aside by vague assurances. I promise the Minister I shall be terrier-like on this particular issue.
Lord Beecham
My Lords, these amendments deal specifically with the national Commissioning Board, but of course the issue of costs and bureaucracy extends well beyond this particular creation of the Bill. In fact, the Bill establishes something like a new health solar system, at the centre of which of course will be the Secretary of State, a perhaps rather dimmer sun than we would like to see—some of us, at any rate—but nevertheless at the centre of a system in which he will circled by a veritable constellation of boards and bodies. Along with the national Commissioning Board and its wonderfully euphemistically named “field offices”, which, as we understand it, will effectively be local commissioning boards of some kind, there will be Monitor, the clinical commissioning groups, clinical senates, clinical networks, directors of public health embedded in local government, Public Health England with perhaps four regional hubs, and 25 local units of the Health Protection Agency. There will still be some special health authorities and of course NICE. All of this is a formidable complex of organisations and the risks to which my noble friend has referred of the escalating costs of bureaucracy are self-evident.
There are particular examples of that, and the noble Lord, Lord Warner, touched on the question of support for commissioning. The recent draft recommendations that the Government have produced about that raise concerns about how that will function and about the costs involved. My noble friend referred to the National Audit Office looking particularly at the national Commissioning Board, but it seems to me that the abolition of the Audit Commission is something that the Government and the public generally may come to regret. Its rather more extensive and comparative work in looking at the way the health service operates, and indeed the way local government operates, will not be entirely replicated by the National Audit Office, perhaps ultimately to the detriment of the service.
I want to look not just at the long-term future but at the immediate costs of the reorganisation envisaged by the Bill, because this week saw the publication of the aptly named Operating Framework for the NHS in England 2012-13, which contains a reference to a requirement for all primary care trusts to set aside 2 per cent of their recurrent funding for non-recurrent expenditure purposes. That has been the case for the last couple of years and that non-recurrent expenditure has been effectively devoted to the service itself. The current framework suggests that:
“The non-recurrent cost of organisational and system change … will need to be met from the 2 per cent”—
in effect, the cost of this Bill and its implementation. Is the Minister in a position to say how much of that 2 per cent, which is estimated to amount to some £3.4 billion, will be devoted to these non-recurrent costs of the system change? Can he also give an indication of the costs of working through the structures of the national Commissioning Board and other bodies that the amendments directly address?
I have sympathy with the aspirations of my noble friend in moving these amendments although, as he acknowledged, it would be somewhat unusual to place restrictions of this kind on the face of the Bill. It will be important to hear the Minister’s views about how the future finances can be managed.
Baroness Tonge
Before the noble Lord sits down, I would like to remind him and the House that several Committee sessions ago, I asked the Minister to find out how much it is going to cost to disband the primary care trusts and how much it will cost to set up the clinical commissioning groups. I think this is all very relevant in this question—that we have absolutely no idea at all how much the change in bureaucracy is going to cost.
Lord Beecham
The noble Baroness encapsulates in about two minutes the thrust of what I said in five; she is precisely right. There are clearly going to be costs—redundancy costs, relocation costs and property costs—which we have not yet seen clarified in the case of the Audit Commission which I mentioned despite the fact that the proposal has been around for 18 months. It would be enlightening if the Minister responded to my question and that of the noble Baroness.
Lord Mawhinney
I share the view expressed by the noble Lord, Lord Beecham, of extending appreciation to the noble Lord, Lord Warner, for raising this issue because it seems to me to be one of some significance. Those of us who strongly support my noble friend and what the Government are doing in establishing commissioning-led services do so because, first, we think patients are likely to get a better deal out of it than they get under the present bureaucratic system and, secondly, because we have concerns about the efficiencies of SHAs and PCTs; in my case, that relates particularly to the activities of the East of England Strategic Health Authority.
I hope my noble friend will not deem a probing amendment about cost to be antagonistic or inappropriate. My reaction to the amendment of the noble Lord, Lord Warner, in its present form is much the same as the reaction of the noble Lord, Lord Beecham. I like the idea, I think it is helpful to this Committee to have more information although I am not sure that this form is actually the way in which that should be done. I hope my noble friend will be as generous as he instinctively and normally is in giving us as much information about costs as he can. If 30 per cent seems very high to him, as it does to me given the realities of setting up a new system, perhaps he would indicate what savings he thinks might be achievable if there was a sufficiently stringent regime in place to control costs.
Earl Howe
My Lords, I recognise from everything the noble Lord, Lord Warner, said that these amendments have been proposed with the best of intentions. I start by making it clear that an independent, accountable, transparent and efficient NHS Commissioning Board is a key component of our proposals, so I hope I can reassure the Committee on these issues. In doing so, I hope my Lords will forgive me if I touch on similar ground to that covered during the debate on Schedule 1.
Let me first assure the Committee that we want to reduce the amount of NHS funding spent on back-office bureaucracy. Indeed, as we stated in last year’s White Paper, the NHS simply cannot continue to afford to support the costs of the existing administrative structure. Management costs in PCTs and SHAs more than doubled in the decade up to 2009-10, to £1.85 billion, increasing by more than £220 million in 2009-10 alone.
The noble Lord, Lord Warner, posed the question: what is different this time? Well, I believe a great deal will be different, and that is exactly why Clause 21 provides the Secretary of State with the power to set a limit on the use of resources by the board itself and by the board and CCGs together in relation to administrative matters. The meaning of what is to be considered as administrative matters will be defined through parliamentary regulations for the first time. The board has the power to set similar limits for individual CCGs. The changes that we are making will cut the overall cost of administration by one-third, and Clause 21 gives us the legislative basis to do that.
The Bill includes clear procedures around the publication of the board’s annual accounts, annual reports and performance assessments of CCGs; and I hope that I can provide reassurance in this area as well. The requirement to publish an annual report applies to all of the board’s functions, including its commissioning and financial functions and its performance assessments of clinical commissioning groups. The board is also under a separate duty to publish a report each year containing a summary of the results of each performance assessment. So I do think that the provisions in the Bill already address the concerns embodied in Amendments 146, 148 and 149.
On Amendment 151, which is grouped here, the board’s power in new Section 13X(b),
“to acquire and dispose of property”,
is necessary for the board to acquire any premises that it needs to accommodate itself for the purpose of carrying out its functions. Likewise, should it find itself with property surplus to its requirements, it would need to be able to divest itself of that property. The power simply replicates the power that PCTs currently have.
My noble friend Lady Tonge asked about the costs of transition. The modernisation programme will have one-off costs of between £1.2 billion and £1.3 billion, spread over the lifetime of this Parliament. It will reduce expenditure on administration by £1.5 billion a year from 2014-15 onwards. That is reducing the administrative spending across the system by one-third, and over this Parliament the modernisation will save £4.5 billion gross, or £3.2 billion to £3.3 billion net. So the up-front costs are expected to be more than recouped by the end of 2012-13. With those explanations, I hope that the noble Lord, Lord Warner, will be somewhat reassured. I am sure that I have not completely reassured him, but I hope that I have done so sufficiently for him to withdraw his amendment.
Lord Warner
Can the noble Earl explain to us, in writing, the comparison between the current costs of the bodies carrying out functions that are going to be transferred to the board, and what the Government’s current estimate is of the first year’s fully fledged activities of the board in discharging those functions? It would be very helpful and certainly more convincing to me and, I suspect, other Members of this House if we could see the comparative figures just for the board. I am not asking him to go into Monitor or CQC; I am asking for the figures just for the board taking on the functions that it will be taking on.
Secondly, his response did not really deal with the issue of how you keep these costs under control as the years go by. Is he relying only on the Secretary of State being eagle-eyed and briefed by his civil servants to do it, or do the Government have in mind an uprating mechanism that would curb unnecessary growth in this area?
Earl Howe
This is one area where the Secretary of State has a direct interest to ensure that administrative costs are kept low. In answer to the noble Lord’s first question, of course I would be happy to write. There is already a great deal in the impact assessment, to which I would direct noble Lords’ attention. However, I shall be happy to write an individual letter to him and copy it to noble Lords in answer to the questions that he posed.
Lord Beecham
When the Minister writes to us about the risk register, would he indicate whether this topic of the cost will be referred to?
Lord Beecham
Does the list of issues that are covered in the risk register include the question of the costs of transition and reorganisation?
Baroness Bakewell
“( ) how effectively the NHS services meet the needs of the older population”
Baroness Bakewell
My Lords, I rise to speak to Amendment 150B and 320ZB. As with the others that I have proposed to this Bill, my amendments are all associated with one running theme: meeting the needs of older people. First, I propose that the annual report of the NHS Commissioning Board should be measured by how effectively it meets the needs of older people. Thus, I am separating out a particular cohort of people for whom particular attention needs to be made. Why do I do that? It must surely be obvious every day that we read the papers and every occasion when stories run in the media of inappropriate treatment of older people in hospitals, care homes and nursing homes. They are not getting the treatment that they should and the public know this and care about it.
My major amendment stands aside from the many other amendments to this Bill so far that have dealt with new structures, responsibilities, commissioning and safeguards. The purpose of this amendment is to test views on the creation of a role of commissioner for older people. There are many reasons why such a post becomes increasingly pressing. You may well be familiar with them. First, there are the demographics. The statistics are familiar and frightening. There are 10 million people now over 65 in the UK. By 2034, 23 per cent of the population will be over 65. Of them, 3.5 million will be over 85. Such proportions of the population will constitute by far the highest percentage of users of healthcare and specifically of social care in this country. Old age is not a condition you cure. We are not hoping that old people will get better. Scientific advances will not find miracle cures that reduce the incidence of old age. Medical science will paradoxically be increasing the numbers in this cohort. This change constitutes one of the largest challenges that developed societies have to face. The situation is the same in Japan, America and Canada. This is where the human race is going. I feel that there is little appreciation of the scale of what it is to meet those needs.
All the detail and complexity of this Bill and the debates that we are having about it concern the replacement of one complex structure of the NHS with another. We have been debating in detail the network of relationships between the NHS Commissioning Board, the CCGs, HealthWatch England, the CQC, the local HealthWatch organisations and the role of Monitor. All this abundance of well intended organisational ways of meeting the needs of patients does not take on the bigger picture facing the future.
The old are a different cohort. We will all one day be patients. Before that, as people age they become needful of different provisions of social care. Social care is in the title of this Bill. They will need meals on wheels, transport provision, adapted housing and all the things that provide for a living that, while not being an illness, is not as independent as it once was.
Such a commissioner for the old already exists. Such an independent statutory body with an overview of all people aged 60 and over was created in Wales in 2006. It exists to promote the interests of older people and improve their lives. Among the crucial things its first commissioner, Ruth Marks, does is to promote awareness and challenge age discrimination. She also offers ongoing assistance for older people who contact her with problems. She is often dealing with complex issues that involve all the various public bodies and that individuals cannot cope with. In the commissioner, they have one person that they can turn to to help them through this web of public bodies. This unique help, individual to individual, through the complex world of health and social care provision, seems to me to be of overriding merit and appropriate in the discussion of this Bill. Northern Ireland also has such a figure, known as the Older People’s Advocate, currently in the person of Dame Joan Harbison. We already have a Children’s Commissioner, created by the Children Act 2004. This could act as a template for a commissioner for the old—to hear and then promote the views and concerns of individuals and to involve them in the discharge of the health service function.
In 2008, I was invited by the Government Equalities Office initially to be a champion, which I thought was bit aggressive; then I was invited to be an ambassador, which sounded rather diplomatic; and I volunteered to be a voice. Not only because I am a broadcaster, I thought that people want a voice and they know what it means. When Harriet Harman asked me to do this, she nodded in my direction and said that of course it was uncharted waters. Indeed it was. Neither of us realised what the reaction would be. I was inundated with complaints of every conceivable kind. Health sometimes, hospitals often, pensions frequently, but also things like the closing of public loos or ex-pats in Spain worrying about their heating allowance.
Some of them were very strange requests indeed—how would I get people’s savings out of the Icelandic financial system? I had to respond by sorting out the networks of support that exist—Citizens Advice Bureaux, Age UK, MPs and local authorities. It was a rigmarole of roundabout ways in which people could have a satisfactory answer to their personal problem.
Time has moved on. My role was a part-time, amateur job. We are now into the serious matter of considering the old. Old age now has a high profile. The newspapers are on board. The media follow such stories. We owe to them the revelation of the many scandals that exist. Architects are concerned and interested in designing lifelong homes. The co-housing movement is on the go. Martha Lane Fox is campaigning to get the old on the internet. There is a multiplicity of age-related websites. You can adopt a granny. You can adopt an old person’s garden. There are thousands of such websites but none of them answer the single requirement to have one person who is on your side. The Liberal Democrat conference in September debated such a policy motion, calling for a commissioner for the old. This is an idea whose time has come. I beg to move.
Baroness Finlay of Llandaff
My Lords, I apologise to the House for missing the noble Baroness, Lady Bakewell’s opening remarks. I simply point out that we have an Older People’s Commissioner for Wales, Ruth Marks. In March 2010 she led an inquiry into care in hospitals, called Dignified Care? By November this year, she was satisfied that the 12 recommendations from its in-depth and hard-hitting report had been met. She is now using her powers to drive forward additional adult protection legislation and a nursing home review. It is only with legal powers and leadership that we can really turn care round. I believe that such a post is more than cost-effective. I really recommend that the Government look hard at having an older people’s commissioner for England because we know that there is a big problem there. Such a post will more than save its cost.
Baroness Jolly
My Lords, I support the noble Baroness, Lady Bakewell, in her plea for a commissioner for older people. As she indicated, it has been a long-standing commitment of our party, which was put into party policy last September. Prior to the general election, we had a spokesman in the other place on older people’s issues, and there was a general election manifesto commitment. So we were right there and, as the noble Baroness has indicated, she has form in this regard too.
The Welsh commissioner for older people actually started life in your Lordships’ House before going to the other place, and the appointment was made in 2008. I have talked to Welsh colleagues over the last week and they have been really enthusiastic about the work that has been done and the progress made in Wales. So if it can happen in Wales, maybe we need to think about England too. The Welsh ambassador has similar responsibilities to those in the noble Baroness’s amendment. The role also has powers of investigation, entry and interview. I wish that we could be more ambitious with this older persons’ commissioner and extend the scope. As the noble Baroness said, there are so many issues that worry old people. Health and social care are clearly at the top of the list, but there are also pensions, housing, transport, leisure, even banking. Clearly there is a need for some sort of signposting centre for old people which somebody has to grasp and make it work.
The Government start a consultation on social care in the new year, and I know that my honourable friend Paul Burstow, the Minister for social care, is also keen on this particular issue, so I am really pleased to support this. Could my noble friend the Minister clarify whether an older person’s commissioner, or something similar, would be on the list of possibles, probables or definites for the next Bill?
Lord Walton of Detchant
My Lords, it will not surprise your Lordships to learn that this is an issue in which I take an increasing personal interest. Having said that, I should add that there are islands of great excellence in relation to studies of the care of the elderly in the UK. Professor Linda Partridge is doing wonderful work in University College Hospital, and I have an avuncular interest in the important Institute for Ageing and Health, chaired by Professor Tom Kirkwood, in Newcastle. These are islands in which the care of the elderly and the research into ageing processes is being carried forward. The problem is far wider. The problem is with standards of care in the community, in care homes and in our hospitals, where it is perfectly clear that standards have become very uneven. We have heard all too many stories in the press about inadequate care. For this reason, I believe that it is absolutely right to follow up the proposal made by the noble Baroness, Lady Bakewell. I think that England needs a commissioner. There is even a possible case to be made out for establishing a clinical network relating to the care of the elderly. Basically, most clinical networks have been disease-orientated, related to specific diseases, but this problem is now one of such increasing importance in the country at large that the Government ought to support establishing a commissioner and a clinical network for the care of the elderly.
Baroness Pitkeathley
My Lords, in rising to speak in strong support of the amendments moved by my noble friend, I want to remind the Committee of the large number of older people who are not in receipt of health and social care services but are actually providing them. Of course, I refer to the increasing numbers of very elderly carers. Although the peak age for caring is still 45 to about 60, we are increasingly looking at elderly spouses looking after their elderly spouse, or much older parents looking after a child with special needs who is living very much longer than anyone would have expected hitherto. So the services that we think about—housing, transport, care services—must be tailored to the needs of these older carers too.
Of course we also have economic reasons for doing so, because many people have become poor in their old age by virtue of the fact that they provided care, and they are often in poor health as a direct result of their caring responsibilities. I remind your Lordships that these are the people who are most affected at the moment by cuts in local authority services and the voluntary sector. I hope that the Minister will be able to give an assurance that the needs of older carers will also be included in government priorities.
Lord Owen
My Lords, I had not expected to speak but I thought that the case put forward by the noble Baroness, Lady Bakewell, was extremely convincing, particularly this issue that age is not an illness but a reality, and above all a numerical reality.
Listening to the arguments, I would put just one other thought. Commissioners can sometimes be listened to and effective in government. This largely depends on the structure of government, and in particular probably either the personality of the Prime Minister or the person who is leading on health. We used to have Health and Social Security under one Secretary of State, which the noble Lord will remember very well, since he was Barbara Castle’s private secretary. He may remember too that a decision was taken in 1974 to make a Minister for the Disabled. It was scoffed at by many people within government, but there is very little doubt, looking back at the record of having successive junior Ministers responsible for disablement, that there has been a formidable achievement both in legislative activity and in activity across the board. The former Prime Minister, John Major, was at one time a junior Minister for disablement, and in fact in many ways he won his political spurs in that position.
It is a constant reminder to the Cabinet sub-committees that deal with issues like this that there is a voice there that speaks up and represents it and that is close to the source of power and decision-making. A commissioner often does not have either that access or that power. There is very little doubt that we hear and see all these problems of the aged, or that these problems are increasing. Incidentally, I think that the amendment is well worth while on its merits in relation to a National Health Service commission, but that is, as everybody has admitted, only one, relatively small issue.
There is a much deeper political issue which the present politicians are not able to grapple with. If we look at the response to the old people’s heating allowance, there is a growing feeling among a substantial number of people who do not need this money that, if we are going to be serious about grappling with the problem of the aged, we have to be serious about the whole question of the now very considerable cumulative sum that is pushed to elderly people purely and simply because of their age. I enjoy my free travel pass greatly and am wholly in favour of it, but I do not need it. In fact, I ought to be walking more frequently rather than taking the Underground or the bus. I think that we need to have a fresh look at this. The initiative on these issues will probably come from the body politic. It would be much easier to persuade people that the time has come to be more selective on some of these issues if it were ensured that the money saved was earmarked, for a while, specifically for projects for the elderly.
I would not want to endorse the proposition of a commissioner at this stage. I would be more attracted to the idea of a junior Minister for the elderly who is in government and can attend the housing, welfare, health, social care and all the other Cabinet sub-committees where the really crucial decisions are taken in terms of legislation and, often, finance.
Baroness Wall of New Barnet
My Lords, I, too, support Amendment 327ZB, tabled by the noble Baroness, Lady Bakewell, and her earlier amendment. However, I want to make this point. I would not want the people at the sharp end—the nurses and healthcare assistants dealing with patients—to feel that this in some way exonerates them from taking the care that they should. We need to be sure that Amendment 327ZB, which describes the activities that the commissioner for older people should cover, is not an escape route for anybody who is face to face with patients, suggesting that they do not need to take responsibility. I hope that the amendment reinforces this point, but we need to be sure that this is not an opportunity for these people to claim that there is someone else who will look after their patients.
Baroness Wheeler
My Lords, I am pleased to speak in support of Amendment 150B from my noble friend Lady Bakewell, requiring the annual report of the NHS Commissioning Board to include an assessment of how effectively it meets the needs of the older population. We know that nearly two-thirds of NHS patients receiving consultant-led care and 60 per cent of people admitted to hospital are aged 65 and over, so it is highly appropriate that this requirement be added in the Bill to the specific items that the board must report on to Parliament and the Secretary of State.
Under the umbrella of this amendment on the needs of older people, I would like reassurances from the Government on how they intend to improve commissioning for essential community and prevention services for older people. It is widely recognised that these are currently undercommissioned, specifically falls prevention, audiology and continence. In terms of community services, I stress the inclusion of older people in residential care. Age UK research shows that nearly 400,000 people living in care homes currently face real difficulty in accessing GP and primary care services.
We know that undercommissioning of community and prevention services is widespread and that the healthcare system needs to be much more effective in commissioning primary health and preventive services. For example, Age UK estimates that falls prevention services could save the NHS £2.3 billion per year in preventing hip fractures alone. Falls represent the most frequent and serious type of accident in the over-65s and are a serious cause of morbidity and mortality. A recent national clinical audit to investigate the organisation of services for patients who have fallen and fractured their hip, wrist, arm, pelvis or spine showed how variable commissioning of falls services is, rarely providing a co-ordinated falls and fractures strategy. Few GPs assess the risk of falling among older patients, and arrangements in hospitals for case finding and secondary prevention are inadequate. Half of all patients suffering a hip fracture never regain their former level of function and mobility. How is this situation to be addressed in future commissioning arrangements?
On hearing, the estimates are that up to 6 million people in the UK would benefit from a hearing aid but that only 2 million have one. Waiting times for hearing aids continue to be a major problem. In some areas people can wait up to one to two years between their GP referral and having their first hearing aid fitted or for a digital upgrade of their hearing aid. Audiology is excluded from the general 18-week NHS waiting time target. How will the current shortcomings in commissioning for audiology services be addressed?
Finally, effective and dignified continence care for older people is an essential service, particularly for those whose long-term conditions, such as cancer, stroke, spinal cord injury, spina bifida, Parkinson’s and other neurological conditions, require continence management to be integrated into their care and treatment pathways. Commissioning for managing these conditions in the home, in residential care and in hospitals, and for general continence services, requires specialist knowledge and understanding of the different needs of continence care in primary and secondary care settings. The system is so often geared towards containment through pads and catheters rather than assessments or treatments of incontinence, or recognition, for example, that patients in hospital using catheters or other products over a short term will need reassessment and probably different products and support to cope with day-to-day life at home or in residential care. As a trustee of our local carers’ support organisation in Elmbridge, I know that effective support for carers who are managing a person’s continence issues can often make the difference between whether that person can be supported and cared for at home or has to go into residential care. Is the Minister confident that clinical commissioning consortia will have the expertise and the will to prioritise much-needed improvements in effective continence care?
My noble friend Lady Bakewell’s separate amendment calls for a commissioner for older people, and I hope the Minister will take this away and give the proposal serious consideration. In particular, we need to see what we can learn from similar posts in Wales and Northern Ireland, and the observations of the noble Baroness, Lady Finlay, are very helpful on this. The intention behind the proposal is to provide a cross-government overview and strategy on the needs of older people. It is why my own party has appointed a shadow Minister for care of older people. We also know that making progress on improving NHS care and treatment of older people, addressing the future funding of social care through Dilnot and other key measures all require champions and leadership at the highest level of government, and I look forward to the Minister’s—we hope sympathetic—response.
Earl Howe
My Lords, let me begin by saying that I am sympathetic to these amendments, moved with customary persuasiveness by the noble Baroness, Lady Bakewell. I completely understand what has prompted them. The improvement of services for older people is vitally important and I can reassure the noble Baroness that this will continue to be a priority for the Government.
I have written to the noble Baroness following the debate in Committee on 7 November on her Amendment 18B, explaining how the NHS outcomes framework will hold the NHS to account for improving the effectiveness of care for older people. It will act as a catalyst for driving quality improvement and outcome measurement throughout the NHS by encouraging a change in culture and in behaviour, including a renewed focus on tackling inequalities in outcomes. There may well also be specific objectives in the Secretary of State’s mandate to the board in relation to services to be provided to older people.
Now, the real question posed by the noble Baroness’s amendments is how can we improve older people’s care and how can we ensure that services are joined up? The UK Advisory Forum on Ageing, co-chaired by my honourable friend the Minister of State for Care Services, Paul Burstow, and the Minister of State for Pensions, Steve Webb, already provides advice across government on the additional steps that the Government and their partners need to take to improve well-being and independence in later life. We already have a champion for older people’s health, and that is Professor David Oliver, the national clinical director for older people. In order to ensure quality outcomes for older people during the transition to the board and CCGs, Professor Oliver and relevant bodies and partners will function as a motor for change to encourage best practice locally and to promote the messages around QIPP—Quality, Innovation, Productivity and Prevention —and long-term conditions.
Professor Oliver’s overall remit is to promote better care of older people across the NHS and social services, and to provide clinical leadership for cross-government work on older people. He is doing good work. Nor, as I say, is he working in isolation. Regular meetings take place between officials, Professor Oliver and organisations including Age UK and WRVS. Recent examples of co-operation include Age UK’s active participation in reference groups chaired by the national clinical director and the director of social care leadership and performance on the draft social care and public health outcomes frameworks.
Baroness Bakewell
I thank the Minister for that detailed response to the amendment. I also thank my noble friends for drawing attention to what is going on in Wales and in Newcastle, for mentioning the issue of older carers, and for discussing the nature of this particular group. Everyone in the population, we hope, will one day belong to that group. It is not an exclusive cohort.
I think that there is a small point of philosophical difference here. This forest of a Bill bristles with well-meaning organisations that are listening, speaking, consulting each other and offering clinical leadership. It is dense with such things. What it does not have is the single sapling of a commissioner standing alone in the desert and speaking for us, not us talking about them. To that extent, I think that the debate has been particularly fruitful. I hope to continue discussions with noble Lords, and with that in mind, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (The Countess of Mar)
Before I call Amendment 152, I have to tell noble Lords that if Amendment 152 is agreed to, I cannot call Amendment 153, in the name of the noble Baroness, Lady Williams of Crosby.
Amendment 152
Lord Hunt of Kings Heath
“(1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) about the exercise of any functions.
(2) For the purpose of subsection (1) the bodies are—
(a) NHS Commissioning Board(b) clinical Commissioning Groups”
Lord Hunt of Kings Heath
My Lords, that is exactly the point I was going to raise. Originally my Amendment 152 was grouped with Amendment 153 and other groups. For some reason I have been divorced by the Liberal Democrats, who are going to have a second debate on the same issue. This is a complete waste of time. I think that the best thing is for me not to move my amendment now, but I will speak to it in the next group.
Baroness Williams of Crosby
My Lords, may I offer a quick explanation to the noble Lord, Lord Hunt, and the Members of the Committee, as to why we have asked for these amendments to be separated? I am very conscious, as I sit in the Committee, of what is often said on the “Today” programme, when somebody is asked the question “How would you improve the health of the entire population”, and the interlocutor says “Please answer briefly”, which means “You have four seconds”. I shall be as quick as possible.
This amendment, along with Amendment 152—which we are not debating at present, as I am merely explaining why we have separated them—is deeply significant. This will emerge much more clearly when my noble friend Lord Marks of Henley-on-Thames speaks in a few moments’ time, but it is important because it deals with the fact that the earlier Amendment 152—I have to refer to it to make any sense of my current remarks—would actually remove all powers of intervention in the current Bill. The powers of intervention associated with the Secretary of State are directly related to the failure of the board or of the CCGs.
The deletion that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, have moved, would take the whole of the failure regime out of this Bill. It would therefore be directly in conflict with one of the principles of the Bill, which is the principle of decentralisation. It moves back to the Secretary of State only the direct intervention with the board and the CCGs. It is well known now, from the long and explanatory speeches around this whole debate, that the Secretary of State passionately believes that decentralisation is one of the major principles of the Bill.
Therefore, my noble friend will explain why Amendment 153 is not on the same lines at all as Amendment 152. It is a different argument: there should be the right of intervention by the Secretary of State, but it should be limited in a way that saves the decentralisation principle. Why does it do that? It does that by referring back to the Secretary of State’s overall responsibilities for the health service as a whole—which we all accept as a crucial element of the constitutional discussions now going on—as distinct from a direct intervention at the level of the board and the clinical commissioning groups, which would be to restore the very central principle that the Bill has rejected. This is not a deceptive amendment simply about some powers; it is in fact to make it clear that there is a distinction between decentralised responsibilities by the board and the CCGs and the essential, ultimate right—expressed, for example, in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, at an earlier stage—of the Secretary of State to have responsibility for a comprehensive health service while not intervening in a detailed way in the clinical commissioning groups or the Commissioning Board. I will now pass the further part of the argument on to my noble friend Lord Marks of Henley-on-Thames. I beg to move.
Lord Marks of Henley-on-Thames
My Lords, this is a most significant area of the Bill, as my noble friend Lady Williams of Crosby has said. This group concerns the regime whereby, in the event of a significant failure, the Secretary of State can intervene in the board’s exercise of its functions. That is in Amendment 153. The board in its turn can intervene in the exercise by a clinical commissioning group of its functions. That is the purpose of Amendments 220ZAA and 220ZAB. I would add Amendment 220ZA, which is not currently in the list of the group, which simply amends the title of the proposed new Section 14Z19. Also in the group is Amendment 277, which removes the restriction on the Secretary of State’s intervening where there has been a significant failure by Monitor to act in relation to a particular case.
May I first address the question of the Secretary of State’s intervention in the board’s exercise of its functions? When we debated at some length Clauses 1 and 4 and the proposed new Section 13F, noble Lords were clear that whatever may be the outcome of those discussions and debates on those clauses, this House must ensure that the Secretary of State will have powers and functions that are up to the job of enabling him or her to carry out those overarching duties. Those duties involve him or her in carrying ultimate responsibility and accountability to Parliament and in the courts for the NHS. We should remind ourselves that my noble friend the Minister and my honourable friend Mr Paul Burstow have repeatedly assured Parliament that the Government are determined to make it clear that the Secretary of State will remain responsible and accountable for the NHS in Parliament and at law.
Lord Owen
My Lords, I have followed with great interest the career of the noble Lord who has just spoken. He has now reached great eminence in his profession, and he has succinctly explained exactly what this Bill needs. This is by far the most important amendment that we have had before us. I welcome both of its parameters. It would be a terrible failure if we did not pass such a Bill. It is inconceivable that a person could even call himself Secretary of State for Health and not have this power. It would be impossible for him to stand before the House of Commons, where he is most likely to be holding that great office, and be unable to say if he felt that there had been a failure to carry out the responsibilities with which he is charged. How could he hold the office? It would effectively be a resignation issue on an important matter if he did not have that power and was not able to exercise it, and not to give him that power is effectively to strip the Secretary of State of his substance and his standing. This amendment is therefore utterly crucial. I personally think the wording is correct.
I would just like to deal with this word “significant”. Until a few weeks ago I would have queried whether or not the word “significant” would be adequate. However, if you look at the legislation that this House has already examined in great detail and which has now been passed into law, namely the European Union Act 2011, which was given very close scrutiny, there is an issue—I think it is in Article 48—that I suspect we will be debating quite soon. This allows the Government, in circumstances in which they think a change has been made to the EU legislation that is not significant, to give up having a referendum. It has already been indicated to the rest of the eurozone countries that there are some circumstances under which the British Government would consider a eurozone amendment predominantly the concern of the eurozone and not significant, and therefore it would be able to be passed with unanimity and not need a referendum in the UK. So this word “significant” has already been crawled over with a great deal of care by a large number of people, not least the Eurosceptic element within the Conservative Party.
It has also been made clear that that would be subject to judicial review, which might be another safeguard that you would have to see. I think it is implicit in the wording—the noble Lord would know the legal consequences better than I—but I personally could live with the “significant” because there is an important issue here that if decentralisation is to be effective, there must not be micromanagement. I looked at putting down an amendment using the word “micromanagement” and then I came to the conclusion that micromanagement is in the eye of the beholder; it is not really a word that we could carry through in legislation. I think the combination of wording that the noble Baroness has used is the correct one: you have got the right to intervene but it is qualified by the fact it has to be significant, and it might be that that significance could be challenged. I very much hope that, having given it due thought, the Government will rise today to tell us that it is going to be accepted. If they do not do so, I hope it is pushed to a Division, whether that is now in Committee or on Report is up to the noble Baroness, Lady Williams, whose judgment I always accept—almost always.
Lord Hunt of Kings Heath
My Lords, I remain very puzzled by what the noble Baroness, Lady Williams, said. There is no disagreement at all, it seems to me. My original amendment and the amendments of the noble Lords on the Liberal Democrat Benches are entirely about the whole question of what is an appropriate intervention by the Secretary of State. Perhaps the noble Earl is going to accept this amendment and the Liberal Democrats want the glory of having it accepted—who knows? I agree entirely with the analysis of the noble Lord, Lord Marks, that the powers of the Secretary of State have to be sufficient to enable the Secretary of State to discharge his or her accountability to Parliament and to be responsible for the overall performance of the National Health Service. I agree with him that the current intervention powers are too weak in terms of the threshold and I agree that they are set too high. I also agree with his analysis about the relationship between the board and clinical commissioning groups.
It is very interesting as this Bill has progressed—somewhat slowly but none the less some progress has been made—that we have seen a number of interventions by the Secretary of State into the affairs of the National Health Service during that time. They have included coming down very hard on primary care trusts that were making people wait longer on the waiting list, although within the 18-week target period in order to save money, and on NHS trusts that, once a patient missed the 18-week target, let them wait many more months. I make no complaint about those interventions. I believe the Secretary of State was entirely justified. One of the questions is, how would that happen under this legislation?
When we debated this last week, the noble Earl, Lord Howe, essentially said that provision could be made in the mandate set for the board by the Secretary of State. That in itself risks the mandate becoming prescriptive and potentially another way to micromanage the National Health Service as one thing after another is added on. He was not very keen on my noble friend Lord Warner’s suggestion that the mandate be restricted to, I think, five objectives and five desirable objectives. I suspect that when we see the mandate it is going to be very detailed because the Secretary of State will seek to cover himself so that when blame comes it will fall entirely on the NHS Commissioning Board.
It may be that in writing the mandate there are some events or issues that could not be anticipated in advance. However, in the circumstances that I have mentioned, the noble Earl, Lord Howe, could say, “Well, you have the intervention powers contained in Section 13Z1 on page 23”. As the noble Lords, Lord Owen and Lord Marks, have suggested, the problem is that the intervention has to be based on a failure,
“properly to discharge any of its functions, and the failure is significant”.
The intervention is based on the consideration of the Secretary of State. The Secretary of State will be properly advised by his officials and possibly by the Government’s law officers. However, what if the NHS Commissioning Board rejects the Secretary of State’s view? What if clinical commissioning groups which had contained costs took the view that, in the case of non-urgent treatments, it was legitimate to make patients wait a few weeks if they were none the less treated within the overall 18-week target? Looking at the robust evidence given by the chair of the NHS Commissioning Board to the Health Select Committee, which scrutinised his appointment, it is just possible that the NHS Commissioning Board might tell the Secretary of State to back off. I do not think that is right. I am firmly on the side of Mr Lansley, since he is the Secretary of State and firmly answerable to Parliament. In the way that the Bill is currently constructed, I worry that the Secretary of State will be inhibited from necessary interventions.
Lord Newton of Braintree
My Lords, I wonder whether I could chip in, starting with an apology. As a result of the apparent abandonment of the previous set of amendments, I did not realise that this one had started and, therefore, have not followed everything that has been said. My remarks will be correspondingly brief. However, I have heard enough to know that I want to declare my general broad sympathy with the thrust of what the noble Baroness, Lady Williams, proposes and to link myself with the remarks that have just been made by the noble Lord, Lord Hunt, and not least those that were made while I was in the Chamber by the noble Lord, Lord Owen. They all echo something that I, and my noble friend Lord Mawhinney, have tried to say on a number of previous occasions—that there is beginning to be an absence of realism in the Government’s attitude to some of these matters. As I have said several times—and as has been said in other ways by other Peers during this debate—at the end of the day the House of Commons will not accept a Secretary of State who says, “Nothing to do with me, guv”, when something has clearly gone seriously wrong.
If the Secretary of State judges that something is happening that is not in the best interests of the health service, I do not see how he can fail to do something about it; and if he does not have a clear power to do something, I can tell you what will happen. The Government will scratch around in every corner of the Act until they find something that enables them to do something, because the Secretary of State will not be able to tell the House of Commons that he can do nothing. There is a real danger that the Government will immolate themselves, in this House at least, on the basis of an absurd proposition that the Secretary of State can somehow stand back and wash his hands of things when they are going wrong. I hope that this amendment will not be pressed to a Division tonight, because I do not think it would be sensible. We need to reflect on what the Minister says, but he needs to reflect on what is being said to him and to be prepared to come back with something different on Report.
Lord Warner
My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State’s mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.
The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.
Lord Hunt of Kings Heath
Perhaps I could try to answer my noble friend. There are two reasons why this is important. First, there is a real risk that the mandate will become so large and extensive to cover the Secretary of State—who wishes to transfer responsibility to the national Commissioning Board—that we will end up with a real fudge about who is actually responsible. Secondly, there are circumstances. Until last week, I do not think that many people knew that once a trust had allowed its waiting times to go beyond 18 weeks, there was a problem with some of them taking their eye off the ball. If a patient missed the target, often he might have to wait for weeks. It is quite possible that even if the mandate is as extensive as I suggest it might be, there will be circumstances in which the Secretary of State may need to intervene. It is not the case of having time to rewrite or edit the mandate, or look at the standing rules. The Secretary of State may need to intervene on the day that an issue arises. All that I want to do—and I suspect the noble Lord, Lord Marks, also wants this—is to make sure that the Secretary of State is able to intervene in circumstances that we cannot necessarily anticipate but, knowing the health service, we suspect will arise from time to time.
Lord Mawhinney
My Lords, the contributions of the noble Lords, Lord Marks and Lord Owen, demonstrate again why this Chamber is frequently held in the highest regard for the strength, clarity and coherence of the arguments that are advanced within it. I am not going to repeat what they said because I agreed with both of them. My noble friend Lord Newton and I are in danger of becoming Tweedledum and Tweedledee when it comes to trying to persuade the Government that there is a real world out there with around £130 billion worth of responsibility. Lots and lots of people are doing their best, but human beings have the inescapable ability of getting things wrong from time to time, no matter how good their intentions.
I have to say to the noble Lord, Lord Warner, that one of the interesting things about this Bill is that it talks about a mandate. I think of my time in Richmond House when something had gone seriously wrong and civil servants came in to say, “Well, there’s a mandate, Minister,” and I would say, “Isn’t that fantastic?”.
Let us get down to the reality of what we are going to do about this latest mishap. That is not an argument for not having a mandate, it is an argument for not putting all your eggs in one basket, even if this particular basket is as widely constructed as the noble Lord, Lord Warner, thinks. I have not resiled from what I have previously said in this Committee in that the Secretary of State is responsible. He has to be responsible to Parliament, he has to be responsible in law, and in reality he has to be responsible in the health service. I am relaxed about the Government putting in place arrangements which they believe—it will all have to be tested over the next few years—will provide a more coherent way of delivering a better and more efficient service than we currently enjoy. I do not resile from the fact that when push comes to shove—and it will, because that is one of the characteristics of the Department of Health, more than any other single department in Her Majesty’s Government in my 30-odd years in this building, one end or the other—it must be clear that the Secretary of State can act, and in a way where the people of this country believe he is acting for them and on their behalf.
Lord Marks of Henley-on-Thames
My Lords, if the noble Lords, Lord Mawhinney and Lord Newton, are Tweedledum and Tweedledee, they make a splendid double act in this Chamber. It has been heartening to hear the support for these amendments from all sides of the House. Adding to what the noble Lord, Lord Hunt, said about the observation made by the noble Lord, Lord Warner, the simple distinction is that the mandate and the regulations are intended to be and should be—if they are not to be entirely unwieldy and inappropriately used—prospective. They should set objectives and requirements as to how the strategy of the health service is to be implemented. The intervention powers are intended to be, and must be, reactive. It is the power to react effectively that is important, and as the noble Lord, Lord Hunt, pointed out, it has been used on a number of recent occasions.
May I make one observation to explain our position on Amendment 152, and the difference as we see it? It is not over what is included so much as in what is left out. What is left out is effectively the whole of the intervention regime and what is substituted is a general power to give directions which would take us back to Section 8 of the 2006 Act, which I know that the Government believe is undesirable. I also suggest it is undesirable because it reverts to an unacceptable kind of micromanagement, even though I quite accept the point made by the noble Lord, Lord Owen, about that term being difficult to use in legislation.
Finally, the noble Lord, Lord Hunt, suggested that I might explain why we used the words,
“in the best interest of the National Health Service”.
It is right, I suggest, that there should be a criterion for the intervention by the Secretary of State. The criterion that we have chosen is the interest of the health service. It is, of course, what the Secretary of State considers to be in the interest of the health service. That phrase finds repetition in the Bill, so amendments are consonant with the wording of the Bill elsewhere. I am bound to say that if I was called upon in a court of law to challenge the Secretary of State on what he or she considers the interest of the health service to be, on judicial review I would be very cautious about advising my clients of any prospect of success.
Lord Hunt of Kings Heath
My Lords, does not the noble Lord make my point for me, apart from believing that the 2006 Act is perfectly formed in every way? Surely the point is that it should not be open to any doubt whatever. In the end, if a Secretary of State intervenes, it must be because he considers it in the best interest of the National Health Service. Why should we complicate matters by potentially giving at least an argument for judicial review when, in the cases mentioned, the Secretary of State simply will need to, or be required to, intervene?
Lord Marks of Henley-on-Thames
The answer is that we are not at one about the vulnerability of my amendment to judicial review. I rather hope that that is never tested; nevertheless, I hope that the amendments are accepted.
Earl Howe
My Lords, the policy of the Government and the vision that we have consistently set out is that Ministers will be responsible for overseeing and holding to account the national bodies, backed by extensive powers of intervention in the event of significant failure. I say to my noble friend Lord Newton that that is what the Bill provides for. These powers are essential if Ministers are to be able to retain ultimate accountability for the health service, for the very reasons that he stated. I have to say that some of his phraseology was, in my view, unnecessarily extravagant, if I may use that phrase. The Secretary of State will not stand back; nor will he wash his hands of what is going on, as my noble friend put it. The Bill enables the Secretary of State to intervene where he believes that Monitor, the board, the Care Quality Commission, NICE, HealthWatch or the Information Centre are failing or have failed to exercise their functions, and that failure is significant. In the event that Ministers use these intervention powers, they will be required to publish the reasons for doing so, including an explanation of why they consider the failure to be significant. These requirements will provide transparency to the decision-making process.
I will deal with the question posed by my noble friend Lord Marks. Why should we use the word “significant”? The clear aim of its use is, exactly as my noble friend suggested, to stop Ministers intervening in inconsequential matters. There is no case law on the meaning of “significant failure”. The Secretary of State will need to decide whether a failure is significant. However, cases have considered the meaning of “significant” in other contexts and have taken the approach that, while a dictionary definition of “significant”—
“noteworthy; of considerable amount or importance”—
is not to substitute a different expression for the statute, it remains a helpful indication of what the term means. There is a degree of flexibility inherent in the term “significant”, and I believe that that is helpful in the context of the arguments put forward by the noble Lord, Lord Owen—who is not in his place—and my noble friend Lord Mawhinney.
I will first deal with Amendment 152. I respectfully suggest that there is a gap between that amendment and that of my noble friends Lord Marks and Lady Williams. Amendment 152 seeks to amend the Bill to give the Secretary of State wide powers to direct the board and clinical commissioning groups in how they carry out their functions. I said “wide powers”, and that fundamentally cuts across the vision of a health service free from political micromanagement. It therefore gets us back into exactly the territory that we want to get away from.
Of course it is important, as I have said, that there are intervention powers if things go wrong and those powers are in the Bill. The Bill also sets out a robust system by which the board will hold CCGs to account. I will come on to that in a moment. Creating a sweeping power of direction would seriously undermine the autonomy of the board and local commissioning groups and allow Ministers to use directions or indeed the threat of directions to second-guess operational decisions. In addition, any direct power over CCGs would duplicate and undermine the role of the board which is responsible for overseeing local commissioning.
Amendment 153 makes a more subtle point. It seeks to enable the Secretary of State to direct the board should he consider it to be failing to carry out its functions in the best interests of the health service. Let me reassure my noble friend of what I am sure he does not need to be told. We would always expect the board to act in a way that is consistent with the interests of the health service. This is made clear by the duty on the board to promote the NHS constitution and the duty set out by proposed new Section 1E(2), which ensures that the board is also subject to the duty to promote the comprehensive health service. If the board were acting in a way that was not consistent with those duties, then it would be acting unlawfully. That may constitute a significant failure by the board to exercise its functions properly or indeed at all in relation to which the Secretary of State would consider intervening.
Lord Marks of Henley-on-Thames
My Lords, I am sorry to intervene at this stage but does my noble friend the Minister not accept that there may well be two divergent views of what the best interests of the health service are, and that the board may hold one view, the Secretary of State an entirely different view—or, on the other hand, CCGs may hold one view and the board an entirely different view—and that undermines any notion of accountability if the Secretary of State has to stand up in Parliament and say, “I do not believe what the board has done is in the interests of the health service but the board does and I cannot do anything about it”? That is the mischief at which these amendments are directed.
Earl Howe
I take the point but I hope my noble friend will agree that I have an answer. The crucial point is that, while we would expect the board to have a clear shared understanding of what the interests of the health service are, the Secretary of State has mechanisms over the board which he can use if necessary to clearly set out what these interests are. He can do that by setting objectives and he can hold the board to account for those. So he has other levers.
Amendment 277, also in the name of my noble friend Lady Williams, would prevent the Secretary of State from intervening in specific cases where he considers that Monitor has failed or is failing to perform its functions. We believe that it is important for the Secretary of State to be able to intervene in the event of a significant failure by Monitor to perform its functions. That intervention power does not exist at all under current legislation, and we believe it should. We do not believe Ministers should have the power to intervene in individual cases. Such a power would risk politically motivated interference and undermine the independence of the regulator. That point is extremely important.
However, there is an important exception to this rule in relation to the continuity of services. Amendments introduced in another place allow the Secretary of State to intervene in relation to proposals for securing access to services where a provider has become unsustainable. The Secretary of State would be able to exercise a veto if Monitor and clinical commissioning groups have failed to discharge their functions, to follow the proper procedures or to secure access to services.
We are clear that the wording of the clause as it stands strikes the right balance, enabling the Secretary of State to intervene when necessary to address systemic failure, while ensuring that Monitor is able to carry out its functions free from potentially time-consuming and politically motivated interventions relating to individual cases. The NHS Commissioning Board will also have powers of intervention, as set out in new Section 14Z19, to support CCGs and take action where necessary if there is evidence that they are not meeting their statutory duties or that there is a significant risk of them failing to do so.
I recognise that the intention behind Amendments 220ZAA and 220ZAB, which look to ensure that the board only intervenes in a CCG when it is satisfied that the CCG is failing, or is at significant risk of failing, is to exercise a function in the best interests of the NHS. However, as the Bill is drafted, the board can determine when a CCG is not exercising its functions properly and that is surely the better approach. We are giving the board discretion to determine when intervention is necessary, based on the terms of each statutory function that CCGs have, not in relation to a separate criterion. The amendment would actually narrow the grounds on which the board would have power to intervene, which I do not think would be at all helpful.
Finally, I would like to address the point put to me by the noble Lord, Lord Hunt, about waiting time objectives. The noble Lord implies that Ministers would be powerless in the face of waiting times. That is simply not the case. Ministers’ main weapons on this issue would be the standing rules and the NHS constitution. Current contractual requirements relating to waiting times, such as 18 weeks, are covered by the constitution through the handbook and will form a key feature of the standing rules pending passage of this Bill. If the Secretary of State wanted to act on a new waiting time issue, the option is there for the NHS constitution handbook to be revised and the standing rules updated accordingly.
I hope that I have provided enough detail on these clauses to enable my noble friend to withdraw the amendments.
Baroness Armstrong of Hill Top
Will there be issues around the National Health Service that Members of Parliament will not be able to question Ministers about or to get clear answers from Ministers on? I have listened very carefully to the Minister, but I am still very confused about the accountability to Parliament and what the Minister will answer questions on and what he will say is the responsibility of Monitor, the NCB or whatever.
Earl Howe
There are no areas that will be out of bounds to parliamentarians in the sense that the noble Baroness has said. What may happen is that the Secretary of State or other Ministers may respond directly, or in a way that draws upon advice that they have received from, let us imagine, the NHS Commissioning Board; they may quote what the board has said and say that this is the advice that they have received, or they may, as with some agencies at the moment, refer the parliamentarian to that body directly. It will vary. The main question that the noble Baroness asks is whether parliamentarians will be inhibited in some way. The answer is no.
Baroness Williams of Crosby
I should like to add a few words before considering whether or not to withdraw this amendment. The noble Earl, Lord Howe, has obviously made the best possible case he can, but given the very extensive doubts on all sides of the House, I feel that he ought to be asked to address this issue very clearly. It is bound up in many ways with the whole issue of the responsibilities and accountability of the Secretary of State which is under discussion at the present time. I will withdraw the amendment on the understanding that it will come back on Report when we have had an opportunity to see how this fits into the whole structure of responsibilities of the Secretary of State.
Perhaps the most simple answer to the question that was asked by the noble Baroness, Lady Wheeler, is that on the basis of Amendment 153 it would be impossible for the Secretary of State to say, “Not me, guv” in response to the point made by the noble Lord, Lord Newton of Braintree. This is so central, and so serious, that in withdrawing the amendment I make it absolutely clear that I do so in order to give an opportunity to the department and to the Minister to consider how this may be best fitted in to the responsibilities and accountabilities of the Secretary of State over the whole of the health service. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, my Amendment 154 brings us to a group of amendments which consider a number of interesting points about clinical commissioning groups and their relationship with GPs, other contractor services and local authorities. They also allow us an early canter at probing exactly where the Government’s policy on clinical commissioning groups currently is.
My first Amendment 154 is partly probing, but it is also to ask why membership of a clinical commissioning group is only confined to general practitioners or, in the jargon of the Bill, providers of primary medical services. What about the other contractor professions within primary care: the dentists, the pharmacists and the ophthalmologists? What about primary and community nurses? I would not in any way seek to undermine the potential leadership role of general practitioners, but they are part of a primary care team. It is rather unfortunate that other members of the primary care team were not considered worthy of membership of a clinical commissioning group.
I must say that I have yet to hear any rational explanation as to why GPs only have been singled out for this exalted membership of a clinical commissioning group. It would have been perfectly possible to have brought all the contractor professions and, I would hope, primary care nurses, into membership of a clinical commissioning group, and then to have a governance structure which none the less recognised the pivotal role of GPs but did not exclude the other professions. One could have had a weighted voting system or some other way of reflecting that yes, GPs are clearly a very important profession in primary health care, but they are not the only one.
I am curious to know why the Government did not adapt that approach, and how they expect clinical commissioning groups to really relate to the other professions. How can they bring them on board? I think of rural clinical commissioning groups and rural dispensing, and how there can be terrible tensions between GPs who dispense in rural areas and community pharmacists in those areas. If I were a community pharmacist, I would be rather concerned that the rural clinical commissioning group is not at all going to act in the interest of community pharmacy. It is almost bound to act in the interest of rural dispensing general practitioners.
I would be interested therefore, if the noble Earl, Lord Howe, could give some further explanation as to the construct of clinical commissioning groups. I should say to him that, having talked to dentists and community pharmacists, they are really concerned that they will be excluded from the decision-making process within clinical commissioning groups, and that it will be purely GP-dominated. Some of the people most concerned, and quite rightly, are primary care nurses, whose voice should be heard. One fears that the traditional approach will be to exclude them from those discussions when they have an enormous amount of expertise to bring to the table.
Amendment 158 is a probing amendment. It relates to the areas of clinical commissioning groups and argues that clinical commissioning groups ought to be coterminous with the boundaries of a local authority or contiguous group of local authorities.
I stress to the noble Earl, Lord Howe, that this is a probe. If health and well-being boards are to work well, there clearly needs to be an integration of public health and commissioning between the various groups at local level to make sure that they come together in a cohesive plan and at interventions. It is very important that clinical commissioning group areas at least do not go over into other local authority boundaries. There is an argument for coterminosity, but of course I do accept that in some areas that would make the clinical commissioning groups far too large and that is why I stress to the noble Earl that this is a probing amendment.
In the county, non-metropolitan district areas where you still have a two-tier system, I would have thought there is some concern about the involvement of the non-metropolitan district councils in the arrangements for liaison between local government and clinical commissioning groups. While it does not strictly come within the remit of this amendment, it is a matter to which I suspect we will want to return at Report stage.
Beyond that, this is a good opportunity to ask some serious questions about clinical group commissioning. It seems to be clear that there is now increasing anxiety among GPs that the likelihood of them having significant control of commissioning is becoming remoter by the day. The noble Earl will be aware of the BMA’s decision to come out decisively against the Bill. But I have also noted with great interest a press release by the NHS Alliance, which of course has been very much a flag waver for the Government, in which it complained about bullying taking place by the system in relation to clinical commissioning groups. The headline is that doctors leading the NHS reform changes report coercion and bullying in the way the organisations are being set up, which followed a survey of a number of pathfinder clinical commissioning groups. The survey asked: “Do you believe that your clinical commissioning group is being coerced or bullied in how you are setting up in ways that conflict with what you feel would benefit your local population?” Out of the 67 clinical commissioning groups surveyed, 60 per cent answered yes. So much for this hands-off approach that we have been promised. Clearly things have changed. When this started the assumption was that we would have a large number of clinical commissioning groups covering fairly small areas where GPs would actively be involved around the table in commissioning decisions. It has been made abundantly clear that CCGs would not be authorised unless they merged into much larger organisations covering very large population bases.
I wonder whether the noble Earl could perhaps say how many clinical commissioning groups he now expects to be informed. Can he also confirm that they are going to be forced to obtain external commissioning support? Indeed, they have been promised the delight of a bureaucratic procurement process for that support lasting, I understand, up to 12 months. So they are also clearly being leaned upon to use the private sector for such support and they are being forced also to merge commissioning for large-scale commissioning projects. No wonder some GPs are beginning to wonder what this is really all about and whether one beast is being replaced by another. Today Dr Michael Dixon, the chair of the NHS Alliance, told the annual conference about the challenges ahead for clinical commissioning groups or, as he called them, the nation’s future clinical commissioners. He said that they will be confronted by the demons of self-interest, factional politics, ignorance, laziness and raw emotion. They will be hated by all of those who have fed from the gravy train of the current system.
I am a longstanding admirer of Dr Dixon, not least because of his pressure when I was in government to give support to complementary medicine, which I suspect that noble Earl, Lord Howe, now enjoys as well. But I think he made those remarks because he knows, deep in his heart, that the game is up. Whatever one thinks of the Government’s reforms and whatever changes have been made as a consequence of the listening exercises, I had always clung to the thought that the Government were serious about giving GPs control of commissioning. It has become abundantly clear that this is not the case. GPs have been sold a dupe and so too has Parliament, I fear. I beg to move.
Lord Warner
I speak to Amendment 157 which is aimed at containing the number of clinical commissioning groups and their total operating costs. I have some sympathy with the remarks made by my noble friend, but before I go into the detail of these particular amendments, I want to give a little context.
My Lords, there has been a great deal of concern expressed by many people who are well versed in the background and activities of the NHS about the number and small size of clinical commissioning groups that might emerge. I do not condone bullying, but we have a problem. The smallest population size for a CCG that I have come across is 18,000 for Radlett, near Watford. I asked the Minister for the Government’s latest estimate of the number of clinical commissioning groups likely to be operational in April 2013. In his answer to me on 9 November, he said:
“It is too soon to estimate the number of clinical commissioning groups that will be operational in April 2013. There are, however, currently 266 pathfinder CCGs covering 95% of GP practices in England”.—[Official Report, 9/11/11; col. WA 58.]
So it is possible that there could be about 280 clinical commissioning groups when all practices are covered. This is far too many to be effective, for reasons I will explain in a moment. We are getting into an extraordinary position. It seems almost an article of faith, or really bold ministerial courage, for the Government to be embarking on this massive NHS reorganisation, at a time of great financial challenge, without knowing, 16 months before they go live, how many clinical commissioning groups—the bodies that will be handling large chunks of this money—will be in place. That seems a pretty racy way to live with a national icon like the NHS.
We will come to the competency tests for CCGs in later amendments. If those competency tests are to mean anything, a significant number of these groups could, presumably, flunk them. Or will all the geese suddenly become swans? What light can the Minister throw on the likely failure rate for clinical commissioning group applicants? When will we have more reliable data on how many clinical commissioning groups we are likely to end up with? For the purposes of discussing the amendment, I will assume that the Government anticipate having something of the order of 250 clinical commissioning groups by April 2013. For many of us, this would seem far too many, and totally fails to learn the lessons of history. As someone who had to learn the lessons of history in the area of commissioning the hard way, I want to share some of that experience with the House.
In 2002, the previous Government set up 302 primary care trusts to undertake commissioning. To some extent, in doing this, it was following the course that this Government are trying to pursue—of getting commissioning closer to local populations. That was one of the arguments for doing it and it is not one which I would quarrel with, in principle. But, like clinical commissioning groups, small PCTs were expected to be able to carry out most of the functions of a commissioner. They needed to have all the skills to undertake commissioning, they needed to be effective demand managers, they had to have the muscle to stop acute hospitals gobbling up too much of the money and they had to be able to secure a more appropriate balance between community-based and hospital-based services in their delivery. They failed, and their failures were shown by a number of reports by the Health Select Committee in the House of Commons. They failed because many of them were simply too small and there were too many of them for the commissioning capability nationally available to be able to staff and run that number of bodies. We are heading down exactly the same path with clinical commissioning groups. The manifestation of the failure of the PCTs was the financial meltdown of the NHS in 2005-06. This meltdown occurred after several years of 5 per cent real terms growth in NHS expenditure and in the middle of a financial year with 5 to 6 per cent real terms growth. This is not the situation that clinical commissioning groups will be faced with.
Lord Newton of Braintree
My Lords, perhaps I may chip in once again in seeking that my noble friend should at least listen very carefully to what has been said by the noble Lord, Lord Warner. I probably ought to declare a sort of interest in that my wife is currently a member of a PCT board. I would like some clarity about just what the situation is in this respect. As the noble Lord, Lord Warner, indicated towards the end of his remarks, the contrast between what is being put in place at the moment and what is prospectively going to be put in place is even greater than the actual number of PCTs at present because of what has been done about clustering. At the moment—I do not know the exact figure on clusters—there is an even bigger contrast between, as I say, the number of clusters and the potential number of clinical commissioning groups, with all the costs, potential fragmentation and the rest of it that that might entail.
There is another issue and I just want to find out exactly how the Minister sees the position. Clustering has been achieved not by abolishing or merging PCTs but by appointing the same people to the boards of several PCTs. I think that the House should be clear about that. I want to know from the Minister exactly what is the number of PCTs at the moment; whether that number has in any way been affected by clustering; and whether the PCTs, which still exist as legal entities alongside the clusters which are not legal entities, continue to have all the responsibilities and duties that are assigned to them under the statutory basis on which they were set up in the first instance. PCTs remain the statutory entities. The clusters have no statutory basis at all, and we need to be absolutely clear what the situation is, how many PCTs we have and what their responsibilities are.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group. At first sight the group might seem loosely hung together but there is a common theme running through all this, and that is: how much is all this going to cost? The back-office functions for commissioning are not inconsiderable, and the more that clinical commissioning groups come together, the more some of those back-office functions can be merged and cost-savings made—or at least the more that expenditure can be decreased, because it is not really cost-saving. The document Developing Commissioning Support is quite interesting because it reveals the complexity of many of the back-office support functions that clinical commissioning groups will certainly need. Indeed, GPs themselves are independent contractors to the NHS. In many ways, that is why the amendment in the name of the noble Lord, Lord Hunt, is so sensible. Many of the other people working in the community are actually salaried, so they do not get any financial gain from contributing to a clinical commissioning group, whereas there are financial incentives for general practitioners in different ways of commissioning. For example, they often run out-of-hours services and may effectively be commissioning those from themselves within a particular area.
I want to draw the Committee’s attention to the need for collaboration in commissioning for those patients and groups of patients who have relatively rare but not terribly rare conditions. I shall take motor neurone disease as an example. In Nottingham, there is a properly commissioned neurological network that works across different PCTs with a lead PCT and the patients with motor neurone disease are able to access a pathway of care—a complete package of care—that is consistent with the Motor Neurone Disease Association’s own Year of Care pathway, which it developed to inform commissioning some time ago.
In another area, Southampton, no end-of-life care has been commissioned for motor neurone disease patients over the past five years. That means that patients even have to move to other areas, such as Gloucester, simply to access specialist palliative care when they are aware that they are going to need it at the end of life. That cannot be right. We know perfectly well that when you provide good integrated care, the quality of patients’ lives as their disease progresses can be improved by appropriate interventions. However, without it, it is a council of despair. The PCTs in that area have refused to fund end-of-life care for motor neurone disease patients, and it is an ongoing problem. Recently, two of the commissioners in the PCT were so concerned that they made a business case, but it was not backed by the PCT on financial grounds, because it is short of funding.
There is another problem, and another reason that clinical commissioning groups need to come together and collaborate. Quite a few seem to be looking at using the map of medicine as a basis to inform their commissioning decisions, but the map of medicine was not devised and written to guide commissioning. It was meant to guide clinical decision-making, and it is not complete in any one sector. You need to put the different parts of it together. For example, if you take chronic obstructive pulmonary disease, it does not have end-of-life care within its module. So if you use that module, you will not get the complete package that patients need. You also have to go to the end-of-life care module. Some of us who have looked at it in detail do not think that it is an appropriate template to use for comprehensive commissioning of services integrating processes early in the disease and right on through.
The commissioning groups are going to be on a very steep learning curve. They are going to find things very difficult, and with many small groups, the cost of them trying to do the commissioning will go up, and that is before they have used their funding to actually commission the services for patients that they have responsibility for.
These are very important amendments. This group and the next one get right into the heart of some of the problems that are beginning to emerge over the way that clinical commissioning groups are defined in the Bill.
Lord Mawhinney
My Lords, the noble Baroness, Lady Finlay, was right when she said that these are important amendments because they get to the heart of one of the big issues of the Bill. They pose a problem that only the Government can help us to understand and resolve. The noble Lord, Lord Warner, introduced us to the concept of clusters. Although I am deeply tempted—for I agree with what my noble friend Lord Newton of Braintree said about them—as we are supposed to be brief, I shall resist expressing my views on clusters until we get to the amendments that I have put down to Schedule 6, which deals with these issues, save to say that, at that point, the House is unlikely to be confused about what I think.
The noble Lord, Lord Warner, pinpointed the issue. From my Second Reading speech and also from conversations which he and I have had, my noble friend will know that I am enthusiastic about this Bill because it introduces GP commissioning. I have strong memories of the great advantage that GP fundholding presented to those patients who were the patients of GP fundholders. So I was drawn to be supportive, because I understood that the groups were going to be relatively small. They would benefit from the inter-reaction of GPs and patients, and nobody in the health service knows better than GPs what is in the best interest of their patients.
On the other hand, I recognise the point made by the noble Lord, Lord Warner, that if you have too many of them—as the noble Baroness, Lady Finlay, has pointed out—you run into other difficulties. Were we to wind up with a smaller number of large bodies, then clinical commissioning starts to mean something entirely different from what those of us who were supportive of the Bill believed to be the case initially. The noble Lord, Lord Warner, said there was a danger in all of this and a number of GPs would wind up being very disappointed. I have to say to my noble friend that if we get in to big organisations, there will be more than a few GPs who will be disappointed at the direction of government-policy travel.
Baroness Jolly
My Lords, I have supported the idea of coterminosity from when I first saw the Bill in January. It struck me as being straightforward and sensible that if health and social care were put together, the health boundaries would be aligned with the social care boundaries. That clearly happened in the middle of the last decade, when PCTs were grouped together to be coterminous with social care boundaries. There are all sorts of issues. If you have a large clinical commissioning group, then there is a capacity issue in that you have one clinical commissioning group that might need to work with several local authorities’ health and well-being boards, directors of public health, healthwatches or whatever. If you have a small group, then you have many CCGs working with all those bodies. It struck me that if there were a direct fit, everything would look quite neat and hunky-dory. I parked the thought in my mind that everything was fine.
Then I started to look at what was happening around me locally in the south-west. Torbay has been mentioned many times in your Lordships’ House. It provided a care trust—health and social care together. One of the areas they are really anxious about is that if they become part of Devon, an awful lot might get lost. So there are special circumstances around that integration. They know that they are small and they are trying to look at making themselves bigger by working with other parts of Devon, all of which take their acute services from one DGH. The same sort of thing is happening in Plymouth. Noble Lords will remember from the Bill about constituency boundaries in January that there was a huge big deal about Cornwall being all on its own. Cornish patients, believe it or not, actually do cross the Tamar in order to go to hospital in Plymouth. A fifth of Cornish hospital patients actually do that, so a whole group of Cornish GPs who face that way, along with some in south-west Devon who face that way, along with Plymouth, have discussed the possibility of working together as a group, simply because they all face one DGH. It was a common bond, if you like.
Therefore, we have a county or a district or a borough seen as one possible common bond. We have an idea that commissioning groups who commission from a particular hospital, trying to work together in a pathfinder mode, is not peculiar to the south-west; a lot people seem to think it would be a good idea. There are lots of issues, so how do we solve this? I still think that, for an awful lot of situations, co-terminosity is the right answer. The test really has to be: what actually can be deemed to be in the interest of the patient? The whole thing has to be taken in the round; it has to include care providers and health providers and there has to be an element of size capacity. My head—and my heart—say coterminosity, but then I look at certain other areas where there are groups that have—
Lord Hunt of Kings Heath
Would the noble Baroness give way? She has raised an interesting point. Could I describe the situation in Birmingham? My understanding is that although there will be more than one clinical commissioning group, there will clearly be one HWB group and the membership has now reached 25. There is one place for providers on it. One gets the feeling that there is a risk that it will become a talking shop. Secondly—and I declare my interest as chair of an NHS foundation trust in Birmingham—if you exclude the providers from those key discussions, you will not get a buy-in. Think of patient discharge and the relationship between reducing length of stay, preventing admissions and the support that social services needs to give packages of care. One worries that you reach a situation where the whole thing is so unwieldy that it will not really work.
Lord James of Blackheath
My Lords, could I ask the Minister a question that is definitely not medical and about which he might wish to take note for further advice later? In a cluster, does each component maintain its own solvency or do they have a collective solvency? If there is an imbalance in the size of those components and a marginally solvent large component, you run the risk of creating insolvency for the two smaller ones. That would be a severe risk for the trustees of those components.
Baroness Jolly
I have lost my thread. We are talking about Birmingham, which is humongous, and presumably any large city would have exactly the same sort of issues. Is the noble Lord arguing for coterminous clinical commissioning groups?
Lord Hunt of Kings Heath
My point is that my amendment was a probing amendment to get some information from the Government about their intent regarding boundaries. Clearly, one of the problems that we are discussing is size and the larger you make clinical commissioning groups, the less influence GPs will have on their deliberations. The whole point about clinical commissioning groups was to put GPs in the driving seat. I do not know if Ministers know how much pressure within the system is being put upon potential clinical commissioning groups, but they are being told that they have to get large. The numbers who put themselves forward at the beginning were basically told that there was no way that they would get approval, so they have been forced into big marriages.
I simply point out that even if you take Birmingham, where there will be very big clinical commissioning groups, you will still end up with an unwieldy health and well-being board. One has to think through the implications of this if you are then trying to get a cohesive strategy on public health and on joint commissioning that pulls all of the players together—while still excluding the providers from those discussions. We started from an original prospectus that was going to give GPs real control over commissioning. That is gone. I agree with the noble Lord, Lord Mawhinney. I do not think that there is now any chance in the system that is being forced upon the service, that individual GPs will have any influence. As with the noble Lord, Lord Mawhinney, it is clear that GPs are realising this now, and that the prospectus is a false one.
Baroness Jolly
I think that the noble Lord’s point is well made. The noble Baroness, Lady Finlay, however, talked about the element of size and back office, which needs to be quite large. Small CCGs will need to share a back office, simply because that is the way it is. There will need to be shared commissioning arrangements. I think that the noble Earl, Lord Warner, was saying much the same thing: these things will not work if they are tiny but might if they are larger. I remember primary care groups, which became primary care trusts, which became bigger primary care trusts. What is a reasonable size to make all those linkages work? What we do not want is for all of these organisations to spend their days going to meetings. If we are not careful and clinical commissioning groups go over local authority boundaries then they will have to serve more than one health and well-being board.
The ideal would be to have some co-terminosity but clearly it will not work in really enormous situations. My background and experience is in rural areas, where it strikes me as the most obvious way forward. Even if that is not how it starts, that is how it probably should end up. As for the Torbay example, the PCTs are very small. However, they are also perfectly formed and have done a really good job. They are desperate to keep what they did, and did well, but they are being pressured to join a Devon PCT—which also has pressure on Plymouth, which is also part of the Devon PCT. So it is not a straightforward picture. When clinical commissioning groups put their case to the board, there needs to be some sort of nuancing in application.
Baroness Murphy
My Lords, is not the whole point of the formation of clinical commissioning groups that it should be a local solution that fits the configuration of a particular urban or rural area and that it should be decided locally with the Commissioning Board what the best fit is? I take the point made by the noble Lord, Lord Warner, that size is an important issue as to whether one is favouring individual GP commissioning of a personal family health service or whether one is going for the much bigger purchasing of population services. Surely the big difference with this Bill is that PCTs had no real central support for developing commissioning in the way that clinical commissioning groups will have very explicit support from the Commissioning Board. I can see that the noble Lord, Lord Warner, is shaking his head, but I think that makes a huge difference because we have seen the concentration of emphasis by the Department of Health on the acute sector, and to get a way towards having much greater leadership from the centre in developing commissioning seems to me a very positive thing.
The noble Lord, Lord Hunt of Kings Heath, asks why is it only GPs—why do all professionals not get involved? All local primary care clinical professionals should have an input to the groups’ deliberations, but surely the obvious answer is that it is GPs who specifically use resources for their patients from secondary care. They actually determine the costs in secondary care through their use of secondary care hospitals; they intervene to stop secondary care—they have the possibility of doing it through provision of primary care; and they have enormous control over the funding, potentially, of the hospital system. It seems absolutely obvious that it should be GPs. The input of local dental practitioners, opticians and pharmacists is vital but they do not play the same financial role and that is why it seems to me it has to be GPs.
We cannot in this Chamber fix this Bill to lay down rules for the development of clinical commissioning groups. It would be absurd. The Commissioning Board and local people who are going to contribute to it have to make that decision. They have to be the ones to make it work. If they need to come together to commission services for rare conditions, that is fine.
Lord Warner
There are very few things in health policy on which I disagree with the noble Baroness. However, this House needs to look at what the evidence base from GP fundholding and practice-based commissioning shows us. The evidence base shows that GPs did quite well in commissioning some services. However, their actual impact on reshaping services out of acute hospitals was virtually zero. There have been some very good evaluations of GP fundholding and some less good evidence from practice-based commissioning. These showed that GPs got very close to their patients, understood what they wanted and reshaped some services. The transaction costs were seriously high in GP fundholding, which demonstrated that doing good commissioning requires a lot of data collection and analysis, which does not come cheap.
We need to understand the issue of muscle. People like the Nuffield Trust have done some good work on this. At the end of the day, the GP commissioners we have had so far were not strong enough and did not have big enough budgets or the analytical capabilities to call the shots with acute hospitals. That is the bottom line. I strongly support GP commissioning in principle. However, we are in danger of repeating the mistakes of the past and not learning from those experiences.
Baroness Murphy
I do not disagree with the noble Lord, Lord Warner. It is absolutely true that there is a balance and that size is important. Nevertheless, at the moment we are going back to a size that is approximately the same as the old district health authorities that we had between 1983 and 1992. They survived for quite a long time—
Baroness Murphy
I agree; they were too small. However, if you want to get that balance and that advantage of the clinical commissioning, it seems that, with a different sort of central support, it would be possible. With some local responses and reconfiguring of commissioning groups and the old PCTs, it can work. I do not feel quite as depressed about the clinical commissioning groups as other people.
Lord Greaves
I was going to make merely a brief intervention on this group on the question of coterminosity. However, this has extended into a much more important debate, which is coming down to some very fundamental issues in relation to clinical commissioning groups. The noble Lord, Lord Hunt, is to be congratulated on introducing this debate because it is absolutely crucial. We have to have it some time—if we are having it on this amendment, fine.
The noble Lord said in passing that the same issues keep coming round at different stages of the Bill. On this Bill the same issues keep coming round in different sessions in Committee. This is the second time we have talked about coterminosity. I think previously it was on an amendment from his colleague, the noble Baroness, Lady Thornton. I will not repeat everything that I said then, except to say that there has to be some flexibility. There are very good arguments for saying that CCGs should not cross local social care authority boundaries. However, the point I made previously was that in very large counties, like Lancashire or North Yorkshire or, if I think about the south of England—which I force myself to do occasionally—Hampshire and Kent perhaps, at the very least they ought to have the ability to not have a very large CCG forced on them that covers a whole county, which would be very remote indeed.
We have heard about Cornwall and Devon from my noble friend. We have heard about Birmingham. I am going to say a few things about Lancashire. I am very interested to know whether there are any noble Lords in Committee today who are very clear about what is happening in relation to setting up CCGs in their own areas, how it will work and what will come out of it. Asking colleagues on the Liberal Democrat Benches while this debate has been going on, nobody seems to know; chaos and confusion seem to be the impression. I am not saying that it is chaos and confusion, but as far as ordinary members of the public are concerned, let alone other people like myself who try to take a more direct interest, it is not very clear at all what is happening, or if what is happening is clear, it is not clear why and how it is happening. This comes back to the points raised by the noble Lord, Lord Hunt, about the fact that there are very clear pressures from above that are moulding the system that is going to take place. I very much take the point from the noble Baroness, Lady Murphy, that there ought to be local discretion and local decision-making here. However, that is not happening. People are being forced into decisions, and that goes against what she was saying.
Let me tell you about where I live, in east Lancashire. At the moment there are two PCTs. There is a Blackburn with Darwen PCT, because Blackburn with Darwen escaped from Lancashire County Council at some stage in the past and became a small unitary authority, so it has its own PCT. The other five districts, which are part of Lancashire County Council, have an East Lancashire PCT which, as the noble Baroness pointed out, had been formed by amalgamations over the years. There is one East Lancashire Hospitals NHS Trust that effectively covers the two PCTs, so there are two PCTs and one hospital trust at the moment. The PCTs have been combined with the rest of Lancashire into a county-wide cluster, but the East Lancashire PCT still exists.
I have recently been given a whole set of minutes and agenda papers, a great big thick file, from a relatively recent meeting—in the last few weeks—of the East Lancashire PCT. Although they find it increasingly difficult to keep going because all their chief officers have gone, there are still functions taking place at the PCT level; there are functions taking place at the cluster level, and for somebody like me who takes an interest in but is not directly involved in the health service nowadays—I used to be on a district health authority, an area health authority and a community health council, but am not now—I find it very difficult to find out where the decision-making is taking place.
Back when CCGs came along, the original idea was that they would be quite small, as the noble Lord, Lord Mawhinney, quite rightly said. They would be groups of GP practices within a recognisably local area. Whether that was a good or a bad idea—and in many ways it was an attractive idea—that has clearly now gone by the wayside. People were told that the minimum that you could get away with in east Lancashire was district-wide—that is the lower tier—so people were getting together and forming proto-CCGs at the district level.
In terms of population, Rossendale is about 70,000 and Pendle is probably the biggest of the five at about 90,000; it is that sort of range. The doctors who were getting together and working on these CCGs—and certainly in both Burnley and Pendle they were working closely with the district authorities to share back-room services and so on when they were set up—were told that this will not do any more. I am not at all clear who told them, but it has been made absolutely clear that there now has to be a new CCG covering the five districts, an area of 450,000 people. It is a very significantly different proposition, however you define significant, from groups of local practices, where the whole thing started off.
Blackburn and Darwen, because it is a unitary authority, is insisting that as far it is concerned, it will have its own CCG, which will be coterminous with the relatively small unitary authority, which has a population of around 140,000.
Lord Hunt of Kings Heath
Has that potential CCG been told that it will not get authorised? I would think that that is the way in which the system will force it into a larger merger.
Lord Greaves
I assume so, but I have no personal knowledge of the processes that are leading to these outcomes. All I hear about—from talking to people who are professionals and politicians involved in these systems and through the normal bush telegraph—is the outcome. The outcome is that there is almost certainly going to be a CCG 450,000 bigger, as I understand it, than any of the doctors involved would really like, and there have to be far fewer doctors involved from each of the districts. In my own district, it was going to be a Pendle-wide organisation where all the doctors involved would be known to a lot of people in Pendle, but now there will be just a small number from Pendle and some from Rossendale and some from far-flung parts of the Ribble valley. Meanwhile in west Lancashire, along the Fylde coast, where there is a string of small holiday towns with Blackpool in the middle and then a large area of countryside, are the two districts of Fylde and Wyre while Blackpool itself, the main town of the Fylde coast, is a unitary authority. What we understand is going to happen there—I have no direct evidence of this, it has come through the bush telegraph—is a CCG of Fylde and Wyre, a relatively smaller one, with Blackpool on its own. Of course all the hospital services and everything else are mainly in Blackpool. There does not seem to be any logic about what is going on, even though it is being defined by local authority boundaries.
I ask the Government to provide some clarity over what is happening in two ways. First it would be very helpful to have clarity on what is actually happening in each area, and for this whole process to be taking place in a much more public way. But it is not. It is all taking place out of the public gaze, and unless there are local journalists who are particularly interested in it and try to research it, nobody has the slightest idea what is going on, whether or not it is being decided locally.
More importantly, I accept what the noble Baroness, Lady Murphy, says, but I think that we need an understanding of the sort of pattern which is going to result from this Bill once it is enacted and the CCGs are set up. We want a clarity of vision from the Government. What sort of number are they talking about? What range of size will be thought to be permissible? If they are saying that it could stretch from areas of 15,000 right up to a major city of half a million or so, and that sort of thing will be left to some sort of diffuse local decision-making, then that is okay, but we need to understand that. If, on the other hand the Government are saying that a lot of the groups that have been looking at this are far too small and they have to be much larger, then they are really moving towards what I might call the Lord Warner position, and again we need to understand that. We have a right to know what the outcomes of this legislation are likely to be before we allow it to go forward.
Baroness Wall of New Barnet
My Lords, the noble Baroness, Lady Jolly, has made a very strong argument for what might happen in her part of the world. However for London it is very different, and I want to remind noble Lords that this is about health and social care, and relate what happened in my area.
My trust is part of north central London and that cluster is now going to be merged with north east London. The cluster has been a great improvement on the separate PCTs, not just because of the way they do things, but in the whole vision they have of the health economy. One of the things that we suffered from in Barnet and Chase Farm and North Middlesex was that we were all separate, independently operating providers. We just took notice of what we were providing and what was happening around us. The BEH—Barnet, Enfield and Haringey strategy—made us look beyond that at the whole health economy. The evidence is that we have been failing in not providing social care or community care because each individual provider was looking at what was happening for them and its importance to them.
I can only share the experience that is happening in London. My view is, and our experience as a trust is, that the bigger the cluster has been and the bigger the cluster will become, the more opportunity there is to ensure that the whole health economy of the people that we serve is going to be taken into account, rather than that minuscule Barnet PCT, Enfield PCT or Haringey PCT. I know that they are much closer than Lancashire, and I come from Lancashire, so I recognise some of those areas. People are questioning what is happening in London, and it is very different. The smaller the groups, the worse it is, in my experience, because we are not addressing the whole economy.
I believe, as the noble Lord, Lord Warner, has said, that we need a much broader and wider experience in the sense of the numbers that we might have. I do not know how big is big or how good is big. What I do know is the difference that it has made, in my experience, across London, that the bigger we have got in the sense of the clusters, the better the service has been and the more able we have been to take our eye away from just acute providers to looking at what is going on in the community. We have failed to do that, and all the debates that we have been hearing in the House during the passage of the Bill have identified how much we have been failing. Most of the social care issues that we have discussed are about how we failed. In my view, as a chair of an acute trust, it is about us being focused on patients coming in to hospital rather than patients being able to have their provision elsewhere. From my experience in London, we need less of them, so that we get a complete health economy view.
Lord Greaves
What the noble Baroness, Lady Wall, says is very interesting. Does she understand what the future pattern of CCGs in that area is going to be in relation to the borough PCTs and the clusters that she is talking about?
Baroness Wall of New Barnet
In my experience, the PCTs, in a sense, do not exist any more, in my part of London; I am not sure about elsewhere. Contrary to what the noble Lord, Lord Newton, suggested, it has not happened in London. All the PCTs have not been absorbed into the cluster. The chair of each of the PCTs that were in place before the cluster and the growth of the cluster has been seconded as chair of their particular PCT. For me, the important thing is who is making the decisions about the commissioning and what view they have. What is the panorama that they are looking at, rather than the closeness of the individual boundaries? Certainly from the PCTs in London, the clusters are taking over the way that is going more and more; and their relationship with the GP commissioners is much closer than it ever was in separate PCTs, and that has been part of the issue.
Lord Greaves
I am really impressed by the enthusiasm shown by the noble Baroness. I understand exactly what she said. The way in which the clusters have been put together is exactly the same, as I understand it, as in Lancashire. What I am trying to get her to tell us, if she knows, is how many CCGs there will be in the area of her cluster once the clusters have disappeared.
Baroness Wall of New Barnet
I cannot answer for the whole of London. I really do not know. What I do know is that the more the clusters emerge, obviously the more those PCTs will be absorbed into them. My noble friend will be much more able to give you more detail about that.
What is happening in real life in north central London is that the PCTs are being absorbed into the cluster. Contrary to the experience of the noble Lord, Lord Newton, the clusters have not just taken over the whole PCTs, including staff and everything else; they have not. In fact, the chief executive of the cluster in north central London did not come from north London at all. So that is very different, I think, from some of the experiences that other people have. However, I cannot give you the view of the whole of London because I really do not have that knowledge.
Lord Hunt of Kings Heath
My Lords, perhaps I could intervene to say that I echo everything that my noble friend said about the work of the clusters. They are covering, in my case, some 1.3 million and clearly are trying to get to grips with the strategic leadership that is required on the whole issue of reconfiguration of bed numbers and all the things that have been put off for so long. My understanding is that they go on as local field offices of the NHS Commissioning Board. That is the whole point. The question that then comes back, and where I am completely puzzled, is where on earth is GP commissioning in this? It is abundantly clear that the clinical commissioning groups are going to have very little influence. When you come to the issue of the individual GP, which was what this was all about, it is very hard to see what on earth they will be doing in terms of commissioning.
Lord MacKenzie of Culkein
May I intervene briefly, as I have my name down to Amendment 168? This has been a very important debate, and I want to return briefly to the issue of collaboration. Whatever the outcomes in size of the clinical commissioning groups, there will be a need for joint commissioning. I refer particularly, as the noble Baroness, Lady Finlay, has said, to some of the rare conditions, such as many of the neurological conditions, which will require a population, as I understand it, of some 250,000. For motor neurone disease this will be a population of some 500,000. It is vital that we have in the Bill something about joint commissioning for long-term illnesses. We will come back to that issue in a later group of amendments, but I want to emphasise its importance.
Baroness Tonge
My Lords, before the Minister gets up, I would like to ask him a very simple question. Noble Lords will have all realised by now that I have no faith in this Bill whatever, and never have had. I think it is totally unnecessary in the current economic circumstances, let alone other circumstances. Will the Minister tell us honestly what the reason was for clinical commissioning groups? Why could we not have kept the PCTs in whatever clusters they have formed together, and put clinicians, GPs, dentists and nurses into those groups to lead the commissioning process? Why did we have to have this massive upheaval to achieve what, according to what most of the speakers here tonight think, is not going to be achieved anyway, as the GPs will not have much input? Perhaps he could explain.
Lord Newton of Braintree
My Lords, I apologise for intervening a second time. I want to link with things I raised the first time, because I have been left in some confusion by the noble Baroness, Lady Wall—which is not her fault—said about what has been happening in London. My understanding is that at the beginning of the year the department issued a document suggesting four possible ways of doing clustering. One was along the lines that the noble Baroness spoke about. I forget what all four were, but one was that PCTs should informally group in clusters, create an informal board, and have one of the chairs, perhaps a rotating chair in some cases, who would oversee the informal cluster board. The legally existing boards would continue.
At the back end of September, the department, at least as interpreted in the east of England, issued an edict saying that there were no longer four options. There was to be one, and it would be clustering, based on appointing the same people to more than one PCT board. That raises a number of issues, as my noble friend Lord Mawhinney has indicated with unmistakeable clarity, to which he and possibly I might wish to return later. Meanwhile, how many legally separate PCT boards exist at the moment, who is on them, and were different policies pursued by the department in different parts of the country? What the noble Baroness—my noble friend—Lady Wall said suggested that a different policy had been pursued in London—not for the first time, I may say—than was being pursued in the east of England at least, and possibly everywhere else. We need some clarity, not just on what the future is going to be, but what the present is.
Earl Howe
My Lords, the principle behind clinical commissioning is that decisions about local services should be made as close to patients as possible by those who best understand their health needs. This is why the membership of CCGs should comprise GP providers, rather than other primary care providers, such as dentists, opticians and pharmacists who do not have the same relationship with patients or responsibility for a registered list. I hope this answers the question posed by the noble Lord, Lord Hunt, in his Amendment 154. However, of course effective commissioning will require the full range of clinical and professional input.
Although the members of clinical commissioning groups will be GP practices, the groups will be required to obtain advice appropriate for enabling them to effectively discharge their functions from a broad range of healthcare professionals. So this is not a matter of other professions being shut out; quite the opposite. Other professionals may also be invited by the CCG to be members of the CCG governing body and, as regards nurses, regulations may require that governing bodies include certain healthcare professionals, such as a nurse and hospital doctor. Also, other clinicians could be directly involved in influencing the decision-making of the CCG through, for example, membership of a committee of the CCG, without needing to be members. The basic point is that the function of clinical commissioning is directly linked to the function of the general practitioner and we should not risk diluting the effectiveness of the proposed approach.
The noble Lord, Lord Hunt, suggested that CCGs will not be led by clinicians. I am surprised to hear the noble Lord say that, especially as he has been paying tribute to the work of the NHS Alliance and Dr Mike Dixon for whom I, too, have a high regard. I understand that when Dr Dixon spoke at the NHS Alliance Conference this morning he said that we stand close to liberation of clinicians on a grand scale. That indicates to me that he believes that this is a huge opportunity for primary care clinicians.
My noble friend Lady Tonge asked what this is all about. The philosophy behind these new organisations is different from what we currently have. Clinical commissioning is about placing the financial power to change health services into the hands of those NHS professionals whom the public trust most and giving GPs the flexibility within the legislative framework to The Bill sets out high-level requirements for working together, including at new Section 14Z1 in Clause 23 provision for CCGs to enter into arrangements with other CCGs to exercise their commissioning functions. That addresses the point that was made earlier about commissioning for groups of patients who are smaller in number in a small area. One has to commission at the right level. These can include both joint and lead commissioning arrangements and this may be a topic which the board chooses to cover in its commissioning guidance.
The process of the local development of commissioning organisations is well under way, with pathfinders—emerging CCGs—coming together to begin to explore approaches to commissioning and building up their organisations, supported by the PCT clusters, about which I will talk in a moment. The board will be responsible for undertaking a rigorous assessment of all prospective CCGs, prior to authorisation, to ensure, for instance, that they are of an appropriate size, that they cover an appropriate area and have put the appropriate arrangements in place to be effective commissioners. I would say to my noble friend Lady Jolly that there will be a presumption in favour of coterminosity with local authority boundaries. But as we have previously discussed, and as advised by the Future Forum, local flexibility must include, in exceptional circumstances, the flexibility to cross a local authority boundary where that is appropriate to patient flows.
I am afraid that I do not agree that we should place arbitrary constraints on the number of CCGs or on their budgets as Amendment 157 would do. I appreciate the keenness of noble Lord, Lord Warner to ensure that the maximum resources available are devoted to patient care. The Government share that concern, but the way to do this is to ensure appropriate controls over administration costs and ensure good governance on how that money is spent and the outcomes that it delivers.
Lord Mawhinney
My noble friend said that they would have to decide on the appropriate size. Does he know what that size is approximately likely to be, and if so could he share it with us? Or is that something that is still to be determined?
Earl Howe
I am grateful to my noble friend and I was coming on to that very point, which was a question posed by the noble Lord, Lord Warner and others—my noble friend Lord Greaves expatiated on that theme. Our starting point is this: we do not wish to be unduly prescriptive about the size of clinical commissioning groups. There have been widespread variations in the size and population coverage of PCTs and there is no evidence to suggest that there is a single right size. If one looks at the history of the National Health Service over the last 20 years it has been an attempt by successive Governments to find a right size and we never quite succeeded. It is important that solutions develop from the bottom up and are not imposed from above.
Lord Greaves
I apologise for intervening, but if that is the case can my noble friend the Minister tell me who told the group of GPs in Pendle, who had been developing proposals for a CCG, that they would have to go in with the other four districts in East Lancashire?
Earl Howe
My Lords, in those instances, and they are very few, where a pathfinder CCG is of a manifestly unviable size, then it is right that they should receive advice to that effect at an early juncture. Advice is the word. The initial thinking is simply suggesting that emerging groups should be considering the impact of their proposed configurations on their organisational viability and the degree of sharing roles and functions or the use of commissioning support that they might need.
Lord Greaves
Is my noble friend, therefore telling me that a well defined borough with a population of 90,000 is manifestly unviable for this purpose?
Lord Warner
I thought I would get my question in before the noble Lord gets warmed up again. He said there is no indication from the evidence from the past of what the right size for a PCT was, but there is some evidence from the past. I do not think that there was ever constructed a PCT of under 100,000 population, which compares with 18,000 in Radlett for a CCG. If you actually look at what happened when we asked PCTs and SHAs to work together and engage in local consultation in 2005-06 on reformulating PCTs, the general thrust of what they came forward with was twofold: it was to be bigger in size and to be a better match with the boundaries of the upper-tier local authorities, which were the social services authorities. So there was some evidence that people themselves, when engaged in an exercise of reorganisation, moved towards bigger organisations and coterminosity with social care authorities.
Earl Howe
Earlier on I noted that the noble Lord drew parallels between CCGs and his attempts when he was a Minister to reduce the number of PCTs. I do feel there is a critical difference. The decision to establish a certain number of PCTs was taken in Richmond House by Ministers. I am not saying those decisions were arbitrary—of course they were not—but they certainly were not bottom-up. With CCGs, the onus is on GP practices to determine the most appropriate size and configuration for their local population. As I have said, the board will then rigorously assess whether this proposal will result in the CCG being able to fulfil its functions. That is a judgment, but it is a proper fitness for purpose test which PCTs never had to go through. I simply do not accept that, come April 2013, there is likely to be a raft of CCGs failing. If a CCG’s proposed constitution is not robust, then it will not receive full authorisation.
Lord Hunt of Kings Heath
I do not think that is quite fair, since I was involved in setting up PCTs. I accept the strictures of my noble friend about whether we made them too small. As for the idea that Ministers came up with PCTs, it was of course the service which, basically, came and made recommendations. Frankly, the same tiers are deciding on CCGs as decided on PCTs. There has been huge pressure on CCGs to come together and merge. Yes, it started as a bottom-up idea, but I have to put it to the Minister that the reason why I quoted Dr Mike Dixon is because he, like many people, knows that the “forces of bureaucracy”, as the noble Earl, Lord Howe, likes to put it, have been very strong and have basically said to CCGs that they will not get anywhere unless they merge.
Earl Howe
Yes, the noble Lord, Lord Hunt, suggested earlier that there was a process of shoe-horning CCGs into certain shapes and sizes, forcing them to take up external support and merge commissioning functions. I emphasise that CCGs will not be forced to take up external support or merge functions. What is happening at the moment is a process of advice and information from the centre. Obviously, the board will not authorise the establishment of any CCG which could not satisfy the board of its ability to discharge its functions and be an effective commissioner. We want to ensure that the process is not too bureaucratic or cumbersome. The noble Lord suggested that it was likely to be, but I do not accept that. We are working with stakeholders to ensure that emerging CCGs can articulate their requirements for commissioning support. I do not accept the picture that he has painted.
My noble friend Lord Newton spoke about the clustering of PCTs. Clusters bring together PCTs to prepare for and support the transition to clinical commissioning. Until PCT abolition in April 2013, they continue to exercise their functions and remain statutorily responsible for their functions until abolition. Pathfinders, or emerging CCGs, can act as sub-committees of PCTs until this time. The role of PCT clusters during the transition is to support clinical commissioning groups, not dictate how they operate. For the reasons that I have stated, it is important that CCGs have the freedom to develop their own solutions from the bottom up and that they are fully supported in doing so. The latest operating framework for the NHS emphasises this and we will see that it is acted upon.
My noble friend Lord James queried the legal arrangements. The process of clustering has been open and transparent. If it is acceptable to noble Lords, I can provide a written update on the latest position, giving the numbers, locations and so on, to save time.
Lord Greaves
If a CCG pathfinder can operate in the mean time as a committee of the PCT, will it act as a sub-committee of the PCT or of the cluster?
Lord Hunt of Kings Heath
My Lords, I thank the noble Earl, Lord Howe, for his response. This has been a really good debate, which has gone to the heart of the Bill and the Government’s intentions. I would like to come back to a point that the noble Baroness, Lady Murphy, made when she reminded us of the central tenet of the Secretary of State. Essentially it is that GPs are responsible, like GPs the world over, for most expenditure in the NHS, either through their referrals or through their prescribing decisions. The clear intent was to put budgetary responsibility with referral and prescribing responsibility, in the hope that it would lead to a more cost-effective system. I think the issue that many noble Lords have is that in the way this has emerged and in the guidance that has been given by the board and the department it is becoming clear that the influence of the individual GPs within this huge structure that is being established is likely to be very limited. On the other hand my Lords, because of the mantra of the Bill and the reforms, patients are likely to believe that it is their GPs who are making the commissioning decisions. Therein lies trouble, because I think the GPs are going to be in a very unenvious position. We as patients will hold them to account for commissioning decisions in a way they have never been held account before, but their influence on commissioning is going to be very limited indeed. I think this has been a very good debate, I beg to withdraw my amendment.