Autism
Lord Clement-Jones Excerpts(12 years, 9 months ago)
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Earl Howe
My Lords, we will certainly consider the idea of an innovation fund during the course of the review. We have allocated some central funding already to support the implementation of the autism strategy, for example in commissioning a range of training products from expert bodies to support local areas and professionals. I hope the noble Lord will agree that the strategy and the statutory guidance that goes with it mark a great step forward for adults with autism in England. We now need to take an honest look at how it is all working and come up with further ideas and actions as necessary.
Lord Clement-Jones
My Lords, I declare an interest as president of Ambitious about Autism. Can my noble friend confirm that the Government’s review of the adult autism strategy will pay close attention to the kind of day support services, such as the NAS’s Horizons service, which the recent Deloitte report, Ending the Other Care Crisis, has demonstrated not only leads to increased quality of life and reduced dependency but has clear economic benefits?
Earl Howe
My noble friend draws attention to a very important strand of support for people with autism. Many people with this condition can benefit from small amounts of advocacy, help and support often through less formal support networks and not necessarily through the local authority. We will certainly be looking at that area.
National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013
Lord Clement-Jones Excerpts(12 years, 11 months ago)
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Lord Clement-Jones
My Lords, I was prepared to disagree with a substantial proportion of the speech by the noble Lord, Lord Hunt of Kings Heath, but I was certainly not prepared to find myself disagreeing with 100% of it, which is the position I find myself in. It is of course regrettable that the original regulations were published late and have had to be revised. As the Secondary Legislation Scrutiny Committee has pointed out, the draft guidance is not yet available and I am sure that this would have allayed many of the fears expressed about the impact of the new regulations. However, it is clearly important that it is subject to extensive consultation and, in the circumstances, it is entirely understandable that it is not yet available.
Especially as I was heavily involved in seeking assurances from my noble friend Lord Howe on the competition aspects of the Health and Social Care Act this time last year, I want to explain some of the background to the revised regulations and why we on these Benches firmly support them. Some weeks ago, I read the original form of these regulations, and we took the clear view that they would need to be changed. In perfectly good faith, they had been too restrictively drafted and did not appear to fulfil the commitment given to noble Lords during the passage of the Health and Social Care Act last March that local GP commissioners would not be forced to put services out to tender.
As a result of our concerns, my noble friends Lady Jolly, Lady Williams of Crosby and I met Health Ministers on the first day that the House returned after the February half-term Recess to discuss the issue. It became clear that some of the problems with the regulations were due to the difficulties of ensuring that the UK abides by European law on competition and tendering; but that the language used in the regulations was, in some cases, inaccurate and in others did not properly reflect the provisions of Section 75 of the Act. Health Ministers agreed with our view that the regulations’ wording at the time could lead CCGs and others to the incorrect belief that they were required to tender for all services. They therefore agreed to work with some of us to redraft the regulations. The new regulations that have been published are a result of those discussions.
The most important change to the regulations clarifies the role of Monitor in regulating and policing contracts entered into by CCGs. The new Regulation 15(2) states very clearly that:
“Monitor may not direct a relevant body”—
that is, a CCG of the NHS commissioning body—
“to hold a competitive tender for the provision of health care services for the purposes of the NHS”.
That makes it absolutely clear that CCGs cannot be forced by Monitor to go out to competitive tender. A number of other changes have been made to clarify how CCGs should decide whether to go out to tender. In particular, there are changes to Regulation 2. This sets the overriding objectives of the CCGs when commissioning. The first and foremost objective states:
“securing the needs of the people who use the services”.
As a result of the changes agreed, Regulation 2 now makes it absolutely clear that CCGs should consider the benefits that providing services in an integrated way can have on their quality and efficiency. Bundling of services is clearly envisaged, indeed encouraged, and the BMA should be entirely reassured on this point. These objectives in Regulation 2 determine how CCGs exercise their powers, including those under the much disputed Regulation 5, which sets out the circumstances in which a contract can be awarded without a competition. Under Regulation 5, it is expressly provided that there may be only one provider capable of delivering the kind of integrated service that the CCG wants to secure for its patients, in which case commissioners would not be forced to put services out to tender.
Many people have expressed their concern that this part of the regulations would make commissioners tender more services than they do now, and this is due to the reference to commissioners having to tender services unless they feel they can be provided by only “one capable provider”. However, there are many proper and valid reasons why commissioners might feel services can be provided by only “one capable provider”. They are, for example, if the commissioner is satisfied that the local hospital needs to maintain a certain number and mix of patients to provide a safe and effective service; if only one provider is able to meet the clinical quality and safety standards required; where only one provider is capable of giving access 24 hours a day, seven days a week; where highly specialised care is involved; and, crucially, where a range of integrated services needs to be delivered. Similarly, nothing under the regulations could force commissioners to fragment services against the interests of their patients.
Moreover, the rules in the regulations simply and accurately reflect the rules that are already imposed by EU law on the NHS. These rules were put in place long before the coalition came to power in May 2010. Procurement guidance for PCTs issued in March 2010 under the previous Labour Government—here is the cover of that PCT procurement guidance—had to conform with it and as result stated, inter alia, in paragraph 2.24 that:
“PCT boards must act transparently and without discrimination and be able to demonstrate rationale for decisions on whether or not to competitively tender. In particular”—
and these are the salient words—
“where the commissioner decides to procure through single tender the rationale must demonstrate that there is only one capable provider to deliver the services and, therefore, that could provide better value for money”.
Incidentally that wording was repeated word for word in subsequent guidance in July 2010. I urge your Lordships to compare that wording with the current Regulation 5. The fact is that the criticism and concern directed at Regulation 5 could equally well have been directed towards the Labour Government's guidance, which, I must emphasise, was the guidance on the procedure and law applicable to PCTs when tendering. In fact the changes to the original regulations ensure that the new rules allow as much discretion as possible within existing EU law. Indeed, CCGs are now in a stronger position than PCTs were under the 2010 Labour Government guidance. The chief executive of the Association of Chief Executives of Voluntary Organisations, Sir Stephen Bubb, has said:
“These regulations will enable charities to do more in partnership with the NHS, not less, and the result will be better services for NHS patients. The regulations should be passed, without falling victim to another political slanging match, so that NHS commissioners and charities can get on with the job of improving the health services made available to the public”.
I also urge your Lordships to read Department of Health legal opinion, which makes the position absolutely clear.
Health: Cancer Drugs Fund
Lord Clement-Jones Excerpts(13 years ago)
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Lord Clement-Jones
My Lords, as regards the introduction of value-based pricing, can the Minister confirm whether cancer patients will be consulted about the definition of value within that concept? Can he confirm that the impact on quality of life will be included in the assessment of value?
Earl Howe
My Lords, we consulted on our proposals for value-based pricing between December 2010 and March 2011, and as part of that process a number of patient organisations contributed their views, which were reflected in the Government’s response to the consultation, published in July 2011.
Health: Cancer
Lord Clement-Jones Excerpts(13 years, 4 months ago)
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Earl Howe
My Lords, I accept that the uncertainty has been unfortunate and, in some cases, damaging. The noble Baroness is right in her broad observations. However, the intent to maintain networks was signalled very early on this summer by the Commissioning Board. The standard operating framework, which will apply to all clinical networks, will be published very shortly. I think that that will provide helpful additional clarity. However, I repeat to the noble Baroness that the aim here is to maintain networks and to ensure that the good work continues and that the expertise which we still have in networks is translated across into the new system.
Lord Clement-Jones
My Lords, the NHS strategy document The Way Forward stresses that, as regards cancer, the new networks will focus very tightly on what is called domain 1 of NHS outcomes, which is reducing mortality. But surely for all those who have experience of cancer, is not enhancing the quality of life absolutely crucial too, and should not the networks be concentrating on that as well?
Earl Howe
Yes, my Lords. While the document to which my noble friend refers does make explicit that the cancer strategic clinical network will be focused around domain 1, which is reducing mortality, nevertheless improvements to patient experience and patient safety underpin all NHS care and those matters will be similarly embedded in the work of all strategic clinical networks.
Health and Social Care Bill
Lord Clement-Jones Excerpts(14 years ago)
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Lord Walton of Detchant
My Lords, I have the greatest respect for my noble friend Lord Owen—a noted Health Secretary and Foreign Secretary, and someone who made a major contribution towards peace in the Balkans. He became, obviously, one of the glitterati of British politics. Many of your Lordships may not be aware that he began training as a registrar in neurology at St Thomas’s Hospital and I often contemplate what might have happened to his future career if he had stuck with neurology and not turned to politics.
While I talk of neurology, may I just say to the noble Lord, Lord Deben, that I was the neurologist on the Southwood working party on BSE which gave advice to the Government on that tragic, difficult problem in 1988? I am very glad that we got that advice right—we learnt a lot about the assessment of risk at that time.
To return to this Bill and the amendment moved by the noble Lord, Lord Owen, which, with some difficulty, I feel that I cannot support, I am a fervent supporter of the National Health Service. I spent much of my professional life working in it and in academic medicine, and when this Bill was introduced into your Lordships’ House I joined with the voices of the BMA, the royal colleges, the nursing organisations and many others in saying that in my opinion the Bill was potentially damaging to the NHS and that it was unacceptable. However, we have moved on. I have been involved with many of your Lordships in the lengthy, at times almost interminable, debates which have improved this Bill beyond recognition. It is not perfect, and there are still issues which perhaps need to be handled by regulation, but it is an infinitely better Bill than the one which came originally into this House. For that reason, any further delay would be unacceptable.
Having said that, I was greatly touched by the wise words of the noble and learned Lord, Lord Mackay of Clashfern, and by the very wise words of the noble Baroness, Lady Williams, who has been a tower of strength throughout all the debates in this House. I genuinely believe that if the medical organisations which are continuing to express their complete opposition to the Bill had fully appreciated the enormous number of amendments that have been carried and accepted by the Government in this House, they would not be continuing to take their stance as fiercely as they are. The Bill has been transformed; for that reason, if your Lordships will forgive the cliché, enough is enough. We are where we are. It is time to give this Bill a Third Reading.
Lord Clement-Jones
My Lords, it is a privilege to follow the noble Lord, Lord Walton, who, as we all know, carries such respect on health matters in this House. I do not doubt the sincerity of the noble Lord, Lord Owen, in his fundamental opposition to the whole Bill. Indeed, he expressed it very clearly in his Observer article yesterday. He put the arguments very fairly on his Motion, but I have absolutely no hesitation in disagreeing with it today—and I say to him, in his capacity as a doctor, that I feel no physical or mental discomfort with a whipped vote on the matter, for the very key reason that my noble friend Lady Williams mentioned.
The risk register whose publication is being requested was written as long ago as November 2010. It will certainly not relate to the Bill being considered today, as it was drawn up many months before the pause in the Bill’s proceedings. Many changes to the Bill were made as a result of the Future Forum process, headed up by Professor Steve Field. The Bill was then changed significantly in Committee and on Report in this House, as the recent House of Commons research paper makes absolutely clear. The risks identified in the register are therefore those of the old Bill, long since superseded, or even of the White Paper which preceded it. It will have been based on worst-case scenarios—
Baroness Tonge
In all sincerity, if the risk register is so totally out of date and bears no relevance at all to the new amended Bill, would its publication not be a wonderful opportunity for this side of the House to show how much it has improved the Bill and dispatched all risks?
Lord Clement-Jones
My Lords, my next sentence was about to deal with precisely the point made by my noble friend. It can therefore be argued that publication now by the Government could, and would, wholly distort rational discussion about the Bill in its present form. The job of scrutiny carried out by your Lordships’ House is to look at every scenario and from the experience of its Members, which is considerable, suggest amendments which mitigate the problems identified. That is precisely what this House has carried out and, I would say, to good effect. However, the Motion is not suggesting that we delay the current Bill against the remote possibility that there is some risk in it which the Department of Health has identified and this House has not. It is saying that we should delay it pending the First-tier Tribunal’s reason for its decision being published.
What will passing this amendment to the Motion therefore achieve? When we know the details of the decision, the Government will still be fully entitled to appeal. They have already won with the strategic risk register, and may well take the view that they will be able to overturn Professor Angel’s decision on the transitional register. Do we want to deny them the right to appeal in the face of the very fact that with one limited exception, which the noble Baroness, Lady Royall, has mentioned, the Labour Government did not publish these risk registers when they were in government? Where would that leave us, even if the detailed reasons become available?
I was slightly taken aback by the use of the expression “rush” from the noble and learned Lord, Lord Falconer of Thoroton. I submit that a debate over revealing an up-to-date risk register might just have some merits, but not in these circumstances, where its contents are of historical interest only.
Lord Grocott
I am certain that the House wants to reach a conclusion, but that is a bad way to start.
Lord Owen
I said that people outside this House consider it to be a flagrant lie. I have been around Parliament long enough to know what I cannot say and what I can.
There is another aspect to the Bill. The Government also fought an election on the basis of a constitutional promise that there would be no increase in the powers of EU legislation unless there was a referendum. There are very serious questions about the Bill as to the impact on EU legislation and the extent to which we will see the Commission making decisions on the National Health Service that it has not hitherto thought it either wise or, possibly, empowered to make. That is the second big constitutional question.
Lord Owen
No, the noble Lord has had his say. All I am saying now to the House is that this is a decision on which there are strong opinions in many ways. A lot of Members will vote just on the basis that under no circumstances do they want risk registers published.
I say only this—that when companies are having an IPO, we legislate for them to produce the fullest, most detailed risk register of this. We also empower them in their annual, and in the case of America in their quarterly, statements to reveal risk registers at a penalty of going to court if they lie about it. There were times in this debate when I almost thought we were being asked to give a complete carte blanche to the Civil Service to say what it liked irrespective. I hope that is not the position of the Cabinet Secretaries and the Permanent Secretaries. It is possible that either a commissioner or a tribunal might look at a risk register and think that there were flagrant factual errors.
I think it is very dangerous to use “principle” on this question, if I may say so to the noble Earl. The principle surely cannot be that under the Freedom of Information Act some risk registers might never need to be published in the public good. That is a judgment on which, as he says, one can then go to appeal. However, there comes a point when one would have to judge against the background of repeated demands for disclosure. It is on this that the House must make up its mind. Can we wait a couple of weeks—three at the most—before the House prorogues to hear the words of the chairman of the appeal tribunal to whom we in the Freedom of Information Act gave the power to make that decision? The fact that it is against the Government does not mean we should give them a carte blanche, and I hope that this House will not do so. I wish therefore to test the opinion of the House.
Health and Social Care Bill
Lord Clement-Jones Excerpts(14 years ago)
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Lord Clement-Jones
“Contravention of section 64 of the Medicines Act 1968: due diligence defence
In section 67 of the Medicines Act 1968 (offences under Part 3), after subsection (2) insert—“(2A) But it is a defence for a person charged with an offence under subsection (2) in respect of a contravention of section 64 to show that the person exercised all due diligence to avoid committing the offence.””
Lord Clement-Jones
My Lords, in moving Amendment 297, I shall speak also to Amendment 301. First, I declare an interest as chairman of the council of the School of Pharmacy, University of London. For the avoidance of doubt from the outset, I will not press these amendments.
In Committee, I moved an amendment to provide a due diligence defence to the currently strict liability criminal offence committed under Section 64 of the Medicines Act 1968. This has the potential to operate very harshly on those making single errors dispensing medicines, whether in retail or hospital pharmacies. The intent of the original amendment was to remove the injustice that pharmacists and some others among healthcare professionals face criminalisation through single dispensing errors.
It was also very importantly designed to increase patient safety by removing barriers to a learning culture within the pharmacy profession and to ensure that pharmacists who wish to declare a dispensing error in the interests of patient safety are not penalised. The formulation of a defence, which gains universal acceptance among the pharmacy profession, has however proved more difficult than originally anticipated. Although the regulator, the General Pharmaceutical Council, has been supportive of the proposed amendment, there is as yet no consensus with the pharmacy professional bodies as to the best way legally of formulating a defence that meets these objectives.
There is, however, a unanimous view among professional pharmacy bodies that it would be better not to amend the Act at this juncture in this way but to wait for the full review of offences under the Medicines Act due to be carried out by the Medicines and Healthcare products Regulatory Agency, the MHRA. There have of course been helpful discussions to this effect with the chief pharmacist and his colleagues at the department, and agreement, as I understand it, that we should go forward on this basis.
In this context, it would extremely helpful for all concerned if the Minister could confirm the timetable for the scoping of the sanctions and penalties in medicines legislation review to be carried out by the MHRA and any other details of the review that he can give at the present time, such as the procedure, the timetable, and the involvement of the regulator—the GPhC—and professional bodies.
Although this is not directly within the gift of the Minister, it would be extremely helpful if he could also indicate that the department will engage with the DPP and the Crown Prosecution Service to encourage them in the mean time to engage with the profession and the regulator in reviewing the prosecution guidelines for offences under the Medicines Act. That would be extremely welcome to all those concerned in the profession. I beg to move.
Lord Hunt of Kings Heath
I must say that I am surprised that the noble Lord moved this amendment. He told me yesterday that he was not going to and did not have the courtesy to tell me that today he is. The amendment raises a very interesting question. No doubt we will be very interested to hear the response of the noble Earl, Lord Howe. He might perhaps add the membership of the review team to the details of the review.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. First, let me say to the noble Lord, Lord Hunt, that no discourtesy at all was intended. We may have misunderstood each other. I never intended to press the amendment, but of course wished to raise the issue in order to get a response from the Minister about the way forward in the absence of this amendment being incorporated in the Bill. I apologise if I inadvertently misled the noble Lord.
We all have the same purpose, which is, as the Minister said, to encourage a learning culture within the profession so that it no longer has hanging over it a lack of a defence to the absolute liability in Section 64 of the Medicines Act; and, it may well be, other aspects of the Act as well, which no doubt will be uncovered as the MHRA carries on its work. I, too, share the Minister’s disappointment that we were not able to agree a suitable solution between the department, the regulator and the pharmacy profession.
I thank the Minister for showing us the way forward with the MHRA review of the scoping that will be done by September 2012. I very much hope that, as he said, the DPP will consider this debate very carefully, and that he will respond favourably and engage in a review of the guidelines. I also reiterate the Minister’s wish and hope that the profession will engage very closely with the MHRA in this review and in any review of the guidelines by the Crown Prosecution Service. In the mean time, I beg leave to withdraw the amendment.
Lord Owen
My Lords, the case has been made extremely well for accepting that one of the most vehement elements of criticism could be somewhat defused if this amendment was accepted by the Government. After all, some people have argued that the whole of Part 3 should be abolished. By accepting that the Government are going to go ahead but just asking that the relevant measures should be phased in seems to me a very rational and reasonable way of acknowledging that there is very deep-seated and justifiable criticism of this legislation.
Reference has been made to the primacy of the need to make the efficiency savings and the need to carry the people in the health service with regard to the provisions in the Bill. I do not want to weary the House by listing the royal colleges that are now opposed to this legislation but it is a staggering development. Nobody can deny the phenomenon that we are seeing; it is unprecedented. I would never have conceived it possible that there would be this degree of professional criticism of the Bill when I first started to look at it and realised that it was in my judgment a very bad Bill. Indeed, it remains so in my judgment. However, I am not here to argue all these cases. This seems to me an important amendment which is geared to accepting that the Government will certainly resist the dropping of Part 3, but may be amenable to phasing it in. Indeed, the Minister might propose a different phasing-in period. It would seem to be a very wise course to deal with the essential elements—the efficiency savings—then bed in some of the other aspects that are new in the Bill and may well be accepted within a short period of time, and leave the element which causes the most deep-seated opposition until later. I hope that the Minister will listen to the argument, reflect it in his speech and be ready to make this important concession to his critics.
Lord Clement-Jones
My Lords, I am afraid that I cannot agree with the noble Lord, Lord Owen, as regards supporting the amendment. However, I appreciate that the noble Baroness, Lady Thornton, has adopted a much more emollient line on Amendment 300A, is not making a full frontal attack on the whole Bill and is looking simply at Part 3. There is certainly an argument to be explored in what she had to say but I cannot understand the logic of why, of all the parts of the Bill that she has talked about today, she is focusing on Part 3. I find it extraordinary that throughout the debates that have taken place on the Bill the Opposition have refused to accept that the National Health Service Act 2006 introduced price competition into the NHS. If Part 3 did nothing else but plug some of the competition problems in the 2006 Act, I would support it.
Baroness Thornton
Would the noble Lord care to tell me to which part of the 2006 Act he is referring because, according to my recollection of the Act, it does not mention the word “competition” anywhere?
Lord Clement-Jones
My Lords, that is precisely the point and that is precisely why the Labour Government were avoiding any argument because that is where the big loophole lies. Any competition lawyer will tell you that that was the point where EU competition law started to bite in the NHS. That is a fact which you cannot deny. The establishment of independent treatment centres constituted a major introduction of the private sector into the health service by the Labour Government. That process was far more unregulated than it will be in the future under this Bill. There were major flaws in the 2006 Act which have never been fully acknowledged by the Labour Party throughout these debates. The noble Baroness’s speech could have been written three or four weeks ago. The Opposition refuse to accept the value and benefit of the amendments that have been made to Part 3 just in the past two weeks. I will not adumbrate them all. I refer the Opposition to the House of Commons paper that has just been written which sets out in great detail something like 2,000 amendments that have been made to the Bill since it started its passage through the House of Commons. We have had Future Forum, we have had 1,000 amendments tabled in this House alone and we have had changes to the Competition Commission’s involvement.
Baroness Thornton
What is the noble Lord’s answer to the question which I put? I was not attacking him and his party. I realise that he has to attack; that is his method of dealing with issues. That is a shame as I have from time to time tempted him not to do so. However, does he accept what the noble Lord, Lord Owen, said about the hundreds of thousands of people and professionals who are fearful of this Bill? Attacking me as much as he likes will not alter that fact.
Lord Clement-Jones
My Lords, I really enjoyed the noble Baroness’s intervention. Today’s news about the change in attitude of the Royal College of General Practitioners shows that we have reached a genuine watershed. It may not have changed its mind absolutely, although it appears that membership pressure is being applied to the leadership of the royal college, but this is a real watershed whereby the acceptance of the fact that the Bill is going through is changing hearts and minds—not just minds but hearts as well. I am far more optimistic than the noble Lord, Lord Owen, because I believe that the other royal colleges will follow suit. They are actually looking at the substance of the Bill, not at some of the alarmist propaganda being put out. They are considering how mergers between foundation trusts will be regulated, how Monitor will do its duty and the additional powers that Monitor will have following consideration by Future Forum and Members of this House. They are also considering the impact of EU competition law following the Pepper v Hart statement that was made the other day. They are looking at the substance, which is exactly the way to look at the Bill. I believe that Part 3 is one of the most valuable parts of the Bill. I did not believe that it was acceptable to start with. That is precisely why I put down amendments in Committee and on Report. I am very pleased to say that it is much improved. The Bill should not be held up because of Part 3. In fact, it should be celebrated because of Part 3.
Lord Newton of Braintree
My Lords, those who have been here will have realised by now that this is one of my “good boy” days. At the risk of seeming sycophantic, even beyond being a good boy, I support every word that my noble friend Lord Clement-Jones has just said. I will refer back in a moment to something the noble Baroness, Lady Thornton, said about former Ministers. This chunk of the Bill—Part 3—is largely about Monitor and includes a lot that the House has been pressing for in terms of increasing Monitor’s power to intervene and do sensible things in a sensible way. It also includes all the stuff about pricing and tariffs, which in my view need to be addressed now, not in four years’ time.
My main point concerns what the noble Baroness, Lady Thornton, said about former Ministers knowing about the problems caused by upheaval. We do. I became very much aware that the publication of a White Paper was the start of a process, not the end. Too often Ministers think that all they have to do is publish an edict and everybody on the ground will carry it out. These things take time, trouble and involve culture change. However—this is the point here—what is equally or even more damaging is year upon year of uncertainty, which is what this amendment seeks to bring about.
I have referred on a number of occasions to the merger/takeover proceedings in which I was involved last year with the health trust that I then chaired. That occurred partly against the background of Monitor and the competition matters that are being changed in this Bill for the better. The worst thing was the uncertainty for everybody involved—the way it was dragging on and nobody knew what the future was. Good people started to leave or think about whether they had a future with the organisation. It would be insane to go down this path and I strongly recommend that the House should not do so.
Baroness Thornton
I thank the noble Earl for his, as usual, extremely expert and very technical response, and I think that he completely missed the point. He did not address the risks that I mentioned all the way through the Bill, the risks that are contingent on implementing so much change so quickly and simultaneously. We will be back here very soon, I suspect, when we will be trying somehow to manage and mend.
I want to make just one or two remarks and will not keep the House very long on this matter. I would like to read to the House a Motion that Liberal Democrat MPs have tabled in the debate that is going on in the Commons right now. Both ends of this building are, as we speak, engaged with their concerns about the Bill. In seeking to amend the Labour amendment in the other place, colleagues of the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, have said that they decline,
“to support the Bill in its current form”,
and they call for,
“an urgent summit of the royal colleges, professional bodies, patients’ organisations and the government to plan health reforms based on the coalition agreement”.
Lord Clement-Jones
Would the noble Baroness like to say how many Liberal Democrat MPs have put their name to that particular Motion?
Baroness Thornton
It does not really matter. Five of his colleagues have put their names to it. The point I am making to the noble Lord is that I agree with them about the way forward. It echoes very much what the noble Baroness, Lady Williams, was saying about recognising the disquiet, hostility and fear that exists towards this Bill, particularly this part.
At the end of the day, the Royal College of General Practitioners and the other royal colleges, trade unions, nurses and doctors are the people who will save our NHS, whatever the Government have decided to do to it. They are the people who will actually deliver the healthcare. That is what the royal college of GPs is saying now. It did not say that it resiled from its position about this Bill; not at all. It is acknowledging that, along with the nurses and everybody else, it will deliver this Bill. It will put patients at the heart of the health system. I think that we should all pay tribute to that and be reassured by it.
The noble Lord, Lord Newton, said that mergers will still proceed. They will still proceed regardless of whether this amendment is agreed. However, he also said that good people leave when there is disruption in the health service. That is very true. They are leaving in their droves. We are losing hundreds if not thousands of good people from the National Health Service because of the past two years, the White Paper and the Bill.
I thank the noble Lord, Lord Crisp, for his remarks—I think he was very wise—and the noble Baroness, Lady Williams, for hers. She is quite right. I am flattered that she took my remarks seriously, because this is not about wrecking the Bill. I did not tackle any of the policy issues that the noble Earl chose to stand up as Aunt Sallies and then knock down. When I introduced the amendment, I said that this was about doing things in an orderly fashion, in a way that would help to save our NHS. That is the point. The noble Earl did not tackle any of the risks that I raised about how to deliver the Nicholson challenge simultaneously with all the other changes in the Bill. In fact, he went close to saying that we have gone too far anyway to stop that. I was not convinced by his remarks about the risks and how they might be mitigated. We need time to work on this. We need time to get support for it, if it goes through. The amendment allows us to do that. I wish to test the opinion of the House.
Health and Social Care Bill
Lord Clement-Jones Excerpts(14 years ago)
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Lord Clement-Jones
Lord Clement-Jones
My Lords, I beg to move Amendment 163BZZB. I am delighted at the response of the noble Baroness, Lady Thornton. Clearly she recognises good drafting when she sees it. I hope she accepts the arguments, in substance, as I put them forward in my speech.
In common with many other Members of this House on all Benches, I expressed a number of concerns about the risk of market competition becoming greatly more prevalent within the health service as a result of the current provisions of the Bill, despite some concessions offered and partly because the Bill failed to fully reflect the intentions of the Future Forum. Our fear was that the Bill contained a number of measures that could increase competition within the NHS at the expense of collaboration and integration.
We were explicit that we are not against competition in the NHS but it must be applied where it is appropriate to do so in the interests of patients. It is not appropriate in all circumstances. Patient and public benefit can often be secured in other ways; for example, integration of services and co-operation between providers, or a mixture of these with competition, are often preferable alternatives.
EU and UK competition law has had some application within the health service for some years now, largely as a result of Labour’s reforms in the 2006 Act, and we should remember that. However, we do not want to see competition law applied universally across the health service so that our health service commissioners and providers are required to operate an entirely market-based NHS without being able to choose where the market and competition should apply and where they should not.
The objective of the Bill and Ministers during its passage must be to put beyond doubt the protection of the NHS from competition as an end in itself where this does not serve the interests of patients. The tests summarised from OFT guidance for whether EU competition law applies to the provision of healthcare for the purposes of the NHS falls into three stages. First, is the provider an “undertaking”? This depends on whether it carries out an “economic activity”. This status may fluctuate over time and apply to some activities and not others of the same provider. Offering or supplying goods or services in a given market is the characteristic feature of an economic activity.
Even if economic, is the activity wholly social in nature rather than commercial? Compulsory healthcare and insurance schemes have been held to be wholly social. The OFT emphasises that this depends on the facts of each case. Even if the provider is an undertaking and the economic activity is not wholly social, is this in relation to services of general economic interest? This is where both Amendment 177, which I am currently speaking to as well as Amendment 178, come in, in addition to Amendment 163BZZA.
SGEIs are protected from some aspects of competition law. Member states are free to designate services as SGEIs and the Commission will challenge such decisions only if it thinks that the member state is in error. In the view of these Benches, the risk of a number of elements of the Bill being taken together increases the likelihood of NHS services being found by English and EU courts to fall within the scope of UK and EU competition law. These include the fact that the Competition Commission is deployed in reviewing the development of competition in the NHS in the provision of healthcare, and the exercise by Monitor of its functions in relation to the provision of healthcare services.
Secondly, the potential deregulation of foundation trusts from 1 April 2016 under Clauses 111 to 114 means that Monitor will no longer from that date have the power to appoint and dismiss foundation trust directors unless the Secretary of State decides otherwise. On oversight of foundation trust mergers by the OFT, we were concerned that ordinary competition rules as a result of the application of Part 3 of the Enterprise Act by virtue of Clause 77 would be applied. Originally, the PPI cap for foundation hospitals was lifted under Clauses 163 and 164, opening the way for the majority of income for some foundation trusts to derive from private patients, which could have led to a loss of status as an organisation promoting social solidarity. This has now been restricted to a maximum of half the revenue of an FT, which helps to mitigate that risk. There are still issues surrounding transparency and authorisation by a foundation trust’s council of governors or Monitor which remain to be resolved with later amendments.
Earl Howe
My Lords, we are talking about Amendment 178A. I disagree with the noble Baroness’s reading of it. It is quite clear what it says. It is geared towards making the NHS the preferred provider. The noble Baroness shakes her head. If I have misunderstood and that is not her intention, I will obviously retract that.
Yet the amendment would increase the risk of commissioners facing legal challenge under procurement law. As the noble Baroness pointed out in 2010,
“procurement must be transparent and non-discriminatory”.—[Official Report, 9/3/10; col. 137.]
Amendment 178A would be a retrograde step. I ask the noble Baroness to withdraw it, as well as the other amendment in this group.
Lord Clement-Jones
My Lords, is the Minister aware that many of us will welcome the statement he made? It was very comprehensive—indeed, more comprehensive than would be possible in many respects under an amendment to the Bill. He has covered so many different areas, both in terms of the provision-commissioning duties of Monitor and also the duties of co-operation.
Lord Clement-Jones
My Lords, clearly I have the Floor. I thought that I had it after the noble Baroness, Lady Thornton, as I was guided. I am very pleased to have the Floor before her.
What my noble friend Lord Howe said was extremely constructive, not only about the state of competition within the health service and some of the patching that had to be done to make up for deficiencies of the 2006 Act, but also to do with competition, the block exemptions available, co-operation and the general duties of Monitor. A law court would probably find it much more useful to have my noble friend’s fuller statement than simply some rather narrow amendment to the Bill. I recognise the deficiencies in my own Amendments 177 and 178. I much prefer the Pepper v Hart solution that has been found and proposed in these circumstances. The dangers of putting matters in the Bill are entirely illustrated by Amendment 178A. The Minister’s criticism of that amendment, which was made to me by expert competition lawyers, of trying to put commissioning in a straitjacket as is proposed—it may give the wrong impression, but it is ineffective in terms of EU procurement law—shows exactly the dangers of trying to put too much into the Bill. The Minister, entirely appropriately, has picked up many of the points made during the course of the Committee and in debate today and put forward a statement that will be used by those looking at provision and commissioning in the NHS in future. On that basis, I wholly welcome it. I may not be able to withdraw my amendment to the amendment, but I shall certainly not be moving my Amendments 177 and 178. I beg leave to withdraw the amendment.
Lord Clement-Jones
My Lords, perhaps I may intervene. Has the noble Baroness received legal advice on the benefits of a Pepper and Hart-type statement versus the kind of amendment that her party has tabled, its effectiveness and the width of the statement made by the Minister?
Baroness Thornton
The noble Lord, Lord Clement-Jones, has a very legalistic manner of addressing the House. Of course I understand exactly what was happening there, and I understand exactly what the deal was between his Benches and the Minister, which was that the noble Lord would get a strong statement in response to his amendment. Is he satisfied with it? If so, he is wrong. That strong statement means that the protection comes when legal action starts to take place. I would prefer the protection to be in the Bill. That is what these amendments are about—protecting the NHS. We disagree about that and the noble Lord knows it. If I may address the Liberal Democrat Benches, it seems likely that the noble Lord’s spring conference will agree more with me than with him. However, that is his party’s problem for this weekend—not ours, for now, on the Bill.
I should like to make two further remarks on the substantive amendment and what the noble Earl said. He suggested that we were making the procurement rules more complex. We were not; we were making them simpler. The NHS deserves protection in the Bill. The Liberal Democrats have made a deal that sells the NHS short, as happened on the issue debated last week on conflict of interest. That is a great shame.
Lord Clement-Jones
I apologise for interrupting the noble Baroness, but does she realise that the more she attacks us, the more chances we have of a very positive outcome at our Gateshead conference?
Baroness Thornton
I was not actually attacking the noble Lord; I was just speculating about what might happen. I feel for Liberal Democrat Peers when they go to their conference this weekend, because they may be in for an uncomfortable time. However, that is absolutely not my business. I will just witness it with interest. It is time that we moved on and I beg leave to withdraw the amendment.
Earl Howe
My Lords, I speak also to Amendments 182 and 183. There is one simple point to Clause 77: it is there to remove the current legal uncertainty and risk of double jeopardy for foundation trusts under the UK’s existing general merger controls. The OFT already has jurisdiction to review foundation trust mergers under the Enterprise Act, but there is legal uncertainty as to when that applies in individual cases. That creates the risk of double jeopardy for foundation trusts under current arrangements, as their mergers are also reviewed by the Co-operation and Competition Panel. Amendments 181 to 183 are minor and technical amendments which make it clear that Clause 77 applies to both completed and anticipated mergers. I will reserve my remarks on the other amendments in the group until I have heard the contributions of the noble Lords who are proposing them. Meanwhile, I beg to move.
Lord Clement-Jones
My Lords, I shall speak to Amendment 184. In Committee, we debated the role of the OFT in merger policy and looking into mergers between foundation trusts. I tabled an amendment because it seemed to me at the time that the Enterprise Act was a relatively blunt instrument for the OFT to use to look at those mergers, compared to the usual way that it would look at the competitive effect or impact on competition of such a merger. The response of the noble Earl, Lord Howe, was extremely helpful in guiding us through the relevant provisions of the Enterprise Act—in particular, pointing out that the OFT has a duty under the Enterprise Act to look at relevant customer benefits.
The issue is that “customer” is not normally how we describe patients in the NHS and the way that the NHS operates is rather different from considering whether Dixons taking over Comet, for instance, will impact on the customer or the consumer. There is a difference. It seemed to me that the best way to handle the matter would be specifically to provide for Monitor to be inserted into the process so that it would give specific advice to the OFT on those matters. Although the definition is “relevant customer benefits”, its perspective would be on the impact on patients.
I appreciate the earlier amendments which the noble Earl has tabled, but this would add the extra dimension to Clause 77 which will enable the OFT and Monitor to have a really powerful role in the way that they oversee foundation trust mergers and, I think, settle some of the concerns which surround Clause 77 as drafted.
Lord Beecham
My Lords, the amendments are a good example of the thickets and undergrowth of the elaborate structures to deal with competition generally in the economy into which the health service is being drawn. I have no doubt that the noble Earl is right in describing the amendments as technical; the amendment of the noble Lord, Lord Clement-Jones, is also technical. It is not the worse for that, but this whole area ought to be removed from the Bill. Our Amendment 184A would remove Clause 77 altogether. Our view is that that elaborate machinery and the use of the Office of Fair Trading is not appropriate for mergers of foundation trusts. Having said that, we do not intend to divide the House; we simply deplore the fact that this machinery, somewhat refined by the amendments, is being cranked up to apply unnecessarily.
Lord Clement-Jones
“(3A) Where the Office of Fair Trading decides to carry out an investigation under Part 3 of the Enterprise Act 2002 of a matter involving an NHS foundation trust, it must as soon as reasonably practicable notify Monitor.
(3B) As soon as reasonably practicable after receiving a notification under subsection (3A), Monitor must provide the Office of Fair Trading with advice on—
(a) the effect of the matter under investigation on benefits (in the form of those within section 30(1)(a) of the Enterprise Act 2002 (relevant customer benefits)) for people who use health care services provided for the purpose of the NHS, and(b) such other matters relating to the matter under investigation as Monitor considers appropriate.”
Earl Howe
My Lords, perhaps I may begin by clarifying the role of the Competition Commission as set out in the Bill because I think that there have been a few misconceptions about this. The commission would not enforce the Competition Act in relation to healthcare services, nor would the commission’s role affect the applicability of competition law to the NHS, and the Bill would not give the Competition Commission direct powers over providers of NHS services.
Instead, the Bill would give the Competition Commission two narrow, specific roles in relation to NHS services. First, the commission would be the independent adjudicator where sufficient providers or, in some cases, commissioners objected to Monitor’s proposals for licence modifications or its methodologies to be used to calculate prices or levies for providers to ensure the continuity of essential services.
Secondly, the Bill currently provides that the commission would undertake reviews of the development of competition in the provision of NHS services and the way that Monitor was fulfilling its functions relating to the provision of such services. Where it concluded that something was or could be averse to the public interest, it could make non-binding recommendations to the Secretary of State, Monitor or the NHS Commissioning Board.
I am aware of a concern that this wording could imply that the review should focus the development of competition as an end in itself. That is absolutely not our intention. That is why commissioners will decide when competition and choice will be used, and indeed whether it will be used, as a means of improving services and enabling patients to have control of their care. To make that clear, we have tabled Amendment 185, which provides that the reviews relate to the effectiveness of competition in realising benefits for NHS patients, rather than the development of competition per se. I hope that noble Lords will agree that this wording provides clarity about the purpose of the reviews and is consistent with the principle that competition should not be pursued as an end in itself. I therefore beg to move Amendment 185.
Lord Clement-Jones
My Lords, it would seem convenient, although it alters the groupings, to talk to my Amendments 186, 187 and 188 at this point.
In Committee—and I am very grateful to the noble Lords, Lord Turnberg and Lord Patel, for supporting these amendments—we flagged our general concern about the risks of EU competition law being applied across the board in the health service. One risk that we considered to be high was the involvement to such a great extent in the Bill of the Competition Commission and, in particular, its role in Clauses 78, 79 and 80, as well as its role in reviewing competition within the health service and the development of competition by Monitor.
On these Benches, we, along with Future Forum and following legal advice, believe that it is necessary and consistent to delete Clause 78, which provides for a review of the exercise of Monitor’s functions and, as I said, the development of competition in the NHS. Government Amendment 185 would of course change this to a review of the effectiveness of competition in the NHS in promoting the interests of those who use the NHS. Nevertheless, we have considerable concerns about the involvement of the Competition Commission. The commission occasionally has to apply non-commission principles in its investigations. It may need to consider, for example, whether media plurality would be undermined by a media merger. However, the commission members and staff are steeped in competition law principles and it is difficult to get them to attribute equal weight to non-competition objectives. The experience of those involved with the commission is that it tends to focus far more on the competition analysis and is often reluctant to accept that it might be required to endorse an outcome that may be suboptimal from a competition perspective in order better to promote other objectives.
Judgments about whether competition or co-operation best promote certain objectives, including health sector objectives, are not clear-cut. Which side of the line people come down on will depend on their standpoints and assumptions about the extent to which competition is helpful in general, as well as on their experience. Regular commission members tend to have a strong bias in favour of the benefits of competition, and that strengthens our view on the inappropriateness of the reviews by the Competition Commission. It is not necessary for there to be a review of this kind either of the NHS or of the operation of Monitor. Indeed, I would argue that its very presence in reviewing both the NHS and Monitor increases the risk of competition law applying more widely.
Following the Future Forum’s report, the purpose of Monitor is no longer primarily to promote competition. Clearly there is now explicit recognition of the overriding importance of the benefits to patients. This is the key determinant of which instrument—competition or integration—is appropriate in the operation of the health service.
I have not put down amendments to the more technical areas where there is Competition Commission involvement. It seems that in many cases that may well be relevant in terms of the tariff and so on. However, we on these Benches believe that Clauses 78, 79 and 80 are a throwback to pre-Future Forum days, and we therefore propose leaving them all out.
Lord Newton of Braintree
My Lords, perhaps I may intervene briefly, if only to avoid withdrawal symptoms from not having spoken on any day this week. I want to support my noble friend Lord Clement-Jones on the general proposition without wishing in any way to threaten mayhem if we do not get a satisfactory reply. The House is well aware, as I have referred to it on a number of occasions, that last year I went through what turned out to be the trauma of trying to engage in what was technically a takeover, although we presented it as a merger, with the neighbouring health trust. That involved Suffolk Mental Health and Norfolk Mental Health. We finally achieved it on New Year's Day, so I am, so to speak, out of work.
There was a real problem. One got the feeling that the people on the competition and collaboration panel, or whatever it was called, which overlaps quite heavily with the Competition Commission, saw us in much the same category—how can I put this without upsetting anyone?—as two rival sellers of washing detergents. They did not recognise that health is not like that. There were health issues, patient safety issues and quality of service issues that needed to trump the competition issues. I know that we have been told that that will happen, but it is very important to make sure that the machinery will ensure that it happens and that the health issues trump those narrower competition issues. All I seek from the Minister is an assurance that, one way or another, that will be the case.
Lord Clement-Jones
Lord Clement-Jones
My Lords, I thank the Minister for what he said. I recognise that it is not easy to take away a piece of architecture that the Government had thought was necessary. I believe that the piece of architecture effectively fell away with the Future Forum report. I do not at all recognise his description of me as “vocal” in any circumstances.
As to the Opposition and the noble Baroness, Lady Thornton, I recognise that it is a bit difficult to acknowledge on the Floor of the House that the Government today made many concessions in collaboration with these Benches. I will promise to be gracious—if the noble Baroness is listening—about the role that she played in tabling these amendments in Committee if she will cease to be ungracious on Twitter about the achievements of, and amendments to, the Bill. I beg to move.
Lord Clement-Jones
Lord Clement-Jones
Baroness Finlay of Llandaff
My Lords, the government amendments are indeed welcome because they reflect concerns that have been expressed. I am sure that all those who expressed those concerns are grateful.
The amendments in my name in this group relate to education and training. I know that we have somewhat threaded education and training through the Bill at all stages. Amendment 192 relates to considering education and training when setting licence conditions, and I put “education and training” because in addition to education, staff training at every level is essential.
I hope that the Government will support the view that no organisation should be fit to provide services if it does not ensure that its staff are being kept up to date and if it is not providing an environment from which people can learn. This does not mean that they all have to be recognised educational providers.
Amendment 196 in this group relates to indemnity. This amendment has been tabled again because, despite the response that we were given in Committee, concerns continue over indemnity for patients. Should a patient develop a problem subsequent to a provider going out of business, they should be covered by indemnity. It is interesting that we have the Legal Aid, Sentencing and Punishment of Offenders Bill in parallel with this Bill. We have concerns over legal aid for medical negligence. I have attached my name to amendments to that Bill concerning legal aid for the victims of clinical negligence.
I hope that the Government will see that there is a need to have indemnity within services, whoever the licensed provider is. There should be a read across to the protection of patients in the event of something going wrong or being done wrong that has harmed them, particularly if they have been harmed in such a way as to incur ongoing costs for healthcare and social care as a result of the problem that arose with the provider, whether it be a voluntary sector provider or a private provider.
Lord Clement-Jones
My Lords, I thank my noble friend Lord Howe for putting forward these amendments, particularly Amendment 193, to which I have added my name. In Committee, we were concerned that the powers of Monitor did not reflect the general spirit of the way in which the Future Forum report talked about the mixture of competition and integration. Although the objectives of Monitor at the beginning of Part 3 were changed to reflect the Future Forum report, some of the back end of Part 3 was not changed to reflect that. These significant amendments, particularly Amendment 193, rebalance the Bill and makes sure that it genuinely reflects the intentions of Future Forum. I am very grateful to my noble friend for putting down these amendments.
Earl Howe
My Lords, this has been an interesting debate and I thank in particular the noble Lords, Lord Patel and Lord Warner, and my noble friend Lady Cumberlege for tabling Amendment 191 and for giving me the opportunity to explain the Government’s thinking on the important issue of patient and public involvement in Monitor’s work. We are very clear that patients must lie at the centre of the reformed NHS and that the Bill establishes mechanisms to ensure that that is the case. Health and well-being boards are part of those arrangements and HealthWatch will have a vital role in giving patients and the public a real voice throughout the NHS. I can therefore understand the intent of Amendment 191—and I wish that I could accept it. However, I am sorry to say that in practical terms it is not workable and I will explain why.
The list in Clause 95(8) relates to consultation but this is expected to take place before bodies such as HealthWatch and health and well-being boards are formally established. In other words, Amendment 191 would impose a statutory requirement with which Monitor could not possibly comply. The list at subsection (8) deliberately includes only those bodies that will be in existence at the expected time of the consultation.
I can nevertheless offer the noble Lord and the House firm reassurances on this issue. First, Clause 95(8)(e) gives Monitor powers to include in the consultation “such other persons” as it “considers appropriate”. Clause 61(7) places a general duty on Monitor to secure the involvement of patients and the public in decisions on the exercise of its functions, and we would firmly expect Monitor to use those powers to involve patients and the public fully in the consultation. Secondly, Clause 95(11) would require Monitor to consult with HealthWatch England, with the NHS Commissioning Board and with every clinical commissioning group in the event that the consultation takes place later than currently expected and after these bodies have been established. I hope that I have been able to reassure the House that Amendment 191 is not only unnecessary, but would actually put Monitor in an extremely difficult position, and that the noble Lord, Lord Patel, will feel able to withdraw the amendment.
I turn now to Amendment 196, tabled by the noble Baroness, Lady Finlay. The amendment raises an important issue, that of making sure that patients receive the compensation to which they are entitled in the unfortunate event that they are harmed as a result of clinical negligence. The Government agree that there must be equivalent safeguards in place for patients irrespective of who provides their NHS services. Currently the NHS contract which providers must hold to deliver services requires adequate and sufficient indemnity arrangements to be in place. In addition, to ensure equivalent protection for the future, the Government’s preference is to enable all providers of NHS services access to the clinical negligence scheme for trusts. That would mean that all providers of NHS services would have access to the same level of protection for patients, whether those providers were private, voluntary or public sector. The department has asked the NHS Litigation Authority for advice on the options for modifying the scheme and expects that new arrangements would be in place for the next round of NHS contracts in April 2013.
I hope, therefore, that the noble Baroness will appreciate that I strongly agree with the spirit of her amendment. Nevertheless, I must set out my concerns around its potential effect, if she is thinking of pressing it. First, the amendment could be implemented by employing organisations requiring indemnity from their own staff. Employees would then have to obtain their own personal indemnity. However, I do not believe it would be right to transfer this burden to staff or that employees would support it. Further, I do not believe it would be cost-effective. My second concern is about potential unintended consequences. Currently the Limitation Act 1990 limits the time available that personal injury claimants have to bring their claim. The overwhelming majority of claimants have three years to make their claim under the terms of that Act. Requiring all providers to hold indemnity for the lifetime of all patients, potentially much longer than a patient’s legal entitlement to make a claim, would be disproportionate and incur significant costs. Overall, the effect of such a wide-reaching clause would be to divert resource unnecessarily away from patient care. I am sure that that is not what the noble Baroness would ever seek to do and I do not believe that it is in the interests of patients or the NHS. I hope that on reflection and in the light of my assurances about what we are planning, the noble Baroness will feel able not to press her amendment.
The noble Baroness also referred to her Amendment 192, which I think we debated in a previous group. The Government have listened to concerns on education and training raised by her and other noble Lords and we have brought forward amendments to require the board and CCGs to have regard to the need to promote education and training when exercising their functions. Further, the Bill requires Monitor in Clause 64(j) to have regard to,
“the need for high standards in the education and training of health care professionals”,
when exercising its functions. I suggest to the noble Baroness that Amendment 192 is not required.
At this juncture, it might be worth quickly reminding the House that all providers of NHS services will be licensed by Monitor. The Royal College of Physicians has sought reassurances on how patient choice of any qualified provider would work. Even though the choice of any qualified provider is not in the Bill, I am happy to confirm that providers would always be required to comply with national quality standards. Under our reforms, providers above a minimum size would be expected to take part in the provision of education and training, and to work within agreed local care pathways to ensure safe and joined-up care. I hope that that is a reassurance not only to the Royal College of Physicians but to other noble Lords.
Earl Howe
My Lords, I shall speak also to government Amendments 197A, 197B, 197C, 198A, 198B, 199A, 199B, 200A, 300ZA and 300ZB.
Monitor will continue as the regulator of NHS foundation trusts, as I have said. We had always intended this to be the case and I welcome the opportunity to clarify our position. Monitor will regulate foundation trusts through a new licensing regime, which it will administer jointly with the Care Quality Commission. This will help to strengthen collaboration between the two regulators. It will license foundation trusts to provide NHS services, as it would license anyone else who wished to do so, to ensure that NHS services are protected as financially sustainable and of high clinical quality.
Part 3 anticipates that Monitor will set differential licence conditions for foundation trusts to reflect their unique status and governance structures. Monitor would have power to intervene and direct foundation trusts to take action to ensure compliance with licence conditions. This would include the power to enforce requirements on foundation trusts to maintain continuity of NHS services and protect essential NHS assets, consistent with its principal purpose, as defined in statute. Those powers are set out in Clause 105. I emphasise that these enforcement powers would not be transitional.
However, I recognise that this was not as clear in the Bill as it could have been. I am grateful to noble Lords, particularly my noble friends Lord Clement-Jones, Lord Marks, Lady Barker and Lady Tyler, for their work in highlighting this issue. I have tabled four amendments to Clause 111—Amendments 196C, 197A, 197B and 197C—which clarify the position. These enduring powers would enable Monitor to require a foundation trust to remove directors or governors in exceptional circumstances as a form of remedial action, where it considered this necessary. This would be appropriate only in the case of a very serious breach of licence conditions.
In addition, for a transitional period until at least 2016, Monitor would retain express powers to fire or suspend foundation trust directors and governors directly. As now, this power could be used only where a foundation trust had failed to comply with a notice from Monitor to remove or suspend individuals itself. These powers are for use when a foundation trust is at risk of breaching its licence conditions to provide NHS services because of a failure of governance. This is more likely in the early years of a trust’s existence, when its governors are all new to the role and are building up their capability to hold its directors to account. That is why the powers consist of those to fire or suspend directors and governors.
I understand the concerns of noble Lords to ensure that this additional power remains available for as long as Parliament considers necessary, while we work with Monitor, the Foundation Trust Network and others to support governors to develop their capability in holding their boards to account. Therefore, I have tabled five amendments—Amendments 198A, 198B, 199A, 199B and 200A—which provide for Monitor to retain this power unless and until the Secretary of State makes an order to withdraw it, either for all foundation trusts or individual trusts. I beg to move.
Lord Clement-Jones
My Lords, I want to speak to my amendments, to express my thanks to the Minister for the amendments that he has tabled, and to give a little rationale for why we were concerned but are now satisfied by the Minister’s amendments. On these Benches we were very concerned about the deregulation of foundation trusts in 2016. We believed that putting foundation trusts on the same footing as all other provider licensees was not only dangerous because of the risk of wider application of competition principles, but undesirable since district general hospitals—essentially foundation trusts—are the core of public provision in the health service. They are public assets, funded either conventionally by the Government or by PFI. Sadly, many of us argued at the time that PFI would be an expensive and inflexible method of financing healthcare infrastructure. Nevertheless, district general hospitals are an essential part of the NHS.
Therefore, we proposed amendments that removed Clauses 111 to 114 and retained Monitor’s special powers over foundation trusts unless terminated by the Secretary of State with the authority of an affirmative resolution of both Houses of Parliament. We were not saying “never” but the Secretary of State, after some years of the new structure, clearly needs to satisfy Parliament as to why particular foundation trusts no longer need to be subject to regulation by Monitor in this way. It may be possible to make the case for the deregulation of foundation trusts in the future, but currently the assumption should be that foundation trusts will be treated differently from other providers in regulation—not just in the transition period but in the medium term—so that Monitor will have the right to appoint and dismiss directors and governors in that period.
To that end, we very much welcome the amendments tabled by the Minister to meet our concerns. Our amendments talk of an order passed by the affirmative process and the Government’s by the negative process but I do not want that to stand between us. The Minister has gone a very long way to meet our concerns, for which I am extremely grateful, as are all my colleagues on these Benches.
Baroness Murphy
My Lords, I have added my name to four of the amendments in this group and I am wholly content that the Government have addressed them satisfactorily.
Health and Social Care Bill
Lord Clement-Jones Excerpts(14 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Clement-Jones
“Power to regulate pharmacists
(1) The Medicines Act 1968 is amended as follows.
(2) After section 58(6) there is inserted—
“(7) Subsection (2)(a) does not apply to the sale or supply of a medicinal product by a person lawfully conducting retail pharmacy business where the sale or supply is in accordance with a prescription and, having exercised all due diligence, believes on reasonable grounds that those requirements have been fulfilled.
(8) The activity under subsection (7) shall be regulated by the General Pharmaceutical Council.
(9) The General Pharmaceutical Council may take what steps it considers necessary under section 6(1) of The Pharmacy Order 2010 (S.I. 2010/231) in relation to a person who performs an activity referred to in subsection (7).”
(3) After section 64(5)(b) there is inserted—
“(6) Subsection (1) does not apply to the sale or supply of a medicinal product by a person lawfully conducting retail pharmacy business where the sale or supply is in accordance with a prescription and that person selling or supplying the product, having exercised all due diligence, believes on reasonable grounds that those requirements have been fulfilled.
(7) The activity under subsection (6) shall be regulated by the General Pharmaceutical Council.
(8) The General Pharmaceutical Council may take what steps it considers necessary under section 6(1) of The Pharmacy Order 2010 (S.I. 2010/231) in relation to a person who performs an activity referred to in subsection (6).”
(4) After section 85(5) there is inserted—
“(6) Subsection (1)(a) to (c) does not apply to the sale or supply of a medicinal product by a person lawfully conducting retail pharmacy business where the sale or supply is in accordance with a prescription and that person selling or supplying the product, having exercised all due diligence, believes on reasonable grounds that those requirements have been fulfilled.
(7) The activity under subsection (1) shall be regulated by the General Pharmaceutical Council.
(8) The General Pharmaceutical Council may take what steps it considers necessary under section 6(1) of The Pharmacy Order 2010 (SI 2010/231) in relation to a person who performs an activity referred to in subsection (6).”.”
Lord Clement-Jones
My Lords, the amendment has been tabled with the support and assistance of the Royal Pharmaceutical Society and has been designed as a new clause that amends the Medicines Act 1968. It is also designed to increase patient safety by removing barriers to a learning culture across the prescription dispensing process, and to remove the injustice that pharmacists alone, among healthcare professionals, face through criminalisation. Single dispensing errors should be treated in a proportionate way that retains the ability to prosecute those who have been negligent or who have committed a deliberate act but that does not penalise pharmacists who wish to declare a dispensing error in the interests of patient safety.
The role of pharmacy continues to be vital to communities throughout England. Pharmacists are at the forefront of providing advice to patients in an increasingly high-pressure environment. In 2010 nearly 927 million prescription items were dispensed in England. This is a 4.6 per cent rise on 2009 and a 67.9 per cent rise on 2000. Despite this, the error rate of dispensing remains minuscule.
What is the background to the current state of the law? Sections 58, 64 and 85 were inserted into the Medicines Act 1968 to regulate the quality of medicinal products being manufactured in pharmacies across the country. There were concerns that the production of these items, primarily creams and solutions that could be prepared to suit to individual needs of patients, required a legal standard of purity. Nowadays, the practice of creating preparations in community pharmacies is practically non-existent. However, these sections of the Medicines Act have been used in a way that they were not originally intended for: to prosecute a pharmacist who makes a single error while dispensing a medicinal product. The law as it stands makes a single error an automatic criminal offence that is punishable by up to two years in prison.
Why should we support this amendment? Currently, pharmacists are expected to declare dispensing errors in the knowledge that they will face prosecution if they do not do so. Clearly, any person who is either wilfully negligent or deliberately acts in a way to harm a person must face prosecution under criminal laws. This amendment would allow that to continue but would also enable a proportionate response for those who make an error. Minor errors should be learnt of and dealt with through improved practice rather than through discouraging healthcare professionals from feeling able to report errors. Decriminalising dispensing errors will be beneficial to patients and the pharmacy profession through the creation of a culture of learning.
The current system goes against the spirit of openness in which pharmacists and other healthcare professionals should be allowed to work, so as to enhance patient safety. This amendment, or something similar, is the right way in which to tackle this important issue. The passage of the current Bill presents an opportunity to tackle this, and one that should not be missed. I beg to move.
Baroness Finlay of Llandaff
My Lords, I support the amendment. It raises a very important issue, namely what happens when an error occurs. At the moment, there is an enormous disincentive for the pharmacist to do what one would say is the right thing, which is immediately to contact the patient, or their family, carer or nursing home, to try to put an immediate stop to the further use of that medication and to do all they can to correct the error. In the law as it is written at the moment there is an in-built incentive to a pharmacist to attempt a cover-up, to weigh up whether the error is a major or minor one or one which they might just get away with, or perhaps even to make a phone call that fudges the issue and tries to cover up the fact that they have made a dispensing error, and to reclaim the medication in another way.
In addition to the importance of a spirit of openness, there is an actual safety issue here. We know from looking at medicine and nursing that when you make it easier for people to admit immediately that they have made an error and to do all they can to correct that error, they are much more likely to handle things in an open and honest way and to learn from it. Certainly I say to all my junior staff, “I know that you will make mistakes. The only thing that I will hold against you for the whole of your career is if you do not immediately notify whoever is the consultant covering you at the time. Mistakes will happen, but you must let people know immediately and take every step to correct them”. I do not see why we should be treating pharmacists in law in a way that works against that type of principle and which is inappropriately punitive.
Earl Howe
My Lords, the amendment relates to an important issue: the concerns among pharmacists about the risk of prosecution where they normally follow good professional practice but make an inadvertent dispensing error. I am very grateful to my noble friend for raising this issue. I warmly welcome the opportunity to discuss it and have been listening carefully to the points made.
We are on the record as saying that we intend to take legislative action to address the issue. We want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. The noble Baroness, Lady Finlay, was quite right about that. However, we need to make any changes in ways that continue to protect patients under the law. The noble Baroness, Lady Pitkeathley, drew our attention to that aspect.
Section 64 of the Medicines Act 1968 provides that,
“No person shall, to the prejudice of the purchaser, sell any medicinal product which is not of the nature or quality demanded by the purchaser”.
This is a strict liability offence, and contrary to what my noble friend stated it does not relate only to pharmacists. Various other healthcare professionals could be affected, as well as other parties who are not subject to professional regulation. Guidance issued to government prosecutors in 2010 has been helpful, but we recognise that it does not remove the underlying problem.
My noble friend is to be commended for raising this issue, but the terms of the proposed amendment present a number of problems that we would need to work through before an appropriate drafting solution could be found. It does not cover other healthcare professionals affected by the current legislation, and in relation to pharmacy it covers only a proportion of pharmacy activity—retail pharmacy—and only where a pharmacist is responding to a prescription. The amendment does not address the different arrangements for the professional regulation of pharmacists that apply in Northern Ireland. There is also some ambiguity as to how it would be determined in practice: that is, whether a pharmacist would be subject to the revised provisions in this amendment. The amendment extends beyond Section 64 and would also change Section 58, on prescription-only medicines, and Section 85, on the labelling of packages and containers of medicinal products, of the Medicines Act 1968.
The legislative ramifications of the issue are therefore quite complex, and I am sure my noble friend will appreciate that we need to get this right. However, let me assure him that we have listened very carefully to the debate and the representations made to us, and that we will continue to work with all relevant parties to find a solution. I also wish to reiterate our commitment to bring forward a suitable legislative change at the earliest possible opportunity. I hope that with those assurances my noble friend will feel able to withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for his response. I also thank all noble Lords and noble Baronesses who have spoken in the debate. I should at the outset have declared an interest as chairman of the council of the School of Pharmacy. My noble friend the Minister has pointed out, quite rightly, that the amendment as drafted only covers the pharmacy profession. He has also pointed out a point picked up by almost all the speakers in the debate, namely that the essence of the provision is the ability to admit and correct error, which is vital in these circumstances.
I welcome very much the forensic way in which the Minister responded to the amendment. I did not think that it was the kind of amendment that would cause Ministers to throw their hands up in the air and say, “Wonderful! We will put this in the Bill”. It needs refining. One of the key issues is that it currently only relates to retail pharmacy. Obviously, it should cover hospital pharmacy as well. There are also issues about Sections 58 and 85 in Northern Ireland.
The Minister has assured us that he has listened very carefully and that he intends to legislate at the earliest possible opportunity. That phrase was very carefully chosen, I am sure, as my noble friend always chooses his words extremely carefully. If the Minister would indicate that, if humanly possible, this will be inserted either on Report or at Third Reading—as the Bill provides a very good opportunity to include reform—I think that the pharmacy profession and others which, as he said, are subject to this kind of disproportionate criminal liability will be extremely happy. I am sure that they would be very grateful to the noble Lord if he could make sure that that was the case. The Minister is not indicating that he is going to say anything further—but maybe he will.
Lord Clement-Jones
My Lords, the Minister chooses an even more felicitous phrase. I thank him, and I look forward to further progress during the course of this Bill. In the mean time, I beg leave to withdraw the amendment.
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Lord Clement-Jones
It seems rather extreme and extraordinary to be plunged into the possibility of a vote on a matter such as this without further consideration of what the Minister has had to say, particularly with a fairly thin House at the moment, although I have some sympathy with the noble Baroness. But it is obviously up to her to make her own dispositions.
Baroness Thornton
My Lords, the problem with transparency and accountability is that the issues of confidentiality and expense are always used as excuses. I do not deny that my own Government almost certainly used them as reasons for not proceeding with issues of confidentiality and accountability. I am struggling with the idea that we should withdraw this amendment, because I feel that this is a really rather important matter. It may be a very small and minor matter, but it is actually rather important and I would like to test the opinion of the House.
Lord Newton of Braintree
My Lords, I will come in very briefly. I declare a past interest as former chairman of the Royal Brompton and Harefield NHS Foundation Trust, which probably has as large a private patient income as any in the country. Frankly, that income considerably benefits the two hospitals and their NHS patients.
I welcome the amendments of my noble friend, and hope that the Minister will give them careful consideration. All of us in this House, not least those of us who are former Ministers of health, have been united in our wish to see a successful and flourishing NHS, and in being really dedicated to it. It would be an oddity if a hospital designated as an NHS trust—whether foundation or otherwise—were treating a majority of patients who were not NHS patients. That is quite a simple proposition, and it is the one advocated by my noble friend Baroness Williams.
The amendments already tabled by my noble friend on the cap on income are extremely welcome and sensible. However, I hope that he might think of—dare I say it—embracing the thoughts of my noble friend Lady Williams as well in some further modification of those amendments so that they refer both to income and to numbers. The numbers thing will be more readily understood by many members of the public. Clearly we do not want NHS trust hospitals to gain most of their income from doing non-NHS work or from treating non-NHS patients. That just does not make sense. It would helpful if we could make that clear.
Lord Clement-Jones
My Lords, my noble friend Lady Williams very clearly set out the approach of these Benches to a number of amendments in this group. I simply want to return to EU competition law for a moment. The noble Earl’s amendment regarding limits on the cap goes quite some way to mitigating one of the elements of risk associated with the greater application of EU competition law. As I outlined on Tuesday, there are some really significant issues in the Bill which will introduce EU competition law to a much greater extent if we are not careful. One of those, clearly, is the uncapping of private patient income of foundation trusts. I am very pleased that the noble Earl has gone some way to dealing with some of those concerns. However, I of course very much share the view of my noble friend Lady Williams that we are not quite there yet, and that it would be belt and braces to have the additional safeguard of a limit on the numbers as well as on the revenue.
Generally, four key issues arise from the changes to Sections 43 and 44 of the 2006 Act, quite apart from that of EU competition law. First, there is the question of limits on the cap—what kind of limit is appropriate? Secondly, there is the question of being absolutely certain that any income from private patients is exclusively devoted to the National Health Service. Thirdly, there is the question of prospective transparency—of being well aware of what the plans of foundation trusts will be. Fourthly, there is the question of transparency after the event, in terms of reporting in an annual report.
As far as the limits on the cap are concerned, as I have mentioned, the noble Earl’s Amendment 299ZA is welcome, but it would be useful if he could consider whether any further qualification of that cap was appropriate. There is also the question of being absolutely certain that we are talking about this income going exclusively to the NHS, which is what my Amendment 299A goes towards—that is why I seek to add the word “exclusive” to the changes to Section 43 of the Act.
On the question of prospective transparency, I very much welcome the Minister’s Amendment 299AZA, but that simply provides for reporting after the fact. It is important to share prospectively with the general public and people in the locality the governors’ process for determining the right balance between private income and the NHS activities in a trust. That is what my amendment seeks to achieve by requiring the situation to be set out in an annual plan.
There are four elements. We are some way down the track towards achieving a number of them. At that point, I think that on at least one of the limbs that I and many others are concerned about—the further introduction of competition law to the NHS—we will be satisfied. We will at least have knocked over one of the green bottles, so to speak, with several more to come.
Earl Howe
My Lords, if the noble Baroness is calling for evidence beyond the testimony of numerous NHS trusts, I am not sure what more I can offer her. I can write to her on this but there is very considerable evidence—almost a priori evidence—that if you restrict a trust’s ability to earn income which would otherwise go to improve facilities for NHS patients, you are damaging the interests of those NHS patients. That is an argument that we have consistently put forward ever since the 2003 legislation. However, it is also an argument that I recall Ministers in the previous Administration making when we last debated this subject at any length.
I was going to point out too that NHS trusts as distinct from foundation trusts do not have a private income cap. A number of them earn private incomes well in excess of many foundation trusts. There is absolutely no evidence that these providers are ignoring NHS patients as their prime responsibility—no evidence at all. A number of noble Lords, not least my noble friend Lady Williams, have tabled amendments in this area to ensure that foundation trusts must protect the interests of NHS patients above all and that public money should not subsidise private care. I wholeheartedly agree with that. I would like reassure noble Lords of the safeguards that the Bill already contains to this end. Some of these safeguards are prospective in nature and some are retrospective.
First, foundation trusts will continue to be bound by their principal legal purpose, which is to provide goods and services for the NHS in England. I am going to move Amendment 299ZA today to state explicitly that “principal purpose” means that the majority of every foundation trust’s income must come from NHS service provision. That amendment will make it certain that the trusts are NHS providers first and foremost. I admit to my noble friend Lady Noakes that this is something of a belt and braces amendment, but I believe that it directly addresses the main concerns voiced by my noble friend Lady Williams.
The second safeguard is that the Bill would make foundation trusts more accountable and transparent to their public and NHS staff. My second amendment in this group, Amendment 299AZA, would support that by requiring every foundation trust to explain in its annual report how its non-NHS income had benefited NHS services. The Bill gives governors, who represent the public and NHS staff, greater powers to hold directors to account and this amendment would help them do so. My noble friend Lord Clement-Jones sought to place additional duties on directors. The Bill would also place an explicit duty on them to promote the success of their foundation trust with a view to maximising benefits for its members and the public. If, for example, directors were to pursue private patient activity against the interests of members and the public, the governors would be able to, and they should, use their new powers to challenge directors or they could use their existing power to remove the chair and non-executive directors.
Lord Clement-Jones
I understand the safeguard aspect there, but what will the members of the trust or the general public know about how a foundation trust plans to use its assets in terms of private patient income?
Earl Howe
My Lords, it will be open to governors to seek information from the boards of directors on the plans that they have for the trust. They will have access to key papers. There should be no difficulty about knowing what the board has in mind for the trust in that strategic sense.
Thirdly, the NHS Commissioning Board and NHS commissioners would be responsible for securing timely care for NHS patients. They would be under a duty to exercise their functions with a view to securing continuous improvements in the quality of NHS services. That is an important provision too.
Finally, to achieve a fairer playing field, Monitor’s licensing regime would allow it to step in to prevent NHS money cross-subsidising private care. Foundation trusts would also be required separately to report to Monitor their NHS and private-funded income. My noble friend Lady Williams said that in her view it would be useful to have in the Bill that the majority of foundation trust patients have to be NHS patients. While I agree with the intent behind that thought, I cannot agree with her two arguments that support the need for an amendment. First, we do not agree that legislation should be used symbolically in this way. Foundation trusts’ principal purpose already covers the point that she raised. Secondly, even if we had such an amendment, it would not make any difference to how the courts interpret and apply EU competition law. It is the nature of the activities that they are undertaking that matter, not how many patients they treat or how much income they earn.
Perhaps I may make a specific point about my noble friend’s Amendments 297 and 299. They would duplicate unnecessarily the legal description of the NHS, which since 1946 has been described as “health service”. Use of the word “national” would be inconsistent with references to the NHS throughout existing legislation.
Just to elaborate on EU competition law, the Bill, as we discussed the other day, does not change the position on EU competition law or the applicability of the law. It remains the case that there is uncertainty on the status of NHS providers as undertakings for the purposes of competition law because no direct case law exists. In so far as foundation trusts already provide private healthcare services, they may be engaged in economic activity. Therefore competition law, both the prohibitions on anti-competitive behaviour and the prohibitions on state aid, may apply to their activities in these markets. Although the Bill would offer more flexibility to participate in these markets if the cap were lifted, it does not mean that foundation trusts are more or less likely to be considered undertakings in their provision of NHS services.
It was suggested by my noble friend Lady Williams that there might be a sort of case-by-case approach to lifting the cap. I recall that that approach was strongly rejected by the previous Government, and for very good reasons. We agree with those reasons. The disadvantages of that approach would be that it would be very difficult to set up a clear system and it would be likely to be difficult to administer and to increase bureaucracy. It would potentially lead to greater variation between foundation trusts and to claims of unfairness between different trusts, which could possibly be a source of litigation. It would maintain the problematic definitional issues around the cap itself. We are not drawn to that approach.
The noble Baroness, Lady Finlay, asked whether we could consider including in guidance to foundation trusts the need to avoid double-paying staff. I think she makes a very interesting point and I can confirm that we will give that some active consideration.
While the principles of some of the amendments tabled by noble Lords are ones that we could all agree with, we believe that the amendments are unnecessary and could be damaging. For example, a requirement for non-NHS income to support only NHS services could mean that foundation trusts would find it impossible to invest in their non-NHS activities and therefore make greater profits to support core NHS work. We want to avoid safeguards, no matter how well intentioned they may be, having a perverse legal consequence on foundation trusts’ ability to innovate.
I hope I have said enough to persuade the noble Baroness to withdraw the amendment because I am completely convinced that the necessary safeguards are there and that what we are proposing are the right things to do.
Lord Clement-Jones
My Lords, I shall intervene briefly before my noble friend Lady Williams sums up on her amendment. What the Minister just said about this relationship between governors and directors and the advancement of the principal purpose of a foundation trust added another dimension. It is not so much the question of the majority of income or of patients coming from the private or the public sector that is important. That is simply a test for competition law purposes. The issue is whether the principal purpose of the foundation trust remains within a social purpose. The element of solidarity established by FENIN is there and it is therefore at less risk of falling totally within EU competition law as an undertaking.
The Minister’s comments bear considerable study, but what he has said does not completely take us out of the risk area. I know he does not use the word “risk” in relation to EU law applying further, but that is certainly the mindset of a number of us looking at these provisions, particularly in relation to the cap. It is the question of social purpose and solidarity that is crucial in law, and the question of whether what my noble friend has done to date is sufficient. I will obviously read his comments carefully but I do not think we are quite there yet.
Baroness Williams of Crosby
I am happy to withdraw the amendment, but I would like the Minister to consider very carefully the words of my noble friend Lord Clement-Jones because my impression is rather the same as his, although on a much weaker basis of expertise. On the one or two occasions when I visited the Commission to discuss this matter, I had a strong sense that social purpose is one of the main criteria that they look at in deciding whether something counts in the area that captures competition law in the EU. I cannot speak about the Competition Commission in England because I do not have enough expertise to do so, but I hope that the Minister will consider what my noble friend has said because I believe that it is a crucial factor for the EU Competition Commissioner.
Lord Clement-Jones
I want to add one further point about “prospectivity”, if there is such a word, and governors and/or directors looking at the activities of the trust. It is important that one considers that point from the social purpose point of view. One can then look at the pattern of activity of the trust and see what investments are going to be devoted to private and NHS patients. That is an important part of looking at the risk factors associated with a purpose not being a social purpose.
Baroness Thornton
I am glad that the two parties of government are in discussion with each other about these matters. However, there are Members on the Cross Benches and on these Benches who also have opinions on these issues. If it is appropriate, we would like to be involved in those discussions.
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Earl Howe
My Lords, I apologise to the noble Baroness if I skirted over the considerable number of questions she asked, and if it would be helpful to her I will write her a letter on all of them. Perhaps I may cover two at this point. As regards her Amendment 282ZC, our expectation is that Monitor’s licensing criteria will be light-touch and broadly drawn, to encompass a wide range of providers. The amendment she has tabled does not lend itself to that approach. Much as I understand the importance of this particular issue, requiring any and every licence applicant to meet a definition of,
“commitment to education, training and research”,
that Monitor has developed does not fit with the principles of proportionate and targeted regulation. But I will write to her with further reasoning on that.
As regards the noble Baroness’s Amendment 282ZB, which is about indemnity, if she will forgive me, again I think that I will have to write to her.
Lord Clement-Jones
I have another amendment on which the Minister might find a lacuna—Amendment 287A, which deals with the Nolan principles.
Baroness Thornton
I am glad that the noble Lord, Lord Clement-Jones, asked that, because I was waiting to hear what the answer would be. I look forward to the noble Earl’s response. I fear that the noble Earl will be spending the whole of the weekend writing letters to all of us about these matters.
I am not going to say very much about this. This has been a divided debate, but many of the questions asked have been similar. The noble Baroness, Lady Williams, was quite right to raise the issue of requirements. She and her noble friend Lord Clement-Jones were right to raise the issue of transparency, which is very important here.
I am not sure that we on these Benches would agree that the checks and balances are the right ones. At this stage, we will wait for the letters from the noble Earl. I will also read his remarks again in Hansard. We may return to discuss this matter again. I beg leave to withdraw the amendment.
Baroness Thornton
We turn now to the very important matter of Monitor and accountability. I see that many noble Lords have amendments in this group, many of them echoing each other. The reason for that is that, given the powerful role that Monitor is to have—whether it will have this role under the regime proposed by the Minister or the alternative architecture proposed by myself earlier today—we think that accountability is very important indeed.
We propose two improvements to Monitor’s governance. We believe that its functions should be exercised in the public interest and therefore that it should meet in public, as the NHS Commissioning Board will. We should also no longer have a combined chair and chief executive post. I hardly need say to the House that this arrangement is totally against established good practice in the public or private sector. I rest that issue there and look forward to the noble Earl’s response.
When foundation trusts were set up, the idea was that they could earn freedoms from traditional NHS management and also bring an element of democratic accountability and community ownership. It must be said that much of this has not materialised. Some foundation trusts up north have made an effort to engage locally with the people they serve. Some have adopted a business model rather than a community ownership model. I am sure that all noble Lords are members of their foundation trusts—I hope that they are and that they take part when asked to do so. The target to push up membership numbers in the trusts seems to have been forgotten.
Being successful in becoming a foundation trust shows that a fairly high barrier was overcome but that represents only the position at one point in time. As with the share market, things can go up or down. Some big-name foundation trusts have had their bad patches. A few, surprising names have been at the edge of intervention. If you compare the list of foundation trusts flagged as being in difficulty by Monitor with the list of ratings from Dr Foster or, in its time, the ratings from the Healthcare Commission, there seems to be no pattern at all. Indeed, a double-excellent foundation trust came close to de-authorisation.
Every large, complex organisation can get into trouble. Past success is no guarantee of future performance nor is it necessarily even a good predictor. That is why we argue that the oversight of foundation trusts by Monitor should continue and its intervention powers should remain. We have long argued for shifting the balance of power and we fully support the idea of earned autonomy with the regulator as an independent judge. But if it is earned it can also be taken back. We shall see what transpires when one foundation trust is obviously unable to present a viable business plan. What will happen to its future?
Monitor has to continue in the role we gave it as the authoriser of foundation trusts as they earn their limited independence. In recent times, it toned down the role it took as the promoter of foundation trusts and as a trade body as a step too far. We argue that Monitor as a regulator should be neutral not a cheerleader. We can accept the principle that it is wrong to favour any type of organisation for arbitrary or political reasons, as is set out in the operating framework. We do not accept the convoluted and ultimately meaningless formulation contained in the Bill. Monitor should retain its intervention powers. We accept the case for autonomy and community ownership but in the final analysis we see foundation trusts as still part of the NHS and so, in the end, subject to the powers of the Secretary of State.
We accept that the governors should be a strong element in foundation trust governance but, as the Bill accepts, they need support and development in that role. Most foundation trusts will say that governor effectiveness takes at least five years but governors, no matter how effective under normal circumstances, may be completely ineffective in times of overwhelming crisis. It is then that the Secretary of State must have the power to intervene to ensure the overall functioning of the NHS and to protect the interests of patients and their communities. A major change here is that the Bill extends the concept of financial regulation to non-foundation trust providers—that is, the private sector. As I have said before, we can see the logic in that.
I am going to skip ahead and do what I said earlier in the Bill: you do every other page of your brief and see whether anybody notices. We have already had a lot of debates about these issues.
Finally, we come to reservations about the interaction between the licensing regime and the use of standard contracts. Actually, we have also discussed that so I will not ask those questions again. We have recently seen missives from the Department of Health and from Monitor exploring the ideas around regulation. It is slightly amazing that these are all coming out now, as helpful as they may be. The general idea, as we have said before about the Bill, is that you should consult on the legislation, allow Parliament its scrutiny role and then implement it. However, as we know, the Bill exhibits the principle of reverse engineering. When its progress was paused to allow consultation, the Government continued to roll out the implementation and the Bill is catching up with that now. We scrutinise the Bill alongside its implementation and the secondary legislation is written up in the form of documents coming out of the Department of Health.
I turn to our amendments in this group. Amendment 260EC provides that the chair and chief executive of Monitor cannot be the same person, Amendment 260GA provides that Monitor must meet in public and Amendment 267D would apply the mandate to Monitor. We think that Amendment 267D might be improved on and might even be better located in Clause 20 on the mandate itself, but the point of it is to raise the idea that the Secretary of State may be given a greater power of direction of Monitor and ultimately boost its accountability. I beg to move.
Lord Clement-Jones
My Lords, I would like to continue the train of thought started by the noble Baroness, Lady Thornton, about the specifics relating to Monitor. I shall speak to Amendments 260F, 260G, 260H, 269A, 294BA, 294BB and 294BC.
First, I may not have got Amendments 260F and 260G, relating to the first chief executive of Monitor, completely right, because Monitor is already in existence, but in principle the chief executive of Monitor should surely be appointed by the Secretary of State in the same way in which the chairman and chief executive of the national Commissioning Board are. As we go through this debate, it will become increasingly obvious that Monitor’s role is as important as that of the NHS Commissioning Board, so I would have thought that having an appointments system on all fours with the board would be imperative. Then again, we come to the question of the provision of information to the Secretary of State. Amendment 260H mirrors the powers possessed by the Secretary of State in relation to the NHS Commissioning Board. It seems sensible that that should be in place as well.
Harking back to our debate on competition and the application of EU competition law, we come on to a rather different issue. This is an interesting place for these amendments to be put. In Clause 118 it is the Competition Commission that deals with the determination of methods of setting prices under the national tariff if there is a disagreement—the Competition Commission has that referred to it by Monitor. For all the reasons that we explored in the debate on the first set of amendments today, it is inappropriate, in my view and in the view of many others, for the Competition Commission to be so heavily involved in matters relating to the NHS. Substituting the Secretary of State for the commission seems to be sensible.
The objection is sometimes raised that we need an independent body in order to set the method. That is a fair point but it is an objection to the Secretary of State doing this entirely on his own, whereas an independent panel appointed by the Secretary of State could do the job equally well. That would ensure that there was some arm’s-length relationship with the Secretary of State in these circumstances. It is quite unnecessary for the Competition Commission to do what is going to be an extremely unfamiliar job for it in assessing the methodology of setting the national tariff—far better that others who will become familiar with it should undertake that task as advisers, consultants or whatever to the Secretary of State. All these amendments make good sense.
Lord Clement-Jones
The Minister said that he thought that the amendments tabled by my noble friend Lady Williams—Amendment 274AB, et cetera—would undermine the role of the Secretary of State and his ability to call Monitor to account. That seems a very far-fetched way to describe an attitude to conflict-resolution. The Secretary of State, particularly under Amendment 274E, is asked to resolve conflict. This is an addition. There is no other way, as far as I can see, of resolving conflict. A key issue, which has also been raised by the noble Lord, Lord Warner, in this debate, has been the multiplicity of roles of Monitor. Therefore, there is a strong need to resolve such conflicts.
I ask the Minister to consider further whether that is really detracting from the Secretary of State's ability to monitor Monitor—in the words of the noble Baroness. We need a mechanism to resolve conflict. Faute de mieux, this seems to be the best one.
Earl Howe
My Lords, I hear what my noble friend says, but the fact is that the amendments he refers to would reduce Monitor’s independence from political interference. We are clear that we do not want political interference in Monitor’s activities. The intent of the amendment is clearly to give the Secretary of State increased accountability for the decisions around Monitor's functions. We believe that Monitor will be an effective regulator and able to deal with conflicts of interest. Clause 63 requires Monitor to resolve conflicts between its functions. If a failure to resolve conflicts between functions was significant, then the Secretary of State already has the power to intervene under Clause 67. Therefore, there is an intervention mechanism but we suggest that it should be triggered only in the circumstances to which I have referred.
The Deputy Chairman of Committees (Viscount Ullswater)
Perhaps I may clarify matters for the Committee. The group that we are now discussing begins with Amendment 265ZA, tabled by the noble Baroness, Lady Finlay, but which she did not move. However, the amendments in the group following that one were called in their place.
Lord Clement-Jones
My Lords, we seem to have skipped a whole group, but for what purpose? I was planning to move Amendment 267ZF. Has there been some discussion between the usual channels?
The Deputy Chairman of Committees
We are on the group beginning with Amendment 265ZA, which was not moved. The next two amendments in the group were also not moved. I then called Amendment 266, tabled by the noble Lord, Lord Warner, which he is now addressing.
Lord Clement-Jones
My Lords, I think that that is inadvertent. We seem to have missed a whole group of amendments.
Baroness Thornton
Perhaps I may help. I think that the thing to do is to deal with this group of amendments and the noble Lord can then move his amendment. We will then take the group of amendments that we should have been taking out of turn. Am I right in that? I think that that is the best thing to do.
Lord Warner
Is the Committee happy for me to continue? I consider that research evidence as is available, such as that carried out by Dr Zack Cooper at the LSE, shows the benefits of competition and supports the view that competition, when used sensibly, improves services for patients and can indeed save lives. It is perfectly possible to support both competition and integration; they are not mutually incompatible. I shall not pursue the evidence base for my views today. However, I should like to clarify briefly the circumstances in which we should be supporting the use of competition in the NHS in the best interests of patients and why it is important to tackle barriers to entry to the NHS market. It is important to recognise that we already have an NHS market in which many NHS providers do indeed compete for patients against other NHS providers. The Bill does not suddenly inject competition into the NHS but merely tries to impose some better rules and a system for regulating that competition.
There are basically three sets of circumstances in which competition could—not should—be used. The first is that, as a matter of principle, all NHS providers should be subject to market testing periodically. The second is when there is clear provider failure and it seems sensible to test the market to establish the best set of arrangements for replacing the failed incumbent. The third is where there is a set of circumstances when the NHS itself—the commissioners in practice—wish to change significantly the way in which services are provided and it is not apparent that the current incumbents can adjust quickly to the patient’s needs. The first set of circumstances has often caused a great deal of angst in the discussion of competition. I certainly do not start from that position. I believe that it is the second and third areas that I have described where we need to examine whether there are real barriers to entry by new providers, irrespective of whether those providers come from elsewhere in the NHS—from the private sector, social enterprise or the voluntary organisations.
Amendment 266 is concerned to establish much more clearly than now what the barriers to NHS market entry are. We know from the work of the collaboration and competition panel that primary care trusts have behaved in anti-competitive ways and have frustrated the best interests of patients. We know from the experience of the East Surrey nurses when they tried to set up a social enterprise how frustrated they were at changing themselves from NHS employees into a social enterprise so that they could compete for NHS business. We know that across the voluntary sector, voluntary organisations have been frustrated over their attempts to compete for NHS services over a long period of time. We also know that many private providers of services find the tendering processes for providing NHS services prolonged and excessively expensive and that they are too often frustrated by shifting political opinions about the desirability of competition.
I could go on with examples of the way in which the NHS has effectively shut the door to new entrants. Some of the most recent examples are the ways in which many primary care trusts divested themselves of their provider services without any proper system of market testing when it was clear that many of those services were extremely inefficient. We need to take the NHS out of its comfort zone in a future where it faces a huge set of demographic and financial challenges. Keeping it in the NHS family is no longer acceptable or in the public interest. We need an independent, authoritative and robust analysis of the barriers to entry to the NHS market so that we can consider what action should be taken to remove those barriers. Amendment 266 proposes that Monitor does this within a year of Royal Assent. I believe that Monitor would welcome being given this assignment but I would be more than willing to consider alternatives if the Government thought, for example, that the Office of Fair Trading was a more appropriate organisation to do the job. It is important that we get this job done as speedily as possible. I also support Amendments 278 and 287 to which the noble Lord, Lord Patel, will be speaking and to which I have added my name.
Baroness Williams of Crosby
My Lords, I am very grateful that Amendment 265C has somehow managed to escape from the tsunami of amendments so that I can bring it to the Committee’s attention very briefly. It is again an amendment that seeks to make sure that when competition is allowed or encouraged—the noble Lord, Lord Warner, has spoken on these lines himself—it should be because it clearly improves the quality of health and the quality of provision within society as a whole. The purpose of Amendment 265C is to make it clear that competition is welcome when it improves the quality of the service; it narrows inequalities; it ensures, in particular, that there should be a better outcome as a result of that competition; and it is, therefore, a relatively qualifying condition to permitting competition to flourish.
We have heard a number of very well informed speeches in the House, not least from the noble Baroness, Lady Meacher, to the effect that in some situations competition can clearly encourage innovation, can improve new approaches and can help in providing the NHS a way forward to deal with the huge problems that we all recognise exist. However, in large part we are also very worried about the idea of competition as the ruling principle of the health services in this country, and we heard a very moving set of evidence from the noble Lord, Lord Owen, and the noble Baroness, Lady Thornton, about the devastation that unrestrained competition can exercise on a health service.
However, having spent 10 years of my life in the United States, I absolutely corroborate that. I know far too many people, one or two of whom are National Health Service refugees to this country, of outstanding talent, who are not in a category where they can afford the huge prices that are charged for complex and chronic conditions in the United States. How do we achieve this difficult balance so as to have competition that improves the quality of the health service but does not bring about the devastation of a great many human beings because they simply cannot afford the cost of complex operations or looking after the chronically ill? The situation of the chronically ill in the United States is pathetic in very many cases.
Therefore, this amendment and several others in this group would enable us to walk this delicate line in a way that permits competition, but competition that is in the interests of the patients of the health service and not competition that could devastate the health service itself.
Lord Clement-Jones
My Lords, I wish to speak to Amendment 287B. In his speech at the outset of today’s debate, the Minister said that there were four areas where he was considering amendments to Part 3, which deals with Monitor. If memory serves, he said there were areas where the Bill had not been completely amended to conform to the Future Forum report. This is a particular example of that.
Clause 96, the supplementary conditions, says it is possible for Monitor to include conditions that require,
“the licence holder to do, or not to do, specified things or things of a specified description … within such period as may be specified in order to prevent anti-competitive behaviour in the provision of health care services for the purposes of the NHS”.
Of course, that mirrors the duties of Monitor as set out in Clause 59, which says:
“Monitor must exercise its functions with a view to preventing anti-competitive behaviour”—
so far, so good. However, Monitor also has a duty to,
“exercise its functions with a view to enabling health care services provided for the purposes of the NHS to be provided in an integrated way where it considers that this would”
improve quality and so on. There is no mirror of that particular duty in the supplementary conditions in Clause 96, which is why this amendment adds the following wording:
“or for the purposes of encouraging the integration of services in the interest of people who use such services”.
A number of other examples are the subjects of amendments as well and will no doubt come up in the course of the Bill. It seems to me that the equal and opposite to the anti-competitive duty of Monitor, which is enshrined in the ability to set conditions and so on, is not mirrored in the integration of services, and this is an extremely good example of that. I very much hope that the Minister will be able to indicate that it is simply an oversight and it should be included in the Bill.
Lord Clement-Jones
Lord Clement-Jones
My Lords, I am sure that this was well worth waiting for, but it could be the mouse that roared. We are back to other aspects of Clause 59 on the general duties of Monitor. This amendment and Amendment 267ZB simply aim to ensure that to discharge its functions Monitor has input from HealthWatch England. That is all about patient and public involvement. It seems to me and to my noble friends that Monitor should definitely insert such input into its deliberations. I cannot find in the rest of the Bill any other such duty on HealthWatch England, which after all will have an extraordinarily important role. Many noble Lords have welcomed the new enhanced role for patient and public involvement. I remember the demise of community health councils and the hard-fought debate that took place in about 2004—I cannot remember exactly when—and I very much welcome the new enhanced role for HealthWatch England. However, Monitor will need to be informed by it and I very much hope that the Government will take this on board. I beg to move.
Baroness Murphy
I realise that I have another amendment in this group, and I would have saved the Committee a great deal of disquiet over the numbers if I had spoken to this one in the first place, so my apologies all round. This group of amendments is about how Monitor discharges its functions and what it takes into account. Mine is a probing amendment on whether we have the objectives for Monitor and their number right. Experience from other sectors suggests that if too many policy priorities are set, the regulator can become confused about its primary objectives, which can reduce its effectiveness. I wonder whether we have the clarity of Monitor’s objectives right.
Monitor will find itself in the position of other regulators in having to devise policies, particularly on the tariff, to meet a wide range of objectives over and above its primary duties. The experience of Ofgem, in particular, suggests that the risk might grow over time as the Government seek solutions for new problems as and when they arise. Setting too many policy priorities carries the risk of confusing the regulator about its primary objectives. That might be inevitable, given the complexity of healthcare policy-making, but it means that the accountability of the regulator in discharging those various functions is critical.
For other major economic regulators, the Government have committed themselves to updating the objectives only once in a Parliament and ensuring that objectives are outcome-focused. Monitor's objectives, unusually, will be set in primary legislation. I wonder whether they would be better in secondary guidance, together with a clear process for agreeing changes with the Department of Health, to protect the regulator from political whim. Nevertheless, it has a number of primary duties in Clause 59. In Clause 62 it has to have regard to a number of other matters. Monitor might find it difficult to demonstrate that they are all taken into account when decisions are made, possibly making it open to legal challenge. I wonder whether it is possible to reduce the number of duties.
I have included just one or two as exemplars simply because I think that they duplicate existing duties. In Clause 62(b),
“the desirability of securing continuous improvement in the quality of health care services for the purpose of the NHS”,
which is crucial, duplicates a primary duty in Clause 59(1)(b), so I think it could be removed. Clause 62(c), on,
“the desirability of securing continuous improvement in the efficiency with which health care services are provided for the purposes of the NHS”,
duplicates a duty under Clause 59(1)(a). Surely that could be removed. These are minor, tidying amendments, but if we can clarify for Monitor what its objectives should be, that would be a help to the regulator.
Baroness Northover
I seem to have been inspired. We do not need primary legislation, it seems, we need regulations subject to the affirmative procedure. However, we are consulting on the best approach to using these. I am sure that that informs the noble Lord far better than my earlier answer, but I return to the point that it is extremely important that we get this right, because we certainly do not want to find ourselves in a situation where things are not as well protected as they were in this last instance.
I will now briefly address government Amendment 270A, which is a minor and technical amendment that makes clear that Monitor is concerned with services provided for the purposes of the NHS. On that basis, I hope that noble Lords will be happy to support it and content to withdraw their own amendments.
Lord Clement-Jones
My Lords, this is a slightly disparate group of amendments so I will certainly not try to respond on any other amendments apart from my own.
I am grateful to my noble friend the Minister for signposting where patient and public involvement come in, in Clause 59(7) and Clause 178, and her explanation that my amendment would “constrain Monitor’s flexibility”. I am always interested in the kinds of response that the department is able to come up with in these circumstances. After all, HealthWatch and the local healthwatch organisations are the creatures of this Bill and of the department, so it seems somewhat extraordinary that these are not specifically mentioned in Clause 59(7). I understand that in broad terms Monitor has the duty to,
“secure that people who use healthcare services, and other members of the public, are involved to an appropriate degree”—
that is a useful word as well—
“in decisions that Monitor makes about the exercise of its functions”.
However, of course, “appropriate” is determined by Monitor. It is not an objective test in those circumstances.
Baroness Northover
I am sorry to interrupt my noble friend, but perhaps I did not make it clear enough that Clause 178 of the Bill allows HealthWatch England to give Monitor advice and provides that Monitor must respond to that.
Lord Clement-Jones
Yes, my Lords, absolutely. I read that with great interest following my noble friend’s speech. However, of course it is still liable to be one-way traffic in terms of healthcare, HealthWatch being the demandeur, rather than being asked by Monitor to provide its advice at the very early stage. So it is not always possible for HealthWatch to know what is in train within the bowels of Monitor, if I may say so, and it will be up to HealthWatch to be extremely nimble in order to divine what is happening within the councils of Monitor, if I may put it that way.
I therefore take the Minister’s reply to be a rather less than whole-hearted endorsement of the role of HealthWatch. That may not be the right interpretation, but it seems a bit strange to be a bit mealy mouthed about HealthWatch when it is actually being created by this Bill. However, I will wait as matters unfold. No doubt we will get to Clause 178 in due course, and I look forward to it. In the mean time, I beg leave to withdraw my amendment.
Lord Clement-Jones
Lord Clement-Jones
My Lords, Monitor has a range of duties which could potentially conflict with each other. Of course, we have discussed that previously, and it is recognised in Clause 63 of the Bill.
In specialised care, it is sometimes desirable to limit the number of providers to ensure that patient volumes are sufficient to support clinical expertise and high quality, safe services, an approach which was promoted by the Bristol inquiry and enshrined in the Carter report on specialised commissioning in 2006. This is entirely consistent with Monitor’s main duty under Clause 59(1), to
“protect and promote the interests of people who use health care services by promoting provision of health care services which is economic, efficient and effective, and maintains or improves the quality of the services”.
However, in terms of one of Monitor’s duties under Clause 59(3), to prevent anti-competitive behaviour, this could potentially be described as a restriction of competition. It is therefore important, I believe, to get a clear understanding that Monitor’s paramount duty should be towards the safety of patients, or, to put this another way, towards their welfare. In other words, it is legitimate for competition to be restricted in the NHS where it is in the interests of patient safety.
This amendment is designed to seek clarification that Monitor’s role in preventing anti-competitive behaviour will not debar the designation of providers of specialised services. I beg to move.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group which really builds on the amendment already spoken to comprehensively and efficiently by the noble Lord, Lord Clement-Jones—that is, to not impose a burden on providers in the process.
One of the difficulties in any type of regulation or inspection is that it is very easy for those who are doing the inspection to require more and more data from a provider to support whatever they view as their outcome and their inspection processes. There is a real danger in here that sometimes the regulatory processes can develop a life of their own, and, quite inadvertently, become a burden on providers. We have already seen that occur with some of the current inspection processes in place, which seem to have collected an inordinate amount of data sometimes, but have missed out on real deficits in care.
It is a paramount duty towards the safety of people who use healthcare services, and built into that of course will be good clinical outcomes, because bad clinical outcomes will be unsafe in the process. However, it is also a suggestion—and this is therefore a probing amendment—that the regulatory burden on the providers must not be excessive. They must be able to deliver patient care without diverting resources away from it in order to meet requirements from a regulator.
Earl Howe
I refer the noble Lord to the remarks I made earlier. The provisions are partly transitional and partly not. It depends on which functions we are looking at.
I come back to the point I was making on the amendment tabled in the name of my noble friend. This provision says that in preventing anti-competitive behaviour that is against patients’ interests or in setting prices, Monitor must ignore the transitional functions it has as the regulator of foundation trusts. If the subsection were left out as the amendment proposes—although I know that it is only a probing amendment—when undertaking its anti-competitive behaviour or pricing functions, Monitor could also consider its transitional intervention powers. That could result in Monitor treating struggling foundation trusts preferentially by, for example, not subjecting them to its anti-competitive powers. I hope that that is helpful to my noble friend.
My noble friend Lord Clement-Jones spoke about the designation of specialist centres and expressed his view that that should not conflict with the prohibitions on anti-competitive behaviour and that, in essence, patients’ interests have to be paramount. I am with him on this and I would like to reassure him that patients’ interests would be the paramount consideration for Monitor in resolving conflicts that arise in the exercise of its functions in this way. Monitor need not take issue with decisions to designate specialist centres where this would improve quality and protect patient safety, even if it reduced competition.
I hope that those remarks are helpful and that my noble friend will feel content to withdraw his amendment.
Lord Clement-Jones
My Lords, I thank my noble friend for that reply, which I have found very helpful. It was robust in one sense and has set out a robust framework in another. Although I was also interested in what the noble Lord, Lord Davies, had to say, in that it would tie us all in knots, I think that the Minister’s exposition was clear in that it has set out a suitable conflict framework. Although I cannot speak for my noble friend Lady Williams, I thought that the Minister explained the necessity for Clause 63(3) very well. His reassurance on the aspect of patients’ interests was extremely helpful as well, although of course it does not mean that the spectre of EU competition law does not still haunt us somewhat and that it will continue to be the subject of discussion, perhaps outside this Chamber. After all, that could override everything else if we are not careful.
I took considerable comfort from the Minister’s undertaking to review Clause 62 as well, because that is quite a shopping list. If it could be clarified, that would be helpful. His general undertaking to the Committee on the conflict area was also very helpful. In the circumstances, I am happy to withdraw my amendment.
Baroness Finlay of Llandaff
My Lords, I want to make a brief comment in response to the Minister’s reply to my amendment in the group, Amendment 274ZAA. He said that he was minded to rationalise the items in Clause 63 and therefore I feel that I must put in a formal plea that research, education and training should not be deleted from the list in the process of rationalisation. Having said that, I shall not press my amendment.
Lord Clement-Jones
Lord Clement-Jones
My Lords, we have gone on rather far. Amendment 276 has not been moved, but that amendment marked the beginning of a group which includes two amendments of mine. In that case, I shall move them when we come to them.
Lord Clement-Jones
My Lords, I will speak to Amendment 292ZA, the question that Clauses 119 and 120 stand part, and Amendment 294M. I shall principally speak to Amendment 292ZA, which is designed to make sure that the national tariff recognises the varying costs associated with people who have experienced homelessness or have complex needs in respect of the full range of healthcare services.
The Bill commits Monitor to publishing a national tariff for services which are or may be provided for the purposes of the NHS. Within this, the Bill makes provision for this tariff to be varied to reflect certain circumstances in which it is provided. However, homeless charities believe that the Bill needs to go further and make provision for tariffs to be varied to reflect the level of complexity and disadvantage experienced by certain patient groups. People who have complex health needs can cost more to treat. Unless the tariff structure reflects this, there is a real danger that services will not wish to treat those patients for whom health outcomes can be harder to achieve—such as homeless people.
Why should this not be reflected in the Bill? There is evidence that health services can already be reluctant to work with homeless people because of the higher costs of treating them. Unless the higher costs of treating some patient groups are taken into account, there is a real danger that the new tariff system may discriminate against homeless people and others with complex needs. In the long term, this will also incur a far higher cost to the NHS and other public services. Failure to treat disadvantaged patients at a primary care level can result in higher rates of hospital admissions, greater demands on acute care and the wider costs of ongoing poor health such as worklessness.
Homeless people have some of the poorest health in our communities. People experiencing acute disadvantage can have complex health needs. As the Department of Health’s Inclusion Health report stated, in order to meet the complex health needs of socially excluded groups, we need,
“a sophisticated, coordinated and flexible response from services. The costs of failure are great not only to the individual life chances of socially excluded clients, but also to the taxpayer, services and the communities who pick up the pieces”.
Unfortunately, many mainstream services do not offer this and as a result are not accessible to disadvantaged patient groups.
Currently, some specialist homeless or vulnerable person’s health services have negotiated their own tariff system so that they are not unduly penalised for treating complex patients. However, this can be difficult to negotiate and such services are not widespread. Unless there is provision for this and the new tariff system takes the wider factors that affect disadvantaged patients into account, services may be disincentivised from treating them. This will lead to poorer health outcomes and make it harder for the NHS to achieve a reduction in health inequalities.
My amendment builds on the commitment to improve the health of the poorest the fastest. The intention to reduce health inequalities through the reform of the NHS has been embedded in the reform process from the first White Paper in 2010. It was revisited by the NHS Future Forum, which flagged up a number of concerns about incentives against cherry-picking at the expense of more complex and expensive patients. In their response, the Government said that services,
“will be covered by a system of prices that accurately reflect clinical complexity”.
My amendment would help to achieve that.
Amendment 292ZB is simply designed to make sure that when Monitor sets prices, and consults on whether to vary prices, it takes into account its duty to promote integration. That is the reason for the reference to Section 13M of the National Health Service Act 2006 and clinical commissioning groups’ duties under Section 14Y of that Act.
On the question that Clauses 119 and 120 stand part, these were referred to in my speech at the beginning of the day—that now seems a long way away. This relates to the reference to the Competition Commission under Clauses 119 and 120. This is also to do with the reference to the method of reaching a price under the national tariff. The Minister dealt earlier with the issue of why an independent body had been chosen for that purpose but it could equally well be the OFT, which I believe would be less provocative and probably more apposite. That was certainly the view of my noble friend Lady Williams when she spoke to her amendment, and I very much hope that the Minister and the department will revisit that issue and see whether it is possible for the OFT to be the body that actually looks at the method of setting tariffs in those circumstances where there is disagreement. That would be a lot less provocative and less liable to introduce EU competition law, along with all the other matters that are involved.
I do not currently have Amendment 294M to hand, sadly, but no doubt I will shortly if I keep talking for slightly longer. It ensures that all providers licensed under chapter 3 and operating in relevant clinical commissioning groups are paid the same price for the provision of services. This is designed entirely to make sure that there is a level playing field within clinical commissioning groups’ areas. I hope that it is the intention in the setting of national tariffs that they will be uniform and there will be no difference in tariff paid by one provider versus another within the same CCG area. With that, I think that I have completed all the amendments that I intended to speak to.
Baroness Finlay of Llandaff
My Lords, I am tempted to say, “Follow that”; I certainly cannot. The reason why my Amendment 294BZA in this group is a probing amendment is that the wording in Clause 117(1)(a) talks about the,
“differences in the costs incurred in providing health care services for the purposes of the NHS to persons of different descriptions”.
It seemed to be extremely elegant and important to have in the Bill a recognition of the wide variation in both physiology and pathology that different people will present with and that that should determine the tariff itself, not simply be part of the consultation.
I hope that the Minister will be able to provide some assurance that findings from the consultation may indeed provide the range. Is it correct that additional support to secure continued access to services could come through commissioners and providers or, if they cannot reach agreement, for providers alone to be able to apply to Monitor for a modification of the price determined in accordance with the national tariff? Is it correct that Monitor would have the ability to approve and/or set the level of the modification under certain circumstances, using a methodology agreed between Monitor and the NHS Commissioning Board, if a provider could not, at the tariff price, cover its cost with an efficient service? One of the difficulties that keep emerging as we discuss tariffs is the complexity of applying them in the enormously wide variety of clinical situations that will be dealt with across the whole of the health services.