Health and Social Care Bill

Lord Clement-Jones Excerpts

Tuesday 13th December 2011 Lords Chamber

Moved by

[Lord Clement-Jones]

278G: Clause 75, page 98, line 25, at end insert—
“( ) The cases referred to in subsections (2) and (3) shall be (in so far they would not otherwise be) “relevant merger situations” for the purposes of Part 3 of the Enterprise Act 2002.”

[Lord Clement-Jones]

My Lords, I shall speak also to Amendment 278H. This is somewhat of a continuation of the debate that we had at the very beginning of the day, and comes back again to the application of EU competition law. However, it also has merit as an amendment which has its own rationale quite apart from avoiding the full rigour of EU competition law.

Under Part 3 of the Enterprise Act, which Clause 75 of the Bill applies to NHS foundation trusts, mergers are normally looked at by the OFT and the Competition Commission. They consider whether the merger would result in anticompetitive outcomes, governed by Sections 35 and 36 of the Act. However, the Secretary of State can intervene under Section 42 of the Act, where he considers that there is one or more relevant public interest consideration specified under Section 58 of the Act. Such considerations are then taken into account in deciding whether the merger should go ahead, even if there are no anticompetitive outcomes.

--- Later in debate ---

The noble Baroness raised the issue of social care matters, and when something is funded out of public money, it seems to me that the Equality Act would bear upon that. However, I take very much what she said about exceptions to this. To clarify this further, I would like to write to noble Lords on those issues. In the light of that, perhaps noble Lords would be willing not to press their amendments.

[Lord Clement-Jones]

My Lords, I thank the Minister for a totally convincing response. The trouble is that it was a response to an amendment that I did not put, although I could have. The amendment which was responded to would have eliminated the OFT from consideration of FT mergers. My amendment was about inserting an additional ground for consideration by the OFT or the Competition Commission, if it went as far as that, so that the public interest was taken into account, as it is in bank mergers nowadays.

I thought that the Minister’s arguments about why the OFT should be involved were wholly convincing—eliminating double jeopardy with the Co-operation and Competition Panel, providing confidence to providers and so on. Mergers are a specialist area. I am sure that the OFT is great at merger consideration. I deliberately did not put down an amendment about the OFT being eliminated from FT mergers—that was the House of Commons amendment to which I referred in the course of my speech.

The noble Baroness’s assertion that the OFT could ensure that patients’ best interests are looked after is precisely my concern. If ordinary merger principles are followed in terms of the OFT looking at the merging of two foundation trusts, I do not believe that it is in law able to take a very close view of what genuinely is in the public interest in terms of provision of a comprehensive National Health Service. I am delighted that the noble Lord, Lord Owen, thought that that was ingenious. Certainly, it seemed to be the logical way to try to get some sense into these foundation trust mergers. Therefore, I very much hope that—

[Baroness Northover]

I do not wish to interrupt my noble friend’s flow. If I have not covered all the areas that he wished to flag up, I will indeed write. However, I made the point that the OFT needed to consider the benefits and the negative sides of mergers in terms of how they would impact on patients. I hope that my noble friend was satisfied at least on that point, even if the leapfrogging and slipping of various amendments from the agenda this evening has tripped me up at this late hour.

[Lord Clement-Jones]

My Lords, we could all be tripped up at this late hour, as, indeed, I was earlier. However, it is a question of what it is possible for the body that is judging the merits of a merger in competition terms to take into account. The reason for including the public interest considerations in the amendment was that the OFT would be extremely limited in the patient considerations that it would be able to take into account. The noble Baroness was pretty sanguine about that. There is still further work to be done in that respect and further consideration needs to be given to the matter. It seems to me that, if nothing else, the question of whether one’s local trust and local foundation hospital will survive as entities is of huge importance to local people and is something that needs to be judged properly with their benefit in mind when the time comes.

Unless I divine that my noble friend is going to give me further guidance or inspiration, I beg leave to withdraw the amendment.

Amendment 278G withdrawn.

Health and Social Care Bill

Lord Clement-Jones Excerpts

Wednesday 7th December 2011 Lords Chamber

[Lord Pannick]

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests—a very difficult balance of interests, as the noble Baroness, Lady Williams, has said—between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

[Lord Clement-Jones]

My Lords, I am very interested in the argument of the noble Lord, Lord Pannick. He seemed to be setting a rather different standard, well above that imposed by the Freedom of Information Act 2000. I have no doubt that the Minister will deal with that argument when he comes to it. However, I believe that the question for the House today is whether we support the Department of Health’s right to appeal against the Information Commissioner’s decision. This has been a much more finely balanced decision than I believe the noble Baroness, Lady Thornton, is prepared to credit, which I find somewhat surprising given her recent role in government. In this kind of situation, with a qualified exemption under the Freedom of Information Act, it is all about whether the balance of public interest is served by disclosure or non-disclosure. The arguments put forward to the commissioner were in relation to two essential aspects. First, there is the “safe space” argument: the importance of government having the freedom to debate policy and make decisions,

“without being hindered by external comment”.

Secondly, there is the “chilling effect” that disclosing information relating to a particular policy, while that policy is still being formulated or developed, could have on,

“the frankness and candour with which relevant parties make future contributions to that particular policy debate”.

These are perfectly respectable arguments and that is why the commissioner found that the factors are finely balanced, as my noble friend Lady Williams said. In the light of the particularly strongly held views of the department—and I believe that these are genuinely held—it seems that it is entirely valid for the department to appeal to the First-tier Tribunal.

However, I agree very strongly with my noble friend that time is of the essence in this case. There is little point on a decision on appeal not being made until March or April; because, as my noble friend has pointed out, the Bill will probably have passed through this House entirely by then. To mitigate the possibility of that kind of delay, my noble friend’s suggestion is entirely right and sensible. The Department of Health and the complainants should apply to the First-tier Tribunal for an expedited hearing. This is well within the tribunal’s case-management powers under paragraph 5 of the procedural rules, which were last set out in 2009. Of course, this is a discretionary power, but I believe that any tribunal would recognise the need to resolve these matters quickly, particularly in the light of the debates we have had in this House. I believe it would be extremely helpful in the circumstances if the Minister indicated the department’s willingness to proceed along these lines. I hope that my noble friend can give a positive response today, even if further time is needed to prepare the case on both sides.

[Lord Turnbull]

My Lords, I was not involved in the earlier exchanges in this House on this issue. Coming to it new, my view is that first, there is a very important issue of public policy here; and secondly, the FOI process, still less the procedural devices in the course of this Bill, is not an effective way of resolving the issue.

The issue is this: in what way should public authorities report on risk ex ante and account for their management of it ex post? A ruling on a request for a specific document from a specific department is, in my view, incapable of addressing that issue adequately.

Let me declare an interest: I am a director of Prudential plc. This, in the jargon, is a SIFI—a significant financial institution—and, as such, it is now required to have a separate risk committee. In the rest of the plc world, risk is still dealt with as the work of the audit committee. I am a member of that risk committee. Looking at its experience, one can identify three categories of material. First, there is a definition in the annual report of the risk universe and the organisation’s risk appetite: capital risk, liquidity risk, credit risk, operational risk, and so on. In addition there is a definition of the organisation’s appetite for risk.

Secondly, the annual report has material on how risk is managed—the so-called three lines of defence: front-line managers, the risk function at the centre, and internal audit. There is then a third category of information. It might be about the risk of falling below a particular level of capital, or the danger of not finding enough liquidity at a crucial time, or the danger that the key supplier might fail or that IT systems might be interrupted. There are also watch lists: what banks or counterparties does one not want to increase one’s exposure to? This is often set out in the diagrams with which many Members of this House will be familiar, in red, amber and green, showing impact, likelihood, a combined score and then the mitigants.

Very little of this category of information is disclosed, for a very good reason. Discussing it can risk making it more difficult to manage the case in question and in some circumstances might crystallise the very event one is trying to avoid. The same should apply to public bodies. Mention has been made of the chilling effect—that is, officials being reluctant to give candid advice more or less in real time. There is also something that has not really been covered by the Act, which I call the “crystallisation effect”. Managers might be reluctant to be frank in public about operational difficulties if that would undermine their ability to make contingency plans or could trigger an event before their plans are ready.

In my view this is the wrong way to resolve this issue. Where the line should be drawn, what is reported and what is withheld should not be decided on a case-by-case basis. The Information Commissioner—indeed, the whole of the FOI Act, in my opinion—is afflicted by the fallacy of composition. Because something is desirable in case A, it will also be desirable in all cases, if all cases alike are treated in the same way. However, if I stand up to get a better view of a football match, I will improve my view; if we all stand up, none of us will. The fact that one cannot take cases in isolation is perfectly illustrated in this case. The Information Commissioner issued a decision on 2 December on a request from the risk register on the NHS reform programme. Yet only the day before, he issued a decision on a different request, I think from a different complainant, on the strategic risk register. It is fanciful to think that those things could be decided independently or that they could be isolated from what happens in the rest of the public sector.

How, therefore, should this issue be dealt with? Not, as I say, by requiring the release of a particular document originally written for a different audience. It would be better if the Information Commissioner had recommended that the Government should set in hand work involving the man known as HOTGAS—the head of the Government accountancy services—and the NAO, to create a framework of best practice on what should be provided in departmental reports, and what operationally should be withheld. It is normally the case that public accounting standards in the private sector have developed over time and the public sectors usually follow with a lag. The reporting of risk and of risk management is in my view the next area for improvement in the public sector accounts, and the role of the CAG should then be to police whether those principles are being followed. In the case of this Bill, I hope that the Minister can be as forthcoming as possible on what the risks are without creating any of the perils that I have indicated.

The Information Commissioner has made a decision so it goes to the tribunal, and the Government’s case would be greatly improved if they were able to indicate that they supported the kind of initiative that I have suggested. Meanwhile, I hope that the noble Baroness, in the light of any assurances and further information from the Minister, will not press her amendment, but if she does I hope that the House will support the Government, on the understanding that the reporting of risk is the next issue to be advanced across public bodies as a whole.

Health and Social Care Bill

Lord Clement-Jones Excerpts

Monday 28th November 2011 Lords Chamber

[Lord Warner]

My Lords, I rise to speak in support of Amendments 124, 125, 126 and 196, which are in my name in this group. These amendments are on slightly different aspects of patient involvement and patient choice in new Sections 13H and 13I in Clause 20.

Amendment 124 adds words to the duty under new Section 13H to promote the involvement of each patient. Nothing seems more likely to promote that involvement than ensuring that patients have easy access to their own medical records and, even better, hold their own medical records. The amendment puts those matters in the Bill as part of the duty of promoting patient involvement in decisions about their treatment and care. If patients are to be involved in decision-making, it is important that they can be confident about the information about them that is being held by clinicians and used by those clinicians in making decisions about them. We have moved a long way from a position in which doctors could say, “Trust me, I’m a doctor”. That is not to say that patients do not place a lot of trust in doctors, but the more examples of systems failure that patients hear about, the more I suspect they will want to be sure about what the system has on record about them. This is particularly true when we are dealing with end-of-life issues. Some of us are very keen to ensure that doctors and nurses observe our advance decisions in living wills that are placed in medical records rather than just make decisions on our behalf.

Amendment 125 literally follows on from Amendment 124 and reflects a number of conversations that several of us have had with National Voices, which speaks on behalf of many charities, especially those representing people with long-term conditions. National Voices, with assistance from the Health Foundation, has drawn on a lot of work to distil what it believes service-users expect from those commissioning care. The noble Baroness, Lady Finlay, referred to the work being done by the Health Foundation. This work with National Voices was born from the huge frustration of patients, service-users and carers about the way that they are often treated by those providing services. National Voices has also set out the results of this work in an excellent document called Principles of Integrated Care. Many Members of this Committee may well have a copy of it. If the Minister has not seen it, I commend it to him. I am certain that it has been sent to Sir David Nicholson. Around 50 chief executives or chairs of voluntary organisations involved with National Voices signed a letter to him, commending this piece of work.

Amendment 125 tries to ensure that there is a clear obligation on clinical commissioning groups to pay heed to patients’ and service-users’ voices in their commissioning of services and that the board issues guidance in this area to clinical commissioning groups. I hope that today the Minister will at least take away this amendment, discuss it in detail with National Voices and those of us who are involved in this area, and agree a version that can be included in the Bill and with which everyone is content. Of course, if he wishes to say “Snap!” to these words, we will be delighted. I emphasise that Amendment 125 does not come from the fertile minds of people in this Committee. It comes from the experience and views of many thousands of people with long-term conditions whose representatives have discussed and researched this very thoroughly within the ambit of the Health Foundation and National Voices.

Amendment 126 is on a different topic altogether. It tries to sharpen the duty of patient choice in new Section 13I in Clause 20, which in my view is pitifully vague. When they are exercising choice, people need to know what the speed of access to diagnosis and treatment is; where the location options and alternative providers of service are; and some information on the different levels of performance by those providers. Choice cannot be exercised in a vacuum. If people are to exercise meaningful choice, they need information that they can draw on to make their decisions about what is best for them. They should not simply be guided to local incumbents, which is too often the case in the system as it works now. Very often, those local incumbents may not be the best option for the patient seeking services for their particular condition at a particular time in their life.

I speak with some confidence on this, having spent two years as a Health Minister trying to advance the cause of patient choice. I have had a fair exposure to clinical views about patients not wanting it and just wanting a good local hospital. I have seen at close quarters commissioners in excessively close relationships with local providers. I have heard the voices of patients frustrated at being denied the information they need to exercise choice. I have experienced, at first hand, consultants declining to place their consultation slots on the Choose and Book system. I know that we need much more than the vague wording of new Section 131 in Clause 20 of the Bill. I hope that the Minister, who I know to be a strong advocate of patient choice, will throw away his brief and say yes, we do need more specific wording of the kind in Amendment 126.

I hope the Minister will do likewise in respect of Amendment 196, which applies the same increased precision to the duty as to patient choice and places it on clinical commissioning groups as well as the board. I will not go over the arguments again, as they are exactly the same as those I have deployed on Amendment 126. It is even more important to disturb the cosiness of provider incumbency when we come to clinical commissioning groups. I have added a little piquancy to the clinical commissioning groups amendment by a specific reference to end-of-life care, where we badly need more options for people to choose from if their preferences are to be delivered.

I have spoken for too long already, but I also wish to add my support to the amendments in the name of the noble Lord, Lord Patel, to which I have added my name.

[Lord Clement-Jones]

My Lords, I shall speak to Amendments 127B and 197B. As they relate to pharmacy, I declare an interest as the chairman of the Council of the School of Pharmacy, University of London. The intention of these amendments is to ensure that all relevant healthcare providers, including community pharmacists, are consulted when the NHS Commissioning Board and commissioning groups are discharging their functions and developing their business and communications plans. The essence of these amendments is to retain the long-standing arrangement whereby, under the 2006 Act, commissioning bodies have to consult widely and in good time with all relevant stakeholders, including local service providers or their representatives.

Under the current system, primary care trusts are required to consult widely in relation to their commissioning duties. There is concern in the pharmacy profession that the current provisions under Clause 20, new Section 13J, for the board, and Clause 23, new Section 14V, for clinical commissioning groups, to obtain appropriate advice are too vague. It is important that consultation with all local healthcare providers should be done via local representative bodies as well as directly with providers. Clinical commissioning groups should consult pharmacy professionals when making decisions in relation to the commissioning of relevant services in order that the professional skills, knowledge and expertise of pharmacists are used in planning, commissioning, delivering and evaluating NHS services. They should also demonstrate arrangements systematically to seek the views of all appropriate local clinical groups throughout the commissioning process, in general and for particular services. This would include ensuring that all local representative committees are fully engaged in the commissioning process and signed up to the outcomes agreed.

As part of their local leadership role, clinical commissioning groups also need open and transparent processes for reconciling different professional perspectives and contingency arrangements for seeking the agreement of non-GP professional groups in the case of urgent service change. These processes should be clearly set out as part of the CCG’s governance procedures for commissioning decision-making. The above will be of particular importance in the immediate term, given the influx of new commissioners into the market, to ensure commissioners commission services effectively. Without relevant healthcare providers being consulted, the different contributions that such providers, including pharmacy, can make to local healthcare could be lost.

If used effectively, pharmacy has the potential to deliver a great deal more both to patients and commissioners. For example, it is estimated that some 57 million GP consultations each year involve minor ailments which could be dealt with at a pharmacy. If these patients could be moved to a pharmacy, more than £812 million could be saved annually, and GP capacity could be freed up to deal with more complex cases.

In summary, it is critical that there is a duty on commissioning groups, when developing their commissioning plans, to consult primary care providers such as pharmacists as there is a danger under the proposed legislation that some groups may not do so, leading to ineffective commissioning of services. At the Royal Pharmaceutical Society Conference in September, the Minister said that pharmacists are pivotal to every aspect of the Government’s plans to modernise the NHS. I find those words very encouraging and hope that he can give further encouragement in the course of this debate.

[Lord Patel]

My Lords, I support the amendment of the noble Lord, Lord Warner, on patients holding their own records. Speaking from personal experience, I know that it was not uncommon in maternity services years and years ago for patients to be given their old, shared maternity card. The difference was that that card was extra to the actual notes, so what doctors and midwives wrote in those cards was probably an abbreviation.

For 25 years of my life, I allowed patients to carry their complete set of records, thus avoiding having to write another card. That meant that what you wrote and what you told the patient had to be precise, and clear thought had to be given to the purpose of writing it down. It also taught people not to use abbreviations that do not mean anything, or that might be misconstrued. It is not uncommon for doctors to use abbreviations such as SOB or NAD. They do not mean what you think they might mean. SOB stands for “Shortness of breath”, and NAD stands for “No abnormality discovered”. This also meant that when you were putting the results of diagnostic tests into the notes you were forced to explain to the patient what those results meant. If the results were ambiguous, then you had to explain to the patient what that ambiguity was. That improved the quality of record keeping, communication with the patient and the quality of care given to the patient. In 25 years of allowing thousands of my patients to carry their own notes—and some of the noble Lords sitting today are well aware of my habits—I lost only two notes. One was eaten by a dog in the patient’s house and the other was torn up after being left by the mother-to-be on a bus. Apart from that, there was no loss of notes, while in hospitals usually you can hardly find any notes.

There is a double issue here. How do we make notes that are compatible—easy to write and yet which communicate with the patient. An electronic version is better, but even a hand-written version works. I am convinced that allowing patients to carry notes is not a problem.

Health and Social Care Bill

Lord Clement-Jones Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Baroness Thornton]

My Lords, I wonder if I might speak to both of the amendments that are down in the name of my noble friend, but also to take a step back from the very competent and skilled amendments and presentations by my noble friend Lord Warner and the noble Lord, Lord Patel. All these amendments also reveal what might be called a profound lack of agreement about what “integration” actually is. It seemed to me that at this point it might be useful to go and scope what people think integration means, and then perhaps ask the Minister to say which of these meanings he prefers, or which he would like to use. For example, the Royal College of Nursing is extremely worried that the combination of a maximum tariff and any qualified provider means that delivering integrated services will become increasingly difficult.

The NHS Confederation confirmed that the definitions of “integration” and “integrated care” to be used by Monitor,

“will allow different kinds of integration. For example: bringing together specialist services like trauma at one site, or integrating a person’s health and social care into one package, or offering a ‘package’ of care across a large population”.

However, it also goes on to say that:

“Though extending the tariff is the best way to ensure competition is on quality”,

in some circumstances,

“it must be recognised that getting the tariff right is a highly complicated task”.

How will this deliver integrated care?

The King's Fund states that:

“Organisational integration appears to be neither necessary nor sufficient to deliver the benefits of integrated care, notwithstanding the achievements of integrated systems such as the Veterans Health Administration”.

It goes on to talk about the Kaiser example mentioned by the noble Lord, Lord Patel. The fund also says that the Government’s reforms being centred on extending patient choice and provider competition includes encouragement to any willing provider to deliver care to patients and to complete separation of commissioning and provision with the NHS. However, the results could be a system in which there is commissioning from and choice between an “increasingly fragmented array” of competing public, private and voluntary sector providers. As a consequence, integration would be difficult to achieve.

The Nuffield Foundation says, on the tariff and incentive integrated care, that the payment by results tariff was designed primarily, as my noble friend said in his initial remarks, to support choice in competition and bring down waiting lists for elective treatment. It does not appear to be well suited to supporting integrated care for people with long-term and complex conditions.

I am sure that the noble Baroness, Lady Young, will talk to us about diabetes, but briefing to us said that people with diabetes already need at least 14 different sorts of NHS services for them to lead long and healthy lives. That seems to be a challenge.

Arthritis Care’s recent response to the Future Forum consultation on integrated services, published a couple of days ago, is very pertinent indeed. It says that:

“‘Integration’ should be broadly understood as providing patient-centred, joined-up care which meets the clinical and personal needs of the patient at every point of their pathway. Arthritis Care fully endorses and recommends National Voices’ Principles for Integrated Care as a key reference point for all discussions on this issue … There must, above all, be a firm focus on the patient. What ‘integration’ looks like is likely to vary geographically and by service, but the specific structures and arrangements matter less than whether services are successfully meeting patient needs and expectations. What it ultimately comes down to is better care for patients and smarter use of resources”.

I think that is absolutely right.

The amendments that my noble friend and I have tabled are Amendments 104A and 178A. Like others in the group, they seek to place a duty on both board and CCGs to take account of the interdependence of services and the impact that the arrangements might have on sustainability, both financial and clinical, of other services. We are concerned that the regime that has been outlined in the Bill places a risk on the coherence of those services. I ask the Minister whether that is on the risk register and what it has to say about the risks that that places on those services.

My noble friend Lord Patel of Bradford, who is unable to be here this evening—I am happy to make these remarks partly on his behalf—is concerned about the disadvantaged people in the care system who are detained under the Mental Health Act. By definition, this is a group of service users who have very little ability to exercise choice or control. In a way, I think that this is a group of people against whom the test of integration and the test of this system should be used. If it can work for this group of people, it may work for others. As they are in a highly vulnerable position, there is an absolute need for integration among health and social care providers that starts at the point of hospital admission and goes right through to the end of their aftercare in the community. The effective provision of such a care pathway requires multiple agencies to work closely together. We know that from many inquiries into suicides and homicides involving people with mental illnesses, and it is highly challenging. There is a very real concern shared by patients, carers, doctors and nurses that encouraging competition in this complex area, without checks and balances to ensure that integration is a primary driver, is very damaging indeed. I know that the noble Baroness, Lady Hollins, will refer to her amendment, and we would support that; I could not have put it better myself.

This is a very complicated and complex issue. It is the first time that we have talked about it in Committee. One thing that the Minister needs to do at this stage is to focus on what the Government mean by different forms of integration and where they will apply and how the Bill will deliver them.

[Lord Clement-Jones]

My Lords, the noble Baroness, Lady Thornton, has given us a very wide range of views on what integration consists of. In putting forward Amendment 135A, perhaps I can add another perspective from the point of view of specialised commissioning.

On 14 November, the Minister lifted the veil, to some extent, on how specialised commissioning would work under the Bill. The Bill brings the budget and responsibility for commissioning specialised services together under the NHS Commissioning Board. That has been welcomed by many, including the Specialised Healthcare Alliance, and it gives a real opportunity to deliver the recommendations of the Carter report of 2006. However, the expected benefits of this new system will be fully realised only if there is effective and real co-ordination between the various parties involved in the commissioning, provision and use of specialised services. However, that increases the challenge of integration under this clause, given the gap that would open up between the board at national level and providers at local level, if no steps were taken to bridge it.

There is a danger that the board’s work would become isolated from local commissioners, providers, clinicians and patients and that proper involvement, collaboration and dialogue with those key stakeholders may not occur. In particular, that could lead to pathways of care becoming disjointed, resulting in a poorer experience for patients, inefficient care and higher costs. In addition, it will be imperative to ensure that clinicians and patients are at the heart of all aspects of specialised services, including specialised commissioning. However, although the full subnational offices of the board which, as I understand it, are proposed would nominally give it a more local presence, they bear no real relationship to where the specialist providers are based and patient flows. The patient organisations within the Specialised Healthcare Alliance, therefore, see it as essential that there should be a more local presence; in their view, four clusters would be inadequate.

At col. 541 of Hansard on 14 November, the Minister was not able to be specific when he spoke about this, but as I understand it there will be around a dozen major hubs. An assurance on the parliamentary record would be very welcome. What form of substructure will there be for specialised commissioning if that is not to be the shape of it? Can he give further clarification today? Will this be delivered by the board or will it be delivered in other forms by way of senate, networks or in other forms?

Having heard from the NHS Alliance yesterday about the need for local variation, I am very attracted by Amendment 197E in the name of the noble Lord, Lord Patel, which to me seems to hit the spot in allowing that variation and giving the CCGs the final say in how they conduct themselves. That has been put to several of us by the NHS Alliance as being absolutely crucial in allowing the various innovations and initiatives to thrive at local level in the CCGs, which are already becoming an interesting and improved way of delivering healthcare.

Health: Cancer Drugs Fund

Lord Clement-Jones Excerpts

Monday 14th November 2011 Lords Chamber

[Earl Howe]

My Lords, I pay tribute to the noble Baroness for her work in this area. She asked what would happen when strategic health authorities are abolished. Arrangements from 1 April 2013, which is the planned abolition date, and beyond will be the subject of discussions between my department and the NHS Commissioning Board Authority. So I cannot give her definite news yet on that front.

I know that the regional clinical panels are using their own judgment to come to decisions, and it is entirely right that they should. At the same time, they are alive to apparent variations in the drugs that are being made available through the fund in different regions, and I understand that the SHA clinical panels are working collectively now to better understand the reasons for those differences.

[Lord Clement-Jones]

My Lords, I welcome the fact that thousands of cancer patients have benefited from the cancer drugs fund, but can the Minister give an assurance that those cancer treatments currently available through the fund will continue to be available when value-based pricing is introduced in 2014?

[Earl Howe]

One of our aims for value-based pricing is to give patients better access to innovative and clinically effective drugs, which, unfortunately, has not always been the case until now, hence the need for the cancer drugs fund. That is certainly one of our ambitions for value-based pricing.

Medicines Act 1968 (Pharmacy) Order 2011

Lord Clement-Jones Excerpts

Monday 17th October 2011 Grand Committee

[Lord Collins of Highbury]

As the noble Earl stated, a lot has changed since the derogation in the directive was put in place. Much has changed in pharmacy arrangements in other EU member states and in the evolution of domestic policy. The reasons, as the Minister stated, were commercial.

In England, for example, there has been a welcome change over the past few years making it easier for people to get to a chemist, given that there are new pharmacies with longer opening hours. Clearly, such market restrictions are not appropriate today, and their removal will assist by increasing the pool of available pharmacists and ensure improved continuity of service delivery. I note that the change has also been welcomed by the key representative bodies of pharmacies.

I of course recognise that the restriction affects a relatively small number of pharmacies—just over 10 per cent, and just over 5 per cent of all pharmacists registered to practise in Great Britain. I also understand and accept the reasons for the change in the Explanatory Memorandum. However, these changes in the legislation raise broader issues relating to the competencies of the pharmacist and the person’s ability to manage a pharmacy. For example, the report on the consultation noted that concerns were expressed by respondents on competency in English. The Department of Health in its response stated that in the UK a check on the language knowledge of a pharmacist from outside the UK who is seeking work within the NHS is applied by the prospective employer, but that there is no check made at the point of registration.

This leads to three specific questions to the Minister. First, are there plans to introduce a standardised competency test to ensure that any pharmacists from the countries mentioned in the order who are in charge of a new pharmacy have all the required skills and competences? Secondly, are there plans to ensure that those in charge of a pharmacy will have a sufficiently high standard of English to avoid all risk of a patient misunderstanding any advice given? Thirdly, how can an employer determine whether the pharmacist in question is qualified in their own country and has no pending fitness-to-practise cases to answer?

[Lord Clement-Jones]

My Lords, I declare an interest as chairman of the council of the School of Pharmacy of the University of London. I thank the noble Earl, Lord Howe, for a crystal clear explanation. I suppose, perforce, it had to be crystal clear to clear up some confusion arising from the Explanatory Memorandum. This is precisely the kind of uncontroversial deregulation that is important in the context. From both professional and consumer perspectives one could say that it is a perfectly formed small regulation. It affects a limited number of people who could not be responsible pharmacists in certain circumstances, but will now be able to be so where there are no significant safety implications from deregulating in the way that this order does.

I want to raise the issue of reciprocity. The noble Earl mentioned that the reason for deregulation is that circumstances have changed. The noble Lord, Lord Collins, also referred to that. I am sure that in broad terms that is the case, but I should be extremely grateful to hear what the noble Earl believes the level of that deregulation would be. I remember doing a study of several EU countries, looking into what was permissible in pharmacy ownership and the level of regulation. That was about five years ago, when the level of regulation was extremely high—not just pharmacy regulation but the kind of licensing required to run a retail outlet, and so on. We have some extremely well run chains in this country, which would like to expand their offer in the EU more broadly. They have been largely frustrated from doing so by some of the regulation that applies. Therefore, reciprocity in these circumstances is extremely important. I am interested to hear just what the Minister believes to be the level of significant deregulation that has taken place.

[Earl Howe]

My Lords, I am grateful to both noble Lords for their support for the order. The noble Lord, Lord Collins, asked me three questions. The first was about whether there are any plans to introduce a standardised competency test to make sure that pharmacists from the various countries mentioned have all the required skills to do their job. Under directive 2005/36/EC on the recognition of professional qualifications, which I mentioned, a pharmacist who holds a recognised qualification issued by one member state is entitled to recognition of that qualification in another member state, and would therefore be entitled to registration with a competent authority, such as the General Pharmaceutical Council.

However, employers of pharmacists should ensure that anybody they employ has the skills required to undertake the specific post. The General Pharmaceutical Council’s standards of conduct, ethics and performance, among other things, require the pharmacist to recognise the limits of their professional competence and practise in only those areas in which they are competent. Their continued registration is subject to adherence to the council’s requirement for continuing professional development—CPD—and standards of conduct, ethics and performance.

Secondly, the noble Lord asked whether there are plans to make sure that those in charge of a pharmacy have a high enough standard of English. The UK Government’s response to the European Commission’s consultation on the review of the directive on the recognition of professional qualifications clearly sets out the view that in the healthcare professions the ability to communicate with patients and service users is vital.

Health and Social Care Bill

Lord Clement-Jones Excerpts

Tuesday 11th October 2011 Lords Chamber

[Lord Clement-Jones]

My Lords, it is a privilege to follow that superb speech by the noble Lord, Lord Darzi, and I agree with almost every word he said.

First, I declare an interest as a member of the College of Medicine advisory board and as chair of the council of the School of Pharmacy. What the noble Lord, Lord Darzi, has said reinforces my view that this is a classic “I would not have started from here” situation. After all the major structural changes under the last Government, I am more than ever convinced that constant structural change is damaging to the NHS. I believe that reforms designed to achieve changes of culture more than complex changes in structure are far more effective in the long run at meeting challenges.

With much improved treatments and longer lifespans, coping with long-term conditions in health and social care is now the greatest challenge for the NHS. As a result, we need a health system that is capable of meeting huge challenges such as diabetes and obesity. As the Future Forum says, we need a reassessment of the “old model” of hospital care, where domiciliary and community care are available and adequately resourced. Patients must be able to take more responsibility for their own health. They must have more power and choice in the system, both as citizens and consumers. There must be much better integration of health and social care.

The current NHS is by no means perfectly adapted to tackling these future health needs. This is compounded by a financial context in which we need to meet the Nicholson challenge of productivity savings of £20 billion over the next five years in order to be able to meet future patient needs. However, this has been poorly communicated. We need transparency about how and why money is being saved in the NHS. At present, to many in the health service, it looks as though cuts are being made rather than resources being redeployed.

However, let me be clear: I welcome many of the elements in the Bill, particularly the improvements conceded after the Future Forum report. I congratulate Professor Field and his colleagues on their work. I welcome the recognition that the paramount duty of Monitor as health regulator must be,

“to protect and promote the interests of people who use health care services”,

and that where appropriate Monitor must exercise its functions in an integrated way to achieve this both within the NHS and between health and social care.

On these Benches we have long supported devolving power to local communities. I welcome the fact that through health and well-being boards, health and social care will be brought together in local communities and local authorities will take on new responsibilities for securing and improving public health. I also welcome a less aggressive timetable for the reforms and commissioning closer to the clinicians.

Therefore, I believe that the Bill is heading in broadly the right direction but there are several elements that I hope to see examined very carefully during its passage. Are the new structures too cumbersome and complex? Will the CCGs and clusters have sufficient weight and expertise when commissioning from foundation trusts? How will CCGs work together in commissioning for less common conditions?

In particular, I want to probe the role that community pharmacists can play in these new NHS structures. There is absolutely no doubt about the contribution that community pharmacies can make. However, there is much untapped potential and many underused facilities, despite pharmacies gearing up to deliver enhanced services such as screening, health checks and medicines management. What will their place be within the new health and well-being boards? What representation of and consultation with community pharmacy will there be throughout the new commissioning system, at NCB and CCG level? Should there be a duty on these commissioning groups to consult widely as there is currently with PCTs? My noble friend the Minister recently told the Royal Pharmaceutical Society that pharmacists will be “at the heart of the new commissioning arrangements”—in what way?

There is the future place of the health networks, in particular their funding for cancer, cardiac and diabetes. Do they have a long-term future? Then there is the fraught area of competition. Generally I support the ambition of commissioning any qualified provider in appropriate areas subject to a system of local and national tariffs. Under the previous Government, procurement by PCTs from the private and voluntary sector was encouraged in a number of areas such as podiatry, psychological therapies and wheelchair services. The right sort of competition between providers can drive improvements in quality and efficiency and hence patient care and choice. However, this is definitely not the case in all services and the challenge is ensuring that this can happen in selected areas without opening up the NHS to legal action in a way that lets European competition law rip and dismantles the fundamentals of the health service as we know it.

European competition law could bite in unexpected ways. The application of competition law to the NHS under existing law has been a grey area for some years. It is not a new issue but we should not do anything to exacerbate it. It is crucial that for the purposes of EU law applied by the Competition Act and the Enterprise Act, publicly funded trusts are not regarded as “undertakings”, otherwise the full rigour of competition law will apply. The limited European case law seems to indicate that it will not if services are provided on a universal basis on the principle of solidarity.

Therefore, I welcome some of the changes that have already been made to Monitor’s duties, mentioned earlier. However, there are other aspects that I and others believe, and are advised, are less positive and will lead to the risks that I have described: the lifting of the cap on foundation trusts’ private patient income, which could set foundation trusts directly in unfettered commercial competition with the private sector and risk claims of cross-subsidisation; and the termination of foundation trust regulation in 2016. I also have my doubts about whether putting the Principles and Rules of Co-operation and Competition on a statutory footing will be a step in the right direction since this could amount to an admission that the full rigour of competition law is to apply. We need to examine all these matters in depth as the Bill progresses.

Finally, of course, we have the issue that has attracted the greatest attention in recent weeks. The Constitution Committee asked whether the change in the Secretary of State’s duties and powers under the Bill threatens the operation of a comprehensive health service. I do not believe in substance that it does but we will want to consider this extremely carefully during the passage of the Bill and in particular the autonomy provisions.

The House has yet to hear from the noble Lord, Lord Owen, but I am convinced that we absolutely do not need a Select Committee to examine this matter. A Committee of this House sitting in this Chamber is perfectly competent and capable of examining this issue with great care. On that basis, tomorrow I shall be firmly voting against the proposition put forward the noble Lord, Lord Owen.

NHS: Cost-effectiveness

Lord Clement-Jones Excerpts

Monday 12th September 2011 Lords Chamber

[Earl Howe]

My Lords, I must point out one thing about this report: it does not make any claims for how cost-effective our health system was at any given point in time. What it does is measure the improvement in mortality over a period and then assess the cost-effectiveness of that improvement, which is a very different thing. Yes, the NHS has made great strides in improving mortality rates, but that is the only metric that the report deals with. It completely ignores other measures of quality. It is also completely silent about anything that happened after 2005, so recent years are not covered.

[Lord Clement-Jones]

Is not the really difficult and vital context in which we find ourselves at the moment the fact that we need significantly to improve productivity in the NHS in line with the so-called Nicholson challenge, which was endorsed by both this Government and the previous one? Can the Minister remind us of the record under the previous Government and tell us what he expects to be the outcome of the current health reforms?

[Earl Howe]

I am grateful to my noble friend. A Written Answer was published in Hansard recently that tracked the changes in productivity of the NHS between 1996 and 2008. He will know if he read it that there was a decrease in productivity over that period of around 3.1 per cent. The pressures on the NHS are increasing. In order for it to respond to the needs of the future, including an ageing population and the cost of new technologies, it needs to adapt to new ways of working that reduce cost pressures while delivering improved outcomes. The measures that are before Parliament seek to do just that.