Learning Disabilities: Health and Care Services

Lord Hunt of Kings Heath Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Earl Howe]

My Lords, the report contains a number of important recommendations which we will consider. This report was commissioned by NHS England for NHS England, to make recommendations for a national commissioning framework under which local commissioners would secure community-based support for people with learning disabilities and/or autism. It is an important report, it is right that we take a bit of time to digest it, and, together with NHS England, we are looking carefully to do just that.

[Lord Hunt of Kings Heath (Lab)]

My Lords, can the noble Earl clarify something? He knows that NHS England set a target of June 2014 to stop placing people with learning disabilities in inappropriate in-patient facilities. It appears that that has not been followed through by clinical commissioning groups. Can he confirm that, and say whether the Government will discuss with the regulator, the Care Quality Commission, whether a moratorium on the approval of new registrations for inappropriate in-patient facilities will be considered as part of the reforms that need to take place?

[Earl Howe]

The noble Lord is quite right that progress has not been nearly as swift as we, or indeed anyone, would have liked. NHS England has stated its ambition to achieve a 50% reduction in the number of people who were in in-patient beds on 1 April this year by March 2015. Although the latest data for November shows that some 2,600 people were in in-patient settings, the number of people with a transfer date has gone up by more than 1,100 in the last three months, so progress is being made. On CQC registration, the CQC may at any time decline to register or indeed cancel the registration of a provider where it is failing to comply with the registration requirements set out in law. That includes the new duty of candour and the fit and proper persons requirement, which came into effect at the end of last month.

HIV: Stigma

Lord Hunt of Kings Heath Excerpts

Monday 1st December 2014 Lords Chamber

[Earl Howe]

Yes, indeed, my Lords. I can tell my noble friend that there is such co-operation and constant communication between the public health authorities in England and the devolved Administrations on this, as on many other matters.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl made it clear in answer to my noble friend that academies are not subject to the core nature of the curriculum as regards sex and relationship education. As he will know, there have recently been a number of inspections by Ofsted that have shown up defects in the approach of schools to sex and relationship education. Surely that gives rise to concern that the issue of stigma is simply not being addressed properly in some schools. Is his department willing to take this up with Ofsted?

[Earl Howe]

I would be happy to do that.

HIV: Late Diagnosis

Lord Hunt of Kings Heath Excerpts

Monday 1st December 2014 Lords Chamber

[Earl Howe]

The noble and learned Baroness is absolutely right. Those who are at risk of partner violence are of course at greater risk of contracting a sexually transmitted disease. We know this to be true particularly in countries overseas. The work to combat domestic violence, which the noble and learned Baroness is very familiar with, continues. It is vital, not just in this area of work but more generally in the field of mental health, to ensure that women at risk of violence—particularly women—have a place of refuge and a source of advice.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am sure that the new money would be even more welcome if it had not consisted of quite a lot of old money rebadged. The noble Earl referred to the three-year HIV prevention campaign, which promoted testing and condom use. Perhaps I might ask him about how the campaign will go forward. Are the Government going to fund such a campaign and for how long, and can he say what proportion is going to be spent in the future compared with the past?

[Earl Howe]

My Lords, the Terrence Higgins Trust is the vehicle through which we conduct campaigns. Terrence Higgins has a three-year contract, which ends in March next year. We have yet to finalise all our spending commitments from April 2015. We expect that the funding for Terrence Higgins will have to be pared back by some measure because of the current funding constraints, but we are in discussion with Terrence Higgins about that.

Nursing and Midwifery (Amendment) Order 2014

Lord Hunt of Kings Heath Excerpts

Thursday 27th November 2014 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, am very grateful to the noble Earl, Lord Howe, for explaining the details of the order so clearly. However, he did not mention the Law Commission proposals for legislative changes relating to all health regulatory bodies. I note that the Explanatory Memorandum says that the Government will publish a response in due course, but I have to say that there is huge disappointment among the regulators that no Bill appeared this Session—not even one for pre-legislative scrutiny. Essentially, we are now faced with a series of Section 60 orders dealing with the regulatory bodies in an individual and piecemeal way, without the consistency and modernisation of the regulatory landscape that was promised by the Law Commission work. I hope that the noble Earl will be able to say a little more about when the Government will publish their response to the Law Commission proposals and perhaps give a little more information about how he sees the pipeline for Section 60 orders coming forward.

In particular, he will know that, in relation to the NMC, part of the Law Commission proposals were that there would be a reduction in the number of public hearings that have to take place. That would reduce the cost to the NMC and the time it takes to deal with cases. Given that we are not having primary legislation, is it the Government’s intention to bring forward as quickly as possible a Section 60 order in relation to that? As far as the proposals in this order are concerned, they seem sensible and unexceptional. I hope that they will lead to the NMC being able to be more efficient in its processes.

Having read the consultation document, I would just like to raise a couple of points on it. First, I will follow up what the noble Baroness, Lady Brinton, said about case examiners. The consultation document refers to a small number of people who are unsure about this proposal. I am particularly worried that as case examiners will be employees of the NMC, they will be target driven rather than acting as independent professionals. The consultation response from the Government says this will not be the case. It states:

“Although employed by NMC, Case Examiners will be both registrant and lay (non-registrant) and experienced senior decision makers who are used to making independent decisions”.

I very much endorse the comments of the noble Baroness, Lady Brinton, on training and the need for people to be brought in to provide fresh challenges. However, this issue about targets is a very important one, and I wonder whether the noble Earl can give me a reassurance that there will not be targets—even unseen ones—in relation to cases and their outcomes. Can he just say a little more about how we can ensure that case examiners will be wholly protected when they carry out their duties? If they are in a managed organisation, they will be accountable to a manager, and we need to have some assurance that there is not going to be interference by the hierarchy of the NMC in case examiners’ decisions.

I would like to ask about another point raised in the consultation document. One response was about the need for more diversity on panels,

“in particular a point that black, minority and ethnic (BME) employees are disproportionally represented within the disciplinary systems of both employers and regulators”.

The consultation says:

“These comments have been fed back to the NMC to consider”.

Has the NMC now given consideration to that issue?

Turning to the Deregulation Bill, the noble Earl was present at our debate last week and will know that we have some concerns that, according to a list issued apparently by the Government, the Professional Standards Authority is subject to the economic growth duty within that Bill. I do not expect the noble Earl to answer me on that today. But, given that the Professional Standards Authority is to be involved, can I take it that by implication that duty will fall also to the NMC, the GMC and other professional regulatory bodies? Obviously, we will come back to this issue when the Deregulation Bill returns on Report but we are finding it difficult to find out the list of organisations that the Government consider should be encompassed within it.

Of course, the issue is that there may be an impediment to the non-economic regulators taking regulatory action because they now have to consider the economic growth duty. In the main, that will apply more to the CQC when dealing with organisations than it will to the individual regulatory bodies. But as the Government think that the PSA is encompassed within the Bill, I would be interested in a response from the Government.

Will the noble Earl say something about the overall performance of the NMC? He will know that this has been the subject of some concern and indeed scrutiny by the Health Select Committee. At the most recent accountability hearing in 2013, the Health Select Committee concluded:

“The NMC is an organisation with a recent history of poor performance, including lack of focus on its core regulatory activities, financial mismanagement and long delays in processing Fitness to Practise cases”.

The PSA’s 2013 performance review of the nine healthcare regulators it oversees, which was published in July this year, stated that the NMC,

“is not yet meeting eight of the 24 Standards of Good Regulation”.

I know that in the 2013 accountability hearing the Health Select Committee concluded that,

“the NMC has made progress”—

indeed, I pay tribute to the chief executive and the chairman, who have done a lot to ensure that this happens—but it also says that,

“more progress is required before the NMC can be regarded as an effective regulator”.

Would the noble Earl care to comment on that?

The Select Committee also looked at the issue of revalidation. Following the introduction of revalidation for doctors, the need for revalidation for nurses is self-evident. The Health Select Committee says that it welcomes,

“the commitment of the NMC to introduce revalidation for nurses and midwives from the end of 2015”,

but that,

“it does not believe the NMC yet has a workable plan to deliver this commitment”.

That is the 2013 report of the accountability hearing. The Select Committee has not yet had the 2014 hearing, which I think will take place in January. Will the noble Earl update the Committee on whether he now thinks that the NMC has a workable plan?

Overall, this is a sensible order. We need to do everything we can to help the NMC improve its processes. I express my thanks to the current leadership of the NMC and the work that it has done. It clearly needs to do more and Parliament needs to be prepared to help it. If we are not going to have a substantive Bill, I would have thought it a priority to bring further Section 60 orders in relation to the Nursing and Midwifery Council, particularly on the question of whether we can help it streamline its fitness to practise hearings.

[Earl Howe]

My Lords, I am grateful to my noble friend and the noble Lord, Lord Hunt, for their questions and comments. My noble friend Lady Brinton asked for reassurance about the case examiners. Under the proposals, the two case examiners will independently review the evidence and then agree their decision. This is the same process as used by GMC case examiners, and I am not aware of any particular difficulties that it has encountered in this connection. If the case examiners cannot agree the decision, the case will then be referred to the investigating committee for determination, as I explained.

My noble friend asked about training of the case examiners. Two case examiners, one lay and one registered nurse or midwife, will consider an allegation of impairment of fitness to practise, whereas three investigating committee members are required at present. Co-ordinating meetings of the investigating committee members is time-consuming due to panel members having other commitments or requiring refreshed training. A case examiner will be a skilled role. They will develop expertise that will lead to greater consistency when making decisions because they will be considering a greater number of cases on a regular basis than individual members of a large pool of investigating committee members. This will speed up the fitness-to-practise process and result in reduced costs.

My noble friend asked whether the job specification of case examiners, as employees of the council, must specify that they carry out their roles without fear or favour and be truly free to make comments. Case examiners will be employed by the NMC, whereas investigating committee members, who currently consider allegations of fitness to practise, are chosen from a pool of around 100 individuals who provide their services to the NMC as independent contractors. But, once again, there is no reason to suppose that, as professional people, they will feel inhibited from voicing their full and frank views whenever they feel the need to do so. Despite their being employees, it is more than any professional’s self-esteem is worth to feel inhibited in that sense. It is a very responsible role. While the individuals will need to be carefully chosen, I have confidence that this arrangement will work.

My noble friend asked about the removal of the requirement for a registered medical practitioner to form part of the panel where health is an issue. We consider it more appropriate for medical advice to be provided by independent expert witnesses and medical reports. Having an independent medical witness will ensure that the panel remains detached from that part of the process and is therefore more able to make an independent decision so making the process more robust and transparent. This would ensure consistency between registration appeals and fitness-to-practise appeals.

The noble Lord, Lord Hunt, expressed concern that case examiners might be target driven, and this was an issue raised in the consultation. We do not believe that this will be the case. Although they will be employed by the NMC, case examiners will be both registrant and lay; that is, a registrant nurse or midwife and a lay person. Their role will be distinct; they will be responsible only for making an assessment of whether a registrant has a case to answer against an allegation that is made to the NMC that their fitness to practise is impaired. They will make their decisions impartially and independently, and based solely on the information provided for the case, including any representations made by the registrant. Any such decision would be made by a pair of case examiners. The NMC will seek to appoint people to these roles who have demonstrated sufficient skills and experience to make robust decisions. The NMC’s case examiner resource will be sufficient to ensure that all decisions will be considered on their merits, without any undue time pressure. Case examiners will not be involved in undertaking the fitness to practise investigation itself, nor in presenting cases at any final hearing.

Care Sector

Lord Hunt of Kings Heath Excerpts

Tuesday 25th November 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, pay tribute to my noble friend Lady Kingsmill for her speech and for her report, which were both profound in their analysis of the crisis in care work and of what needs to be done. As she said, we know that people who receive care are very vulnerable. The fact is that the current situation means that in many cases they are not being treated with the care and attention that they deserve. All too often, their only source of support, care workers, are, as my noble friend said in her report,

“exhausted, unable to plan their own lives through insecure contracts, and unable to spend enough quality time with the person in receipt of care”.

As she says, they are invisible,

“under-valued, under-paid and under-trained. They don’t have the status of Nurses. They don’t have the status of Child-Minders. The sector is subject to weak regulation”.

The noble Baroness also said:

“The low status of Care Work and poor treatment of workers has led to a vicious downward spiral into one of the most difficult sectors for workers, with widespread exploitation”.

It is clear that the demographics that we face mean that the challenges in the care sector are going to grow. Our population is projected to continue ageing. The number of people aged 80 and over in the UK is projected to more than double to 6 million by mid-2037. As the noble Baroness, Lady Brinton, said, we will need 800,000 more people in the workforce to attempt to cope with the extra demand that is bound to be placed on the care sector. She, my noble friend Lord Lipsey and the noble Lord, Lord Birt, made the telling point about our absolute reliance on people from other countries to provide many of the care workers whom we need. That reliance will clearly continue, but we could do more to grow our own workforce. However, we will not do that without tackling the fundamentals identified by my noble friend.

I very much agree with my noble friend Lady Howells. She said that recommendations made by my noble friend Lady Kingsmill are eminently sensible and doable, including introducing a licence to practise for care managers—indeed, for all care workers. How many times have we called for the regulation of care workers in your Lordships’ House? Surely the noble Earl, Lord Howe, will be able to tell us that the Government now recognise that this is something that has to be done.

We need to enforce the national minimum wage and encourage the living wage. My noble friend Lady Andrews asked the Minister about HMRC’s weakness in monitoring and investigating cases where workers are paid less than the minimum wage. We look forward to a response. However, the point that I put to the Minister is that it is not just that workers in this industry do not receive what is due by law, but, because HMRC is not being proactive, we are essentially penalising the good companies—such as that of the noble Lord, Lord Curry—for doing the right thing. That is why it is important that HMRC must have a much more aggressive role.

My noble friend Lady Kingsmill says that we should ban exploitative zero-hours contracts and the 15-minute care slots, introduce a care charter, improve training standards and progression and, overall, improve the oversight and regulation of working conditions. All those things are surely right. We should also listen to my noble friend Lady Wheeler and the noble Baroness, Lady Gardner of Parkes, who focused on the role of social care personal assistants who are directly employed by service users. We would all recognise that personal budgets have a lot going for them, in giving people who are being cared for more control over their own lives. Many of them do the right thing, but Unison has shown, on a number of occasions, evidence of personal assistants being exploited by the people who have the budgets. We need to see some action in that regard.

We cannot talk about the plight of care workers without talking about funding. Many noble Lords referred to funding issues in local government and they are surely right to do so. My noble friend Lord McKenzie pointed out that local authorities are not just hugely challenged financially but are seeing their statutory responsibilities grow. Those of us who debated the Care Bill for many hours will understand that it is in this very sector that local authorities are going to see statutory responsibilities grow considerably, starting in the next few months. It is particularly worrying that the local authorities that are under the greatest pressure face the greatest reduction in spending power, due to the changes in formula that the Government have introduced.

My noble friend Lord Lipsey has challenged us to go beyond simply talking about local authority funding to thinking about the whole situation of the future funding of care. The noble Lord, Lord Curry, also drew attention to that. As we are shortly to debate many statutory instruments relating to the implementation of the Care Act, we are bound to come back to some of the fundamentals of funding long-term care in the future.

The noble Earl has never really responded to the point raised by my noble friend. It is a matter of a year or so until self-funders discover that they are subsidising people funded in homes by local authorities. We have yet to hear an answer from the Government about how the system will cope when people realise that they are paying much more than what a local authority pays for a similar service. As the cap operates, it will soon become apparent to them that the cap is not £72,000 at all but much larger. The cap will be based on what the local authority pays, but the self-funder will have to pay much more than that to reach the £72,000 cap. We are in for some interesting debates on that over the next few weeks. There is no doubt that the issue of funding will have to be tackled. There is also no doubt that part of the answer has to lie in a much more integrated approach between health and social care and the integration of budgets, which this side of the House is very much committed to.

It is not just a question of funding, however. My noble friend was right to say in her report that, if you look at the evidence of a weak and fragmented regulatory environment, irresponsible procurement practices by local authorities and poor workforce planning and management skills within care providers, there is still much that can be done that is not a question of resources. Through its leader, Ed Miliband, my own party has recently said that a Labour Government will legislate to give employees the legal right to a regular contract if they are working regular hours; to refuse demands that they must be available over and above their contracted hours; and to compensation when shifts are cancelled at short notice. We are also pledged to make CQC inspect the commissioning of care. I think that that answers the point raised by the noble Baroness, Lady Chisholm, about ensuring that local authorities check up on employment practices relating to care workers.

As my noble friend Lord Kennedy said, my noble friend Lady Kingsmill has done a noble service in shining a light on a hugely important question. We owe a huge debt to those working in the care sector—those paid to work there and those who volunteer. Despite the lousy conditions, every day many of them go the extra mile, as many noble Lords have mentioned. Surely the better we appreciate and support the contribution of the care workforce, the better the care will be. My noble friend has done a signal service to this nation with the report that she has produced and I hope very much that the Government will respond positively to it tonight.

NHS: Funding

Lord Hunt of Kings Heath Excerpts

Monday 17th November 2014 Lords Chamber

[Earl Howe]

My noble friend is right to highlight the role of public health. That is why many people are encouraged that health and well-being boards, which now oversee the planning and prioritisation of healthcare in their local areas, are taking those public health goals into account and building them into the strategic health assessments. So the co-ordination of healthcare and public health is in a much better position than it was before the reforms.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the Minister referred to the Better Care Fund. How does he respond to the criticisms made by the National Audit Office in the last few days? It said that the programme had poor management and hugely unrealistic expectations, and that it was not going to reduce emergency admissions. Can the Minister explain why the NAO concluded that the programme had no national leadership, limited risk analysis and no analysis of local planning capability?

[Earl Howe]

My Lords, that report is somewhat out of date. Plans have now been through the nationally consistent assurance review. The results have been published and shared with local areas, which have stated some clear ambitions. They are to have 163,000 fewer stays in A&E, to make £532 million savings for health and care services, and to have 101,000 fewer unnecessary delays spent in hospitals, along with other goals besides. We are very satisfied with progress reached in producing the Better Care Fund plans. Not all plans have been approved, but we are well on course.

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

Lord Hunt of Kings Heath Excerpts

Wednesday 5th November 2014 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

At end insert “but that this House regrets that they undermine the protection of care home residents by removing current requirements in respect of complaints procedures, emergency procedures and choice of food”.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I should say right away that, overall, I welcome the thrust of these regulations. I am going to raise a number of points covered by my amendment to the Motion. I do so on the basis of broadly accepting the point raised by the Minister in relation to the CQC’s role and the way in which it is performing. However, there is particular concern about residents in care homes and the impact of the regulations which I would like to put to the Minister. My real concern is in respect of the three areas mentioned in my amendment in that, far from enhancing quality and public safety, the regulations actually reduce current protections in relation to complaint systems, food and emergency procedures.

I listened with great care to the Minister. He prayed in aid the remarks of Sir Robert Francis, and I will come back to them in a moment, but can the Minister also confirm that, in a sense, the regulations are a victim of the Government’s desire for lighter-touch regulation? The CQC clearly has a critical role in protecting some of the most vulnerable citizens in our country. This is not the moment for lighter-touch regulation. On any count, knowledge of the complaints system is important, particularly in view of concerns about standards of care in the health service and in many care homes. The current regulation states that the registered person must,

“bring the complaints system to the attention of service users and persons acting on their behalf in a suitable manner and format”.

The regulation goes on to require that,

“service users and those acting on their behalf,

are provided,

“with support to bring a complaint or make a comment, where such assistance is necessary”.

My understanding is that the Minister’s department is briefing that the new regulations are more outcome-focused and less specific about processes. However, if being less specific about processes means not telling people about them, it meets that test, I suppose. I also understand that his department is briefing that having an accessible and open culture is the same as having a specific duty to inform people about the complaints procedure.

However, the point I should like to put to your Lordships is that most residents and relatives have little idea of what to expect from a care home. Surely it is a relief to relatives and advocates when they are informed about these rights. It makes it easy for them to raise questions about care, knowing that that the regulations have the force of law and the matter cannot simply be left to local discretion. Few people comparing the two sets of regulations on rigour about complaints could argue that the proposed replacement is an improvement.

If one considers the tragic case of Winterbourne View—which I suspect a number of noble Lords will refer to—and other reports and the reports of the Health Service Commissioner, they continually emphasise that many providers’ stances on complaints are not fit for purpose. We know in relation to NHS complaints that there are continuous problems about people wondering whether they really can use them effectively. Almost all recent major care scandals have had their roots in people not being listened to or not knowing that they can complain. That is the basis of my major concern about these regulations.

Having emergency procedures in place seems pretty important, too. I do not understand the logic of deleting this important regulation. It may be that the Minister will say that it is covered by the new Regulation 17, but that states merely that, as part of good governance, the provider must establish systems or processes which enable the registered person to,

“assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity”.

That could easily be interpreted by providers to mean the normal, day-to-day risk assessments that they are required to carry out. I remind the Minister that care homes are pretty fragile organisations, often with very few qualified staff, and a significant proportion are without managers in place. That is why it would be much better to be absolutely explicit that emergency procedures should be in place.

--- Later in debate ---

I hope that I have been able to reassure the noble Lord, Lord Hunt, and all other noble Lords who have spoken sufficiently to make them feel confident that these regulations are the right way forward. I hope that the noble Lord will see fit to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to all noble Lords who have taken part in this short but very interesting debate. I say to the noble Baroness, Lady Barker, that I agree with her on the importance of the duty of candour. We do not really have time to discuss this in detail, but alongside a statutory responsibility on duty of candour there is a need to address culture, particularly within the National Health Service. I am not convinced that the current regulators are helping the duty of candour. I think that we have a blame/risk-averse culture currently operating in the health service which is often driven from the centre. Alongside a duty of candour, we have to look at the need to change the culture to one which is far more collaborative in support of organisations dealing with very difficult issues.

I agree with the noble Baroness, too, on power of entry. Her point on prosecutions being based on breach of regulations was important, which is why the language is so important.

The Minister said that this was not a deregulatory measure. I presume that he is saying that the Department of Health is not chalking it up to the Cabinet Office as an example of deregulatory action. However, we have all had experience of deregulatory approaches taken by Governments and I have to say that some aspects of these regulations seem to have been influenced by a deregulatory approach—I know that the Minister rather chided my noble friend on this point. In the end, some regulations are essential and sometimes advice and guidance alone are simply not sufficient. The noble Baroness, Lady Howarth, acknowledged that there are strengths in the regulations, and I do not disagree with her about that. Sometimes there is a need to use regulations to be absolutely clear to those who are providing services and those receiving them. That is the case when it comes particularly to issues around food choice, emergency procedures and complaints.

The Minister explained why the Government have gone for what they describe as an outcome-based approach—I understand that—and he then quoted to us Regulation 17(2)(e), which states that the providers must,

“seek and act on feedback from relevant persons and other persons on the services provided in the carrying on of the regulated activity, for the purposes of continually evaluating and improving such services”.

That is elegantly written, as one would expect from his department, but it does not say to me that residents are going to be told how to make complaints. Let us think not about the chains but about the individually owned care home. I really doubt whether that would be very clear to the people in charge. It would have been better if it were explicit in the regulations.

I was going to ask the Minister if he would ensure that the CQC read the debate, but I am grateful to him for already giving us that assurance. I hope that when CQC inspectors go into care homes, they are clear that the regulations mean that there should be a proper choice of food, people should have complaints systems signposted to them, and there should be an emergency procedure in place.

This has been a very useful debate. I will withdraw my amendment. I wish the regulations godspeed. I support the CQC in its approach, but, when it comes to care homes, the CQC needs to be explicit both to the homes and the inspectors about the basic standards that need to be provided.

Amendment to the Motion withdrawn.

Care Quality Commission (Reviews and Performance Assessments) Regulations 2014

Lord Hunt of Kings Heath Excerpts

Monday 27th October 2014 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

That this House regrets that the Care Quality Commission (Reviews and Performance Assessments) Regulations 2014 include no provision for the regular assessment of performance by clinical commissioning groups and local authorities in the commissioning of health and social care and of the NHS Commissioning Board in relation to specialty commissioning (SI 2014/1788).

[Lord Hunt of Kings Heath (Lab)]

My Lords, the statutory instrument that we are debating tonight arises from an amendment that the Government sought parliamentary approval for during the passage of the Care Bill in 2013 and 2014. That amendment related to the scope of periodic performance assessments to be undertaken by the CQC and the method by which such reviews are to be devised and will allow an aggregate performance rating to summarise and compare the performance of organisations or the services provided. It is for the CQC to devise such quality standards and methodology in consultation with the Secretary of State and those key stakeholders that the CQC considers appropriate. The scope of those performance assessments is set out in these regulations, which by virtue of Regulation 1 will come into force on 1 October this year. That means that the CQC will be under a duty to undertake performance ratings of those registered service providers and regulated activities that such providers carry out, as prescribed by Regulation 2 and the schedule to these regulations.

I remain somewhat sceptical of the ability of the CQC to place such huge organisations as hospitals in one of only four categories. The Explanatory Note to the SI refers to work commissioned by the Secretary of State on the use of aggregate ratings of providers. This is not the first attempt at performance ratings, but the fascinating piece of work produced by the Nuffield Trust and commissioned by the department has a number of warnings on this. The trust says in its report:

“A rating by itself is unlikely to be useful in spotting lapses in the quality of care”,

particularly for services which “complex providers like hospitals” give.

“It is here that the analogy with Ofsted’s ratings of schools breaks down. Hospitals are large, with many departments and different activities, seeing large numbers of different people every day, carrying out complex activities, many 24/7, and in which people are sick and can die. Put another way, the risks managed by hospitals vastly outweigh those managed in schools. For social care providers the risks may be lower, but many are still dealing with frail, ill and otherwise vulnerable individuals”.

Its conclusion is that,

“unless there is a ‘health warning’ on a rating to clarify to the public what it can and cannot say about the quality of care, there is an inevitable risk that the rating (and the rating organisation) will be discredited, as lapses occur in providers scored as ‘good’ or ‘excellent’”.

It says that it will be just a matter of time. In summary the Nuffield Trust concluded that,

“the overall approach to ratings should allow complex organisations to be assessed at different levels and to promote service-specific ratings where possible, particularly in the case of hospitals”.

I would be grateful if the noble Earl could comment on this, particularly on how he considers the rating outcomes of individual providers are to be communicated to the public in an understandable way that none the less pays due regard to the complexity of the ratings so well described by the Nuffield Trust.

My real objective in bringing these regulations before your Lordships’ House is not so much what is in the statutory instrument as what is not. I go back to our debates during the passages of both the Care Bill and the Health and Social Care Bill in 2012. The noble Earl will know that I have expressed considerable concerns about the fact that the way in which clinical commissioning groups and local authorities commission services is no longer to be subject to regular review, audit and, indeed, rating by the CQC. During the passage of the Care Bill only a few months ago we discussed concerns about the quality of local authority commissioning of care services in the context of the scandal of 15-minute visits and zero-hours contracts. We argued then that the CQC should undertake regular inspections of local authority commissioning performance.

I suggest that the same goes for clinical commissioning groups in the National Health Service. When we debate NHS issues the noble Earl frequently—indeed, consistently —refers to the importance of commissioning. Whenever he is pressed on problems or gaps in services he has put his trust in more effective commissioning. However, it is very difficult to see how the performance of commissioners is properly assessed and held to account in the current structure. The noble Earl has previously argued that we should rely on such things as CCG outcome indicators, backed up by scrutiny from local Healthwatch. I think that that is a pretty weak response. So far there is scant evidence to show that this is effective. I am sure we would acknowledge that often when things go wrong in a health system it is a failure of the system—of course of the providers giving the services, but also of commissioners and, indeed, local authorities. Let us take the four-hour A&E target, which is proving to be a major challenge up and down the country. There will of course be issues in the organisation of the hospital itself, but there will also be issues around the organisation of primary care, the way in which services are commissioned and the ability of local authorities to ensure that there are specific and sufficient facilities in the community for when patients are discharged from hospital.

It is a matter of regret that the CQC, as the primary regulator on quality and standards, is no longer concerned on a regular basis with the performance of local authorities as commissioners, and with clinical commissioning groups. It is true that the CQC has the power to conduct special reviews where concerns have been raised about a particular commissioner. I do not know whether that has happened yet—maybe the noble Earl will be able to tell me—but it seems to me that that is not anywhere near sufficient.

I also want to discuss the position of NHS England. The noble Earl will know that, although the original changes brought about by Mr Lansley were designed to hand over nearly all the commissioning budget to clinical commissioning groups, a rather substantial amount of money was ultimately retained by NHS England for commissioning of specialist services. It would be fair to say that NHS England’s performance on that has given cause for concern. The noble Earl will be aware that the budget for specialist commissioning is hundreds of millions of pounds overspent. In essence, we had an out-of-control budget and the board of NHS England seemingly unaware of what was going on. If an NHS provider had performed so lamentably its board would have been sacked, and rightfully so. I ask the noble Earl how the board of NHS England has been held to account for its lamentable performance relating to specialist commissioning. Have sanctions been applied? At the very least, should the CQC not assess NHS England’s commissioning performance?

In our previous debate on NHS England, the noble Earl informed us:

“NHS England has its own governance processes in place, including the development of the direct commissioning assurance framework to demonstrate that it meets the standards required. As this is developed further, elements will be introduced to bring external scrutiny to its board and function”.

He also said:

“Ultimately, NHS England is held to account by the Department of Health for its commissioning activity against its delivery of the priorities set in the mandate”.—[Official Report, 21/10/13; col. 813.]

I am sure the noble Earl thought that they were comforting words, but how on earth does this apply to the debacle over specialised commissioning? To my knowledge, that has still not been properly resolved.

I am not convinced that the Government have the right approach to commissioning. If commissioning in the health service and in local government is as important as the Government say it is, surely it is in the public interest that the CQC should take a much stronger role in checking and rating the performance of commissioners, and indeed of health and care system performance generally. I hope that this leads to a good debate. I beg to move.

[Baroness Wall of New Barnet (Lab)]

My Lords, I support in principle the wording of the business that we are dealing with, particularly the emphasis on regular assessment of other than the provider trusts. I share with the House and the Minister why I now feel that that is even more important. I declare an interest as chairman of Milton Keynes Hospital NHS Foundation Trust. Just last week, we were inspected by the CQC. Obviously, we do not yet know the outcome of that. The CQC was with us for four days and there were 40-odd people there.

As the noble Earl is aware, I have been very supportive of the CQC and share his aspirations for it. To be honest, our inspection was extremely thorough. We have to wait with bated breath for the outcome, but the enthusiasm, what was described as the buzz around the hospital and the way that people felt strongly about the services that they were giving made a huge difference to the whole thing. I am only three months into that trust, but this was not about preparing for the CQC; it was about the culture of the organisation and wanting to improve. I hope that the CQC comes back with recognition of that, whatever the outcome might be.

The inspection was carried out under the new way of doing things, which I think is great. There were many more people across all the spectrums of our services, at a professional and clinical level. That was superb. The reporting back every night was very good and helpful to the chairman and chief executive. All that felt good and thorough, which is what it is all about. I agree with my noble friend’s view about extending that for the very reason that he just gave. The importance of that inspection to the outcome for our patients was absolutely paramount, regardless of what the outcome might be in terms of the grading or level of assessment we might be given. But without that thoroughness and rigour, particularly with the CCGs, who are the ones making decisions about our services, with the GPs who run them—unless there is a deep dive, as we would call it, into any other part of the health service—the gaps that are still a worry for us may remain.

In particular, my noble friend Lord Hunt said that there was an issue around local authorities. All trusts are struggling terribly with A&E. There are many reasons for that, as my noble friend has said. But one of the big reasons is the lack of rigour in social care and local authorities’ commitment to or understanding of the role that they play. From the experience that we have had over the past week, I believe that this is not a threat to people: it is empowering for them to have the CQC in there, ensuring that the rigour that they are supposed to apply to their work is there and that the role they play in patients’ experience really makes a difference. I urge the noble Earl to consider this opportunity yet again. We made a decision in the Care Act, which I think even more now is really a mistake from which we need to move on. I do not share the cynicism of my noble friend, but I share the concern about whether the CQC can embrace all that.

The investigation into my trust was supported, as I understand it, by far more clinicians than ever before and far more people had a much greater knowledge of the health service. If the CQC can continue to develop in that way, I believe it is in its interest—and, more importantly, in our patients’ interests—that those commissioning groups go wider and deeper into other than the provider trusts.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am sure that the House is most grateful to the noble Earl for such a comprehensive description of the relationship between the department, NHS England and commissioners for health and social care. I congratulate my noble friend Lady Wall on her appointment to the chairmanship of the Milton Keynes Hospital NHS Foundation Trust. I echo her thoughts about the new inspection regime, which is a vast improvement on the old regime. I also acknowledge that the CQC has made some excellent appointments at senior level to help the inspection process.

That is a very good start, but there are gaps in relation to the commissioning of services. I would like to follow up the question asked by the noble Baroness, Lady Barker about prison health services. The Explanatory Memorandum states that regulated activities provided by prescribed service providers in prisons are excluded because:

“A performance rating might be helpful to the commissioners of these services, but only if it can be uniformly awarded to all providers in the sector and at present, not all prison healthcare is regulated by CQC”.

This is not the time to go into that in more detail, but I should be grateful if the noble Earl would be prepared to write to us about it—unless he wishes to intervene now. I am grateful that he indicates that he would be prepared to write to us, because it is an important point. There have been vast improvements in the health service within prisons in recent years and I would have thought that they would welcome some ratings from the CQC. I hope that the Government will look into that.

On the substantive point, I simply want to say to the noble Earl that many of the issues that the health service and care services face are very pressing and very challenging. Those services depend on all the people within a system—both commissioners and providers —working together. I still believe that there is a strong case for there to be assessment by the CQC to help systems generally to learn from others, to see where weaknesses are and to improve the whole system approach—something that is missing from the current regime. This has been a good debate. I beg leave to withdraw my Motion.

Motion withdrawn.

Medical Innovation Bill [HL]

Lord Hunt of Kings Heath Excerpts

Friday 24th October 2014 Lords Chamber

[Lord Turnberg]

As we have heard, my Lords, there is a degree of uncertainty surrounding certain aspects of the Bill that we have been trying to clarify. It is on that account that I have tabled Amendment 31, which sets out the need for a code of practice in which the Secretary of State describes in somewhat more detail what the Bill is about and how it should be enacted. I hope that it will be helpful to have that in the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a fascinating debate, both in Committee and at Second Reading. We are all very grateful to the noble Lord, Lord Saatchi, for listening carefully and bringing the amendments that he has today, and for agreeing to a roundtable discussion between Committee and Report, which is a very constructive response to some of the issues that have been raised.

I say at once that I am absolutely with the noble Lord on the need to encourage innovation in our NHS, but the more that I have listened to the debate, the more convinced I am that it is not so much a question of the law but more one of actual practice within our NHS. I am afraid that we have to face up to the fact that there is a culture of regulatory processes and funding procedures that often get in the way of introducing innovation. For me, the Act that the Bill will become will be a signal to the NHS.

The noble Lord, Lord Blencathra, raised some interesting points about some of the problems that we have at the moment. He talked about off-label medicines. The Minister responded by saying that the Government are committed to innovation and gave a number of examples, which were welcome, but the point that I would put to him is that we now have a situation where NICE produces technology appraisals of new innovative procedures and drugs that clinical commissioning groups are essentially breaking the law by not implementing. He knows that they are under a requirement to fund the use of those procedures and medicines within three months of the technology appraisal being issued, yet we know from research by patient groups that the actual implementation is patchy. We could do an awful lot in relation to innovation if we insisted that people locally did what they were required to do.

My second point relates to the drug budget, an issue that the noble Lord raised. A few months ago the Government concluded an extremely interesting agreement with the branded drug companies, so that for five years the cost of branded drugs in England, apart from modest rises in inflation, will be fully met by the pharmaceutical industry. This is a very good agreement and one that I very much welcome. We still hear people in the NHS saying that they cannot afford the new drugs, yet the industry has promised to pay back any increase in the cost of those drugs over what they are paying now plus a modest increase in inflation. Here is a wonderful opportunity at last for the NHS to move quickly in widely adopting new medicines, but somewhere in the system someone is stopping it. I have read the NHS England five-year plan and it says nothing about the introduction of innovative new medicines.

I am sorry that this is a little outside the noble Lord’s Bill and I hope that he will forgive me, but this is about innovation. I am genuinely puzzled, and we will come back to this point, about why the Government did not rush to insist that the NHS took advantage of the agreement. In fact very few people in the NHS know about the agreement. My concern is that the rebates that the drug industry is going to give will be used for other purposes, which would be a very big mistake.

I hope that the Minister will agree to the amendment; I strongly advise him to do so, or at least to consider it. It is clear from the speeches that have been made that there is some confusion about the circumstances in which the noble Lord’s provisions are going to be made. Earlier in our debates, the noble Earl essentially said that doctors would have a choice when it came to whether, in relation to a given medical treatment, they would use this Bill’s provisions or rely on the traditional approach, the Bolam test. The noble and learned Lord, Lord Woolf, said that they are not alternatives and, in the circumstances raised by one noble Lord where there was not time to get the advice of the clinicians that is provided for in the noble Lord’s Bill, you would rely on the Bolam test. I am only a lay person, but I suspect that there is a risk of doctors not catching the nuance of that distinction. It is clear from the various letters that we have had from many of the medical bodies that there is some concern about this. I know that the noble Lord will speak and I strongly endorse his amendment on the regulation-making power, but I strongly advise the Government to agree to issuing guidance to the medical profession in this regard. There is a danger of some confusion and such guidance would be useful. If the noble Lord is not able to accept this amendment today, perhaps he will give it some further consideration.

NHS: Health and Social Care Act 2012 Reforms

Lord Hunt of Kings Heath Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, let us come back to the Question, which is about funding. If the picture was so rosy, why is it that a record number of NHS trusts and NHS foundation trusts are in deficit? If the picture was so rosy, what does the Minister have to say about the report a couple of weeks ago by the Nuffield Trust? It states:

“Prompt access to services has declined … In mental health services, demand”,

is,

“outstripping capacity for urgent care and for younger people. The wellbeing of frontline staff in both health and social care is”,

deteriorating. When he says that the Government are not ashamed of what they did, who is he speaking for? Is he really speaking for the Prime Minister and the leadership of his party?

[Earl Howe]

I am indeed and the NHS is under pressure for the reason that the noble Lord has just quoted—demand has risen dramatically. However, productivity has also risen dramatically, which it failed to do under the previous Administration.