Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 8 months ago)
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Lord Hunt of Kings Heath
My Lords, we are approaching the end of what has been a serious and expert debate on the Care Bill, which has clearly drawn considerable support from your Lordships’ House. However as speaker after speaker has pointed out, there is a marked contrast between the Bill’s intentions and the reality of the health and social care system, which is under huge financial pressure at the moment. Of course, this Bill puts new pressures and responsibilities on local authorities, but there are no signs yet as to how those authorities are to find resources.
We are happy to co-operate in postponing deliberation of Part 1 of the Bill, to allow it to take place after the spending review has been announced. However, in a sense that concerns the future and future responsibilities. The fact is the crisis is here now in relation to social care. Very little has been heard from the Government about how they intend to respond to it. I hope the noble Earl will say something about it tonight. Many noble Lords have referred to the eligibility criteria and the intention to set this at a national level to get consistency and deal with the issue of the huge variation that is now apparent throughout the country. This has been widely welcomed, but I would tell the noble Earl that we certainly expect the Government to publish the all-important draft regulations before we go into Committee to deal with this important matter. I would be grateful if the Minister will confirm that he intends to do that.
He will know that there is widespread expectation that the Government will set the national level at the “substantial” level. I do not expect the noble Earl to confirm that tonight, but does he agree with the noble Lord, Lord Rix, that local authorities have increasingly moved the threshold up to the substantial level, with, of course, prevention and early intervention being unavailable? May I also ask him about the risk of those local authorities which do not at the moment set the threshold at the substantial level, actually raising it in the light of the national criteria being set at that level? That way, we will have national consistency, but it will be consistency where provision is at the meanest. That would cause considerable concern in many local authority areas.
The noble and learned Lord, Lord Mackay, and my noble friend Lord Warner raised the question of Clause 22 and the all-important boundary definition between the means-tested social care and the free-at-the-point-of-use NHS. The noble Lord, Lord Sutherland, hopes that at some point this might be a thing of the past, but at the moment this is a critical delineation between the two services. The Minister will know that the Select Committee was concerned that a court might view any changes in the wording as implying a change in the meaning of the provision. It is important that we hear a response from the Government about why we ought not to worry about that.
The noble Baroness, Lady Campbell, spoke so eloquently of the problems of people being shunted between the two services because of the cost implication between local authorities and the NHS. At the same time, the noble Baroness passionately promoted the need to support disabled people to be as independent as possible. This is not an issue that will go away and we will need to come back to that in Committee in terms of the new meaning—if it is a new meaning— in Clause 22.
This is not just a Bill for older people, but the challenges that older people face are formidable, as my noble friend Lady Bakewell said. Like my noble friend Lord Lipsey, I welcome the Dilnot provisions and the cap—as far as they go. However that is not the complete picture. The cap and increased threshold will reduce the risk of catastrophic costs, but there is a concern about the way that people of modest means will be treated. I listened with great interest to what my noble friend Lord Lipsey said about the operation of the means-tested tariff and the impact on people with modest income. My noble friend Lord Warner does not quite take his view on that, but it would be good to have a debate on this in Committee.
I would also be interested to know whether my noble friend Lord Lipsey has taken into account that in some benefits the first £6,000, and in others the first £14,000, are exempt from the tariff, which in itself is progressive, with those with the most savings hardest hit. It is important we come back to that.
My final point on Dilnot is about the insurance market, which a number of noble Lords raised. What is the noble Earl’s current assessment of the prospects of an insurance market developing? Has his department been in recent communication with the ABI and can he say any more about the confidence that he has in insurance products developing? This is very important in reaching a conclusion about the likely success of the Dilnot proposals in this legislation.
Finally in this area, I turn to a point raised by my noble friends Lord Lipsey and Lord Warner. The actual administration and assessment that will have to take place, particularly as thousands of self funders will need to be assessed under these proposals, will lead local government into a major administrative task and to an increase in disputes and legal challenges. The Joint Committee was not confident that Ministers had fully thought out the implications for local authorities of these changes. Will the noble Earl comment on that and also on my noble friend Lord Warner's suggestion that we need to establish tribunals in order to deal with disputes to keep them out of the courts as far as possible?
Very good points were made about the need for impartial information in relation to Clause 4. When one thinks about some of the financial consequences of the decisions made, it is a powerful argument. I also hope that the noble Earl will respond to my noble friend Lord Patel in relation to Clause 68 and the question of aftercare and the implications that it has in relation to Section 117 of the Mental Health Act 1983. We had extensive debates on these matters only a few months ago. I hope that this is not opening up the question and is not a reinterpretation.
On carers, my noble friend Lady Pitkeathley spoke eloquently about the importance of these provisions, and we welcome them. But there is a question about why they do not relate either to parents caring for disabled children or young carers. As Barnardo’s has said, young carers represent a uniquely valuable group of people whom the Government should be ensuring receive help to address the very serious effects that caring has on their lives. The noble and learned Lord, Lord Mackay, made an important point about the need to ensure that, in the case of children caring for adults, the impact on the child must be given due consideration.
My noble friend Lady Wilkins talked about housing. The point she raised is surely right. What concerns me is the lack of very much reference to housing provision or housing authorities in the Bill. I am sure that we can look forward to some amendments in that direction from my noble friend.
On safeguarding, it is a matter of regret that there is no duty on providers to report to local authorities where they suspect the risk of abuse. It is also a matter of regret that there is no clause allowing for power of entry. This was raised by the Joint Committee and it was clear that there should be a power of entry for local authority representatives where a third party is refusing access to a person who may be at risk of abuse. I know that the Government will say that the consultation produced a lot of people opposed to that. But if we are to take abuse seriously, we should come back to examine whether a power of entry is necessary and should be required.
On Part 2, there is the NHS failure regime. I was pleased that the noble Earl’s officials gave us a briefing on this. It is rather complex and there seems to be a risk of confusion of roles between the two regulators, CQC and Monitor. Will he respond to the question raised by my noble friend Lord Warner about non-foundation trusts? I should have declared an interest as chair of an NHS foundation trust and indeed as a consultant and trainer with Cumberlege Connections. Why are the weaker organisations subject to a much less regulated framework than the foundation trusts? Why are the non-foundation trusts not covered in the Bill?
I am disappointed that there is only a partial implementation of the Francis recommendations, particularly as far as primary legislation is concerned. For instance, where is the duty of candour? We have the offence in Clause 81 of publishing false or misleading information. But Francis wanted a statutory duty of candour on healthcare providers to inform patients or appropriate persons if treatment has caused death or serious injury to the patient. Why is that not in the Bill? Where is the registration of healthcare support workers, as the noble Baroness, Lady Emerton, suggested?
On public health, I agree with noble Lords who regret that there is no provision for standardised packaging for cigarettes. I look forward to a continuing debate on that matter. On Health Education England, some very important points were raised by noble Lords. I would particularly refer to my noble friend Lord Turnberg’s comments about the LETBs and the need to ensure high quality in training and the involvement of postgraduate deans. As regards research, again, the provisions are very welcome but there is real concern that this country is losing out in terms of the number of multi-centre trials that take place here. Does the noble Earl thinks that the HRA should be given more authority over both the local research ethics committees and NHS trusts in terms of R&D approval? We cannot just leave it to these different bodies when the whole prosperity of our country is in many ways based on this kind of investment.
This has been an excellent debate. We look forward to the responses from the noble Earl. He will know that there are a lot of provisions here that command general support but, ultimately, the real concerns relate to current and future resources, and to the need for the Government to respond strongly in convincing argument about the kind of integrated services that are required to ensure that the provisions of this Bill will be implemented. The Government need to show that they really do get it and are going to come forward with those proposals.
NHS: GP Dispensing
Lord Hunt of Kings Heath Excerpts(12 years, 9 months ago)
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Earl Howe
My Lords, the rules as they stand do not present a major obstacle for disabled patients. Many pharmacies, for example, offer a free prescription collection and delivery service if a patient encounters difficulty in getting into the pharmacy premises. Under that arrangement, the pharmacy collects the prescription from the surgery on behalf of the patient, dispenses it and delivers it to the patient. Patients can contact their local pharmacies to see whether they offer that service.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests in the register. I well understand why the noble Earl does not want to reopen the issue, having chaired meetings at the department of the two representative bodies myself. However, I wonder whether the current arrangements are justifiable in 2013. Does the Minister not think that it might warrant his department asking an independent reviewer to look at the situation again, particularly from the point of view of the consumer and patient rather than of either the pharmacist or the dispensing doctors?
Earl Howe
I am sure that the noble Lord is as aware as anyone of the balance that has to be struck here. A GP’s primary purpose is to provide comprehensive medical care and treatment to his or her patients. More than 90% of prescription items are dispensed by pharmacies, which is what most patients expect. However, we must have arrangements to enable patients who live in rural and more remote areas to access medicines more easily. I think the noble Lord will understand that the arrangement for some GPs to provide dispensing services has always been the exception rather than the rule. I do not think there is an appetite on anyone’s part among the professions to reopen these arrangements.
Emergency Services: Paramedics
Lord Hunt of Kings Heath Excerpts(12 years, 9 months ago)
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Earl Howe
My Lords, it is up to the employer—in this case, the ambulance trust—to ensure that it has a body of suitably trained and experienced staff. That depends on regular monitoring and ensuring that training is kept up to date. Equally, it is up to commissioners to ensure that the service that they are receiving is delivered by suitably experienced and qualified people. The CQC will also have a role in this regard.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests in the register. To follow on from the noble Earl’s final comment, is this not an example of staff such as nurses being trained to be practitioners in the health service but finding that they have not been given enough practical training when they come to treat people on the front line? The noble Earl will know that Health Education England is being established as a non-departmental public body in the Care Bill. Can we ensure that that body has much more control over the curriculum of those being trained to fill these very important posts?
Earl Howe
The noble Lord makes a series of very important points about training. The answer to his final question is that, yes, Health Education England will certainly be looking at the degree of training required to fulfil specific professional tasks across the piece in the health service, including the ambulance service. However, I do not think that this case reflects a lack of appropriate training on the part of the individuals involved. They were appropriately trained; they were just incompetent. That is the point.
NHS: 111 Telephone Service
Lord Hunt of Kings Heath Excerpts(12 years, 9 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what steps they are taking to improve the implementation of the NHS 111 service.
Lord Hunt of Kings Heath
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and refer noble Lords to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we recognise that the NHS 111 launches in March did not go as smoothly as planned and that a number of providers have delivered an unacceptable service, especially at weekends. NHS England is working closely with clinical commissioning groups to stabilise providers who have failed to deliver an effective service and to ensure that areas yet to go live are in a safe and fit state to do so.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for that response, but on what grounds was the decision made to go ahead with the national rollout in the light of the results from the pilots, which showed problems with the scheme, and the fact that many people in the NHS advised Ministers and NHS England not to roll it out because it was not ready?
Earl Howe
My Lords, the University of Sheffield did work for the department reporting on the first four NHS 111 pilots. That showed that 92% of patients were satisfied with the service and that 93% felt that the advice given was helpful. It also found that, overall, the service was meeting its objective of getting people to the right place first time. On that basis, it was considered safe to go ahead with a rollout. Unfortunately, in particular areas of the country, the resources deployed to meet the demand have not been accurately assessed, but I stress that that is in a minority of locations.
National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013
Lord Hunt of Kings Heath Excerpts(12 years, 9 months ago)
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Lord Hunt of Kings Heath
That a humble address be presented to Her Majesty praying that the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, laid before the House on 11 March, be annulled on the grounds that they do not implement the assurances given by Ministers to Parliament during the passage of the Health and Social Care Act 2012 that NHS commissioners would be free to commission services in the way they consider in the best interests of NHS patients (SI 2013/500).
Relevant document: 33rd Report from the Secondary Legislation Scrutiny Committee.
Lord Hunt of Kings Heath
My Lords, one of the main concerns in our debates on the Health and Social Care Bill was the fear that clinical commissioning groups would be compelled to put clinical services out to tender, forcing doctors and nurses to compete with each other at huge expense and at risk of fragmentation of clinical services to patients. In response, the noble Earl, Lord Howe, told this House that commissioners would not have to create markets against the best interests of patients. He said that they would be free to commission services in the way they consider best. The regulations we are debating tonight are concerned with the circumstances in which contracts for the provision of services to patients within the NHS must be put out to tender.
When an NHS commissioner goes to tender for a service, the commissioner is already required to operate within a framework of EU and domestic law. These regulations are different from the existing regime in which NHS commissioners operate. They impose for the first time legal obligations on NHS commissioners to tender services with NHS trusts. They remove the discretion that commissioners have to decide when it is in the best interests of patients to expose the service to a compulsory competitive tendering process. We are deciding which organisation is best placed to deliver service. At the moment, commissioners can look at the needs of the NHS as a whole and make a holistic judgment about who is best placed to deliver a service. These regulations, in my contention, make it far more difficult for commissioners to take such a whole-picture approach.
Many NHS organisations, including the BMA, the Royal College of General Practitioners, and many more, have sounded the alarm about the effect these regulations will have on the NHS. Your Lordships’ Scrutiny Committee reported them with substantive criticisms for the special attention of the House on the grounds that they may imperfectly achieve their policy objective. Not least of the committee’s concerns were that because of the withdrawal of the original regulations and their hasty substitution of these ones, the Government have allowed insufficient time to enable thorough scrutiny. The committee says that it cannot be good or effective policy-making to seek their immediate implementation when they are so widely misunderstood.
The Health Minister, Mr Burns, told the other place that it was not the Government’s intention that the regulations would impose compulsory competitive tendering requirements on commissioners. But surely that is what Regulation 5 does. The only circumstance in which a CCG can avoid a tendering process is if that CCG is satisfied that the services under the contract are capable of being provided only by a single provider. The single provider test will never be satisfied apart perhaps from the case of a single rural hospital which is the only provider for acute services in a large geographical area. I fail to see how it could operate in cities such as Birmingham or London because there will always be multiple providers. Having mentioned Birmingham, I ought to remind the House of my health interests. Hence, in those circumstances it will not be for commissioners to decide, as the Minister has assured us. It will surely be for commissioners to undertake a competitive process in all cases, unless there is no remote possibility of another capable provider coming forward. This will be bureaucratic and very expensive. One question that I want to put to the Minister is why the Government have not set a contract value below which the single provider test will not apply. Why is that not in line with all other procurement regimes?
When we met the noble Earl for a briefing a few weeks ago on the regulations he gave examples of the circumstances in which services are capable of being provided only by a single provider. He particularly mentioned the possibility of bundling services together in a single contract. But, even in those circumstances, there will often be more than one provider. I remind the noble Earl that the recently published review of the economic regulator for the NHS, Monitor, entitled A Fair Playing Field, makes a number of criticisms of bundling. Monitor said that it restricted the ability of providers to enter the market and that bundling services together was likely to exclude some providers from offering services. Monitor is being asked to police the regulations. The noble Earl will have seen the letter that noble Lords have received from a number of leading charities which say that the bundling of services could put them out of reach of the voluntary sector. If that is the view of the voluntary sector, what of private companies that may feel similarly aggrieved?
Lord Warner
My Lords, I would like to reassure the noble Lord, Lord Clement-Jones, that I will be speaking in this debate. I oppose the Motion in my noble friend’s name. He will not be surprised by that, although I know that he hoped that I would have more pressing engagements elsewhere. I should declare my registered interest as an adviser to two companies.
I begin, briefly, with some context in which these draft regulations sit. Much of the comment and briefing that I and, I suspect, some other noble Lords have received has an underlying assumption that, somehow, competition is bad for NHS patients. It would let in what are usually described as slightly distasteful people called private providers and should be prevented at almost any cost. Much of that seems to overlook the legal procurement framework that the NHS operates within now and within which it operated when I was a Minister some years ago.
The NHS has to operate within the terms of EU competition law, with certain constraints related to clinical services. NHS bodies operate under a set of process rules in how they conduct procurements. There are regulators that patrol the territory of competition with jurisdiction in relation to the NHS, namely the Office of Fair Trading and Monitor. That is not new. It is not a nasty invention by the coalition. We can get all fanciful about it but it has been around for some time. We may not like it, we may prefer it to be different, but that is the legal context in which the NHS has had to operate for some time.
I would argue—this may be rather uncomfortable for some of my colleagues on these Benches—that this contextual framework makes any persistent attempt to make NHS providers preferred providers, irrespective of these legal constraints, profoundly anti-competitive. I believe that it is vulnerable to successful legal challenge. We got quite close to that before the 2010 election. This set of contexts in which the NHS has to operate means that we have rather a complex area for NHS commissioners to operate in. They need a clear set of rules to guide their conduct on procurement and competition, and that is provided for in Section 75 of the legislation, which we passed after a great deal of discussion and debate. That is the context in which these draft regulations are being prepared.
They are also operating in another important context, one in which the NHS itself faces enormous financial and clinical challenges over the rest of this decade. It was the Public Accounts Committee under a Labour chairman that made it very clear that virtually every NHS trust was financially and often clinically unsustainable in its present form. Change is absolutely inevitable within the NHS, whether we have these regulations or not. A massive programme of service reconfiguration awaits the NHS to meet the unavoidable fiscal, demographic and morbidity challenges it faces. In the past two months, two acute hospital trusts have gone bust, and in my view another 20 may be well on the road to the same fate. The idea that we can somehow solve these problems without an injection of new providers with some new ideas and some better management techniques is fantasy.
Lord Hunt of Kings Heath
I am most grateful to my noble friend for his enormously helpful speech tonight.
Lord Hunt of Kings Heath
I am delighted and I look forward to making further interventions. My noble friend and I very much agree on the need for a massive reconfiguration of services. We have argued that this needs to be done from the centre with authority and vigour, but what does the noble Lord say to the interventions of the OFT and the competition panel into perfectly sensible reconfiguration proposals? Does he not see that that is entirely consistent with the general direction in which the Government wish to take us, whereby in essence they are saying that the integrity of the marketplace is more important than reconfiguring these services?
Lord Warner
I am not prepared to second-guess the OFT before it has done its inquiry into this set of arrangements. I cannot see the point of having regulatory jurisdictions such as the Office of Fair Trading and Monitor if, every time they do something some of us disapprove of, we jump in and tell them they are out of line in undertaking that kind of investigation under the legislation on competition as it stands today. I am not prepared to engage with my noble friend in a discussion about whether the OFT has behaved reasonably. I would sooner wait and see what action it takes to investigate these arrangements, and that is the position that most of us had to take when these things happened while we were Ministers sitting in the same place as the noble Earl, Lord Howe, is today. We have to be a bit more statesmanlike about some of these things.
In the UK, we seem to prefer a situation in which we bail out what are in many cases public monopolies. We seem to forget that in our sister organisation of adult social care we have had a mixed economy for nearly 30 years, and that local government has quite amiably—
Lord Hunt of Kings Heath
My Lords, I do not understand that. Clearly, if a CCG decides that a potential contract meets the single provider test in regulation 5, for instance, a disappointed provider can go to the courts in any case.
Baroness Williams of Crosby
In this particular set of regulations we are giving statutory underpinning to Monitor in a way that will mean, as it did previously, a much greater opportunity to deal with most objections on the spot and not have them carry on into the courts at great expense to the taxpayer and to patients. If we turn it down tonight it will leave us without that structure altogether and we will go back to where we were.
In conclusion, while I have very strong sympathy with the view of the noble Lord, Lord Owen, that the National Health Service of the 1980s was a more true state service than anything today, I am afraid we cannot go back; we are where we are. The best thing we can possibly do is to make patients’ interests the very centre of what the NHS is all about and to recognise that this new route is the way we are going. It could, however, be very exciting and it would lead to a very much more accountable NHS than we have had in recent years.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we are debating a set of regulations on which, as we have heard this evening, a great deal of passion and a large quantity of printers’ ink has been expended over recent days and weeks. I would like to begin with three very simple statements, which I hope will be helpful as mental marker posts before I respond to the concerns and questions that have been raised.
First, amid the many changes that the Government have made to NHS commissioning, one area of the law that we have not changed one iota is the law relating to competitive tendering. That law has been in place for a number of years. It has been governed by a European directive, and as regards the rules that govern NHS procurement, these regulations usher in nothing new at all.
Secondly, there is no government agenda to privatise NHS services—quite the contrary. The House may remember that we made it illegal in the Health and Social Care Act for the Secretary of State, Monitor or NHS England to have a policy of deliberately favouring the independent sector.
Thirdly, it is NHS commissioners and no one else who will decide whether, where and how competition in service provision should be introduced. These regulations do not confer any obligation on commissioners to create or promote markets, nor do they require commissioners to unbundle or fragment services against the interests of patients.
I begin with these simple statements because they are key to understanding what the Government are doing and what they are not doing. What we are doing, above all, is having a set of arrangements in place that will protect the interests of patients. The basic purpose of the regulations is to prevent commissioners failing to think about how the needs of their patients can best be met. Equally, their purpose is to ensure that commissioning in the NHS is protected from abuses arising from conflicts of interest or anti-competitive behaviour that works against the interests of patients. There is no encouragement in these regulations, explicit or implicit, to commission services from the independent sector, or indeed any other sector. The regulations enshrine the principle that patients must receive services from the providers, from whichever sector—public, private or voluntary—that are most capable of meeting their needs and improving the quality of services that they receive.
Mechanisms to make sure that this happened were put in place by the previous Administration. These mechanisms consisted of the Principles and Rules for Co-operation and Competition, which were overseen by the Co-operation and Competition Panel. Now that primary care trusts no longer exist, we need to carry over those arrangements so as to apply them to clinical commissioning groups. The Government committed, in their response to the NHS Future Forum report, to maintain the previous rules and place them on a statutory footing in order that they could continue to apply to commissioners. That is exactly what we have done; the panel has been transferred into Monitor, so that there is absolute continuity in how the rules will be applied.
This is a key point for noble Lords to understand. Monitor is now the sector-specific regulator for the NHS. In practice that means that it, not the courts, will be the guardian of patients’ interests and will adjudicate if allegations of anti-competitive conduct arise. In effect, it will act as a firewall between commissioners and the courts. If the House annuls these regulations, that firewall will disappear and I suggest to the House that this could not possibly be in the interests of the health service.
The regulations also make it clear that Monitor has no powers to direct commissioners to go out to tender, which brings me to Regulation 5(1). People who have looked at that regulation have stated that it requires commissioners to go out to tender for just about every NHS service. That is not so. It is not even remotely near the reality. First, the wording of Regulation 5 which refers to “one capable provider” is almost exactly the same as that of the previous Government’s guidance to PCTs. My noble friend Lord Clement-Jones was quite right in pointing this out. I shall now read from that guidance. It said that PCT boards “must act transparently” and without discrimination,
“and be able to demonstrate rationale for decisions on whether or not to competitively tender. In particular, where the commissioner decides to procure through single tender the rationale must demonstrate that there is only one capable provider to deliver the services”.
The circumstances in which a commissioner may therefore award a contract without a competition under the regulations are exactly the same as they have been up to now. There is no daylight between them.
It is worth my making a point about that guidance. It was not guidance that PCTs could take or leave but guidance that was declaratory of public procurement law, which applied to PCTs, so those who think that we are replacing a rather loose arrangement with something more stringent are mistaken. The law was binding before and it is binding now. These regulations are declaratory of the existing legal position, just as the previous Government’s guidance was. However, we also need these regulations to ensure that the various protections for patients and commissioners afforded by Monitor, as agreed during the passage of the 2012 Act, are in place.
We have heard concerns this evening from the noble Lord, Lord Davies, about what might happen to the unbundling of hospital services. I would like to put that misconception to rest. Elective hospital care is not relevant to these regulations. The previous Government brought in a policy known as “any willing provider” for elective hospital services. We have continued with that policy, which means that patients have a free choice between hospital providers who meet NHS quality standards and contractual terms. There is therefore no question of tendering for those services.
In the main, the services where tendering might be relevant are those delivered in the community and certain more specialised services. Again, the overarching principle to guide commissioners is Regulation 2—to do what is in the best interests of their patients. In some circumstances, tendering may be appropriate, but in many cases it will not: for example, where there is only one provider capable of providing the integrated package or pathway of services which the commissioner wishes to secure for its patients. In another situation, they may judge that only one provider is able to meet the clinical quality and safety standards that they require. They may decide not to tender where they conclude that it is necessary for services to be co-located because of the interdependencies between them—a point raised by the noble Lord, Lord Davies, once again—in order, for example, to ensure patient safety.
It is worth looking at the actual wording of Regulation 5(1), which says:
“A relevant body may award a new contract … without advertising … where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider”.
The relevant body has to be satisfied. This means that a commissioner needs to go through a process to make sure that it is taking sensible decisions that genuinely address the interests of its patients. In other words, it must have a rationale for what it does and be satisfied that it is doing the most appropriate thing. As long as it has that rationale, that is where the matter ends. I repeat: in those circumstances there is no one who can oblige the commissioner to go out to tender.
Those who maintain that these regulations usher in a lawyers’ charter are not looking at the evidence. The evidence to date tells us that only a tiny handful of cases have been referred to the Co-operation and Competition Panel in the space of several years. I can tell the noble Baroness, Lady Hollins, that none has gone to court. Since the rules on NHS procurement are staying exactly the same, I fail to see why we should expect a sudden avalanche of challenges to commissioning decisions.
As I said during the passage of the Health and Social Care Act, there is no requirement in these regulations or anywhere else to create markets. Nor, as I have said, is there any requirement for commissioners to unbundle or to fragment services to facilitate competition: in other words, to separate out individual services so they could be provided by a larger range of providers. The decision whether and when to create these conditions and the services to which they apply remains entirely with commissioners.
One of the arguments produced by the noble Lord for annulling these regulations is that they lack clarity, particularly Regulation 5(1). I suggest that is a specious argument. First, the law has not changed. Secondly, employees of commissioning support units, whose job it is to support CCGs in commissioning decisions, are very largely the same people who did exactly the same jobs in PCTs and are entirely familiar with this area of the law. Thirdly, there is already guidance out there, produced by the NHS Commissioning Board Authority last year. Fourthly, Monitor will be providing further guidance to support commissioners in understanding the circumstances in which single tender is appropriate, including specific case studies. This guidance will be consulted on shortly. Monitor will continue, as the Co-operation and Competition Panel did before it, to provide informal advice to help commissioners understand the regulations. We really do not have to worry about lack of clarity here.
I turn now to one or two of the specific questions that were posed in the debate. The noble Lord, Lord Owen, asked why other countries have not applied these procurement laws. All member states in the European Union have been required to transpose the EU directive on public procurement into their own national legislation. In fact, it has been applied in Wales and Northern Ireland through the Public Contracts Regulations 2006.
The noble Lord, Lord Hunt, maintained that the OFT’s role in mergers is evidence of the Government’s agenda to marketise the NHS. First, that issue is in no way related to the regulations that we are debating tonight. Perhaps I could remind the noble Lord that the OFT is acting independently under the powers conferred on it under the previous Administration through the Enterprise Act 2002.
With regard to the Competition Commission gagging clinicians in the Bournemouth and Poole merger case, I suggest that that is not relevant either. My understanding is that those arrangements are simply to prevent the merger proceeding further while it is being reviewed. They should not get in the way of providers co-operating with each other in the usual way in the interests of patients. The noble Lord said that Monitor is anti-bundling and that it would be policing the regulations at the same time. That is misleading. Decisions about whether or not to bundle services are not for Monitor to make; they are squarely for commissioners to take in the best interests of their patients, and Monitor is under a duty to enable integrated services.
The noble Lord, Lord Owen, raised concerns about charities. I have seen the brief from National Voices, Marie Curie and others in this regard. Those concerns are helpful in illustrating the point that there is no one-size-fits-all approach to the commissioning of services. It is interesting that some stakeholders have raised concerns about unbundling leading to fragmentation, while others are concerned about the effects of bundling too many services together. In practice, it is for clinically led commissioners to take decisions on whether or not services should be bundled in the best interests of patients. That is their job, and these regulations do nothing to require them to bundle or unbundle, as I have said.
The noble Lord, Lord Davies, asked me whether the regulations take into account the financial viability of hospitals and economies of scale. First, I remind the noble Lord that these regulations are not relevant to the vast majority of elective hospital services, so they do not herald the prospect of large numbers of services being hived off. Secondly, it is for commissioners to make decisions about the need for services to be bundled or co-located, as I have said. It is not in their interest to destabilise providers. Thirdly, the NHS tariff is being improved in order to ensure that it is properly reflective of the costs faced by providers. This would mean that profit-making services would no longer need to cross-subsidise other services.
The noble Lord, Lord Hunt, asked me why there is no contract value threshold below which commissioners do not have to go out to tender. Where the value of a contract is such that it would be disproportionate for the commissioner to hold a tendering exercise, there is no requirement under the regulations or the law to do so.
The noble Baroness, Lady Hollins, said that Monitor should publish figures relating to the cases that it considers. Paragraph 21 in Schedule 8 to the Health and Social Care Act 2008 requires Monitor to publish an annual report on the exercise of its functions and lay a copy before Parliament, and to provide the Secretary of State with such other reports and information relating to the exercise of its functions as the Secretary of State may require. We would also expect Monitor to publish reports on cases considered by it, as the Co-operation and Competition Panel has to date.
I of course took due note of the criticisms made by your Lordships’ Scrutiny Committee. However, I would say that there was a formal public consultation on the requirements of the original set of regulations between August and October last year. Engagement events were held up and down the country. The response to the consultation demonstrated broad support for the proposals from a wide range of stakeholders. The revised regulations did not substantially change the policy, and for that reason I suggest to the Scrutiny Committee that further consultation was not necessary.
Let me be clear about what we would lose if the regulations were not in place. The main thing that we would lose is the adjudication role of Monitor as an expert health sector regulator with an overarching statutory duty to protect and promote patients’ interests. That would mean that NHS commissioners would be exposed to the full force of public procurement law, as interpreted by the courts. I firmly believe that in that situation we would be more likely to secure the very kind of risk-averse behaviour by commissioners that some have argued today must be avoided. In addition, without the regulations, patients’ right to choice under the NHS constitution would not be protected; commissioning processes would be much less transparent and accountable; we would lose safeguards to protect against and address conflicts of interest, discrimination and anti-competitive conduct that work against the interests of patients; and requirements to ensure that the objective of procurement must always be in pursuit of meeting the needs of patients and improving quality would not be in place.
Although in one sense, the regulations can be seen as unexceptional, because they largely carry forward existing rules and arrangements; but in another sense they are more than that. They are vital for anyone who believes that the central interest that the NHS should have at its heart is that of the patient. With that observation in particular, I urge the noble Lord to withdraw the Motion.
Lord Hunt of Kings Heath
My Lords, we have had a long debate and I know that the House will want to come to a decision very soon.
I agree with the last comment of the noble Earl, Lord Howe. These are very important regulations, although there is disagreement about what they mean when it comes to practice in the field. The essential test of the regulations is whether they accord with the assurances given by Ministers during a difficult time in getting the Bill through your Lordships’ House and the other place as to whether clinicians would be free to commission services in the way that they considered best.
The noble Earl, Lord Howe, is always reassuring and was so tonight on the content of the regulations. If you read them and the comments of your Lordships’ Scrutiny Committee, you will see that that simple statement—that clinicians will be free to commission services in the way that they wish to—has been hedged in by the product of many statutory rules contained in the regulations. When it comes to Regulation 5, there is a division of opinion between the Government and the Opposition, and between lawyers, as to what the single capable provider test means. It is arguable that the health service will be confused as to whether it can define a local service as one that can be provided only by one provider, or whether, in many parts of the country, similar services will provided by different organisations within the facility of the CCG. There will be considerable doubt whether the CCG will be able to go ahead and award a contract without some competitive tender process. That is at the heart of some of this argument.
I do not accept the idea that Monitor’s involvement will somehow prevent legal action from ending up in the courts. The general confusion about these regulations will inevitably lead to cases coming before the courts. The advice that will be given to many CCGs by their legal advisers is to act defensively and to go out to more competitive tendering than the noble Earl has suggested.
The noble Baroness, Lady Williams, and the noble Lord, Lord Walton, are of course strong supporters of the National Health Service. I say to them that every day, up and down the country, a market is unfolding in the NHS. People in the NHS believe that that is happening. They are seeing contracts already being won by the private sector. They see themselves being undercut, and they worry about the fragmentation of services and about the overall intent of the Government.
Of course the NHS is not perfect but, my goodness, it enjoys tremendous public support. I have worked with the noble Baroness, Lady Cumberlege, over many years. She referred to international comparisons. I end by referring her to the US Commonwealth Fund, which produces an evaluation of the most developed health care systems in the world. Its latest evaluation placed the UK as No. 2 overall. It placed the US, where the system of markets and competition is most to the fore, as No. 7. When people look at the NHS internationally, they see a lot of things that they wish to commend, not least of which is the integration of purpose and the support from the public. My concern is that at the end of the day I think the noble Earl is right: these regulations are vital. The problem is that they hold open the door to a competitive, marketised service in which I am afraid that, despite the wording that has been used tonight, the interests of patients will be not first but last. I wish to test the opinion of the House.
NHS: Leeds General Infirmary
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Earl Howe
I say to my noble friend with great respect that the premise of his question is incorrect. The Government have not taken a role in this matter. As I said to the noble Baroness, Lady Howarth, and to the noble Lord, Lord Warner, this is a matter that the NHS itself has led. There is no agenda by the Government at all, apart from our desire to see the best possible children’s cardiac services provided in this country.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests. Would the noble Earl accept that Sir Bruce Keogh has an outstanding record in the health service in improving outcomes from heart surgery, and therefore he has to be listened to with a great deal of respect?
On the more general issue of the reconfiguration of services, on which NHS England has promised to become much more assertive—which, I am sure, is welcome—is the noble Earl concerned that the Office of Fair Trading and the Co-operation and Competition Panel seem to be intervening in sensible reconfiguration decisions on the spurious basis that they impact on competition? Will he tell these bodies to desist?
Earl Howe
My Lords, if the noble Lord can supply me with some examples, of course I will look into them. I remind him that tomorrow we are debating a set of regulations that bear on this very question and I shall have plenty to say on that occasion, which I hope will assuage his concerns.
NHS: ECMO Machines
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Earl Howe
I fully agree. The noble Lord is quite right. ECMO cannot be provided by just any ICU team. It is a highly specialised treatment with significant potential for serious complications, and considerable expertise is therefore required, including having a multidisciplinary team of the kind that he outlined. In general, capacity has much more to do with having suitably trained staff than with having the equipment itself.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests. On the question raised by the noble Lord, Lord Patel, about evidence, would the noble Earl consider referring this to NICE for its expert advice?
Earl Howe
I shall certainly take that idea away with me, but I think that there is broad consensus among the medical community that the key to success with ECMO is getting the patients connected to the equipment quickly. Although it is a moving scenario, all the evidence so far suggests that ECMO confers no benefit if some hours have elapsed since the cardiac arrest.
NHS: Out of Hours Service
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Earl Howe
Increasingly, this is likely to happen, because our changes to the GP contract this year are bound to make sure that GPs think more about long-term integrated care for their patients. The recommendations from NICE underpinned the new arrangements in the GP contract, and my noble friend is absolutely right that that has to remain very squarely in the sights of all GPs.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests in the register. The Minister mentioned the NHS 111 service. Is he aware of reports up and down the country of a shortage of staff and long waiting times to get through to the service? Is he also aware that the system is increasing pressure to close walk-in centres? Combined with a poor-quality out-of-hours service, is it any wonder that acute hospitals are under such pressure? Will the Government look at this again?
Earl Howe
I am aware of teething problems in two particular areas of the country, but we know from the pilots of NHS 111 that there is a high rate of patient satisfaction with the service. As noble Lords will know, NHS 111 is designed to put the caller through to the right service first time around, whether it is a nurse, a doctor or an ambulance, if that is required. There are bound to be teething problems, and rolling out a service like this across the country is, of course, a major task. But the concept of increased flexible access to healthcare and advice is absolutely right, and we are determined to see the service work very well for everybody.
Mid Staffordshire Foundation Trust Inquiry
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Lord Hunt of Kings Heath
My Lords, I am sure that the House will wish to thank the noble Earl for repeating the Statement.
The NHS is now 65 years old and if it is to be ready for the challenges of the future it has to learn from what happened at Mid Staffordshire. The NHS was founded on compassion; Mid Staffordshire was a betrayal of all it stands for and, rightly, apologies have been made. Now, however, it is time to act and to make this a moment of change. Robert Francis delivered 290 careful recommendations after a three-year public inquiry. The Prime Minister promised a detailed response to each by the end of this month. Although we welcome much of what the noble Earl has said today, it falls short of that promised full response. I ask him to be a little more precise about when we can expect the full response to be made.
There are serious omissions from the Statement on four flagship recommendations and I would like to press the noble Earl on those today. First, I should like to deal with the proposed duty of candour. We from the Opposition welcome the move to place a duty of candour responsibility on healthcare providers and believe that it could help bring the culture change that the NHS needs. However, the noble Earl will know that the Francis report goes further in recommending a duty of candour on individual members of staff. Will the Secretary of State say more about why he has only accepted this recommendation in part and not applied it to staff? Has the noble Earl ruled this out, or is he prepared to give further consideration to it?
On providers, will the noble Earl assure the House that that duty will apply equally to all providers of NHS services, including private providers? The Statement was rather vague on that point. The logic of a fair playing field, which I think has been the subject of a report published today, must suggest that anyone providing services to the NHS must come within the same regulation. I refer the noble Earl to the experience in Cornwall where there is a private sector provider and a weak primary care trust which the National Audit Office has commented on. Would that provider come within the terms of what the noble Earl has said?
I was interested in the Statement referring to new legal sanctions in general at a corporate level for organisations that wilfully generate misleading information or withhold information they are required to provide. Can the noble Earl confirm that that sanction will apply to Ministers, the Department of Health, the NHS Commissioning Board, Monitor, the CQC and all the other public regulators and those who have authority over the NHS? It would be grossly unfair if this was simply to apply to parts of the National Health Service and not to those organisations that have so much power over the NHS. I would be grateful for a response on that.
I turn to the other issue in relation to private providers. Is it not the case that we will not get full transparency unless provisions of freedom of information apply to all holders of NHS contracts and the information cannot be withheld under commercial confidentiality? I remind the noble Earl of the regulations in relation to Section 75, which are absolutely apposite to this question of a level playing field.
I turn to the question of a patient voice. The Government have announced new chief inspectors of hospitals and social care, which was not a Francis recommendation. Is there not a risk of top-down regulatory structures reinforcing the wrong culture, looking up to Whitehall and not out to patients and the community? Surely the noble Earl will accept that regulation alone will definitely not prevent another Mid Staffs. What might prevent it is a powerful patient voice in every community that is able to sound the alarm if things go wrong. In that context, I have a question about local Healthwatch? We know that one-third of local authorities have said that their local Healthwatch will not be up and running by 1 April. We also know that there are wide variations in structure and membership. I wonder whether the noble Earl will accept Robert Francis’s recommendation of a consistent basic structure for Healthwatch throughout the country, before it is too late and before they go their separate ways. The importance of the proposal is that these bodies can give a very powerful voice to patient concerns about the quality of care in their locality.
My third area of concern is regulation and training. Mr Francis has made a very clear case for a new system of regulation of healthcare assistants to improve basic standards. The noble Earl does not need reminding that many noble Lords are concerned on this point. Unfortunately, I did not hear in his reading of the Statement any reference to the statutory regulation of healthcare assistants, and it is disappointing that the terms of reference for the Cavendish review do not include consideration of that matter. Have the Government now rejected that recommendation; are they still considering the regulation of healthcare assistants; or have they decided after all to support the principle?
We support the move to rebalance nurse training to include more hands-on experience. Does the noble Earl accept that hospitals need to be given much more authority in the training of nurses and the balance between what happens in hospitals and what actually happens within universities? Does he acknowledge that student nurses already spend 50% of their time in clinical practice and also face significant financial barriers when completing training? In the light of the announcement, can he assure the House that the requirement for a year on the ward will not increase the financial barriers to young people entering nursing? If more trainees are to be on the ward, will he ensure that there are enough staff with the time to train the extra students? In that light, will the Government encourage the appointment of supervisory ward sisters to allow more time for leadership, training and support of those student nurses? I should have declared an interest in making this response to the Statement. The noble Earl will be interested that my own trust, Heart of England, has announced this week a £1.4 million investment in the introduction of supervisory ward sisters to do just that. Will he encourage other hospitals to do likewise?
I listened with care to the Statement when it referred to the creation of a culture of zero harm throughout the NHS. Such an objective must be right. We know from previous statements that the Secretary of State is keen to follow the example of the airline industry and note that Professor Don Berwick will report to the Secretary of State on those matters. However, does the noble Earl not think it rather ironic that the Government abolished the National Patient Safety Agency, which was set up to mirror what has happened in the airline industry and encourage staff to raise concerns about patient experiences? Does he not see that although the national reporting and learning system has been retained, placing it under the control of the NHS Commissioning Board is completely at variance with the philosophy in the airline industry of giving people absolute safety in reporting incidents to the system? Will the noble Earl reconsider this matter?
I have real concerns about the decision that the CQC will no longer be responsible for putting right any problems with quality identified in hospitals. I do not think that that is the right decision. How on earth can the decision be taken to give Monitor and the NHS Trust Development Authority—which, as far as I know, has no clinical expertise whatever—the power to deal with issues which the CQC has raised? Other than the thought that they are relying on health and competition economists—which Monitor is stuffed full of—to do this, does it mean that Monitor will now have to employ lots of clinicians on its staff? Can the noble Earl explain why this rather puzzling decision has been made?
The fourth major issue concerns staffing, which is the most glaring omission from the Statement. The culture will never be right on our wards if they are understaffed and overstretched. The CQC has recently reported that one in 10 hospitals does not have adequate staffing levels. Indeed, last week, workforce figures showed that there had been a reduction of 843 nurses between November and December. Does this not sound the clearest of alarm bells that some parts of the NHS are in danger of forgetting the lessons of its recent past by cutting the front line? Do we not need objective benchmarks so that staffing levels can be challenged on wards?
Last week, we learnt that the Department of Health has handed £2.2 billion from last year’s NHS budget back to the Treasury. Would not that money be better used to bring nursing staffing levels up to standard? I wonder whether the noble Earl and his ministerial colleagues are in denial about the pressures on the health service at the moment. The system is under horrendous pressure. Primary care is faltering. We heard earlier about the appalling standards in many out-of-hours services at the moment. The 111 service is problematic in some parts of the country. There have been huge cuts in local government adult social care spending. Yet the system—Monitor and the NHS Commissioning Board—carry on oblivious to this, obsessed by their target culture. I ask the noble Earl whether Ministers really understand what is happening, and whether they are now prepared to look again at the way the system will be managed in the future.
Finally, I return to Mid Staffordshire hospital itself. Monitor has recommended that this hospital is placed in administration. We should not forget that the future of the hospital will cause real concern to the people of Stafford. After all they have been through, surely we can all agree that they deserve a safe and sustainable hospital. I hope that the noble Earl will soon be able to set out a plan to achieve it.
UK: Ageing Population
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Earl Howe
My Lords, change is an increasing imperative, at least in my judgment, at local level. I talk not only to professionals in the health service but to local authorities, which will very soon be charged with looking in the round at the needs of patients and service users in their area. They know that with the financial constraints that are upon us, services need to change in order to remain sustainable and affordable. That will be a very strong driver to ensure that some of these very good recommendations are driven forward at pace.
Lord Hunt of Kings Heath
My Lords, the Opposition warmly welcome the report. I am sure that it will be influential in the way we develop policies in the future. I was interested in the noble Earl’s response when he talked about public sector reform. Does he agree that the overwhelming message of the report is the need for a fully integrated health and social care system? Is he not as worried as I am that the changes in the NHS that he is introducing on 1 April will in fact lead to a disintegrated system in which, instead of co-operation and integration, competition will become the name of the game?
Earl Howe
No, I do not agree with that. We have always said that competition is but one tool in the armoury of commissioners. It is not a panacea by any means. As for disaggregation, I see the opposite at local level. Health and social care, public health and patient organisations are getting together for the first time to break down silo barriers and the traditional divisions that have existed.