Contracting Out (Local Authorities Social Services Functions) (England) (Amendment) Order 2012

Lord Hunt of Kings Heath Excerpts

Tuesday 20th November 2012 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, in 2011 an order was passed by noble Lords under the Deregulation and Contracting Out Act 1994 to allow local authorities taking part in two pilot schemes to contract out to outside organisations certain adult social service functions. The order under discussion today amends the original order to allow local authorities to continue this contracting out activity in respect of the pilot programmes beyond the period provided by the original order. The pilots are, first, adult social work practices pilots and, secondly, Right to Control pilots.

The social work practice pilots are testing various models of social worker-led organisations undertaking adult social care functions for which local authorities are currently statutorily responsible. The Right to Control pilots are testing the rights of disabled people to manage some of the state support they receive to live their daily lives. As these are established pilots, I will briefly outline each pilot programme before describing the rationale behind the extensions.

The social work practice pilots were announced in 2010 and the programme has been running for more than a year. The scheme has seen the creation of seven social worker-led organisations that discharge the functions of the local authority in providing adult social care services. On a day-to-day basis, the pilots are independent of the local authority but work closely with it and in partnership with other providers. The local authority pays for the services but maintains its strategic and corporate responsibilities through its contract with the social work practices. We are looking at the pilot sites to test the potential benefits of the social work practices, and whether the innovative approaches improve outcomes and experiences for the people who use them.

The programme aims to bring people who need health and care support closer to those who provide the services they need by reducing bureaucracy, encouraging innovation and increasing the personalisation of services. The Department of Health has provided funding of £1.1 million to help the pilots get up and running and to provide initial support. The pilots are an opportunity to test different models to see what works well. They will be fully evaluated throughout the pilot period, with the final report planned for winter 2013. In considering the need to extend the pilots we listened to the advice of the social work practice working group, which incorporates the sites themselves, and representatives from ADASS, SCIE, the Department of Health and the independent evaluators.

There are two main reasons why we seek an extension to the social work practice pilots from their planned end in summer 2013 to 31 March 2014. First, it has taken longer than we anticipated for many of the sites to become established and begin providing services. This point was highlighted in the recent interim report on the pilots published by SCIE. The proposed extension will ensure that the pilot sites have an increased opportunity to feed into the independent evaluation planned to report in winter 2013.

Secondly, my department must own up to the fact that, in planning the scheme, it did not take into consideration that there would be a gap between the pilots ending and the evaluation reporting. Therefore, extending the pilots to 31 March 2014 will ensure that no pilots will need to end before the evaluation has reported, and that users will continue to be able to access the service. The local authority in each pilot area will have the final say on whether sites are extended. This order creates the opportunity to do so.

The Right to Control, introduced by the previous Government in the Welfare Reform Act 2009 and launched in 2010, gives disabled adults greater choice and control over certain state support they receive to meet their individual needs and ambitions. Disabled adults in the pilot areas are able to combine the support they receive from six different funding sources and then decide how best to spend this to meet their needs. The pilot is due to end in December this year and my honourable friend the Minister for Disabled People intends to extend the pilots by a further 12 months to gain more evidence of the benefits during the pilot programme. A public consultation seeking views on the plans to extend the Right to Control pilot ended on 21 September and among those who commented there was solid support for the extension for a further 12 months.

The Right to Control pilots are being tested in seven trail-blazing areas in England. These trail-blazers, funded by the Department for Work and Pensions, are testing the best ways to implement the right and the results will be used to inform decisions about options on the right in future. Since Right to Control was introduced in 2010, a great deal of progress has been made and over 34,000 people have benefited from it. The interim evaluation of the pilot scheme concluded that there was insufficient evidence on which to make an informed decision about the long-term future of Right to Control. The Government concluded therefore that the best solution was to extend the pilot scheme by a further 12 months to enable us to gather more evidence of what works best, both for disabled people and for the local authorities delivering the Right to Control.

One of the authorities delivering the Right to Control has also been testing delegation of its statutory duty to review social care assessments to third parties, such as user-led organisations. Disabled people have often told us that having their support arrangements reviewed by fellow service users leads to greater satisfaction with the outcome and that the support of their peers gives them greater confidence to request a direct payment and to take control of their own support arrangements. The proposed extension will allow the trail-blazers to continue to test the delegation of this statutory duty. In conclusion, we see the proposed extension in the order as a continued commitment to the developing world of personalisation and one that fully supports the aims set out in the recent care and support White Paper and draft Bill.

This order has the support of councils and their representatives, as well as service users and their carers. It will allow the continuation of new and innovative ways of working to the benefit of individuals and their communities as a whole. More importantly, it will also maximise the evidence and outcomes available to the independent evaluation in both programmes. I commend the order to the House.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl, Lord Howe, for his full explanation of the order before us this afternoon. I find the contents to be unexceptional and it is right to avoid a hiatus in the pilots’ evaluation. The people affected should not have to go back to an old system before knowing whether the Government have decided that they should be extended, so the logic of the order is clear. I will ask the Minister about a couple of points. He mentioned evaluation. In relation to the trail-blazers pilots, he referred to the interim evaluation which, as he said, found the Right to Control had not been extended to a sufficient number of people to provide evidence to inform a decision about the future of the Right to Control approach. Will he say more about the emerging findings as to the impact on disabled people? He made a few comments about that and suggested that the signs so far are encouraging, with some positive outcomes. Could I tempt him into explaining a little more to the Committee?

I also ask the Minister about potential links between the Right to Control trail-blazers and initiatives taking place on public health. Following the debate when the order was first brought before your Lordships’ House in 2011, the noble Earl wrote to Members who had spoken to the order to say that the Right to Control trail-blazer pilot was intended to be run simultaneously with the public health budget pilots. In particular, he mentioned Manchester, where he said that there was one in-depth public health budget site—Manchester—alongside a Right to Control trail-blazer site. I wonder whether he could report anything on that. I also ask the noble Earl what feedback there has been from users of the service on Right to Control pilots.

On the adult social work practice pilots, I understand that the evaluation has been carried out by King’s College London. I have yet to track down any KCL publication on any emerging findings from those pilots. Perhaps the noble Earl could confirm whether anything has been published so far. I understand, however, that the Department for Education has published an evaluation report by King’s College London and the University of Central Lancashire on the original pilots for children and young people in care, in September 2012. That might be of interest in comparing those pilots with the pilots that are now being undertaken. That evaluation, I understand, found mixed views as to whether the pilots performed better than their local authority counterparts, or whether they represented good value for money. Would the noble Earl be prepared to comment on that? Overall, though, we of course support the extension of the pilots.

[Baroness Barker]

My Lords, I very much welcome the extension of these pilots. I am not quite sure why the order has to come back to the House; that seems rather strange.

I say that I welcome the extension as somebody who has been consistently critical of the premature way in which the previous Government seized upon the then interim findings of the IBSEN report into personal budgets for social care and proceeded to extend that away from the original client group on the flimsiest of evidence. I am therefore extremely pleased that the present Government are going to take a lot more time and care over these pilots. A lot is changing. A great deal has changed since 2009 when these pilots began, but there is massive, rapid and in-depth change going on in social care. I was talking the other week to a colleague who works for a major national charity and who has done some forward projections of the funding of services of some of the organisations with which she works. Believe me, if people are worried about the American economy and the cliff edge that it is coming to, they really ought to look at voluntary sector funding for the next two years. That is important and relevant, because many of the generic sources of advice to which people in need of social care go are currently under threat. In addition, health and well-being boards are in the process of being set up. That is a major change in the health and social care landscape in which these pilots are taking place. It would be advantageous if the Government were to extend, at least until 2014, its analysis of how these are working.

NHS Commissioning Board: Mandate

Lord Hunt of Kings Heath Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, first, I thank the Minister for repeating the Statement and for the briefing that he gave me earlier today. I also refer noble Lords to my interest in health, contained in the register.

This morning I had the great privilege of hosting a ministerial visit to Birmingham Heartlands Hospital by the Minister’s honourable friend, Mr Norman Lamb. He came to see the Birmingham and Solihull Rapid Assessment, Interface and Discharge service—RAID—which essentially is a partnership that has placed mental health professionals inside the emergency department of my local hospital to give people a holistic physical and mental health response. In that context, I very much welcome the emphasis in the mandate on mental health priority and the promise to implement the amendment that we tabled in your Lordships’ House in relation to parity of esteem between physical and mental health.

But—and there is a but—the problem at the moment in the National Health Service is that mental health has been first in line for reductions in expenditure. Is the Minister in a position to confirm that mental health spending was cut in real terms last year, and to say what the Government intend to do to reverse that? Will he also confirm, in relation to mental health, that he is determined to see that primary care plays its role and that we will see more mental health specialists working in teams with GPs, nurses and carers? Will personal health budgets be extended to enable patients with mental health issues to select the best combination of services and treatments for themselves? Furthermore, does the Minister agree that good mental health does not start in the hospital or treatment room but in our workplaces, schools and communities? For example, poor mental health in the workplace costs the UK an estimated £26 billion a year. Does the Minister accept that this requires a cross-government approach, and is he as disappointed as I am at the news of the apparent demise of the Cabinet Sub-Committee on Public Health—due, it is said, to a lack of interest from other government departments?

The mandate contains a number of welcome references to helping to improve people’s health. I would be grateful if the Minister could tell me what the Government are doing to reawaken interest across Whitehall. The whole architecture of the NHS that the Minister brought to your Lordships’ House in the Health and Social Care Act was about the Department of Health passing over day-to-day concerns about the NHS to the national Commissioning Board, giving itself time to work on wider public health issues—and, I have always assumed, to seek to influence the rest of Whitehall. Would he accept that the demise of this Cabinet sub-committee is a very disappointing signal?

I have three fundamental questions concerning the mandate, which relate to funding, the measurement of performance and the role of Ministers. As the Minister has intimated, this is a multiyear document, setting objectives for the period April 2013 to March 2015 but subject to revision at the end of each year—or, in other special circumstances, including a general election. We can only hope that we might be coming back to this mandate sooner than the Government perhaps would wish. I have noted that the mandate has been restructured around the outcomes framework, which is to be welcomed, and that some of the specific levels of ambition that were placed in the consultation on the mandate have now been replaced by what the Minister described as stretched levels of ambition. Has the mandate been costed out? I could not help but contrast the optimistic claims of Ministers with the everyday financial realities of life in the NHS. Is the mandate a realistic document about what the public can expect to happen or is it little more than a Christmas shopping list which is unlikely to be realised in full?

The noble Earl will have seen the RCN’s warning today of thousands of job losses among clinical staff. That appears to be the reality of life in the NHS. Emergency services are under pressure and a toxic mix of reorganisation and real-terms cuts risks plunging the NHS into a very difficult situation. There has been a great deal of publicity and concern about the decision of the BBC in relation to the retirement package, as it were, of the former director-general. However, the Government stand accused of wasting a full £1 billion on redundancy packages for health service managers as a result of the recent reforms. That money could have been spent on patient care.

I note that most of the time the Statement seeks to create a consensus but every so often it descends into political rhetoric, which I regret. I was pained to hear the noble Earl say that the previous Government sent endless instructions to the health service and constantly bombarded it with new targets. However, those targets, which focused on reducing waiting times and improving clinical performance, were absolutely pivotal to improving the performance of the National Health Service. We will, of course, always find ways to make further improvements, but there is no doubt whatever that between 1997 and 2010 the NHS was vastly improved.

The new architecture which the Government have set in place feels very bureaucratic to those working in the National Health Service. Instead of clear departmental direction, three major agencies have been created, which often row in different directions. Monitor, the economic regulator, has conflicting roles. It is unsure about how to incentivise integration but is stuck with the mantra of the market and enforced competition. The CQC lacks confidence and credibility and awaits the Francis verdict, although the appointment of the new chief executive, David Behan, is a very good step forward. The national Commissioning Board is all-powerful and talks the talk of devolution but I am afraid to report that it displays some centralist tendencies. Indeed, I have heard that “aggressive commissioning” is the buzzword around the national Commissioning Board. I certainly hope that it can do better than that. I do not think that the frail elderly, who comprise the patient group that makes the most demands on the health service, need aggressive commissioning. They need an integrationist approach whereby the architecture and the key national players—the department, Monitor, the CQC and the NCB—work together to get the conditions right for an integrationist approach.

I urge the national Commissioning Board to focus its attention on primary care, community care and adult social care. Does the noble Earl agree with that? We are seeing in the health service the development of seven-day working in acute hospitals. I welcome the mandate’s emphasis on mental health playing its full part, but it requires the same commitment from GPs, community services and adult social services. The contrast between what is happening in some parts of the NHS with the desperate struggle that local authorities are facing to keep council social care services for adults going could not be wider. Indeed, millions of people face higher care charges as councils are forced to put up the cost of meals on wheels and other services. The response from local government to the need for a seven-day service is extremely patchy and very worrying.

I would like also to refer to the comment made in the Statement about the performance of the NHS in relation to certain clinical services. If the Government are so concerned, why on earth are they proceeding with cuts to the cancer, heart and stroke networks? Surely that needs to be reconsidered.

Turning to the performance of the national Commissioning Board and how it is to be measured, the mandate contains a long list of improvement areas —as they are called—and says that it is the Government’s ambition,

“for England to become one of the most successful countries in Europe at preventing premature deaths, and our objective for the NHS Commissioning Board is to make measurable progress towards this outcome by 2016”.

What do the Government mean by “measurable progress”? Are there going to be some numbers or is this going to be a vague promise by the national Commissioning Board? What will happen if the national Commissioning Board does not meet those objectives and ambitions? Will there be any sanction placed on it?

The noble Earl repeated the mantra that the NHS is being liberated from day-to-day, top-down interference in its operational management. The mandate seems to have issued an uncosted wish list and is hoping to contract out responsibility to the national Commissioning Board, but it does not absolve Ministers of their accountability for giving Parliament as much information as possible and, ultimately, accepting their responsibility to Parliament for the performance of this great public service.

--- Later in debate ---

[Baroness Northover]

My Lords, it is the turn of the Conservatives.

[Lord Hunt of Kings Heath]

My Lords, there was an agreement between the usual channels that it is the Government Benches, then the Opposition and then the Cross Benches. The noble Baroness is seeking to reinterpret what has already been agreed.

[Baroness Northover]

It is the turn of the Conservatives.

Health: Obesity

Lord Hunt of Kings Heath Excerpts

Monday 12th November 2012 Lords Chamber

[Earl Howe]

My Lords, as my noble friend knows, the Secretary of State will set the strategic objectives and policy priorities of Public Health England. It will have operational autonomy and operate transparently. Rates of obesity remain high across England and continue to have clear links to health inequalities. GPs can play a key role in making every contact count by raising the issue of obesity and providing advice or referral to appropriate services, so I do not necessarily accept the criticism that my noble friend levelled at the current QOF indicators. GPs have every reason to act when they see obesity in front of them. I cannot pre-empt exactly what Public Health England will wish to prioritise in the development of the QOF, but I fully expect that it will want to work with NICE to review the evidence base for building on the current QOF obesity indicator.

[Lord Hunt of Kings Heath]

My Lords, I am sure that the noble Earl will agree that action on obesity is best taken when different government departments play their part. If he accepts that, does he regret the abolition of the Cabinet sub-committee on public health?

[Earl Howe]

My Lords, the role of Public Health England will undoubtedly stretch across government departments, because it should and will involve energising the efforts of not just the Department of Health and at not just national level. However, I agree that there is no single magic bullet to solve the problem of obesity. The call to action on obesity published last year set out a range of actions in which government and individuals, as well as local organisations, need to engage if we are to beat this threat to public health.

NHS: Death at Home

Lord Hunt of Kings Heath Excerpts

Thursday 8th November 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this has been a fascinating debate with uniformly high-quality contributions. I, too, am very grateful to my noble friend for initiating it and have a great deal of sympathy with the thrust of his argument.

As we have heard, some people die as they would wish but many do not. Some people experience excellent care but, sadly, many do not. We know that many people experience unnecessary pain at the end of their lives. Although we have made progress and although the current Government are carrying on where the previous Government left off in relation to this matter, we know that much more needs to be done. We are faced with the fact that a large majority of deaths, following a period of chronic illness, occur in NHS hospitals yet many people would prefer to die at home.

My noble friend Lord Warner was right to say that an increasing number of people will have more complex medical needs and that that might push them into the hospital system unless we are very careful and are determined to provide the choice and service required if one is to die in the community or in one’s own home. That means responding not just to the requirement to improve health and social care services but also to the points raised by the noble Lord, Lord Howard, and the right reverend Prelate, particularly in relation to support for the hospice movement. This has been a recurring problem. We have to face up to the real issue of the reluctance of NHS bodies properly to fund hospices in the past and, indeed, the reluctance to give them certainty of funding for two or three years ahead as opposed to funding on an annual basis.

I would like to ask the noble Earl, Lord Howe, about the implications of the White Paper and the draft Bill in relation to care and support. My understanding is that it has some words of comfort around certain free end-of-life care services. I should be grateful if the noble Earl could provide some clarification on that.

This is not the time to debate the Liverpool care pathway, but I was moved by what the noble Baroness, Lady Masham, said. However, I did not recognise the issue of the Liverpool care pathway in what she said. I would draw a distinction between the philosophy that the noble Baroness, Lady Finlay, gave about how it should work and what may be the problems in practice in some parts of the country. It is important to distinguish between the pathway as it should be and poor practice, which of course must be rooted out and investigated.

An important point made by my noble friend Lord Dubs and other noble Lords is that in seeking to help people to die at home and to help their relatives, it is important to educate people on the reality of that. People who wish to die at home surrounded by their family have a desirable aim but, as Sue Ryder has pointed out to us, often the family can get very consumed with caring responsibilities and issues can arise that make end-of-life care at home more stressful. We therefore need to understand the implications of choosing to die at home.

We should not forget the contribution of social care. A recent Nuffield Trust survey showed that this is a significant part of the care that needs to be provided for people in the final months of their life. However, there is a great variation in the use of social care from local authority to local authority; it matches the NHS variations in different parts of the country in terms of how many people are able to die at home, as my noble friend mentioned. That is not acceptable and comes back to the Government’s response to this.

I know that the noble Lord, Lord Howard, and other noble Lords have raised the issue of the mandate, and I am aware that there is a consultation on the NHS constitution. It is proposed that the constitution be amended, in relation to patient choice and involvement in healthcare, to state:

“You have the right to be involved fully in all discussions and decisions about your … health and care, including in your end of life care”.

That is welcome. I ask the noble Earl: is that enough, because it does not actually mean that the kind of services that would enable choice to be exercised will be made available?

I also say to him that the consultation document states that the report from the NHS Future Forum made it clear that there is a problem with the constitution in terms of whether the health service is sufficiently cognisant of the constitution and what it means. I know that in the consultation there are proposals to make NHS staff more readily aware of it. The point that I would put to the noble Earl is: if it turns out that that is not sufficient, will he be prepared to consider my noble friend’s suggestion that a legislative solution may be required to ensure that the services provided are sufficient to enable people to exercise real choice and to have the kind of end-of-life care in their home that we would all wish people to have?

Health: Cancer

Lord Hunt of Kings Heath Excerpts

Wednesday 7th November 2012 Lords Chamber

Asked By

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what are their plans for the future funding and number of cancer networks.

[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 interests in the register.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, £42 million has been allocated by the NHS Commissioning Board to support strategic clinical networks in 2013-14. Networks will cover a number of priority conditions and patient groups, including cancer. It is for local health communities and the board to determine the number and size of networks, based on patient flows and clinical relationships, and to deploy their resources appropriately.

[Lord Hunt of Kings Heath]

My Lords, does the noble Earl accept that cancer networks have done an outstanding job in improving the quality of service and outcomes? Does he agree that there is widespread expectation that the number of cancer networks will be reduced, the staff in many places will be made redundant and the new set-up will not be as effective as the current one? Will he respond to that?

[Earl Howe]

My Lords, I agree that clinical networks are a success story in the NHS. They have raised standards, supported easier and faster access to services and encouraged the spread of best practice. We very much want to see that continue. The final number of strategic clinical networks and the number of clinical staff who support them have not been finalised yet. Those numbers will be determined locally so it is too early to speak with any certainty about final staff numbers. We do not anticipate many compulsory redundancies at all. A number of staff have been deployed to other posts already. The aim of all this is to achieve not only a more effective series of networks but a more efficient system as well. We believe that that will be delivered.

Mental Health (Approval Functions) Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 31st October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, detaining people under the Mental Health Act raises fundamental questions of individual liberty and public safety requiring the most careful consideration. When that is combined with emergency legislation of a retrospective nature, it is clear that the circumstances in which we find ourselves today are far from ideal. Your Lordships will want to satisfy themselves that the retrospective measures that the Government are asking us to approve are justified. We have to be sure that this is the only real course of action available and that we are not setting a precedent where emergency legislation can be used as a convenient means of correcting administrative failings.

In doing so, we must have at the forefront of our minds the simple fact that the uncertainty that has arisen in the past week affects thousands of highly vulnerable people and their families, as well as holding serious implications for patient and public safety. If we leave that uncertainty hanging, it has the potential to cause real harm to those individuals and damage public trust in our system of individual and public protection. That is why Her Majesty’s Opposition have concluded that the public interest is best served by the Government taking the swift action that they propose today.

In reaching that judgment, we can take comfort from the fact that the main mental health charities, as well as the Royal College of Psychiatrists and the devolved Administrations, are also supporting the Government’s course of action. We are further helped by the fact that the Minister has today set out a cogent case for this exceptional retrospective measure that is before your Lordships.

However, a number of matters of detail and of principle arise from what the Minister said, which I would like to cover today. It would be helpful for the House to know more about the extent of the checks that have been carried out on the 4,000 to 5,000 cases that the Minister mentioned. The fact that we have a very vague figure suggests that there has not yet been a thorough case-by-case review. Would the Minister agree that that has to be done and that we need to know the precise number on the extent of the problem?

I press the Minister again on the question of the people and families affected, who will no doubt be unsettled by the news of what has happened. I noted from yesterday’s proceedings in the other place that strategic health authorities have been charged with putting a proper communication process in place. With all respect, those very SHAs that did not do this properly have been charged with communicating with the patients. I would like to press the Minister on the point that my right honourable friend Mr Andy Burnham made yesterday about the need for his department to be involved in personal communication to the individuals concerned.

Alongside the question of the details, I ask the Minister about the details of individual SHAs and timing in terms of notification of the department. If it had happened in just one SHA, the explanation might be easier to ascertain and understand. But given that it has happened in four SHAs, it seems to point to a more widespread issue of concern. I share the concern of the noble Baroness, Lady Murphy, on that point. Is it symptomatic of problems arising from historical practice among NHS bodies in those regions, or does it indicate that in those regions there may well have been a general problem with schemes of delegation? If the noble Baroness, Lady Murphy, was able to do the job properly, it is very difficult to know why other SHAs were not so able to do the job, given the extensive legal advice available to strategic health authorities.

I would also like to ask the Minister about timing. On Monday, he said that knowledge arose because earlier in the year,

“a doctor challenged a refusal by the Yorkshire and Humber approvals panel to approve him under Section 12. This challenge highlighted the possibility that the Secretary of State's approval function, which had been properly delegated to SHAs, may, in some areas, have been unlawfully further delegated to NHS trusts. Yorkshire and Humber and then the northern SHA cluster took their own legal advice, which confirmed that the trust had been acting ultra vires in issuing the approvals. The northern SHA cluster identified that this applied to the arrangement in North East SHA and alerted the Midlands cluster, where it was possible that the same issue might apply in East Midlands and West Midlands”.

But it was not until 22 October that,

“the northern SHA cluster alerted the Department of Health to the issue surrounding the approval of doctors and the possible knock-on effects that that would have”.—[Official Report, 29/10/12; col. 449.]

If I have read that right, it seems to have taken a matter of six months or even more between the Yorkshire and Humber SHA, which I think has been subsumed into the northern SHA cluster, first knowing and its then not alerting the Department of Health. I am interested to know why it took so long for the department and Ministers to be alerted.

I come to the point raised by the noble Lord, Lord Pannick, and whether the concept of “Any person” in Clause 1(1) of the Bill is too broad. On normal reading, it appears to legalise approvals by anybody. I know that the Minister said something about that in his introductory remarks. However, the intervention of the noble Lord, Lord Pannick, regarding the outcome of the Constitution Committee’s deliberation this morning was helpful. He said that its reading of the draft is that it is not confined to the mischief of the improper use of delegated powers and, on the face of it, appears to give very broad and retrospective approval to actions that have been carried out in relation to the approval functions. This matter was raised in the other place by my right honourable friend Mr Andy Burnham yesterday when he asked for clarification. In response, Mr Norman Lamb said:

“I am grateful to the shadow Secretary of State for that intervention. We have gone through a very careful process and have followed legal advice on what is necessary to regularise the position. This relates specifically to the approval function, which is defined in clause 1(2). As I have said, the legal advice is that this is the best way to regularise the issue that has been uncovered”.—[Official Report, Commons, 30/10/12; col. 205.]

I recognise that kind of response. It is the sort of response that one tries to get away with. Will the noble Earl give us a little more help on this matter? The clause, on the face of it, seems to go much wider than what would be deemed to be required.

We welcome the review. It will need to look at all the technical issues surrounding mental health so that this House and the public can be absolutely certain that there have been no other technical failures or breaches of regulation. We hope that Dr Harris will be able to undertake this review as swiftly as possible because it is important that it informs the current changes taking place in the National Health Service. We also hope that Dr Harris will be helped by independent professional involvement. Informing the new arrangements which will come in from April next year seems to me a very important part of the work of Dr Harris and his review.

As the noble Baroness, Lady Jolly, said, we are not at all sure about how in practice the new arrangements will relate to the authorisation of doctors under the Mental Health Act. On Monday, the noble Earl said that in future those functions will come back to the Department of Health, but how will that be done in practice? I assume that we will continue to have local panels that will interview the doctors concerned and make recommendations on whether they should be authorised or not. But what happens then? Will the matter then go to the Secretary of State? Will he delegate to the NHS Commissioning Board or local NHS trusts? It is important that we know that there is clarity in the system. I certainly hope that Dr Harris’s review will inform that.

Finally, I echo a point raised by the noble Baroness, Lady Murphy, concerning whether this whole sorry episode is symptomatic of a wider cultural problem with regard to mental health in our National Health Service. Was the issue omitted from the lists of the four SHAs we are discussing because mental health is simply not given the priority that it ought to be given?

We are very glad that the Health and Social Care Bill, following its passage through your Lordships’ House, now includes parity of esteem for mental health services. I do not expect the noble Earl to go into the details of how the department is planning to turn that into a reality. However, in taking forward the work that needs to be done in Dr Harris’s review, it would be helpful to ensure that in future the health service as a whole accepts that legislation relating to people with mental health issues needs to be given as much priority and importance as legislation relating to other parts of the National Health Service.

--- Later in debate ---

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.

[Lord Hunt of Kings Heath]

I hope that the noble Earl will forgive my intervention because this is an important point. As the noble Lord, Lord Pannick, said, we are not having a Committee stage, and this is the only time when we can raise this matter.

The problem relates to the approval function. The way that I read it, as the noble Baroness, Lady Murphy, put it so eloquently, is that there might be a quack who somehow got through the system because there has not been the sign-off by the strategic health authority, which could check that the panel had done the right thing by actually exercising an approval function in agreeing—as part of a panel—to someone losing their liberty and being sectioned under the Mental Health Act. The issue is whether this rather open-ended, retrospective clause would give the okay to that as well. The noble Earl has essentially suggested that the problem is the vagueness about the organisational arrangements that were in place prior to 2002. I understand that but it seems to read in such an open-ended way that it could give almost a green light to poor practice or practice that should not have taken place within the panel so constituted under the Mental Health Act.

[Earl Howe]

I understand the question but I believe that that concern is misplaced. The panels operating in this area apply agreed national criteria for approval. Those criteria are clear and extremely rigorous, and that is why we are confident that doctors must meet the same high standards across the country irrespective of whether this technical irregularity applies. The technical irregularity was simply that the panel did not refer back to the strategic health authority for ratification the recommendations that it had made. It is my understanding that strategic health authorities, as a matter of course, accept the advice of the specialist panels. Therefore, I do not share the worry that, somehow or other, quacks or inappropriate clinicians have been appointed to these very onerous and responsible roles.

I now turn to the other main concern raised by the noble Lord, Lord Pannick, and the reason why the Bill has been drafted to refer to, “any person”. I see why he believes that the Bill appears to bestow a wide-ranging retrospective validation on any person, but in fact, the Bill is very narrowly targeted. It only validates any approvals given in the past and it relates only to the function of giving approvals to clinicians as having particular skills, for example, as having experience in the diagnosis or treatment of mental disorder. Once approved, the clinicians are then allowed to carry out certain functions under the Mental Health Act, as I said earlier. It is not the case that the Bill validates anyone other than persons who purported to approve clinicians. It is that role, and that role alone, that is referred to in the Bill.

The persons referred to in Clause 1(1) are as I have described. The Bill deliberately avoids going into further detail about which persons it applies to because, as I have said, attempting to include a totally comprehensive list of which bodies or people who believed in good faith that they were carrying out the approvals function would have created an unacceptably high risk of omitting agencies or individuals that should have been included. I hope that that is helpful.

I am advised in a further answer to the noble Lord, Lord Pannick, that if the power had been wrongly exercised by a panel and an inappropriate clinician had been authorised, that could still be challenged. That is to say: the challenge would be on the basis that the power was wrongly exercised but it would not be a challenge to the power to exercise the approval. I hope that that is helpful further clarification.

On the concerns raised by the noble Baroness, Lady Murphy, she asked how on earth strategic health authorities could have believed that they had this power to delegate. I share noble Lords’ dismay that we could have arrived at this situation but, having been advised by my officials, I am now more understanding of how this could have arisen. Strategic health authorities are able to delegate this function to certain bodies and in certain circumstances. However, they are not able to delegate it in the way that has come to light here. That is why we are legislating.

The options open to strategic health authorities for delegating their functions in relation to all issues are set out in regulations issued in 2002. In relation to the approval of clinicians under the Mental Health Act—which may include clinicians such as psychologists—there were also directions issued in 2008. Such approvals may be delegated to PCTs and therefore there is scope for legitimate confusion as to the exact way in which strategic health authorities had the power to delegate in this area.

I do not think there is any evidence for the fear expressed by the noble Lords, Lord Hunt and Lord Pannick, and the noble Baroness, Lady Murphy, that mental health was somehow not being given the priority it should be in those four strategic health authorities. What happened was that rather than carry out the approval process in-house, the four strategic health authorities decided to deliver the function through a contract with a mental health trust, believing that the focus brought about through a specific contract and the expertise and connections of a mental health trust would deliver a more rigorous and effective approvals process. However, the effect of these arrangements was that the approval functions were to be carried out by the trust, and the regulations and directions specifically set out, as I have said, with which bodies the SHAs may make arrangements to exercise the functions. They cannot completely delegate their responsibility in the way that they did, but it can be exercised on their behalf by a committee, a sub-committee or an officer of the authority. In essence, the panels in the trusts should have been regarded as advisory to the SHA, not having the approval functions themselves.

The noble Baroness, Lady Murphy, asked why this was not picked up sooner. The incorrect delegation was within the process between the strategic health authority and the mental health trust. To all appearances, the process of approving doctors and the quality of the doctors in these four SHAs was the same as in the rest of the country. However, this is a matter with which Dr Harris will no doubt wish to concern himself.

The noble Lord, Lord Hunt, asked me whether we could more precisely define the extent of the problem in terms of the number of patients affected. As of today, my advice is that the north and midlands SHA clusters have reported that they have currently identified 4,117 affected patients—1,265 in the north SHA cluster and 2,852 in the midlands.

I turn now to the questions posed by my noble friend Lady Jolly. She asked me whether the intention of Clause 1 is to give power not only retrospectively but also with effect from today. I hope I have made it clear that that is not the case. It takes effect from today retrospectively as soon as it receives Royal Assent, but it has no effect in relation to future approvals because all people involved in this process have now been properly approved. She asked me to confirm that the people who think they are approved actually are and do not need to undergo any validation or further approvals. The answer to that is yes, if she is referring to approved clinicians or Section 12-approved doctors, which I believe she is.

She asked about the lessons to be learnt from 1 April next year once strategic health authorities cease to exist and how the preparations for the transfer of responsibilities are being progressed. From next April, the Department of Health will be responsible for this specific approval process for approved clinicians. The Secretary of State said yesterday that while this will be a departmental process, we do not want the process to be remote from local areas. He also pointed out that we intend to have a structure that draws on local and regional expertise to help us make the right decisions on the suitability of doctors for the role, and we hope that Dr Harris will advise the department on this when he conducts his review.

The noble Baroness asked where the definitive list of SHA roles and responsibilities is and who is its guardian. The guardian is the Department of Health, while the actual list of strategic health authority roles is set out in the 2002 regulations, the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, and the precise details on approved clinicians are set out in the Mental Health Act 1983 Approved Clinician (General) Directions 2008. That usefully lists the 28 competencies required of an approved clinician. She asked whether we can be confident that there are no other areas where action has not been taken by some or all of the SHAs. We know of no other areas or functions affected, but again Dr Harris’s review will look at the issues of governance and assurance of delegating responsibilities.

I thank the noble Baroness for making a valid point as regards the transition, but as I have alluded, the Harris review will look at issues of the governance and assurance of delegating responsibilities. Moreover, the review will report by the end of the year, so that will be before the completion of the transition process that my noble friend has so rightly brought to the attention of the House. The one remaining question my noble friend asked me concerned communicating with patients and the timescale of that. I shall repeat what I said before: we think that we need to take time to get things absolutely right, which I know she will understand. However, we hope to be able to issue advice within the next few days. I would reiterate that both the advice and the approach to delivering it will be agreed by both clinical experts and representatives of patients and families. I thought that I had covered every point, although I now see that the noble Lord, Lord Hunt, asked me a question about approvals post April 2013. The one thing I should have added was that we do not intend to delegate the function to the NHS Commissioning Board.

I hope that I have now answered satisfactorily the questions that were raised and that I have provided additional reassurances where necessary. Again, I thank noble Lords and others outside the House for their understanding and for the very significant contribution they have made to the debate.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.

Winterbourne View

Lord Hunt of Kings Heath Excerpts

Tuesday 30th October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, for repeating as a Statement the Answer to the Private Notice Question in the other place.

This has been an horrific case, and recent convictions have revealed criminal and inhuman acts which have caused such terrible abuse to vulnerable people who deserved very much better than that. The “Panorama” programme this week has continued to highlight inappropriate and poor-quality care. It is shocking that the first review, mentioned by the noble Earl, revealed that 19 former residents of Winterbourne View were still subject to safeguarding alerts, and at the follow-up review six former residents were still subject to those alerts. Not all those alerts mean that someone has been harmed. None the less, the “Panorama” programme said that there was one instance of assault, and another case has resulted in a criminal investigation. I should like to ask the noble Earl whether the families of all patients with a safeguarding alert have been given full details. What specific action has been taken as a result of those alerts? Can the Minister guarantee to the House that all patients are no longer at risk?

I should also like to ask him about the responsibility of the local commissioners. I believe that a considerable number of commissioners are responsible for the 51 former Winterbourne View residents. Can he say whether the commissioners now have a proper plan in place to ensure that the former residents receive good-quality care? Has the Care Quality Commission recently inspected all the providers that the former Winterbourne View patients were moved to? The “Panorama” programme raised particular concerns about Postern House, which the CQC inspected in January this year and said it met all the essential standards of quality and safety, and that suitable arrangements were in place to ensure that people were safeguarded against the risk of abuse. Yet the programme revealed a number of problems at Postern House over several years, including over a former Winterbourne View patient in June this year. Is the noble Earl, Lord Howe, confident that all the patients currently in Postern House are protected from the risk of abuse?

Of course, the noble Earl is right to say that responsibility lies ultimately with providers, commissioners and the regulators, but it is Ministers who set policy and have responsibility for ensuring that it is implemented. The noble Earl will know that organisations such as Mencap have been concerned that the Government are not moving quickly or strongly enough to end the practice of sending patients with learning disabilities to long-stay institutions, far away from their families and friends. Will the review he mentioned that will be published by the end of November contain a cohesive strategy for people with learning disabilities? Will this practice of placing people with learning disabilities in institutions a long way from families and friends be discontinued? Is the noble Earl satisfied that commissioners understand their responsibilities and that only, as he said, in limited cases should in-patient services be used?

The role of the regulator, the Care Quality Commission, is of course very important. I very much welcome the appointment of David Behan as the new chief executive but I remain concerned that the huge workload being placed on the CQC means that it is not able to devote itself to areas where we need strong regulation. Is the noble Earl confident that the CQC is now able to take on the responsibilities that have been placed upon it, particularly with regard to focusing on the institutions and organisations where the most vulnerable people are placed?

Finally, I agree with and echo the Minister’s point about the ultimate responsibility of providers. However, is he satisfied that the current arrangements ensure that those providers are regulated effectively—that commissioners know what they are commissioning and are able to monitor performance? Does he recognise that there are real concerns about whether the staff in such institutions are given enough support and training? Given that many of the workers in these homes are unregulated care assistants, does he not think that the time has come to reconsider the regulation of health and social care assistants?

Mental Health Act

Lord Hunt of Kings Heath Excerpts

Monday 29th October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl for repeating the Statement and for giving me earlier briefing today. Detaining people under the Mental Health Act raises the most serious issues of fundamental rights and patient and public safety. Any reported failure will therefore always be a matter of the highest concern. I am sure I speak for the whole House in saying that I have been reassured by the Minister’s comments, in particular on three crucial points: first, that no patient has been wrongly detained or received care that was not clinically appropriate; secondly, that no doctor was unqualified to make decisions; and thirdly, that urgent action is being taken to correct the situation and bring the clarity that is so clearly essential.

I would like to put a number of questions to the noble Earl. Can he say a little more about the events that brought this to light last week? Was it discovered in one SHA, and by what process did the department establish that it extended to three more? Can the noble Earl tell me whether extensive checks have been undertaken in all 10 SHA areas? Is his department confident that no more patients and families are affected than the 4,000 to 5,000 mentioned in the Statement? Has he any plans for direct communications with the patients and families affected? Is it the case that these patients are living not just in the four regions mentioned but in other parts of the country? Will he comment on how many are in high-security hospitals or could potentially pose a risk to the public?

The noble Earl informed the House that, despite the regulations not being followed to the letter in four of the SHAs, the advice from First Treasury Counsel is that the detentions carried out by those panels, even where the relevant doctors were not signed off by the strategic health authority, were none the less lawful. I do not know whether the noble Earl will be able to clarify that or give some more detail of First Treasury Counsel’s advice. The noble Earl confirmed that the Government will be bringing forward emergency legislation to ensure, for the avoidance of any doubt, that the actions of those doctors have legal validity.

The compulsory detention of patients under the Mental Health Act for their own good or for the public good should always be a matter of great public and parliamentary interest and scrutiny. This is doubly so when legislation of an emergency and retrospective nature is contemplated in this area. Emergency legislation should always be used as sparingly as possible, and your Lordships’ House is rightfully nervous of retrospective law. The Official Opposition understand and support the noble Earl’s wish to remove any doubt about the legal status of the patients concerned, but that has to be set against the general undesirability of asking Parliament to legislate hurriedly. Over the next day, will the noble Earl ensure that your Lordships have access to the fullest possible information, including a summary of the legal advice he received? There will also be concerns about the precedent, particularly in the area of people’s rights, and I hope that the noble Earl can reassure me on that point.

The House and the public will, at the end of the day, want to know that this emergency legislation is being used in exceptional circumstances as a last resort, not as a convenient means of correcting administrative failures. In his Statement, the noble Earl mentioned that according to the advice that he had received from his officials none of the alternatives to legislation had proven satisfactory. Will he give a little more detail about what the possible alternatives were? It would be helpful to the House to know that. If he is not able to do that comprehensively tonight, when it comes to Second Reading of the legislation, which I presume we will be debating on Wednesday—I do not know whether that has been agreed yet—it would be helpful to know what the alternatives might have been and why his officials have concluded that they are not sensible ways forward.

Finally, I turn to the investigation. The Opposition support the review under Dr Harris to get to the facts and ensure that lessons are properly learnt. The noble Earl said that he thought the review would be completed by the end of the year. Will the review be made public? While one would not wish to prejudge it, is the noble Earl in a position to say whether it is proceeding on the basis that what has happened is a failure of policy implementation rather than any defect in legislation? This is important because practitioners working in this important field would not want any unnecessary question marks hanging over the mental health legislation in general.

Will the noble Earl clarify what is going to happen post April 2013? This is currently the responsibility of strategic health authorities, which are due to be abolished at the end of March next year. Will the Secretary of State take back this responsibility from April 2013 or will it be delegated to another authority? If it is, to which authority and how it will be ensured that the proper delegations will be carried out in practice? As well as establishing that and the historical facts, will the review consider whether the new arrangements are likely to be well understood post April 2013?

In conclusion, I commend the Minister for the approach that he and his colleagues have taken to this difficult issue. Clearly, the request of this House and the other place is exceptional, but I fully understand that failure to act would potentially cause unnecessary distress and uncertainty to many thousands of vulnerable patients and their families and risk to public safety. While I look forward to a rigorous examination of the emergency legislation, the noble Earl has our support in removing any uncertainty.

NHS: Children’s Congenital Heart Services

Lord Hunt of Kings Heath Excerpts

Thursday 25th October 2012 Lords Chamber

[Earl Howe]

My Lords, I hope that my initial Answer will have made it clear that we expect the Independent Reconfiguration Panel to look at the issue in the round, and that includes the consequences of the JCPCT’s decision, were that to be carried through. I hope that that is sufficiently reassuring. However, what the panel cannot do, in law, is review the decision of the Secretary of State. It can, however, take all the circumstances into account, and I believe that it should do so.

[Lord Hunt of Kings Heath]

My Lords, I remind the House of my health interests in the register. I would like to press the Minister on that point. In the other place on 22 October, the Minister there made it clear that the decision to transfer the ECMO to Birmingham was made as a consequence of the decision of the Joint Committee of Primary Care Trusts. Given that the Independent Reconfiguration Panel is now reviewing the decision of the Joint Committee, are the Government not being unnecessarily legalistic on this point? It would be quite open to the Secretary of State to ask the reconfiguration panel for its advice on the question of the ECMO position. Why on earth does he not do that?

[Earl Howe]

My Lords, I can only repeat what I said in my initial Answer to the right reverend Prelate: my right honourable friend has asked the IRP to review the decision around children’s cardiac services and its consideration of the impact of that, which may include consequences for the ECMO service at Glenfield. I hope that that Answer puts this question into context. While the IRP cannot review the Secretary of State’s actual decision about the ECMO, which, as the noble Lord rightly said, followed on from the original decision of the JCPCT, nevertheless there are interdependencies between the two services that we expect to be taken into account by the panel.

Care Services: Elderly People

Lord Hunt of Kings Heath Excerpts

Wednesday 17th October 2012 Lords Chamber

Asked By

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what action they propose to take in the light of reports that vulnerable elderly people are obliged to rely on care workers with criminal records.

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I refer noble Lords to my health interests.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, providers of services are responsible for the safety and quality of the care they provide, and the well-being of the people they care for. Providers should undertake a risk assessment as to whether a criminal record check is needed or not, and what action to take as the result of such a check. Providers should keep a record of this process as an audit trail of their decision-making.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, and of course we all welcome the rehabilitation of ex-offenders. However, I refer the noble Earl to reports that recent CQC inspections show that more than 220 care agencies working for older people in England have failed to show that they were employing properly qualified and vetted staff. What action will be taken about this? Further, does this not show that the time is now ripe for the statutory regulation of care-home workers?

[Earl Howe]

My Lords, it is the responsibility of the employing organisation to carry out appropriate checks on the people they intend to employ. They should take decisions in the context of their responsibility for the well-being of the people who use the service. That position has not changed, and indeed it must be at the core of the safeguarding agenda. Organisations need to risk-assess the suitability of their staff for the role, considering all the information they have on the person, including criminal record checks. If someone has a criminal conviction, the employer should consider how old and relevant that conviction is in the context of the activities that the person would be undertaking and the characteristics of the people they would be looking after. That situation cannot, I think, change substantively.