NHS: Liverpool Care Pathway
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Earl Howe
My Lords, I recognise that some people who have been on the Liverpool care pathway have received poor care. The pathway is not of itself a guarantor of best-quality care. It has been consistently made clear in the guidance for the implementation of the Liverpool care pathway that it is in no way a replacement for clinical judgment and should not be treated as a simple tick-box exercise. Rather, it should be seen as a useful framework to guide the delivery of care in a way that complements the skill and expertise of the practitioner using it.
Lord Hunt of Kings Heath
My Lords, I refer the House to my health interests in the register. Does the noble Earl agree that the noble Baroness, Lady Knight, has done sterling work in bringing to the attention of Parliament issues to do with the appropriate feeding and nutrition of patients in hospitals, but that on this issue she is wrong? Will he confirm that the national care of the dying audit shows that in fact the vast majority of patients on the care pathway in the last 24 hours of their life were reported to be comfortable and receiving good clinical care, and that his department will continue to recommend the care pathway as good practice?
Earl Howe
My Lords, we will continue to do so. The Liverpool care pathway has sometimes been accused of being a way of withholding treatment, including hydration and nutrition. That is not the case. It is used to prevent dying patients from having the distress of receiving treatment or tests that are not beneficial and that may in fact cause harm rather than good. The noble Lord was right that the recent national care of the dying audit of hospitals, run by Marie Curie in collaboration with the Royal College of Physicians, notes that in 94% of documented cases discussions explaining the use of the LCP were held with relatives or carers. That audit process gives clinicians an opportunity to feed in their views about how well, or not so well, the pathway is working in practice.
Tobacco: Control
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Lord Hunt of Kings Heath
My Lords, I refer the House to my health interests in the register, in particular as president of the Royal Society for Public Health. I ask the noble Earl to continue his efforts to keep those companies at some distance from him and the Department of Health. Will he confirm that it is the view of the Government, as it was of the previous Government, that the tobacco industry promotes a product that has been described by the WHO as being proven scientifically to be addictive and to cause disease and death, and that we should have very little to do with those companies?
Earl Howe
My Lords, I can only agree with the noble Lord, Lord Hunt, that tobacco is extremely damaging to public health. There is no safe level of smoking, and as a party to the Framework Convention on Tobacco Control, the UK has an obligation to take its undertakings very seriously—which means to develop public health policy free from influence from the vested commercial interests of a very powerful industry. However, that does not mean that we close our ears to what the tobacco industry may have to say: we are very happy to hear from it in writing. That promotes transparency, which I think assists everybody in a freedom of information context.
Health Research Authority (Amendment) Regulations 2012
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Lord Hunt of Kings Heath
That the Grand Committee takes note of the Health Research Authority (Amendment) Regulations 2012 (SI 2012/1108).
Lord Hunt of Kings Heath
My Lords, I should start by declaring interests as the chair of a foundation trust, as a consultant in the health service and as a trainer with Cumberlege Connections Ltd.
As well as moving this Motion, I shall also speak to my second Motion, which also relates to the Health Research Authority.
On the face of it, the regulations and order are unexceptionable and they passed through the Secondary Legislation Scrutiny Committee without comment. They provide for the board to be reconstituted with independent non-executives and an independent chair.
The responsibility that falls to the members of the authority is indeed weighty. The noble Earl, Lord Howe, has a long-standing record of commitment to health research, which is considerably reassuring to all those with an interest in this area. I have no doubt at all that health research is as important to the economy of this country as it is to the quality of patient experience and outcome. Indeed, embraced with the high quality of life sciences in the UK, it is crucial that we prioritise health research to the fullest extent possible. Certainly my experience in chairing the Pharmaceutical Industry Competitiveness Task Force some years ago convinced me of the essential link between the health of the person, the health of the NHS and the health of the economy, and that is why I think it is so important for the National Health Service to support health research. Our debates during the passage of the Health and Social Care Bill indicated the strength of support for research and for the Secretary of State’s responsibility for it to Parliament.
The HRA has been set up to protect and promote the interests of patients and the public in health research. The aim is to lead to the creation of a unified approval process and to promote consistent and proportionate standards of compliance and inspection. The HRA has a number of functions, including being the appointing authority for research ethics committees in England, and it provides the National Research Ethics Service. Also, by agreement with the devolved Administrations, it supports a UK-wide system for ethical review in the UK. It has an important ongoing programme of work and it also provides the integrated research application system through which applications for regulatory and governance approvals of health research are made in the UK. It also agrees plans to provide a platform for the unified approval process from the IRAS, as it is known.
I turn to the details of the regulations and order. I ask the noble Earl whether it is intended that the non-executives should be a majority on the board. I should also like to ask him about the Government’s intention regarding the publication of draft clauses to establish the HRA as a non-departmental public body. I do not know whether he can give any indication at all about the timing of and commitment to the eventual legislation that has been promised. Will he also comment on the Government’s approach to, and policies for, enhancing health research in the UK?
How are we to ensure that we make the most of the excellence of our life sciences? Can the Minister give some reassurance about the priority to be given to research by the NHS Commissioning Board? Does he believe that academic medicine is given sufficient support by the National Health Service? Is he confident that the HRA has the capacity to streamline research application processes? That point has been made to me by a number of organisations that have been interested in the order and in our debate.
The noble Earl will be aware of the continuous debate over probably the past decade about the bureaucracy involved in the application processes and a feeling that the UK has lost its competitive edge because of that. I know that the previous Government and this one have continued to do work in this area and I wonder whether he can report any further progress. I should like him to comment on whether he believes that the UK will be able to maintain a competitive edge in research in the years to come and whether he believes that the intention is to maximise large-scale patient recruitment.
Alongside that is the importance of site selection and the question of whether it is going to be easier for applicants in the future to conduct multi-centre research. My understanding is that one of the problems is that applications for multi-centre research have to go to the individual institutions concerned, which can sometimes hold up approval. My understanding is that there is going to be a concerted attempt to speed up that process. Again, if the noble Earl could give some comfort there, it would be much appreciated.
It is also important that the National Health Service recognises the importance of its role in supporting, developing and encouraging research. That is partly to do with the appointment of academic clinicians within the National Health Service, partly about a willingness to accept that it is important for clinicians to take part in research and also about the importance of ensuring that individual bodies in the NHS have good processes for offering opportunities for clinical trials. Any positive messages that the noble Earl could give on that would be appreciated.
On the private sector, if the Government are to develop a market in the NHS, what obligation will there be on private companies to maintain and support research if they win contracts to provide services to patients? I attended the launch of the Clinical Practice Research Datalink, at which the noble Earl spoke and which I thought was very impressive. How does he think this will link to the work of the Health Research Authority? I was very taken with the potential to use such a wide database of anonymised information, which the NHS can provide. The issue that arose from that debate and that launch is whether we are really able to make the most of the opportunity that is being given.
My final point brings me to value-based pricing. My understanding is that the Government still intend to introduce value-based pricing. I express again to the noble Earl my reservations about the impact of that on flexibility within the pharmaceutical industry and the pricing structure, which might then have an impact on their willingness to invest in R&D in this country. The Department of Health, I understand, is still a sponsor of the pharmaceutical industry. It is, of course, always torn; there is always a tension between the cost of drugs to the NHS and sponsorship of the industry. I hope that we are not going to see short-term decisions taken in relation to the cost of drugs at the expense of long-term investment in R&D in this country. Value-based pricing is a quite complex and technical subject, but it is important that there is transparency about the decisions that lie behind a move to value-based pricing and its likely impact on the UK as a whole, and not just the cost of drugs to the NHS. I beg to move.
Lord Turnberg
My Lords, the development of the Health Research Authority has been extremely welcome and the research community is very grateful that we have it; it has a number of very important roles in relation to the research ethics committees.
My questions relate to the extension of those functions as it plays out, because, of course, the Academy of Medical Sciences report expected this to apply to rather more than just the ethics committee; they relate to what is planned for it as it moves along. In particular, when is it likely that the ethical approval for the use of patient data—not anonymised data but unanonymised data, if there is such a word—which are currently with the Secretary of State, will come under the jurisdiction of the new authority? My noble friend Lord Hunt referred to the major hurdle that is put in the way of research and which takes time: the problem of getting approval from several health authorities or trusts. At that level, it is unclear whether the Health Research Authority will have any power over that process. I would like to hear more about what is intended for the future, now that we have it set up. I know that there are intentions and I would like to hear more about them.
Earl Howe
The noble Baroness is right to draw attention to that omission in my coverage of these instruments. Of course, she is right that there are many different kinds of research that will involve the HRA in one form or another. I have emphasised only the medical and pharmaceutical elements of the HRA’s remit, because these matters were high up on the agenda of the Academy of Medical Sciences when it produced its report in the context of UK plc.
However, the noble Baroness should bear in mind my remarks about joining up health research and social care research. The HRA will co-operate with various bodies for the purposes of creating a unified approval process, not just for health research but to promote a consistent national system for research governance generally. Where this includes a social care or nursing element, the HRA will work closely with the relevant bodies to promote processes and standards that are consistent with the NHS and social care elements.
Lord Hunt of Kings Heath
My Lords, I thank the Minister for his positive response. I also thank the noble Baroness, Lady Emerton, the noble Lord, Lord Patel, and my noble friend Lord Turnberg for taking part in this interesting debate. I believe that the appointment and development of the HRA is a positive move forward, and of course we support the appointment of a majority of non-execs. The Minister mentioned the appointment of a chair. I do not know whether that is yet in the public domain or whether he has the name to hand, but it would be helpful to know.
I welcome the publication of draft clauses on the establishment of the HRA as a non-departmental public body in due course.
Earl Howe
My Lords, I am happy to inform the Committee, for noble Lords who were unaware of it, that Professor Jonathan Montgomery was appointed chair of the HRA on 11 June, that interviews for non-exec directors will be held on Friday, that interviews for the substantive chief executive were held on 11 June, and that the other executive members will be appointed by the rest of the new board as soon as possible.
Lord Hunt of Kings Heath
My Lords, that is very helpful. On the question of the reduction of the regulatory burden and the Minister’s reference to improving the cost-effectiveness of the whole process of approvals, that of course is welcome so long as patient consent and confidentiality are maintained and research is ethical. There is common agreement on that. I welcome his commitment to streamlining the approach in general for health research. I also welcome the decision by the devolved Administrations to encompass some of the work within the HRA, particularly the work of research ethics committees, which I assume will mean that cross-UK multi-centre trials will be subject to the streamlined process that the Minister has referred to.
On the role of the National Health Service in encouraging research, I take the noble Lord’s point about the NHS Commissioning Board’s statement of intent. I have no doubt that at that level Sir David and his colleagues will wish to support research. I am more concerned about the individual organisations in the NHS. I do not think that all NHS bodies quite realise the importance of research not only to patients but to UK plc. Anything that can be done to encourage the NHS to recognise that importance is vital. Sometimes that might mean the practicalities of recognising that their clinicians need time to take part in research activities. At a time when the NHS is having to find large efficiency savings, that may not always be welcome to chief execs of NHS organisations or to clinical commissioning groups. None the less, it would be disastrous if practising clinicians in particular were dissuaded or prevented from taking part in research activities. Again, messages on that matter from Ministers and the NHS Commissioning Board are vital.
Academic health science networks, particularly those outside London, are an important development. They will, I am sure, enhance research efforts. Again, the more support that can be given to them, the better. However, it is important that those networks focus on research—there has been some indication that almost everything about their intent is being put into the bath. One needs to come back to the fact that they are about enhancing our research capacity in the interests of the quality of patient services.
I agree with the Minister that the CPRD is a major step forward. We are uniquely attractive, but can we translate that into research money coming to the UK for what undoubtedly can be offered?
The Minister knows that I have always been sceptical about value-based pricing. He said that there was much to do. I urge him and his department to take their time on this matter. The PPRS allows industry flexibility to set the price within a profits cap. Although the UK is not a great purchaser of branded pharmaceuticals globally, the fact that it is able to set a price has an influence on price throughout Europe. My concern is that taking that away might have an impact on industry’s willingness to invest in R&D in this country, given that we so are slow to take up innovative new medicines. We developed NICE to encourage the health service to do that, and it is still a struggle because unfortunately the default position of the NHS and of clinicians is to be slow to invest in and agree to innovation.
If value-based pricing can encourage the NHS towards innovation in the way that the Minister suggests, that is of course to be welcomed. However, looking more generally at the impact of research, we do not seem yet to have a philosophy that goes hard on innovation where it can definitely improve the quality and outcome of patient care. That is to do partly with the conservative nature of clinicians in the UK and partly, probably, with the mindset of finance directors in the NHS. I know that the noble Earl is the Minister for Innovation and that he is wrestling with those issues. It is very important when we look at both research and value-based pricing that we encourage the NHS as both commissioner and provider to do everything that it can to take advantage of the huge amount of innovation that takes place in this country on the back of a fantastic resource in life sciences, in our universities and in the medical devices industry. Overall, we have had a very good debate and I am glad to support these statutory instruments.
NHS: Public Information and Advice
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Lord Hunt of Kings Heath
My Lords, first, I declare my health interests which are set out in the register. Perhaps I may take the noble Earl back to the decision of his department to reduce the number of national campaigns in relation to public health. A survey by the Association of Directors of Public Health published at the weekend shows that, in the transfer to local authorities, there has been a loss both of capacity and of funding. Given that, how can he justify the emphasis on local campaigns at the expense of national focus programmes?
Earl Howe
My Lords, there will be national focus programmes led primarily by Public Health England, but we see those as complementary to the work going on at the local level. By no means are we abandoning national campaigns. Indeed, we have seen considerable successes. In 2010-11 we invested almost £11 million to support 59 cancer awareness campaigns around the country. In 2011-12 we provided £8.5 million to support a range of cancer awareness campaigns, and this year we hope to spend even more on cancer awareness than we have in previous years.
National Health Service Trust Development Authority (Establishment and Constitution) Order 2012
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Lord Hunt of Kings Heath
That the Grand Committee takes note of the National Health Service Trust Development Authority (Establishment and Constitution) Order 2012 (SI 2012/901).
Lord Hunt of Kings Heath
My Lords, I declare an interest as chairman of an NHS foundation trust and as a consultant trainer on NHS and health issues.
At first sight, these statutory instruments, Nos. 901 and 922, which set up the NHS Trust Development Authority, may appear to be anodyne and uncontroversial. They may seem, for example, as certainly the authors of the impact assessment document believe, to be a necessary tidying-up operation to remedy some of the gaps in the NHS architecture as a result of the Health and Social Care Act. The language of the statutory instruments and, in particular, the impact assessments reminds us of the changed and fragmented landscape that is being created, with new bureaucracy and largely unaccountable quangos in practice.
The Government state in the impact assessment that some of these organisations will be abolished and that their functions will therefore need to be located in another organisation to ensure that the process of reaching an all-provider landscape is achieved that is in line with the Government’s vision for an autonomous NHS free from day-to-day political control. I have to say that I am not sure that we have quite seen that lack of political control yet.
The NHS Trust Development Authority has an important role to play in the NHS as it is constituted under the 2012 Act. It is also part of a series of statutory instruments that we can expect to see in the next few months. I thank the noble Earl, Lord Howe, for his helpful letter of last week that gave an overview of the kind of statutory instruments we can expect. I do not know whether we might, at some stage, get a fuller programme of statutory instruments but it would be helpful if he indicated whether that will appear in due course, whereby we can properly prepare for what will be a marathon parliamentary Session as regards debating those statutory instruments.
The interest in the NHS Trust Development Authority is due to the process under which NHS trusts are to become NHS foundation trusts—a matter of some importance. I was at the Department of Health when the concept of foundation trusts was created, and I now chair one. I am very enthusiastic for them and their governance structure. The fact that chairmen and non-executive directors are appointed by the governors, who in turn are elected by the members, is a very important asset that ensures that these bodies are rooted in the community that they are there to serve. I am very clear that it is right to encourage NHS trusts to become foundation trusts.
The concern that I have, and the key point that I want to put to the Minister, is whether the criteria against which FT authorisation is judged will be maintained in future. I ask that in light of the statistics that appear in the assessment, which refers to the report of the National Audit Office of 1 October 2011, that there were then 139 foundation trusts and that the task of progressing the remaining 108 NHS trusts to foundation trust status was considered by the NAO in October last year as,
“challenging given the ‘tripartite formal agreements’ for 20 NHS trusts show they are not financially or clinically viable in their current form”.
My understanding is that about 50% of NHS trusts’ foundation trust status applications are rejected by Monitor due to insufficiently robust governance. Yet the Government have given very clear signals that they wish to speed up the translation of NHS trusts to become foundation trusts, either by themselves becoming foundation trusts or merging with an existing foundation trust or moving forward in another organisational form.
My understanding is that the Government had a deadline for this of 2014. We discussed this during the passage of the Bill, and I would be grateful if the Minister clarified what the Government’s intent is for a timetable. My concern is that, whether or not 2014 is no longer an absolute deadline, the Government seem very keen for existing NHS trusts to move on into a different status. My concern in the light of past experience is whether this is too much pressure or too quick a timetable, and whether there is a risk of lowering the barrier for authorisation, forcing unwanted mergers or inappropriately involving the private sector. I would be interested in the Minister’s views on this.
I would also be interested in the views of Monitor, the regulator, which has been scrupulous in ensuring a rigorous approach towards authorisation. Any person who has gone through the authorisation process will testify to its rigour. Is Monitor itself happy with the Government’s intentions on the timetable for NHS trusts to become foundation trusts? I remind the Minister, and maybe he could confirm, that at the end of April 16 NHS trusts were in escalation process after missing the milestones in their applications to become foundation trusts. Although I believe that our debate on the Bill may have overtaken what is contained in the impact assessment, I refer to paragraph 19 of that assessment, which says:
“There is a strong expectation that the majority of NHS trusts will achieve FT status by April 2014”.
Earl Howe
I apologise. The rules surrounding public appointments will of course still apply, particularly those relating to open competition. The continued existence of those rules and their implementation should give the public confidence that this system will be open and unbiased.
Lord Hunt of Kings Heath
My Lords, like other noble Lords, I thank the noble Earl, Lord Howe, for his response. I prayed against this statutory instrument in a genuine spirit of seeking information. I agree with the Minister about the importance of foundation trust status. I have no problem at all with the Government wishing to see NHS trusts becoming foundation trusts as soon as possible; that is absolutely right. Equally, I have no problem about the establishment of the new authority, and I commend the Government on the appointment of David Flory as the chief executive and Sir Peter Carr as chairman. Sir Peter has been a long-standing chairman in various guises in the health service going back more than 20 years. I suspect that he may well be chairman of this authority for a little longer than the department thinks at this moment.
There is genuine puzzlement about how these trusts—more than 100 of them—are to become foundation trusts by 2014. The fact is that many of them are facing great problems, mainly financial. They may have a PFI scheme that is expensive and which the local system is unable to afford without consequences on the rest of the system or, as my noble friend Lord Warner said, it may be tied up with very difficult reconfiguration issues.
Greater London Authority Act 1999 (Amendment) Order 2012
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Lord Hunt of Kings Heath
My Lords, I thank the noble Earl, Lord Howe, for explaining the intention of the order to the Committee. I declare an interest as chairman of an NHS foundation trust and as a consultant and trainer in NHS and health issues. As the noble Earl explained, this will enable the GLA to spend money on improving or protecting public health in Greater London. It has a specific relevance to the London Health Improvement Board, and is consistent with the enhanced role to be given to local authorities in the rest of England and in the London boroughs. We believe that local authorities can make a major contribution to public health and support the general thrust of the order.
The case the noble Earl put forward for a pan-London approach to public health is persuasive. My understanding is that—as he said—it will tackle the major health problems in the capital, including cancer, childhood obesity and alcohol abuse. I particularly note the comments of Dr Simon Tanner, NHS London regional director of public health, who explained that:
“Health issues in London are both complicated and specific to the city. The capital’s biggest health problems such as obesity, cancer and alcohol abuse are often interrelated and cannot be tackled in isolation”.
On behalf of the NHS, he said,
“we want to draw on the diverse skills and experience we have to tackle these areas through the London Health Improvement Board”.
This clearly receives support from the NHS, as well as the London boroughs and the GLA.
I listened carefully to the noble Earl’s explanation of the relationship between the London boroughs, the GLA and the improvement board. He was careful to make clear that the London boroughs are the principal public health bodies for London. In essence, the LHIB will depend on the support of the London boroughs to be able to take the necessary action. I entirely understand that, but I will ask the Minister a question. He mentioned the issue of campaigns. He said that it would be much better to co-ordinate a public health campaign across London, and that the board could have an important role to play, which is self-evident. However, I imagine that it would depend on all the London boroughs signing up to a particular programme and committing a budget to it.
What will happen if the board is not able to get all the London boroughs to join a campaign? When statutory legislation is brought to Parliament, will it enable the board to take account of that in some way? Presumably, one would not want one borough to be able to veto an action that all the others had agreed to. I would be grateful if the noble Earl would also indicate when he thinks legislation will be brought forward to put the board on a statutory basis. I do not know whether it will be primary or secondary legislation. It would be helpful if he could explain that, too.
My final question is slightly outwith the issue, but I hope that the noble Earl will not mind me asking it. We are all agreed that local authorities, whether inside or outside London, should have a stronger role in public health. The appointment of a director of public health by first-tier local authorities, and the establishment of public health departments in those local authorities, is clearly very important. Noble Lords will be aware that there has been concern in the public health community about the extent to which the ring-fencing of budgets will actually hold. If the noble Earl is not able to explain this, perhaps he might write to me in due course.
I am also picking up some concerns that local authorities are being less than sensitive to the debates that we had on the Health and Social Care Bill about the status of the director of public health and the right of direct access to the local authority chief executive. I realise that local government structures have changed since 1974 and that direct access for the DPH could present some problems to local authorities, but it is widely accepted within government that the Chief Medical Officer must have direct access to the Prime Minister and senior Ministers—for obvious reasons in view of the importance of that office. Surely the same applies at local level.
There are some signs that local authorities have not taken that message on board. It would be a great pity if local authorities, almost at the starting gate of assuming greater responsibility, did not recognise the need to ensure that public health has a very strong voice at the top table. Frankly, local authorities are on trial. There is no guarantee that the arrangement will stay for ever if they are not able to accept the responsibility that is placed on them. I realise that this matter goes slightly wider than the order, but any words of comfort would be much appreciated.
Earl Howe
My Lords, I am very grateful to the noble Lord, Lord Hunt, for his support for the order. He asked me a number of questions. First, he asked whether, if the London borough councils cannot unanimously agree on a plan, that would affect their ability to commission services from the GLA or through the board. The board can and will be able to deal with the boroughs individually if necessary. The draft Bill that we are bringing forward will make clear in primary legislation how the board will agree plans on a statutory basis. For example, if a group of boroughs wished to get together, excluding other boroughs, there is no reason why they should not do so and commission the GLA to deliver services solely on their behalf.
As I said, the establishment of the board as an NDPB will require primary legislation. Unfortunately, I cannot tell the noble Lord when that will be brought forward, but the draft legislation will be published soon. We published baseline allocations based on the NHS spend for public health, and our intention is to move gradually to a more needs-based formula over a period of years. To move more suddenly would prove destabilising, as I am sure the noble Lord appreciates. That addresses his point about the ring-fencing of budgets, and whether they will hold. I was not aware of concern about that. Of course, some boroughs wish that they had more money than they do, but it is necessary to start from a logical place, and we believe that the baseline allocations reflect current reality.
I was concerned to hear what the noble Lord said about the status of directors of public health and the extent to which they will or will not have access to their respective chief operating officers within a local authority. I will take that concern away with me, and I am grateful to him for flagging it up. If there is anything I can say to him in writing, I will be very happy to do so.
Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012
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Lord Hunt of Kings Heath
My Lords, I start by declaring an interest as chairman of an NHS foundation trust and as a consultant trainer on NHS and health issues.
I thank the noble Earl, Lord Howe, for his very extensive explanation of the regulations. Although the instrument is mainly technical in respect of the scope and definition of regulated activities, I do not think that it can be divorced from more general issues facing the CQC and its turbulent history over the past few years.
It is clear that the CQC faces some fundamental challenges over leadership, sense of direction and the confidence that both the public and the sector it seeks to regulate have in it. The noble Earl, Lord Howe, mentioned the Public Accounts Committee report of 12 March, which stated that the commission had more responsibilities but less money than its predecessor organisations. It pointed out that, none the less,
“it has consistently failed to spend its budget because of delays in filling staff vacancies. It is overseen by the Department of Health … which underestimated the scale of the task it had set in requiring the Commission to merge three bodies at the same time as taking on an expanded role. The Commission did not act quickly on vital issues such as information from whistleblowers. Neither did it deal with problems effectively, and the Department is only now taking action”.
The PAC concludes:
“We have serious concerns about the Commission’s governance, leadership and culture. A Board member, Commission staff, and representatives of the health and adult social care sectors have all been critical of how the Commission is run”.
I also noted with interest what the noble Earl said about his department’s own performance and capability review. I do not disagree with the summation in the review that:
“CQC’s achievements are considerable and should not be underestimated”.
The review points out that since 2009 it has not only brought together three different organisations and developed a new regulatory model but has brought 21,000 providers into the new regulatory regime and carried out more than 14,000 compliance inspections and reviews. I also understand from the capability review that:
“CQC has now set the essential platform from which tougher regulatory action can be taken when needed, if and where standards fall below acceptable levels”.
However, it points out that, alongside those achievements,
“CQC has faced operational and strategic difficulties, as previously documented. Delays to provider registration, shortcomings in compliance activity and, at times, a negative public profile have seriously challenged public confidence in its role. With hindsight, both the Department and CQC underestimated the scale of the task of establishing a new regulator ... Even so, CQC could have done more to manage operational risks”.
Looking forward, the review states that there are important issues that need to be addressed. First, the CQC should become more strategic; and, secondly—this is very telling in view of my later comments—accountabilities are unclear. The review says that there is a blurring of the boundary between the board and the executive team, with the board only recently moving to take on a stronger role to constructively challenge the executive team. Finally, the review says that the underlying regulatory model is new and that so far there is limited practical evidence of its effectiveness.
I have now had the opportunity to read the Treasury minute responding to the PAC report, in which the Government agreed with the PAC’s recommendation on the need for an action plan to secure the changes that are required. I also note from the Treasury minute that, on governance, the Government promise that a new board structure will be in place by October 2012. When the noble Earl responds, perhaps he will say a little more about this governance structure. Can I take it that there will be a process of reappointing non-executives? It would be helpful to know whether that is intended.
On the role of the commission, the Treasury minute refers to the comment made by the PAC, which stated that there was at least uncertainty about the core role of the commission. My understanding from the Treasury minute is that the Government accept the challenge of setting this out with measurements of quality and impact to assess the CQC’s effectiveness.
Having seen the reports from the PAC and the Health Select Committee, and the department’s own review, we now have an understanding of some of the actions that will be taken. Does the noble Earl consider that they will be sufficient to ensure confidence among the public? I invite the noble Earl to reflect on that because, however worthy many of the CQC’s actions were, one should not underestimate the knock to public confidence that has occurred in these turbulent years.
Perhaps I can tempt the noble Earl to gaze into the future and say a little about how the CQC might fit into the new NHS architecture. In our debates on the Health and Social Care Act we considered the relationship between CQC, the NHS Commissioning Board and Monitor. There is some built-in tension there, and I am interested to know how the noble Earl thinks the whole thing will fit together.
We also await the second Francis report, which I gather is now due in the autumn. Inevitably, this will have something to say about the CQC and, I suspect, the regulatory architecture. Again, I cannot anticipate what the inquiry will say, but will the noble Earl say a little about what process the Government intend to adopt following receipt of the report? Clearly it could have an immediate impact on some of the changes that the Government are making as a result of legislation.
On the burden on the CQC, it was a mammoth task bringing three organisations together and, essentially, increasing the responsibility but reducing the resources. One should not underestimate the task that was placed on the CQC, which was expected to take on new responsibilities. The noble Earl mentioned the responsibility of embracing the registration of providers of NHS primary medical services. This has now been delayed until April 2013 but, none the less, is a major additional responsibility. The Public Accounts Committee commented on this and said that in the past the commission’s inspection work suffered when it had to register large groups of providers. The committee said that it shifted its focus to registration and carried out far fewer inspections than planned. What guarantees can the noble Earl, Lord Howe, give me that moving to take on primary care providers will not impact on the other essential responsibilities of the CQC?
Lord Hunt of Kings Heath
I am grateful to the noble Earl, Lord Howe. Perhaps I may make just a couple of points. On the consultation on the HFEA, all I should like to say to him is that it might be useful if there were some time for parliamentary discussion in your Lordships’ House around the consultation—not to second-guess the consultation process but, I should have thought, in view of our previous debates, to allow for some discussion among parliamentarians about the consultation document.
Secondly, as regards Kay Sheldon, I fully understand that the noble Earl is not prepared to comment on any individual case. He went on to make the point that the department was concerned to ensure that the board of the CQC was well functioning and effective. One could take that both ways. I understand, in a sense, the ambiguity of the noble Earl’s expressions in relation to that. All I would say to him is that I would ask the department to walk very carefully in this area. I know that he has debated the issue of whistleblowing many times in the past few years, and he has always upheld the rights of whistleblowers. Although it might be argued that a board member is a little different from a member of staff, there will sometimes be circumstances when board members themselves can become frustrated that they have raised concerns that are not then dealt with. Taking action against a board member who has actually given evidence to a public inquiry will send unfortunate signals to the NHS about how strong collectively we are in supporting whistleblowers. I do not expect the noble Earl to respond to that but hope that it will at least encourage the department to think very carefully about their actions in this case.
Earl Howe
My Lords, on the noble Lord’s first point, I would be very willing to take part in a debate on the issue involved in our proposals to transfer the functions of the HFEA and the HTA to the CQC. I can only say that I will ensure that the noble Lord’s suggestion is fed into the usual channels.
On the second issue that he raised, I appreciate his understanding that it would not be appropriate for me to comment on the position of individual members of the board. I am sorry if my remarks appeared ambiguous; that was certainly not my intention. All I intended to say was that the CQC will be facing significant challenges over the coming months, as we have been discussing, and the department is committed to ensuring that its board has the skills and capabilities it will need to meet those challenges.
NHS: Risk Register
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government when they consider the time will be right to publish the NHS risk register.
Lord Hunt of Kings Heath
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and, in so doing, I declare an interest as chair of an NHS foundation trust and as a consultant and trainer on the NHS and health issues.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the transition risk register will be published when the balance of public interest favours disclosure. We will continue to be open about risk. Last week we published a document containing information on all risk areas in the register, along with a scheme of publication for future review and release of information on risk.
Lord Hunt of Kings Heath
My Lords, I am extremely grateful to the noble Earl for that because he said that it would be published when the balance is in favour of the public interest. Can I take him back to the judgment of the First-tier Tribunal, which concluded that risk registers,
“would have provided the public with a far better understanding of the risks to a national institution”,
on which millions depend? Surely the public interest and parliamentary scrutiny actually depended on that risk register being published, and it should have been published when the Bill was in this House.
Earl Howe
My Lords, we do not agree with that. We have, as I have mentioned, published a document setting out a summary of all the risks in the register and the mitigating actions associated with each category, but we resist publishing the risk register itself at present. It is essential that officials are able to formulate sensitive advice to Ministers, making frank assessments and using direct language, without the fear of causing unnecessary embarrassment for the Government or damage to their area of policy. That is the essence of the reason.
Health Transition Risk Register
Lord Hunt of Kings Heath Excerpts(14 years, 2 months ago)
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Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Earl, Lord Howe, for repeating the Statement on the health transition risk register. I should start by declaring an interest as chair of the Heart of England NHS Foundation Trust and as a consultant trainer with Cumberlege Connections.
As we have heard, the First-tier Tribunal, on appeal from the Government, found against them and ordered the disclosure of the register. The Government have decided not to appeal to the Upper Tribunal but, instead, a ministerial veto has been exercised since, as we have been told, Ministers regard this as a matter of principle, not law. I must say to noble Lords that I very much regret that decision.
The noble Earl, in repeating the Statement, made reference to what was intended when the legislation was brought in, but I have to say that we regard this as a major change of policy from the precedent set by the previous Government. Use of the ministerial veto in the past has been reserved only for issues of national security and Cabinet discussions. Applying the veto to what are essentially day-to-day matters of domestic policy is a step back towards secrecy and closed government. It is also a major change of policy in relation to publication of risk registers. The previous Government, under similar circumstances, released the risk register on the third Heathrow runway after an order from the Information Commissioner. This veto is very much a matter of regret, and I should like to ask the noble Earl a number of questions.
Can he explain to the House how the use of the veto in this circumstance meets the exceptional criteria that government rules require? Can he say whether it is now government policy never to publish risk registers, even if ordered to do so by the courts? In repeating the Statement, the noble Earl claimed that civil servants should be allowed to have frank and free conversations. However, this matter was considered in detail by the tribunal. Does he not think that the tribunal has therefore come to an entirely reasonable conclusion on that matter? Does he accept that the recording, reporting and treatment of risk are not optional activities but core responsibilities for any government department?
I should also be grateful if the noble Earl could clear up a number of confusions over statements made in the past 24 hours. In the blog post for Liberal Democrat Voice yesterday, the Deputy Leader of the other place wrote that it would also be right to publish much of what is contained in the risk register as soon as possible. Can the noble Earl explain exactly what that means? The noble Earl himself was interviewed on yesterday’s Radio 4 “Today” programme and it seems that he was really implying that the case for vetoing the release of the NHS transition risk register was a general and not an exceptional one. He said in the interview:
“It is about allowing civil servants to have frank and free conversations, uninhibited by the thought that those conversations are going to be made public”.
When it was put to him:
“You could apply that to any single freedom of information request of government discussions”,
the noble Earl confirmed:
“The effect of the judgment, if we had not vetoed, would be that Governments and civil servants shouldn’t be allowed to talk about key aspects of policy formulation, including the risks”.
I do not see how that could be said to come within “exceptional” criteria, and I should be grateful if the Minister could clarify the matter for the House.
The noble Earl also said at the end of the interview:
“We have every intention of publishing the risk register in due course, when we think the time is right”.
It is 22 months since the Government’s reform policies were published in the White Paper, 19 months since my right honourable friend Mr John Healey, to whom I pay great tribute for his persistence in this matter, put in his FoI request, and a month since the Health and Social Care Act received Royal Assent, so I ask the noble Earl when the time will be right for the risk register to be published. Although this is a matter of principle and therefore Ministers are not going to appeal again, apparently the veto is of only a temporary nature, and therefore it would be good if the noble Earl could explain to us exactly what was meant by his final comment.
Will the Minister come clean on the real reason the Government will not produce the risk register? The fact is that they had a huge amount of warning from people in the NHS, echoed by officials in private, about the impact of their very misguided changes to the NHS, and the reason for the register not being published is very simple: it is political embarrassment. Will the noble Earl also acknowledge that the Government have put the health service through an extraordinary amount of turmoil? Thousands of people have lost their jobs and fundamental change is taking place at a time when the real issues for the health service are meeting the Nicholson challenge of efficiencies, major reconfiguration and improving the quality of primary care. That latter point has been neglected in our debates and I think that it goes to the heart of many of the problems in the health service.
When the Government inherited the NHS, it was in a very good condition. Waiting lists had been cut dramatically and there had been huge investment in the infrastructure. The Government could have chosen to build on that; instead, they adopted fundamental change, pulling the NHS up by its roots and causing major confusion. It is a change that enjoys very little support within the health service.
Perhaps I may now take the noble Earl to the judgment itself, which I think goes to the core of this argument. It says:
“From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament”—
I repeat: even before laying a Bill before Parliament. It continues:
“The whole process had to be paused because of the general alarm at what was happening. The public interest in understanding the risks involved in such wide-ranging reforms of the NHS in the circumstances just described would have been high, if not exceptional in this case. Risk registers would have provided the public with a far better understanding of the risks to a national institution which millions depended on”.
Yes, indeed. The argument for publication of the risk register when this House and the other place were considering this legislation is overwhelming, and I think that the use of the veto in this case is shameful.
Health: Clinical Commissioning Groups
Lord Hunt of Kings Heath Excerpts(14 years, 3 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what is the timescale for the introduction of guidelines to clinical commissioning groups (CCGs) on conflicts of interest, and what interim guidance has been issued to pathfinder CCGs.
Lord Hunt of Kings Heath
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I remind the House that I am chairman of the Heart of England NHS Foundation Trust.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in February the NHS Commissioning Board Authority published Towards Establishment which set out general safeguards that clinical commissioning groups (CCGs) should have in place to manage conflicts of interest. More specific guidance outlining safeguards for when CCGs are commissioning services that could be provided by GPs will be published shortly. We expect that both of these will inform the guidance the NHS Commissioning Board must provide for CCGs once it is established.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for his response. He will be aware of research published at the end of March which showed 22 clinical commissioning groups where the majority of GPs on the board of those groups actually had a financial interest in companies that are in receipt of NHS funding. Given that decisions on future contracts will fall to clinical commissioning groups, can the noble Earl assure me that those GPs will not take part in any discussions or decisions about future contracts? Will he also acknowledge that the problem arises from the weakness of the corporate governance arrangements, because in some CCGs there will be no one left to make the decision?
Earl Howe
My Lords, I do not accept that. CCGs will be subject to rigorous safeguards that prevent conflicts of interest affecting their commissioning decisions. Each CCG has to maintain registers of interest. They must have a governing body with lay members on it and other non-GP clinicians who will oversee the arrangements for governance. Each CCG must make arrangements set out in their constitution to manage conflicts and potential conflicts of interest. And the NHS Commissioning Board, as part of its overseeing role, will be responsible for making sure that every CCG has arrangements to manage potential conflicts of interest. So we do not see these problems arising in practice.