Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(12 years, 5 months ago)
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Lord Warner
My Lords, this is probably not the best time of night to be concentrating on this set of amendments, because it brings us to the difficult and controversial issue of service reconfigurations. Let me start with why I think that we need to move upstream from the full-scale failure regimes which are provided for in this Bill, and with why I do not consider that one can rely totally on local commissioners and elected Health Secretaries to undertake the scale of service reconfiguration that the NHS requires, or as quickly as it requires. In making that statement I start from a position that the best predictor of future behaviour is past behaviour. In the field of service reconfigurations past behaviour has not been a speedy or easy process to start, let alone finish.
I do not want to spend long on why it is urgent, but the essence of this is the Nicholson challenge, which is £20 billion of productive improvements in the NHS in the four years to 2015-16. As the Health Select Committee has pointed out, no health system in the developed world has ever delivered this level of productivity. To say that it is a big ask is a masterpiece of understatement. The NHS’s track record on productivity improvement is, putting it at its best, modest, so we are dealing with a difficult set of issues, on top of which there are constant pressures from demography, advances in science and rising public expectations in the UK healthcare system and, indeed, in virtually every advanced healthcare system. That is what confronts the NHS.
It is crystal clear that the public and politicians are beginning to recognise more openly that the historic patterns of service provision built around district general hospitals do not meet current or future healthcare needs. They certainly have a capacity to gobble up resources without necessarily delivering the type of services that many patients of the NHS need and which could be delivered more cost-effectively but probably not using the present pattern of hospital configuration. What that means is that we are facing a situation where in many parts of the country we have to change those hospital services very rapidly indeed, and we have to make some painful decisions on those service configurations, which can often mean closing some services, doing some services in a different place, redeploying and retraining staff and, in some cases, in all probability making some staff redundant. That is why this is contentious territory and why it has proven difficult to do. We are now moving towards a financial situation where we cannot put off the job of reconfiguring these services much longer.
The difficult problem we have in the way this Bill is structured and in the way we are approaching this is that we are expecting this painful stuff to be done in a situation where we are saying that local clinicians and local people have got to face up to these difficult decisions. They have got to start the process, unless it gets so bad that Monitor is required to trigger a failure regime. In many cases, the problem manifests itself in an acute hospital, but often you cannot solve the problems of that acute hospital without looking at the wider health economy within which it is situated, so we have a situation which is asking quite a lot of local clinicians, certainly based on experience, to start the process of reshaping those services however right it is in principle to expect local people to take the initiative in these areas.
Historically, we have faced a situation where elected politicians in the form of MPs have found this extremely difficult territory—whether they are going to be Kidderminstered, or whether they are going to find themselves having a very small majority and feeling honour bound to carry a placard around outside the local hospital without making a change. That is not a criticism of them; that is a fact of life. Asking local elected politicians and local people to, in effect, fall on their sword to some extent in relation to changing these hospital services is a big ask. This amendment tries to face up to some of those realities. It suggests that waiting for things to fail, to get so bad that they trigger the failure regime, is putting Monitor in a pretty tough situation.
This amendment tries to move upstream from that and to advance the argument that Monitor, with the support of the national Commissioning Board, should be able to look upstream and see the hospital services that are heading towards failure—in this case, I have taken a period of 12 months before failure—and start to do something about it. In co-operation with the national Commissioning Board, Monitor could trigger an independent panel to work with local people to come up with a set of proposals for reconfiguring services within a reasonable timescale set by Monitor that would make those services sustainable financially and clinically for the future. That is not to say that local people should be excluded but we should have a trigger that brings in some facilitation to help them get there.
Fast-forward, then, to the end of that process. We have often talked about the Chase Farm example. Seventeen years is a bit of a long time to sort out an A&E department, but that is what it has taken. My noble friend Lady Wall is still struggling with what comes next. We have to have something better than that. Elected Ministers are also constituency MPs. They understand the problems that some of their colleagues face. Sometimes they even understand the problems that their opposition colleagues face in these situations. It is not surprising that they find it difficult to take decisions quickly, even armed with the current independent review panel. No stone is left unturned in trying to give local people an endless chance to stop progress. We call it public consultation but it is in fact a stopping of progression of the reconfiguration.
What my amendment also does is to say, at the end of that process, that the Secretary of State cannot be taken out of the loop, but if he is going to turn down this independent panel’s set of proposals for making services sustainable clinically and financially in a given area, he has got to give his reasons to Parliament for doing that and has to come up with an alternative proposal for making those services sustainable. That is why I think we badly need a process of this kind where there is a trigger, some independent facilitation and some lock on the ability of the Secretary of State to endlessly procrastinate or avoid taking a decision coming out of an independent panel.
I am the first to recognise that this may not be enthusiastically received by the elected political class. It is probably a bit much to stomach appointed Peers proposing this idea. However, I am putting this forward on a non-partisan basis in the hope that we can move forward in this area on a basis similar to the one that I am proposing. At the end of the day what I am doing is pinching something. This is not a totally original thought. I am pinching it from Canada’s experience, where in the 1990s the healthcare system in Ontario was literally going broke and they had to find a way of not bypassing the elected political class but facilitating a set of changes that made it easier for elected politicians to take difficult decisions. That is the purpose of this amendment and I move it in that spirit, as a constructive attempt to deal with what I acknowledge is an extremely difficult and complex problem. I beg to move.
Lord Hunt of Kings Heath
My Lords, we are indebted to my noble friend for raising what I think is one of the most difficult issues the health service is going to face. There is no doubt that if the efficiency challenge is to be met, there has to be a major reconfiguration of services. Yet, as my noble friend has said, we know that this is often very difficult to undertake and get local sign-off. Both my noble friend and I enjoyed—if that is the word—experience as Minister for the health services in London, and both of us have been involved in some of the agonised discussions with the outer-lying hospitals and boroughs. The whole London area is littered with proposals that have been made for many years and which have not been put into effect. There are other examples up and down the country. The problem is that the health service no longer has the luxury of being able to rely on the uncertainties that are caused by the current system. Reconfiguration needs to take place, and rapidly, over the next two or three years.
I am enormously sympathetic to my noble friend’s amendment. It is interesting that in our previous debates the view has been expressed that ministerial intervention has often caused the problem. My noble friend would still push this substantive decision back to the Secretary of State. That is probably right, because in the end, however much the Government might wish to push this back onto the health service or onto the NHS Commissioning Board, I should have thought that the interest of MPs in reconfiguration issues would have sucked the decision back to the Secretary of State one way or another. We have to assume, therefore, that any process that is put forward does involve the Secretary of State.
I have no doubt that the noble Earl will say that we do not need to go down this route and that he is confident that clinical commissioning groups will be able to embrace reconfiguration of acute services and get sign-off from the appropriate or relevant local authority. I am sure that there may be some areas where that might happen, but of course, one has first of all to recognise that if a major reconfiguration is proposed, it will involve a number of clinical commissioning groups. The first test will be whether a number of CCGs will be able to come together to achieve a strategic outcome. Secondly, even if that happens, those clinical commissioning groups have yet to feel the heat of battle. They may well theoretically sign up to a reconfiguration, but they are inexperienced, I would suggest, in the kind of pressure that they will come under from politicians and the public. I suspect that one or two will find it very difficult to hold the line.
The other problem with the current proposals of the Government is that clearly they wish the NHS Commissioning Board to have a leadership role. However, the Commissioning Board will have much less legitimacy than Ministers when it comes to controversial decisions such as closures of accident and emergency departments. It is easy to see how these may come, in the end, to little fruition.
I certainly support my noble friend. The only question I put to him is whether his process is really tough enough. I wonder whether what really needs to happen is that every area of the country should be reviewed by some kind of independent body as to whether the configuration of services is safe and appropriate. It no doubt could have examinations in public, similar to the old strategic planning process that we have had in the planning system. I would favour a much stronger statutory approach to this, which forces each health economy to come to the table, to put their viewpoint, but then to have an outside group of experts who would then make strong recommendations to the Secretary of State. I fear that without such external views we will find it very difficult to make progress. I suggest to my noble friend that he should consider whether he might need something stronger to make this bite.
Earl Howe
My Lords, this group of amendments usefully focuses us on reconfiguration and the sustainability of NHS services. The sustainability of services will be centre stage for commissioners and providers alike. I should like to set out some key features of the Government’s reforms, which I hope will reassure noble Lords that the system we have put in place will deliver sustainable NHS services. The first key feature is that local clinical commissioners will be responsible for securing continued access to healthcare that meets the needs of local communities in consultation with health and well-being boards. Any proposals for service change will be locally led by clinicians in consultation with patients and the wider community.
The second key feature is that the continuity of services regime requires Monitor to support commissioners to secure continued access to NHS services. Monitor will do this by undertaking an ongoing assessment of risk and intervening to support recovery and to prevent failure where possible. Therefore, the onus is on commissioners and providers to address any problems with the sustainability of NHS services. Only as a last resort where commissioners and providers have failed will Monitor step in to appoint an administrator to take control of the provider in order to secure continued access to NHS services.
The noble Lord, Lord Warner, suggested that there would be nothing between a locally led process leading to an agreed reconfiguration and Monitor triggering the failure regime. That really is not so. It may be helpful to the Committee if I explain. There are various levers available to Monitor before failure is even thought of. First, regulatory interventions are available to Monitor through the licence in order to protect patients’ access to essential services where Monitor considers that a foundation trust is at risk of becoming clinically or financially unsustainable. I agree that there should be a way for the system to respond when, as the noble Lord put it, trouble is seen to be coming down the railway track.
Where it is appropriate, Monitor would be able to direct a provider to appoint turnaround specialists that would provide additional capacity and expertise to support a provider’s management in turning an organisation around. Monitor would also be able to appoint a pre-failure planning team to work with commissioners to develop plans for securing continued access to services in the unlikely event that turnaround was unsuccessful. That process may identify reasons why service reconfiguration would be needed to secure sustainability, but it would remain a commissioner-led process. I hope that I have made it clear that it is appropriate for local clinical commissioners and not Monitor to lead this process with support from the NHS Commissioning Board. The board will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes, and Monitor will support commissioners in protecting patients’ access to essential services through the licensing regime.
The noble Lord, Lord Hunt, suggested that the board should play a leadership role. The Bill allows for that to happen in a number of ways, using commissioning guidance to set expectations on how CCGs should deal with reconfigurations that span CCG boundaries. It would also provide access to advice in the form of senates to help them develop their proposals. Ultimately, where a local authority challenges a proposal, the board will be able to direct the CCGs on their plans, so there is an interest in making sure that those plans are robust to start with.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for giving way. I understand that, but is not the problem as my noble friend said? If you look back over the past 20 to 30 years, the NHS has found reconfiguration decisions very difficult indeed. The new system potentially has weaker bodies, in the form of the clinical commissioning groups, covering smaller areas, such that taking a bold decision on matters such as closing an accident and emergency department would be very difficult. In one way or another, what is being suggested is some kind of external mechanism that essentially forces the local health economy, both commissioners and providers, to come to terms with the latest knowledge in relation to safety and quality. They would actually have to face up to the challenge.
This happens in a way with the various inspections of the colleges and the deaneries, and we know of a number of hospitals where the viability suddenly goes because of an inspection and they are not approved for training. This has a devastating domino effect on the rest of their services. But surely the time has come for a much more proactive external review of each local health economy area. It would be of assistance to those who wish to move and modernise services because they would be able to turn to the mechanism, whatever it is, and say, “We have to change”. If the Government are simply relying in this legislation on local forces, my fear is that that simply will not happen quickly enough.
Earl Howe
I understand the noble Lord’s point; it is one that we have thought carefully about, as he might imagine we would. The trigger for local service reconfiguration is often a joint decision by commissioners and providers that the current configuration of services does not offer the highest quality care or that it does not meet current and modern clinical practice. It is usually a dialogue between commissioners and providers which identifies services as being, in some way, not optimal for patients, and that a reconfiguration is the most appropriate way to improve and modernise services, rather than smaller scale operational change.
We are proposing that commissioners should engage and consult on these changes in the normal way, working closely with providers and engaging with patients, the public and local authorities in developing their proposals. However, I agree that there are clear roles for the board, and for Monitor, in ensuring that this process is given a fair wind. They have an interest in ensuring that services are of high quality and sustainable and they will wish to add value to the process.
We talk as if all reconfigurations were long and drawn out—we all know of some that are like that—but the successful reconfigurations tend to be those that have involved more, rather than fewer, local stakeholders. That is why we are strengthening the powers provided by the Bill, so that reconfigurations can take place in a genuine spirit of local engagement and partnership.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(12 years, 5 months ago)
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“(2) The Board has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act and subject to any directions issued by the Secretary of State.
(3) The Board must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act.
(4) The Secretary of State may give a direction to the Board to discharge each of those functions, and in such manner and within such period or periods, as may be specified in the direction.”
Lord Hunt of Kings Heath
My Lords, we come to a very important matter—the role and function of the national Commissioning Board. It is almost as important as the previous debate on the responsibilities of the Secretary of State.
In a telling intervention last week, the noble Lord, Lord Marks, spoke of the tension in the Bill between the proposed duty to promote autonomy on the one hand and the fulfilment of the Secretary of State’s overall responsibility for securing the provision of services on the other. I suspect there is a similar tension built into the Bill in terms of the relationship between the Secretary of State and the national Commissioning Board.
At the heart of this debate have been concerns about the alleged micromanagement by the Secretary of State into the affairs of the National Health Service and specifically with regard to reconfiguration decisions. I sympathise with those in the NHS who can feel frustrated if hard-worked-through proposals are held up or rejected by Ministers or the service is constrained by too many interventions and targets from the centre. To think that this can simply be waved away in the new structure may prove to be optimistic. I suspect that a confusion of responsibilities between the Secretary of State and the national Commissioning Board and the plethora of organisations the Government have established or proposed to set up may well add to the burdens of the NHS.
Why is there political intervention in the health service? Surely there is political intervention because the NHS is one of the most important services that the Government are called upon to deliver to the public. Surely there is political intervention because, in the end, the public require it. In our debate last Wednesday the noble Lord, Lord Mawhinney, said that the public, for whom the NHS exist and who pay the NHS bill, expect politicians to intervene on their behalf. Indeed, democracy may be a messy process but I prefer a messy process to rule by quango or even an unaccountable group of clinicians.
Even if you succeed in removing the Secretary of State from the picture, is it likely that local NHS organisations will simply be left to get on with life without external interference? The public will certainly not go away and nor will their representatives, Members of Parliament. They will still encourage the Secretary of State to intervene in the health service. Even if the Secretary of State courageously resists that pressure, it will then fall on the national Commissioning Board. I doubt that the regulators, the CQC and Monitor, will be immune. Nor, I suspect will clinical senates, the health and well-being boards that will be established or the commissioning support units that are apparently to emerge up and down the country. Certainly, clinical commissioning groups themselves will not be immune.
The idea that if you remove the Secretary of State from reconfiguration proposals all will be sweetness and light, with rational bodies making rational decisions and a grateful public acquiescing to those decisions, does not seem to be in the real world. Is it really suggested that £120 billion of public money does not require full accountability of Ministers to Parliament? By full accountability I mean sole accountability, rather than the construct of this Bill, which quite remarkably gives the Secretary of State and a quango—the national Commissioning Board—concurrent powers in relation to the crucial duty in Clause 1. It is so important that the Secretary of State is solely accountable because that is probably the best protection of the overriding mission of the health service to provide comprehensive services to all.
I recently read the transcript of the evidence that the chairman of the national Commissioning Board, Professor Grant, gave to the Health Select Committee, which is very interesting. Professor Grant disarmingly described the Bill as “unintelligible” but we know that all Bills, on the face of it, look rather unintelligible. He went on to make much of the Secretary of State’s responsibility for delivering, as he put it, a comprehensive NHS. He then laid great stress on the mandate set for the board by the Secretary of State. He suggested that it should be for three years, rather than an annual mandate as laid down by the Bill. He made it clear that if,
“the matter is within the mandate of the Board, it is not within the jurisdiction of the Secretary of State, except that he has power to revise the mandate with the consent of the Board or ... in exceptional circumstances”,
he can intervene. The professor concluded that,
“ultimate political accountability … remains secure, but it requires a Secretary of State to define upfront what he or she wants the Board to be accountable for and to hold the Board accountable for it”.
I found that, from the chair of the NCB, eminently sensible and I have no criticism to make of the points that he put forward. However, does that reflect the real world? Things happen, reports are published and crises occur. The Secretary of State cannot simply wash his hands of responsibility. There will be occasions when, mandate or no mandate, he will want to intervene.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for his response. I am, of course, very happy for this to be considered in the light of the debate in relation to the other clauses around the Secretary of State’s powers. I may not have convinced the noble Earl but he has convinced me that a “train crash” will inevitably occur given the ambiguity and confusion built into the Bill on the role of the Secretary of State and the national Commissioning Board. The more the noble Earl spoke about that, the more evident the ambiguity became. As regards the mandate, my noble friend’s amendment suggests that only five functions should be given to the national Commissioning Board with five other objectives. I think that he is supported in that by other noble Lords. He has probably forgotten about the innate ability of the wonderful civil servants at the Department of Health to write very long functions which could probably embrace the world. However, I understand where he is coming from.
Lord Warner
I well understand the Civil Service’s ability to use the semicolon to extend a sentence for a very long period.
Lord Hunt of Kings Heath
My Lords, my noble friend should refine his amendment by limiting the number of grammatical devices that can be used.
I raised this matter because of what the noble Earl said. I raised the reported intervention by the Secretary of State in relation to primary care trusts and the concern that because of their financial issues they are essentially putting in some artificial barriers in relation to patient treatment such as having a rule that on non-urgent treatment you have to wait a certain length of time before you can be treated, and other such mechanisms. When I asked the noble Earl how this would work in the future, he told me that it would be put in the mandate. Clearly, what will happen—
Earl Howe
I am grateful to the noble Lord for giving way. If the board was not delivering the mandate, it is surely right that the Secretary of State should intervene. He has powers in the Bill to do that. Equally, if it is delivering the mandate, it is also right that it should be allowed to get on without interference from the centre. All we are saying is that the Secretary of State should be clearer about the reasons for his intervention in future. That is in everybody’s interests.
Lord Hunt of Kings Heath
Either the mandate is so detailed that you will have reams of paper telling the board what to do or the Secretary of State will rightly become concerned at issues that arise during the year. Those issues will not be covered by the mandate as they will not have been anticipated. The Secretary of State will wonder what to do and how to intervene. He will wonder whether he will be told by the national Commissioning Board, “Back off. It is nothing to do with you”, as nationalised industries used to do. This is no different from a nationalised industry. I am concerned because I believe that giving concurrent powers to the national Commissioning Board as well as to the Secretary of State will lead to a great deal of confusion, tension and ambiguity. At the end of the day I would prefer one person to be accountable—the Secretary of State. However, I am encouraged by what the noble Earl said about agreeing to look at this in the context of the other questions about the duty of the Secretary of State. I beg leave to withdraw the amendment.
Baroness Jolly
Apparently there was a Persian poet who got there even before him, but whether Donald Rumsfeld was a reader of Persian poetry, I know not. The point is that you do not know what you do not know. Both those voices would bring to the board serious added value.
I have another four or five amendments in this group which relate not to the composition of the board but to its work. Every year, the board is tasked with producing a three-year business plan on how it is going to discharge its functions. We have a Secretary of State who produces a mandate for the board. We are all in total agreement that the board has huge powers to shape the NHS. New Section 13S of the 1996 Act indicates that there should be an ability to revise the plan. It talks about a “revised plan” but says nothing about the process of revision. The Bill is silent also on the operational plans of the board. I am slightly curious as to which comes first—the mandate or the plan.
How might a conversation with patients and other stakeholders be managed to revise the draft plan? Clearly, we have to start with a draft and then it will be revised. To what extent does the Minister envisage the plan being amended? Might the details on board membership and business plan consultation be included in guidance to the board? One half of my amendments is about board composition; the others are about business planning. It will be interesting to hear the Minister’s response to the latter because it will give us some indication of the way that the board plans to work or it is planned that it should work.
Lord Hunt of Kings Heath
My Lords, I have a series of amendments in this group concerning membership of the national Commissioning Board and its cost. There is common consent that getting the board’s membership right is important.
My Amendment 52A would ensure that the chair could be appointed only with the consent of the Health Select Committee. I fully acknowledge that Professor Grant, the chair of the NCB, went before the Health Select Committee; I have already referred to the transcript. It is clear that the process ensured proper and effective scrutiny. However, I should just like to put the matter beyond doubt and make sure that the procedure will always be followed in future, and I hope that the Minister will agree to my amendment. I should say that I followed the legislation which established the Office for Budget Responsibility, so we have a precedent for ensuring that a Select Committee of the other place has an important role to play in such appointments in the future.
My Amendment 52B is simply a matter of good governance to ensure that a lay vice-chair is appointed, which I am sure I am right to assume is the Government’s intention.
On the composition of the board, my Amendments 54 and 56 are intended partly to probe and partly to make a point. It would be helpful if the Minister could give some indication of the likely make-up of the board, both executive and non-executive, and perhaps some details about how non-executives are to be appointed. My specific point is to encourage the Minister to ensure that, on the executive side, a medical director, a nursing director and a finance director are always appointed. To be frank, my main focus is in relation to a nursing director. I have no doubt that there will always be a finance director and a medical director; I want to ensure, and I want the Minister to give an absolute assurance, that there will always be a nursing director on the national Commissioning Board. I go back to 1991, when NHS trusts were first appointed. Some noble Lords here will recall that some rather foolish chairs of those trusts did not want to appoint a nurse to their board. They were forced to do so, I am glad to say, through the intervention of a Secretary of State at the time. I have no doubt that it is the intention of the Government to ensure that there is a director of nursing on the board, but I should like to make sure that it always happens.
I understand that getting a range of expertise on the non-executive side will always be difficult. As the noble Baroness, Lady Jolly, said, the risk is that Parliament will always seek to legislate for a list of backgrounds, which we know is not a practical way to ensure that a fairly small board is appointed. My amendments seek to ensure that there are at least some non-executives on the NCB who have some experience of the National Health Service. While the temptation will always be to appoint people from other sectors because of the experience that they can bring, there is something unique about the National Health Service. I think that non-executives find it helpful if, among their number, they have people who know the business and help them to challenge the executives. One of the risks of the fashion—my own Government were as guilty of it as any other—of thinking that what the health service most needs is outside business expertise is that, when it comes to issues of safety and quality, you do not have anyone on the non-executive side who can effectively challenge the executives. I urge the Government to ensure that there are non-executives on the board who have real experience of the National Health Service and how it works in order to enable a proper challenge to be put to the executive directors.
Amendments 52D and 54A are probing amendments, designed to tease out the place of public health on the national Commissioning Board. I support the comments already made by noble Lords. On my proposal that the Chief Medical Officer be a member of the board, the Minister may say that he thinks it more appropriate for the Government’s chief medical adviser to be seen purely as part of the department than to be on the national Commissioning Board. I sympathise with that point. I suspect that the answer to the question of the noble Baroness, Lady Jolly, in relation to HealthWatch is that there is always a problem if people are appointed because of their other positions. The problem is that they then have to take responsibility for the corporate decision-making of the NCB. I can therefore assure the Minister that my amendment to place the CMO on the NCB is probing, designed to enable us to hear how the public health function will be given sufficient prominence within the national Commissioning Board.
My Amendment 55 would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I have no problem with paragraph 3(4) of Schedule 1, which provides for the first chief executive to be appointed by the Secretary of State. This is normal practice and is entirely sensible in view of the need to get the national Commissioning Board up and running. However, my question is why the Secretary of State needs those powers in relation to subsequent appointments. After all, the Minister has waxed lyrical about the need for there to be distance and for the Secretary of State no longer to intervene, so why on earth does he have to approve the appointment of a chief executive? Surely that is for the board to do. Surely it is for the Secretary of State to nominate the chairman of the board to go through the necessary parliamentary scrutiny. For the Secretary of State to actually have to approve the appointment of the chief executive is ambiguous. The department has not sorted out the real relationship between the Secretary of State and the national Commissioning Board. On the one hand, there is the desire to give the NCB as much freedom as possible; on the other hand, one knows that in these clauses there is a desire to control it. I should have thought that the fact that the Secretary of State has a veto over the chief executive appointment is an example of that. I hope that we can see that go between now and the conclusion of our proceedings on the Bill.
Lord Hunt of Kings Heath
Can I say how much I welcome the noble Lord, Lord Greaves, to our Committee? We have missed him. Now we have turned our attention to detail, his particular expertise comes to the fore.
On bureaucracy, I have tabled this amendment because I have genuinely been a passionate fighter of bureaucracy. That is why sometimes as Ministers we have to intervene in the bureaucratic affairs of the health service. The noble Earl may find that he himself has to do so. My concern is that, partly because of the listening pause, there is now a plethora of organisations to be established. Apart from clinical commissioning groups, we have commissioning support units—about which we have heard very little but apparently will be there—as well as the senates, the health and well-being boards, the clinical pathways and the national Commissioning Board. The regulators are likely to be given more power in the future: Monitor is being given more powers and, post Francis, there will probably be changes to the CQC and other regulatory matters. The risk is that, far from this being a streamlined process, it will be a very complex and bureaucratic one. I seek here merely to help the Government deliver their aims by encouraging them to restrain the cost of the whole exercise.
Lord Greaves
I was of course teasing the noble Lord in as pleasant a way that I could. This is another instance where Hansard ought to have a few smileys liberally littered round the text. The noble Lord made the same point, at slightly greater length, that I made when I referred to the kaleidoscope of bodies that we now have. An important job of this Committee is to sort out the relationship between all these different bodies before they are finally set up. We have got to do that absolutely vital job.
Subsection (2) of the noble Lord’s proposed new section “Duty to reduce bureaucracy” says,
“For that purpose the Board must exercise its functions … so as to ensure that at no time there exists more clinical commissioning groups than there were primary care trusts on 1 April 2011”.
That is a slightly different point, hitched on to his bureaucracy point. This is a vital question. Again, this will not appear in the Bill—it will not say that there will be X number of clinical commissioning groups—but, in general terms, we need to have clear in our minds when the Bill leaves the House how many clinical commissioning groups there will be and of what sort of size. This has evolved with discussion over the legislation. When the first proposals came out—when they were called GP commissioning groups because that is what they were—there was a feeling among many people throughout the country, the health service and among politicians that they might be quite small, or even that large GP practices might try and do it on their own. A lot of people were alarmed by this because they thought it would not be very efficient and it would not work. How on earth do you commission the kind of facilities which have to be provided, whether it is a local health centre or specialist clinical services, on a sufficient scale? The more people thought about it, the more it seemed that these groups had to be larger than just a large GP practice or group of GP practices in a smallish town.
The Government then encouraged GPs in particular areas to get together and co-operate to set up early-stage shadow commissioning groups. This happened and the Government issued a statement saying that a high proportion of the country—I forget what, but perhaps 70 or 80 per cent—was covered by these voluntary, shadow groups. These GPs quite rightly wanted to make things work in their area, whatever they thought of the legislation and changes. In my part of the world, it tended to come down to one commissioning group per second-tier or lower-tier district council area, in places like Burnley, Hyndburn and Pendle. Now, apparently because of pressure from above, people are talking very strongly about having—or having to have—a commissioning group on the same boundaries as the existing primary care trust. This would not be the cluster of trusts that is at the county level but at a sub-county level.
So in effect people are looking at the groups and saying, “What will be the difference?” What will be different will be the functions and the direct control of community services, which effectively has gone already to the hospital trusts. As for commissioning, it will be effectively the same body, probably in the same premises, controlled by different people. We need to understand this regardless of whether it is necessary to reduce bureaucracy or whatever, which is secondary, in a sense. Before we leave the question of the commissioning groups, which we will be talking about in great detail, we in this House need to understand the Government’s thinking about the future likely site of these groups.
Lord Hunt of Kings Heath
I am grateful to the noble Lord for giving way again. I think it is a very interesting point about the size of clinical commissioning groups. My amendment was simply a probe to get a debate on this. Is there not a tension here? In order to get CCGs dealing with strategic issues, they have to be pretty large and cover a large population, but, in order to get the interest of GPs, they need to be smaller because the GPs need to feel involved. In essence, there is a tension there. The approach of the previous Government of taking primary care trusts and encouraging more practice-based commissioning may well have proved to be a better approach. The risk with CCGs at the moment is that, when they emerge with a board, they will be so removed from the individual GP that the very purpose of setting them up in the first place, which of course was about controlling demand through GPs, will lose that essential aim.
Lord Greaves
There is a great deal of truth in what the noble Lord says. Looking at this from afar, I think that the Government have had to struggle with this tension. In order for the bodies to be serious commissioning bodies, commissioning not just for their patients individually or collectively but for the health needs of their area, they have to be sufficiently large. What will happen is that the GPs who sit on these new commissioning groups almost certainly will represent the GPs in the whole of that area, and they will have to be appointed by some democratic process representing the whole area—perhaps one from each area. I do not know how they will do it but that will have to happen at a local, practical level.
In my view, one thing that has bedevilled this debate is that the word “commissioning” has been used in two quite separate senses. One has been the idea of a GP commissioning services for his particular—
Lord Hunt of Kings Heath
From what the noble Lord said, why on earth did we not continue with PCTs and give them a kick up the backside to allow GP surgeries to commission more locally as well? Why have we gone through this?
Lord Greaves
I am not quite sure why the noble Lord is asking me that question. He is tempting me to make provocative statements in relation to the coalition Government of which my party is a member. I think that it is an open question and the answer can remain open. I am not in the mood to make provocative statements today. I might be tomorrow, and the noble Lord can come back to me then.
The point that I am trying to make before I finish, if the Labour Benches will not interrupt me just one more time—
Earl Howe
My Lords, this has been an excellent debate on a set of important issues, and I am glad to count my noble friend Lord Greaves as one of my staunchest supporters.
The NHS Commissioning Board is one of the key elements of our vision of a modernised NHS—a highly professional organisation, focused on quality and able to support clinical commissioning groups in delivering the best care possible to patients. I completely accept that these amendments were proposed with the best of intentions, to strengthen the way in which care is commissioned. However, in setting out why the Bill is drafted as it is, I hope that I can explain to your Lordships why I cannot accept them.
It will be key to the effectiveness of the board to ensure that it obtains sufficient advice and input from clinicians, public health experts, other professionals and those with relevant experience of the NHS—patients and the public—and that it has effective working relationships and arrangements with local authority government. We have stated our intention that there should be clinical and professional leadership on the board, but in terms of the legislative framework for the board it is an important principle to maintain that it should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions. This would include, for example, whether it has a vice-chair or a senior independent director, as Amendment 52B suggests.
One thing is absolutely clear. Members of the board will, in practice, need to have a range of skills, knowledge and experience appropriate to the issues faced by the board. Ensuring the right balance of non-executive members from a variety of backgrounds is key to achieving a successful board. But if the majority of non-executives were required to have a particular background, such as NHS experience, as suggested in Amendment 54, that might create an unbalanced board and effectively disqualify potential candidates from the private and voluntary sectors. I agreed with the most reverend Primate in what he said here. It is worth remembering that the board and its members will be expected to follow the seven principles of public life—the Nolan principles—one of which will mean that it must appoint a,
“well-informed choice of individuals who through their abilities, experience and qualities match the need of the public body in question”.
That sums it up very well.
A number of noble Lords made the point that if we require the inclusion of doctors and nurses or a public health specialist as put forward in Amendments 50, 52D, 54B and 56, what about representation on the board of dentists, pharmacists and allied health professionals? The list could go on. It would simply not be possible to accommodate all interests in the board’s membership adequately, and we would surely invite valid criticisms that one group is being prioritised over another. Nor would this be desirable from a Government’s point of view, given that the primary purpose of the members of the board is to hold the organisation to account. Nor, in my very firm view, would it be appropriate for a senior member of another organisation with a different purpose or remit, such as the chair of HealthWatch England, or indeed the Chief Medical Officer, to have a seat on the board, as suggested in Amendments 52C and 54A respectively. That could lead to a potential conflict of interest and confuse accountability. I agreed with the noble Lord, Lord Harris, on that point—although he is not in his place.
Of course, in practice, the board must have the freedom to determine how these varied and legitimate interests are best involved and represented in its work. The noble Baroness, Lady Murphy, was quite right—the board will want advice and expertise readily available to it—but that is a different issue from board membership. It is worth bearing in mind that the board will have the freedom to appoint committees and sub-committees as it considers appropriate, and this may prove useful to the board to bring in interested parties on specific issues.
A number of noble Lords asked about public health expertise. We are coming on to debate clinical senates, but one main reason for establishing them is to bring in this wider range of expertise in a way that would provide practical benefit. This would absolutely include public health expertise. We amended the duty to obtain advice to make this explicit. New Section 13J inserted by Clause 20 makes it absolutely clear that the board must obtain advice from those with professional expertise in,
“the protection or improvement of public health”.
There will be an interrelationship between the board and HealthWatch. The board must inform the body in writing of its response, or proposed response, to its advice; it must also have regard to the views, reports and recommendations of local HealthWatch.
My noble friend Lady Cumberlege asked about the size and membership of the board. The requirements in the Bill are that there is a minimum of seven members; the Secretary of State must appoint a chair and at least five other non-executives, so that is a minimum of six non-executive members. The non-executives must appoint a chief executive, who must be a member of the board. That is to say, there must be at least one executive member. Beyond that, they may appoint other executive members as long as the total of non-executives is always more than the total number of executives. The final decision on the number of other executive posts and the nature of their roles will need to be agreed with the chair and non-executive members, but it is envisaged that the other executive members besides the chief executive will include a nursing and a medical director, a director of finance, of performance and operations and of commissioning development.
All departments are required to ensure that appointments are open, transparent and made on merit. The Commissioner for Public Appointments regulates the processes by which Ministers make appointments to the boards of certain public bodies in England and Wales, and this will continue to be the case. It is not government policy to offer confirmation or affirmation hearings for public appointments, as Amendment 52A, tabled by the noble Lord, Lord Hunt, would require. These are ministerial appointments to make. The Cabinet Office maintains a list of posts that are subject to pre-appointment hearings by a House Select Committee. Ministers would consider the committee’s views, but such hearings are not binding and do not represent a power of veto. Your Lordships will be aware that we followed this process in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board.
Lord Hunt of Kings Heath
I am grateful to the noble Earl for what he said, but did he pick up my point that the Government set the precedent in relation to legislation with regard to the Office for Budget Responsibility? The Government have moved on, and I am sure that they did it because of the importance of that body. My argument is that the National Commissioning Board will be such a responsible body that there might well be an advantage in giving the Health Select Committee rather more leverage on it.
Earl Howe
My understanding is that we are following the normal procedure. There is a list of appointments that are subject to Select Committee scrutiny. Departments are consulted over the list. It is our intention that the role of the chair will be included in that—and that is exactly the same situation that applied under the previous Government. The Office for Budget Responsibility is an exceptional body in this respect, given its role in providing both government and Parliament with essential, impartial information, necessary for both bodies to be able to fulfil their responsibilities. Although I will reflect on the noble Lord’s comments, I do not know that there is the parallel that he seeks to make there.
Amendment 55 would remove the requirement from the Secretary of State to approve the appointment of a chief executive of the board. This requirement is included for the important reason that the chief executive of the board will be the accounting officer for the commissioning budget, so it is entirely appropriate that the Secretary of State should approve his or her appointment.
Health and Social Care Bill
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Lord Patel
My Lords, in the absence of the noble Lord, Lord Walton of Detchant, I am very pleased to move the amendment on his behalf. I wish I had a better idea of what his purpose might have been in tabling the amendment. None the less, it is a good opportunity to explore the Government’s thinking in establishing the clinical senate.
It is easier to understand the purpose of the professional networks, which I have spoken about before. I think they are a good idea, and there should be more clinical and professional networks embedded in the health system. The cancer and cardiac networks are two good examples. However, when it comes to the senate, I am less clear about the Government’s intentions. I know that the NHS Future Forum: Clinical Advice and Leadership report said that commissioning consortia—now called commissioning groups—and the NHS Commissioning Board,
“should establish multi-specialty clinical senates to provide ongoing advice and support for their respective commissioning functions”.
It also said that independent advice from public health professionals should be available at every level of the system, but that is by the way.
Therefore, we have a situation where the Future Forum suggested that clinical senates should be a way of getting advice to all the different new structures. In response to the Future Forum, the Government said that clinical senates will give advice to CCGs which they must follow in each area of the country. At the same time, Dr Kathy McLean, who led on the project, is leading another project and has issued a consultation letter to develop the role of clinical senates and clinical networks. Obviously the Government do not have a clear idea of what the clinical senates are for, otherwise why is Dr Kathy McLean leading the project and issuing a consultation letter?
It is proposed that 15 senates will be housed by the NHS Commissioning Board. They will feed their advice back to the NHS Commissioning Board, although about what is not clear. In his two amendments my noble friend Lord Walton of Detchant wonders whether they might be useful in feeding the Commissioning Board and the commissioners advice about specialist commissioning. The senates will have a major say in advising CCGs on their commissioning plans, but their advice will be exactly that—advisory. Membership will consist of doctors, nurses and other health professionals, so it will be a large group. The senates are to be involved in quality aspects of clinical commissioning and an annual assessment of CCGs, and they will report on their annual reports and performance. They have serious work to do in monitoring CCGs, yet they are only advisory for CCGs.
Future Forum suggested that clinical senates should provide advice and support for a range of bodies, including CCGs, the NHS Commissioning Board, health and well-being boards and others. Are senates not likely to end up as just another layer of bureaucracy? Therefore, what is the real role of all 15 clinical senates? Will they be involved in advising the NHS Commissioning Board in its commissioning role? Are they to be advisory for CCGs and check on the quality of their commissioning? Why are the professionals on the senate going to be from outside the commissioning groups’ area of commissioning? The amendments are tabled to explore whether they will really have a role in commissioning specialist services.
Lord Hunt of Kings Heath
My Lords, I also have an amendment in this group. I say to the noble Lord, Lord Patel, that he anticipated the remarks of his noble friend Lord Walton remarkably well.
Having argued against bureaucracy in the previous group of amendments, I am now about to argue in favour of putting senates on a statutory basis. I shall explain why. First, this was a very good outcome of the listening exercise. I think that because I am concerned at the Government’s decision to abolish the strategic health authorities. It is what I call the Hagley Road issue. In 1948, the Birmingham Regional Hospital Board was established; its offices were in Hagley Road and throughout 60 years there has always been something there. It may have been a regional health authority, a regional hospital board, a strategic health authority—call it what you will—but there has always been a regional outpost of the department acting essentially as a leader, with a positive role in looking at the region as a whole, ensuring that its services were cohesive and had proper direction and that, by and large, it was self-sufficient. That is to be removed and we are going to get large SHA clusters which will cover a much larger part of the country. Although we do not know the size of the clinical commissioning groups, they will clearly cover much smaller population areas.
I believe that there is still a need for a mechanism whereby strategic leadership can be given over a region, and I see the clinical senates as being the best approach to that. Noble Lords have spent at least two days debating reconfiguration and are concerned that these difficult decisions often have intervention from the centre. Clinical commissioning groups will be too small to take on the kind of strategic leadership that is required. When you are trying to establish in a region where the super specialty and tertiary services should be and trying to come to a view about how many A&E and emergency departments you need, you require a body that can take a strategic overview. The clinical commissioning groups are too small to do that. They could, of course, possibly come together in a kind of federated meeting to try to resolve those kinds of issues, but that could prove to be very difficult. Therefore, the senates could have an important role in setting some of the parameters and giving strategic leadership to a region.
However, as the Government intend them at the moment, these will be informal groups of people who could easily be ignored by the clinical commissioning groups, by the health and well-being boards, by the deaneries and by all the organisations that have an influence on the way in which the health service is going. My amendment is designed to set out a more structured approach to ensure that clinical senates are created as bodies corporate, that they are properly accountable to the national Commissioning Board and that they have the ability to give strategic leadership and have some oversight of the work of clinical commissioning groups.
I suspect that my amendment will not find favour with the noble Earl but the point about the need for strategic leadership in a region is important. I fear that the super SHA clusters will be too large to do that and the clinical commissioning groups will be too small.
Baroness Jolly
My Lords, I would like to speak to Amendments 51 and 84, but before I do, I have an interest to declare. I am chair of the Specialised Healthcare Alliance, an organisation campaigning for those with rare and complex conditions. The move to commissioned services for this particular group of patients by the NHS board is really welcome. It is the first time that there will be a common standard across England under the auspices of the board. However, we are not totally clear about the composition of the senates or their roles. I am not sure that the amendment of the noble Lord, Lord Walton—who is not in his place at the moment—actually gets to the meat of this. There is concern that specialised services within senates might get lost. If a specialised senate with expertise and integration were set up, that might be useful to this group of patients, but more often than not networks are where the specialised services go to for the expertise. We welcome the commitment to ensure that networks stay as they are and possibly expand. Maybe a network could set up a task and finish group to look at the problems around specific conditions. I would be grateful if the Minister would make the role of the senates clear. Would they have a role in specialised commissioning? Similarly, I would be grateful if he would shed some light on the ways in which the board will commission specialised services in general.
Baroness Williams of Crosby
My Lords, if I may, I will pursue what has been raised by the noble Lord, Lord Kakkar, and also, in some ways, by the point made by the most reverend Primate the Archbishop of York. I could not help thinking that perhaps protesters count among the networks and the people responsible for running St Paul’s count as part of the commissioning group. With that in mind, I will pursue also what was said by the noble Lord, Lord Hunt. If you look at his Amendment 224A(6), he helpfully refers to the clinical senate having,
“the function of establishing and maintaining a system of clinical networks”,
in the area. I think that should be applauded. I am very impressed by the way in which networks at their best not only extend information very widely among patients with a chronic condition but bring the patients into the discussions about what should be done in their situation. It becomes a huge educational and, indeed, morale-boosting process. So on subsection (6) I think that the noble Lord, Lord Hunt, has put his finger on something that could be very important and where the clinical senate would give clinical backbone to the deliberations and thoughts of the clinical network. That is almost, I suppose, what we are all trying to achieve.
I am not so clear about subsection (8) of Amendment 224A, where the noble Lord, Lord Hunt, has effectively given the clinical senate something of a veto over the commissioning group. I am not sure that that is wise, as that plays right into what the noble Lords, Lord Patel and Lord Kakkar, were saying about creating yet another layer of bureaucracy. I think that would be unhelpful and might indeed feed into a certain self-importance on the part of people who call themselves senators, whether clinical or merely political.
I would like to ask the Minister, bouncing off the amendment from the noble Lord, Lord Hunt, whether, looking through that amendment, he does not find parts of it that are helpful, useful and constructive. It would make a clinical senator a significant part of the whole structure of the relationship between patients and clinicians. Whether he needs to press ahead with provisions that would bring in the senate as a requirement of the decision-making process of the commission is much more questionable. I am playing a kind of ping-pong, in which the ping of the noble Lord, Lord Hunt, has to go to the pong of the noble Earl, Lord Howe.
Lord Hunt of Kings Heath
Can I accept the invitation to come back on this? The reason why I am interested in the other bit of my amendment is that it is essentially about the strategic leadership that needs to be given to reconfiguration issues. When we debated the powers of the Secretary of State, a number of noble Lords complained that Ministers intervened in reconfiguration, which usually means the closure of services, perhaps emergency services, and their concentration around specialist hospitals. They are very contentious. As noble Lords have observed, MPs seek ministerial intervention, which is perfectly normal and democratic. In the new structure, there is no one to really lead this at a semi-national or regional level. The CCGs are far too small; they will not be able to come together to sort out how regional services should be operated, or the number of A&E departments you need within a region. The national Commissioning Board is far too big; it is national. That is why I think that there is room for some regional mechanism. The clinical senates seem the nearest that we can get to that. I do not see them as being like the old-style regional medical advisory committees; I see it as being a rather more dynamic process than that.
Baroness Williams of Crosby
I thank the noble Lord for his typically articulate and thoughtful response. The idea of clusters coming together in what one might call semi-regional groupings is a better way forward than bringing regional senates in as a way to resolve the problem that he rightly talks about of bodies being too small or too large.
Earl Howe
As I have mentioned, the senates will come under the wing, so to speak, of the NHS Commissioning Board. They will effectively be part of the board. While we have yet to receive details of how the board will configure itself sub-nationally, it will clearly have to do so in ways that make sense of the local commissioning and provider architecture in an area so, where you have a university, it might well be that medical experts from that university will be part of the senate. It is too early to say, but I look forward to updating my noble friend as and when I have further particulars.
Lord Hunt of Kings Heath
I stand as a supporter of the noble Earl on the concept of senates. He is not getting much support but I agree with the point that he made that if clinical commissioning groups feel that there needs to be a wider strategic view, say on reconfiguration, the clinical senate could provide useful support. The problem is that some clinical commissioning groups may not think that there is a need for a wider strategic view because they will simply seek to defend existing provision. My argument is that you may need a mechanism which is somewhat more proactive, and which can intervene in the way that the noble Baroness's wonderful South West Thames Regional Health Authority used to do.
Earl Howe
The noble Lord could be proved right. As I have said, we will see how the functions of senates are defined. That work is ongoing. The initial proposals for the design and implementation of senates are currently being developed and initial straw-man proposals are being tested with the intention of presenting a clear set of recommendations to the top team of the special health authority later this year, so—
Lord Hunt of Kings Heath
My Lords, clinical commissioning groups are, of course, one of the main building blocks of the Government’s proposed changes to the National Health Service and I support my noble friend Lord Whitty when he argues for the need for population-based bodies at that essential local level. However, I will follow the noble Lord, Lord Kakkar, in looking at issues to do with corporate governance in clinical commissioning groups. I am concerned whether the corporate governance structure will be sufficiently robust. Will clinical commissioning groups be sufficiently accountable to the public? What safeguards will be put in place to ensure that clinical commissioning groups operate in the public interest?
Schedule 2 sets out the details of the governance structure. Clinical commissioning groups will be bodies corporate with a constitution and a procedure for decision-making; an accountable officer and audit and remuneration committees are to be appointed. That is fine as far as it goes but I hope the noble Earl will use this opportunity to clarify what effective corporate governance structure is to operate. My Amendments 175CA and 175CB seek to do just that.
On Amendment 175CB, I seek guidance and reassurance about the composition of the boards of clinical commissioning groups. On every other board in the NHS the non-executives are in a majority. Will the noble Earl confirm that that will be the case with clinical commissioning groups? If not, why not? I follow what the noble Lord, Lord Kakkar said: surely, by any definition, GPs are the least experienced in any form of corporate governance in the health service? Therefore, given that they are the least experienced, is it right that they should be subject to so much less scrutiny and challenge than those other organisations in the National Health Service which are hugely well versed in corporate governance? At the very least the chair and vice-chair of the clinical commissioning groups should surely be lay people to ensure that the public interest is represented.
There would be considerable merit in ensuring an external appointments process. I have suggested here the NHS Commissioning Board but there may be other suggestions. All experience with public bodies shows that if boards are responsible for deciding on their membership you will often run into trouble. We have seen this in the education sector, with corporations of colleges simply deciding themselves who should be appointed and who should replace those who retire. Simply leaving clinical commissioning groups to decide on their membership is a recipe for deep trouble, particularly when the temptation for CCGs will be to spend resources on themselves, on their constituent GPs. The issue around public interest and conflict of interest will become a keen problem and, without strong, effective corporate governance, we may well run into great difficulty in the future.
There are probing amendments around membership but, in relation to Amendment 175CA, I would like to know whether the noble Earl feels it is appropriate that local authorities should have some kind of representation on the boards of clinical commissioning groups. Amendment 175CA in particular draws attention to the role of district councils in two-tier areas. That is because clearly the principal local authority will be the host of the health and well-being boards. There will be concern, particularly in rural areas, if the non-metropolitan district councils do not have some involvement. I at least pose the question as to whether they may have some involvement at the clinical commissioning group level.
My principal amendment is Amendment 175D which concerns the accountability of clinical commissioning groups. I do not understand how those groups will account to their patients. As a patient, what do I do if I do not agree with the decisions of the clinical commissioning group? What if I think the decisions made by my clinical commissioning group put me at a disadvantage compared to the decisions made by a clinical commissioning group in a nearby area? What if I think my clinical commissioning group, by its decisions, might affect the viability of my local general hospital? What if I think it is putting too many contracts with itself, bringing up this issue of conflict of interest? There is real concern about the conflict of interest issues around placing contracts with the GPs who form the constituent members of the clinical commissioning groups.
How do members of the public hold the clinical commissioning groups to account? As far as I can see, the Bill is completely silent on that. The noble Earl may say that it is contained in the doctor-patient relationship, but I do not think that is true at all. My relationship with the GP is not about commissioning: it is about essential care. Frankly, there is already a risk that, because GPs are collectively going to commission, the doctor-patient relationship might be undermined in any case. That is because the moment we place commissioning decisions with GPs, there will always be a suspicion among patients that decisions they are making clinically will be governed by the needs of the clinical commissioning group and the need to ration resources. Clearly, the Secretary of State has said, and has been saying consistently, that the reason the budget has been put with GPs is to give control over the budget overall.
I have put forward a model essentially based on the foundation trust model, which says that the members of clinical commissioning groups should be the patients who are on the lists of the GPs within that group. The membership should then vote for a governing body and the governing body should then appoint the non-executives on a clinical commissioning group. I am not completely wedded to that model: I just lifted a model that is currently in operation in the health service. My main point is that I do not believe that it is right and proper that a public body should simply be composed of one profession that is given enormous power—if you are lucky, there may be one or two non-execs on the board as well—accountable to nobody at all at the local level. There is no mechanism at all whereby I as an individual patient have any way of challenging the commissioning decisions of those clinical commissioning groups. This is a very important issue to which I am sure we will return. We have to make CCGs properly accountable.
Lord Patel
My Lords, I will be brief in supporting the amendment of my noble friend Lord Kakkar. I also support the comments just made by the noble Lord, Lord Hunt. I think it vital that local commissioning groups are accountable and conduct themselves according to the highest principles of public life. CCGs are legally responsible for the quality of their decision-making processes. Therefore, they need to be able to stand up to judicial review. The individuals making those decisions should be required to adhere to the highest standards of conduct for public officials.
I know that, to a degree, the Government recognise this by raising the structures of CCGs—namely, the inclusion of lay and other professional members on governing bodies, the requirement for compliance, the principles of good governance and the pledges about public access to documents and meetings. While this work is being carried out, however, we need clarification about the methods of identifying and selecting lay and professional members of governing boards.
The Bill also states that CCGs may pay members of the governing body such remuneration and allowances as it considers appropriate. Full autonomy may not be appropriate as it might undermine public confidence in the ability of members of CCG governing bodies to act in the public interest. Some degree of national guidance about fee scales might also be valuable.
Earl Howe
My Lords, I take that point on board. It is my understanding that the NHS Commissioning Board will wish to set common standards for CCGs to follow. However, I will follow up that point with the noble Lord. As I said, the Bill requires each CCG to prepare annual accounts, independently audited. The board may, with the approval of the Secretary of State, direct CCGs as to the methods and principles according to which their accounts must be prepared, and the form and content of such accounts. Therefore, there will be scope for the board to drive consistency in the area the noble Lord mentions.
I turn now to Amendments 169, 175BA, 175C and 101A, which concern membership of, and appointments to, CCG governing bodies. In response to amendment 169, as the Bill stands, under new Section 14N, regulations may already provide that members of governing bodies must include the accountable officer of the CCG. Paragraph 11 of Schedule 1A also specifies that the accountable officer may be one of the following: a member of the CCG, or an employee of the CCG or any member of the group. Restricting the accountable officer to being the “most suitable senior employee” of the group, as Amendment 169 also proposes, would narrow who the officer could be and ignore other able candidates, so I am not attracted to that amendment.
Amendment 175BA, and Amendments 175A and 175B, which we will be discussing in more detail in a future group, clearly intend to ensure CCGs have access to professional or other expertise to advise on all areas of their work. This is undoubtedly important, but the governing body is not the route to achieve this. As the Future Forum advised, a clear distinction should be made between governance of CCGs and clinical involvement in designing care pathways and shaping local services.
Clinical involvement in designing pathways or shaping services is exactly what a CCG will need to ensure in exercising its duty in new Section 14V, which requires a CCG to obtain advice appropriate for enabling it effectively to discharge its functions from individuals, who, taken together, have a broad range of professional expertise.
Clinical senates and networks will, of course, be crucial to effectively meeting this duty and to ensuring that CCGs can access specialised advice, as will the local knowledge and public health knowledge held by health and well-being boards. We believe there is a case for ensuring that governing bodies include the voices of some other professionals—at least one registered nurse and a secondary care specialist—but it would be unhelpful, as the Future Forum also acknowledged, for governing bodies to be representative of each group. That could lead to bodies that are too large and slow to do their job well. CCGs should have the flexibility to determine the professional input into their governance arrangements.
Amendment 175C would provide for regulations to be made setting out how lay members are recruited and remunerated. Subsection (3) of new Section 14N already makes provisions as to the appointment of members, including lay members, to the governing body. Paragraph 12 of Schedule 1A allows the CCG to pay members of its governing body such remuneration and other expenses as it considers appropriate. These existing provisions cover the intent of Amendment 175C.
Lord Hunt of Kings Heath
My Lords, can the noble Earl assure me that the appointments will be made by independent bodies, and that it will not be a case of the board of the CCG making the appointments to itself? In terms of corporate governance, can he also assure me that non-executives will be in a majority as they are on every public body which the Government have recently enacted?
Earl Howe
If the noble Lord will allow me, I will answer those questions in a moment. Amendment 101A would similarly duplicate existing provision by placing a duty on the NHS Commissioning Board to ensure that all CCG governing bodies meet the requirements for clinical and non-clinical representation. The board already has to do this; under proposed new Section 14C, the board can grant an application only if it is satisfied that the applicant CCG has made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under the Act. That would include regulations made under proposed new Section 14N providing for minimum levels of clinical and lay representation.
Amendments 170A, 175D, 175CA and 175CB seek to introduce alternative governance arrangements for CCGs. These amendments would remove the existing functions of the CCG governing body and, through the proposed new schedule, replace the governing body with both a board of directors and a board of governors. I was grateful to the noble Lord for explaining where this idea originated. However, the amendments do not propose functions for these boards to exercise. They concentrate almost solely on the form of CCG governance; they neglect the function. As to that form, there is much here which is already provided for in the Bill and in relation to a governing body. I should perhaps explain that our preferred approach is to set through regulations the key requirements in relation to the composition of the CCG governing body and the logistics of their qualification, appointment, tenure and so on. This will, most importantly, allow flexibility for the approach to evolve over time and in the light of experience.
Turning to Amendment 59A on the subject of the area covered by CCGs, in the light of our lengthy debate on this last week, a letter will shortly reach your Lordships to provide further information on the arrangements for geographic areas of CCGs. It includes some analysis of the key issues which I hope will be useful and reassuring. We accepted the Future Forum recommendation that the boundaries of CCGs should not normally cross those of local authorities. If a CCG wishes to be established on the basis of boundaries that will cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients; for example, to reflect local patient flows and to secure a better service for patients. The board will also be required to seek the views of emerging health and well-being boards. In addition, CCGs will have the flexibility to enter into lead or joint commissioning arrangements with other CCGs; for example, for commissioning of lower volume or more specialist services. I hope that this reassurance will satisfy the noble Lord’s concerns.
Finally, Amendment 92ZZA seeks to mandate the Secretary of State to make regulations imposing a ban on shareholders and employees of commissioning support organisations being given a seat on a CCG committee or governing body of a CCG—I assume that it is the governing body that the amendment refers to rather than the NHS Commissioning Board. We agree that there should be no conflicts of interest between a CCG and any commissioning support organisation that it uses. The support offered by such organisations should inform decisions made by CCGs, but we have always been clear that CCGs cannot delegate their duties or responsibilities. However, such an absolute ban would not take into account situations, for example, where a CCG may wish to invite individual employees from commissioning support organisations to provide expertise on a committee. The Bill already requires CCGs to have robust provision for managing conflicts of interest in how they discharge their functions.
It is clear from the debate that these amendments were proposed with the best of intentions, but I hope that noble Lords will feel that the points that I have made are sufficiently compelling to encourage them not to press the amendments.
I have a few questions that I would like to answer briefly. The noble Lord, Lord Hunt, suggested that the chair and deputy chairs of CCGs should be lay members. Each CCG must have at least two lay members. We are specifying that, and we have committed that one of the lay members of CCGs will be either the chair or the deputy chair of the governing body.
The noble Lord, Lord Rea, asked me how a CCG’s geographic area would be determined. The primary factor in establishing the CCG’s boundaries or geographic area would be the practices that made up the membership of the CCG. The NHS Commissioning Board must satisfy itself that the proposed area for a CCG is appropriate and that the CCG can commission effectively for that area. That is a very condensed explanation of what the Commissioning Board will be looking for.
The noble Lord, Lord Hunt, suggested that he could not understand how CCGs would be accountable. Accountability is a key area. There is no doubt about that and I share the noble Lord’s desire to get this right. We listened to the Future Forum when it said that there is a balance to be struck between the need for good governance and the need to avoid overprescription. Perhaps that is a generally accepted principle—I certainly agree with that. I think the amendment of the noble Lord, Lord Hunt, goes too far. However, we are absolutely clear that CCGs will be materially accountable in a number of ways. I could recite a number of ways that I have in front of me, but at this hour it might be appropriate for the noble Lord to receive that in writing from me. I would be happy to do that and to copy it round.
On the subject of conflicts of interest, we will be having a very full debate in the context of Clause 20 on conflicts of interest. I have a lot of material here, but essentially there are principally three safeguards in the Bill to prevent conflicts of interest: statutory requirements on clinical commissioning groups to have in place arrangements to manage those conflicts of interest—those have got to be set out in the group constitution; secondly, strengthened governance arrangements as regards the governing body, and I briefly outlined those; and specific provision for regulations to require that the board and the clinical commissioning groups adhere to good practice in relation to procurement and in commissioning healthcare services.
My noble friend Lady Jolly asked who will appoint members of the clinical commissioning group boards. We will work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. As I have indicated, the Government will issue regulations in due course, setting out in more detail the requirements for appointing non-GP members to the governing body.
The noble Lord, Lord Hunt, asked whether non-executives would be in the majority on boards. I am not currently able to give that assurance. We are still working with a wide range of stakeholders on the regulations for governing bodies. We are well aware of concerns in this area. I will take the noble Lord’s points very firmly on board.
Very briefly in this group, I would also like to speak to government Amendments 172, 173 and 175, which are minor and technical in nature. Amendment 172 clarifies that the remuneration committee of the CCG governing body has the function of making recommendations to the governing body on its determination of allowances payable under a pension scheme established by the CCG for its employees under paragraph 10(4) of Schedule 1A. Government Amendment 172 allows regulations made under new Section 14L(6) to make provision requiring CCGs to publish prescribed information relating to determinations of the allowances payable under a pension scheme. Government Amendment 173 makes provision for the board to publish guidance for governing bodies on the exercise of this function. I trust the Committee will join me in supporting these minor and technical amendments.
Health and Social Care Bill
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Lord Kakkar
My Lords, I support many of the amendments in the group. I do so as a biomedical research and clinical academic, therefore benefiting from many of the opportunities that the current systems for biomedical research in the National Health Service provide.
I start by congratulating Her Majesty's Government on having included for the Secretary of State for the first time in a health Bill responsibilities to promoting research. That is hugely important, because it allows us to secure what has been achieved to date in structures and funding going forward in the National Health Service.
There are, of course, anxieties, which we have heard in this important debate, which need to be addressed. Can the noble Earl provide clarification in three areas, notwithstanding the fact that the Bill already emphasises the responsibilities of the Secretary of State for Health? First, how is it is envisaged that the funding for biomedical research will be protected when that fund moves to the NHS Commissioning Board? Secondly, how will the clinical commissioning groups be responsible for promoting research in future, how will that be supervised by the NHS Commissioning Board, and will any form of instruction or performance measure be included in the supervision that the Commissioning Board provides for clinical commissioning groups?
Finally, how, within the proposed structure of the Commissioning Board, will there be encouragement and support for academic health science centres, as they currently exist, and in the future, potentially, academic health partnerships? They provide the opportunity both to drive forward opportunities for biomedical research to improve healthcare and the health gain for our population, and to drive forward the economic opportunities that attend the biomedical sciences industry in our country. However, they also drive forward opportunities for a broader population health gain through a focus on the tripartite mission of improved clinical care, education, training and research.
Lord Hunt of Kings Heath
My Lords, this has been a very interesting debate, and I am very grateful to the noble Lord, Lord Willis, and other noble Lords who have spoken in it very persuasively about the importance of research.
At heart, there are three particular questions that we put to the noble Earl, Lord Howe. First, how is funding for research to be protected? Secondly, how are we to ensure that strong leadership will be given from the centre? The third is the question of levers. What levers are there in this system to ensure that research is given a prominent place?
First, there can be no doubt whatsoever, as the noble Lord, Lord Willis, said, of the direct link between research and the quality of patient care. That must be at the forefront of our consideration. Secondly, he is also right about public health. Research into public health, evidence and epidemiology is vital if we are to improve the overall health of people living in this country. Thirdly, we have the contribution that research makes to UK plc, and specifically the contribution of the pharmaceutical industry.
When I chaired the competitive taskforce with the industry some years ago, we found that out of the 100 most important branded medicines at the time, 30 had been developed in the UK. Although the UK share of global spend on pharmaceuticals was about 2 per cent, our R&D contribution, including that of the industry, was about 10 per cent. I suspect that those figures have slipped a little since that report, but there is no question that the pharmaceutical industry in particular makes a huge contribution to our economy. We cannot be complacent about that in the future.
On the question of leadership, I was fortunate to be present at the recent annual conference of the NHS Confederation. I take the point made by the noble Lord, Lord Mawhinney, that, “They would say that, wouldn’t they”, when it comes to this rather foolish idea that somehow if you just leave it to them everything will be all right, but I recall a speech made by Dame Sally Davies in which she talked about the importance of research. She argued that the NHS itself has to make a greater contribution to research. This was not about funding; this was about NHS organisations recognising that research was important. It was a brilliant speech. It is essential that we continue to have that kind of national leadership in research funding.
There is a big question about what exactly the duty of the Secretary of State will be with regard to research if we end up with a highly devolved structure in which the levers left to the Secretary of State will clearly be limited. It is clear that the day-to-day concerns of most people in the NHS are going to be diverted into a market-orientated culture, where, frankly, the kind of collaboration that research requires across NHS organisations may well be regarded as collusive behaviour by economic regulators and the competition authorities.
I speak with some experience of economic regulation. Ofgem was the last economic regulator with which I had regular dealings as Minister for Energy. What struck me was that regulators’ concerns are much more about day-to-day issues than they are about the long-term viability of a particular industry. We found, with Ofgem, that we had to change the law to make sure that it had some regard to future customers rather than simply being concerned about the actual price of energy to the customers of today. If we have regulators whose main concern is about driving day-to-day competition, I wonder where issues of research come into play.
Lord Hunt of Kings Heath
Yes my Lords, but so was the overriding duty of Ofgem to the customer. The problem is how a regulator defines that responsibility. Since the Government are intent on this very foolish drive into competition, I believe that the risk is that the regulator will also be driven into thinking that that is its most important aim.
There are some real questions here, which I put to the noble Earl, about ensuring that there is sufficient concern, investment and leadership on the question of research. I would also ask the noble Earl how we protect and ring-fence the research budget. I ask him to think of the national Commissioning Board, faced with a hard winter, huge public concern and political pressure about funding, and the temptation to dip into the research budget. We all know that that happens. My noble friend Lord Warner and I were debating earlier who was responsible when there was real pressure on the training commissions. I thought it was my noble friend, actually, but we can continue to debate that.
Lord Warner
My Lords, things went downhill when I left at the end of December 2006.
Lord Hunt of Kings Heath
My Lords, with the greatest respect, I will not go into who left me the junior hospital doctors issue. He will recall that my first day as a Minister was actually the first day of Committee on the glorious Mental Health Bill, and that was a blessed memory, I must say.
My experience was that the health service let us down on training commissions, because at the time they were facing a financial difficulty and it was all too easy to cut those commissions. The result was that Ministers essentially took it upon themselves to put central controls back into the system. My concern is that if the NCB simply has research in its budgetary responsibility and there are severe pressures, it is just too easy to dip into it. The problem is also, as my noble friend Lord Warner said, that, as we know, sometimes research budgets take a little time to kick in, but once you do it you are funding for three, five, seven years. Again, in each financial year, an amount is probably available in the winter that had not been spent. The problem is that you will never get that resource back again.
The second point that I would like to put to the noble Earl is about clinical commissioning groups. How do we ensure that their commissioning decisions support research? My noble friend Lord Turnberg said that research is no cottage industry, but clinical commissioning groups are the epitome of a cottage industry. He also referred to the fact that GPs have little history of undertaking research and commitment to it. Yet we are handing them billions and billions of pounds, quite remarkably, on the basis of no evidence whatever that I can see that they are fitted to discharge that responsibility. I ask the noble Earl where we can have assurance that clinical commissioning groups will be prepared to invest in services where there is a strong research base.
The third challenge is to NHS trusts and NHS foundation trusts. The noble Lord, Lord Ribeiro, put his hand on it when he talked about the reduction in the number of clinical academic posts. I believe that NHS trusts have a great role to play in encouraging their clinicians and in encouraging joint posts with universities. Again, I worry that the focus on job plans and the productivity of clinicians will discourage research because the emphasis will be on patient throughput. How are we going to ensure that that does not happen?
Lord Hunt of Kings Heath
I should apologise to the noble Earl. The amendment was put down to probe the issues.
Earl Howe
I am most grateful to the noble Lord. In that case I shall not dwell on it at great length.
Amendment 40A, tabled by the noble Lord, Lord Turnberg, and other noble Lords, would require the Secretary of State to have regard to the need to promote the use of information derived from patients for research purposes while taking full account of the confidentiality of information. I welcome the intent behind this amendment, but it is in fact unnecessary. We recognise the important role that patient data, if treated carefully and confidentially—and that I hope goes without saying—can play in improving the quality of health research. I spoke earlier about our consultation document An Information Revolution, in which we propose that the most important source of data is the patient’s or the service user’s care record generated at the point of care. Information in these records also provides much of the data needed for other secondary purposes: for commissioners, for managers, for care professionals and, importantly, for research. We are using the responses that we received to the consultation, together with the findings of the NHS Future Forum, to develop an information strategy for health and social care in England. This will highlight how increased transparency and greater access to information supports improvements in care and research. It is the major work stream. I can reassure the noble Lord that we value the use of patient information where confidentiality is appropriately protected as a source of research and that we are looking at ways to embed its use in our information strategy.
Health and Social Care Bill
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Lord Patel
My Lords, there is no conflict when I use the word “clinical” in recognising that it would encompass the totality of clinical and social care. The problem will arise that while the evidence exists to be able to write clinical quality standards, the evidence to write social standards is lacking, and we may have to develop those. That is why a distinction is made between the two. In terms of immediate outcomes for patients that are seen for medical care, the clinical quality standards will make the difference. That does not mean that I do not recognise clinical and well-being together—and I think that all doctors would recognise that. It is not medicalisation that I am after by using the term “clinically”.
Lord Hunt of Kings Heath
My Lords, this has been an interesting series of amendments. The noble Lord, Lord Patel, made a very important point about the influence that legislators can have in drafting legislation on the culture of the NHS. He speaks with great experience because of his work in Scotland on the development of clinical standards, and I am sure he is right to emphasise the words “health” and “clinical” in adding to our understanding of what we seek from the National Health Service.
The point raised by the noble Baroness, Lady Barker, is very interesting. This is meant to be a health and social care Bill, although there is very little about social care in it. Indeed, the only provisions ranging around social care are bad provisions. Remarkably, we are proposing to abolish the General Social Care Council, which ought to be an uplifter of standards among social workers. I give notice that I intend to thoroughly oppose these provisions and place the regulation of social workers into a health body. I look forward to the support of the noble Baroness, Lady Barker, on that when we come to it. I would have thought that the way through is either to add well-being to this part of the Bill or to say “health, clinical and other outcomes” to meet the valid point raised by noble Baroness.
My noble friend Lady Bakewell is very keen in her Amendment 18B to ensure that in securing the outcomes set out in the Bill, we,
“should not exclude sections of the population”,
on grounds of age. We look to the Minister to give us some reassurance on my noble friend’s point about the overarching indicators used extensively in the department and the health service, which go up to only the age of 75. It is not good enough to say that the data are still under development and therefore we will not worry about statistics on the over-75s. One would like to think that those indicators will be revised to embrace people over 75.
Amendment 16A, which is my own amendment, relates to the efficiency of the service. It seeks to add “efficiency” to the criteria that need to be considered. I would be interested to know from the noble Earl why efficiency is not mentioned in line 23 on page 2 of the Bill. My argument would be that a measurement of a service’s effectiveness may be of only limited value. One example might be the fraught question of new drugs and treatment being developed by industry and marketed indirectly to patients, for example through the sponsorship of charities that promote the case for the provision of new treatments in the NHS, and there is a strong case to make those treatments improve the effectiveness, safety and quality of experience. However, if you do not also have to consider efficiency, is there not a risk that you will not look at value for money or productivity and, in the end, not give a rounded analysis of a particular new treatment or technology?
Amendment 19, in the name of the noble Lord, Lord Patel, deals with the standards prepared by NICE under Clause 231. I hope that the noble Earl can clarify the status of NICE standards and guidelines. I have a later amendment on this matter, as do my noble friend Lord Warner and the noble Lord, Lord Patel. We have been concerned by suggestions that the Government are seeking to downplay the role of NICE and the statutory nature of its guidance on technology appraisals. I would be very grateful if the noble Earl could reassure me on that.
I remind the noble Earl that NICE was established because of the traditional delay in the health service when a treatment has been proven to be cost-efficient and effective. There was always reckoned to be a long delay from the time when it was proven to be cost-effective, efficient and clinically effective to the time when it generally available in the National Health Service. NICE guidance was designed to speed up the adoption of such proven new treatments, technologies and drugs. I am concerned about any suggestion of returning to the bad old ways when it was up to each clinical commissioning group simply to decide on a new technology and the group not having to follow the guidance set out in the NICE technology appraisals—if that is what they are called; I think we have probably moved on from that terminology. We will of course return to that later on in the Bill, but some assurance would be welcome.
I turn to my noble friend Lord Warner’s Amendment 109. I never understood the Opposition’s opposition to waiting time targets in the NHS. I remind the Minister that when his Government last left office they had the patients’ charter, which had a waiting time target of 18 months that they did not achieve. We got it down to 18 weeks, which had a hugely beneficial impact on patients. There is no doubt, if you look at regular polling, that the NHS was in very good condition in 2010 because to all intents and purposes the dreadful waiting that had been such a product of the NHS over many decades had been radically reduced.
We know that there is a sense in the health service that the Government are no longer worried about waiting times. I have no doubt whatever that if the pressure is taken off, waiting times will start to rise again. That might suit the Government because of the funding issues that they are confronting the NHS with, and it would certainly suit the private sector, which we know does well out of long NHS waiting times, but it will do patients no good at all. I do not know how far my noble friend Lord Warner intends to take this, either now or at a later stage, but it is important that we say in the Bill that we are concerned about the speed of access to services.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Patel, and other noble Lords for introducing this group of amendments. I agree with the noble Lord, Lord Hunt, that this has been an excellent debate with a shared commitment to ensuring that quality sits at the heart of the Bill. I find that heartening. I recognise the long experience of the noble Lord, Lord Patel, in defining what quality looks like.
The grouping revolves around the definition of the duty of quality and how the term “quality” is addressed throughout the Bill. As was discussed in earlier debates, the duty of quality enshrined in the Bill is derived from the report of the noble Lord, Lord Darzi, High Quality Care for All, published in 2008. The noble Lord set out that quality could truly happen only when three different factors were present: safety, effectiveness and patient experience. That definition was widely welcomed at the time and over the past three years has become valued across the NHS.
The definition did not come out of the blue. The noble Lord’s review was produced with the NHS, with patients, clinicians and managers, using the strategic visions developed in each of the 10 strategic health authorities. Its definition of quality—effectiveness, experience, safety—has survived even the electoral cycle. Indeed, one of our first priorities as a Government when we came to power was to build on the noble Lord’s work. We did this through publishing a consultation paper and then following it up with the first NHS outcomes framework, published in December last year. Respondents to the consultation on the outcomes framework were highly supportive of the continued use of the definition of quality and the fact that the framework sought to measure patient-reported outcomes and patient experience as well as clinical outcomes.
The question we have to ask ourselves about the amendments is simple: does the definition need to change? My view is clear: we should stick with the original definition. However well intentioned the amendments are, there would be risks attached to them.
I shall start with Amendments 19, 110, 134, 179 and 181. The intention, if I understand it correctly, is to specify that the duty of quality should be restricted to clinical matters in order to ensure a focus on clinical quality and outcomes for patients. I understand the noble Lord’s arguments but my fear is that these amendments would have the effect of narrowing the duty of quality and losing the integrated approach that it embodies. Let us consider this with regard to quality standards, covered in Clause 231. Quality standards, as I have already said, bring clarity to quality, providing definitive and authoritative statements of high quality care that are based on the evidence of what works best. That idea opens up the opportunity for quality standards to cover an integrated care package, from public health interventions in primary care to rehabilitation and long-term support in social care, thereby supporting the integration of health and social care services. I fear that we would lose this integrated approach if we were to restrict the Secretary of State’s obligation to looking only at clinical standards.
Health and Social Care Bill
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Lord Phillips of Sudbury
On the question addressed to me, I do not know whether I can give an off-the-cuff precise answer to the noble Lord, but my apprehension is that, in NHS hospitals with private facilities or a private ward, there is an attempt to deliver comparable clinical care to private and NHS patients. As the noble Baroness has just said, there are cases where that plainly does not happen, but that is the ideal and it is achieved in many hospitals—I suspect that the Royal Marsden is one of those. All that the amendment seeks to do is to put that ideal into the Bill so that it is also law.
I do not want to waffle on now about the delivery of that ideal in practice—I say “waffle” because what I would say might not be impressive to you gentlemen who are treading the wards—but I believe that it is possible and can be done. I am encouraged by my three co-signatories to the amendments to believe that this can be done and delivered. As I said, that may require an amendment to the provisions of the Bill that deal with Monitor so as to give Monitor an explicit role in policing this requirement of equality of clinical treatment and care.
Lord Hunt of Kings Heath
My Lords, I hope that the noble Lord, Lord Phillips, will continue to waffle on, because it seems to me that he has put his finger on the real concerns that so many have about this Bill and why people are so opposed to it. The continuing puzzle is why we have this Bill at all when the NHS was in such good condition at the time of the last election. The noble Earl, Lord Howe, might get cross that I come back to this point, but that puzzlement is shared by almost everyone working in the National Health Service and certainly by most patients.
We do not understand what this Bill is all about, unless the noble Lord, Lord Phillips, is right that, essentially, this is about taking the NHS on a journey to become a second-rate service for the poor and needy. One can see the building blocks that are being put in place. First, the Secretary of State seeks to downplay his or her responsibility for the provision of services. Secondly, we see the NHS starved of resources.
The NHS—I should perhaps remind the House that I chair an NHS foundation trust—is supposedly receiving a real-terms increase in its resources, but I can tell the noble Earl, Lord Howe, that that real-terms increase has not reached the service. I do not know where that money is. Either the money is being kept as a bung for GPs and clinical commissioning groups or for the costs of the reorganisation and redundancies that will need to be paid, or, perhaps, it is being held in a fund that will be let out when the NHS reaches crisis point this winter. I do not know, but I can tell the noble Earl that, up and down the country, NHS trusts are facing considerable financial challenges. It can be the only explanation for why the Government are putting so much less emphasis on dealing with waiting times. We had the amendment from my noble friend Lord Warner early on. I do not think the noble Earl was able to convince the House that this Government really are concerned about the waiting times for patients. The risk is, as my noble friend Lady Armstrong said, that we will go back to the bad old days of long waiting times, when consultants faced with patients encouraged those patients to go for private treatment. There are so many examples of this perverse practice that I fear we are going back to it again.
Another factor in where we are going is the noble Earl’s refusal to refer to NHS trusts and foundation trusts. All we hear from the Government is this generic term “provider”. Of course we understand that, because it is the mantra of Ministers that there is no distinction; the qualification is qualified providers. So the NHS institutions are simply to be seen as a provider, no different from private sector providers. No wonder Ministers are prepared only to talk about commissioning as being part of the NHS. It is almost as if the provider side has been completely written out of the script when it comes to the National Health Service. It is quite clear that, notwithstanding the fact that Monitor will also have to have a role in integration, its real emphasis is on promoting competition. When one considers the issue of the private patient cap, one has to do it in the context of where one thinks the Bill is going.
I must say that I disagreed for once with the noble Lord, Lord Walton. I have very great reservations about the removal of the private patient cap. I certainly understand that there is a need to review how it is working. If there is local support through the members of foundation trusts or the governing body, maybe even through the local health and well-being board, to remove the cap to that extent, I can see that there may be a case for it. However, there needs to be some control to ensure that NHS organisations do not go mad and seek to have a huge increase in their private patient income, because that would be bound to distort their whole behaviour and how they approach NHS patients. I well remember when I first worked at the Nuffield Orthopaedic Centre in Oxford, where we had a private patient ward—it was called the Mayfair ward, for some reason. I am sure that the doctors and nurses there would say that the clinical care was just the same, but my goodness me it was very interesting to see the succession of the matron, the senior physiotherapists and the senior consultants walking down to that ward and the amount of time they spent there.
Having a large amount of private care within an NHS organisation is almost certain to distort how that organisation approaches NHS patients. That is why this group of amendments is very important. I hope that the Minister will consider coming back on Report and taking part in our further discussions about the private patient cap. The noble Earl, Lord Howe, should be in no doubt that there is widespread suspicion throughout the National Health Service at the Government’s motivations in relation to this Bill. This is one of the core issues that lead to that suspicion.
Earl Howe
The noble Lord, Lord Hunt, should be a little bit careful before he comes to this Committee and speaks as though it were Second Reading and as though he were not chairman of the Heart of England trust, which I do not doubt has a goodly number of private patients in its midst. He should bear in mind that it was the last Labour Government who introduced private sector involvement into the NHS in 2007; the independent sector was paid on average 11 per cent more than the NHS price.
Lord Hunt of Kings Heath
I do not know why the noble Earl mentioned the Heart of England NHS Foundation Trust. I declared my interest but I am clearly speaking on behalf of the Opposition here. I thought that was a really unworthy remark. As for the general point being made, yes, we invested in the private sector. Why did we do that? It was because we wanted to tackle waiting times. Why did we have to tackle those? It was because there was a real issue in some hospitals with consultants and their productivity. That is why we introduced independent sector treatment centres and why waiting times were reduced to 18 weeks. As for this issue, the noble Earl says that I have gone outwith this amendment but I refer him back to the comments of the noble Lord, Lord Phillips, who talked, quite rightly, of the risks of a two-tier service. That is exactly the issue of concern that I have with the heart of the Bill.
Earl Howe
I have no issue with the private sector acting to provide services for NHS patients, and never have had. My point was that it is a bit rich on the part of the noble Lord to attack the private sector in the way that he did. It is also a bit rich to say that the NHS has been starved of money. If the country had been foolish enough to elect the Labour Government at the election last year, the NHS budget would have been cut. It would not have been kept abreast of inflation, as we have done. It is absolutely monstrous for the noble Lord to pretend otherwise and the caricature that he has given us of this Bill, and what it does, does him no service whatever.
I would like to move on to my noble friend's amendment. Amendments 24 and 30, introduced by my noble friend, would impose on the Secretary of State a duty to have regard to the need to prevent inequalities of treatment and healthcare developing between NHS and private patients. To start with, it is helpful to have clarity around the definitions as there is sometimes scope for misunderstanding. I believe that the amendments are referring to the potential for inequality between services that are paid for by the NHS and those that patients can pay for privately within an NHS hospital. As my noble friend knows, that is of course not the same as the issue of NHS-funded services being provided by private or voluntary organisations. A patient funded by the NHS is an NHS patient, wherever he or she is treated.
In addressing the issues raised by my noble friend, I feel that I have to begin with a basic point. I am not sure, although my noble friend may yet convince me, that it is a matter for public policy to have a target of narrowing the outcomes between NHS and private-funded healthcare. I understand that many people feel uncomfortable at the idea of private-funded healthcare, especially within an NHS hospital. It has always been a controversial subject for Parliament yet the truth, as we heard from my noble friend Lord Ribeiro, is that private healthcare has always coexisted alongside the NHS. Some people will always wish to pay to be treated in more comfort or more quickly than a publicly funded healthcare system can afford and, at the margin, there will always be some treatments that are clinically available but which are not considered cost-effective for the NHS to fund. Some people will want to pay for those and, in a free country, I do not believe that it is the role of the Government to stop that.
However, I do not believe that there is a gaping chasm between the types of clinical treatment offered by the NHS and by private healthcare. The NHS aims to offer a comprehensive health service and, by comparison with many other countries, the private-funded healthcare sector here is relatively small. This illustrates the high degree of public confidence in the NHS as an institution, in that relatively few people decide to pay for a private alternative. Furthermore, rather than making comparisons with private healthcare, we believe that the Secretary of State should be focusing on improving the quality and equity of the services available to those who use the NHS. That is why the Bill introduces for the first time a duty to have regard to the need to reduce health inequalities, and that clearly emphasises our commitment to fairness across the health service. It also recognises the reality that there are many stark variations in quality and access within the services that the NHS funds before we start looking at the comparison between NHS and private healthcare.
In addition, the Bill places a new duty on the Secretary of State to exercise functions with a view to securing continuous improvement in the quality of services. The Secretary of State will therefore be responsible for doing all that he can to ensure that the NHS provides the best quality care to all its patients, no matter what treatment they are receiving or when they are receiving it. The aim of the Government and the Bill is to create a system that delivers world-class healthcare and healthcare outcomes for all NHS patients.
I understand that there is some residual concern that private healthcare might represent a better deal for patients treated by NHS providers but we do not believe that this is the case. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would do that. We have in place a robust system of service quality regulation that the Bill strengthens and makes more accountable. Fundamentally, the GMC’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. This means that if a doctor were treating private patients to a better clinical service, they would be in breach of these principles and could therefore be putting their registration at risk.
Similarly, any doctor who inappropriately attempts to persuade patients to use private services for their own gain would be in serious breach of medical ethics. For example, the department guidance on NHS patients who wish to pay for additional private care says this:
“NHS doctors who carry out private care should strive to avoid any actual or perceived conflict of interest between their NHS and private work”.
Indeed, the GMC’s own guidance states:
“You must give patients the information they want or need about … any conflicts of interest that you, or your organisation, may have”.
It makes the point again, in Good Medical Practice:
“You must not put pressure on patients to accept private treatment”.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(12 years, 6 months ago)
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Lord Alderdice
Sadly, just a little late, but there we are. The point is that when we think of medicine and nursing, we largely think about people who are educated at public expense—partly within the healthcare system and partly within the higher academic institutions—and employed largely in the health services but, in some cases, outside. In the area in which I work, I am afraid the truth is that the health service has not tended to provide the training for these people. In many cases, psychotherapists, counsellors, and HPC-approved people such as art therapists and music therapists, have had to train at their own expense because the health service has not provided the training. Some of them have worked in alcohol and drug addiction services, which the health service uses; or they have been used in suicide and self-harm services, which the health service uses; or they have been employed in general practice or in psychiatry and psychological services, which the health service uses. The health service, however, has not paid for the training of these people.
When I see amendments that refer to the maintenance of education and training, I see an ambition that is too small. I see a sense of self-satisfaction—of, “We’ve got to maintain what we’ve got because it’s the envy of the world”, rather than, “Some parts of the world have been moving substantially ahead of us, and we have to do some work to catch up with them”. Therefore, I welcome the fact that there are amendments on this front, but also that the Minister has gone a little further. He is not just talking about the health service; he is talking, in the words of this amendment, about anyone who may be,
“providing services as part of the Health Service”.
He is also saying that the Secretary of State will need a greater area of responsibility to ensure a wider provision of training.
Even within those services, which have been provided for the training of doctors and others, I have noticed in recent years that it has become more and more difficult for doctors to continue to provide for their own continuing professional development—which is an aspect of education and training—and to be free to provide supervision and training for others. The pressure is on them to provide the direct clinical service, and not to be free to commit themselves to education and training. I welcome these amendments, particularly that of my noble friend the Minister, which say, “No, the Secretary of State will have to undertake this”.
I come to one final matter because I know the clock is going along. The noble Baroness, Lady Finlay, raised concerns about those who are outside direct healthcare provision having to demonstrate that they are providing training. I understand that entirely, and there is a lot to be said for it. However, one needs to be a little careful. In my service, for example, it was clear that the NHS was not going to provide care and treatment services, and it was not going to employ more people. So the question for me was this: how did I find a way, by using a small number of experienced and highly trained people, of creating a multiplier effect out in the community? The only way I could do it was by taking on and supervising some people who were working in the voluntary, community and other sectors so that they then had the capacity to train themselves or anyone else. I reduced the amount of clinical service I was providing directly by taking them on and supervising them. Then, effectively, I could treat a whole raft of people whom the health service was not prepared to provide the money for.
If we make it a rule that those often small NGOs and charitable groups have to account for the training of all sorts of other people, one simply makes it impossible for them to make their provision. So I understand entirely what the noble Baroness has said and I have a great deal of sympathy for the sentiment here, which of course is what is important, but I would simply caution against making such a strict rule that it becomes impossible for smaller providers who are not able to provide training—and could not pay the extra to do it. That would prevent some of us within the health service using them to provide the range of services which, until now, the health service has not provided. The Minister has been given some credit for this and I commend him and other noble Lords who have brought forward this proposal for the Bill, but let us build on it and try to be ambitious about what we can say in this Bill, never mind the one that might be coming down the road a little later.
Lord Mackay of Clashfern
My Lords, I support the view that this is an extremely important issue. It is also extremely difficult and there is a lot to be done to get this right. I am an honorary fellow of two Scottish medical colleges. The contribution of Scotland to the training of doctors and nurses has to be kept in mind, and many other parts of the world also contribute to our NHS training, particularly at the graduate stage. It makes it extremely difficult to know how to cater for all the possibilities and I wish my noble friend every success in coping with this problem.
Lord Hunt of Kings Heath
My Lords, as this is the first day of a new stage of the Bill, I am required to start by declaring my interests. I am chair of the Heart of England NHS Foundation Trust, president of the Royal Society of Public Health, the Fluoridation Society and the Health Care Supply Association, consultant trainer with Cumberlege Connections and member of the advisory council of Easy Care.
The noble Lord, Lord Cotter, put his finger on it when he spoke of concerns about the quality of nursing care in some parts of the NHS. This has led in the past few months to considerable debate about the quality of education and training of nurses and indeed healthcare assistants. We will, of course, be coming back to that issue later in Committee. However, it has served to illustrate the critical importance of education and training of the healthcare workforce, be they doctors, nurses, AHPs or indeed even psychotherapists.
My Amendments 6 and 44 seek to ensure that the Secretary of State exercises leadership and responsibility in this area. This is very important in the context of the Government’s intention to create a much more diverse and disparate healthcare system in the future. It is essential that we protect the integrity of a national approach to professional education and training.
Earl Howe
I am surprised by that criticism because that is designed to capture trainees, who may not have a guaranteed job at the end of the day. If you simply refer to people who are already employed, you surely cut that cohort out of the equation. That is the purpose of those words, and I think they are entirely appropriate.
Lord Hunt of Kings Heath
I return to my noble friend Lord Warner’s intervention. In the case that he mentioned, it was I who was summoned before the Health Select Committee to explain what we were going to do about the problem. We intervened and told the SHAs that they jolly well had to sort this out. I do not see, under the arrangement that he is proposing, who on earth is going to be able to intervene.
As the noble Lord, Lord Owen, suggested, I suspect that an intervention against Health Education England will be very rare indeed, in terms of being able to be comprehensively assured that HEE had failed in its duty. Indeed, there is surely a risk that if you have a narrow quango, such as HEE, solely concerned with education and training, it will not be concerned about resource issues or about the duty of the Secretary of State to promote or assure a comprehensive health service; only the Secretary of State himself can come to conclusions about the overall direction of the health service; only the Secretary of State can balance the conflicting demands of education, service provision and resources. There is a great danger of seeking to push all these responsibilities offshore, because when trouble comes—and trouble will come—it will be the Secretary of State whom the public and Parliament will expect to intervene. At the moment, I cannot see how, under this system, if things go wrong, they are to be put right.
The Earl of Listowel
I take the noble Lord’s point, but I also think of the case of the Youth Justice Board, which has been a very successful non-departmental body and has improved outcomes for young people in the criminal justice system significantly. There has been concern from the Secretary of State responsible for criminal justice about the accountability of the Youth Justice Board, which is shortly to be wound up—well, depending on the views of your Lordships. The virtue of the Youth Justice Board is that it is a great centre of expertise in the area of youth justice. Its chair and board have great experience: one member of the board is a judge in the youth court, another is the chief executive of a children’s charity. The point is that there is great virtue in distancing the Secretary of State to some degree—for instance, the education, perhaps, of health professionals—and giving it, if the board is chosen well, to people of the right calibre.
The other side of that is that sometimes the Secretary of State will intervene too often and detrimentally to the education of health professionals. In fact, vesting authority in a board which is well chosen and has the full support of health professionals and keeping the intervention of the Secretary of State to the minimum may ensure better continuity in the education and training of the workforce and better outcomes.
Lord Hunt of Kings Heath
My Lords, surely there is a very great difference between the Youth Justice Board, the abolition of which is greatly to be regretted, and Health Education England. The Youth Justice Board has to embrace the whole of the responsibility for youth justice. What the noble Earl, Lord Howe, is suggesting with Health Education England is establishing a quango which will have a very narrow focus on education and training. The Youth Justice Board is concerned with that, but is also concerned with the provision of custodial places within our prison system. That is very different.
The Earl of Listowel
I thank the noble Lord. I can see the difference and I thank him for that helpful correction.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(12 years, 6 months ago)
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Lord Hunt of Kings Heath
My Lords, two minutes before time. I first declare an interest as chair of the Heart of England NHS Foundation trust, president of the Royal Society of Public Health, the British Fluoridation Society, and the Health Care Supplies Association, a health policy consultant and trainer with Cumberlege Connections and member of the National Advisory Council, Easy Care Foundation. But I speak for the opposition Front Bench.
The noble Earl enjoys huge respect in your Lordships' House. I well recall the many debates over four years that we have had across the Dispatch Box in which the noble Earl from this position cautioned me about the ill effects of the continuous restructuring of the National Health Service. Yet it is on the noble Earl’s watch that the health service is now facing the most turbulent time in its history. It is unsought after by patients, in direct contradiction of Mr Cameron's pledge of no top-down reorganisation of the NHS and is driving a coach and horses through the coalition agreement, as the noble Baroness, Lady Jolly, reminded us yesterday.
At the end of this wonderful debate, there is one question above all others that I and, I believe, many other noble Lords, want to put to the noble Earl. It is simply the question, “Why?” Why, when the NHS is facing this huge efficiency challenge of finding £20 billion, is it being diverted by this disruptive reorganisation? Why are millions of pounds being wasted on redundancies and the set-up costs of the new system? And why, when the Government inherited the NHS in the best condition it has ever been, are they tearing the whole service up by its roots?
I say to the noble Earl and the noble Lord, Lord Alderdice, that I did not recognise the health service that he talked about. We should go back to 1997, when we inherited the Conservatives’ Patient’s Charter. Noble Lords may recall that this aimed for a maximum of 18 months’ wait for hospital appointments. They could never achieve it, but we did—and more. Eighteen months tumbled to 18 weeks—a crumbling edifice was transformed into hundreds of new hospitals and there was a major emphasis on improving health outcomes.
We developed the Expert Patients Programme, national service frameworks to improve integration of services, and accessible services such as walk-in centres and NHS Direct. I do not apologise for referring to what my noble friend Lord Winston said about the verdict of the US think tank, the Commonwealth Fund. It singled out the NHS as top of the class, in the one country where wealth does not determine access to care, since it provides the most widely accessible treatment at low cost. I must say I was very disappointed that, when the noble Earl’s department was asked to comment on that assessment, instead of lauding the achievements of the NHS, it scratched around to identify problems. That was very disappointing indeed.
Yesterday, in his careful speech, the noble Earl sought to justify the Bill because of rising demand and treatment costs, and the need to improve efficiency and outcomes in areas such as stroke and some cancers. He is right; these are considerable challenges. But I repeat the question asked last night by his noble friend Lord Tugendhat: why did he not build on what he inherited? It was the Labour Government who enshrined patient choice in the NHS constitution; we introduced practice-based commissioning. Let me say to the noble Lords, Lord Kakkar and Lord Alderdice, that our disagreement with the Government is not about patient choice, it is certainly not about clinical involvement—I absolutely agree on the need for this—and it is not about devolved decision-making. My whole argument is with this expensive and bureaucratic reorganisation that they have determined on.
We all watched with interest the listening exercise and the deliberations of the NHS Future Forum, led by Professor Steve Field. It is true that the Government produced loads of amendments at a late stage in the other place. The problem is that those amendments, when combined together, proved to be of little substance. Let us take the Secretary of State’s responsibilities to provide comprehensive services. In this Bill, the Government will continue to water down those responsibilities. The noble and learned Lord, Lord Mackay, described that as foundational. Yesterday, the noble Earl said that the fact that the Secretary of State delegates so much responsibility to other bodies shows that the current legislation is not fit for purpose. The fact of that delegation is recognition of the Secretary of State’s responsibility to Parliament for the spending of more than £120 billion a year. When trouble arises, whether it is a public health disaster such as BSE, or perhaps a clinical safety issue such as occurred at Mid Staffordshire NHS Foundation Trust, it is the Secretary of State whom we look to to account to Parliament.
I understand why some noble Lords are attracted to this part of the Bill; they want to take politics out of the NHS and they want to prevent micromanagement by Ministers. But some of us are old enough to remember the glory days of the nationalised industries and the tension between the chairman of the board and the Minister responsible. In the end, it was the Minister who was always held responsible by the public. I thought the noble Lord, Lord Mawhinney, put his finger on it yesterday. He complained to Ministers through a parliamentary Written Question about the merger of local primary care trusts, and he found his complaint referred back for an answer to the very official who had driven that decision in the first place. The noble Lord had better get used to this because that is the architecture contained in this Bill. It is about Ministers evading their responsibilities. In the end, I would rather be overseen by a Minister properly accountable to Parliament than by a quango whose accountability is somewhat tenuous.
Despite the Future Forum, a huge gamble is to be taken with clinical commissioning groups. Billions of pounds will be given to GPs, without any proper accountability to the public or any expertise in major commissioning decisions. The doctor-patient relationship goes to the heart of general practice, but neither the Future Forum nor the Government seem to show any signs of understanding the ethical tension between the role of GP as champion of the patient and the role of GP as rationer of services through commissioning; and neither will patients. What are the potential conflicts of interest if the clinical commissioning group places contracts with GPs in their group, or the use—as we saw last week at the Haxby Group Practice in Yorkshire—by GPs of their NHS patient list to promote their own private services? What does that do to the doctor-patient relationship?
Then we come to the issue of competition and the role of the private sector. I agree with my noble friend Lord Hutton that both have their place in the NHS, provided that they are properly managed. I have no problems with that at all, but I do not want to see destructive competition put at risk essential collaboration between neighbouring hospitals or the cherry-picking of services, which could harm the viability of many of our NHS services. Nor do I want to see the loss of the altruism that is characteristic of so many people in the NHS. My noble friend Lady Kingsmill, former deputy chairman of the Competition Commission, said yesterday that competition red in tooth and claw has its limits. Does the noble Earl agree with that? On the issue of competition and the use of the private sector, at heart it is a question of trust, and in essence the Government are simply not trusted. I, too, share the concern raised by the noble Lord, Lord Clement-Jones, that European competition law could bite in unexpected ways.
There is also real confusion about the role of the economic regulator Monitor. Yes, the Government have nuanced the role of the regulator, but it is still to be given anticompetitive responsibilities. As the King’s Fund has said, concerns remain about the extent of competition in the future NHS and its impact on integrated care, let alone on its relationship to social care. So the Future Forum has not changed the core principles. All that has happened is tinkering at the edges while sowing the seeds of great confusion in the NHS. We see a huge absorption of power by that giant of all quangos, the NHS Commissioning Board, so it is now going to get a massive slice of the commissioning budget, strong control of the clinical commissioning groups and direct contracting with every single GP, dentist, ophthalmologist and pharmacist in the country— thousands and thousands of them, all in contract with the NHS Commissioning Board. I am a great admirer of Sir David Nicholson, but I am alarmed by the lack of accountability of the board. It does not even need to meet in public.
This is just one aspect of a confusing and flawed architecture. What about the joint responsibility of the Commissioning Board and Monitor, the economic regulator, for tariff setting? It is clouded in ambiguity. What will be the relationship between Monitor and the quality regulator, CQC? With money tight and getting tighter, there will be an inevitable tension between the financial health of an institution and the safety and quality of services. Who will moderate that tension?
We now have the Francis inquiry into the mid-Staffs NHS trust. I would have thought that it might have important things to say about that. I would ask the Minister whether it would not be prudent to await that before rushing into these problematic changes.
We then come to the local level. Here the architecture is even more confusing. The King’s Fund has said that the major reconfiguration of hospital services is urgently needed for clinical and financial reasons. These are the real reforms that are needed today, but who will give them a green light? Yesterday, the Minister accused the last Government of creating layers of administration. That is a bit rich when you look at what he and his colleagues have created. Which body will sign off the reconfiguration of services at the local level? Is it to be the putative clinical commissioning groups, yet to be authorised, or the existing primary care trusts, or the extra-statutory clusters of PCTs that have assumed enormous power to themselves, or perhaps the local offices of the NHS Commissioning Board, which are an inevitability? What about the commissioning support units, another initiative, which apparently are to be set up in each area to support the clinical commissioning groups in their commissioning responsibilities, or the local authority health and well-being boards, which will be given enhanced roles in relation to commissioning, or perhaps the local authority overview and scrutiny committees, which will still be able to refer major service changes? The clinical networks will presumably want a say, and the clinical senates will certainly want to get involved.
The Minister said that he wanted to reduce bureaucracy and remove the vacuum in decision-making. These provisions do the opposite; they have created a monster where opportunities for delay and buck-passing will be legion. No wonder that almost every noble Lord who has spoken has called for more scrutiny. Should the noble Lord, Lord Owen, put his Motion to the vote, we will certainly support him.
I listened with great interest to the noble and learned Lord, Lord Mackay, who argued that because this issue of the powers of the Secretary of State are foundational, as he described it, if we were to accept the Motion proposed by the noble Lord, Lord Owen, it would be difficult to deal with the rest of the Bill, because a vacuum would be there. But there is plenty for us to debate were the noble Lord, Lord Owen, to be successful. I would pray in aid the police Bill. The noble and learned Lord will recall that on the first debate, on the first day of Committee, the House voted to take out essentially the core clause in the Bill. We had many happy days debating the rest of the Bill, and I do not think that your Lordships found themselves at all inhibited by that.
Even at this late stage, I hope that the Minister will get up and say that he will accept the Motion from the noble Lord, Lord Owen. The Opposition are quite happy to agree with the usual channels the number of days that the Bill should be in Committee and we are quite happy to agree a date by which Committee stage should be completed. You cannot say fairer than that. I urge the Minister to accept that offer. Of course, it would be better if we had no Bill at all. Last week, 400 doctors and other medical professionals wrote to the Telegraph. They said:
“The Bill will do irreparable harm to the NHS … It ushers in a significantly heightened degree of commercialisation and marketisation that will fragment patient care; aggravate risks to individual patient safety; erode medical ethics and trust … widen health inequalities”,
and, waste much money”. And that was just the first paragraph.
That great Liberal, Sir William Beveridge, in his 1942 plan, envisaged a National Health Service covering all medical treatments. Aneurin Bevan presented his proposals in 1946, in this very Chamber, though in another place, and said that the NHS would,
“relieve suffering. It will produce higher standards for the medical profession. It will be a great contribution towards the wellbeing of the common people of Great Britain”.—[Official Report, Commons, 30/4/46; col. 63.]
The NHS has done this magnificently.
This morning, I and my colleagues received from 38 Degrees a petition containing over 135,000 signatures collected in a very short space of time asking this House to protect the NHS and to ensure that the Bill gets proper scrutiny. That is but one small reflection of widespread concern in the community and the NHS. Yes, the noble Lord, Lord Fowler, is right; there have been concerns before, when he was Secretary of State. Indeed, I hope that I was quite successful in orchestrating some of those concerns. But this is different. The scale of concern and mistrust among the public and the NHS is greater than I have ever known it before. Only this House now stands between safeguarding the NHS and these confused and damaging proposals. I hope that we will not fail the test that has been set us. I shall support my noble friend in the Lobby.
Lord Hunt of Kings Heath
My Lords, in my experience, if this House wants something to happen it finds a way for it to happen. Even at this late stage, I ask the noble Earl to give careful consideration to this. I have already said from this Bench that we are happy to meet through the usual channels to agree a date by which the Committee stage will be finished on the Floor of the House. I am sure that the noble Lord, Lord Owen, as far as he is able, will wish to say that he is happy for the special committee to finish by a certain date. I do not believe that it is impossible for agreement to be reached on this.
Earl Howe
My Lords, I very much welcome that offer, which has come rather late in the day. My understanding is that discussions over the timetabling of the Bill have taken place over the past week. However, we are faced with the amendment that is on the Order Paper and must vote on it as it stands.
NHS: Future Forum
Lord Hunt of Kings Heath Excerpts(12 years, 10 months ago)
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Earl Howe
I thank my noble friend for raising this important topic. I cannot provide him with the kind of detailed replies that he seeks. Those should emerge over the next few days as we work through our response fully. But I can tell him that we will amend the Bill to strengthen and emphasise the commissioner’s duty to promote choice in line with the right in the NHS constitution for patients to make choices about their NHS care and to receive information to support those choices. We believe in patients’ choice and in competition, as I have already indicated, where that is appropriate. As recommended by the Future Forum, the Secretary of State’s mandate to the board will set clear expectations about offering patients choice.
We will maintain our commitment to extending patients’ choice of any qualified provider, but we will do this in a much more phased way. We will delay starting until April 2012, and the choice of any qualified provider will be limited to services covered by national or local tariff pricing to ensure that competition, where it occurs, is based on quality. We will focus on the services where patients say they want more choice—for example, starting with selected community services—rather than seeking blanket coverage. Of course, with some services such as A&E and critical care, any qualified provider will never be practicable or in patients’ interests.
I have already referred to the changes in the duties of Monitor, in its competition functions. The NHS Commissioning Board, in consultation with Monitor, will set out guidance on how choice and competition should be applied to particular services, guided by the mandate set by Ministers. That includes guidance on how services should be bundled or integrated.
Lord Hunt of Kings Heath
My Lords, I declare an interest as chair of the Heart of England NHS foundation trust and as a consultant trainer in the NHS. Like other noble Lords, I am very grateful to the noble Earl for his stewardship of this matter in your Lordships' House. It is noticeable that the Government are continuing with their policy of placing £60 billion in the hands of commissioning consortia, which would be largely led by general practitioners. What I thought was missing from both the listening exercise and the Government’s general approach was any indication of how the standards in general practice are to be improved. A huge amount of power is to be given to general practice, yet we know that the general quality of GPs is very variable. In some parts of the country, it is very difficult to get access to GPs out of nine to five hours; in some parts, GPs have shown themselves completely unable to engage in demand management. Will these commissioning consortia be able to get to grips with poor quality GP performance?
Earl Howe
The noble Lord, Lord Hunt, raises an important issue. I agree with him that the quality of general practice has been extremely variable. We saw a report the other day, published by one of the think tanks, which said exactly that. We have some very good GPs, but we have some who, frankly, are less than the standard that we would want and expect in primary care.
We are doing a lot of work to roll out leadership programmes for general practitioners. The National Leadership Council is working with GPs to agree the skills required for commissioning and will assist GPs in developing these skills as appropriate. The NHS institute is also doing some good work in this area and we will shortly be able to provide a bit more detail on how we can develop leadership, regionally and nationwide.
The noble Lord’s question runs rather wider than that, being about the quality of care delivered by GPs. In rolling out the outcomes framework and the commissioning outcomes framework, and the transparency that goes with that, it will become rapidly apparent which GPs require more support. I have no doubt that the consortia or, as we are now calling them, clinical commissioning groups will see it as being in their interests to ensure that the poorer performers are brought up to the standard of the best.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 12 months ago)
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“( ) Where the Minister considers that the changes proposed do not warrant a full public consultation under subsection (1)(g), the Minister must publish a copy of the proposal on the website of the relevant Government department or make it otherwise publicly accessible.”
Lord Hunt of Kings Heath
My Lords, the Bill’s return after a period of some weeks is welcome. In this amendment I return to the issue of public consultation, a matter that we have debated on a number of occasions. Given the enormous powers that the Bill will give to Ministers—powers embracing the abolition, merger, finance and governance of a considerable number of public bodies—it seems only right that when changes are made to any of the orders listed in the Bill, the public should have a say.
The House did not agree to my amendment to ensure that whenever a Minister proposes to make an order under Clauses 1 to 6, the public should always be consulted. However, the noble Lord, Lord Taylor, was rather more sympathetic to a further amendment to which I spoke, which would have ensured that when a Minister considers that proposed changes do not warrant a full public consultation, the Minister must at least publish a copy of the proposal on the website of the relevant government department or make it otherwise available. The noble Lord kindly said that he understood the arguments that had been put forward and that where consultation does not take place, a proposal will at least be put on the website. He said that he would consider the issue between Report and Third Reading, and I should be grateful for, and am hopeful of, a positive response from him.
My next amendment, Amendment 6, relates to regional development agencies and the need for consultation on their proposed abolition. I will not reopen the whole question of whether or not it is wise to abolish regional development agencies, but I must say that the longer the economy flatlines, as it is, the more convinced I am that it is a very big mistake to remove a regional strategic body for economic development. I want to raise the issue of consultation, specifically the consultation that will need to follow the Government's proposals to abolish regional development agencies.
One problem with the Bill is that the Government have failed to engage in any pre-legislative consultation on these matters. One example of that is the remarkable decision to fire-sale the assets of RDAs. That has been the subject of a number of comments. I find it extraordinary that instead of the RDAs being allowed to pass on assets under deferred payment schemes to, for instance, local authorities, they are being forced down the route of selling off assets at the worst possible time. There is real concern here that if those assets are sold in the current economic climate, their values will not be at current market levels, to the detriment of the local economy and future work of both local authorities and local enterprise partnerships, which are to take the place of RDAs.
I come to the specific issue of consultation. The noble Lord will know that this matter was raised by the House Of Commons Public Administration Committee in its report. It refers to the evidence given by the Minister, who had been asked what consultation had taken place in advance of deciding to abolish bodies listed in the Bill. The report states that the Minister responded that,
“the level of consultation would have been ‘very varied [...] in some cases, will have been quite extensive; in other cases, will have been very little’”.
He also said:
“These are essentially decisions in principle; these are decisions made where departments will know, or should know and I'm sure do, in a great deal of detail what those bodies do, what their functions are and how they are carried out”.
The committee reports that it reached the view from these comments that the Minister had assumed that the nature of the decision was such that consultation was unnecessary. As the Commons Select Committee stated, that assessment is wrong. It concluded:
“The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so. We welcome the fact the Government is now taking steps to rectify this, but question how useful consultation can be, given that decisions on the future of many bodies have already been taken. Having agreed to amend the Bill”—
as the Government did, and it has now been so amended—
“to allow for more consultation we expect these consultations to have real effect on the outcome of the review; even if this means reversing decisions that have already been made. We expect the Government to give us such an assurance in its response to this Report”.
In their response to the report published in March, Command Paper 8044, the Government state:
“The Government has always been committed to ensuring appropriate consultation and external input in relation to its proposals. There is a substantial role for consultation to play, and a strong impact to be made on the delivery of these decisions”.
I should therefore like the Minister to confirm that, so far as it affects the bodies listed in the Bill but specifically RDAs, there will indeed be proper consultation, the consultation will be duly considered and, in the light of that consultation, the Government will, if appropriate, reverse their decision. My amendment is intended to ensure, if the Government decide to bring forward any orders that would embrace RDAs, the explanatory document that has to be brought forward in conjunction with the order will make it clear that a proper consultation was undertaken, including a summary of the representations received in respect of the principle of abolition. That would ensure a proper and genuine consultation process. I hope that the noble Lord will be able to be positive on both amendments. I beg to move.
Lord Hunt of Kings Heath
I am grateful to the Minister for his response. I shall take Amendment 6 first. My noble friend Lord Beecham surely put his finger on it, and it really takes us back to the comments made in the House of Commons Public Administration Committee, which made it clear that, having agreed through this Bill to have proper consultation, that consultation must be done properly. That must mean that the Government have to consider on their merits the responses received. Let me take the West Midlands as an example. There is almost uniform opposition and hostility to the abolition of Advantage West Midlands. There is also a dawning recognition that the local enterprise partnerships which are to be put in its place simply do not have the wherewithal or coverage of the region to do the job that the RDA is proposing. So the question arises of whether the Government, having considered the results of the consultation, will in all fairness give due consideration to those comments before coming to a decision. That is a very important matter.
I was disappointed with the Minister’s response to Amendment 1. All noble Lords know that the heart of the noble Lord, Lord Taylor, is in the right place when it comes to this amendment. It is disappointing that his department has not been able to respond in the same way. I fully accept that your Lordships' House did not agree to my amendment to make public consultation apply in all cases. However, this amendment modestly suggests that when, in appropriate cases, a Minister decides that public consultation is not necessary, there should be at the very least a reference to it on the department’s website. With the best will in the world, I have not heard any convincing argument as to why that cannot be in the Bill. I do not see why it should be left to guidance which can be changed at any point. Moreover, in referring to that guidance, the Minister carefully used the words “ought to”. He did not say that departments “must”.
This is a matter of principle. I accept that this House decided that there will be circumstances in which it will be appropriate for a Minister not to seek public consultation. In the interests of good governance, however, surely there should be a record, and a reference should be made to it at least on the department’s website. I think that this is a matter of principle and I wish to test the opinion of the House.
“4 The explanatory document required under section 11(2) in respect of the regional development agencies must include—
(a) the wording of the question that was asked about the principle of abolishing regional development agencies;(b) a summary of representations received in respect of the principle of abolishing regional development agencies.”
Lord Hunt of Kings Heath
My Lords, we have already debated my Amendment 6, which would ensure that when the consultation takes place on the abolition of regional development agencies, there has to be a proper consultation. It is an important point of principle and I beg to move.
Lord Taylor of Holbeach
My Lords, I beg to move that this Bill do now pass. In doing so, I crave the indulgence of the House to say a few words. Today is 9 May, and we had Second Reading of this Bill on 9 November. For six calendar months, this House has been considering the Bill. The Bill has been much changed by this House; I think we all share the view that the Bill has been improved by this House. This House can be proud of its role of scrutiny, which it has demonstrated in scrutinising the Bill and improving it. It can serve as a textbook example of how this House serves that great and fundamental purpose.
I say a word of thanks to Members of this House for that role. In particular, I thank those on the opposition Front Bench for the constructive way in which we have been able to talk about the Bill from the beginning. They had firm ideas of what they wanted to happen to the Bill; we had ours; but the discussions were always friendly and open. I am very grateful to them. I am very grateful to all Peers who have attended our meetings: those from the Cross Benches, in particular, for their construction of ideas and resolution of some of the impasses which looked difficult to overcome; and to coalition Peers for their support and input. Right to the end, we have been discussing these matters, and the House has been divided on them, but there has been a real sense of partnership on the Bill. That has been particularly true of my Front Bench colleagues who have shared the passage of the Bill with me and have taken particular amendments. I have been reluctant to comment on individual involvement, but I feel that I should thank my noble friend Lady Rawlings, who is my Whip on the Bill and who has been with me more or less throughout its passage.
I conclude by thanking the Bill team, because they have had to work particularly hard not just within the Cabinet Office, which originated the Bill, but across all government departments, because every government department has been engaged in the Bill. I thank them for the way in which we have enjoyed working on the Bill together. They now go to see it through another place, and their job continues. I also mention the Bill team manager, as was, Louise Parry, who during the Easter Recess had a baby daughter. Cecilia is perhaps the most visible token of the Bill's passage through this House, and we are delighted for both of them. They are both very well and I thank Louise for her support to me and to her colleagues during the passage of the Bill.
Lord Hunt of Kings Heath
My Lords, I must say that when we completed the passage of the Marine and Coastal Access Bill, which also took about six months, I never thought that I would be facing the noble Lord, Lord Taylor, on another Bill which took so long. I echo his comments: I think that the Bill is much changed; it has benefited from scrutiny in your Lordships' House. I am sure that the whole House would wish to thank the noble Lord, Lord Taylor, for his stewardship of the Bill. He has shown great skill and sensitivity to the issues that have been raised. All of us are grateful for the manner in which he has met us to discuss the issues, but his responses in your Lordships’ Chamber have also been in a flavour of seeking a way through. We are very grateful to him.
There has been a cast of thousands on either side of the opposition and government Front Benches. I, too, very much thank my colleagues for their help. I echo the noble Lord’s words of thanks to the Bill team. We are very grateful to them for the help that they have given us over the months. I, too, congratulate the Bill team manager on the birth of her daughter during Easter.
The Bill goes to the other place much enhanced. Because of the sunset clause, although the Bill will deal with a number of public bodies, when that is done, there will be a mechanism for looking at public bodies in future in a way that noble Lords find a very satisfactory outcome.
Lord Wigley
My Lords, before the Bill passes, perhaps I may add a caveat to some of the comments that have been made. I immediately recognise that the noble Lord, Lord Taylor, and the government Front Bench have made concessions on a number of aspects of the Bill, and people in the Forest of Dean and elsewhere will no doubt be very happy with what has happened. However, the noble Lord will not be surprised that my reservation concerns the fact that the uncertainties about the future of the Welsh television channel S4C have still not been resolved. There had been a hope of amendments being tabled at Third Reading. I understand the reasons why that was not allowed, although I recall the noble Lord, Lord Roberts of Llandudno, saying on 28 March that if any of the eight assurances that he was given were not fully delivered, he would want to bring the matter back at Third Reading. The fact is that the S4C authorities have indicated that, of those eight assurances, six are without substance. Therefore, on that occasion the amendment was not pressed to a vote on the basis of assurances which had not been given.
I do not want to go over old ground and I certainly accept that the Government have moved on a couple of points but, if the consultation with the National Assembly had taken place, it would have been very much more satisfactory from the outset. However, with the announcement today of a new chair for S4C—Huw Jones, whom we wish well—we would have hoped to see a line being drawn under many of these matters so that S4C could move forward with confidence. When the Bill goes to another place, three aspects will need to be resolved. The first is the constitutional position of S4C, the second is the safeguarding of S4C’s funding and the third is its right to make managerial decisions without people from the BBC sitting in on them.
On Wednesday, a report on this matter will be published by a Select Committee of another place and it will contain remarkable cross-party agreement on the unsatisfactory nature of this Bill. Therefore, I very much hope that, when the Bill goes to another place, the aspects that have not been addressed in your Lordships’ House will be addressed and we will have the same satisfaction regarding S4C as noble Lords have indicated they have with regard to other aspects of the Bill.