NHS App: Medical Records

Lord Markham Excerpts

Tuesday 19th December 2023 Lords Chamber

[Lord Allan of Hallam]

To ask His Majesty’s Government what measures they have put in place to mitigate the risk of people being coerced into showing their confidential medical records to third parties as records become universally available through the NHS app.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

The Government want people to have access to their own records. For most, online record access is beneficial but for a minority, having access could cause harm or distress. In many cases, practices can identify these patients and ensure that safeguarding processes are in place. Furthermore, to access the NHS app, users must prove their identity through the NHS log-in and, before entering their record, are advised what to do if they are being pressurised to share their information.

[Lord Allan of Hallam (LD)]

My Lords, the design goals for the NHS app should be to make it as easy and frictionless as possible for legitimate users to access the system, while making it as difficult and frictionful as possible for people trying to gain unauthorised access. But there is a natural tendency to focus on the first part of this equation as developers believe in the systems they build and find it hard to put themselves in the shoes of the cunning and resourceful attackers who will try to break them. Given this dynamic, can the Minister confirm that the NHS has a red team tasked with trying to identify all possible vectors of attack on the NHS app, and that the requisite resources will be put into mitigating any risks that they identify?

[Lord Markham (Con)]

The noble Lord is absolutely correct on getting that balance right between the two; that is why the NHS has a safeguarding reference group on exactly this, which has been putting in protections as well as messaging patients, telling them to be aware and that they have the opportunity to redact their records if they are concerned. There are other features, such as multi-factor authentication and making sure that, for log-in with facial ID, you cannot have anyone else in the picture, to ensure that people are not being coerced. So, there are a number of measures in place, but I completely agree that we need to keep them under review with user groups checking all the way.

[Baroness Owen of Alderley Edge (Con)]

My Lords, with the abundance of health data available to the NHS, what future technologies are being developed to identify patterns and trends to improve patient outcomes and reduce the pressure on the NHS?

--- Later in debate ---

[Lord Markham (Con)]

My noble friend is correct. As the noble Lord, Lord Allan, said, there are many good uses for the app and data. As we all probably know, AI is only as good as the data that underlies it. The good situation we have—it is lovely to have a story for Christmas cheer—is that our 50 million primary care and hospital records are probably second to none around the world. We are already using that to positive effect, such as for image reading and using AI for cancer scans and strokes. We can also use that data for intelligent screening and, in future, for cause and effect to find cures, hopefully one day even for dementia.

[Lord Turnberg (Lab)]

While it is obviously important to control confidentiality of patient data, it is vital to be able to use data for medical research. Much research, such as epidemiological research, the relationship between smoking and ill health—obesity, diabetes and all sorts of diseases—would not be known much about unless we were able to handle patient data. In the rush to control, let us make sure we can still do research with patient data.

[Lord Markham (Con)]

Absolutely; it is about getting that balance correct. I welcomed the support of all sides of the House when we were introducing the FDP. A lot of work was done with noble Lords on that. The fact that the federated data platform was as well received as it was in the circumstances is because of support from all Members of the House on all sides, knowing the vital role of data in improving health outcomes.

[Baroness Brinton (LD)]

My Lords, following the question from my noble friend Lord Allan about a red team, in the past not health data but personal financial data has been sold by subsidiaries or contractors of UK firms based abroad. I notice that we now have a deal with America on health data and GDPR. Is that true for other countries, such as India? Personal data, particularly medical data, would be seen as very valuable.

[Lord Markham (Con)]

The fundamental principle underlying all this is that none of the data leaves the control. The data controllers today—be it GPs, the NHS or the hospital—stay as they are, and any use of that data has to be approved outside of that. The noble Baroness is absolutely correct. We want to make sure that it is not used for any purposes that are not going to improve health outcomes, such as the ones we have talked about.

[Baroness McIntosh of Pickering (Con)]

My Lords, could my noble friend update the House on where we are with sharing data—in particular, the outcomes of clinical trials—with our European partners?

[Lord Markham (Con)]

Clinical trials are among the key areas that are vital to the life sciences industry. We are all aware that, post-Covid, we were falling a bit behind. I am glad to say that now we have improved, so that 80% of the time we are doing the clinical responses in time. We can still do better; that should be 100% but 80% is good. Most importantly, our data is the envy of the world. Just to give noble Lords an example, about 90% of our hospital records are digitised. In Germany, it is less than 1%.

[Baroness Merron (Lab)]

My Lords, easy access to medical records on the NHS app is indeed positive and helpful to many, but of course there are parents whose abusive spouse or partner might use that sensitive clinical information to undermine legal cases of custody of dependants in the family courts. What discussions have taken place with the Ministry of Justice to assess both this risk and how to avert it?

[Lord Markham (Con)]

In terms of averting it, there are some of the measures I was talking about. For instance, with facial recognition, if anyone else is seen in the picture, it disregards it, so that you cannot have someone else holding it or holding their head in to do it. If the person’s eyes are shut—if someone is trying to do it while you are asleep—it does not work either. Those safeguards are in place, as well as multi-factor authentication, so that if anyone tries to change their details by email or whatever, it comes back to them. We have worked with user groups on this. I will come back to the noble Baroness specifically on the Ministry of Justice conversations, but we are doing a lot in this space.

[Lord Scriven (LD)]

My Lords, digital transformation of the NHS at pace is being held back by the number of vacancies for digital roles within the NHS, particularly when many people are going over to the private sector for higher pay. What could the Government do to deal with this, particularly regarding the inflexible Agenda for Change?

[Lord Markham (Con)]

The noble Lord is absolutely correct. Digital resource is well sought after. I was approving something just the other day which gives us more flexibility in that space, because sometimes you have to pay over and above to get people on it. As we all agree, this is vital to the future of what we are trying to do.

[Baroness Bull (CB)]

My Lords, as more people who are able to are switching between the National Health Service and private medical care for specific operations, is the Minister confident that relevant information is then transferred back to a single patient record? This will be very important if, for instance, somebody needs emergency care or is involved in an accident. Is the data all being kept in one place?

[Lord Markham (Con)]

Patient records is what the federated data platform is very good at, in terms of drawing data and information from all sorts of sources into one place, so it is always in the ownership of the person, the GP or the individual place. You can make your data available to the private care providers, if you are having an operation with them, for instance, but the data always remains within the NHS and in the ownership of the person.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, following the question from the noble Baroness, Lady Bull, is the Minister confident, in all the talk about advances in technology, that data-sharing within the NHS is fit for purpose? We frequently encounter an apparent disconnect between different departments in the NHS, or different levels of care, where information which should be available to everybody is palpably not or, if it is, it is not being taken any notice of.

[Lord Markham (Con)]

The noble Baroness is absolutely correct. While I think everybody would say that 90% digitisation is pretty good—it is not 100%, but it is pretty good—always making sure people are talking to each other is often the issue. I am sure we have all had examples of that. That is what the federated data platform helps to do, in terms of drawing it all in. For example, Chelsea and Westminster has put what was on 10 different spreadsheets and records into one place. We are getting a lot better at that, but is it perfect and seamless? No, there is still some work to be done.

[Baroness Finlay of Llandaff (CB)]

My Lords, given the importance of medical research, for the development of advances in knowledge and for inward investment into this country in research, what consideration is being given to ensuring that patients in different disease groups can be asked whether they would consent to being informed about clinical studies that may be relevant to their condition? This is so that pre-consent to being approached is being built into the system, because we know that one of the big delays in recruitment into clinical studies is the process of case finding and consent, particularly for less common conditions and when patients are living in more rural and remote areas.

[Lord Markham (Con)]

It is fair to say that we have made massive improvements. At the beginning of the year, we only had around 10% of patients with GP records available in the app but today it is 80%, which is a massive change. That allows us to do things like “Be Part of Research” which we have had hundreds of thousands of people volunteer for. We have not yet taken it to the next stage, so that you can get ahead of the curve for approvals for certain types, as the noble Baroness said, but the beauty of all this is that it gives all the opportunities for the future. As it is my last time standing up this year, I would like to finish by wishing everyone a happy Christmas.

In-patient Mental Health Care: Learning Disabilities and Autism

Lord Markham Excerpts

Wednesday 13th December 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

I too add my thanks to the noble Baroness, Lady Hollins, for her terrier-like qualities—I hope that is seen as a compliment—in getting and maintaining our attention. I feel that this has been an excellent series of debates that have complemented each other and added to that basis of knowledge. I had useful feedback from the round table yesterday, and I hope the feeling from it is that this is a not a one-shot deal: it is an ongoing conversation with ongoing engagement.

One of the things that probably struck me the most —the noble Baroness, Lady Merron, mentioned it as well—was the change in the culture. When we think of where we were in the 1980s, and of all the things that we know need updating from the Mental Health Act 1983, we need to make sure we are reflecting that change of culture in all this. I will not pretend that we have an answer to that, but I think we are all committed. We need an Act; I understand everyone’s disappointment in that. We know we need to correct this at the earliest opportunity, but the round table was a good way of starting to talk about the things that we could do. We saw some very promising examples, particularly the Somerset model, which I am looking forward to hearing more about.

The point we need to reflect and come back better on is how we are changing those cultural attitudes as well. The example of Ash, given by the noble Baroness, Lady Hollins, sets out very clearly that these are real people, as the noble Baroness, Lady Merron, said. Thankfully, in some ways, they are not a large number of people, but this brings home what needs to be done. The figure of 5.2 years as the length of stay really struck us all.

It is a good question and challenge: are we setting the right target with 50%? It is a round number, and I am not saying that in any way to try to move away from it, but is it the right target? As we have said, we all care about whether we are building the right support going forward. To answer the question raised, I can confirm that there is commitment to this beyond March 2024. In some ways, the figure of 50% by March 2024 has almost created a false sense of “That is a deadline, and what happens beyond it?” Candidly, we all know that this is an ongoing problem, which will work only if we have the supply.

It is well recognised that adult social care is a crucial component to the supply of places, as mentioned at Questions yesterday. Post pandemic, we had first to put in place action to stabilise adult social care. That is what the investment has been about, so that we are finally at a place where we have managed to increase the supply of places and increase the staffing there. It is only when you are on that stable footing that you can then look to the reform action that needs to come in, of which the care excellence certificate is very important. I will freely admit that we are at the start of that journey to completion.

The second part of that is the individualised mental health supply. That is what the £2 billion investment is all about, with the 2 million extra places that we need to provide in the community for people, including 300,000 young people. In that, we all have experience that a stitch in time really does save nine. If we can get there early, then that really helps and supports people.

As other noble Lords have pointed out, while progress is being made on the number of people who have a learning disability without the autism diagnosis, the real challenge is the autism diagnosis in-patient numbers. That is the one where we need to really understand what action is needed. That is why, as I say, the Building the Right Support delivery board is an ongoing thing, not something that stops in March.

On that supply, that is what the £121 million investment in community support people is about, and making sure that every integrated care board has to have an executive lead on learning disabilities and autism. Those are the people we are really holding to account in all of this, to make sure that support is there at a local level.

On the point made by the noble Baroness, Lady Merron, the dynamic support registers are all centred on the individualised plans that need to be given to these people, so we can make sure that dynamic support is there for them all. A national development team for inclusion has been commissioned to work in 20 areas to give the bespoke support that is needed.

I reassure the House that we will continue to take forward non-legislative commitments to improve the care and treatment of people detained under the Act, as the noble Baroness mentioned, and in particular to pilot models of culturally appropriate advocacy, which will provide tailored support to hundreds of people from ethnic minorities to better understand their rights when they are detained under the Mental Health Act.

The importance of the right workforce has rightly been raised, to make sure that people with a learning disability and autism get the right support at the right time. That is what the strategy to put people at the heart of care is all about. Comments have been made about whether we have got that strategy right and whether it is covered in the long-term work force plan. It is harder in this area, as we know; as I mentioned yesterday, there are 17,000 independent providers in the adult social care setting and so co-ordinating across it is harder. But again, that is what the reforms and the care certificate are all about, and the digital platform that has been put in place to provide the qualifications and the payment mechanism is key to all of that.

I hope from these comments we are showing that we are alive and responding to the ongoing conversation and dialogue that the noble Baroness, Lady Hollins, has set in place and which will continue. I will not pretend for one moment that we have got all the parts in place. That is why it needs to be a continuing dialogue, to which I am committed. As noble Lords saw yesterday, Minister Caulfield is definitely committed to this as well. We look forward to further round tables in the new year and increasing our knowledge from them. Noble Lords can rest assured that the Building the Right Support action plan is an ongoing live document that does not stop at March. It is key to everything going forward.

At this point, I thank all noble Lords, and especially the noble Baroness, Lady Hollins, for her continued dedication to this.

House adjourned at 6.53 pm.

Organ Donations

Lord Markham Excerpts

Tuesday 12th December 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

I add my thanks, particularly for all the work that the noble Lord, Lord Hunt, has done, not just in bringing this debate today but, obviously, in putting the Act through in the first place. On a personal note, one of the pleasures of this job is looking into an area that is fascinating and something we are all involved in and have experiences of in our everyday lives. There are lots of hard things about the job, but sometimes these are the fun bits.

Coincidentally, I am visiting the NHS blood transfusion service’s Bristol operation on Thursday—so this is very timely. I will put a lot of these challenges directly to them. Obviously, I am speaking personally here, but what we have seen is a mixture of the disruptions of Covid and quite a change in the leadership of the blood transfusion service. The service has been undergoing quite some changes, and it would be good to test the temperature to see just how much it is on this.

One of the things I would probably like to do is set a challenge—“Where are you on this?” Maybe they will give us some fantastic answers; it is always best to hear things from the horse’s mouth. As I say, there is a relatively new CEO and maybe they will give us some fantastic answers and I can just report back to the House—that would be fantastic. I suspect what we really need to do is to say, “You have a couple of months”—or whatever—“to take this away. These are all the issues that were raised. Come back and make a presentation to us”. We could do that as a round table, because I think that is something we would all find illuminating—putting them through their paces.

The noble Baroness, Lady Merron, reminded us of the Churchill quote—it is not the end, or even the beginning of the end; it is the end of the beginning. My gut feeling is that the Act was almost a case of “Right, we’ve done this now and it will all look after itself”. Of course, there is a lot of underlying issues from there. We had Covid, and suddenly everyone was focusing on other things. This is why this debate is very timely: we need to turn our attention back on this and say, “Actually, now, thankfully, we are getting back to normal. How do we need to look at this?”

As many noble Lords have picked up, the real disparity seems to be in the involvement of the family. If the person has consented anyway through other processes, they are much more likely to follow those wishes and rates go up to 90%. If they have not given their consent, and so the family do not know, it is much more like 60% or 61%.

That real disparity, I have been told, means that we need to do comms campaigns all around increasing the level of people proactively going out to do that. It could be when they apply for driving licences or passports, or in other interactions. By doing that, it is much easier for the family; they know that that person made their wishes perfectly clear. As I say, 90% of the time the family then go with it, because they understand those wishes. That is really the thinking on the major facts in the comms campaign.

Within that, it is also about trying to make it as easy as possible. A new lens needs to be used for looking at the whole customer journey, for want of a better term, to make it as user-friendly as possible. The noble Lord, Lord Allan, mentioned some of his Facebook experiences about how you do this. There is a complicated process for which organs you can opt in and out on. Is that needed? Again, there is an argument for giving people choice. I am told that people have an aversion to giving corneas. They will approve a lot of things but are more disturbed by the thought of giving their eyes. I think people like having that choice, but this is almost about having a “yes to all” tick box as the automatic default option here.

Before I reply formally to some of the questions, another observation I make is that, although I am not saying that this should be driven by economics, the economics are clear: transplants save a lot of money as well, particularly in the case of kidney transplants. That is because you have people who are having a lot of dialysis and other treatments. In my research for this debate, I was told that the economics are very clear. It is worth investing in the resource behind this, because the transplant is not only much better for ongoing life; it actually saves the NHS money, because patients are not having to go for those future treatments.

I mentioned my meeting with the staff. The noble Lord, Lord Weir, made points about the recommendations of the Organ Utilisation Group. I am told that DHSC, the blood transfusion service and NHSE have accepted those recommendations and are working towards ensuring that they are implemented. A lot of the time, this is about trying to make sure that we are maximising it. As the noble Baroness, Lady Merron, said, it is not just the number of people who consent but the utilisation. They have managed to increase the number of organs used to about two and a half per person right now. It is about not just converting those people who have consented but how you utilise it, so they are working on that.

On the resource for this, at the moment there are 330 specialist nurses—it is accepted that you need a specialist nurse to do this—and 55 clinical leads. Clearly, that should be one of the things we challenge when we meet on this, given that the economics are clear. On the marketing, again, attention is being turned more towards that. After Organ Donation Week, the impact of that campaign was a 22% increase in registrations. As I said before, it was very much focused on trying to persuade people to proactively go out and consent, because it is much more likely that the families will go along with that when they do so.

There are a lot of small things in this; there is no silver bullet. It is about trying to get across them all. As was mentioned by the noble Lords, Lord Weir and Lord Allan, there is quite a disparity for black and ethnic-minority people, which we need to understand further. I was wondering about the point made by the noble Baroness, Lady Merron, on the disparities between regions. My hunch when looking at that sort of data is that there are younger populations in London and the Midlands and an older population in the south-west, so is there something going on with the age profiles? Perhaps those are driving a difference in behaviour, so maybe the comms campaign needs to try to target certain people some more.

Some international comparisons were mentioned. For me, the biggest lesson is in another point made by the noble Lord, Lord Allan: these things are so cultural as well. From my understanding, it took Spain a good 10 years or so to really do this. We need to think about all those cultural aspects in our campaigns. Just saying, “Now that we’ve changed the Act, it will go ahead and happen” is not a silver bullet. What we have really learned from all this is, as the noble Baroness, Lady Merron, said, that it is just the start. It is not the end of the journey. As the noble Lord, Lord Allan, said, it all comes down to trust in people—and trusting that the process is all there.

I hope I have managed to pick up most of the questions as I have gone through this. To me, the biggest thing is about putting the challenge down to the NHS blood transfusion service and giving it the time to do it properly. We can then invite its people back, and at that point we could invite all the noble Lords who are here today. I really appreciate this being brought up today, as we could do a lot more on it.

House adjourned at 7.37 pm.

Adult Social Care: Staffing

Lord Markham Excerpts

Tuesday 12th December 2023 Lords Chamber

[Baroness Pitkeathley]

To ask His Majesty’s Government, further to the report of the National Audit Office Reforming adult social care in England published on 10 November (HC 184), how much of the £265 million allocated to reforming social care staffing between 2022–23 and 2024–25 has been spent so far, and what problems they have encountered in spending the allocated money.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

The Government have made up to £8.1 billion available this and next year to strengthen adult social care provision. Specifically, we have invested over £15 million so far this year in supporting our workforce reform programme. The Government remain committed to our 10-year vision to put people at the heart of care and make long-term sustainable investment to future-proof the sector. Further announcements of support will be made shortly.

[Baroness Pitkeathley (Lab)]

I thank the Minister for that reply. He will know that the NAO’s report said that only £19 million of the very welcome £265 million that was originally allocated has thus far been spent. Even if the Minister does not agree that this is an utterly inadequate response to the crisis in social care, as the King’s Fund has said, he must admit that the slowness of progress is somewhat frustrating. Is it because there are not enough staff in the DHSC to distribute the money? I understand there are about 100 vacancies. Alternatively, is it because there have been many ministerial changes in his department, or because—as many in your Lordships’ House will suspect—social care is simply not a priority for this Government and, once again, millions of unpaid carers will be left to prop up a crumbling system?

[Lord Markham (Con)]

I share the noble Baroness’s concern about the speed of deployment. At the same time, it is fair to say that we are developing a whole new set of social care qualifications, which we think we can all agree are key to this. We are also developing a whole new payment mechanism, because there are 17,000 independent providers and we need a mechanism to allow payment. It is a complex programme, but I agree that we need to do everything we can to speed it up.

[Lord Allan of Hallam (LD)]

My Lords, a key part of the equation for long-term social care sustainability is charging reform, yet the National Audit Office report points out that the Government have scrapped their charging reform programme board and have no overarching social care programme in place. Can the Minister confirm where responsibility for charging reform now sits, and whether we can expect any progress in this critical area in 2024?

[Lord Markham (Con)]

Charging reform is still part of the Government’s commitment. At the same time, I think we all recognise that, largely as a result of the pandemic, we had to stabilise the social care situation first. That is what the £8.1 billion in funding has been all about and what the investment and recruitment have been for—so that we can stabilise first. I am glad to say that we are reaching a more stable footing. For the first time, staffing went up over last year and, likewise, the number of people in social care went up. We have to stabilise before we move on to the reform. I think we would all agree that the speed of reform needs to be a bit quicker, but it is sensible that we stabilise the situation first.

[Lord Patel (CB)]

My Lords, in the Government’s search for long-term sustainable funding for adult social care, what assessment have they made of the successful models that operate in Germany and Japan, for instance?

[Lord Markham (Con)]

The shorthand for the German system is the “double doughnut”, which tries to give wraparound care. We can learn many things from that system, which is why a part 2 reform needs to happen here. I accept that we are clearly not there yet.

[Lord Forsyth of Drumlean (Con)]

My Lords, is not the truth of the matter that the Government have just shuffled off responsibility on to local authorities? Can the Minister tell the House what percentage of expenditure by local councils is now being spent on social care to fill the gap, at the expense of vital local services?

[Lord Markham (Con)]

My noble friend is correct: on average, it is about 74% or 75% of a local authority budget. I think we would all agree that that is not a good situation, because obviously a local authority has a number of matters it needs to deal with. This is one of the issues around long-term reform that we will need to consider.

[The Lord Bishop of London]

My Lords, we are very familiar with the pressure on the social care workforce. As the Minister pointed out, we have seen vacancies fall within the social care sector, which is very welcome, but that is supported by the recruitment of 70,000 staff from overseas. I am glad that the health and care sector is exempt from the new visa charges, because we are clearly reliant on assistance from overseas. However, given that they are no longer able to bring dependents on their visa, have the Government considered the impact that this will have on recruiting workers from overseas into the social care sector?

[Lord Markham (Con)]

We have tried to adopt a balanced approach here. While we all understand the necessity in the healthcare sector, I think most of us would agree that 750,000 net migration is a very high number. The balance we have struck is to protect this sector. Our figures generally show that we will be able to keep the recruitment coming. We are now moving on to part 2 of the reform, through the other things we are doing, particularly around qualifications—we know that people who are qualified are far more likely to stay in a social care setting. That is what the whole investment is about. It will be rolled out next year and will fund hundreds of thousands of places. I think it will make a real difference to the motivation, recruitment and retention of staff.

[Lord Hunt of Kings Heath (Lab)]

My Lords, to respond to the right reverend Prelate’s question, if I may, the Migration Advisory Committee has said that the reason we recruit so many people from overseas is poor terms and conditions in social care. The Government set the market for social care, through their poor funding of local authorities. When will they grasp the nettle and realise that we actually have to give care workers decent pay and conditions?

[Lord Markham (Con)]

It is absolutely understood that, to have a highly motivated workforce, you need to look at everything—pay and conditions, and training and motivation. We see that while, on average, staff turnover is almost 30%—which is way too high—about 20% of care home providers have a turnover of less than 10%. Why is that? It is because they are investing in their staff and they have a training programme. That is why we are trying to do a similar thing. The national care certificate that we are putting in place will take time; for it to be valuable, we will need to put the right things in order, including the digital platform to pay the 17,000 providers. These are all parts of the reform, which will make a difference.

[Baroness Watkins of Tavistock (CB)]

My Lords, does the Minister accept that many delayed transfers of care from hospital are associated with difficulty in getting social care in people’s own homes? In rural areas, we are still not paying for time spent travelling. Surely there is something we could do much more quickly, before the training certificate, to employ local people in a fair way to provide care in people’s homes, particularly in rural areas.

[Lord Markham (Con)]

The noble Baroness is correct about that; it is a key pillar of this reform. This is why we have tried to learn one of the main lessons from last year, by putting the £600 million discharge fund out early, so we can get those sorts of measures in place. That is why we have expanded the virtual care ward network to 10,000 beds, with the idea that people can be cared for in their own home but with support from the staff there. That is absolutely the direction we are moving in.

[Lord Shipley (LD)]

My Lords, the Minister said a moment ago that three-quarters of local government spending is on adult social care. I would ask him just to check that figure, because if we add to it children’s social care, it basically means that every local authority will, before long, be issuing Section 114 notices. It is very important to get the facts absolutely clear here. What the Minister said demonstrates that local authorities are seriously underfunded for adult and children’s social care, and are cutting other public services as a consequence.

[Lord Markham (Con)]

I will absolutely clarify the number to the noble Lord in writing. It is of course a range, according to different local authorities, but I think we would all agree that it is a level that, as a percentage, is too high.

[Baroness Wheeler (Lab)]

The Nuffield Trust has called the NAO findings a

“damning indictment of the Government’s progress towards delivering social care change”.

To follow on from my noble friend’s question, the NAO points out that only 7.5% of the much vaunted £265 million allocated by the Government to addressing social care staff shortages and recruitment for 2023-35 has actually been spent, heavily impacted by the DHSC’s staff recruitment freeze. What specific actions are the Government taking to address this and ensure that the money they say is there is actually paid out?

[Lord Markham (Con)]

There were five parts to the programme of reforms mentioned and the £265 million. There was international recruitment, which we have done; it has worked well, and we need to continue doing that. The second part was a volunteer programme, which, again, we have done and it is working well. Thirdly, there were digital skills passports, so that staff could swap from place to place and take their qualifications with them; we have done that. The two other things will take longer. The care workforce pathway is out for consultation. It will mean that people can have a long- term qualification that can get them into other professions as well, such as nursing. Lastly, there is the care certificate qualification. That takes time. Everyone knows that, for that qualification to be meaningful, it will take time to set it up. That is the key expense item. The digital platform is going to be launched next June, so it will be rolling out from there.

Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023

Lord Markham Excerpts

Wednesday 6th December 2023 Lords Chamber

Moved by

[Lord Markham]

That the draft Regulations laid before the House on 7 November be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, I thank noble Lords for their attendance today at this important debate. I am sure of course that my speech will convince at least three of your Lordships to come the other way.

I pay tribute to the Secondary Legislation Scrutiny Committee for its third report of Session 2023-24, which considered this statutory instrument. I thank the noble Baronesses, Lady Merron and Lady Bennett, for their amendments in relation to today’s debate. I hope I will be able to address these topics and the questions from Members today.

During strike action, our utmost priority is to protect the lives and health of the public. Minimum service levels will give the public much-needed reassurance that vital ambulance services will continue through strike action, ensuring that NHS employers can provide life-saving services when the public needs them most. During this year’s strike action, some unions, including ambulance unions, have put in place voluntary arrangements for covering essential services, but those arrangements are entirely dependent on good will from unions and staff. Even where they are in place, as they were for the ambulance strikes, there is uncertainty and inconsistency across the country, creating an unnecessary risk to patient safety.

I am pleased that we are debating this secondary legislation, which is necessary to enable NHS ambulance trusts to implement minimum service levels for ambulance services during industrial action. Informed by responses to our public consultation, we have set out the MSL to ensure that employers can issue a work notice to provide that all calls about a person with a life-threatening condition, or where there is no reasonable clinical alternative to an ambulance response, receive a response as they normally would on a non-strike day. The regulations also provide for an MSL in respect of healthcare professional response requests, inter-facility transfer services requests and non-emergency patient transport services.

The MSL we have is broadly in line with the services provided on a voluntary basis by most unions when there was strike action in ambulance services last winter. We do not want to restrict individuals’ ability to strike more than necessary. The unions recognised that these services needed to continue then, and by introducing this legislation we are providing a safety net so that the public can be assured that these essential services would continue in any future strike action.

The responsibility for determining staffing levels on both strike and non-strike days remains with clinical leaders at local level. These regulations do not set a minimum level of service generally. Instead, they set a level of service that will allow NHS employers to issue work notices so that, for the services caught by the regulations, the same level of care can be provided to patients as if it was a non-strike day. These regulations do not set a higher level of service than they would have on a non-strike day.

Our Government do recognise that these regulations will restrict ambulance workers’ ability to strike. That is why we have committed to engage in conciliation in the event of national disputes over ambulances in the future, if unions agree that this would be helpful. This is a significant and appropriate commitment; it recognises that we are restricting some workers’ ability to strike so that we can safeguard the public’s right to life and health. We hope NHS employers will do the same for local disputes, and strongly encourage them to do so.

While the territorial extent of these regulations is England, Scotland and Wales, the territorial application of this instrument is limited to England. Employment rights and duties and industrial relations are reserved to Westminster for Scotland and Wales. However, health services are largely devolved and the responsibility for delivering health services in Scotland and Wales falls to the respective Governments. We none the less stand ready to support the Scottish and Welsh Governments should they wish to introduce MSLs, and we have already reached out to offer our assistance.

I now turn to the amendments which have been tabled to these regulations by the noble Baronesses, Lady Merron and Lady Bennett of Manor Castle. I will start with the regret amendment—that the regulations contain detail that was not in primary legislation.

The Government are grateful to the Delegated Powers and Regulatory Reform Committee for its consideration of the Strikes (Minimum Service Levels) Act 2023 during its passage. In its report, the committee commented that the Act did not contain detail on what the minimum levels of service for the relevant sectors were. As discussed during the debates on the Act that Parliament passed earlier this year, the Act establishes the legal framework that enables these regulations. Each sector where minimum service levels can be brought has its own complexities, and it is right that government enables relevant employers, employees, trade unions and their members, as well as members of the public who are affected by this legislation, to contribute to the relevant consultation and have their say on minimum service levels. It is therefore appropriate that these regulations contain the specific details on how the MSL will affect the relevant service, given that the detail was not present in the Act.

With regard to these regulations, the Department for Health and Social Care undertook a public consultation and additional workshops with key interest groups. The responses and feedback we received from employers, trade unions, charities and other representative groups have informed the drafting of these regulations.

I now turn to the second aspect of the amendment from the noble Baroness, Lady Merron—that the regulations do not reflect the policy positions taken by the Government in their response to the consultation. I have taken from the amendment put forward by the noble Baroness that she was referring to the fact that we were clear in our consultation response, and will continue to be clear, that, if employers are confident that the minimum service levels can be met without issuing work notices, they need not do so. This is implicit in the primary legislation itself—employers have a power to issue work notices, not an obligation to do so. The purpose of these regulations is to provide early certainty for employers about what level of service is to be provided, and a safety net for trusts and reassurance to the public that vital emergency services will be there when they need them. Although, in the main, appropriate derogations were provided by ambulance service unions last winter, our experience of strike action in different parts of the NHS this year has shown that we cannot rely on the good will of unions to provide appropriate derogations.

I now turn to the potential for the regulations to be burdensome. The department is currently considering whether further guidance is needed for employers and trade unions in the health sector to help with implementation of the regulations. This is in addition to the work undertaken by the Department for Business and Trade to publish work notice guidance and a code of practice that provides practical guidance on the implementation of minimum service levels for employers and trade unions. The Government have also committed to working with employers and trade unions to improve and strengthen the process of agreeing voluntary derogations. The department is currently scoping options on how best to take this work forward.

I now turn to the fatal amendment, which claims that the regulations will

“expose trade unions to liability of up to £1 million”.

I agree with the comments of my noble friend Lord Johnson, who spoke earlier today on the Department for Business and Trade’s code of practice. These regulations, however, are not where this £1 million liability comes from. The code will provide greater clarity to trade unions and employers which should help avoid expensive litigation. The code will also protect unions from the very liabilities that the noble Baroness raises in her fatal amendment.

I wish to address the suggestion that these regulations make trade unions enforcement agents of NHS employers and His Majesty’s Government. I wholeheartedly disagree with this suggestion. Naturally, on a strike day, NHS employers will ask staff who have been named in a work notice to comply with that work notice. It is the Government’s view that it is right and proportionate that there is some limited obligation on trade unions to help ensure that the minimum service level is achieved during a strike.

I must reassure your Lordships that these regulations are not at all about straining industrial relations between employers, trade unions and the Government in the NHS. These regulations would help create certainty and clarify expectations between NHS employers and trade unions regarding the level of cover available to the public on strike days. This greater clarity can only be beneficial for the relationships between trade unions and NHS employers. I therefore call on all noble Lords to reject this fatal amendment.

[Baroness Merron (Lab)]

My Lords, in the previous debate, my noble friend Lord Collins ably set out why the Act, the code of practice and the associated regulations will exacerbate conflict in the workplace and do more harm than good, in this case to NHS staff in the ambulance and patient transport service, as well as to employers and the public. I will not repeat the evidenced arguments we have already heard, but I support the view that the Government has got this one in the wrong place.

Noble Lords will have heard and be well aware that Labour has promised to repeal the Strikes (Minimum Service Levels) Act when we get into government, and I reiterate that we stand by that pledge. I note the fatal amendment again tabled by the noble Baroness, Lady Bennett of Manor Castle, and I hope that she will now agree that it is not the role of an unelected Chamber to frustrate the will of the other place, but I hope that she will find it possible to agree with the comments from my noble friend Lord Collins, who said that the only democratic way to get rid of this unworkable legislation will be through the election of a Labour Government.

These regulations are marked by draconian content which does not align with the more conciliatory language in the Government’s consultation response, in which there is significant emphasis on the potential for voluntary arrangements as an alternative to the issuing of work notices, to take one example. As the consultation document says:

“Instead of expecting that employers will always issue work notices to ensure”


that minimum service levels

“are met, we recognise that they may be able to secure the same level of coverage through voluntary derogations, and they can continue to agree and rely on these instead, as long as they are confident that the MSL will be met. Where employers decide that voluntary agreements are sufficient, this will give union members more flexibility on strike days; instead of either being on strike, or not, they can choose to strike but leave the picket line if needed, as they do currently”.

I observe that this kind of language and its tone and content fails to be reflected in the regulations, which are highly prescriptive in their insistence on how things absolutely must be. Perhaps the Minister could explain this disconnect. Does he accept that in times of industrial unrest, it is the language of conciliation that is needed?

--- Later in debate ---

[Noble Lords]

Minister!

[Lord Markham (Con)]

I thank noble Lords. In keeping with other comments, I will be brief in my response. We genuinely see a situation where, as the noble Baroness, Lady Bennett, said, we all agree that we want minimum service levels every day. As the noble Lord, Lord Collins, said in the previous debate, no one is against minimum service levels. All we are talking about here are the tactics to how we achieve that. I also totally agree with the point made by the noble Baroness, Lady Merron, that using the language of conciliation has to be the right approach in disputes. However, all these SIs are designed to do is to provide that safety net. To address the point of the noble Lord, Lord Rooker, there have been other circumstances where there was a genuine concern that strikes would not enable those minimum service levels to be fulfilled. That is what we are talking about today.

In response to the point made by the noble Lord, Lord Allan, I agree that it will be up to the ambulance’s trust, or the other trust when we come to other parts, to use its best judgment on how to achieve those minimum service levels. It is at management level, but it is then our job as the Government to hold them to account. Clearly, if during these strike actions the trust was not achieving minimum service levels, and there were certain standards which put patient safety at risk, in those circumstances I would be expected, as would any Minister, to ask the relevant trust why that was the case and perhaps to reconsider, because its judgment call did not bear fruit on that occasion. This is all about trying to give the trust part of the toolkit to ensure what we all want, which is minimum service levels. We are not compelling it; we are giving it the choice to do it. We hope that it is never needed but we believe it is an important part of the toolkit.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I note that no Tory Back-Benchers are speaking in favour of the Government in this part of the debate. I note also the comments made by the noble Lord, Lord Rooker, who came at it in a different way to how I did. The House is again and again butting against the question “If not now, when?” We have the power to act. Not acting is as much of a choice as acting is. I am sorry to disappoint the noble Lord, Lord Rooker, but I am aware of the time and the pressure to move on to more votes, so I beg leave to withdraw the amendment.

Cancer Research UK Report

Lord Markham Excerpts

Tuesday 5th December 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

The Government welcome the Cancer Research UK report Longer, Better Lives, which rightly highlights progress made against cancer. We have invested over £100 million in cancer research in 2021-22 through the National Institute for Health and Care Research. We are working closely with research partners in all sectors, and I am confident that the Government’s continued commitment to cancer research will help us to build on that progress, leading to continued improvement for all cancer patients.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for his Answer. The CRUK manifesto clearly highlights the priorities required for tackling rising cancer rates with a growing ageing population, including the need for more investment in research, greater disease prevention, earlier diagnosis through screening, better tests and treatments, as well as cutting NHS waiting lists and investing in more staff. Can the Minister outline what steps the Government will take to implement this strategy, allied with resources and updated infra- structure in all hospitals?

[Lord Markham (Con)]

Absolutely. I thank the noble Baroness for the work that she does in this field. I welcome the manifesto, specifically on rebuilding the global position in research. We have done a good job on that: we have gone from a position of 26% of the clinical trial responses being in time to international standards to over 80%. The biggest prevention method that anyone could take is to stop smoking because, as we know, that is the biggest cause of lung cancer, so we are introducing steps to prevent smoking. On early diagnosis, we have introduced an excellent example in lung cancer. Some 60% of people used not to be detected until they were stage 4, which is often too late. Now, through the mobile lung cancer units, we are detecting 70% at stage 1 or 2, where they have a 60% chance of survival. Across the field, we are doing a lot on this that we can feel proud of.

[Lord McColl of Dulwich (Con)]

My Lords, does the Minister recognise that one of the causative factors of cancer is obesity? Some 40 million people in this country are obese, and according to the latest estimate it is costing £100 billion a year. Is it not time to adopt the campaign technique that Norman Fowler—now the noble Lord, Lord Fowler—successfully conducted in the 1980s? He had the courage to state the truth and make sure that it was successful.

[Lord Markham (Con)]

Yes, we are taking extensive action on the obesity front. As well as being a major cause of cancer, it is the cause of a lot of ill health. We have taken a lot of action against 96% of the reasons given in obesity research on calorific intake, with regard to what people buy in supermarkets. Also, the soft drinks industry levy—the sugar tax—has decreased sugar in drinks by at least 14%.

[Lord Patel (CB)]

My Lords, I congratulate CRUK on producing this magnificent report and manifesto. Continuing with the theme of research, the report identifies the necessity of further closing the funding gap in research of about £1 billion in the next decade. This research is in key areas where our scientists are leaders in the world, such as the early detection of cancer using cell-free DNA and technologies such as messenger RNA for vaccine production, using genomes and early protein expressions for early diagnosis. The Minister mentioned the key area of reducing lung cancer using known technology, but it is in discovery science where we need to increase funding, especially when government funding falls far behind charity funding, particularly from CRUK.

[Lord Markham (Con)]

I agree that research funding is key. That is why I mentioned the £100 million that we spent in 2021-22. The Medical Research Council is also spending £125 million per annum on cancer research. That is allowing us to introduce vital things such as the point-of-care cancer treatments that our regulators that have brought in ahead of anyone else in Europe, showing the key flexibility that our regulators now have, meaning that people can have individualised cancer care. I agree that we need to invest in these sorts of activities.

[Lord Allan of Hallam (LD)]

My Lords, I recently had a meeting at one of our excellent specialist cancer hospitals. It explained that it had tens of millions of pounds in the bank that it would like to spend on facilities and equipment to support new cancer treatments, but it cannot. The only blocker is that it cannot get a certificate from the local integrated care board to authorise the capital expenditure. Frankly, I was astonished by that. I invite the Minister to explain, in terms that even I can understand, why the Government think it a good idea to prevent a world-leading hospital trust from spending money that it already has on much-needed cancer research facilities.

[Lord Markham (Con)]

I am not clear on the details of the case but will happily take it up with the noble Lord afterwards. I agree that, clearly, we want our leading institutions spending money where they can really impact change, and that is exactly what we are doing.

[Baroness Merron (Lab)]

My Lords, while any benefits of early cancer diagnosis will not be realised without timely treatment, the Government continue to not nearly meet the NHS target of 85% of patients starting treatment within 62 days of an urgent referral for suspected cancer. What assessment have the Government made of treatment delays on death rates, as well as anxiety levels for patients? If the Minister accepts the statistics that increased waiting lists for cancer treatment predate the pandemic, what will the Government now do differently?

[Lord Markham (Con)]

We absolutely need to bear down on cancer wait times. That is why we have been expanding supply in this area: the 130-plus CDCs, which have done 5 million tests, are all about that, as are the 50 surgical hubs. This means that we are treating 26% more cancer patients this year than last year and that we have managed to reduce the 62-day backlog by 27%. More work needs to be done, but we are getting on top of it.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, the problem that the Minister faces is that things may well be getting worse. Because of the extensive waiting lists, one major cancer centre in London is saying that the number of people referred to the cancer pathway has rocketed, because of a large number of people on other waiting lists. Among those that it is now seeing for the cancer pathway, only 2% actually end up having cancer. At one level we can celebrate that, but we know that it is not because the numbers with cancer are reducing. People are being referred into the pathway because it is the only way that they will be seen at the moment.

[Lord Markham (Con)]

No, I do not believe that is why people are being referred; it is to give them peace of mind. People know their own bodies and, if they are concerned about having cancer, they know that we want to put their minds at risk. I am familiar with that statistic. I had heard that 95% of people who go to these referrals, thankfully, do not end up with cancer but, boy, do they have peace of mind since we are able to give them that assurance.

[Lord Harries of Pentregarth (CB)]

I declare an interest, as I have a son who is an oncologist. As the Minister knows, one of the most serious forms of cancer—and growing at this time—is melanoma. The melanoma charities are campaigning to reduce the VAT on sun cream in order to reduce the incidence of this terrible cancer. Have the Government come to a view on this reduction of VAT?

[Lord Markham (Con)]

I do not think that the Government have come to a view but I understand the point. I will take that back to the department and the Treasury.

[Lord Turnberg (Lab)]

My Lords, we are doing reasonably well with certain cancers—leukaemias and breast cancer—but very badly with pancreatic cancer and colon cancer. Most of these are asymptomatic for a long while, until it is too late. We desperately need a test that will indicate that there is a disease coming. What research is being done in this area and what money is being spent on it?

[Lord Markham (Con)]

The noble Lord is absolutely correct that, while we have made good progress in many areas, pancreatic cancer is the hardest one and one where we need to do more. That is true all around the world, because the symptoms are so hard to detect. I will happily write with the details to give him an answer on that.

Sexually Transmitted Infections

Lord Markham Excerpts

Tuesday 5th December 2023 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare an interest as a patron of the Terrence Higgins Trust.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

We remain committed to improving sexual health in England. The UK Health Security Agency conducts comprehensive surveillance of sexually transmitted infections and supports local areas to use this data to inform sexual health services delivery. We are working with it and other key delivery stakeholders to explore options for the best use of both existing and innovative preventive interventions, as well as strengthening messages to the public on how to reduce the transmission of STIs.

[Lord Black of Brentwood (Con)]

My Lords, PrEP has been a game-changer in the fight against HIV, and making sure that as many people at risk of infection as possible have access to it is fundamental to meeting the target of ending new HIV cases by 2030, but at the moment we are failing to ensure that access because of the immense pressure on sexual health services. Nearly 60% of people are forced to wait more than three months to access PrEP through that route. Does my noble friend agree that one way to deal with this problem is to make PrEP available through pharmacists, as contraception now is—an initiative backed by the Royal Pharmaceutical Society—and does he recognise that such a policy, in line with the ambition of Pharmacy First, would not just relieve pressure on sexual health services but encourage uptake among women, who make up 31% of people accessing HIV care but represent only 2% of PrEP users?

[Lord Markham (Con)]

I thank my noble friend for all the work he does in this space and absolutely agree that we are world leaders in the use of PrEP. We have 86,000 people currently using it. It is a key prevention tool and something that we want to expand as widely as possible. There is an excellent pilot happening in Brighton at the moment, where you can get PrEP online, and I absolutely agree that we should look at Pharmacy First as a way to expand that even further.

[Lord Fowler (CB)]

Does the Minister remember reports on the AIDS campaign in the 1980s, which showed not just a reduction in AIDS but a fall in all other sexually transmitted diseases generally? How much is now being spent on such public education campaigns in this area? Is this spending increasing or decreasing?

[Lord Markham (Con)]

Overall, we spend £3.5 billion on public health. I do not have the breakdown of the advertising within that, but I will happily follow up with that. That is a small increase over the last year. Education is key to all this. Part of the reason for the increase in sexually transmitted diseases is that people used to use condoms because they were scared about two things: pregnancy and HIV infection. As both those risks have gone down, so has the use of condoms, which has resulted in the higher level of sexually transmitted diseases—so education is key.

[Baroness Barker (LD)]

My Lords, in 2022 the rate of STIs went up by 22% and, at the same time, the public health budget has been reduced by 29%. The strain on those services is now intolerable. Is it not time to have a proper, real increase in that budget?

[Lord Markham (Con)]

The figures are slightly misleading because, of course, that was in comparison to a Covid year, when there was much less testing. In fact, if you look at it versus pre-pandemic figures, the numbers are 16% down compared with 2019; that is the real comparison we should look at here. At the same time, I think we would all agree that £3.5 billion is a big investment in this space. It has gone up slightly over the past year but, as I mentioned earlier, education is also key in this space.

[Lord Hunt of Kings Heath (Lab)]

My Lords, can we come back to the issue raised by the noble Lord, Lord Black: whether community pharmacies could play a bigger role in relation to PrEP? Does the Minister accept that, although there is much that community pharmacies could do, they face a fundamental financial crisis at the moment, with many going out of business? Will the Government accept that they are going to have to give more support to community pharmacies for them to do the kind of things that the noble Lord is asking for?

[Lord Markham (Con)]

Yes. I believe that there is a real win-win possibility here, where we can get more services through Pharmacy First—obviously, that is good for primacy care access—and give further support to pharmacies. I was having this conversation just this morning. We made contraception available through pharmacies in April 2023; we will get the results of that back shortly. Things such as sexual health and PrEP are absolutely what we are looking at.

[Lord Bailey of Paddington (Con)]

My Lords, in view of the fact that it is often the hardest-to-reach communities that suffer the greatest pain from the uplift in sexually transmitted diseases, can the Minister tell us what work the Government are doing to reach such communities, particularly the young, to educate them so that they can protect themselves?

[Lord Markham (Con)]

My noble friend is absolutely right: young people—15 to 24 year-olds—represent one of the highest levels of this. In 2020 we made relationships, sex and health education classes available compulsorily in schools. We are currently reviewing that to see the effectiveness of it, with a view to expanding it further.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, can the Minister tell the House what the current rate of take- up is for vaccination against HPV—human papillomavirus —and what efforts are being made to make sure that all those who should be vaccinated are?

[Lord Markham (Con)]

I will need to come back with the exact figure for the vaccination rate. I know that it is proving quite effective, which is important. On the measures we are taking, we are investing £25 million in women’s health hubs precisely to enable these sorts of vaccination programmes. I will happily follow up in writing with the detail.

[Baroness Cumberlege (Con)]

My Lords, does my noble friend the Minister agree that, in this technological age, it is very important that people are able to access everything they need from the NHS via their phone or a laptop? I am working to ensure that all women have access to their maternity record via the NHS app, but only 23% of sexual health clinics currently allow online booking. Can my noble friend tell me how the Government plan to address this issue?

[Lord Markham (Con)]

I thank my noble friend. As she knows, I am a big advocate of everything that we can do with the app. We are absolutely looking to extend its services, which will include sexual health clinics. In the past year alone, we have increased from around 10% of GPs allowing someone to see their records to around 70% today. Sexual health clinics are clearly an area that we need to look at next.

[Baroness Merron (Lab)]

My Lords, with a real-terms cut of nearly a third for sexual health services over the past eight years, it is ever more difficult to get an appointment. Given that STIs increased by 24% last year alone, what assessment have the Government made of the potential to improve access to sexual health services through the universal provision of postal STI tests in England—something that Wales already offers?

[Lord Markham (Con)]

We are leading the world in all these areas. In a recent survey across the European nations, we came out top in sexual and reproductive health services, which I want on the record. Just last week, everything that we are doing in the HIV space was recognised as part of all this. This is another area in which we are looking to widen access as much as possible. I mentioned the examples of an online service in Brighton and, to the noble Lord, Lord Hunt, Pharmacy First. We are looking to make sure that access and testing are as widely available as possible.

[Lord Turnberg (Lab)]

My Lords, chlamydia is a cause of infertility. A vaccine has been developed and is in use. How far have we got with the programme of vaccination against chlamydia in both boys and girls?

[Lord Markham (Con)]

The noble Lord is correct: about 50% of all cases are of chlamydia, and it is undetectable in a lot of people. That is why we have started screening programmes of chlamydia in women, so that it can be picked up when it has been undetected, which we know can be done. As the noble Lord mentioned, we have a programme of chlamydia vaccinations for both females and males. From memory, I think the rate of boys vaccinated is about 30%, but I will come back in writing with the exact numbers.

[Lord Herbert of South Downs (Con)]

My Lords, the biggest single cause of death of people with AIDS globally is tuberculosis. Coinfection is a real issue. Although this problem is not nearly as serious at home, there are still thousands of cases a year and they have started going up again. Will my noble friend confirm that, post Covid, the Government will look again at what more needs to be done to eliminate tuberculosis—an entirely treatable disease—from our shores?

[Lord Markham (Con)]

Yes, absolutely, as we are in all cases. I want to be clear on this. My noble friend mentioned AIDS: the UN targets are 95%, 95% and 95% for diagnosis, treatment and viral load detection, and we are at 95%, 98% and 98%. We are beating the targets and leading the world on this.

National Health Service: 75th Anniversary

Lord Markham Excerpts

Thursday 30th November 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

I would like to start by giving our side’s condolences to the family of Alistair Darling. I echo the points on him made by the noble Baroness, Lady Merron. The noble Lord, Lord Brooke, talked about the cross-party working. Alistair Darling was one of those people who, while clearly a Labour politician, approached things in a very objective, cross-party manner. I know he will be missed by all of us.

I thank the noble Lord, Lord Hunt, for tabling this debate, which has been fascinating. It started off with a very informed and fascinating history of the NHS from my noble friend Lord Lexden, which enshrined the point that the noble Lord, Lord Allan, made: it has given us all that wonderful freedom to go to bed at night and feel secure, and to make life choices about where we work and who we live with without that being a worry. I agree with the basic premise that that is the duty of any Government.

I am also kind of—I am not quite finding the right words to say, but I was really marked by the point that the noble Lords, Lord Hunt and Lord Brooke, and the noble Baroness, Lady Pitkeathley, were at the 50th anniversary and took part in these conversations. That is quite humbling, particularly since I found out, strangely enough, that I am currently the longest-serving Health Minister. I am not sure that I will make it to the 100th anniversary, but I will take the advice of the noble Lord, Lord Prentis, by trying not to walk in the middle of the road and get hit. If I do make the 100th, I will definitely follow the idea from the noble Lord, Lord Dubs, of having a party.

I welcome the debate. While I will try to answer the points raised, given the 75th anniversary, and as others have mentioned, it is important that we try to make this forward-looking and look at the innovation agenda, which the noble Lord, Lord Hunt, and the noble Baroness, Lady Taylor, mentioned.

I will also address squarely and up front the funding point, which was mentioned by the noble Baroness, Lady Crawley, and others. Rather than only putting a nickel into this, we are putting in 11% of GDP—by far the highest amount in history. Tony Blair has been mentioned a lot. I well remember the Wanless review in the early 2000s, which talked about increasing the spend to about 8%—my memory might not be quite right, but it was about 8% of GDP. I do not think that anyone would say today that 11% does not absolutely show our commitment.

It is comparable to all other European countries. In fact, there is only one country in the world which has a significantly higher spend: America. I want to put that record level of investment on the record. As many have mentioned, it is of course important that we allocate that and use those resources as well as possible. I was very struck by the points that the noble Baroness, Lady Tyler, made about the productivity conundrum, so to speak, and those that the noble Lord, Lord Drayson, made on the technology agenda and innovation. I hope to address some of those points a bit later.

I put all this into the context of our knowing today that a digitally mature trust will be 10% more efficient. We have done quite a bit of work on this; it will be 10% more efficient than other trusts in its output and efficiency. Since a few people mentioned the new hospitals plan, I should say that we know that a new hospital where you unite the best in technology with the best in physical real estate will be 20% more efficient in its output. That is not just in productivity; more importantly, probably, we are also seeing a 20% reduction in the length of stays. The one statistic that has impressed me the most, as I have gone around in the year or so that I have been in this job, is that for every week a patient spends in hospital they lose another 10% of their body mass if they are elderly, so their ability to go home—back to the normal environment—degrades day by day.

We have been talking about what we are trying to do with the technology agenda and the new hospitals programme, but we are all here because we care about patient care. That is vital. We all want people to get back into their home environment sooner. We all know that the problems often come when you are locked in for too long. Then you need a social care space and can get into the downward spiral that we all know about.

As someone actively involved in the new hospitals programme, I assure everyone that there are action steps happening on all 40 of those new hospitals. They are all very real. I will happily talk to anyone about any of them if they should wish it, and show them my photos from visits to many of them as well.

The noble Baroness, Lady Donaghy, made a very good point: often, it is the short cycles which are hard. One thing that has not been spoken about very much, but was very much part of our new hospitals plan and the announcement in May, was our moving to five-year capital cycles. That will be really important for that long-term planning; work is going on as we speak around having 25-year to 30-year capital cycles.

I am trying to address the points raised. The noble Baroness, Lady Merron, understandably mentioned the waiting lists, as others did. Obviously, that is an area of concern but we have made good progress in the area of two years and are making good progress in the area of 78 weeks. We are focusing on those areas where there is the most impact. Undoubtedly, industrial action has impacted this, which is why I think we are all pleased that we now have a likely deal with the consultants. I am hopeful that it will extend to the junior doctors as well, but we have been working hard on that. We are trying to get on top of it: in terms of supply, there are the 130 CDCs with their 5 million tests. There is also the use of technology, such as patient choice with the app and the FDP, and we will see big improvements in what that does.

Through all this, we have been talking about the 13 years in which Conservatives have been in charge of the NHS in England. Of course, there have been 25 years that one party has been in control in Wales. I noticed that no mention has been made of Wales. While none of us is happy with the waiting lists, I know for sure that they are a lot better in England than in Wales.

I turn to the 62-day backlog for cancer. We all know that time is of the essence in cancer. We are seeing a 27% reduction in that backlog since 2020 and a record level of referrals; we are treating 12,000 people per day. We are starting to hit the 75% target of diagnosing people within 28 days. To put this into context, we are treating 32% more people for cancer than we were prior to the pandemic. We know that fast diagnosis is key.

One of the key differences in inequalities in life expectancy, as raised by the right reverend Prelate the Bishop of London, is lung cancer. Of the nine-year disparity, one year is caused by lung cancer. That is why we have things such as mobile screening, which we take on the road to areas where lung cancer is most prevalent—for example, in some of the mining communities. Rather than the majority of people with lung cancer not being found until stage 4, when it is too late, in the areas where they have been doing this we are finding the majority of people in stage 1 or 2. That is so much better in terms of life chances. That is how we will achieve the target of detecting 75% of cancers by stage 1 or 2 by 2028. To give some context to that, we estimate that it will mean that 55,000 more people will be surviving as a result by then.

There has also been talk about waiting times for ambulances and A&E. While they are too high, I am glad to say that they are improving. We have been making sure that we have learned lessons. We are taking action for this winter by increasing supply, with 800 new ambulances, 5,000 more beds to increase capacity and the 10,000 virtual ward beds we will have in place. We are using technology, which I will come to later, to make sure that they are being most effectively used. We are making sure the hospitals are digitised. We have features such as those I saw in Maidstone, such as flight control, where you allow the clinicians to manage the flow of patients right the way through.

Key to all this and to the length of stay is discharge and the adult social care end. Quite rightly, as the noble Lord, Lord Prentis, said, the flow is important. It is vital not only on the social care side, but for the whole hospital and the UEC—urgent elective care—waiting lists. I have seen at first hand the impact of step-down areas. Patients can be put there early on, and everything is organised around that. I have seen the improvements that makes to the flow.

We are trying to learn the lessons of last year by getting the money and commitments out early. That is why we are making a commitment of £600 million extra spend. We told the local authorities and systems that in the summer, so they could plan now rather than hearing about it too late and not being able to impact it then. That is all part of an increase of up to £8.1 billion over the next two years—a 20% increase. Staff are at the centre of that, as mentioned by the noble Baroness, Lady Pitkeathley. It has been a difficult area, but we are now up in terms of staff versus last year. I accept that there is still a long way to go. My notes show that we have about a 15,000 increase in staff, but clearly, we need more within that.

Mental health is obviously a key part of this. As the noble Lord, Lord Davies, and others mentioned, now more than ever we are seeing a massive increase in the number of young people with mental health issues—we had a good debate on this the other day. As I have said, I am determined that we understand the reasons underneath that. Covid might be part of it, but there are also long-term reasons, such as social media, that we need to understand. As the noble Lord, Lord Davies, mentioned, we need to make sure we diagnose those early, because that is crucial, particularly for young children. As noble Lords know, I have personal experience of the importance of acting early on this.

On the mental health Bill, we are committed, as mentioned, to do as much as we can without the legislation—hopefully we can explain a lot of that when we have the round table. Although getting it in the manifesto might be above my pay grade, I personally agree to make sure that all my colleagues understand its importance today and in a year’s time or so, if we were to win a general election.

Many noble Lords—the noble Baroness, Lady Tyler, and the noble Lords, Lord Prentis and Lord Hunt, to mention a few—raised the importance of staffing and how everything is underpinned by it. The noble Baroness, Lady Walmsley, and the noble Lord, Lord Hunt, in particular picked out—and I completely agree with them—that it is not just the clinicians but the managers, the admin and the non-clinical staff who are key to this as well.

I am a bit of a data anorak, and one of the things I did when I first came into my post was to try to understand all the differences in hospital performance, looking at certain areas’ demographics and whether they happened to have more funding through a quirk of the formula. I put in all sorts of variables, but we could only ever explain 50% of it—for the data anoraks, I say: the r² never came out higher than 0.5. The only conclusion that I and others could come to from that was—this is not earth shattering—the management and the leadership. I have had the privilege of visiting a lot of hospitals, and when you walk into one you know early on about the leadership—you can tell it on the tour and through the reaction, less from the leaders and more from the staff. You get a vibe about a place. I totally agree about the importance of that.

I come to the specialist areas. The noble Baroness, Lady Taylor, mentioned optometrists, and, funnily enough, I had this conversation with one the other day, and they mentioned that many of the early, indicating warnings are picked up when they take retina scans. That is why the long-term workforce plan is important, as are the extra training places. But, as the noble Lord, Lord Prentis, said and as I know from my experience with my mother, the other routes, such as apprenticeships, are just as important if we are going to get them there, because you should not need to be a graduate to be a nurse or clinician. As the noble Baroness, Lady Finlay, mentioned, it is vital that it is a rewarding and accommodating profession. Training and development are obviously part of that. I hope to talk more to noble Lords soon about using the estates for a lot more housing, because we know that can be a key recruitment and retention tool. Then there are things such as flexible rotas—hopefully, we will be able to use technology for that.

In terms of talking and working with the staff, I have to say that is something that is early days, but we are seeing the style and the engagement of the Secretary of State already and it is very welcome. Underpinning the long-term workforce plan, which many noble Lords have mentioned, is the move away from hospital treatment and into primary care and prevention. We know that that is the first line, and we are now close to achieving the 50 million increase in appointments—but we know, given the demand, that that is still not enough. That is where the Pharmacy First scheme will make a material difference, in expanding the supply of places where you can get the advice and treatments that you need.

I have seen some great examples of prevention, also mentioned by the noble Baroness, Lady Pitkeathley. Funnily enough, just yesterday I was talking to one of the doctors—I am sure that many of you know him—Sam Everington from east London. He was talking about how he was taking type 2 diabetes treatment totally out of the hospital environment, and the difference that it is making there. I have mentioned before the Redhill frequent flyers, looking at the people who are having the most hospital treatments and how they can get upstream of it all. Screening is important to that, which is exactly the point that the noble Lord, Lord Cashman, was making about the HIV screening programme. That needs to be welcomed—making sure that many more people are seeing that and understanding it.

The noble Baroness, Lady Taylor, talked about an active and healthy lifestyle and its role in social prescribing, which I completely agree with. I know that all noble Lords are on the same page here. The anti-smoking legislation that we are talking about is the biggest single thing that we can do towards that active lifestyle going forward.

I have mentioned it a few times, but I really believe that what we do in terms of technology and the app will be key to this, in terms of people’s access to primary care. People can use the app as their front door, from which they will be guided to the right service—to the 111 service—and then directly make an appointment, be it with a doctor or nurse or with a pharmacy. We have seen already that because people are reminded on the app, the numbers of “do not attend” have gone down by 10%, when people make their appointments digitally in that way. Of course, that means a much more effective use of time. Talking of time, I notice that I am out of it, so I shall quickly finish up. I see massive ability in the app for people to take control of their health and give us that sort of data, so people have the information and trust behind it.

I could have written the speech made by the noble Lord, Lord Drayson, myself—and I quickly acknowledge everything that he said about the problem. He said that we have great examples of innovation and really difficult cases of how to scale that up. I am exaggerating slightly to make a point, but when they have a great example in one place, they say, “Fantastic, it works in X hospital, how can we get it elsewhere?” It is like, “Here’s the telephone directory with 140 trusts and the buyers—good luck”. A lot of what I am trying to do, as the noble Lord, Lord Drayson, mentioned, is to look at how we scale that up, and have a way to buy sensibly from the centre and get that spread out. In the area of digital therapeutics, that is obviously vital.

Given the time, it is probably time for me to sum up, as I say. As ever, I shall write to noble Lords in detail. I have not answered the points that the noble Lord, Lord Cashman, raised about international cosmetic operations, and others. Likewise, I have not addressed the fracture liaison services, and the points made by the noble Baroness, Lady Donaghy, and the noble Lord, Lord Lexden, so I shall make sure that that is properly followed up in writing.

I finish by echoing what the noble Lord, Lord Brooke, was saying, which is to try to take this out of the Punch and Judy and make it as cross-party as possible—

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the Minister understand that I will have no time at all to respond?

[Lord Markham (Con)]

I apologise: I will sit down this moment.

Health Care Services (Provider Selection Regime) Regulations 2023

Lord Markham Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[Lord Markham]

That the draft Regulations laid before the House on 19 October be approved.

Relevant documents: 1st Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, the Government are committed to giving patients better, more joined-up healthcare services. To do so, we need to ensure that we have the right procurement regime so that the NHS can best allocate resources which meet the needs of patients. These regulations do that. They would establish the provider selection regime on 1 January 2024.

This House knows that the challenges we face as a country are changing, and the NHS is changing to address them—an ageing population, an increase in people with multiple health conditions, and persistent inequalities in health outcomes. We must respond to these challenges. To meet them, we need to provide an enabling and empowering framework that allows the NHS to combine the value of competition with the benefits of collaboration in the interests of patients.

In March last year, the Health and Care Act 2022 was passed. It sought to bring together NHS organisations and partners to tackle issues in our health and care system. This instrument builds on that progress. In 2019, engagement across the NHS identified that the use of the current rules on procurement presented a bureaucratic barrier to bringing NHS organisations and partners together. NHS colleagues wanted a framework that allowed them to use the right approach for different scenarios; a framework that included competition without defaulting to it and which supported the increased need for the alignment of services, including those provided by non-statutory organisations in the voluntary sector, to join up care for patients. The Government developed the legislative framework in the light of these requests. Furthermore, in June 2019, the Health and Social Care Committee also agreed that this was the right approach to

“ease the burden procurement rules have placed on the NHS, ensuring commissioners have discretion over when to conduct a procurement process”.

As our colleagues in the NHS and across the health system have emphasised, we must seek to balance a system-driven approach to planning services while recognising the importance of provider diversity for service innovation and value. That is also why my officials have worked closely with a broad range of colleagues and organisations across the system, including both commissioners and providers of healthcare services, to prepare the instrument before you today. This work has included extensive consultation. In 2021, NHS England published a consultation on the detail of the policy behind this instrument. Of 420 responses received from NHS representative bodies and individuals, 70% of respondents agreed or strongly agreed with the detailed proposals set out in that consultation. In 2022, the department published a further consultation to help inform the detail of our regulations.

Finally, we have not neglected to do the analysis of impacts associated with this regime change. Our voluntary impact assessment shows that, in the most likely scenarios, introducing this instrument will deliver savings to the NHS by reducing bureaucracy. Although it is difficult to provide a precise figure ahead of monitoring this regime, those noble Lords who have read the assessment will be aware that our central estimate suggests that savings of up to £230 million are possible. While I am on this subject, I was very glad to see that the Secondary Legislation Scrutiny Committee welcomed our consultation and voluntary impact assessment in its report on this instrument.

To summarise, the instrument reflects engagement and careful balancing to present commissioners with the right options for procurement so that they can find the most collaborative, value-add solutions that will work for patients. Engagement with providers has told us that both more collaborative approaches to healthcare—where those with services to offer can get around the table, help break down barriers and promote provider diversity—and putting a contract out to tender are valuable and need to be in the commissioner’s toolkit. That is why this instrument reaffirms the role of competition in arranging services by providing explicitly for those processes, while also providing some flexibility to commissioners to adopt a more direct approach.

As many noble Lords will know, getting the balance of a framework right to promote the best culture and behaviour on the ground is tricky. I am glad, therefore, that we have worked so closely with providers and commissioners to find and test that balance. One result of that engagement was to agree to establish an independently chaired panel which will act as a non-statutory advisory body for contested decisions made under this regime. We intend that this will help commissioners think carefully about the approach that they take to procurement, and its justifications.

Furthermore, we must ensure that the system understands these rules so that it can have the best chance of promoting the right behaviour on the ground. That is why NHS England is leading an extensive programme of familiarisation with those draft regulations and the draft statutory guidance, which is available online. Of course, legislation and guidance are only part of the story of how the new legislation will influence outcomes. That is why the department is committed to monitoring and evaluating this new regime from its implementation.

For these reasons, I am content to move these draft regulations, which, subject to the approval of the House, would bring the provider selection regime into force. I beg to move.

[Lord Stevens of Birmingham (CB)]

My Lords, I welcome these regulations. They get the NHS off the hook from inappropriate compulsory competitive tendering of clinical services but also avoid throwing the baby out with the bathwater. Open procurement will remain an option where it is in patients’ and taxpayers’ interests.

In my previous experience, there have been several problems with the way in which the accretion of UK procurement rules and the EU procurement regime have tied the hands of the NHS. We have often had to go through the motions of competitive clinical procurements for services that would quite obviously be provided only in one place and by one part of the NHS—for example, billions of pounds-worth of specialised cardiac and cancer services for which it was blindingly obvious that the Germans and Italians would not turn up and try to replace Leeds General Infirmary or St Thomas’ Hospital. These regulations make these processes honest, in that when we embark on procurements, it will be for a good reason.

A related problem is that the legacy procurement rules have tended to lead to too much service fragmentation. We have seen examples where community nursing services have had to be tendered out but core general practice services have not, so getting the community nurses and GP practices working together has been much harder. One of the fragmenting consequences of the 2012 Act was that a lot of what had previously been NHS services became local authority-procured, and so sexual health services and health visitors were operating on a different procurement process through local authorities rather than through the local NHS. The Health and Care Act 2022 and these regulations overcome that problem. The NHS will still be subject to transparent and fair procurement, but it will now be much more flexible and proportionate.

The regulations are quite complex. Those noble Lords who have read through the materials may agree that it is fair to say that they will not command the attention of the pubs and clubs of Barnsley or Barnstaple, but they will make a huge difference to the way in which care is delivered right across the country.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I bring more cheer to the Minister by adding our support for these regulations—I thank him for bringing them before your Lordships’ House today—because the provision of this statutory instrument is to define and give relevant authorities greater flexibility to procure healthcare services. This will, I hope—I know that other noble Lords also hope this—benefit patients and service efficiency by better integrating services. Like the Minister, I am pleased to note that the policy behind these regulations has been informed by both a voluntary impact assessment and an extensive consultation that received 70% support from 420 respondents; this is welcome news.

It is the view of the Opposition that the NHS should be the preferred provider of commissioned healthcare services, not least because it embodies not just a public service ethos but efficiency, resilience and democratic accountability. It is also the case, particularly in the short term, that, in order to treat NHS patients and bring waiting lists down, the independent sector has an important role to play where a service cannot be provided by a public body because the capability or capacity just is not there.

Your Lordships’ House may recall that, when the Health and Social Care Act2012, which my noble friend Lord Hunt described as “wretched” on several occasions, went through its various stages in Parliament, these Benches argued that relevant authorities should have the appropriate flexibility to award contracts, which was something for which the Act did not provide. As my noble friend identified, the competitive tendering requirements of that Act did not serve the NHS, patients or the public at all well. Therefore, where we are today with the provider selection regime, which does allow for this, is as long overdue as it is welcome, as is seeing that good sense, flexibility and efficiency will now apply.

During the passage of the Health and Care Act 2022, these Benches also argued for the legislative provision to be made as outlined in these regulations. Although the Government did not take that on at that time, I am glad that the benefit of hindsight has prevailed and that the Opposition’s view, which was set out during the course of that debate, has now been set out in these regulations.

As the noble Lord, Lord Stevens, illustrated so well, these regulations recognise that it would not be an efficient use of resources in certain circumstances for relevant authorities to use competitive tendering, but that there continues and needs to be a procurement process that relevant authorities can and should use. As the Minister will be aware, concerns have continually been raised about the impact of the current procurement framework, which often places additional burdens on community and mental health providers in particular, where services have been much more likely to be subject to expensive and disruptive competitive tendering processes. I therefore welcome the alignment of the PSR’s aim with the spirit of collaboration within health and care systems, as well as the offer to commissioners and providers of a clear and transparent process by which procurement decisions can be made.

The PSR will offer a consistent model for both NHS and local government bodies to follow with regard to health services, and I hope that this will support local relationships and decision-making, as well as integrated care. However, it is important that national bodies engage with all organisations that will be subject to the new regime in an effort to smooth the transition to a new procurement framework.

I ask the Minister for more detail on how NHS England and the department will review the application of the PSR over the course of the next year to ensure that real-time feedback on the operation of the regime can be collected, as well as evaluated and, importantly, acted on as swiftly as possible. I make this point as it will be crucial to capture feedback on whether any difficulties arise for commissioning bodies in selecting which procurement process is the most appropriate across various different scenarios and circumstances, and whether any challenges arise for providers in the application of their approach.

My noble friend Lord Hunt emphasised the need for support, training and guidance—something that other noble Lords also emphasised. This is a point that the Minister would be well advised, as I am sure he is, to pay absolute attention to, so that we support those who work in NHS procurement and the NHS supply chain, not least because the combination of these regulations, other regulations and other Acts is something of a complex field. We should support and guide those who make the interpretation and the application, and, if necessary, adjust in real time any of that training, support and guidance. More information from the Minister about how this will be done will be extremely welcome.

I am aware that NHS Providers has worked with membership bodies for providers in the independent and voluntary sectors, the department and NHS England to make the case for the new regime to include a challenge function for decisions made by commissioning bodies to be reviewed and scrutinised if appropriate. Although the PSR panel does not have legally binding powers, does the Minister consider it appropriate to give providers some opportunity to challenge the application of the regime and raise legitimate concerns where appropriate?

As I said at the outset, I am glad to provide our support to these regulations. I hope that we can look forward to great improvements because of them in the years ahead.

[Lord Markham (Con)]

I thank noble Lords and welcome the support offered. I appreciate their understanding on my lack of comments on 2012 and all that. I also appreciate having the vast experience of the noble Lord, Lord Stevens, and wonder whether he could be here so that I can phone a friend on some of the questions we have, because I fear he may be far better qualified to answer a lot of them. I will take home the “Think like a patient, act like a taxpayer” mantra.

I think we all agree that, although this is welcome, it is complex. We are trying to set out an approach, knowing that really we want sensible people to act sensibly around the table and to co-operate with each other. We all know that it is very hard to put a rules-based system around that. As all noble Lords have mentioned, the training of staff in that is vital. I have some personal experience, as I know the noble Lord, Lord Hunt, does, of many of the people in this space, and I have to say that they are very good people. My experience is obviously much more on the national level, but clearly it needs to be taken down to the local level as well.

I believe we are publishing the strategic framework for NHS commercial tomorrow. That tries to set out the importance of commercial capability, and the investment and critical skills required. It will be accompanied by a programme that sets out what upskilling needs to be done and a programme, with support from the Crown Commercial Service, that I hope we can effectively use to upskill in the way that we all believe is necessary.

To answer the point by the noble Baroness, Lady Merron, whenever you are trying to put in place a value-based system, for want of a better word, in terms of culture, you have to have those guard-rails around making sure that there are appeals processes and lessons learned. My understanding of this independent panel is that companies or providers that feel they have been wrongly excluded will have the opportunity to appeal directly. I have challenged them quite strongly on that, given my experience in this space, and asked how much a company will really want to be awkward. Often you know that if you are being awkward and challenging, that might make life more difficult for you in future, so there are some difficulties involved there. A lot of companies often ask whether that challenge is really worth it. Getting that right, with the panel, is vital, so that it is welcoming and open and that, as the noble Baroness, Lady Merron, says, there is that “lessons learned” kind of constant review. At probably the year stage, we will look to understand how it has gone so far and what we can learn from it.

Having been involved in quite a few start-ups, I am also very aware of the point the noble Lord, Lord Hunt, made. Time really is money in these things; a regulatory process that is opaque or cumbersome is not very helpful. I acknowledge some of the issues the MHRA has had. That is what the £10 million investment behind it is trying to address. I know it is very much looking to act on this.

A very good example of that is what the MHRA is doing in the point-of-care space. One Brexit advantage that I have seen is the ability very quickly to set rules around point-of-care medicines, particularly around when you take a biopsy and then provide an individual patient with treatment according to that for a certain cancer. Clearly, if you follow the strict rules, you would have to be regulating that every single time, and that just would not work. The MHRA has introduced a sensible framework that tries to adopt an umbrella-type approach. I know that the MHRA understands the possibilities in this space and really wants to use this as an opportunity to show that we can be fleet of foot and leaders in that space from it all.

On the point raised about trusts sometimes having a conflict and the example provided by Specsavers, that is what the panels are supposed to be there for. It is important—I will check this out—that, in the rules, we are guiding the 42 ICBs on how they should manage some of those conflict situations and when they should put people aside. We have all managed it in our corporate and public lives, and there are rules about it. Just as we put the emphasis on noble Lords to declare interests and so on, clearly we must make sure that there are similar rules for the trust CEOs, but it is a point well made that we need to pick up. I look forward to going into some of these issues much more when we have the value-based procurement meeting shortly.

On how we can make the analysis available, I have seen a tool that the NHS has recently introduced which is very good in terms of being able to drill down straightaway and provide that analysis. That is a good base point. I will find out some more about how that needs to be tweaked, but there is a basic premise about making that information available—that is a sensible move. On the point made by the noble Baroness, Lady Merron, it should be used to arm providers with the ability to challenge the panels.

I welcome the input. Such is the knowledge base around this, I am happy to suggest that, in nine months or one year’s time, we have that round table where I will appreciate some of the skills here. We can ask how it has gone down so far. We can do that through a debate, but it is probably better done through a round table, so I would like to propose that so we can learn the lessons.

In summary, I welcome the points made and that noble Lords believe that this is the right direction, although it needs work along the way to make sure it stays going in the right direction and does what we hope it does. With that, I commend the draft regulations to the House.

Motion agreed.

Health Protection (Coronavirus, Testing Requirements and Standards) (England) (Amendment and Transitional Provision) Regulations 2023

Lord Markham Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[Lord Markham]

That the draft Regulations laid before the House on 19 September be approved.

Relevant document: 1st Report from Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, I draw the House’s attention to my declaration of interest in the company that I founded, which was accredited under these rules. The fact that it is accredited means I have some experience, which always helps in an area. It is not affected by these regulations, but I was keen to state that for the record.

The 2023 regulations update the legislation introduced in 2020 to impose requirements on private providers of Covid-19 diagnostic testing. Once they are implemented, private providers will need to be accredited by a signatory of the International Laboratory Accreditation Cooperation mutual recognition arrangement before they can supply testing. These measures replace the current three-stage UK Accreditation Service process with a simplified and streamlined one. They also remove requirements that are no longer necessary due to legislative developments that have taken place since 2020. The changes will empower consumers to choose a private testing service with confidence, continuing to improve safety and quality. During the Covid-19 pandemic, the Health Protection (Coronavirus, Testing Requirements and Standards) (England) Regulations 2020 focused on enabling providers who met appropriate quality standards to be able to rapidly enter the private testing market. This struck the appropriate balance at the time between protecting public health and growing the market quickly.

I am pleased that the worst of the pandemic is behind us, so the urgent need to grow the Covid-19 testing market quickly no longer applies. The department has therefore reviewed the 2020 regulations and proposes that all private providers must be fully accredited before providing testing services. This amendment will bring in requirements and standards that help to strengthen consistency, safety and high-quality Covid testing services.

I am pleased to be debating the statutory instrument that is necessary to implement our proposed updates to the existing legislation. The 2020 regulations introduced a three-stage accreditation process for organisations providing Covid testing commercially. The three-stage accreditation process requires providers to satisfy the UK Accreditation Service that they meet the relevant ISO standards within a set timeframe. Stage 1 requires the private provider to make an application to UKAS for accreditation and make a declaration to DHSC that they meet and will continue to meet certain minimum standards. Stage 2 requires the applicant to demonstrate, within four weeks of applying for accreditation, that they meet requirements published by UKAS. From January until June 2021, stage 3 required providers to complete their application within four months.

We wanted to ensure that a greater number of high-quality applicants were given sufficient opportunity to complete the process and reduce resourcing constraints on UKAS while maintaining quality control. In June 2021, we passed legislation to update stage 3. Applicants were now required to achieve a “positive recommendation” from UKAS within four months of completing stage 2. Provided they received this, they then had a further two months to achieve accreditation. Providers who fail to meet any of these deadlines, or fail to satisfy UKAS that they meet the relevant standards within this timetable, have to stop supplying testing. The purpose of this approach was to ensure that enough providers were able to enter the market soon enough to meet the public demand for testing. It ensured that we were not as a country left with insufficient testing capacity while still putting providers through an appropriate process.

Now I move to the substance of the regulations. The 2023 regulations implement several policies coming into force from 1 January 2024. First, private providers—diagnostic laboratories, sample collection and point-of-care testing—must be accredited against the appropriate ISO standard by a signatory to the International Laboratory Accreditation Cooperation mutual recognition arrangement before they can start supplying their service. This replaces the three-stage accreditation process. Since setting up this process, the Medical Devices Regulations 2002 were updated to prescribe a specific process for the validation of Covid-19 test devices. We therefore no longer need test validation measures in these regulations as well, so we are removing those. Secondly, the amendments reflect the publication of the updated ISO Standards 15189:2022. The amendments are forward-looking and do not affect private providers who applied under the previous ISO standards—ISO/IEC 17025:2017—before this instrument came into force. Lastly, this instrument removes the requirements to make a declaration to DHSC at the start of the application process and shifts the legal responsibilities for the clinical service to the private providers providing the clinical service, rather than the customer-facing part of the testing service.

The amendments will hold providers to high standards, by requiring them to be accredited before they can join the market. This will give confidence to individuals choosing Covid-19 testing services. The amendments also remove the additional requirements and administrative steps that were necessary in the early stages of the pandemic. Those who have already achieved accreditation will be unaffected by the change; that is, they will not need to reapply for accreditation under the new regulations. All private providers will be required, as normal, to transition to the new ISO standard by 6 December 2025 at the latest.

The amendments allow private providers who are accredited by a signatory of the International Laboratory Accreditation Cooperation mutual recognition arrangement to enter the market. The UK Accreditation Service is one of 90 accreditation bodies that have signed the arrangement. It enhances the acceptance of products and services across national borders. By accepting accreditation from these signatories, we help to remove barriers to trade such as the retesting or inspection of products.

Private providers must be accredited to the relevant ISO standards for clinical testing services. These standards were reviewed and updated in 2022 and transition proceedings have begun: the old standards will be revoked in 2025. The existing 2020 regulations do not reflect the updated ISO standard. So, if we did not make these amendments, providers who transition to the new ISO standards—as they are required to do—would not under our own rules be able to provide testing services. This is a clear lacuna that we need to address.

I am happy to be bringing forward this legislation today. These regulations will reduce bureaucracy whilst still delivering rigorous accreditation requirements, important for public health. I commend these regulations to the House.

[Lord Allan of Hallam (LD)]

My Lords, it is good to be able to debate a piece of legislation that is quite technical but still quite important. The regulations themselves are entirely sensible as tidying-up legislation after the coronavirus pandemic, but they trigger a few points that are worth putting on the record and seeking a response from the Minister on.

The first is just to note that it is good that we are following the international standards on this. I am sure all noble Lords experienced that period during the pandemic when there was confusion around which countries accepted whose tests and it became blindingly obvious that we needed international recognition. It is pleasing that we are following a standard that, as the Minister said, 90 bodies are now signed up to. It is good to have the confidence that when we pay for tests here in the United Kingdom, there is a good chance that they will have that international recognition. Does the Minister have a sense of whether other countries are following a similar path, where they implemented a special regime during the pandemic that they are now transitioning into a normal regime, just as we are doing today? Is the United Kingdom in step with other countries or are we ahead of or behind them? It would be interesting to know that; I assume the department has done some work around it.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I thank the Minister for introducing these regulations, to which we too are pleased to give our support. We have clearly moved on from where we were in 2020, when the original Covid regulations for testing service providers were agreed and “lateral flow device” was not a household term. Looking back to 2020, these Benches supported the regulations then because we recognised the urgent need to enable new service providers to meet the demand for testing services. We also noted that that had to be balanced with the importance of public health protections and regulations to build safeguards into the system and, so importantly, to give people the confidence that services could be trusted to keep them safe.

As the Minister outlined, the regulations apply to clinical Covid-19 testing services such as diagnostic laboratories or those that carry out point-of-care testing. The regulations will mean that these services are no longer subject to the additional requirements introduced early in the pandemic and, as such, reflect an update to meet us where we are now. They also reflect the update to the international standards since last year.

It is important to acknowledge what the regulations will not change. As the Minister said, providers will still be required to seek accreditation against the appropriate ISO standard. Test devices will still need to meet the requirements set out in the Medical Devices Regulations 2002, just as they did before the pandemic. In my view, this strikes the right balance. As the UK Health Security Agency has noted, accreditation was not mandatory prior to the pandemic but NHS England and Public Health England endorsed all medical laboratories being accredited with the United Kingdom Accreditation Service. The process for laboratories to achieve accredited status took anywhere between six and 12 months. Given the changes we are discussing, how long does the Minister expect the accreditation process to take now?

As it is so important that we learn lessons from the past and apply them to the future, I have a few questions on this generality to the Minister. What confidence does he have that new providers will be able to meet the various deadlines to meet the new ISO requirements? How will the regulations we are discussing be enforced? Does the United Kingdom Accreditation Service have the resources it needs for enforcement? How many fines have been issued to non-compliant providers since the 2020 regulations came into force?

I am sure that the Minister will agree that it pays to think about the state of the market now. How many UKHSA-accredited providers were there at the pandemic’s peak, and how many are there now? As some companies wind down their Covid-19 testing capacities because of reduced demand, what assessment has the department made of how the market is changing and how such diagnostic capabilities could be deployed to meet other ends?

In concluding, I take the opportunity to ask the Minister about one of the biggest scandals among private providers during the pandemic: that relating to the company Immensa. Local public health experts were baffled as to why an NHS Test and Trace contract had been given to the company while high-quality diagnostic services, such as those at the University of Birmingham, were being wound down. Immensa was awarded more than £100 million in a contract to carry out Covid testing in September 2021, without going through the normal tendering process. It was subsequently found to have been one of 50 firms that had been put into the priority lane for test and trace contracts worth billions. It was also found that PCR test results from Immensa’s Wolverhampton lab had misreported around 40,000 positive results as negative between September and October 2021, leading to significant additional infections at a critical time and an estimated 20 extra deaths.

I have specific questions on this issue and I would be grateful if the Minister could respond to me, if not now then in writing. Neither Immensa Health Clinic Ltd nor its related company Dante Labs Ltd was accredited by UKAS at the time of the scandal, despite the regulations that we are amending today. Immensa was a new entrant to the market and was supposed to go through the three-stage process, yet it was awarded vast sums of public money to rapidly expand the capacity of NHS Test and Trace in the autumn of 2021. One would expect high standards from a private provider in exchange, but that did not appear to be the case. An investigation by UKHSA found that, despite requirements for accreditation being written into the contract, the department and NHS Test and Trace decided that they would not apply. As such, Immensa was not accredited at the time of the false negatives scandal, even though the department claimed otherwise. Is the Minister able to confirm what actually happened in this case?

The findings of the UKHSA report risk undermining the rest of the system, if providers could not be encouraged to circumvent the correct process and there were no consequences as a result. Why were the department and NHS Test and Trace so determined that special measures should be put in place for this provider? I am not aware of any consequences for any officials or Ministers responsible for the shocking findings of the UKHSA investigation. Perhaps the Minister can confirm whether this was the case and, if so, why? Given the tens of millions of pounds of public money involved in the scandal and the dire consequences of the mistakes, can the Minister advise your Lordships’ House what efforts the Government have made to get the money back?

In conclusion, these Benches support the statutory instrument. We very much agree that now is absolutely the appropriate time to review the exceptional measures that were taken early in the pandemic while ensuring that appropriate regulation and confidence remains in place.

[Lord Markham (Con)]

I thank noble Lords for their responses and generally for the support they offer for what we are trying to do here. As I say, for a lot of my answers I will draw from personal experience. The whole of that time was extraordinary, as we know. To my knowledge, it was the first time where you had a situation in which masses of people could be tested for something. However, it needed laboratory-based testing, and suddenly the amount of volume needed for the general public was completely out of anyone’s imagination as regards the volume of the market. I remember trying to understand the rules at the time, as somebody who might set up such a company to do this, and I quickly found out that there were no rules, in that nobody had ever quite envisaged such a situation and the only rule that existed was around getting an ISO process, which typically took 12 to 18 months.

What the Government did there—again, I am speaking from the other side of the fence—was to create a good process of trying to funnel people, starting off with quite easy ways to get you through the funnel because they wanted to expand it as much as possible, but then effectively making it progressively harder while still trying to keep the good suppliers in the mix. By and large they did a decent job on that. I saw some providers completely gaming the system, in that they kept ticking the boxes as long as they were allowed to tick them and then as soon as it came to a hard task, for want of a better word, they folded up shop. There was definitely some of that, and the funnel sorted out some of the wheat from the chaff along the way, but at the same time I will not pretend it was a perfect process.

I say all this from sitting on the other side of the fence and having to jump through necessary hoops, but I actually think it was a decent process at the end of the day. As ever, I will come back in writing on all this, but my understanding was that it was a fairly similar process to that followed by other countries, and they are now going through a fairly similar process to regularise this.

As I said, I absolutely looked at the difference in outcomes versus existing regimes, and I am under no doubt that, if we kept the rules of the existing regimes, the supply would not have expanded in the way required at the time. On what the Government were trying to achieve, the evidence shows that they achieved a decent outcome, where, by and large, the quality outcomes were pretty good, although not perfect—the noble Baroness brought up a good example of where it definitely was not perfect. By and large, they did a decent job on that.