Health and Social Care Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Williams of Crosby

Monday 27th February 2012 Lords Chamber

[Baroness Williams of Crosby]

My Lords, owing to the need to make progress I shall speak briefly, but my noble friend Lord Marks of Henley-on-Thames will be speaking in greater detail about the amendment.

It is short, perhaps deceptively short, but it has real significance and is related in this group specifically to Amendment 94A. The government amendments respond to aspects of these amendments, too. Amendments 49A and 94A set at the very centre of the Bill, which has the full support of all of us who want to see the NHS thrive, that the interests of patients should be paramount. The importance of that phrase is that in every single aspect of what we try to do, it shall always be the case that this is the way in which we think—whether it is how CCGs operate or how foundation trust hospitals operate. This has emerged in our debates increasingly as the central concept—the one to which we should always refer back. That will give us the guiding light that we need for the Bill.

It is significant because, in many cases, patients can be very vulnerable. They can be vulnerable through lack of information and in some cases by not being consulted. They can be vulnerable, as the noble Baroness, Lady Hollins, has mentioned, through the lack of advocacy by people who understand the basis of the choices they have to make. This phrase about the significance and the importance of patients’ interests being paramount therefore also affects a recognition that where patients are vulnerable they need the help of counsellors, advisers and in some cases advocates, so the concept behind this covers those areas as well.

I want also to point out briefly that government Amendment 56 is helpful in spelling out the matters on which patients should be particularly consulted. I will not repeat them but the amendment is helpful in setting out very clearly issues of treatment and the way in which patients should be offered different forms of treatment and then to make choices among them.

I do not intend to keep the House. I shall conclude my remarks. Whatever side of the House we may be on, I hope very much that the concept of the paramountcy of patient interest will be something that all of us can support, understand and advocate with respect to the future of health services. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the reasons for Amendments 49A and 94A have been briefly—as she explained—and eloquently expressed by my noble friend Lady Williams of Crosby. One of the fundamental principles which the Government have assured us runs right through this Bill is that the NHS, as reformed by this legislation, will be committed to putting patients first. That is a critical matter for most of us in this House and the public at large. Why do I believe that this principle needs stating in the Bill? It is because the Bill introduces an entirely new structure for commissioning services, with commissioning by clinical commissioning groups within a framework established by the board to requirements and objectives set by the Secretary of State. However well understood here, this proposed structure is widely mistrusted outside this place.

I believe that a legislative statement that the commissioning process will put patients first is very important, both because it will enshrine in law this fundamental principle and because it will give the public an assurance that this is indeed the aim and purpose of the new commissioning process. My noble friend the Minister was kind enough to write to me in relation to this amendment to say that while he completely agrees that we must always put patients first, the Bill already provides for that and that there are “technical reasons” why our amendments should not be accepted.

The Minister is entirely right to point to the commitment to the comprehensive health service in the Bill and to the duties of the board and the clinical commissioning groups, now enshrined in the Bill, to promote the NHS constitution. I agree that those are powerful provisions. The NHS constitution is an important and extremely valuable document. It does indeed contain a commitment to putting patients first. At the back of the document in the expression of NHS values it says:

“Working together for patients. We put patients first in everything we do, by reaching out to staff, patients, carers, families, communities, and professionals outside the NHS. We put the needs of patients and communities before organisational boundaries”.

No one could fail to regard that expression of values as admirable, but it covers the whole sweep of NHS functions and is very general. The provisions that we seek by way of these two amendments are specific to the commissioning process. They will impose a binding obligation on the board and the CCGs of which they will at all times be aware. Moreover, our amendments are directed particularly at responding to what is probably the principal concern that members of the public have about these reforms: that the new commissioning process may lead to the marketisation of the NHS and that patients’ interests may be lost in that process. I do not believe that, but I do believe that these amendments would help make it crystal clear that this concern is unfounded.

The other problem we face is this: all the evidence, even that emanating from within the NHS, suggests that there is widespread unawareness of the very existence of the NHS constitution, let alone of the detail of its provisions. At the very least, therefore, given the emphasis that we are putting on the NHS constitution, it is crucial for the Government to make it quite clear that a great deal is expected of the board and of CCGs in the exercise of their respective duties under the Bill to promote awareness of the NHS constitution. In addition, the department should commit itself to an even wider, more effective campaign to publicise both the existence and the content of that constitution.

As to my noble friend’s second point, I regret that I do not understand the technical reasons which are said to require the rejection of these amendments. It is perfectly true that the NHS will always have to face resource constraints which may necessarily determine many, even most, commissioning decisions, but our amendments accept entirely that the paramountcy of patients is always subject to resource constraints. The board or a CCG must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount. Nor do our amendments, either expressly or impliedly, reduce the ability of commissioning groups or the board to prioritise the treatment of particular groups of patients where they think appropriate. They simply make the interests of patients in general paramount or, to use my noble friend the Minister’s phrase, make sure that commissioners put patients first.

The use of that word “paramount” in these amendments was modelled on the Children Act 1989 and the principle which runs like a golden thread through that legislation that the interests of children are paramount. That legislation has been widely applauded for embodying that principle, which firmly governs its interpretation and its implementation. It is precisely because it is embodied in the legislation itself that that Act is so well respected.

I still hope that my noble friend the Minister might reconsider whether he is not prepared to accept in this Bill the expression of the principle which he has so often expressed: that, throughout the commissioning process, the interests of patients must be paramount.

Health and Social Care Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Williams of Crosby

Wednesday 30th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, may I offer a quick explanation to the noble Lord, Lord Hunt, and the Members of the Committee, as to why we have asked for these amendments to be separated? I am very conscious, as I sit in the Committee, of what is often said on the “Today” programme, when somebody is asked the question “How would you improve the health of the entire population”, and the interlocutor says “Please answer briefly”, which means “You have four seconds”. I shall be as quick as possible.

This amendment, along with Amendment 152—which we are not debating at present, as I am merely explaining why we have separated them—is deeply significant. This will emerge much more clearly when my noble friend Lord Marks of Henley-on-Thames speaks in a few moments’ time, but it is important because it deals with the fact that the earlier Amendment 152—I have to refer to it to make any sense of my current remarks—would actually remove all powers of intervention in the current Bill. The powers of intervention associated with the Secretary of State are directly related to the failure of the board or of the CCGs.

The deletion that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, have moved, would take the whole of the failure regime out of this Bill. It would therefore be directly in conflict with one of the principles of the Bill, which is the principle of decentralisation. It moves back to the Secretary of State only the direct intervention with the board and the CCGs. It is well known now, from the long and explanatory speeches around this whole debate, that the Secretary of State passionately believes that decentralisation is one of the major principles of the Bill.

Therefore, my noble friend will explain why Amendment 153 is not on the same lines at all as Amendment 152. It is a different argument: there should be the right of intervention by the Secretary of State, but it should be limited in a way that saves the decentralisation principle. Why does it do that? It does that by referring back to the Secretary of State’s overall responsibilities for the health service as a whole—which we all accept as a crucial element of the constitutional discussions now going on—as distinct from a direct intervention at the level of the board and the clinical commissioning groups, which would be to restore the very central principle that the Bill has rejected. This is not a deceptive amendment simply about some powers; it is in fact to make it clear that there is a distinction between decentralised responsibilities by the board and the CCGs and the essential, ultimate right—expressed, for example, in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, at an earlier stage—of the Secretary of State to have responsibility for a comprehensive health service while not intervening in a detailed way in the clinical commissioning groups or the Commissioning Board. I will now pass the further part of the argument on to my noble friend Lord Marks of Henley-on-Thames. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, this is a most significant area of the Bill, as my noble friend Lady Williams of Crosby has said. This group concerns the regime whereby, in the event of a significant failure, the Secretary of State can intervene in the board’s exercise of its functions. That is in Amendment 153. The board in its turn can intervene in the exercise by a clinical commissioning group of its functions. That is the purpose of Amendments 220ZAA and 220ZAB. I would add Amendment 220ZA, which is not currently in the list of the group, which simply amends the title of the proposed new Section 14Z19. Also in the group is Amendment 277, which removes the restriction on the Secretary of State’s intervening where there has been a significant failure by Monitor to act in relation to a particular case.

May I first address the question of the Secretary of State’s intervention in the board’s exercise of its functions? When we debated at some length Clauses 1 and 4 and the proposed new Section 13F, noble Lords were clear that whatever may be the outcome of those discussions and debates on those clauses, this House must ensure that the Secretary of State will have powers and functions that are up to the job of enabling him or her to carry out those overarching duties. Those duties involve him or her in carrying ultimate responsibility and accountability to Parliament and in the courts for the NHS. We should remind ourselves that my noble friend the Minister and my honourable friend Mr Paul Burstow have repeatedly assured Parliament that the Government are determined to make it clear that the Secretary of State will remain responsible and accountable for the NHS in Parliament and at law.