Covid-19: Restrictions

Baroness Brinton Excerpts

Monday 14th March 2022 Lords Chamber

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, we will have a virtual contribution from the noble Baroness, Lady Brinton.

[Baroness Brinton (LD) [V]]

My Lords, at the publicly streamed evidence session of the All-Party Coronavirus Group on 1 March, we asked some members of SAGE to outline SAGE modelling for the lifting of restrictions in the living with Covid plan. They replied to us that they had not been asked to model any such plans by Ministers. Given that cases, as the noble Baroness, Lady McIntosh, said, are now 221,000 a day, with active cases of more than 2 million and hospital admissions rising across England, exactly what modelling advice did the Prime Minister and Secretary of State for Health and Social Care take?

[Lord Kamall (Con)]

We constantly have meetings with the UKHSA and a number of different scientists join us for the calls when we have them, but we have always balanced things up. I shall give an example of a conversation I was having just before Christmas with some of the modellers. I asked them “What is your advice?”, and they said “Minister, before we give you the advice, you have to bear in mind that we are only considering the variant at the moment. It is for you to consider the wider medical balancing issues, and also the economic and social costs as well, and we recognise that you have to balance all those up.”

Care Homes: Evicted Residents

Baroness Brinton Excerpts

Thursday 10th March 2022 Lords Chamber

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the noble Baroness, Lady Brinton, will make a virtual contribution.

[Baroness Brinton (LD) [V]]

My Lords, the provision of high-quality, personalised care in residential care settings is likely to reduce the chance of complaints being raised in the first place. The Skills for Care workforce review showed that only 44% of care staff have any training on dementia. Will the Government commit to all social care staff receiving tier 2 training in the dementia training standards framework?

[Lord Kamall (Con)]

The noble Baroness raises a very important point. When we look at the current landscape in the social care sector, it is clear that people do not really understand the overall sector. One thing that we are looking at in regard to the voluntary register is encouraging care staff to come forward to register. Registration includes their standard of education and the qualifications they have received. We will look at how we can improve and have a more consistent qualification system, so that being a care worker is a more rewarding vocation in the future.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association. I will speak very briefly from the Liberal Democrat Benches to offer our support for both the amendments in this group.

The amendment tabled by the noble Baroness, Lady Pitkeathley, Amendment 113, says that unpaid carers, including those under 18, must be properly consulted by the NHS to ensure that they are able to provide the care needed to keep patients safe. In Committee—and, more recently, at the excellent and moving round table with family carers organised by Carers UK, about which the noble Baroness, Lady Pitkeathley, just spoke—we heard evidence of hospitals discharging patients before assessments had been completed and before carers had even been told. The burden that this places on carers is totally unacceptable and unsafe. Worse still—and unsurprisingly—the home arrangements too often break down when family and unpaid carers are not a full part of the consultation process. We support the noble Baroness, Lady Pitkeathley, in this vital amendment.

The second amendment, Amendment 144, to which I have added my name, was tabled by the noble Baroness, Lady Wheeler. The amendment ensures that there are always proper social care needs assessments to ensure that both the family and unpaid carers are consulted, along with the relevant local authority; and that ICBs must have an agreement in place with the relevant parties to ensure that vulnerable people are not discharged without the right support. Some carers are themselves vulnerable people, and we need to make sure that all protections are in place for them too.

Equally importantly, it ensures reporting by the relevant authorities back to the ICB so that it can monitor discharge effectiveness. It says—as a bit of stick to go with the other carrot parts—that the ICB must pay for any

“additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments”,

in the event that the patient has been discharged before this was completed.

There are 1.4 million unpaid carers who save the state just under £3 billion a year—and they need more than guidance. Both of these amendments will ensure that the patient and their unpaid carer are assessed and supported properly, and that the key stakeholders—the NHS, the relevant local authority and the ICB—must work together to make this happen.

[Baroness Meacher (CB)]

My Lords, I rise to support Amendment 113. I applaud the noble Baroness, Lady Pitkeathley, both on this amendment and on the years and years of commitment she has given to the support of carers.

It is extraordinary what this Government are prepared to do in this Bill. In revoking the Community Care (Delayed Discharges etc.) Act 2003, they are abolishing the “safe to discharge” test, which requires processes to have been followed to ensure that appropriate and adequate care is, or will be, in place for a patient’s discharge from hospital. The Government are proposing that carers’ rights in primary legislation should be put in statutory guidance instead.

As a member of the Delegated Powers and Regulatory Reform Committee, I am very conscious that, under this Government, secondary or delegated legislation is used more and more to concentrate power in the hands of Ministers rather than in Parliament. The only possible reason for the Government to remove carers’ rights from the Bill, and to put them into secondary legislation, is to weaken those rights. Can the Minister give any reassurance on that point? It is a very important question.

A number of us recently met with a group of so-called adult carers—teenagers and adults—and also with a group of young carers. Both of those experiences were humbling from my point of view. I will mention a couple of points that came up. One teenager rather casually mentioned that she had begun being a carer at the age of three. This is unbelievable, is it not? I forgot to ask her what she actually had to do at the age of three; it is difficult to imagine. But, whatever she had to do, the idea that she somehow had a sense of responsibility at that age is truly alarming.

The other memorable moment was when a teenager was asked, “What is the most difficult thing for you, or the biggest problem that you have as a carer?” I thought she would say that she did not have any time to play with her friends or that she had to do all sorts of boring and horrible jobs that her friends do not. But no, she did not say any of that; what she actually said was, “The biggest problem I have is that the hospital staff won’t tell me how much medication my mum needs. They say they’ve got to talk to my mum, but that’s impossible.” The selflessness implied in that is just completely extraordinary—and of course there were lots of other incredible points.

If these young carers are not consulted before their dependent relative is discharged from hospital, they may be at school or in the middle of a hockey match—it is just unimaginable that this requirement should be in any way weakened. I ask the Minister to take extreme care on this issue when going back and considering the Bill; only then can we be sure that patients are not just medically fit to be discharged from hospital, as the noble Baroness, Lady Pitkeathley, said, but are safe to be discharged—that is, carers or others are there to look after them.

BASW rightly points out that revoking a local authority’s Care Act duty to integrate care and support provision with health provision at the time of the key decision about where a person should be discharged to from hospital undermines the model of integration between social and health care staff—surely the absolute opposite of the whole objective of the Bill. I understand that discharge to assess is probably reasonable for medium and long-term care planning. However, an assess to discharge approach is even more important and should be done in hospital, from the date of admission to hospital. Where is that commitment in the Bill? I look forward to the Minister’s response.

--- Later in debate ---

[The Deputy Speaker (Baroness Fookes) (Con)]

The noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I echo the thanks of my noble friend Lord Sharkey to the Ministers and their officials for the very helpful discussions that we have had with them on reciprocal healthcare agreements. I also thank my noble friend for his persistence in leading on those discussions between Committee and Report on the two points of difference between us—the definition of reciprocal healthcare, with our concerns about the ability to create a privatisation of parts of healthcare, and that an SI under a negative resolution is not strong enough for Parliament to scrutinise properly. My noble friend’s amendments are, as he said, very specifically aimed at removing these concerns, and I look forward to the Minister’s response.

I also particularly thank Ministers for understanding that the House was deeply unhappy with the original proposals for regulations via a negative resolution. I hope to hear that Ministers will now agree to the affirmative resolution proposed in the amendment of my noble friend Lord Sharkey. Scrutiny by Parliament needs to be timely, and Parliament needs to be allowed to effectively challenge proposals about which it has concerns.

[Baroness Thornton (Lab)]

My Lords, it is a great pleasure to speak about reciprocal healthcare, which is not how I felt several years when we dealt with this exact issue in your Lordships’ House, as many noble Lords might remember. It was with some trepidation that I and these Benches looked at this part of the Bill, because we were so concerned and had to do so much work to protect our NHS in the passage of the 2019 Act.

I am very grateful to the Minister and the Bill team for engaging with us so thoroughly to take on the board our concerns, which needed to be built into this part of the Bill. I say particularly how impressed I am by the noble Lord, Lord Sharkey, and how grateful I am to him for his understanding and persistence—and his ability to read long, complex documents, understand them and then translate them so that other people can understand them too. That is a great talent.

From these Benches, with the idea that the affirmative resolution will be agreed, we are very happy indeed.

--- Later in debate ---

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I thank the noble Baroness, Lady Wheeler, for introducing so comprehensively this group of amendments on care costs. Given the lateness of hour in Committee, the House needed to hear the detail of this.

Her Amendments 127 and 141, which I have signed and which we will support if she calls a Division, would remove the cap on care costs which was announced and introduced by the Government in the Commons. It was not widely consulted on, and is a deeply unfair element of the Government’s proposals for the new social care payments arrangements. Far from fixing the ongoing crisis in social care “once and for all”, which the Prime Minister said from the steps of No. 10 Downing Street in 2019 he would do, these divisive plans will not stop people needing to sell their homes to pay for care and are a breach of the Government’s promise in that election. It is very important that the Commons have the time to discuss the consequences of the detail of removing that cap now that the announcement has been better understood, especially by the professionals, including the think tanks, who are very concerned about it.

We also support the noble Baroness, Lady Campbell of Surbiton, who will speak to Amendment 143 in the name of the noble Baroness, Lady Bull, which would ensure a zero amount for personal care charges for those under 40. It is absolutely against the spirit of Dilnot and a deep injustice to those under 40 with personal care needs that they are treated the same as those whose working years are behind them. It is a huge injustice that we have an NHS that is free at the point of use and yet younger people with learning disabilities and life-limiting health conditions are charged for essential care. There are also a number of deep, practical contradictions in this arrangement that make it particularly shocking, including a survey that found that charges made by cash-strapped local authorities—made because they could charge them—had forced people to stop the care they needed or made them face difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.

Amendment 144A from the noble Lord, Lord Lansley, and as outlined by the noble Baroness, Lady Wheeler, supports the principles behind both Amendments 127 and 141, which would remove Clause 155. It proposes that all provisions on the care cap are brought into force by 1 April 2023 by regulation under the Care Act, resulting in no delay to its implementation. We support that too.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite the noble Baroness to speak.

--- Later in debate ---

[The Deputy Speaker (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely; I invite her to speak.

[Baroness Brinton (LD) [V]]

My Lords, the noble Lord, Lord Hunt, introduced his Amendment 144B on complaints about care services very well. He is absolutely right: this is a muddle. Are people to go to the CQC or to a particular home when they wish to make a complaint? Any complaints system where the person making the complaint feels in a less strong position than the organisation to which they are complaining, or indeed—sometimes they might even put this strongly—which is wielding power over them is a complaints system that will not work. I hope that the Minister will understand this, and will respond and ensure, first, that there is a clear and understood system, and, secondly, that if some funding needs to be restored to the CQC to take us back to where we were, that will happen.

I want to speak particularly to two of the issues covered in this wide-ranging group of amendments: the licensing of cosmetic procedures and medical practitioners’ financial and non-pecuniary interests. I also have sympathy for the other two, on registration of social workers and hospital rehabilitation accommodation.

The amendments laid by the Minister, beginning with 153A, on the licensing of cosmetic procedures by local authorities and, indeed, Amendment 169 in the name of the noble Baroness, Lady Finlay, on cosmetic procedures, which I have signed, set out models for registration for those who work using devices that breach the skin and who are not covered by medical registration or, currently, by any effective regulation. I know that considerable discussions have taken place between Committee and Report, and it is welcome that the Government have felt that they can now lay their own amendments, signed by the noble Baroness, Lady Merron, and the noble Lord, Lord Lansley. I look forward to hearing the comments of the noble Baroness, Lady Finlay, on those amendments.

Amendment 184ZBB in the name of the noble Baroness, Lady Cumberlege, which I have signed, brings us back to the debate on medical practitioners’ financial and non-pecuniary interests. Our debate in Committee highlighted the problem that the financial and non-pecuniary interests arrangements do not match those that many others in the public sector have to make, where the registration body holds the information. The GMC has said once again that it does not particularly like the style of this amendment and would prefer the records to be held directly by the employer. However, I believe the argument that the registration body, which also has the power to take action, should be the place where these are kept.

I hope that, regardless of whether a vote is called, the Minister will take this away and look at it in more detail. We need an open, transparent and clear system of registration of financial and non-pecuniary interests.

[The Deputy Speaker (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Masham of Ilton, is taking part remotely; I invite her to speak.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

Moved by

[Baroness Brinton]

60: Clause 20, page 27, line 43, at end insert—
“(3) This section however does not authorise—(a) the disclosure of patient information, or(b) the disclosure of personal information obtained from a specified authority which is a health or social care body.(4) For the purposes of this section a “health or social care body” means a public body which exercises functions in connection with the provision of health services or of adult social care in England.” Member’s explanatory statement
This amendment would prevent ICBs from disclosing patient information or certain personal information.

[Baroness Brinton (LD)[V]]

My Lords, I thank Ministers, officials and other Peers, including my noble friends Lord Clement-Jones and Lady Walmsley, and the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Finlay, for the discussions that we have had since Committee. I am particularly grateful for the letter from the Minister late yesterday and the meeting this morning.

I have laid Amendment 60, and I support Amendment 116, tabled by the noble Lord, Lord Hunt, which try to protect only the lawful disclosure of personal patient data. For the purposes of the debate on this group, can we accept that this is shorthand for the confidential personal and medical data currently mainly held by GPs and hospital doctors in England? Amendment 60 would provide that protection in legislation and was laid only because we have not yet had a clear response from Ministers on what is permitted and what the existing rules will be relation to ICBs taking over responsibilities from CCGs because ICBs are new bodies. This is in the light of new Section 14Z61. At Second Reading and in Committee, noble Lords expressed concerns that this new section, which outlines ICBs’ permitted disclosures of information, looks very wide ranging and could, for example, enable a police officer, or another person from a public body, to demand the disclosure of a patient’s personal data.

The new section uses the phrase that ICBs can disclose data where

“disclosure is necessary or expedient”

for the person making the request, but nowhere does it explain how the decision is made by the ICB or what the decision-making process is to release the data and, importantly, where the protection of that personal data sits in the hierarchy of the request of necessary and expedient demands. I have asked repeatedly how this process would work, and in responses at the Despatch Box, in meetings and in letters I have not really had a response that has laid out simply and clearly how this process would work. I shall therefore ask the Minister the following questions in an attempt to clarify how a patient’s confidential personal data will be protected and what the process would be for it to be released to a person making a request. What rules and guidance are available for staff, including those in ICBs, to manage a request from a non-NHS person requesting information other than through a court order? How would it be processed and reviewed? ICBs would not normally be the holder of such data, and new Section 14Z61 does not set out the balance between the rights of the patient and those of the requestor who believes they have a necessary or expedient reason for being sent this data.

We wish to be confident that the structures are in place for when shared care records come into force. Let me be clear: from these Benches, we welcome the principle of shared care records, but the processes need to be in place to ensure that personal data is protected when every part of NHS England would have access to that data. I raise this particularly because just this week Health Service Journal stated that the Secretary of State is speeding up the shared care records project to be complete and implemented by December 2023.

Can the Minister therefore commit that the powers in Section 14Z61(1) will be constrained such that for requests of disclosure that come from outside the health and care system, the ICB will only ever disclose the direct care providers the requester could ask instead? Can he confirm that if an ICB is to become data controller for shared care records, he will return to this clause with primary legislation on such implementation?

I am very grateful for the discussion with Ministers and officials and hope that the Minister will be able to provide your Lordships’ House with a response that demonstrates that patient, personal and confidential data remains secure. I look forward to his response, and I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I congratulate the noble Baroness, Lady Brinton, on the brevity of her remarks, which is a model for Report stage. I think she put this across very well indeed and I very much support her.

My Amendment 116 relates to the containment in the Health and Social Care Act 2012 of the concept of a safe haven for patient data across health and social care, which is required for national statistics for commissioning, regulatory research purposes and patient care. My Amendment 116 simply seeks to keep those statutory protections in place and ensure that NHS England does not take on this responsibility as a result of the merging of NHS Digital and NHSX within the structure of NHS England, which was a recommendation of the review led by Laura Wade-Gery. The noble Lord, Lord Clement-Jones, is going to speak in some detail—but with brevity as well, I hasten to add.

Kingsley Manning, the former distinguished chair of NHS Digital, has spelled out the implications of doing this. He believes the action of NHS England in taking over NHS Digital

“is a significant retrograde step in defending the rights of citizens with respect to the collection and use of their health data.”

In a letter to me, which I received yesterday, the Minister asked me why NHS England would be regarded as less independent, transparent or objective in the exercise of these functions, given its already significant responsibility for some data and the fact that it is a very similar organisation to NHS Digital, as a statutory arm’s-length body. In answer to him, NHS England has many different responsibilities and priorities, so, first, it will clearly not be able to give the same focus to the issue of protecting the safe haven and, secondly, it has many interests which could be deemed to at least be in tension with the concept of the safe haven. That is why I and other noble Lords believe it is important to have the statutory protection already contained in the current legislative arrangements.

I conclude by saying that I am at one with Ministers in wanting to speed up digital transformation in the NHS; after all, we have been dabbling with this over many years. But it has to be done right, and the way to do it right is to be very transparent and rigorous about the protection of patient information.

--- Later in debate ---

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

I now invite the noble Baroness, Lady Brinton, who is taking part remotely, to reply to the debate.

[Baroness Brinton (LD) [V]]

My Lords, I thank all noble Lords who have contributed to this debate, in particular for their brevity given the long day we have ahead of us. In particular I thank the Minister for his helpful response.

My Amendment 60 is very specific and I asked for a specific response. The Minister has confirmed what I wanted to hear: that health data is special category data, and that it requires additional protections due to its sensitivity, which would be applied by any ICB when it has had that request. The other key phrase that stuck out was that nothing in the clause overrides the range of requirements in law to provide those key protections and safeguards regarding individual personal data. I am therefore satisfied on that basis.

Briefly on Amendment 116, which is much broader in scope and very important for the future of data use with the proposals that are coming down stream, I agree with all the comments that were made by noble Lords. One particular thing that stood out for me was the proposal of the noble Lord, Lord Clement-Jones, that the publication of the Goldacre review is vital before any final version of Data Saves Lives is made public.

We will not get to a vote on Amendment 116 today. However, could the Minister assist the House and confirm that guidance will be issued, rather than a looser “may be” issued? With that, I beg leave to withdraw my amendment.

Amendment 60 withdrawn.

--- Later in debate ---

In moving Amendment 80, I look forward to the debate in your Lordships’ House and to my noble friend the Minister’s reply. I hope he will recognise the strength of feeling in the House and in this country as a whole. If the amendment is not acceptable, I am afraid that I will be forced to test the opinion of the House. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I shall speak shortly to Amendment 168, but want briefly to refer to Amendment 80, moved by the noble Baroness, Lady Cumberlege, and so eloquently introduced by her, and supported across the House. Workforce planning is critical. Frankly, it is surprising that Ministers resisted amendments in Committee which called for formal long-term workforce planning for the NHS, social care and public health to be embedded in legislation.

The noble Baroness said that that current arrangements can be a bit like sticking plasters, and she is right, but it is not just about the use of bank and agency staff but about planning healthcare professional education. We all know how long it takes to train a doctor, but most of the other professionals also cannot just be turned on and off at election time. There have been too many times when this Government have said at elections that they would suddenly magic thousands of extra doctors and nurses. We need to build timescales into that workforce planning. The noble Baroness also talked about population demand, but I want to make another point: this is not just about population numbers; it is also about demographics. We will need more GPs and hospital professionals managing our rapidly ageing population. If we do not encourage people to go into those specialisms, we will not be able to look after our population in 10, 15 or 20 years’ time.

I also agree with the noble Baroness, Lady Cumberlege, that if government resistance is because of the funding implications with delivering such a plan, that is very short sighted. Not planning will be even more catastrophic. Amendment 80 is more modest in nature but is a critical minimum to achieve a commitment to plan effectively for the NHS, social care and public health.

I turn now to Amendment 168. Given that there are a number of speakers on this important group, I will be very brief here too. The amendment from the noble Lord, Lord Hunt, echoes the one he laid in Committee, and I am pleased to have signed both. We heard in Committee about this frustrating loophole that meant that it was not possible for certain members of the Royal College of Physicians of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Emergency Medicine to be added to the list of colleges which could be involved in the appointment of NHS consultants. This is now slowing down the appointment of NHS consultants. I am very pleased to support the amendment and hope the Minister will be able to give good news to the House on this amendment too.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

Now I invite the noble Baroness, Lady Masham, who is also speaking remotely, to speak.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Brinton, is contributing remotely.

[Baroness Brinton (LD) [V]]

My Lords, I start by commending Amendment 100 tabled by the noble Lord, Lord Warner, and I look forward to hearing him speak on it. It is an excellent idea to ask people how much choice they have actually had when offered treatment. I also thank the noble Lord, Lord Lansley, for explaining his two amendments, and I would like to say to him that he is not sad for carrying out his role in your Lordships’ House with interest and care. His expertise in matters that may leave others cold should be celebrated. The amendments of the noble Lord, Lord Hendy, ask that trade unions should be part of consultations on private providers, and that seems sensible.

I wish to focus, albeit briefly, on Amendment 106A, which proposes that Clause 70 be left out, and which will be spoken to later by the noble Baroness, Lady Thornton; I apologise to her that under the remote rules I have to speak first. I will confine my remarks to the views of the Delegated Powers and Regulatory Reform Committee’s 15th report, in which paragraphs 17 and 18 make plain its views about these proposed procurement arrangements and regulations. The first point that it notes is that the memorandum, at paragraph 481, says that

“full analysis has not been completed and there has not been time to produce a more developed proposal.”

Why on earth do the Government wish to bring into force legislation that they admit they have not had time to analyse, let alone produce a more developed proposal for? We from our Benches, along with other noble Lords, have repeatedly said that the Cabinet Office procurement Bill is likely to overtake the needs for NHS-specific procurement regulations.

Paragraph 17 of the DPRRC Report gets straight to the heart of the issue and provides a response to the amendments that the noble Lord, Lord Kamall, has tabled, starting with Amendment 101 in this group. It says:

“We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.”


It is therefore more than a little surprising to see a slew of government amendments on this issue that, in the group under discussion, strengthen the powers under regulation.

Paragraph 18 of the Delegated Powers Committee report states that:

“Ministers would not ordinarily propose clauses in one Bill possibly requiring imminent amendment in a subsequent Bill without expecting to face questions. The House may wish to seek further and better particulars from the Minister concerning the possible effect of any Cabinet Office procurement Bill on the Health and Care Bill, and … to press the Minister on why it was necessary to include provision, based on inadequately developed policy, in the Health and Care Bill when the Government intend to introduce a procurement Bill.”


Not only have we tried this at an earlier stage, but there have been meetings between Committee and Report, and it appears that the Government are determined to press on. I know that the noble Baroness, Lady Thornton, has concerns about the Government’s intentions on the clause and its amendment; if she chooses to call a Division on stand part, we from these Benches will support her.

[Lord Hendy (Lab)]

My Lords, I support Amendments 98A, 98B and 98C. Among other things, the Bill is designed to facilitate the outsourcing to private contractors of NHS services currently carried out in-house. That is the Government’s policy for the NHS, although it is firmly opposed by most of the citizens of this island.

--- Later in debate ---

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I now call the noble Baroness, Lady Brinton.

[Baroness Brinton (LD) [V]]

My Lords, I am sorry to hear that the noble Lord, Lord Blencathra, is unwell, and I thank the noble Lord, Lord Alton, for his excellent introduction to Amendment 108, to which I have added my name. I also support the other two amendments in this group, which are in the name of the noble Lord, Lord Hunt, who I commend for his consistent campaign on these issues over the years. His Amendment 162 would ensure that there must be informed consent, with no coercion or financial gain, when organs are donated or when UK citizens go abroad for transplants. Amendment 173 would ensure that cadavers would no longer be used for public display unless it is the body of a person which is at least 100 years old, because, as with Amendments 108 and 162, there is real concern that people have been forced to have organs removed, or their bodies have been used after their death—sometimes murder, sometimes execution—but without their consent.

Returning to Amendment 108, it has two clear objectives: the first is to prevent the Government procuring health service goods produced in regions where there is a serious risk of genocide. While the Government say there is no evidence, a New York Times investigation found that PPE made through the Xinjiang labour transfer programme was present in US and international healthcare systems. As we have heard from the noble Lord, Lord Alton, there is increasing evidence that the NHS has procured such items already.

The second objective is to create a process through which the UK Government can be required to assess regions for serious risk of genocide and publish their assessment. This is necessary because the UK Government have given out PPE contracts worth almost £150 million to Chinese firms with links to forced labour abuses in the Uyghur region.

The Government have said that genocide amendments are not appropriate in the Bill and that the Modern Slavery Act 2015 offers protection, but the reality is that the UK is not leading the world here. The US Uyghur Forced Labor Prevention Act creates a “rebuttable presumption” banning all goods sourced in whole or in part from the Xinjiang region of China, unless clear and persuasive evidence can be provided to the contrary; and the European Union is now considering bringing forward new legislation to ban products made with forced labour from entering the European market. The UK’s Modern Slavery Act does not go nearly as far as either of these proposals, merely requiring that companies publish—but not that they act upon—modern slavery statements. People’s lives and human rights are at stake here. Frankly, it is time the UK followed suit with stronger legislation. This amendment would be a strong and careful start that means government and Parliament cannot look away. I look forward to the Minister’s response.

[Baroness Kennedy of The Shaws (Lab)]

I shall speak very briefly, because I am conscious of the time and that we have a lot of business to do. This amendment seeks nothing more than to create another human rights threshold for health procurement, adding to those that are already in place, which seek to address slavery but have major shortcomings, as the noble Baroness, Lady Brinton, has just described. I keep hearing it being said that a health Bill is not the proper place for an amendment concerning genocide. Well, I am afraid that I do not agree. This is an appropriate place.

We are not asking the Government or the Department of Health to decide whether there is a genocide taking place; we are asking the Minister to take on the duty to assess whether the source of instruments, test kits, protective equipment or whatever may be from forced labour and a situation of slavery. Xinjiang province is the obvious place for us to be concerned about, but there are other places—for example, in India—that we should be concerned about too, and I think that placing that duty on the shoulders of the Minister is a way of concentrating minds. That is why I really press this amendment and I pay tribute to the way the noble Lord, Lord Alton, has so assiduously pursued this. That is all I wanted to say, but I will support this amendment and I urge the House to support it too.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

The amendments in this group seek to express in different ways the fact that we are still unhappy with the way the ICBs are representing themselves. In Committee, the Minister said to us on several occasions, “This is what the NHS wants”. I think one noble Lord—I do not think it was me—said it was not really the point that NHS England wants this. We are talking about what is best for the locality, the patients and the people in it, and how we best invest and use our NHS money. So what we see in this group is that we are not quite there yet. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, it is a pleasure to follow the introduction from the noble Baroness, Lady Thornton, of her Amendment 9, which I signed. It is the first of a group on the structure and membership of integrated care boards—including the Commons amendments to which she referred. We agree with the noble Baroness and have concerns about the possible loophole of sub-committees. Before I go into that, I will add my thanks and congratulations to my noble friend Lady Walmsley on her excellent proposals for a skills audit and thank Ministers for agreeing to them. I hope that the Minister will reflect on some of the other amendments in this group that seek to ensure core representation from certain key groups within the NHS.

In Committee we had a lengthy debate on the roles and responsibilities of those who may have current or past connections with private sector providers. A key element of that debate revolved around the duties of board members and sub-committee members of the ICB to have its duties at the heart of all they do as they commission using public money. In his response to that debate, the Minister said that

“each ICB must make arrangements on managing the conflicts of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore, each appointee to the ICB is expected to act in the interests of the ICB.”—[Official Report, 13/1/22; col. 1308.]

Amendment 9 seeks to clarify exactly what is meant by “each ICB” by looking at the structures for those that make decisions—which includes sub-committees. The noble Baroness, Lady Thornton, described the difficulties in the example of Virgin Care that demonstrate the loophole she spoke of.

I want to go back a step to the principles behind conflicts of interest. In 1995, the then Conservative Government adopted the seven Nolan principles of public life, which are applied to all who hold public office. Members will know very well that these key principles of personal and corporate behaviour are a golden thread running through the public service that any officeholder delivers, and health bodies are specifically included in the rubric of Nolan. All seven principles are absolutely intrinsic to how an ICB and its members will operate, whether at board or sub-committee level. To pick just two, they must have integrity, including not to

“act or take decisions in order to gain financial or other material benefits”,

and they must

“act and take decisions in an open and transparent manner”.

Amendment 9 expresses exactly the type of arrangement that a public-facing body, even a sub-committee that commissions public services, should have in place. I ask the Minister: would any Government not want conflicts of interest in respect of sub-committees of ICBs to be clear, unambiguous and strong? Is he really arguing that each board should not have that wall of protection in ensuring the integrity of its decision-making processes, as set out in proposed new subsection (4)(a)? Does he think that it is appropriate not to have an appointment process that avoids the appointment of anyone who would be perceived to have a conflict of interest, as in proposed new subsection (4)(b)? Does he also not agree that anyone who has a conflict of interest or potential conflict of interest should not have information that

“might be perceived to favour the interest or the potential interest”,

as set out in proposed new subsection (4)(c)? If the Minister cannot answer those questions, I fear that some noble Lords might be concerned that the Government have abandoned the Nolan principles for some people on sub-committees who will make decisions on commissioning many millions of pounds of public funds. I look forward to his response.

[Lord Kamall (Con)]

My Lords, with the leave of the House, I hope that noble Lords will find it helpful for me to speak early in this debate, since we believe that government Amendment 31 addresses some of the concerns raised by noble Lords. I shall, of course, listen carefully to the rest of the debate and respond in full at the end.

In speaking to Amendment 31, I thank noble Lords from across the House for the wide-ranging discussions in the Chamber on membership of ICBs. We are grateful for the discussions. Many noble Lords have offered their gratitude to the noble Baroness, Lady Walmsley, for the suggestion on the skills mix. We accept the spirit of these amendments and agree that it is important that ICBs are populated by members with the appropriate range of skills and expertise. I know that noble Lords have heard this many times, but it is also important that we do not over-prescribe, as ICBs should have the flexibility to design their boards to meet their needs, while also ensuring they have the skills and experience necessary to properly discharge their functions.

We have listened, and I hope that the amendments we have brought forward, which require ICBs to consider these skills, knowledge and experience, address those concerns while also ensuring balanced, workable boards. When the amendments refer to the necessary skills, knowledge and experience, that is in relation to the discharge of all the ICBs’ functions, including those related to mental health, children’s health, public health, public and patient involvement, engagement with the voluntary, charity and social enterprise sector, and digital innovation and integration. Therefore, these amendments would help to ensure confidence that ICBs have the necessary skills and expertise to discharge these functions, while allowing them to retain discretion in how they deliver this. This approach has been welcomed by stakeholders, including the Allied Health Professionals Federation, which represents 12 professional bodies representing allied health professionals.

The second, connected amendment would ensure that an ICB reports on how it has discharged this new duty in its publicly available annual report. This will allow public scrutiny of ICBs and create confidence that they are drawing on an appropriate range of skills, expertise and knowledge. This is in addition to governance of ICBs being clearly set out in their constitutions, which will also be published and signed off by NHS England. As I have said, I shall listen carefully to the rest of the debate, but at this stage, for these reasons, I commend these amendments to the House.

Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 1st March 2022 Lords Chamber

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, the noble Baroness, Lady Brinton, and the noble Lord, Lord Howarth of Newport, are taking part remotely; I invite the noble Baroness to speak first.

[Baroness Brinton (LD) [V]]

My Lords, I shall speak to Amendment 17, to which I have added my name, but first I thank the Ministers for listening to the noble Baroness, Lady Finlay, and others, and for tabling Amendment 16. I also thank Together for Short Lives for its helpful briefing.

Your Lordships’ House had a moving debate in Committee that captured the practical and economic need for the wider range of provision of palliative care, and how ICBs can properly fund and plan for it. In Committee, the Minister, the noble Lord, Lord Kamall, said that

“ICBs will be required to have regard to the National Institute for Health and Care Excellence guidelines in their provision of services, as CCGs currently are … NHS England will continue to support commissioners of palliative and end-of-life care services through their palliative and end-of-life care strategic clinical networks. These networks support the delivery of outstanding clinical care by ensuring palliative and end-of-life care is personalised for all.”—[Official Report, 18/1/22; col. 1637.]

The noble Lord’s Amendment 16 provides the specialist services we sought, but it says only

“as the board considers … appropriate as part of the health service”.

Although I join other noble Lords in thanking the Ministers for the amendment, please can the noble Earl confirm that, although the wording of the amendment requires ICBs to commission palliative care “where appropriate”, it is his intention that all ICBs should deem it appropriate, and therefore all of them should commission palliative care services, including for seriously ill children and their families? We know that the provision of palliative care services is very patchy. Will he provide statutory guidance to supplement the amendment and support ICBs to interpret their responsibilities, including for children? When will this be available? What action will Ministers take to ensure that ICBs have the financial resources needed to fulfil the new duty? Finally, what action will the Minister take to ensure that there are enough professionals with the skills and experience needed to provide the palliative care for children that ICBs will have a duty to commission?

We covered all this in very moving stories in Committee. Can the noble Earl confirm that all I have outlined will be covered in regulations and statutory guidance?

[Lord Howarth of Newport (Lab) [V]]

My Lords, I am embarrassed to be called to speak ahead of the noble Baroness, Lady Finlay. I understand that the Deputy Speaker does not have discretion to make their own judgment about the sequence of speakers, but I hope this rule can be looked at. As it is, I add my thanks to the Minister, the noble Lord, Lord Kamall, for tabling Amendment 16. He and the noble Earl have graciously paid tribute to the noble Baroness, Lady Finlay of Llandaff. I am sure I speak on behalf of everyone by saying: so should we all. Her vision and persistence have beaten a path towards the progress we can now make.

Although the noble Lord, Lord Kamall, observed in his letter to us that it has always been a duty of the NHS to commission appropriate palliative and end-of-life care services, and that commissioning palliative care is a core function of integrated care boards, these obligations have hitherto been honoured perhaps as much in the breach as in reality. Provision has been patchy, shall we say? I think the noble Earl said that there had been “variations”; indeed there have.

I also acknowledge that the NHS does sometimes provide exemplary palliative and end-of-life care. Many noble Lords will know that my partner Patricia, Lady Hollis, died of cancer in 2018. I express my deep appreciation of the quality of palliative and end-of-life care she received at the hands of the NHS. I particularly express my profound gratitude to her NHS consultant at the Norfolk and Norwich University hospital, Nicola Holtom, and her team, and to others providing community services, because it eased Patricia’s path and made a huge difference to all of us who cared for her.

Sadly, for all too many, including cancer patients, this quality of service has not been available. Indeed, for some there has been no relevant palliative care and end-of-life service. This could therefore be a historic moment, but it is far from certain that it will be. I of course accept that Ministers are acting in good faith, but the indeterminate drafting of Amendment 16 leaves rather a lot of wriggle room. For an NHS which is always short of the resources that it needs and that is struggling to cope with its existing workload, it remains a danger that the provision of palliative care will be sparse. The language of Amendment 16,

“such other services or facilities for palliative care as the board considers are appropriate”,

does not make it clear that it will be an inescapable duty of ICBs to ensure that palliative and end-of-life care is a universal service and that there will be a duty on ICBs to provide high-quality palliative care.

The Minister indicated that he does not expect to agree to write into the legislation Amendment 17, in the name of the noble Baroness, Lady Finlay, which specifies in very useful detail what the nature of an exemplary service would be. He said that it would be better to do this by way of guidance. I am encouraged at least to know that it is the department’s intention to provide guidance and to set out models of how ICBs should set about fulfilling this duty. But what measures will be in place to ensure that this happens? What monitoring does he envisage? What reporting requirements will there be?

I have another question which I think is very important: how will the system enable patients and families to know what palliative care is available for them and how to access it? As things are, so often patients and their families are bewildered. They just do not know where to turn amid the complexities of the system, and they often feel discouraged by the responses they receive. They seem to observe the buck being passed between the NHS and social services and between different entities within those services.

I know that Ministers want to do the right thing, but it is important that we do not miss this opportunity to bring about the real thing. If we can be assured that the quality of provision will be as high as that envisaged in the noble Baroness’s Amendment 17, and that the department and NHS England will have systems to ensure that that is so, this could indeed be a transformative moment—a moment after which there will be the prospect that, instead of experiencing a bleak death, as so many people do, they will have a good death, and that will be an enormous consolation to their families, for whom, in their bereavement, the passing of a loved one is the greatest suffering.

Integration White Paper

Baroness Brinton Excerpts

Thursday 10th February 2022 Lords Chamber

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice president of the Local Government Association. Both the Statement and the White Paper set out a laudable ambition to integrate health and social care and communities, but I am afraid that we echo the disappointment of the noble Baroness, Lady Thornton, especially at the glaring omission of children, young people and disabled people who need care.

While reading the White Paper, I had a sense of déjà vu, and I dug out my copy of the White Paper Integration and Innovation: Working Together to Improve Health and Social Care for All, which was published on 11 February last year—almost exactly one year ago. The tone and the ambition were remarkably similar. All noble Lords know that the Health and Care Bill we are debating at the moment sets out in part how the Government believe that the White Paper from last year is going to be turned into legislation and changes in practice. The Minister knows the real concerns across the House about that practical implementation, and I do not believe that this new White Paper takes matters further forward.

From these Benches we also ask: where are carers? There is zero mention of carers in the Statement but 13 in the White Paper, two in the index and two as part of headings. The remaining nine in the text relate only to the people carers care for. There is no formal recognition of the role and no mention of support directly for them as carers. It says:

“People will move seamlessly between health and care settings because people and those supporting their health and care, including … unpaid carers, will be able to see and contribute to their care record and care plans.”


Is that the best on offer for carers—that they will actually be able to see the care plans? They can usually see them now, although most, I must confess, are still in paper format.

That was one example; I want to go on now to a couple of other issues. Much of the paper talks about how data will transform care in the future. On page 14 it says:

“A core level of digital capability everywhere will be critical to delivering integrated health and care and enabling transformed models of care.”


Can the Minister say—because the White Paper is absolutely silent on this—whether there will be funding for fast broadband across the country, especially in rural areas, to deliver that capacity to every single home? Without it, this entire system will fail before it even starts.

The White Paper also says that

“the data and information required to support them should be available in one place, enabling safe and proactive decision-making … We will aim to have shared care records for all citizens by 2024 that provide a single, functional health and care record which citizens, caregivers and care teams can all safely access.”

Can the Minister say how citizens’ data will be protected so that only those who need access to it will see it? As the Minister knows, this is another area where there is real concern over the Bill.

The paper talks extensively about leaders but in a generic way. There are muddles over NHS leaders, social care leaders and leaders of ICBs. Is it referring to council leaders or just leaders? I have to say that the organogram on page 37 makes the classic assumption of councils being single-tier metropolitan authorities, ignoring the plethora of two-tier council arrangements as well as other key stakeholders such as housing associations. It talks about

“3-5 local authorities within an Integrated Care System”.

Even at upper-tier authorities, that number is way too small with the shadow boards at the moment, and dwarfed when you add in district councils, which have key roles in delivering support for care. Unless this is hiding a proposal from the Secretary of State for Levelling Up, Housing and Communities, this is another massive reorganisation for local government.

Housing is vital to the aims of the Bill. The paper says:

“People’s homes should allow effective care and support to be delivered regardless of their age, condition or health status.”


But housing is not mentioned in the “Next Steps” section. I ask the Minister whether there will be specific funding to ensure that housing can be improved at a local level for people who will need it for the next stages of their lives.

The Statement and White Paper recognise the importance of the workforce—in theory. The section in the White Paper talks about continuous development and joint roles, some of which is very laudable, but what is actually happening in the Health and Care Bill at the moment, where the Government will not commit to proper planning for the workforce, makes this unattainable too.

Above all, from our Benches, we want to know where the resources are that will enable this transformation to take place. Even before this week’s announcement about the patient backlog, the levy for health and social care was already prioritised for the NHS. Every time we have asked the Minister when the social care sector will get the resources it so desperately needs—and what they will be—we are told that it will happen at some point in the future.

We need to know when social care and councils will get the support they need, particularly councils with extra responsibilities in this White Paper and the Bill. The LGA has said, correctly:

“Adult social care is in a fragile position, with councils struggling to balance their budgets … A long-term funding solution is urgently needed.”


Can the Minister tell the House what, where and when resources from both departments will be announced and made available to at least give this White Paper half a chance to get going?

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

I begin by thanking both noble Baronesses for their questions. I will try to answer them within the time and, if I do not, will write to the noble Baronesses or others. I will go through some of the issues, first on place-based models.

As we discussed on the Health and Care Bill, ICBs operate at a system level. They will be working with place-based organisations, including health and well-being boards. We expect several models of place-based alignment and governance to emerge and we are not going to be prescriptive about a single model. We are clear that, whatever model is adopted, in the coming years all places must be characterised by clarity of leadership and accountability; a strong shared mission across the sectors, informed by local citizens; a commitment to integration manifested in removing unnecessary boundaries between services and strengthening connections to agencies able to influence the wider determinants of health and well-being; a strong culture of improvement; and a linked sense of urgency about the need to deliver more integrated care to improve outcomes, particularly care quality.

By that we mean that we do not start thinking in siloed ways—of hospitals or primary care, with social care over there. All these White Papers are building-blocks to help explain some of the intentions behind the Health and Care Bill. The Bill itself creates a flexible framework based on the real experience of making effective change happen locally. This flexibility is designed for a purpose: the stronger integration of health and care services. The White Paper picks up that ambition by making clear the strong commitment of the Government to this agenda and our ambition to make progress. The White Paper will ensure that we go further and faster on health and care integration with local authorities and the NHS to make the most of the forthcoming legislation. It does not contradict the Health and Care Bill.

I will pick up on accountability. Three things are different. There is a wider recognition of the demographic challenges we now face, which will increase. We cannot manage it as just health any more or, even within health, primary, then secondary and care over there. The pandemic showed us that some of the cultural and governance barriers to change that seemed impossible to shift have moved. We have seen this work in lots of places up and down the country. There are some model ICSs, which many noble Lords have drawn my attention to, and case studies; we want to learn best practice without being overprescriptive. The noble Lord, Lord Mawson, has talked effectively about place-based organisations many times and getting the right mix of skills and people for a particular place. What works in east London will not necessarily work in South Yorkshire. Some of it will, but some of it will not. We will learn from best practice.

We can be confident that the approach to accountability set out in the paper will work, because it draws on real examples that are already in place. If you ask local leaders what accountability means to them, they will be able to tell you who can ultimately hire and fire them. That is one version of accountability. They will also give you a list of the people and bodies to which they are accountable—partner organisations, local democratic institutions, staff, patients and service users, as well as regulators. We want to make sure that all that comes together to address accountability.

We hope to have shared care records for all citizens by 2024 but, as noble Lords will remember from the debate about data last night or early this morning, we have to get that balance right to make sure that people trust that data will not be shared unnecessarily or inappropriately. One of the key challenges for any integration is that it needs data across primary, secondary, social care and other agencies but, at the same time, we have to allow people to opt out. When people opt out, they might have to re-register a number of times. We want to avoid people, particularly vulnerable people, being asked the same question time and again. We hope that integration and people speaking to each other will help across the health and social care sector.

On carers, I was in fact having conversations yesterday on that subject, and I am going to be doing a round table with a number of noble Lords. One of the issues is making sure that we professionalise and give real respect to the caring workforce. One of the reasons why we set up the voluntary register was to understand the landscape of care, the different qualifications and levels, so that we can get a clearer understanding of what qualifications carers need and how we can make sure that works across both health and social care, so that staff can move between health and social care without feeling that one is better than the other.

We want to build on existing reforms. We want to talk to a number of partners—the noble Baroness, Lady Brinton, mentioned housing, for example—and in the adult social care White Paper we looked at ideas about people being treated at home, some of the things that will have to be done at home, whether that is done at system level and how to make sure that partners are working together.

One thing I will say is that the vast majority of care workers are employed by the private sector. The increase the national living wage means that they will benefit from a pay rise, but we have also put in money. Some private providers feel that they are using private profits to subsidise others. We are making sure there is more money to make sure that we get a better quality of service right across. What we really want to do is say, “Tell us where it doesn’t work and where it breaks down” and to make sure that at the place-based level they are able to work together. We will speak to as many stakeholders as possible and we will continue to ask them to inform us.

I will try not to run over time, but I shall talk about the single accountable person. This will be agreed by the local authority and the integrated care board. An increase in long-term conditions and an increase in the number of people being treated for them means that, increasingly, the co-ordination between the range of services looking after them can fall apart; we know that too many people fall between the cracks. That is why we want to have the single accountable person—so that we can make sure that people are no longer falling through the cracks.

I know I have gone on a bit long, so I will allow other questions to come in, but I hope that addresses some of the concerns.

Covid-19: Lockdowns

Baroness Brinton Excerpts

Wednesday 9th February 2022 Lords Chamber

[Earl Howe (Con)]

My Lords, the noble Baroness, Lady Brinton, has indicated her wish to speak. This may be a convenient moment.

[Baroness Brinton (LD) [V]]

My Lords, this paper’s economist authors admit that it reflects their opinions. Extraordinarily, they chose to exclude the most recognised epidemiological research on excess deaths. It is not even peer-reviewed. The conclusions are contradictory to the established annual excess death protocols, published for years by the ONS and other national statistical agencies around the world. Which data should scientists advising the Government and Ministers rely on when making decisions about lockdown?

[Lord Kamall (Con)]

The noble Baroness makes some important points about the meta-analysis in the paper. Undue attention has been given to one paper out of 34 studies. While I am answering the noble Baroness, I will refer to an earlier question. In academia there is a huge debate about meta-analysis in all sorts of fields. The question is what other research should be analysed with meta-analysis. This continues to be an issue of debate among academics in many disciplines.

Health and Care Bill

Baroness Brinton Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I will speak against Amendments 297F and 297G, spoken to just now by the noble Baroness, Lady Nicholson. One incident last week explains why they are dangerous and unnecessary. A woman, whom I will not name, was in hospital said the following on Twitter:

“This is incredibly hard to say, and I couldn’t feel more foolish, embarrassed, awkward and dumbfounded as I do now, but it’s been confirmed that the person I believed to be male on the hospital all female bay I was on, was … in fact, a female. This has been 100% verified … I have no words other than how on earth did I mistake a woman for a man? Delicately and with respect I say she was a very emasculated woman and I’m just totally stunned right now at the mistake, my mistake… and am … mortified that I took to Twitter utterly convinced that the woman who looked and sounded like a male, turns out to be quite genuinely a female. I apologise for causing a storm and will take some time off here while I let it sink in. I cannot understand how I got it so wrong … I feel a complete idiot.”


The problem is that these two amendments feed into the conspiracy movement against trans people and prey on vulnerable women such as this who believe that there is a problem. The fear inculcated by the gender-critical movement means that she felt entitled to aggressively call out a complete stranger minding her own business in her own hospital bed, in case she was a trans woman. Yet the reality is that there is absolutely no evidence whatever of trans people causing problems on single-sex wards. All the examples of assault given by the noble Baroness, Lady Nicholson, were by men, not trans women.

What is more, trans people, just like people who are not trans, have a right to privacy and dignity in hospital, just like everyone. Imagine if the patient who had been aggressively called out by this woman had been a trans woman. Is that sort of behaviour towards someone ill in hospital in any way appropriate? Of course not.

Amendment 297F, also in the name of the noble Lord, Lord Blencathra, sets out how to record instances where people complain about trans people simply on the basis that they are trans. Such behaviour may be part of a pattern of behaviour that may result in risks to any patient who is trans, visibly gender non-conforming or, as in this case, a woman. Not allowing the recording of such incidents may then place the NHS trust at risk of failure in its duty of care if something subsequently happens between the two parties.

The noble Baroness, Lady Nicholson, started to outline the definition of “harassment” under the Equality Act: “violating” a person’s “dignity” or

“creating an intimidating, hostile, degrading, humiliating or offensive environment”.

The amendment would only restrict recording of incidents involving trans people—not other gender non-conforming people. As such, it would be discrimination because trans people would be prevented from having discriminatory actions against them recorded, while everyone else would not be so prevented.

Amendment 297G flies in the face of current hospital practice. The NHS already has policies relating to where trans people should be housed, which reference the types of treatment required and the requirement for respecting the privacy and dignity of the trans person, alongside the privacy and dignity of all other patients too. This amendment would overrule those policies and therefore override the privacy and dignity of trans patients. It would clearly breach basic human rights legislation. And, by the way, trans people may require medical treatment for conditions relating to their lived-in sex: trans women may get breast cancer, for example. Requiring them to be housed in different accommodation could mean that the specialist nursing care required for their recovery may not be available.

But there might also be an unintended consequence of this amendment. If trans people know that they will be housed with people of their birth sex, rather than of their lived and legal sex, many will avoid going to hospital altogether, leading to many having increased and dangerous health complications. This could be potentially life-threatening, which is implicit discrimination under the Equality Act.

As the recent incident highlighted on Twitter shows, there actually is no real problem to be solved, and all that these amendments do is seek to demean and ostracise trans women in our society. I hope that the Minister will not support them.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I am delighted to support Amendment 297L from the noble Baroness, Lady Hollins, which proposes mandatory training on learning disability and autism and how to care for people in the health sector. The amendment is also signed by the noble Baronesses, Lady Bull and Lady Merron.

People with learning disabilities and autism need to be cared for by those who really understand their condition so that they can carry out their roles effectively. This amendment formalises that in terms of the plan, what needs to be covered and what the code itself needs to cover. Those of us who have family members with learning disabilities or who have worked closely with them know that this specialist understanding is vital, and for a broader range of people working with them than is usually understood.

The noble Baroness, Lady Hollins, highlighted the need to ensure good understanding of health issues and how they are managed. Oliver McGowan’s story is shocking and we need to ensure that it is not repeated at a strategic level. During the pandemic we heard of far too many “do not attempt resuscitation” orders for people with learning disabilities. Indeed, it took some considerable time to get access to Covid vaccines for people with Down’s syndrome and other learning disabilities, even though they were more susceptible. It took too long to get that changed. My Down’s nephew in Spain is still not entitled to a vaccine.

In an earlier amendment we discussed abuse in institutional settings. Last year, there were some appalling undercover videos of staff physically abusing autistic students at a residential school. One of the comments was that it was evident that some staff had not been trained to understand and manage autism. Training is not needed just to prevent bad behaviour; well-trained staff in health and education settings are a joy to watch when they are working with those they are supporting, and it can truly enrich their lives.

[Lord Warner (CB)]

My Lords, I rise briefly to speak in support of this amendment. I declare my interest as a vice-chairman of the All-Party Group on Autism and the grandfather of a child with very serious autism. In particular, I want to emphasise a point which I think I have made before in this Chamber about the problems of achieving a diagnosis. You achieve a diagnosis when people start to recognise the problems that a young person is suffering from. Carers do not get any kind of services until there is a recognition of the condition by people in the different agencies.

I thoroughly support this amendment, because it would put on a statutory basis the need to improve training for a range of people who are likely to come in contact with the family from time to time, so that they are on the lookout for this condition, which, I can tell the Committee, can be very disruptive to family life and very difficult to deal with. The people who are carers of young people with autism have a terribly difficult job and a tremendously difficult road to travel. So the more help we can give clinicians and professionals in recognising the condition and bringing help to these families, the better.

--- Later in debate ---

[Baroness Brinton (LD) [V]]

My Lords, I will speak to first three amendments in this group, but I support the others.

The office of the Health Services Safety Investigations Body is vital. It has the capacity to make the step change in patient safety that Parliament has been asking for on a regular basis, over many years. Amendment 308 makes it clear that it is vital that there needs to be scrutiny of the appointment of the chair and the chief investigator by Parliament. The history, outlined by the noble Lord, Lord Hunt, but also in the amendments your Lordships’ House has considered during the course of the Bill, arises very much out of the recent First Do No Harm report, which the noble Baroness, Lady Cumberlege, led. This was a recommendation, as the noble Lord, Lord Hunt, said, of the Joint Select Committee, pre 2019. It emphasises the public scrutiny of these appointments, the importance of the HSSIB and the fact that it must fulfil its duty to the best of its ability and be very much in the public eye.

Amendment 308A talks about financial stability over a period of years. It is all too easy for new bodies being set up by the Government to have a one-year budget. I am thinking, just as an example of the moment, about the position the public health budget has been in, where there is no stability at all. Quite often, in March, health bodies find out exactly what they will get to start the next financial year in April. Let us not do that with the HSSIB. Let us give it a three-year plan for financial stability.

Amendment 309 is vital if the HSSIB is going to succeed. It has to have adequate funds and resources to carry out one of its core roles—that of investigation.

I also echo the concerns of the noble Lord, Lord Hunt, about coroners, and support the amendments in the name of the noble Baroness, Lady Young.

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak to our Amendments 310A, 311A, 312A and 319, and I thank the noble Lord, Lord Patel, and my noble friend Lord Hunt of Kings Heath for their support. I declare former interests as a chair of the Care Quality Commission and a recent chancellor of Cranfield University, which has a major teaching research role in air, rail and accident investigation in the UK and globally.

I share the view of my noble friend Lord Hunt that this is an important step forward for patient safety. The whole point of setting up the HSSIB is its independence and the concept of safe space and protected material. However, the Government, having made a good call in proposing that it be set up in these terms, have immediately screwed up—if noble Lords will pardon the technical term—by eroding its foundations from birth.

I know we are not supposed to rely on Explanatory Notes, but I will quote them, as they give some indication of the original and admirable intentions of Government:

“The Bill creates a ‘safe space’ within which participants can provide information to the HSSIB for the purposes of an investigation without fear that it will be disclosed to others.”


This good model can be compared with the air, rail and marine accident bodies. Safe space enables the improvement of safety by promoting learning and not attribution of blame. This is a founding principle behind establishing a safe space.

The importance of safe space is well documented in air accident investigation. The key point is that the evidence is collected on a not-for-blame basis and cannot be utilised in another, different sort of investigation. There are UK and international examples of the chilling effect of the impact of compromising the safe space principle. I can provide them for the Minister, if she would like them.

One of the most graphic examples I heard was a fatal air accident in New Zealand where police seized the cockpit voice recorders. The result was that pilots across New Zealand no longer trusted the CVR data to be protected as a matter of principle and withdrew their co-operation from the collection of cockpit voice recorder data. In fact, they routinely disabled the CVRs after the start of each flight and reported it as a fault. This withdrawal of co-operation continued until full protection of the CVR data was put in place in line with international standards. That is a sign of what can happen to a community of interest if they do not feel they can trust the rules.

--- Later in debate ---

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

Thank you very much for reminding me. I am frightfully sorry. I invite the noble Baroness to make a speech now.

[Baroness Brinton (LD) [V]]

My Lords, I am grateful to the noble Lord, Lord Hunt, for outlining the amendments in this group, and look forward to my noble friend Lord Clement-Jones’s contribution shortly.

I want to speak particularly to Amendments 298, 299 and 300. Before I do that, I want to support my noble friend Lady Tyler of Enfield and her Amendment 307. I thank the Minister for the meeting last week on children’s issues, and just want to say that my noble friend’s proposal is a neat way of resolving what has been, up until now, a nightmare, through which children at risk of abuse or with other care needs have been missed by officers in different departments using different identifying numbers. A unique identifying number can close that lacuna.

The national plan for open government published a “reset” on health data, and it is worth repeating here its commitment 4, objective 1. Objective 1 is “accountability and transparency”:

“Improving communication and engagement with the public about the access and transparency of health data, and decision-making relating to public health.”


It then asks:

“What is the problem that the commitment will address?


Civil society groups have raised concerns that health data collected and used by government is not clear, transparent or accountable enough. It leads to a failure of trust between citizens and government.”


How right that is. I pick up the points made by the noble Lord, Lord Hunt, on shared care records. There is a definite need for a solution to the problem that he outlined. Opting out is patchy, complex and—worse—inconsistent.

Last year, on part 2 of care.data, the Government decided to change the way they held and used confidential patient data, and thought it appropriate, in the 21st century, just to announce the changes on the web. There was no direct contact with patients about the changes and, unlike the debacle the time before, there was not even a leaflet going to every household. There certainly was not a wider discussion with civil society. Worst of all, there was not even a discussion with GPs. Unsurprisingly, GPs and patients were horrified and the idea was ditched last summer. However, there is one serious long-lasting result. There is now real concern that this Government are trying to be cavalier with patient data, and the NHS does not understand the problems that it is has.

Data collection and sharing are important and have been instrumental in advancing medical capabilities and improving population health. Equally, individuals have the right to understand how and why their health data is being used, and to give permission on any confidential data. Frankly, the wealth of data held by the NHS should be used only for the benefit of the health service and for research; it should not be shared for marketing or insurance purposes, or as a benefit for a provider to make use of outside the original contract, as happened with the big data firm Palantir at the beginning of the pandemic. In February 2021, the tech justice firm Foxglove issued a law suit on behalf of openDemocracy over the NHS contract with Palantir, because of a failure to consider the impact of the deal on patients and the public without an impact assessment or consultation.

If the Government are to live up to their commitment, they need to set up a clear framework on health data with the public that sets out the fundamental principles and responsibilities for assessing whether a data-sharing partnership is in their interests and those of the NHS, while protecting privacy. That is why we need Amendment 298, because new subsection (6B) in Clause 81 appears to remove the explicit obligation that was in Section 250(6)(b) of the Health and Social Care Act 2012 that NHS England

“must have regard to an information standard published under this section”

and replaces it with a power for such obligations to be waived by regulations. That completely contradicts objective 1, “accountability and transparency”, as set out in the national plan, as I outlined at the start.

I will leave my noble friend Lord Clement-Jones to explain how the data can be protected in a much more effective way. Access to health data must be for public and patient benefit. These amendments set out to protect that patient data and put a responsibility on the Government to live up to what they claim they want to do in their national plan.

--- Later in debate ---

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I call her to speak.

[Baroness Brinton (LD) [V]]

My Lords, I want to speak very briefly to thank the Ministers for listening to the noble Baroness, Lady Sugg, and the noble Lord, Lord Patel, and others who have been working with the RCOG and others to ensure that both virginity testing and hymenoplasty procedures are banned. As the noble Baroness, Lady Penn, said, to ban one without the other would have been unhelpful, because they are inextricably linked. It is particularly good to see that extraterritorial jurisdiction is included too.

I am also delighted to hear about the creation of resources for education and training, which is vital for working with young people and their communities to ensure that they are kept safe from virginity testing and hymenoplasty. Will there be special funding for this? Without funding and resources, it will be difficult to make sure that this work is carried out throughout the at-risk communities.

[Baroness Sugg (Con)]

My Lords, I originally had an amendment down to criminalise hymenoplasty in this Bill, but I have been pleased to withdraw that and put my name to the government amendment instead.

I asked a question on banning hymenoplasty of my noble friend Lord Kamall back in October. He gave me his word that he would push this as much as possible to make sure that we ban both virginity testing and hymenoplasty. He has kept to his word, and I am very grateful to him.

It is late in the evening—well, early in the morning—but I want very briefly to give your Lordships a first-hand account of why this is such an important amendment. Hafsah—which is not her real name—was raped as a child. Afterwards, her parents became obsessed with the idea of presenting her as “pure” on her wedding night, and her father told her that surgery would “fix her shame”. This surgery is widely available on Harley Street and in private clinics at a cost of around £2,000. In support of this amendment, Hafsah said:

“If hymenoplasty had been illegal when I was a teenager, it would have saved me a lot of emotional abuse. I’m sure it will be a great comfort to vulnerable girls in a similar position to know that the law is on their side. It should give them the strength to stand up for themselves.”


This ban on both virginity testing and hymenoplasty will be a substantial step forward in tackling the damaging myths and stigmas about virginity. Neither procedure has any medical benefit. Both are harmful practices that create and exacerbate social, cultural and political beliefs that attach a false value to women and girls in relation to whether they have a sexual history.

I am grateful to my noble friend the Minister for explaining the work that the Government will do on education in community and clinical settings. I hope that they will also ensure that they implement the other recommendations of the expert panel on hymenoplasty and sustainably fund the specialist organisations that support women and girls at risk of honour-based abuse.

Finally, there have been many campaigners involved over a number of years to bring about this change in the law: IKWRO, Karma Nirvana, MEWSo, Nimco Ali, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, Garden Court Chambers, Richard Holden MP, all those on the expert panel, and many others. I pay tribute to their hard work, tenacity, perseverance and patience. It has been my privilege to speak on their behalf in this place. This amendment will make a difference to the lives of many women and girls, and it has my full support.