Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 3 months ago)
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Baroness Murphy
“Mental Health Act: members of ParliamentRepeal of section 141 of the Mental Health Act 1983
Section 141 of the Mental Health Act 1983 (members of Parliament suffering from mental illness) is repealed.”
Baroness Murphy
My Lords, Section 141 of the Mental Health Act 1983 provides that where a Member of Parliament is detained under the Act, the Speaker must arrange for two registered medical practitioners—psychiatrists appointed by the president of the Royal College of Psychiatrists—to examine the Member of Parliament and report. Six months later, the Speaker must arrange for a second assessment by psychiatrists, and if in their opinion the Member is still suffering from mental disorder, the Speaker lays a report before the House of Commons and thereupon the seat of that Member shall become vacant. There is no appeal mechanism. This provision also applies to Members of the Scottish Parliament and the Welsh Assembly, but not to the House of Lords. There have been times in this Committee when I have wondered about that.
This clause has never been invoked. In fact, the last use of the preceding section was for the removal of Reverend Charles Leach MP in 1916. It was very interesting to read about his case. He was clearly suffering from what we would call multi-infarct dementia and was not actually refusing to give up his seat, although it is clear to me that he would not now be detained in the way he was in those days. The Victorian legislation was introduced by the Lunacy (Vacating of Seats) Act 1886, a Private Member’s Bill to deal with one particular issue, although it was too late for that and therefore post hoc. The legislation was transferred, word for word and process by process, substituting lunacy commissioners with two psychiatrists in 1959 and again in the 1983 Act, and here we have it still.
We know from a survey conducted by an all-party parliamentary group in 2008 that one in five Members of Parliament admits privately to having had personal experience of mental ill health. That is not significantly different from the general population. The majority of those would be mild forms of mental distress, but some of us are aware of serious breakdowns where Members of Parliament have recovered fully and returned to work with few people being much the wiser. Surprisingly, there is a very inclusive, supportive environment in the Commons for people who have suffered periods of mental ill-health.
There is widespread agreement that this stigmatising and discriminatory legislation is not fit for purpose. None of us would tolerate such discrimination against people with physical ill-health who were away from the Chamber of the Commons for six months or more—for example, with a cancer or following a stroke. I am sure that the Minister will remember his own words along these lines in our debates on the Mental Health Bill in 2007, when the noble Baroness, Lady Wilkins, tabled an amendment similar to this one. Unfortunately, we did not have an opportunity in those 2007 debates to pursue the matter at great length because the previous Government reached the end of their term.
The repeal of this section was recommended by the Speaker’s Conference in January 2010—I think that 68 per cent of those who voted were in favour. In February this year, Deputy Prime Minister Nick Clegg announced that it would be repealed when a suitable vehicle could be found. I pay tribute to him and to the Cabinet Office Minister, Mark Harper, for their continuing commitment to this cause. This Bill is a suitable vehicle. I thank the clerks in the Public Bill Office for finding the right place to include it.
We should get this measure off the statute book and demonstrate the House's commitment to the continuing campaign to reduce the stigma to which the voluntary organisations and the Royal College of Psychiatrists have given so much time and energy to make a success. It is time for change and I hope that the Government will respond positively.
The noble Lord, Lord Stevenson of Coddenham, has introduced in this Chamber an important Bill to repeal four pieces of legislation that discriminate against people with mental health problems, of which this was one. The others refer to jury service, governors of schools and directors of businesses. I am totally supportive of that Bill and hope that it is successful. I understand, however, that it is unlikely to be able to proceed through the Commons this Session and will therefore have to be reintroduced in the new Session. If this amendment were accepted today, it would require a simple revision to that Bill, but the major practical provisions are of much more widespread significance and would, I believe, continue to attract government support.
I had considered withdrawing the amendment and waiting for next Session to get that whole Bill through, but my anxiety is, as Harold Macmillan said, “Events, dear boy, events”. We have an opportunity now to get this right and we do not know for sure whether the opportunity will appear again soon. I would very much like to see the repeal of this section enacted this Session. What a Christmas present for the mental health world that would be. I beg to move.
Lord Deben
My Lords, the parallel is that things amazingly go on in this country until they are stopped. The Girls’ Friendly Society long ago lost any reason for existing because the girls with whom it was friendly no longer existed in the situations and houses in which they were, yet it took a good 40 years to decide that it was time for it to go. I remember sitting next to a person who explained to me that the trains from Ipswich did not go to Manchester direct but went down to London because there was a row in about 1850 between the Great Eastern Railway and the Grand Central Railway. No one knew that that was the reason, so the trains still went along that route. It was only on privatisation that people started to look again and discovered why that was.
Baroness Northover
My Lords, I remind the Committee that the Government are publicly committed to the repeal of Section 141 of the Mental Health Act 1983. On 3 February 2011, the Government announced that it would be repealed when a suitable legislative vehicle became available. Section 141 sets out a process by which an MP’s seat is vacated if they are authorised to be detained under mental health legislation for a period of six months or more. There is, however, no parallel provision for the automatic disqualification of those who might be hospitalised or on sick leave with physical ailments for six months or more, as the noble Baroness has indicated, even if those people might be equally incapable of fulfilling their duties. The noble Baroness is absolutely right in that regard.
Even those who are imprisoned are not automatically disqualified unless their sentence is more than 12 months. This is an unwarranted discrimination against those with mental illness. With the repeal of Section 141, being detained in hospital for mental health reasons would no longer lead to the automatic loss of a MP’s seat.
However, the Government believe that the most suitable vehicle for this reform would be a stand-alone Bill, allowing both Houses the chance to debate this important issue. There are some outstanding questions on the extent and effect of repealing this provision, which we are still discussing with the devolved legislatures. The Government do not feel it is appropriate to accept this amendment while these questions remain unanswered.
The Private Member’s Bill of the noble Lord, Lord Stevenson, the Mental Health (Discrimination) Bill, had its Second Reading on 25 November 2011. The Bill aims to repeal various pieces of legislation that discriminate against the participation of those with mental health conditions in public life, including Section 141. At its Second Reading, the Government indicated their support for this Bill and we continue to support the Bill as an appropriate means for removing several pieces of discriminatory legislation.
We have already announced our intention to repeal, setting out the Government’s position that this sort of discrimination is not acceptable. While I applaud the noble Baroness’s intention, this important reform should be part of a stand-alone Bill, not inserted here at Committee stage. I am sure that noble Lords will agree that the issue should be given the parliamentary attention it deserves, and I hope that the noble Baroness will be prepared to withdraw her amendment.
Baroness Murphy
My Lords, I am profoundly disappointed but beg leave to withdraw the amendment.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 3 months ago)
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Lord Beecham
In the first place, I am grateful to the noble Lord, Lord Mawhinney, for recognising when I am on my feet, given that there is not much of me to be seen. In relation to his question, I am not suggesting that they should be voting members. That is the point. There is a difference. The voting members—I do not mean executive members—should be confined to elected councillors and those representing the other partners, the clinical commissioning groups and the trusts. It is a partnership arrangement. You have this sort of arrangement in care trusts and the like. It is an acceptable one, but at the very least there should be equality of arms between the elected members and those from other organisations.
Baroness Murphy
Can we be quite clear that the noble Lord, Lord Beecham, is asking for a health and well-being joint board on which the director of social services and the director of public health—two crucial people contributing to the board—have no vote?
Baroness Williams of Crosby
My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.
Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.
I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.
I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.
Baroness Murphy
My Lords, I have added my name to these amendments. Like the noble Lord, Lord Warner, I have come back time and again to this issue of what we really mean by integration, and what it will mean for patients, clients, and people living in the community. It must be a seamless service. They do not mind, of course, where the services come from, but it has to be utterly without gaps. It has to operate 365 days a year, year after year after year, if it is to work.
It seems to me that these health and well-being boards have two huge areas that they will have to work in: the public health and well-being functions around housing, the health of children, and the education of children, for example; and the delivery of services. These two arms are quite difficult to meld together in any joint planning arrangements. The joint strategic needs assessment will try to produce these two focused blocs, but it is actually quite difficult. I am sure I am not the only alumnus, or graduate, or perhaps I should say survivor, of joint planning arrangements. I am even a survivor of a health action zone. I know how difficult it is, and how many hours of work go into properly well-functioning joint planning arrangements, which can commit funds. It takes hours of time and extraordinary leadership from health and local authorities to make them work properly.
I am not sure that I think these health and well-being boards are an inspiration, as the noble Baroness, Lady Cumberlege, does. They are a bit of an improvement on what went before, but to work properly they are going to have to work very hard locally to get it right, and get the structures right. I think it would help enormously if they were working towards something real. For me the real thing would be the integration of the working of health and social care, both at the patient level and at the public health and well-being end of the population. Our Amendment 336 provides one option for a way of working together—an option that local organisations might want to take up. It is an idea, and I am sure that we can think of many others that would also fit the bill. I want these boards to be real and their functions to be made practically useful on the ground, so I support these amendments.
Lord Patel
My Lords, I have my name on these amendments. Of course, we have had an opportunity to discuss integrated care at length at other times. However, I agree that integrated care and the delivery of it is one of the key challenges in the Bill. I agree with what the noble Lord, Lord Warner, said. To a patient, integrated care is the care they need: primary care, secondary care, social care and care in the community.
What leverages will there be for the commissioners to promote the integration of health and social care? They will have the budget, but what other incentives will they have? There is some evidence that contracting of provision of care to a population, particularly the elderly, the frail and those with complex diseases, will require much more care but also use more resources and services. It is not only value for money, but improved patient experience and patient outcomes. How will the commissioners be encouraged to do this? Does the Minister think that three separate outcomes frameworks in health, social care and prevention will help or hinder integration of care? There is also an issue about who will lead this change, if we think that this is the key challenge in the Bill. I agree that putting a clear definition of what we mean by integration, or what a patient means by integration, into the Bill will give a clear message to all those who commission and deliver the care, to know exactly what they have to do.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 3 months ago)
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Lord Warner
My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.
Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.
As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.
Baroness Murphy
My Lords, I echo many of the words of the noble Lord, Lord Warner, although I wish to put a slightly different slant on the issue. It is crucial that we press on with the project to get all trusts to foundation status. There is no doubt in my mind that having this two-tier system, which we have allowed to continue for too long, has led to difficulties in foundation trust hospitals becoming more self-reliant, more seriously entrepreneurial in the way that they think about their services, and more responsive to the local agenda, and so on. They have not had to bother because they have always had Big Brother watching. The de-authorisation process, which threatens to drag them back to the Department of Health, has acted as a sort of brake on their thinking. That has been quite difficult. I seriously think that we should move trusts to foundation status. The noble Baroness, Lady Thornton, is looking puzzled, but I think that it has been a really serious problem.
Baroness Thornton
I was looking puzzled only because I wondered what evidence there was for some kind of break in the system.
Baroness Murphy
Some kind of break in the system? I shall continue with my theme: it is crucial that we move all trusts to foundation status. I quite agree that the dates that have been set before have come and gone, but quite often they have come and gone because the strategic health authorities have not provided the necessary support to move trusts to foundation status. In fact, some strategic health authorities were positive blocks in the system to the development of expertise within the foundation trust. I accept that there are some at the moment which, as the noble Lord, Lord Mawhinney, has mentioned, face the PFI problem. Te recharge is too great for them to subsume and the debt is too great. Others have long-standing debts that cannot be written off. Some are not viable because of the populations they serve. Unless we have a definite aim and objective to get them there, they will never get there. We can get there if there is a concentration on the problem. Each hospital is different. I share the concerns of the noble Lord, Lord Warner, about some of the projects to merge one failing hospital with another, or one failing hospital with a less than successful one.
The evidence from NHS trusts’ failing hospitals merging has been that they continue to fail in a bigger way. The Barking, Havering and Redbridge three-trust hospital merger was a striking example of one that did not work and never could. I have that anxiety. If we are going to move away from the process that we have put into this Bill and retain de-authorisation and NHS trusts, we accept that we are continuing with a two-tier system for ever. That would be seriously detrimental to trying to get everyone moved over into a properly regulated system. It is going to be difficult. Certainly, the role of governors needs strengthening. Governors in some places are wonderful. In other trusts, they are mixed-ability classes, let us say. They will need considerable support and development to get there. Nevertheless, it would be catastrophic to have a two-tier system continuing to run after the introduction of the Bill. We need a fixed end point to work to.
Lord Warner
I totally support the idea of getting everybody into foundation trusts. I am questioning whether the processes that we have in place will actually deliver that in the time scales that are being set by the Government. I suspect that in practice you can make the kind of progress required to achieve the Government’s objective only if you reconfigure services rather than just pursuing merger mania.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.
They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.
Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.
To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.
I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.
I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.
The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.
A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.
The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.
Baroness Murphy
My Lords, I welcome the comments of the noble Baroness, Lady Thornton, that her opposition to the Clause standing part of the Bill is for probing purposes, as are some of the other amendments. We have all welcomed the review of the private patient income cap introduced by the previous Government following the judicial review by Unison of Monitor’s interpretation. The Government’s amendments go a long way to addressing our concerns about the extension of private income diverting NHS hospitals into private activity. I understand and have great sympathy with the amendments tabled by the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, in that respect.
I ought to say that I have never, as an NHS consultant, practised privately. This is both an ideological and a practical matter. As I mentioned before in Committee, my own professional activity simply could not be done effectively without working in conjunction with social services, housing and the voluntary sector. It would not, therefore, have sat very easily with my activities. I have, of course, seen the very important role that private income plays in swelling the NHS coffers in many foundation trusts. However, it is worth reminding ourselves how dreadfully unfair that private patient cap has been. Hospitals like the Royal Marsden have a cap of 30 per cent, but they manage to do that work without any diversion of activity from their brilliant NHS service. Many acute FTs and all mental health foundation trusts have a cap of zero. For NHS FTs as a whole, the average PPI cap is 1.5 per cent of their income. The overall figure is therefore tiny. Foundation trusts’ private income was less than 2 per cent of their total income across the board. However, this income can be very welcome to individual hospitals. Anything that makes the system fairer for hospitals is extremely important. It is of course worth saying that ordinary NHS trusts do not have a cap and can make as much income as they like.
We need a mechanism to enhance FTs’ commitment to remaining focused on NHS patients. I believe that all existing foundation trusts are focused on that, but if we approve the government amendments—Amendment 299AZA and one other—they will go some way to ensuring that at least the majority of activity remains as it is. In reality, private practice is not likely to extend very much. The provisions will prevent the kind of unfairness and terrible bureaucracies that have been associated with joint ventures and the complexities of the current rules which even the judge in the judicial review of the private patient income cap admitted were real practical difficulties for foundation trusts that needed to be addressed.
The government amendments are strong, but I would not entirely not support some of the stronger amendments tabled by the noble Baroness, Lady Williams.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 3 months ago)
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Baroness Thornton
My Lords, I promise that this will be a very much shorter speech. We now turn to the second group, which concerns Monitor’s function as a licensing provider—a part of the suite of amendments that we have put down about reconfiguring Monitor.
The Bill extends the concept of financial regulation to non-financial trusts, and we can see the logic in this. For consistency, however, we argue that all providers of services to the NHS—not just foundation trusts—should have to meet requirements around their financial position and have this subject to oversight, as well as the obvious fit and proper test that they would have to go through.
We can see the argument for a robust evaluation, for example, of capital structures, which certainly would have been helpful in the case of Southern Cross. The regulator should be allowed to make authorisation subject to this kind of probity test—something like a fit and proper persons test. For us, the key aspects of the licensing regime should be determined by the Secretary of State, not by the regulator. The job of the regulator in our view is to operate the system, not to define it. I would invite the Minister to say whether he agrees with that analysis.
With foundation trusts we set out that Monitor shall use the licence to ensure that information flows to the regulator to enable it to have effective oversight and to intervene if necessary. The licence has to extend this to other sorts of providers which may be reluctant to supply information or submit to the idea of intervention. They may claim commercial confidentiality. The Bill resolves this problem, as far as we can see, by simply having no oversight—in other words, the “nothing to do with us, guv” approach to regulation. We believe that the public would not accept this. The Mid Staffs example, where Monitor came into much criticism, or the Southern Cross example might be instructive here.
Baroness Murphy
I am sorry to interrupt. The situation at Mid Staffs arose following the approval of the Department of Health and the Healthcare Commission. It was passed to Monitor as a fit and proper hospital. The scandal emerged only three weeks after it was approved by Monitor.
Health and Social Care Bill
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Baroness Anelay of St Johns
My Lords, I appreciate that this procedure is not common, but it is not novel. The noble Baroness, Lady Murphy, is seeking to contribute to the continued debate. May I suggest that Peers who are attempting to leave should do so by the other door, and preferably not by that door—I say to the noble Lord, Lord Borrie—so that she can stand and be heard by the House?
Baroness Murphy
Thank you very much indeed. I just want to comment briefly on the amendments on licensing. Some of them are asking quite a lot of the licensing procedure, but there may be other mechanisms that achieve what they want to achieve. I am sympathetic to people’s desire to add these conditions, but I think that it is important to see the licensing arrangements as part of the system, in conjunction with registration with the CQC. It enables Monitor to approve the compliance arrangements to achieve good governance and the information requirements needed to monitor that the organisations are delivering the right standard of care.
The threat of licence revocation enables Monitor to pick up at an early stage the problems of quality and finance which other people have spoken about. Obviously the providers will be very concerned to hold on to their licence, which seems to be a very powerful and potent tying-in of organisations to the ethos and objectives of the NHS. We must be very careful not to regard the licensing process as something within which to impose too many conditions, but as a basic framework that ties the licensees into the system. That is particularly important when organisations start to go wrong. We will discuss later how they are rescued from those predicaments. However, it seems to me that this creates a basic level playing field, and that it would be a mistake to use that process to do much more than tie everyone into the basic system. It sort of replaces the old authorisation process on compliance and quality that was operated by old Monitor, but it is a way of going forward as new organisations come into the NHS as providers of NHS services. I just wanted to add those comments because I think that these amendments might be adding a bit too much to the responsibilities of the licensee.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, licence conditions will be the mechanism through which Monitor will be able to prevent potentially anti-competitive behaviour and enable service integration, where this is what commissioners want. Monitor would also use licence conditions to collect the information it would need to set prices, and to help identify at an early stage—at an early stage—if a provider was at risk of financial distress. If that was the case, it could work with the provider to address potential problems, as well as supporting commissioners to ensure continuity of services. I completely understand the concerns in that area.
First, I think that I need to make clear that all providers of NHS healthcare services will be subject to the requirement to hold a licence. This includes providers of primary medical services, which is the question posed in Amendment 279A. Furthermore, where a provider is providing services that carry a requirement to be registered with the Care Quality Commission, that registration will be a prerequisite to being granted a licence by Monitor. We all want to see close operational links between Monitor and the CQC. The Bill emphasises this by placing duties of co-operation on both organisations, not just in matters such as information sharing, but also in the development of the joint application mechanism for providers seeking registration from both bodies.
We are also clear that regulation must be proportionate, and impose the minimum of additional burdens on those being regulated, while still safeguarding the interests of patients and the public. To that end, the Bill makes provision for the Secretary of State to make regulations establishing an exemptions regime, so that licensing can be targeted towards those parts of the health service where there is the greatest need for regulation. While we are clear that there must be an exemptions regime, we also recognise the importance of making sure that we get the scope of it right. To that end, we are already committed to consulting fully next year on our proposals for the exemptions regulations. Noble Lords may also be aware that the Delegated Powers and Regulatory Reform Committee of your Lordships’ House has recommended that the first set of exemption regulations should be subject to the affirmative resolution procedure. We agree, and both Houses will have the opportunity to debate them before they come into force.
The Bill provides for Monitor to attach conditions to licences. While the Bill sets a framework for the scope of those conditions in Clauses 95 to 97, we are clear that it will be for Monitor itself to develop the detail as the sector regulator. The intention is that the conditions will support Monitor in exercising its functions and that Monitor will be best placed to know how they should be framed to achieve that. Therefore, including large numbers of mandatory conditions on the face of the Bill, as some noble Lords have suggested in certain amendments—for example, Amendments 283, 285ZA and 287A—would undermine the Monitor’s independence, which we do not think is desirable if it is to be a robust and vigorous sector regulator.
Nevertheless, I would like to reassure the Committee that there will be proper oversight of Monitor’s proposals for conditions. My right honourable friend the Secretary of State will have the power to veto the first set of licence conditions. We are clear that Monitor must be able to operate freely and autonomously within the legislative framework established by the Bill. We have built in reasonable checks and balances through requirements for key products, such as the licensing criteria and conditions, to be subject to approval by the Secretary of State. Although I understand entirely the reasoning behind amendments tabled by noble Lords which would increase the level of the Secretary of State’s involvement in provider regulation—for example, Amendments 281A, 282A and 282B—regrettably, I feel that these go a step too far in limiting Monitor’s independence.
The noble Baroness, Lady Thornton, asked me quite a number of questions to which I feel I should write in response. In particular, however, she asked whether Monitor will have the role of resolving disputes and whether all disputes would go to court. The answer to both of those questions is no. The NHS standard contract already provides for contractual disputes to be resolved through arbitration and this will not change. Licence holders have to agree special conditions or modifications to conditions. If the provider disagrees and Monitor then wants to proceed, it must refer the matter to the Competition Commission for consideration.
My noble friend Lord Clement-Jones spoke to Amendment 281A. I want just to comment briefly on that. The amendment would increase the minimum length of notice period during which representations could be made following publication of a notice of proposed exemptions. I am grateful to my noble friend for that. The Bill is clear that the notice period should be not less than 28 days. It could therefore be much more than that, and our expectation in most cases is that it will be. But there will be times when the Secretary of State needs to act quickly, so being locked into a notice period of not less than 90 days could be detrimental to a particular provider or group of providers.
My noble friend Lady Williams spoke to two amendments, Amendments 287EA and 287EB, where the purpose is to ensure that licence conditions on providers of NHS services restrict the income they can earn from private patients and the number of private patients they treat, as well as that funds provided for NHS care are not used to subsidise private treatment offered by foundation trusts, with various conditions attached. I understand my noble friend’s concern about this. However, the amendments would be impractical, and in particular for licence holders who are not NHS bodies they would be highly undesirable. Foundation trusts’ principal purpose—we will come to this in a later group of amendments, when we discuss the private patient income cap—is to provide goods and services for the NHS in England. It means that they must earn most of their income, over 50 per cent, from NHS services. We are tabling a government amendment to make it clear that the majority of every foundation trust’s income will continue to be from NHS service provision. Foundation trusts must comply with their principal purpose or they will be breaking the law. They could be at risk of successful legal challenge if they fail to meet their principal purpose. We are tabling a second government amendment to require foundation trusts to show in their annual reports how income earned from private activities has impacted on the provision of NHS services. Using NHS income to subsidise private patient work would lead to foundation trusts breaching the NHS constitution. The Government also gave a commitment that foundation trusts will have to produce separate accounts for their NHS and private-funded work.
Finally, I want to mention briefly the amendments that will fall to me to move in relation to licensing: Amendments 280A, 281B, 284A to 284C, 285A, 286B, 287C and 287D, and 288A to 288F. These are without exception minor tidying-up amendments to improve the drafting or clarify meaning, and I hope that the Committee will accept them when they are moved. I hope, too, that the Committee feels reassured by my explanation of how we envisage licensing to operate and that the noble Baroness will be able to withdraw her amendment.
Lord Warner
My Lords, this amendment is in my name and that of the noble Lord, Lord Patel. I begin by briefly making clear my position on competition, which underpins this amendment. I am sorry that I had to miss the discussion on the first group of amendments. However, my position on competition is no different from what it was when I was the NHS reform Minister in the Blair Government, but it is somewhat different from that of the current Front Bench, as will become clear.
I start from a position of being opposed to monopolies, whether they are in the public or private sectors, and I consider that such research evidence as is available—such as that by Dr Zack Cooper at the LSE—supports the view that competition—
Baroness Murphy
I apologise. I think that the group we should be addressing begins with an amendment in my name. Unfortunately, I withdrew that amendment last week but it has continued to appear in the Marshalled List, for which I apologise. I believe that we should be moving on to the next amendment in that group.
The Deputy Chairman of Committees (Viscount Ullswater)
Perhaps I may clarify matters for the Committee. The group that we are now discussing begins with Amendment 265ZA, tabled by the noble Baroness, Lady Finlay, but which she did not move. However, the amendments in the group following that one were called in their place.
Baroness Murphy
My Lords, I wanted to come in on this matter of anti-competitive practices and the role of Monitor in it. I apologise to the Committee if some of these matters have already been covered, but I was unable to be here this morning. However, this seems like an opportunity to speak, as we are discussing Monitor’s role in anti-competitive practice.
I am concerned that we have not yet talked about the quite serious anti-competitive practice that exists in the NHS today, and how damaging it is. As we know, the independent co-operation and competition panel has highlighted a range of tactics that are very common at the moment in the NHS and which go seriously against patients’ interests. We have not sufficiently considered these when we are looking at competition. We tend to think of competition in relation to the independent sector versus the NHS in approaching the provision of services, but in fact it is this anti-competitive practice within the NHS which is so damaging. An example of this is the protection of certain local services against providers for elective operations, and so on.
I can think of an example in my own backyard, at Barts and The London—and this is a very real case. For years and years Barts used the mainstream orthopaedic services to provide local podiatry services, at a very high cost and very anti-competitively against the local community services, which had very skilled podiatrists who were able to do foot operations very cheaply and simply with a much smaller waiting list. Those sorts of anti-competitive practices are rife throughout the NHS, and are against patients’ best interests. It is utterly crucial that this role to reduce as much anti-competitive practice as possible should be watched by Monitor, but we want it to be co-ordinated with its role on integration—there is absolutely no reason why the two things cannot go side by side.
I am sure that we will come on to mergers and acquisitions, but the recent protection of patients and the public—for example, against the merger of two mental health trusts, Norfolk and Waveney, and Suffolk—seems to me to be extremely good judgment about what is likely to be in patients’ best interests. We should remember these matters of anti-competitive practice that are, as I say, rife in the NHS, and we really need to do quite a lot to stamp them out. I hope that the role of Monitor in working on these practices in patients’ best interests will be strongly supported.
Baroness Finlay of Llandaff
My Lords, the noble Lord, Lord Warner, was most helpful in setting out the criteria with which one would want to look at competition, and emphasising the importance of competition. But there is another area of competition, which is the one that really drives up quality of care: the inherent competitiveness of different clinicians and different clinical services, their desire to have better clinical outcomes than others, and the pressure that they will put on themselves within their own team to achieve better clinical outcomes.
I apologise to the House if I contributed in any way to the confusion over the numbering of the amendments as they have arisen. I would like to address the ones that come after Amendment 266, which will be Amendments 268B and 267C. Amendment 267C was tabled because of the large number of patients with complex clinical conditions.
It is very easy, when we are thinking about tariffs and services, to look almost at discrete nuggets of care, diagnosis and so on. Indeed, Monitor has a requirement in the Bill to seek appropriate advice to effectively discharge its functions in,
“the prevention, diagnosis or treatment of illness, or … the protection or improvement of public health”.
The amendment related to the management of a wide range of complex conditions has been tabled because in complex conditions many situations overlap and cannot be discretely targeted together, nor can they necessarily be unpacked one from another because of their impact on each other. That requires integration of clinical services.
Lord Clement-Jones
My Lords, I am sure that this was well worth waiting for, but it could be the mouse that roared. We are back to other aspects of Clause 59 on the general duties of Monitor. This amendment and Amendment 267ZB simply aim to ensure that to discharge its functions Monitor has input from HealthWatch England. That is all about patient and public involvement. It seems to me and to my noble friends that Monitor should definitely insert such input into its deliberations. I cannot find in the rest of the Bill any other such duty on HealthWatch England, which after all will have an extraordinarily important role. Many noble Lords have welcomed the new enhanced role for patient and public involvement. I remember the demise of community health councils and the hard-fought debate that took place in about 2004—I cannot remember exactly when—and I very much welcome the new enhanced role for HealthWatch England. However, Monitor will need to be informed by it and I very much hope that the Government will take this on board. I beg to move.
Baroness Murphy
I realise that I have another amendment in this group, and I would have saved the Committee a great deal of disquiet over the numbers if I had spoken to this one in the first place, so my apologies all round. This group of amendments is about how Monitor discharges its functions and what it takes into account. Mine is a probing amendment on whether we have the objectives for Monitor and their number right. Experience from other sectors suggests that if too many policy priorities are set, the regulator can become confused about its primary objectives, which can reduce its effectiveness. I wonder whether we have the clarity of Monitor’s objectives right.
Monitor will find itself in the position of other regulators in having to devise policies, particularly on the tariff, to meet a wide range of objectives over and above its primary duties. The experience of Ofgem, in particular, suggests that the risk might grow over time as the Government seek solutions for new problems as and when they arise. Setting too many policy priorities carries the risk of confusing the regulator about its primary objectives. That might be inevitable, given the complexity of healthcare policy-making, but it means that the accountability of the regulator in discharging those various functions is critical.
For other major economic regulators, the Government have committed themselves to updating the objectives only once in a Parliament and ensuring that objectives are outcome-focused. Monitor's objectives, unusually, will be set in primary legislation. I wonder whether they would be better in secondary guidance, together with a clear process for agreeing changes with the Department of Health, to protect the regulator from political whim. Nevertheless, it has a number of primary duties in Clause 59. In Clause 62 it has to have regard to a number of other matters. Monitor might find it difficult to demonstrate that they are all taken into account when decisions are made, possibly making it open to legal challenge. I wonder whether it is possible to reduce the number of duties.
I have included just one or two as exemplars simply because I think that they duplicate existing duties. In Clause 62(b),
“the desirability of securing continuous improvement in the quality of health care services for the purpose of the NHS”,
which is crucial, duplicates a primary duty in Clause 59(1)(b), so I think it could be removed. Clause 62(c), on,
“the desirability of securing continuous improvement in the efficiency with which health care services are provided for the purposes of the NHS”,
duplicates a duty under Clause 59(1)(a). Surely that could be removed. These are minor, tidying amendments, but if we can clarify for Monitor what its objectives should be, that would be a help to the regulator.
Baroness Finlay of Llandaff
My Lords, I half spoke previously to the need for Monitor to have regard to complex clinical conditions. I return to that and build on the comments that have just been made, particularly in relation to tariffs.
We are already beginning to see a degree of fragmentation through systems such as “choose and book”. We heard on a previous day in Committee about the problems for patients with various complex conditions, who have to be sent back to their general practitioner to be able to access a different discipline in secondary care and how their care then becomes fragmented. If you are going to provide good integrated care and improve clinical outcomes, you need all the different systems of the patient to be addressed simultaneously—the psychological and welfare areas as well as the different physiological systems that might be affected by a range of pathologies.
I remind the House that it is much easier when people are not terribly ill. When they do become terribly ill, more and more systems fail and become involved: cardiac complications, overwhelming infection, renal failure and potential dialysis might all be involved, and if there has also been trauma with orthopaedics there might be a lot of complex psychological conditions relating to whatever has happened to the person. They all need to come together around that patient. The patient cannot be parcelled off from one service to another or people be brought in sequentially like small aliquots of opinion.
Baroness Murphy
My Lords, I would like to make a few remarks about tariff and price setting and echo the words of the noble Lord, Lord Warner, who reminded us that there are two equally important mechanisms: tariff development, which is the responsibility of the national Commissioning Board; and price setting, which is the responsibility of Monitor. It is critical that Monitor retains the responsibility to set prices. That enables it to uphold its responsibilities for sustainability and balance the interests of commissioners and providers in the patients’ best interest. Independence in price setting is utterly critical. We have seen previously that not having independence from the executive arm in the NHS has been a disadvantage in getting the right prices which reflect the complexity of the issue concerned. I take the point made by the noble Baroness, Lady Thornton, that the development of tariffs is a very complex matter. It is work in progress but the work never stops. That has been the case in all countries that have developed tariffs and will be for the foreseeable future. We need flexibility when designing tariffs.
I say to the noble Lord, Lord Davies, that we have seen how catastrophic simple price competition has been internationally in driving down quality of service. Indeed, we have seen that in this country, too. Price competition was not helpful. In order to drive down prices and get better value, you need to start designing the tariff around best practice. This was mentioned by the noble Lord, Lord Warner. You need to design a pathway of care based on what should ideally happen to a patient, deliver the clinical pathway, cost that out and get the best practice in place. If that amounts to less than the set price, which it often does, that is the way that you can start to drive down costs while improving quality. A tremendous amount of superb work has been done in a group of mental health trusts looking at best practice tariffs for episodes of care. If we can get that work ongoing in a group of people who are dedicated to designing better tariffs, we will be able to improve price competition by designing the tariff correctly while not striving to be competitive on price alone.
Lord Davies of Stamford
I am very grateful to the noble Baroness for giving way. I made clear in my remarks that I believe one should start by specifying quality—that would include her point about best practice—and then allow the market to bid against that. Where potential suppliers, whether NHS or otherwise, can come in below the existing price—call it the tariff price or what you will—that will be a spur to everybody else to consider whether they can deliver that quality—I stress “that quality”—better, more effectively and more cheaply. That mechanism will be totally absent in the National Health Service if the Bill is not changed in the way that I have suggested or something equivalent.
Baroness Murphy
I take the noble Lord’s point. I think it is possible to introduce the mechanisms that he would like to see through the existing mechanisms in the Bill on tariff design. Those mechanisms would also address the points made by the noble Lord, Lord Butler, about the need to develop an additional payment for certain kinds of innovation tariff. The possibilities for designing tariffs are wide. We do not need to be rigid about this. I do not know how much needs to be written on the face of the Bill. It seems to me that we need to get that separate in our minds from the actual price setting which is more the role of the independent regulator, having got the design of the tariff correct. Therefore, I would like to see Monitor retain its role as a price setting regulator but I wholeheartedly agree that a lot of creative work needs to be done on the tariff to get it right for integrated care packages and proper best practice design.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 3 months ago)
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Baroness Williams of Crosby
My Lords, at this late hour I will keep the Committee only for a moment or two. I congratulate the noble Lord, Lord Warner, on a courageous, statesmanlike and important amendment. We all believe that there have to be huge changes in the NHS, those of us who support it very strongly just as much as those who are critical of it. The noble Lord has thoughtfully tried to produce a machinery of government that will enable some of these extremely difficult decisions to be made. Perhaps I may say without, I hope, offending anybody, that there are echoes here of what happened to the Governments of Greece and Italy—flatly refusing to look at the realities, refusing to change, and ending up with effectively a total loss of trust in the democratic system. I believe that this amendment is an attempt to try to get away from that and to begin to mobilise a much larger section of the public for the changes that have to be made. That can be done only through open debate and the willingness of politicians to get up and express the need for change and their support for it, not by hiding away and doing the popular thing when that is almost certain to bring about the destruction of the remaining health services in any effective way.
I congratulate the noble Lord and say that he is brave to have done this, and to point out rather harshly that we all have to learn that we cannot at one and the same time take part in Chase Farm demonstrations and Chase Farm decisions. What that means is that, inescapably, the Secretary of State has to be at the centre of this operation, unpleasant though it is, because—as most of those who have been in Government know—either you have to take unpleasant decisions or you have to resign. What you cannot do is dodge the issue by saying, “It is nothing to do with me”, because in the end that will not carry the public with you. It is the public we need to mobilise behind us.
Baroness Murphy
My Lords, I have added my name to this amendment because it fills in the hole in this Bill that I am still worried about. Clauses 95 and 96 contain good ways of intervening early in individual failures on quality and the financial governance of providers that will enable Monitor to get in and do the business it needs to do with individuals, but what we have not got are the mechanisms that will allow Monitor to address at an early stage failures that can be seen coming up in a local health economy.
I have already experienced in the current regime how difficult it is for a regulator to get discussions going locally between trusts and local commissioners on how to address a local service failure. I well remember the whole of the Monitor board going down to the south-west—the trust will remain nameless—to address a failure of the local economy, to discuss it with the strategic health authority and to attempt to come to a conclusion and come up with a plan about how the local economy would solve the problem. The Minister has already mentioned bailouts. The solution was that the strategic health authority would give a bung, which it duly did and which sent the problem away. But in fact the problem did not go away because the local economy was still failing.
It is this early failure—where you can see that things are mounting up, that it is not going to work and that the sums are not going to add up—for which we need some mechanism. This is a clever scheme, but it may be too interventionist. It may be put into blocks which are too chunky to be inserted into the Bill as it is. But we need to address the problem of failure before it gets to the point of administration. As the noble Lord, Lord Warner, says, Monitor will not want to implement the failure regime and the administration regime until things have gone desperately awry. It should not implement the failure regime when the problem is an economy problem and not a trust problem. We need to have some reassurance that there will be some support for local people who are trying to tackle this in a meaningful way.
Lord Davies of Stamford
My Lords, I do not want to hold up the House for too long, but I feel that someone should respond to my noble friend Lord Warner’s amendment on behalf of what he rather dismissively described as the elected political class. I am proud to say that I was a member of that elected political class for 23 years, representing Grantham and Stamford. In the course of those 23 years I had to take action to save both Grantham hospital and Stamford Hospital, separately and at different times, when they were threatened with closure. I used all the methods which my noble friend is no doubt familiar with: meetings with Ministers, lining up local government support, petitions, threatening judicial reviews—even potentially funding a judicial review—and heading major marches. I remember leading over 9,000 people through the streets of Grantham and 5,000 through the streets of Stamford. We won in both cases. Grantham is still a very successful local district hospital and Stamford is a smaller hospital—what you might call a cottage hospital.
The point I wanted to make is this: I would have welcomed the sort of report from Monitor which my noble friend is suggesting. If one wants to save one’s local hospital, and one wants to make sure that the right decisions are made about the health of one’s constituents, one wants a warning as early as possible about the financial or clinical problems—or both—that may be arising. There are often all sorts of alternatives that one can find to closure. It is important for democratic confidence in the NHS that all the possibilities are thoroughly explored and everybody is content that the decision has not simply been taken behind closed doors and then announced to the public when there could have been some initiative that might have saved the day. On behalf of the—slightly dismissed—elected political class, I thoroughly support the amendment of my noble friend.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 3 months ago)
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Lord Hunt of Kings Heath
My Lords, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.
It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register—I am very doubtful that we will see it before the Bill has passed through your Lordships' House—we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.
It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?
Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.
Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State’s annual report is bound to cover these matters.
However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.
Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?
Amendment 245C deals with liabilities and the Secretary of State’s responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?
Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?
My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.
We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.
When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain’t going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.
Baroness Murphy
My Lords, I had not intended to intervene but I have been stimulated to do so by the noble Lord, Lord Hunt of Kings Heath. The model being described of the Commissioning Board and its regional offices—the outposts—is very similar to the model that functions rather well for universities. There is the Higher Education Funding Council for England, which is centralised but also corporate with all its regional offices. The vice-chancellors, who you might say are the chief executives of the local organisations, relate directly to HEFCE. However, the regional executive officers are there to act as a moral support and a conduit. They do not necessarily sort out problems, but at least they are aware of them and know which areas the central body ought to be looking at. That is not so different from the way the regional officers from the Department of Health worked during the time of the district health authorities, between 1983 and 1990. If it is well done, and it has certainly functioned well for the duration of HEFCE, then it seems to me that it is a model which can be built on and developed. Is not that the way the problems the noble Lord is talking about will be resolved?
Lord Hunt of Kings Heath
I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems—if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.
Baroness Murphy
My Lords, I have added my name to the amendment because we are considering a Bill under which we are trying to improve the efficiency, effectiveness, productivity and quality of the NHS. Yet we know that that is completely impossible without improving the social care system.
When I first picked up a copy of the Bill from the Printed Paper Office and read it through, I thought that there must be a third part that would address social care. I therefore rang up the department and spoke to the relevant David—they are all called David—and asked, “Where is it, David? Where are the social care bits that should go with it to make it a Health and Social Care Bill?”. He just said, “Oh, that comes later”. The reality is that many medical specialties simply cannot function effectively without social care services. Those specialities include general practice and my own in geriatric psychiatry. Much of that work involves people with long-term conditions, mental health problems, learning disabilities, all care of the elderly, all primary care and community services. I spent some years of my life trying to transfer money—rather successfully in Lewisham—out of the NHS and into social care, in order to be able to perform my job.
We are not getting the best use of the specialities in the National Health Service for wide tracts of the population simply because we have inadequate domestic personal care, inadequate assessments under social care, inadequate provision of support for carers and those vital bits that make real life work. We know that 40 per cent of the increase in demand for NHS services is entirely dependent on the change in the demographic over the past 20 years. We know from the predictions of McKinsey and others that that increase will continue unless we do something about it.
I used to do a lot of work in the Italian health service, where social care, because it has been so dependent on church organisations, is not organised in the same way that we are. The Italians began to be seriously worried, and they still are, because of the horrendous bed-blocking and poor health services for older people. I hate the term bed-blocking; it really means an inappropriate service to an older person. Who cares whether the bed is blocked? I personally did not care about that as regards my patients. The important thing is that the patients were not getting the appropriate services they needed in the community.
Unless we get a government response on how social care is to be funded in the community and in residential and nursing care that is doable, feasible and affordable, we will not make much progress in the health service because we will be constantly coming back to this problem. It is for this reason that I have added my name to the amendment. I do not know if it is the right amendment. I saw it as a way of kicking the Government a bit further to get a move on about the social care response. The Bill will not work for the NHS of the future unless we have an appropriate social care service response.
Lord Turnberg
My Lords, there is little doubt that one of the key elements in the delivery of a system of care which improves on what we have now—and we certainly need to improve the current position—is the need to integrate care between the NHS and social care. It is in that light that I have found the Nuffield Trust report, Towards Integrated Care in Trafford, which I am sure that many noble Lords have read, so helpful. A number of things of value come out of the report. First, it needs local buy-in, the involvement of clinicians, managers, patients, local authorities and the public. It also needs good data-sharing, good leadership and time. It does not happen overnight. It took them two years, despite having all the enthusiasm and conditions in the area, for it to get off the ground.
Of course, all that needs the will of those who are paying for the services—the commissioners—if they are to pay for integrated care across the divide, which has proved so difficult. All those local changes depend on funding. If we believe that improvements in this area are critical—and I am sure we do—surely it should find a stronger place in the Bill, in particular in the Secretary of State’s annual report. Amendment 244 states that we should insert the words,
“and its integrated working with adult social care services”,
in the report. That seems to me entirely appropriate and I hope that the noble Earl will consider that as a useful amendment to take forward.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 4 months ago)
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Baroness Murphy
We have been urged to hurry up today; we have all heard of speed dating so this is going to be speed debating.
When I first read the amendment of the noble Baroness, Lady Emerton, I did not agree with it on the basis that if you legislate for a minimum number of registered people or nurses, there is a tendency for people to adopt the lower level. I have looked at international evidence and I know that 10 years ago in California they mandated by specific legislation a minimum qualified nurse staffing level in surgical wards in intensive care. It has had a dramatic effect not only on the wards in those hospitals but on other hospitals in California where the standards have risen, mortality rates have fallen. There has been a very large study of 8,000 patients in California, and the other two comparative sites were in Pennsylvania and New Jersey; there is no doubt whatever that there has been a dramatic change and a very positive change, and most hospitals staff above the minimum. Those fears have not been founded.
The Dr Foster document that came out this week clearly showed the relationship that we know about internationally between poor staffing levels on wards for older people and mortality rates and care levels, and its relation to the morale of staff who work on those wards. I am, almost reluctantly, driven to accept the wisdom of the amendment of the noble Baroness, Lady Emerton, which I support.
Lord Walton of Detchant
My Lords, I, too, wish to support the principles underlying the amendment proposed by my noble friend Lady Emerton. However, one concern I have particularly relates to paragraph (4) of Amendment 139. Concerns have been expressed in many quarters over the past two years about the variable quality of the health care assistants employed in many of our hospitals. Some of them are absolutely excellent, but some of them—particularly in certain care homes—have had very little training and there is no process at the moment by which such care assistants can be registered; nor is there any formal requirement of a specific training or educational programme for these individuals. The time is approaching when there must be minimum standards of education and training laid down for such people. I trust that, in relation to what is said in paragraph (4), we can have an assurance from the Minister that this is an issue that the Government will consider.
As the noble Lord, Lord Alderdice, said, the same problems arise in relation to psychologists. Clinical psychologists have a formal training programme but not all psychotherapists, who do not hold a medical qualification—they do not have any such programme, although many of them make an outstanding contribution. The regulation of psychologists has been discussed for several years but little progress has been made. Can the Minister tell us whether that is still under consideration?
My final point relates to the fact that the regulation and registration of many of the other professions working in the NHS, in hospitals and the community—occupational therapists, physiotherapists and others—of course comes under the Health Professions Council. This is a Health and Social Care Bill. Only two years ago, a statutory authority for the registration and regulation of social workers was created, the General Social Care Council, and that body is in existence. I want to ask the Minister: is it proposed, as I believe is the case, that the Government are going to bring that body within the ambit of the Health Professions Council, or are they going to make it subject to the oversight of the council for regulatory excellence? That is a matter upon which the Committee needs to be reassured.
Baroness Jolly
I think that the noble Lord’s point is well made. The noble Baroness, Lady Finlay, however, talked about the element of size and back office, which needs to be quite large. Small CCGs will need to share a back office, simply because that is the way it is. There will need to be shared commissioning arrangements. I think that the noble Earl, Lord Warner, was saying much the same thing: these things will not work if they are tiny but might if they are larger. I remember primary care groups, which became primary care trusts, which became bigger primary care trusts. What is a reasonable size to make all those linkages work? What we do not want is for all of these organisations to spend their days going to meetings. If we are not careful and clinical commissioning groups go over local authority boundaries then they will have to serve more than one health and well-being board.
The ideal would be to have some co-terminosity but clearly it will not work in really enormous situations. My background and experience is in rural areas, where it strikes me as the most obvious way forward. Even if that is not how it starts, that is how it probably should end up. As for the Torbay example, the PCTs are very small. However, they are also perfectly formed and have done a really good job. They are desperate to keep what they did, and did well, but they are being pressured to join a Devon PCT—which also has pressure on Plymouth, which is also part of the Devon PCT. So it is not a straightforward picture. When clinical commissioning groups put their case to the board, there needs to be some sort of nuancing in application.
Baroness Murphy
My Lords, is not the whole point of the formation of clinical commissioning groups that it should be a local solution that fits the configuration of a particular urban or rural area and that it should be decided locally with the Commissioning Board what the best fit is? I take the point made by the noble Lord, Lord Warner, that size is an important issue as to whether one is favouring individual GP commissioning of a personal family health service or whether one is going for the much bigger purchasing of population services. Surely the big difference with this Bill is that PCTs had no real central support for developing commissioning in the way that clinical commissioning groups will have very explicit support from the Commissioning Board. I can see that the noble Lord, Lord Warner, is shaking his head, but I think that makes a huge difference because we have seen the concentration of emphasis by the Department of Health on the acute sector, and to get a way towards having much greater leadership from the centre in developing commissioning seems to me a very positive thing.
The noble Lord, Lord Hunt of Kings Heath, asks why is it only GPs—why do all professionals not get involved? All local primary care clinical professionals should have an input to the groups’ deliberations, but surely the obvious answer is that it is GPs who specifically use resources for their patients from secondary care. They actually determine the costs in secondary care through their use of secondary care hospitals; they intervene to stop secondary care—they have the possibility of doing it through provision of primary care; and they have enormous control over the funding, potentially, of the hospital system. It seems absolutely obvious that it should be GPs. The input of local dental practitioners, opticians and pharmacists is vital but they do not play the same financial role and that is why it seems to me it has to be GPs.
We cannot in this Chamber fix this Bill to lay down rules for the development of clinical commissioning groups. It would be absurd. The Commissioning Board and local people who are going to contribute to it have to make that decision. They have to be the ones to make it work. If they need to come together to commission services for rare conditions, that is fine.
Lord Warner
There are very few things in health policy on which I disagree with the noble Baroness. However, this House needs to look at what the evidence base from GP fundholding and practice-based commissioning shows us. The evidence base shows that GPs did quite well in commissioning some services. However, their actual impact on reshaping services out of acute hospitals was virtually zero. There have been some very good evaluations of GP fundholding and some less good evidence from practice-based commissioning. These showed that GPs got very close to their patients, understood what they wanted and reshaped some services. The transaction costs were seriously high in GP fundholding, which demonstrated that doing good commissioning requires a lot of data collection and analysis, which does not come cheap.
We need to understand the issue of muscle. People like the Nuffield Trust have done some good work on this. At the end of the day, the GP commissioners we have had so far were not strong enough and did not have big enough budgets or the analytical capabilities to call the shots with acute hospitals. That is the bottom line. I strongly support GP commissioning in principle. However, we are in danger of repeating the mistakes of the past and not learning from those experiences.
Baroness Murphy
I do not disagree with the noble Lord, Lord Warner. It is absolutely true that there is a balance and that size is important. Nevertheless, at the moment we are going back to a size that is approximately the same as the old district health authorities that we had between 1983 and 1992. They survived for quite a long time—
Baroness Murphy
I agree; they were too small. However, if you want to get that balance and that advantage of the clinical commissioning, it seems that, with a different sort of central support, it would be possible. With some local responses and reconfiguring of commissioning groups and the old PCTs, it can work. I do not feel quite as depressed about the clinical commissioning groups as other people.
Lord Greaves
I was going to make merely a brief intervention on this group on the question of coterminosity. However, this has extended into a much more important debate, which is coming down to some very fundamental issues in relation to clinical commissioning groups. The noble Lord, Lord Hunt, is to be congratulated on introducing this debate because it is absolutely crucial. We have to have it some time—if we are having it on this amendment, fine.
The noble Lord said in passing that the same issues keep coming round at different stages of the Bill. On this Bill the same issues keep coming round in different sessions in Committee. This is the second time we have talked about coterminosity. I think previously it was on an amendment from his colleague, the noble Baroness, Lady Thornton. I will not repeat everything that I said then, except to say that there has to be some flexibility. There are very good arguments for saying that CCGs should not cross local social care authority boundaries. However, the point I made previously was that in very large counties, like Lancashire or North Yorkshire or, if I think about the south of England—which I force myself to do occasionally—Hampshire and Kent perhaps, at the very least they ought to have the ability to not have a very large CCG forced on them that covers a whole county, which would be very remote indeed.
We have heard about Cornwall and Devon from my noble friend. We have heard about Birmingham. I am going to say a few things about Lancashire. I am very interested to know whether there are any noble Lords in Committee today who are very clear about what is happening in relation to setting up CCGs in their own areas, how it will work and what will come out of it. Asking colleagues on the Liberal Democrat Benches while this debate has been going on, nobody seems to know; chaos and confusion seem to be the impression. I am not saying that it is chaos and confusion, but as far as ordinary members of the public are concerned, let alone other people like myself who try to take a more direct interest, it is not very clear at all what is happening, or if what is happening is clear, it is not clear why and how it is happening. This comes back to the points raised by the noble Lord, Lord Hunt, about the fact that there are very clear pressures from above that are moulding the system that is going to take place. I very much take the point from the noble Baroness, Lady Murphy, that there ought to be local discretion and local decision-making here. However, that is not happening. People are being forced into decisions, and that goes against what she was saying.
Let me tell you about where I live, in east Lancashire. At the moment there are two PCTs. There is a Blackburn with Darwen PCT, because Blackburn with Darwen escaped from Lancashire County Council at some stage in the past and became a small unitary authority, so it has its own PCT. The other five districts, which are part of Lancashire County Council, have an East Lancashire PCT which, as the noble Baroness pointed out, had been formed by amalgamations over the years. There is one East Lancashire Hospitals NHS Trust that effectively covers the two PCTs, so there are two PCTs and one hospital trust at the moment. The PCTs have been combined with the rest of Lancashire into a county-wide cluster, but the East Lancashire PCT still exists.
I have recently been given a whole set of minutes and agenda papers, a great big thick file, from a relatively recent meeting—in the last few weeks—of the East Lancashire PCT. Although they find it increasingly difficult to keep going because all their chief officers have gone, there are still functions taking place at the PCT level; there are functions taking place at the cluster level, and for somebody like me who takes an interest in but is not directly involved in the health service nowadays—I used to be on a district health authority, an area health authority and a community health council, but am not now—I find it very difficult to find out where the decision-making is taking place.
Back when CCGs came along, the original idea was that they would be quite small, as the noble Lord, Lord Mawhinney, quite rightly said. They would be groups of GP practices within a recognisably local area. Whether that was a good or a bad idea—and in many ways it was an attractive idea—that has clearly now gone by the wayside. People were told that the minimum that you could get away with in east Lancashire was district-wide—that is the lower tier—so people were getting together and forming proto-CCGs at the district level.
In terms of population, Rossendale is about 70,000 and Pendle is probably the biggest of the five at about 90,000; it is that sort of range. The doctors who were getting together and working on these CCGs—and certainly in both Burnley and Pendle they were working closely with the district authorities to share back-room services and so on when they were set up—were told that this will not do any more. I am not at all clear who told them, but it has been made absolutely clear that there now has to be a new CCG covering the five districts, an area of 450,000 people. It is a very significantly different proposition, however you define significant, from groups of local practices, where the whole thing started off.
Blackburn and Darwen, because it is a unitary authority, is insisting that as far it is concerned, it will have its own CCG, which will be coterminous with the relatively small unitary authority, which has a population of around 140,000.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 4 months ago)
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Baroness Pitkeathley
My Lords, I agree with my noble friend Lord Harris that this is an extremely important group of amendments. I rise very briefly to support those emphasising the significance of patient involvement and, in particular, Amendment 191 in the names of the noble Lords, Lord Patel and Lord Warner, which changes “promote” to “pay regard to”.
There is no doubt that we have made progress in recent years in addressing patient interest and hearing the voice of patients and carers, and we should acknowledge that. We still have a long way to go, however. When you work with groups of patients and carers, or with individuals, you always get the same reaction. They say something like, “I feel consulted out. I have been to every meeting, I’ve talked to every clinician, I’ve given my opinion endlessly, I sometimes think they add the words ‘patient’ and ‘carer’ to every paragraph of every document that comes out of any commissioner, but what I do not know is what happens as a result of my involvement”. This is what we must bear in mind. Changing the wording in that amendment would strengthen the ability of the patient, the user and the carer to ensure that something happens as a result of their involvement. That is what we must concentrate on. We should never forget that the involvement of patients is not a tick-box exercise; it is there to ensure we shape services around the needs of patients, not the convenience of commissioners.
Baroness Murphy
My Lords, I rise to add a number of comments to one or two of these amendments. I have my name on Amendment 196, also in the name of the noble Lord, Lord Patel, which is about making choices real for patients. My experience is exactly the same as his—that patients have actually benefited very little from the wide range of choices they could have if they understood the information about accessibility, about the sort of provider, about the range of other services that that provider might have and about the performance of that provider. If you are skilled you can use information available on the internet now to find details on the various providers you have been offered under the “Choose and Book” system used by general practitioners. However, the vast majority of patients simply do not have the skill to negotiate the choices. Making that choice a reality is therefore vital.
I also support the amendments proposing that patients, wherever possible, should carry their own records. To cheer up my noble friend Lord Patel, I say that he will be reassured to know that most maternity units now do have the patient carrying their own records, and that has proved to be of great benefit because they hang on to them when the NHS loses them. It has worked very well in maternity services and I certainly support it. There should be more of that in mental health services, where there has been too much holding on to information—not always accurate information—in patients’ records. It would be much better if the patient held on to those data and was able to carry a great deal of the data with them. Of course, it would be much better if people had access to information on simple records but they do not because we do not have electronic patient records in every place. The more information the patient can carry with them, the better it is for those who are going to encounter them in the future; it is also better for the patient to have accurate data about their condition.
I come now to the question of whom the clinical commissioning groups should consult in the way of secondary providers when commissioning care. I do not support the amendment of the noble Baroness, Lady Finlay, which suggests that the specialist on the clinical commissioning group should be local rather than a person from another area. No doubt when you have too much conflict of interest, specialists on a clinical commissioning board, and a PCT which engages with the local providers and takes account of their desires, local institutions become favoured. We have seen that many times. It is simply the institution the provider belongs to. That is when you are making a decision, so it is very important that the decisions should be made by somebody who can input and hold in their heads all the necessary secondary specialist information. The decision should nevertheless not be made by a local person with an interest in secondary care.
However, when it comes to gathering local information, local institutions and specialists in those institutions should be consulted about what is possible in the area, what has been done before and what could be thought about in the future. That is where primary care trusts in some parts of the country so often, unfortunately, have not appreciated what they could benefit from locally in terms of academic health partnerships and how they could use their academic health science groups to assist them with the commissioning function. They need to take account of what is available locally, and need to understand and get help and consult with local academic institutions and providers, but when the decision is made it should be made by individuals who do not have a conflict of interest locally.
Lord Marks of Henley-on-Thames
My Lords, I shall speak briefly to Amendments 193 and 197, amendments to proposed new Sections 14T, on promotion of involvement of each patient, and 14U on the duty as to patient choice.
The Bill and our debates on it have been characterised by a recognition of the importance of patient involvement and patient choice, and a great deal has been said about those two things in this debate. It is important that we recognise and welcome the new Sections 14T and 14U to the NHS Act, which will enshrine those in statute, but it is also important to note that this is not an entirely new idea. In many areas of medical care, patient choice has been with us for some time. Patients currently have a choice of GP practice; they have a choice of hospital; they have a choice of the GP whom they wish to see within a practice; and they have a right to be informed.
However, there is in practice all too often a gap between the theory and reality. The reality is that although people may theoretically have the choice, they do not know that they have the choice. They do not know despite the excellent section on choice on the NHS website and the literature that is put out about choice at the national level. The amendments are designed to impose on clinical commissioning groups at the local level the duty to take steps to inform patients about their right to be involved and their right to make choices. They state, in certain terms, that each group,
“must take steps to inform patients, their carers and their representatives of the right to be involved in such decisions”,
and, in the other cases,
“to make such choices”.
They are simple amendments, and it may be a matter of regret that they are necessary, but simply having the right in the statute book will not do unless we can also ensure that patients are informed of those rights.
Health and Social Care Bill
Baroness Murphy Excerpts(14 years, 4 months ago)
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Baroness Murphy
My Lords, I have added my name to the amendments, many of which are from the noble Lord, Lord Patel, because I, too, am worried that the Secretary of State may feel obliged to include in the mandate every last possible objective and priority that the department can think of. Let us remember that it will probably be the department’s civil servants that write the mandate.
For decades, the NHS has prescribed objective-setting as a sort of all-purpose remedy for NHS motivation. Rather than dispensing objectives as a benign, over-the-counter treatment for the NHS Commissioning Board, the Secretary of State needs to conceptualise his objectives in the mandate as prescription-strength medication that requires careful dosing, consideration of harmful side-effects and close supervision.
Given the impact that objective-setting has on activity in management, I should like to ask for a more self-critical and self-denying approach to the creation of the mandate than has hitherto been the case in NHS priority-setting—hence the rather arbitrary notion that we might have five “musts” and five “maybes”. I would like the Secretary of State to restrict his mandate to one side of A4, but I can see a departmental machine creating a mandate which reflects all the recent ministerial enthusiasms—for example, a waiting list here and a choice or two there—and which during its creation becomes a sizeable novel of the unattainable but desirable, or, alternatively, the attainable but unimportant, which were the characteristics of NHS priority lists in the past.
The mandate should answer the question: where do we want the NHS to go in the next five years, and specifically in the next year, and what resources are we going to dedicate to get there? We should then translate that into something specific that is measurable, achievable and realistic, with time for things that one wants to see for all objectives. If one has more than just a handful of objectives, I suspect that only two or three will ever get done. I therefore wonder how we can be reassured that the Secretary of State will produce a working document of realistic goals.
Lord Hunt of Kings Heath
My Lords, this is one of the most important groups of amendments that we are going to discuss, because, in a sense, it sets the whole relationship between the Secretary of State and the NHS Commissioning Board.
I have considerable sympathy with my noble friend Lord Warner’s Amendment 96, which seeks to avoid the Secretary of State essentially putting in a huge shopping list of demands by limiting the mandate to a maximum of five obligatory and five desirable functions.
I come back to the recent interventions by the Government in the affairs of the National Health Service. The most recent have been around waiting times, both in terms of what happens to patients who have passed the 18-week target and of the activities of some primary care trusts, which, in order to contain their expenditure, have set arbitrary waits for patients even though they are ultimately treated within the 18-week limit. I have said to the Minister that I have no complaint about the intervention of Secretary of State, which I thought was quite proper, but it is very difficult to see how this will happen under the new system. We have yet to receive a satisfactory answer to it. What in the new system will suddenly obviate the need for the Secretary of State to make such interventions?
The question then comes to the mandate. Is it, as my noble friend Lord Warner hopes, a high-level document which will focus on a very limited number of objectives, or will it be a shopping list? The noble Baroness, Lady Murphy, expressed it very well as in a sense legitimising “recent ministerial enthusiasms”. We were rather given the lie to this when we debated this matter last week, because the Minister suggested that if there was an issue such as primary care trusts lengthening waiting in order to meet the budget, the mandate could be used to prevent it. Indeed, that is the risk—that the Secretary of State will, quite properly, come under pressure to intervene in the health service. The Bill weakens the legal powers of the Secretary of State to do so. The risk is clearly that the mandate will be used instead, and it would be used retrospectively if it does not satisfy the intervention power. I believe that there is great reservation among noble Lords as to whether the intervention power is sufficient, because there has basically to be a failure by the NHS Commissioning Board to carry out the objective. If it is not sufficient for an intervention to take place during the year, my goodness me the shopping list will grow when the new mandate is written. So, there are some very important issues on which we have yet to receive any answer from the Minister.
There are, however, a number of other important amendments in this group. Perhaps I may ask the Minister to clarify three points. The first point is how long the mandate will last. My assumption, from what Ministers have said and what is in the Bill, is that it will last for a year. The Minister will be aware that the chairman of the NHS Commissioning Board expressed a wish to the Health Select Committee, which was vetting his appointment, that the mandate should last for three years. I wonder if the Minister could clear up that matter for your Lordships.
Will the Minister also clarify the intention behind the provision in proposed new Section 223D(7)(b), on page 27, which allows changes to total capital and revenue resource use after parliamentary general election takes place? I take it that this is simply to allow for a change of Government but I would be grateful if he could spell that out.
However, my substantive amendment, Amendment 100A, is concerned with parliamentary scrutiny. In Clause 20, proposed new Section 13A states:
“Before the start of each financial year, the Secretary of State must publish and lay before Parliament a document to be known as ‘the mandate’”.
Surely Parliament is entitled to a little more involvement than merely receiving the mandate as a fait accompli. My noble friend Lord Warner has already pushed the Government in their amendment to give Parliament information about any reservations the board may have expressed about meeting the mandate. I would certainly support that in the interests of transparency. There is also, in Amendment 100, reference to the requirement on the Secretary of State to consult the board, HealthWatch England and other persons, with the results of any consultation on the mandate to be published. That too seems reasonable.
However, I wonder if we ought not to go further in terms of parliamentary scrutiny. If we take Ministers at face value—and the Secretary of State has expressed a wish to step back from day-to-day involvement in the National Health Service—it is clear that the mandate assumes special importance. Why is Parliament not being given a proper opportunity to scrutinise the mandate before the Secretary of State finally sets it for the NHS Commissioning Board? If the Secretary of State is really going to tell Members of Parliament in particular that he is not going to intervene in a particular question because he considers that now to be the responsibility of the NHS Commissioning Board, in accordance with the mandate that the Secretary of State has set, then I think that Parliament should be entitled to some involvement in scrutiny of that mandate. My Amendment 100A suggests how that might be done. It is built on the system of scrutiny for national policy statements.
The House will be aware that the Planning Act 2008 introduced a new planning system for applications to build nationally significant infrastructure projects. They cover applications for major energy generation, railways, ports, roads, airports, water and hazardous waste infrastructure. Under this system, national policy on national infrastructure is set out in a series of national policy statements. Under Section 92 of the Planning Act 2008, each proposal for a national policy statement must be laid before Parliament. In so doing, the Secretary of State specifies a relevant period for parliamentary scrutiny.
If during that scrutiny period either House passes a resolution with regard to the proposal, or if a committee of either House makes recommendations regarding the proposal, the Secretary of State must lay before Parliament a Statement setting out his response to the resolution or recommendations. Following completion of parliamentary scrutiny, the Secretary of State may formally designate the proposal as a national policy statement. The final national policy statement is also laid before Parliament.
In the House of Lords, national policy statements are normally debated in Grand Committee, but that does not restrict the freedom of committees of the House or individual Members to make use of the statutory procedures. In the event of a Motion for resolution being tabled, the usual channels have undertaken to provide time for a debate in the Chamber within the scrutiny period.
When I was energy Minister, I had to bring through four energy policy statements. We had three four-hour debates in Grand Committee. They were very thorough. The Government took note of what took place in those debates. In the end, it is up to the Government to make the statement because it is a matter for the Executive. I do not challenge that the mandate, which I regard as important as a national policy statement, is ultimately for Ministers to make. It is rightfully an Executive responsibility. However, the process that I am suggesting in my Amendment 100A would allow Parliament to have much more involvement in the scrutiny. It would allow Ministers to take account of that and then make their minds up in relation to the mandate.
If the Government are determined to hand over such responsibility to a quango—and I remind the House that in this Bill the National Health Service Commissioning Board is given concurrent powers with the Secretary of State in relation to the crucial responsibility in Clause 1—there has to be a great parliamentary scrutiny of that mandate.
Baroness Murphy
My Lords, I recognise the problem that has been described so ably by the noble Lord, Lord Warner, but I wonder whether he is not being a little pessimistic about the possibilities of the architecture providing the right framework to do what he wants to do. If we look at the role of the economic regulator, it must, as it has under the more restricted role of Monitor, include a very serious analysis of how financial management is happening in provider trusts, or foundation trusts, and has led to the growth of the service level management system, which for the first time has given people an idea about which services are making money, which are losing money, which are loss leaders and so on.
These are terrible terms when one is talking about human services and I do not like them. Nevertheless they are business terms and we understand what they mean in this context. They have also led to a much more fundamental understanding of the capital assets of each foundation trust. It has led to better use of capital assets at the moment, but that is largely because at a time of massive growth people do not look to make best use of their capital assets. At a time when money is shrinking or staying the same, as it will be over possibly the next 10 years or more, people will be looking to use their capital assets more effectively.
We must look to the economic regulator to encourage the sort of use of assets that we have so often wanted to encourage in the younger Monitor—to use those assets more effectively and to ensure that we can look across the totality of both community and acute hospital providers at how entrants into the system are using their assets. That would be possible under the new Monitor. I am not sure that we should set up another body to do that although I can see it might have a short term job to make sure that everybody is using the same monitoring mechanisms and is putting in the same sort of systems of financial accounting. With the new architecture we should be able to do that through Monitor.
Lord Warner
My Lords, I should like to respond briefly to the noble Baroness. There is nothing in the amendment that would stop this information being given to Monitor. If people want to amend the amendment in terms of Monitor as the customer for it, I do not feel strongly about that. I have put it under the national Commissioning Board because one of the things it will be doing is, I suspect, giving guidance to clinical commissioning groups on the nature of contracts. One of the requirements that can be used to drive change in this area is contractual requirements on people in terms of the standardisation of accounts. I saw the national Commissioning Board as likely to be able to deliver through this independent panel—which can be as short lived as one wants—the kind of changes that we need.
I want to emphasise to the House that the financial situation in the NHS is serious and will get really serious over the next few years. We need to improve very rapidly the quality of the financial management accounting systems in the NHS. That is a separate issue from the assets and procurement issue, to which the noble Lord, Lord Owen, has very ably drawn attention, because it is another long-standing problem. The standardisation of management accounts is an urgent issue for the NHS in the brave new world that it is going into, particularly with the large increase in the number of new organisations that are going to start for the first time to handle big sums of money without much clarity about how they are supposed to account for it.
Baroness Finlay of Llandaff
My Lords, I have several amendments in this group. Amendment 203A has been spoken to fully by noble friend Lady Hollins, who has supported other amendments in this group. Amendment 135C would require a biannual report by the board to the Secretary of State on what has been done to promote integration. The other amendments are all designed to promote collaboration, decrease duplication and bring together primary and secondary care and public health and the diagnostic services to have better diagnosis and management of disease.
Integrated working allows patients and their carers to benefit from good primary care provided by GPs and others in the team, to have help and support provided by those working in social care, and to access early referral, appropriate investigation and treatment as required from specialist services. Good integrated care needs to see the patients and their experience in the context of their lives, social support, relationships, cultural experience, gender and a range of other factors. Bringing together an integrated social and clinical approach should include holistic plans for diagnosis, treatment, rehabilitation, support and long-term follow-up.
In their report Teams without Walls, the Royal College of Physicians, the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health highlighted the recommended use of patient pathways as the building blocks for services, with the right balance between prevention, early identification, assessment, intervention and, where necessary, long-term support. They also pointed out that this had implications for commissioners, providers and regulators of services. Multi-professional working with the patient at the centre of everything provides the opportunity for a wide range of professionals, including those outside an organisation, to monitor care delivery and challenge standards. This will help prevent trusts and professionals from becoming insular. Insular practices can result in negative cultures developing and poor standards becoming tolerated.
The clinical commissioning groups have quite a challenge facing them if they are really to commission and develop integrated as opposed to fragmented care. Much has been said on this already, and I will not repeat the points made by previous speakers. However, patient needs will be better met if we move to a tariff structure that better reflects clinical complexity. The Government’s response to the Future Forum report seems to recognise this, but the current tariff structure overcompensates for simpler conditions and consistently under-compensates for more complex and unpredictable areas of care. To encourage integrated working, consideration needs to be given to a system in which payments are received over a longer term and for the achievement of integration and good clinical outcomes. To do that, it will be crucial for Monitor and the Commissioning Board working closely with royal medical colleges and specialist societies to develop a tariff that will provide integrated care.
Baroness Murphy
My Lords, much has been said on this group of amendments and I will not delay the Committee too much. I have a great deal of sympathy with the plea of the noble Baroness, Lady Thornton, that we should know what integrated care is. We have had several descriptions around the House. We have within the Bill a duty to promote integrated care, so it is important that we have read into the account the Government’s thinking on what “integrated care” means. I think that I echo the noble Lord, Lord Ribeiro, in saying that.
I am surprised that my noble friend Lord Walton, who is not in his place at the moment, did not mention Mrs Smith of 66 Acacia Avenue, or we might have said Mr Chowdry of 66 Mafeking Avenue. What does sitting at home feel like to those patients who are in receipt of community care? How does it work out for them? Integration of primary and secondary care with social care provision is what it really should be about. I look to the Government to reassure me that that is what we are talking about.
We have to be aware that some barriers in the NHS will require this financial manipulation. On the one hand, there is a profound mistrust by acute providers of the competence of community-based and primary care workers. Sometimes that has been justifiable in the light of the historical deskilling of clinical care that occurs in primary care settings. On the other hand, there is an attitude bordering on paranoia from community and primary services staff about the predatory nature of what Enoch Powell referred to as the “voracious” acute hospital sector, which is entirely justified by their experience of being sucked in to the acute hospital, and especially true since payment by results came in, which has had a really negative effect on this problem. Then there is the wild card of GPs who can suddenly bring to a halt community-based care out of hours, if they feel like it, without any impact on their budget at all. Noble Lords who, like me, have spent a great deal of time putting in packages of care will understand how frustrating it can be when it suddenly comes to a halt and nobody has budgetary responsibility for it.
Baroness Williams of Crosby
I listened very carefully to what the noble Baroness, Lady Murphy, said, and I broadly agree with it, with one slight exception. She said that she did not think that there were many examples around the world of particularly good integrated practice and then she mentioned that there had been considerably activity of this kind in some mental health trusts in the UK. I want to throw a slightly more cheerful note into what has been a slightly gloomy debate. As it happens, this morning, a Canadian doctor friend of mine brought to me the latest report of the Commonwealth of Massachusetts study on relationships between doctors and patients. It is a comparative study of 11 medical systems throughout the world. I shall not keep the Committee for long, but I will read a couple of the findings that date from November 2011. It was a major study of thousands of patients—more than 1,000 in Britain, a couple of thousand in the United States and so on—at the time that the report was put together at the end of 2009. I shall be very quick, but I think it is quite remarkable. In patient engagement in care management for chronic conditions, which is something we have been talking about a great deal when talking about integration, the country that comes out the best of the 11 is the United Kingdom. In shared decision-making with specialists, the first is Switzerland, the second—
Baroness Murphy
I am very well aware of the wonderfully heartening Commonwealth of Massachusetts report, but the point I was trying to make is that we are marvellous at health and social care integration in this country compared with many others. Having spent my life doing it, I am quite proud that we can say that we do it better than most. But my point is that if you want cost-effective purchasing of care systems that promote it, we cannot point to anywhere in the world where there are very good, efficient systems. Kaiser Permanente is a very restricted system for its employed clients in California. We do not have the systems that financially promote a drive towards those systems. It is not that we do not do it, but that we do it in spite of, not because of. However, the report is most heartening.
Baroness Williams of Crosby
I would not disagree with the noble Baroness on that issue. I agree with her, but I am trying to make a different point, which is that I think we have been left with, by sheer good fortune, if you like, a much better starting point for serious integration than many other health systems. It relates also to Amendment 203A, which was tabled by the noble Baronesses, Lady Hollins and Lady Finlay, about the role of competition, about which I am rather less confident than some others.
I shall mention two other findings from the report because it is a remarkable and impressive story. On the doctor/patient relationship, there was a question about how far patients felt that they had close relations with their doctors and the ability to speak to them and to discuss their cases with them. Once again, quite remarkably, the United Kingdom comes out second to Switzerland in the 11. To take a final and very surprising finding in this study, on medical, medication or lab test errors in the past two years, the figure for the United States was 22 per cent, for the Netherlands it was 20 per cent and for the United Kingdom it was 8 per cent. It is extraordinary that we so rarely blow our own trumpet in this country, and very occasionally, we should.