Health and Social Care Bill

Baroness Northover Excerpts

Tuesday 13th December 2011 Lords Chamber

[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.

[Baroness Northover]

The noble Baroness might be aware that Amendment 267C has leapfrogged from the group with Amendment 264 to the group after this. She may wish to address that amendment when we come to that group.

[Baroness Finlay of Llandaff]

I thank the noble Baroness. I am most grateful. That message had not reached me, although I may be a little deaf. I shall simply confine my remarks to the amendment in this group about Monitor reporting annually to the Secretary of State on how it discharges its duty to promote integration. I do not think that the comments that I made previously are annulled. They are relevant because, unless we have integrated services—however much they may be seen to be in competition with each other over different aspects—and attempt to have a seamless provision of care, at the end of the day it will be the patients who fall through the gaps.

Earlier today, we heard a lot about Monitor being light touch, not having a series of minimum criteria and being able to use its discretion in how it grants licences of all sorts. But I have a concern that there has to be a means by which the way in which Monitor functions is transparent and available to public scrutiny. That is why I have suggested that an annual report to the Secretary of State would allow such scrutiny to occur, particularly as regards promoting integration.

--- Later in debate ---

[Lord Beecham]

My Lords, I am happy to endorse all the amendments in this group, with the exception of Amendment 270. I particularly endorse Amendment 274ZZB tabled by my noble friend Lord Warner. He is 100 per cent right in this context. I have to say in confidence to the Committee that I do not always entirely agree with my noble friend, but he is exactly on the right lines today. The situation to which he referred clearly causes great concern. We heard from the noble Lord, Lord Nickson, that fortunately matters turned out reasonably well in his case and that of his wife, but who is to say that that would always be the case? I hope that the Minister will feel able to take on board the suggestion made by my noble friend Lord Warner. As he said, it is a probing amendment but it is one that I hope will lead to an outcome that will guarantee that problems of the kind generated and disclosed in the Southern Cross affair will not arise again so that those in residential care and their carers and families will have greater confidence in the system—a confidence that must have been shaken by events in recent months.

[Baroness Northover]

My Lords, this is the group of amendments that we almost came to earlier this afternoon. I hope that noble Lords who thought that their issues would be in that last group have now gathered them together, as they are back in this group. The amendments cover a number of issues, including patient and public involvement in Monitor’s work and the advice that it should take. The Government are clear that Monitor should involve patients and the public in its decisions and get appropriate clinical advice to enable it to carry out its functions. That is why in another place we introduced Clause 59(7), which creates a duty on patient and public involvement, and Clause 59(8), which creates a duty to obtain clinical advice. For Monitor to carry out effective patient involvement, it will almost certainly need help from people or organisations with expertise. Here I address in particular Amendment 267A, and Amendment 267B in the name of my noble friend Lord Clement-Jones and others.

However, setting this out in the Bill could constrain Monitor’s flexibility to decide how and when it sought such help. We do not want to create bureaucratic and potentially costly arrangements that would require Monitor to take such advice even when it was unnecessary. I hope that, over time, Monitor will develop expertise in how best to involve patients and the public in its decisions, reducing its dependence on professional advice in this area.

--- Later in debate ---

[Lord Warner]

Perhaps I could ask the noble Baroness to go a little further. Does she envisage that after this consultation, the Government are going to require primary legislation to take effective action in this area, or are the Government confident that there are sufficient powers to enable them to deal with that, either by guidance or secondary legislation?

[Baroness Northover]

Perhaps the noble Lord is seeking for me to pre-empt what will emerge from the discussion document that I mentioned. It is extremely important that this is considered fully and carefully. Therefore, it would be inappropriate for me to pre-empt the conclusions of that—tempting though it might be.

[Lord Warner]

Perhaps I could pursue this a little further. Is the Minister saying that the current legislation is insufficient and therefore the Government are consulting on what strengthening might be needed? Surely it is possible that this great and glorious machine, the Department of Health and its lawyers, can tell Ministers whether the current legislation is adequate to deal with this issue.

[Baroness Northover]

The noble Lord himself mentioned that things did not work out quite as badly as one might have expected. I know that my honourable friend Paul Burstow was working night and day to make sure that that was the case. However, I will resist the noble Lord’s invitation to pre-empt the conclusions of those who are far more expert than I am on this matter.

[Lord Warner]

I asked a very straightforward question. I am quite happy to pursue this through a Written Question. I just want to know whether the Government consider that the current primary legislation is adequate to deal with this particular issue. That seems to me a yes or no answer, but if the noble Baroness would prefer me to put down a Written Question, I am quite happy to do so.

[Baroness Northover]

I seem to have been inspired. We do not need primary legislation, it seems, we need regulations subject to the affirmative procedure. However, we are consulting on the best approach to using these. I am sure that that informs the noble Lord far better than my earlier answer, but I return to the point that it is extremely important that we get this right, because we certainly do not want to find ourselves in a situation where things are not as well protected as they were in this last instance.

I will now briefly address government Amendment 270A, which is a minor and technical amendment that makes clear that Monitor is concerned with services provided for the purposes of the NHS. On that basis, I hope that noble Lords will be happy to support it and content to withdraw their own amendments.

[Lord Clement-Jones]

My Lords, this is a slightly disparate group of amendments so I will certainly not try to respond on any other amendments apart from my own.

I am grateful to my noble friend the Minister for signposting where patient and public involvement come in, in Clause 59(7) and Clause 178, and her explanation that my amendment would “constrain Monitor’s flexibility”. I am always interested in the kinds of response that the department is able to come up with in these circumstances. After all, HealthWatch and the local healthwatch organisations are the creatures of this Bill and of the department, so it seems somewhat extraordinary that these are not specifically mentioned in Clause 59(7). I understand that in broad terms Monitor has the duty to,

“secure that people who use healthcare services, and other members of the public, are involved to an appropriate degree”—

that is a useful word as well—

“in decisions that Monitor makes about the exercise of its functions”.

However, of course, “appropriate” is determined by Monitor. It is not an objective test in those circumstances.

[Baroness Northover]

I am sorry to interrupt my noble friend, but perhaps I did not make it clear enough that Clause 178 of the Bill allows HealthWatch England to give Monitor advice and provides that Monitor must respond to that.