Care Bill [Lords]

Jim Dowd Excerpts

Tuesday 11th March 2014 Commons Chamber

[Dr Poulter]

rose—

[Jim Dowd (Lewisham West and Penge) (Lab)]

rose—

[Andy Burnham]

I give way to my hon. Friend.

[Jim Dowd]

My right hon. Friend says that clause 119 is the result of defeat in the courts. That is true. However, the Government capitulated before the decision of the appeal court was known, just after the decision of the High Court in July. My contention—if I am able to catch your eye later, Madam Deputy Speaker, I would be happy to elaborate further—is that the Government knew from the outset that they had no legal power to do it and were just, in the way of all bullies, trying it on until somebody stopped them.

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[Sir Tony Baldry]

I do find that reassuring, but I have a final question that I hope my hon. Friend will address when he winds up the debate. There has to be a trigger, but what will the trigger be for these extreme circumstances? In other words, what distinguishes a proposal for hospital reconfiguration, in which local people can go to the health overview and scrutiny committee and the Independent Reconfiguration Panel, from a crisis situation, such as occurred in Mid Staffordshire and may have occurred in Lewisham? We all have local hospitals and we all need to be able to explain to our constituents how we might find ourselves in the circumstances of these short-cut situations. We really need Ministers to make it clear to the House that these powers will be used in extremis, and I hope that my hon. Friend will address that point when he winds up.

[Jim Dowd]

I agree strongly with the sentiment expressed by the hon. Member for Stafford (Jeremy Lefroy) that no community should be subjected to the tender mercies of the trust special administrator regime. It is brutal, harsh, unfair, unreasonable and impervious to local knowledge or opinion.

Following the way in which most reports are presented, I shall start with my executive summary—my understanding of what happened in the South London Healthcare NHS Trust. The right hon. Member for Banbury (Sir Tony Baldry) was wrong. The special administrator was not appointed to Lewisham hospital. That is the very heart of the matter. He was appointed to the South London Healthcare NHS Trust, which is the adjoining trust, then comprising the Queen Elizabeth hospital in Woolwich, the Princess Royal university hospital in Orpington and Queen Mary’s hospital in Sidcup. He then decided to take a well-functioning, well-respected, well-performing and financially sound institution, in the shape of Lewisham hospital, and use it to deal with problems elsewhere.

In an Adjournment debate 18 months ago when the issue first occurred, I used the simile that it was like the administrator for Comet advising that the best thing to do, in the interests of Comet, was to close down Currys. That is exactly what the trust special administrator did.

[David T. C. Davies (Monmouth) (Con)]

If the hon. Gentleman believes that it is important that local people are listened to, would he care to comment on the decision by Labour’s Health Minister in Wales, Mark Drakeford, to shut down or downgrade Withybush hospital in west Wales?

[Jim Dowd]

The short answer is no, I do not wish to comment.

Lewisham was stitched up from day one. In 40 years as a public representative I have rarely come across anything so disreputable, so devious, so mendacious, so dishonest and so duplicitous as the process that was employed regarding south London health care. It started on 13 January 2012 when the then Secretary of State, the right hon. Member for South Cambridgeshire (Mr Lansley), now Leader of the House, laid an order before the House entitled the South London Healthcare National Health Service Trust (Appointment of Trust Special Administrator) Order 2012, alongside an explanatory memorandum that included the case for applying the regime for unsustainable NHS providers—the first time it had been done. There was also an additional order that extended the consultation period for the trust special administrator. As I say, it was called the South London Healthcare National Health Service Trust. When the administrator got on with his work and produced a report, it was entitled, “The Trust Special Administrator’s Report on South London Healthcare NHS trust and the NHS in South East London”. Parliament did not authorise an inquiry into the NHS in south-east London, but, by that cover, they attempted to shut down a perfectly well-functioning district general hospital in Lewisham because it was administratively more convenient.

On 16 July, Mr Matthew Kershaw was appointed as the trust administrator. I had numerous dealings with Mr Kershaw. Personally, I found him to be a perfectly reasonably, sane and sensible person, but he was commissioned by the Department to do a job. His priority, quite plainly and self-evidently, was not to decide what was in the best interests of the people of south-east London, but to do the bidding of Richmond House.

[Richard Drax (South Dorset) (Con)]

May I just clarify my concern that administrators can reach out, far beyond where we initially thought they could, into such areas as community hospitals, of which there are several in my constituency? The NHS is in such a financial mess, and getting worse, that these powers will inevitably provide a temptation to interfere more, and the Secretary of State will be able to close hospitals against the will of local people.

[Jim Dowd]

I accept absolutely the hon. Gentleman’s point. The wording of the clause is such that the powers are virtually unfettered—they are untrammelled. It does not say that an administrator can make recommendations about neighbouring trusts or nearby trusts; it says that they can make a recommendation about any trust anywhere in the entire health economy. It will be a threat to every single Members’ community willy-nilly, because it will be the new norm.

I will come on to what Lewisham experienced previously, but there used to be clinically led reconfiguration panels. This Government seem to have eschewed them. They are difficult and complicated, but they need to be so because this is a premier public service that matters so much to people in every part of this country. They are eschewing that in favour of an administrative route that will give them untrammelled powers.

[Bob Stewart (Beckenham) (Con)]

rose—

[Jim Dowd]

I give way to the gallant hon. Gentleman.

[Bob Stewart]

I thank the equally gallant hon. Gentleman and a neighbouring Member of Parliament. I, too, have never understood why Lewisham hospital had to be involved in this exercise, and I still fail to see why it has to suffer as a consequence of the failure of other hospitals that, although they are outside my constituency, affect my constituents deeply.

[Jim Dowd]

The hon. Gentleman is right. We have discussed the impact of this on our constituents many times.

I will try to shed some light on why Lewisham was put in the firing line, and why such administrative vehicles are so dangerous and antithetical to good health care. On 24 July 2012, the then Secretary of State invited the Members for Bexley, Bromley and Greenwich to a meeting in his office. That is entirely logical, because South London Healthcare Trust covers Bexley, Bromley and Greenwich. Strangely, he also invited the Members for Lewisham. My right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock) was unfortunately unable to attend, but my hon. Friend the Member for Lewisham East (Heidi Alexander) and I did attend.

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[Dame Joan Ruddock]

I want to ensure that my hon. Friend does not end this part of his speech without reminding the House that one of the things that those involved in the TSA process intended to do was sell off half the land occupied by the buildings of Lewisham hospital—and that was not in the public consultation document.

[Jim Dowd]

It is with some trepidation that I must disagree with my right hon. Friend. In fact, the figure was closer to two thirds of the estate. The scheme was so well engineered that they left the bit that we were keeping, allegedly, for whatever was going to be there—a glorified first aid post—completely landlocked. There was no access apart from via the River Ravensbourne, which is not the mode of transport favoured by most people using Lewisham hospital. Oh yes, it was all worked out well beforehand.

The public meetings following the publication of the draft report were, of course, rather more difficult to control. People were able to ask questions, although they did not receive many answers. Those who were presenting the case on behalf of the trust special administrator did not seem particularly receptive to what was being said, although on occasion, when they came up against a difficult objection, they would say “South London Healthcare NHS Trust is losing £1 million a week: £1 million that is not being spent on health care for patients.” We know that—it is self-evident—but when they were told “That is not the problem of Lewisham hospital”, and asked “Can you not understand that?” , the answer was no, they could not understand it.

That was followed by a little homily of the kind much beloved of some people: “If your domestic budget was being overspent week after week, you would need to take action, would you not?” Naturally everyone agreed, but a woman who attended the public meeting at Sydenham school said to Mr Kershaw, “If your domestic budget was being overspent, of course you would have to do something about it, but that would not include breaking into the house of the people next door and nicking all their stuff”—which is what was being proposed in south London by the special administrator.

After attending numerous meetings with Mr Kershaw and his associates, and at the other south London hospitals, I eventually concluded that—recognising that those who would be worst affected by their proposals were hardly likely to be very receptive to them—they automatically assumed that there would be opposition and hostility, and automatically factored in and discounted it, saying “Of course they are going to object to the changes, but we have a task and a mission to pursue.” The whole process was condescending, impenetrable and antagonistic. The special administrator and his acolytes and accomplices had a mission, given to them before they ever left Richmond House, which they were determined to deliver. They already knew the answer, and they were not going to bother to do anything other than go through the motions.

We owe thanks to Lewisham council, to the Save Lewisham Hospital campaign and, amazingly enough, to the High Court and the Appeal Court, whose three judges—Lords Justices Dyson, Underhill and Sullivan—within 24 hours unanimously overturned the Secretary of State’s case that he had the powers to do this. As I have said, the Secretary of State had already capitulated by then. The Government knew from the outset that this was legally questionable. They knew they did not have the powers to behave in the way they were behaving, but they basically just said, “Who’s going to stop us?” I will tell you who stopped them: the people of Lewisham and their supporters and the High Court. That is who stopped them.

This clause will make occurrences like that more, not less, likely. More communities across the country are going to be threatened and will come under the tender mercies of the TSA process.

[Andy Burnham]

My hon. Friend is absolutely right. More communities could face this threat, but is not the point that those communities would not have the ability to fight it in the way that Lewisham was able to fight and defeat it?

[Jim Dowd]

My right hon. Friend is right; that is precisely the point and that is precisely what this Government intend. I have absolutely no doubt about that; their writ will run whether people want it or not.

After all that, what is the current position of South London Healthcare NHS Trust—after that £5 million? Princess Royal in Orpington is now an adjunct of King’s College hospital. The TSA was quite happy to say the whole thing should be passed lock, stock and barrel to King’s. There was a rather unseemly squabble about the size of the bung King’s should get for taking on Princess Royal, but there was no specification about the services that should be provided there or anywhere else; that was entirely up to King’s. Queen Mary’s, which of course is not a fully functioning district general hospital, is now being managed by Oxleas NHS Foundation Trust, the primary care trust in that part of the world. Again, the TSA made no recommendations about what services, or what range of services, should be provided there.

Queen Elizabeth, which, of course, is the biggest problem in what was South London Healthcare NHS Trust, has now merged with Lewisham university hospital in the Lewisham and Greenwich NHS Trust. It is now managing a very difficult proposition; I do not dispute that for a moment. I have my doubts about whether that is the best move for the people of Lewisham, but I understand why it has been done. Yet, the board at university hospital Lewisham was prepared to enter into that agreement before the TSA even set foot in the area. So what we have now in south-east London was entirely possible by rational argument and reasoned consent without the need for the TSA and all the disruption, anguish and distress he and his acolytes have caused. I say to Members voting on this tonight, “Remember; you may not want to visit a TSA and I don’t blame you, but that won’t prevent them from visiting you if this clause goes through.”

[Paul Burstow]

I start by acknowledging the receipt of a petition handed to me yesterday, containing 159,000 signatures collected by members of 38 Degrees, expressing their concerns about the matter we are debating today. I know that a great many Members will have received e-mails about that and will have their own opinions, and I want to discuss the issues.

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[Jim Dowd]

Will the right hon. Gentleman give way?

[Mr Burns]

No. I am about to conclude as I know the winding-up speeches have to begin.

In conclusion, this is an important power, and it is there to be used in very exceptional circumstances. It is factually incorrect and it will scare people to accuse any Government of using the power to reconfigure services. It will not be used for that. Reconfiguration will go through the correct processes and be based locally, with the local health economy and local people and with the input of organisations such as the health and wellbeing board. It would be foolish, as I think the previous Government agreed, not to have an emergency fall-back position to secure that. That is why we had the original power under Labour’s legislation, and my right hon. Friend the Secretary of State is continuing that power and fine-tuning it.

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[Dr Poulter]

My hon. Friend makes a good point, which has been made by Government Members throughout this debate. Under the previous Government, in particular, many people felt that things were done to them with their local NHS, rather than done in the best interests of local patients. Importantly, decisions were very rarely made with clinical leadership under the previous Government. Proper patient consultation and patient engagement did not take place. I have a list with me of maternity units downgraded under Labour; it is right to say that individual reconfiguration decisions need to be looked at on their merits, but there was a long and tragic history under the previous Government of the public, patients and local clinicians not being properly engaged in the process. That is why our Government have introduced a better process whereby, as my right hon. Friend the Member for Chelmsford (Mr Burns) pointed out, decisions about local health care services under our 2012 Act are led now by clinicians through the clinical commissioning groups. We now have health and wellbeing boards, which is an important step forward in better joining up and integrating the health and care system that we all believe in, and in ensuring that democratically elected local authorities have more oversight of our health and care system. Those are important steps forward and this Government should be proud of them. They indicate that decisions should be made locally for the benefit of local people, and that is how things routinely happen.

The trust special administrator regime is not used lightly; it is used in extremis, which is why it has been used only twice in the past five years.

[Jim Dowd]

rose—

[Dr Poulter]

Let me make a little progress, because I have been generous in giving way.

Let us consider the following:

“The vast majority of trusts perform well, but in the rare instances where that is not the case, there must be transparent processes in place to deal with poor performance.”—[Official Report, 8 June 2009; Vol. 493, c. 544.]

I completely agree with those words—the right hon. Member for Leigh (Andy Burnham) used them when he described the purpose of the regime to this House in 2009. This is Labour’s regime, which it now tries to disown in opposition. The TSA regime is only ever used as the very last resort, and provisions in the Care Bill will introduce, importantly, a new role for the Care Quality Commission for triggering the regime when there has been a serious failure of quality; the emphasis will now be on quality, rather than merely on financial failure.

Clause 119 respects the coalition agreement that routine service changes will be locally led; it is about protecting patients and ensuring we can act rapidly and effectively in their best interests in examples of extreme failure. It may therefore be helpful if I set out some of the changes and improvements we are making to the regime under clause 119.

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[Jim Dowd]

Will the Minister give way?

[Dr Poulter]

I do need to make some progress, as I have been generous in giving way. If hon. Members will let me make some progress, I may give way again a little later.

Clause 119 was introduced following calls to the Government by key stakeholders representing NHS providers—the Foundation Trust Network and the NHS Confederation. Like us, they recognise the experience of how the regime has operated. They know that issues of financial and clinical sustainability of health services nearly always cross organisational boundaries, and they were clear that the Labour Government’s regime needed amendments to make it effective in the spirit that the right hon. Member for Leigh intended when he created it in 2009. Let me read out again what was said in the impact assessment to the 2009 TSA regime—his regime. It states:

“NHS Trusts…are not free-floating, commercial organisations.”

It also says:

“State-owned providers are part of a wider NHS system.”

We fully agree with that, and that is what we are ensuring we take into account in the TSA regime. That is what clause 119 is about. Clause 119 would extend the remit of a TSA to make recommendations that may apply to—

[Jim Dowd]

rose—

[Andy Burnham]

rose—

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[Dr Poulter]

I have repeatedly read out supporting evidence from the previous Government and from the impact assessment that showed that they recognised that the regime had to take into account the wider health economy. It is not my fault or the fault of hon. Members on the Government Benches that Labour’s legislation was not properly drafted, and that it did not do what it intended—

[Jim Dowd]

Will the Minister give way?

[Dr Poulter]

The right hon. Gentleman also suggested—

[Jim Dowd]

Is he deaf?

[Madam Deputy Speaker]

Order. The Minister’s state of health is not a matter to be dealt with from a sedentary position. If he is not giving way, he is not giving way.

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[Mr Hunt]

I thank my hon. Friend for her work in Committee. That is an aspiration that we all share, and some of the results from the pilots are extremely encouraging in terms of the extra care and support we are able to give people. End-of-life care is a priority for everyone, so I share her enthusiasm that we can make progress on that very important area.

Financial security must be combined with confidence in the standard of care received. A year on from the Francis report, we are debating a Bill that will help us to deliver 61 commitments that we made in response to it. We are restoring and strengthening a culture of compassionate care in our health and care system.

Robert Francis’s report said that the public should always be confident that health care assistants have had the training they need to provide safe care. The Bill will allow us to appoint bodies to set the standards for the training of health care assistants and social care support workers. These will be the foundation of the new care certificate, which will provide clear evidence to patients that the person in front of them has the skills, knowledge and behaviours to provide compassionate high-quality care and support.

New fundamental standards will ensure that all patients get the care experience for which the NHS, at its best, is known. In his report, Robert Francis identified a lack of openness extending from the wards of Mid Staffs to the corridors of Whitehall. We want to ensure that patients are given the truth when things go wrong, so the Bill introduces a requirement for a statutory duty of candour which applies to all providers of care registered with the CQC. The Francis inquiry also found that providing false or misleading information allows poor and dangerous care to continue. We want to ensure that organisations are honest in the information they supply under legal obligation, so the Bill introduces a new criminal offence for care providers that supply or publish certain types of false or misleading information.

The care.data programme will alert the NHS to where standards drop and enable it to take prompt action. To succeed, it is vital that the programme gives patients confidence in the way their data are used. For that reason we have today amended the Bill to provide rock-solid assurance that confidential patient information will not be sold for commercial insurance purposes.

Patients also need to have confidence that where there are failings in care they will be dealt with swiftly. At Mid Staffs that took far too long. That is why the Care Bill requires the CQC to appoint three chief inspectors to act as the nation’s whistleblowers-in-chief. Their existence has started to drive up standards even in the short time they have been in their jobs.

Perhaps most fundamentally, the Bill re-establishes the CQC as an independent inspectorate, free from political interference. The Bill will remove nine powers of the Secretary of State to intervene in the CQC to ensure that it can operate without fear or favour. The Bill will also give the CQC the power to instigate a new failure regime and will give Monitor greater powers to intervene in those hospitals that are found to be failing to deliver safe and compassionate care to their patients. For the most seriously challenged NHS providers, there needs to be a clear end point when such interventions have not worked. The Bill makes vital changes to the trust special administration regime, established by the Labour party in 2009, to ensure that an administrator is able to look beyond the boundaries of the trust in administration to find a solution that delivers the best overall outcome for the local population.

[Jim Dowd]

I realise that the Secretary of State was not in office when the TSA process was started in the South London Healthcare NHS Trust, but he did accept the report of the administrator and, of course, appealed against the High Court decision that found against him. Will he clarify and put on the record that it is the coalition Government’s view, and the view of their constituent parties, that the people of Lewisham should not have an accident and emergency unit; should not have a maternity unit; should not have a paediatric specialty; and that two thirds of the hospital site should be sold off? Those were the recommendations of the TSA, which he wanted to accept.

[Mr Hunt]

Let me first tell the hon. Gentleman that the TSA did not recommend the closure of the A and E unit at Lewisham hospital, and he knows that perfectly well.

I will say what this Government are determined to ensure does not happen again. Mid Staffs went on for four years before a stop was put to it. Patients’ lives were put at risk and patients died because the problem was not tackled quickly. The point of these changes today is to ensure that, when all NHS resources are devoted to trying to solve a problem and they fail, after a limited period of time it will be possible to take the measures necessary to ensure that patients are safe. I put it to the hon. Gentleman and to all Opposition Members that if they were in power now they would not be making the arguments that they have been making this afternoon, because it is patently ridiculous to say that we will always be able to solve a problem without reference to the wider health economy. They know that: it was in the guidance that they produced for Parliament when they introduced the original TSA recommendations. What Government Members stand for is sorting out these problems quickly and not letting them drag on in a way that is dangerous for patients.