Health and Social Care Bill

Lord Beecham Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I shall refer also to Amendments 21, 21A and 22. The amendments take us to a number of other matters in relation to the national Commissioning Board. I think that we are all agreed that the board will have an important role to play within the new arrangements, and its governance is a matter of considerable interest. My amendments, which follow closely amendments that I tabled in Committee, invite the noble Earl, Lord Howe, to give further consideration to how we can ensure that the governance of the national Commissioning Board is as effective as possible and that due parliamentary processes are involved.

The amendment would ensure that the chair of the national Commissioning Board was appointed only with the consent of the Health Select Committee. I am well aware that Professor Grant, the excellent chair of the board, gave evidence to the Health Select Committee and I am glad that that occurred. I should like to put the matter beyond doubt by putting this provision in statute for when future appointments of chairs need to be made. The noble Earl will know that I have followed precedent because this Government’s legislation that established the Office for Budget Responsibility makes it clear in statute that the appointment of its chair has to be agreed to or approved—or consent has to be given—by the appropriate Select Committee. My argument to the noble Earl is that the national Commissioning Board is as important as the Office for Budget Responsibility. I realise that one could look at a hierarchy of these organisations and I would understand if the noble Earl were to say that we cannot apply this provision to all bodies in a similar position. However, the responsibility of the national Commissioning Board is immense and there is a case for putting this in statute.

I sense that my Amendment 21 may not be necessary, but perhaps the noble Earl can confirm that the vice-chair of the national Commissioning Board would always be a non-executive appointment and that that person would always be the senior independent director.

Amendment 21A concerns public health specialist input. I should like some assurance from the noble Earl that the national Commissioning Board will have public health expertise. I understand that it is to have a medical director—and that is of course welcome—but, given the need to ensure that in the NHS, through the Commissioning Board and clinical commissioning groups, there is a good tie-in to the public health function, it would be good to know what arrangements the board will make to ensure that there is a strong enough link with public health. Having public health expertise around the board of the national Commissioning Board would, I should have thought, be very welcome indeed.

I come, finally, to my Amendment 22, which would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I said in Committee that I had no problem with the provision that ensured that the first chief executive should be appointed by the Secretary of State. That is normal practice when new bodies are established. In order to get on with it, you clearly need to have a method by which the chief executive is put in place as soon as possible. I quite understand why it should be the Secretary of State in the first instance, but I do not understand why future appointments of chief executives should have to be approved by the Secretary of State.

Back in our debates on bureaucracy and the issue of the concurrent power of the national Commissioning Board with the Secretary of State in relation to the crucial parts of Clause 1, the noble Earl emphasised that the relationship between the Secretary of State and the national Commissioning Board should be seen principally through the mandate and the standing rules. He resisted my efforts to give Ministers powers of intervention other than the extreme power given under the Bill. If that is so, I cannot for the life of me see why the Secretary of State would want to approve the appointment of the chief executive. Surely the relationship should be between the Secretary of State and the chairman of the national Commissioning Board. Why must the Secretary of State have a veto on the appointment of the chief executive? That seems inconsistent with the general points that the noble Earl has been making about the need for the Secretary of State to have a hands-off approach.

The noble Earl may repeat what he said in Committee, which is that that is to do with the accountable officer status of the chief executive. With the greatest respect, is that very different from the accountable officer status in relation to many organisations within the NHS where the Secretary of State does not have to approve the appointment of the chief executive? I hope that at least on this one the noble Earl will recognise that Secretary of State approval for the appointment of a chief executive is wholly inconsistent with the general thrust of where the Government say that they are going, and will be sympathetic. I beg to move.

[Lord Beecham]

My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A—influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.

The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.

The Government’s response to the Select Committee’s report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health—and the Government have stated their intention that there should be clinical and professional leadership on the board—they state explicitly that,

“it is an important principle … that it”—

that is, the board—

“should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions”.—[Official Report, 14/11/11; col. 514.]

That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence—and, indeed, with the substantial resources at its disposal—simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board’s deliberations as a matter of course.

I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.

[Baroness Williams of Crosby]

My Lords, I agree strongly with the noble Lord, Lord Beecham. Public health has always been the Cinderella of the health services, yet it should not be. It is obviously crucial to the whole attempt to reconfigure services, and it is crucial to the emphasis on preventive health that we badly need if we are to stop things such as the very rapid increase in the incidence of diabetes in this country, especially diet-related diabetes. It is important that the public health service is seen by the whole of the public as central to the Government’s proposals for bringing services together. It is essential that we now publicly recognise the very great importance of the public health service and raise it to a level at least equal with other parts of the health service, including clinical commissioning groups.

As the noble Lord, Lord Beecham, said—I thought rather modestly—we accepted that it was too much to expect to have a public health officer on every commissioning group, although there is a very strong case for having one where a commissioning group is happy to have him or her. However, in the case of the board, which after all overlooks the whole CCG structure, it is absolutely vital that a public health officer should be present and should be able to put emphasis on preventive health. It would also be a signal to the health and well-being boards at the local level to follow that lead and themselves put a great deal of emphasis on preventive rather than only curative health.

I think that the noble Lord, Lord Beecham, should get the support of all parties in the House as he has put forward something perfectly sensible and moderate. What the noble Lord, Lord Hunt, was saying about this group of amendments is important, particularly on Amendment 21A, and I hope that the Minister listened very carefully, as I believe that he has a great deal of sympathy with the importance of public health. This will be a very important way in which to underline that in the manifesto.

It is fair to say that the board should make its own decisions on some of the membership, but I agree with the noble Lord, Lord Beecham, that the sheer significance for all the reforms of public health is such that this should be on the face of the Bill and that it should not be left entirely to the members of the board to decide on. There is plenty of room for them to reach their own decisions, but this involves the whole of the Government’s strategy. I very much hope that my noble friend will suggest that the Bill could carry this amendment in it.

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Moved by

[Lord Beecham]

24: Clause 10, page 5, line 8, after “protection” insert “and promotion”

[Lord Beecham]

My Lords, I will speak to the amendments in my name in this group. They are, in many ways, fairly straightforward.

Amendment 24 seeks to add a duty to promote public health as well as to protect and improve public health, as in the Bill as it stands. Promotion is a more positive term than simply protecting or improving public health. It implies a wider range of activities than simply dealing with public health issues and problems as they arise. I would have thought it added somewhat to the Government’s intentions—which we broadly commend, of course—in terms of the direction of public health and the further involvement of local government.

Amendment 25 simply amplifies the list of steps that the Secretary of State may take, in particular around research and training, to specify that he should use,

“the best scientific and other evidence available”,

with this key phrase,

“without regard to special interests”;

in other words, that they should look objectively and seek a wide range of resources to inform the making of public policy.

Amendments 26 and 28 substitute the word “must” for “may” in respect of some of the Secretary of State’s duties. Amendment 27 is perhaps one of the more important in this group, and refers to a duty on local authorities to improve the health of their populations and “to reduce health inequalities”.

In Committee, the Minister referred to the fact that the Secretary of State has that duty as part of his overall duty to provide health services, and that is certainly correct. However, there is no equivalent express duty on local authorities, nor could one be satisfactorily implied. Again, I pray in aid the views of the Health Select Committee, which pointed to:

“The lack of a statutory duty on local authorities to address health inequalities in discharging their public health functions”,

and called that,

“a serious omission in the Government’s plans”,

and recommended that the,

“Bill be amended to rectify this”.

The Government’s response referred to local authorities as “independent, democratic bodies” and said that a,

“ring-fenced public health grant”,

would be made available. At a later stage we will perhaps need to discuss the arrangements for such a grant, because there are concerns about it and about the health premium to which reference is also made in the Government’s response. The Government conclude that,

“these non-legislative levers will be at least as effective as any duty”.

Of course the Government refer to the provisions of the Equality Act, but that is not good enough. Surely it is important to have in the Bill an explicit duty on local authorities to promote health equalities and health improvement. I hope that the Minister will recognise on reflection that the Government will lose nothing by taking such a step. The Government would simply reinforce their intentions and put them in a framework that will send a clear signal to local government.

Amendment 28A, in the name of the noble Baroness, Lady Finlay, seeks to require co-operation between local government, the Secretary of State and quite a list of providers of public health. The amendment is virtually the same as Amendment 28C in my name. There are perhaps one or two slight differences but nothing of any great moment in that respect. I am perfectly happy to defer to the noble Baroness when she moves her amendment.

Amendment 29 seeks to establish the topics of public health that should be included in matters to be addressed by local authorities. The intention, again, is to put in the Bill what may or may not be implicit in the prevailing arrangements. In Committee, the Minister indicated that he did not think that it was necessary to have these references. On the contrary, it is helpful to send a signal of what is expected not only to local government but to those who look to their local authorities to take steps to promote public health on the issues. The list in Amendment 29 includes:

“sexual health … obesity … nutrition … alcohol and substance abuse … air and water quality … adequate housing standards … fuel poverty … occupational health”.

Those are all important issues, most of which also involve inequalities of health. The provision looks very clearly to local government to take those items seriously and to promote advances on each. It is not a mandatory requirement and, of course, the situation will vary from place to place. However, it is a shopping list for local government, citizens and interested organisations to use in pressing that policies and resources be directed at these important areas of public policy. As the amendment makes clear, it is not a restrictive list.

Amendment 31 deals with another issue raised by the Health Select Committee, although it is a matter that we also discussed in Committee. Among the partners of a local authority for the purposes of public health provision, it is very important to include the district councils. In two-tier areas, district councils have a wide range of responsibilities around the environment, housing, food safety and so on, which clearly are integral to the public health service.

It is obviously necessary therefore for a principal authority in a two-tier area to co-operate with a district, but also, conversely, of course, for the district to co-operate with the principal authority. The amendment specifically calls for the relevant partners to co-operate with the local authorities and for it not to be just a one-way street. Again, that raises an expectation on the appropriate local authority and the opportunity for its residents to push for action, if required.

Amendment 32 calls for the Secretary of State to publish annual reports on the public health impacts of budget changes on duties to improve public health. That is a glancing reference to the fact that there is to be a new financial framework and it is important to see how that impinges on what local authorities actually do, and that of course includes district councils. Again, I should emphasise that the position of district councils is yet another matter on which the Health Select Committee was very clear in its recommendations:

“We are concerned that too little attention is paid in the Government’s plans to the role of lower-tier authorities”.

The Government are relaxed, shall we say, about doing anything very specific about that, although apparently they will be issuing draft guidance. It might be thought that that is not really adequate in all the circumstances and that explicit reference should be made to the requirement to involve district councils.

As I said in Committee and I repeat today, the Opposition are keen to support the Government’s approach to returning many public health responsibilities to local government, but it has to be done in a way that encompasses the broad range of issues that affect individuals and communities, and empowers and indeed requires local government that they should take action to meet their part in discharging those responsibilities. Accordingly, I beg to move.

[Lord Rea]

My Lords, I do not know if it is a slight slip on the part of those who drafted the Bill that the word “promotion” is not already in the clause. The coalition agreement on public health states:

“The Government believe that we need action to promote public health, and encourage behaviour change to help people live healthier lives … harnesses innovative techniques to help people take responsibility for their own health”.

That is a bit unfair on people because lifestyles are very much dependent on life chances. People who come from a rotten background may indulge in practices which are not particularly good for their health, but you cannot really ask them to change. We need to take into account a lot of the things which my noble friend Lord Beecham has just gone through because they are relevant to the practice of public health. The word “promotion” should definitely be included at the beginning of this clause.

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[Baroness Northover]

Local authorities have a statutory responsibility for public health. If the noble Baroness looks at the outcomes framework, she will see where different authorities have different responsibilities. In order to discharge those responsibilities, those authorities will have to work together, otherwise they will not be able to deliver those outcomes.

In response to Amendment 25, we entirely share the view that we must make use of the best scientific and other evidence available. However, we do not think that an amendment to the Bill is necessary to do this. If the Secretary of State is to carry out his duty effectively, he must necessarily obtain and use such advice.

I heard how the noble Lord, Lord Beecham, read out the amendment. It is clear that evidence must be sought without it being skewed in any way by any special interests. However, the way in which the amendment is drafted implies that the Secretary of State might not be able to consult legitimate professional organisations or stakeholder groups that may have relevant expertise and experience. I made that point in Committee. We agree, clearly, that the inappropriate influence of special interests would not be right, but that is not quite how the amendment is drafted.

The Government’s Chief Medical Officer will continue to provide independent advice to the Secretary of State on the population’s health. She will be supported in this role by a public health advisory forum that will bring together expert professionals and leading partners to assist her in providing advice and challenge on public health policy and implementation. I hope the noble Lord will be reassured about that. The use of evidence underpins all this and there is no intention whatever that it should be skewed in any way. I trust that that reassures noble Lords and that they will not press their amendments.

[Lord Beecham]

My Lords, given the number of issues on which there are serious disagreements around the House, certainly between the Opposition and the Government, this is a shame. On an issue on which we basically agree in principle, the Government have been entirely negative about suggestions made not merely by the Opposition—heaven forfend—but by the Health Select Committee, which is less prone to charges of any sort of political bias.

I find it almost risible that the Minister should single out one line in the amendment that deals with the Secretary of State's duties in the clause by transforming an option,

“making available the services of any person or any facilities”,

into a mandatory requirement. I agree that perhaps we could have taken that particular line out, but the principle of getting stuff properly into the Bill remains important. All the other items ought to be part of the Secretary of State’s mandated responsibilities.

The Minister referred repeatedly to frameworks, but frameworks are not statute and not something that is immediately accessible to the public or others. Statute should set out a fairly comprehensive picture of what the Government intend, and there has been a failure to take the opportunity to do that, whether in promoting public health or in any of these other matters. It is perfectly true that government Amendment 144 will give the Secretary of State the responsibility of reporting back on how he has exercised his responsibilities, but he is not responsible for what is being delegated to local government. He may undertake to report back on what local government is doing, but there is no obligation on him to do so, as I read the Bill. Yet the whole issue of local authority responsibility in relation to the public health agenda, and in particular to inequalities, after—I remind your Lordships—a very strong recommendation from the Health Select Committee, could be ignored in practice. That cannot be satisfactory.

With all due respect to the Minister, I cannot say that I found her replies at all convincing or helpful, and it is a pity that in an area in which we could have worked together to improve the Bill there seems to be no inclination to do so, since the Government are simply standing pat on their original proposals, with a few very minor amendments. If that is how the Bill is going forward, I think they are missing an opportunity, but that is their responsibility. In the circumstances, since there is clearly no evidence of any intention to be flexible on the part of the Government, I reluctantly beg leave to withdraw the amendment.

Amendment 24 withdrawn.

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Moved by

[Lord Beecham]

33: After Clause 11, insert the following new Clause—
“Chief Environmental Health Officer for England
(1) The Secretary of State shall appoint a Chief Environmental Health Officer for England.
(2) The Chief Environmental Health Officer for England shall give advice to and report to the Chief Medical Officer for England on all such aspects of environmental and public health as are relevant to the public health functions referred to in section 2A of the National Health Service Act 2006 and the duties referred to in section 2B of that Act.
(3) The Secretary of State shall report to Parliament annually on the work of the Chief Environmental Health Officer for England.”

[Lord Beecham]

My Lords, Amendment 33 proposes the appointment of a chief environmental health officer for England. Incidentally, there is such a post in Wales. It is intended to balance the clinical role of the director of public health with that of a person of almost equivalent status—although not quite—in terms of the wide range of issues that fall within the province of environmental health officers working in district and unitary authorities. As I indicated in the debate on earlier amendments, a wide range of responsibilities fall within the area of environmental health that transcend ordinary health requirements but, by definition, often impinge on public health. For many years, environmental health officers have played a key role in protecting the public and in advancing areas of public policy across a range of local authority and other functions. Again, I cite housing, environmental issues, transport, air quality, water quality, fuel poverty and the like.

It would generally strengthen the hand of the director of the national Commissioning Board and, more particularly, that of the Chief Medical Officer to have alongside him or her a person of sufficiently high status to address concerns not only within the Department of Health and the various structures that the Bill creates but across a range of other government departments, particularly those that relate to local government. That would involve the Department for Communities and Local Government, the Department for Transport, Defra and, in the context of fuel poverty, the Department of Energy and Climate Change. It would also conceivably involve other government departments and, at a local level, different organisations whose responsibilities bear on a community’s well-being and where policy lead is clearly desirable at a national level.

It used to be the case in many local authorities that a medically qualified officer of health worked alongside a chief public health officer, as I think they were then called. As I mentioned in Committee, it was certainly my experience to sit on a health committee that had two very powerful such officers. They produced very detailed annual reports independently but worked together to highlight issues that needed addressing by local and national government and other agencies. This proposal would substantially contribute to the work of whoever is to be responsible for public health within the department and it would facilitate precisely the kind of overview that the Minister has referred to as part of the outcomes framework for public health at an appropriate level.

I hope that on this occasion the Government might just consider that wisdom is not concentrated on the government Benches and that others may make suggestions that can contribute to our shared goals. I would have thought that this was one of them, which could be met at a small cost but with the potential for a high return in its impact on public health policy and administration. I beg to move.

[Baroness Masham of Ilton]

My Lords, may I ask the mover of the amendment whether infection control will be one of these subjects, as tuberculosis is such a problem for homeless people, and I hear that chicken flu is again occurring in China? Who will be in charge of that?

[Lord Beecham]

I would be loath to give a definitive answer, not even having the advantage of officials in the Box to support me on this matter. However, I would have thought that infectious diseases are more appropriately a matter for the director of public health at local level. Presumably, at national level the Chief Medical Officer would have overall responsibility. However, the noble Baroness is right to imply that there is a connection with other functions and services where environmental health could contribute. I suppose that overcrowding would be an example of that. I take it that that is what she is referring to in this context. It is precisely in that sort of area that environmental health officers and others would have a statutory responsibility. There is no direct relationship potentially between, for example, a chief environmental health officer and infectious disease, but it would be sensible to have somebody with responsibility and oversight of environmental health issues of the kind that we are discussing working alongside the Chief Medical Officer. Water quality could in certain circumstances be another example of these issues. That discipline should be at the table, as it were, in a sufficiently authoritative way to contribute to dealing with issues of that kind and, we hope, preventing them.

[Baroness Finlay of Llandaff]

My Lords, the question asked by my noble friend Lady Masham illustrates why we need to have a chief environmental health officer for England, as well as having that input in Wales, because by and large elements in the wider environment are determinants of health and play a much greater role in that regard than we recognise. Indeed, if the Marmot review and its aspirations are to have any effect on the health of the nation, we need to address environmental health much more closely.

I declare an interest in the specific areas of carbon monoxide poisoning and the problems contributing to that arising from the environment in which people live, and the link between the roads infrastructure and its air pollution and asthma and the underdevelopment of the lungs of children who live near major road junctions. The interplay between health and the environment in which people live is crucial. Health services on their own will not achieve improvements in health, particularly those outlined in the Marmot review. I hope that the Government will not tell us that the amendment is unnecessary, despite the initial typographical error in the reference to an “Evironmental Health Officer” rather than an environmental health officer. I fear that we will hear that the amendment is deemed to be unnecessary and that the relevant advice can be sought elsewhere. However, there is good evidence from other places that strong leadership from somebody who has a particular role in an area can bring about change and build the bridges to which I referred in the previous group of amendments.

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[Baroness Northover]

Okay. I think the noble Lord has a fairly good idea of what the structure looks like. Therefore, you do not muddle it up with a multitude of different people with different responsibilities at the same level. I think that he can therefore see clearly the answer to his question. Meanwhile—one I prepared earlier—I will also write to the noble Lord in case that is not quite right.

[Lord Beecham]

My Lords, I have a vision of meetings in the health world now starting with, instead of prayers, as we have in your Lordships’ House, a brief recitation from the outcomes framework. That seems to be the noble Baroness’s prescription for everything. However, it does not meet the case. We are not seeking to supplant the role of the Chief Medical Officer; we are seeking to augment the resources available to the Chief Medical Officer and the Government as a whole by the appointment of someone senior with the relevant experience across a range of issues mentioned by Members on both sides of the Chamber in this debate which impinge on the health of the nation, communities and individuals.

It is lamentable that the Government fail to take sufficient regard to the potential that this has to reinforce the common agenda. It is not a question of in any way diminishing the role of the Chief Medical Officer. I do not know whether the noble Baroness has considered the situation in Wales; I am sure that the noble Baroness, Lady Finlay, would enlighten her and, perhaps, all of us about how effective that post has been. It looks to me as though another opportunity to work together to promote the common agenda is being ignored.

Therefore, I regret that I will have to beg leave to withdraw the amendment. We will have to return to the point in future. When, in due course, we have the Secretary of State’s review of what is happening in public health, perhaps we can look particularly at the role of environmental health and how it might best be deployed within the department and across government. That may be an opportunity to do something, not necessarily within the statutory framework—I am sure that an appointment can be made outside the statutory framework—but it is an issue to which we shall have to return.

Amendment 33 withdrawn.

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[Baroness Jolly]

My Lords, in the absence of my noble friend Lady Cumberlege, I shall speak to Amendment 50. The board has a duty towards improvement in the quality of services, in particular the prevention and treatment of illness, and the protection of and improvements to public health. The board must have regard to documents,

“published by the Secretary of State for the purpose of this section”,

and NICE quality standards as appropriate. So far, so good, but what is completely omitted from this process is input in the form of the voice of the public and of patients—that of HealthWatch England. This organisation is best placed to look at how services improve on the ground. Its role is to gather evidence from patients about services and then to offer advice to the board, so the omission seems quite strange. I wonder if my noble friend could confirm that this is actually an accidental omission. We know that the patient is seen to be paramount throughout the Bill, so it seems odd that the patient is missed out of this element. I would also be grateful if he could confirm that HealthWatch England will be adequately resourced and able to use information and advice from local healthwatch.

[Lord Beecham]

Does the noble Baroness agree that another possible source of information would be the health scrutiny committees of local authorities, which could well consider representations from local healthwatch and, in any case, report on how the service is performing in their area?

[Baroness Jolly]

Certainly local government will play a key role in all this, so the scrutiny committees would seem to be a sensible place to take information from, which would then work in with their local healthwatch.