Health and Social Care Bill

Lord Newton of Braintree Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Baroness Tonge]

My Lords, I am sorry to create just a small ripple in the sea of calm and tranquillity that represents this Chamber this afternoon, but I follow on from what the noble Baroness just said and ask: is there no procedure that we could adopt which would bring the decision of the House on this matter of the duty of the Secretary of State to provide health services back before Report? Report will not be for two months, perhaps, by which time we will have been discussing all the other issues in the health service in a sort of vacuum. How can we discuss all the things that we want a health service to do if we do not know whether the Secretary of State is going to have a duty to provide them? It seems rather odd that we are putting the cart before the horse, or whatever the correct analogy is. This is an important matter. I feel very strongly that we should know as soon as possible whether the Secretary of State will have a duty to provide health services in this country. If we do not have that reassurance, we will have not a National Health Service but a national health shambles.

[Lord Newton of Braintree]

My Lords, I say gently to the noble Baroness that I had understood that the whole purpose of the proposal made this afternoon by the noble Baroness, Lady Williams, was to give us a chance to look at all the practical issues in the Bill before returning to this umbrella of principles. I can see that one could argue it either way. I have no more right to speak on behalf of my Benches than my noble friend but I share his views entirely and, indeed, I expressed them last week. What is being proposed must be the right way to proceed. It has consensus support around the Committee and I think that we should get on with it and let the Minister explain how he will conduct the discussions. Let us just leave it there.

[Lord Warner]

My Lords, perhaps I may intervene briefly not in any way to damage this positive outbreak of peace but to make a practical suggestion. Much of the Constitution Committee’s report turned on the judgment of the noble and learned Lord, Lord Woolf, in the Coughlan case.

--- Later in debate ---

In any event, it would clearly be wrong to make a provision that would restrict the service to any particular list of functions laid down at this time. It would need to be possible to extend that list to meet changes in circumstance, and that would clearly be a necessary condition of any move to create a more visible account of what the service should be about. We on this side of your Lordships' House are certainly looking to see the National Health Service as a comprehensive national service that is comprehensive in the sense of being accessible to all citizens but not necessarily providing every conceivable medical treatment for every conceivable medical condition.

[Lord Newton of Braintree]

Will the noble Lord explain what he actually wants, because I am now thoroughly confused? First, he seeks the reincarnation of a section of the 2006 Act, which, if I remember rightly, was a consolidation Act—in other words, merely a record of what had already happened in history. He then goes on to say that he does not want to ossify—although he did not use that word—the service; he wants flexibility but accepts that it is not possible at any one time to define everything that the service provides. I simply do not know what he is saying.

[Lord Beecham]

My Lords, I am saying that the Bill should lay down at this stage a range of services that will be part of a national health service but that that should not be limited by reference to a particular moment. There will have to be flexibility, but the Bill should clearly indicate, as the 2006 Act did, areas that, taken together, constitute a national health service. It is a simple enough proposition. The content would have to be debated as we go forward, but this is a probing amendment that is designed to ventilate the issue in the hope that some consideration might be given in the course of proceedings on the Bill to the changes that are required.

Ultimately, some decisions will have to be taken about what services are to be provided, not least about the services in Clause 1(3) that must be provided free of charge. People are entitled to know what services they will get free of charge at any given time. As I have said, at some point these matters should be elaborated. There is also an issue about how public health services are to be regarded in the light of the Bill’s current proposals; for example, in relation to the role of Monitor, competition issues and the like.

Amendment 7 seeks to establish a method of taking this discussion forward so that all of us may be clearer about what we are entitled to expect of a National Health Service and, for the purposes particularly of new Section 1(3) of the National Health Service Act 2006, what services would be provided free of charge. I hope that we can look at that matter and perhaps return to it on Report. In that light, I beg to move.

--- Later in debate ---

[Baroness Thornton]

The amendments that open the debate are in the name of the noble Baroness, Lady Finlay, so I suspect that she will also take the opportunity to explain that to the Committee. However, I think that we will have several debates as we move through the Bill that are about the concerns that some of us have if the commissioning of services is based on GP lists and not on a population in an area. What this probing amendment seeks to do is to help to open up that discussion about how you make sure that there are not people in an area who may not be on a GP list and who fall through the cracks in terms of health provision in that area.

This series of amendments seeks to do two things. One is to raise the point about equality and inequality as it affects communities as well as individuals. For example, the provision of family planning services in an area affects an area as well as the individuals who make use of the services, and you would indeed plan those services. That may not be a good example because of course that is public health, but I think that the Minister will see that you have to look at how you plan services in terms of not only the individuals but the needs of an area.

[Lord Newton of Braintree]

I am sorry to interrupt, and this may be another question for the noble Baroness, Lady Finlay, but what is a primary care trust if it is not concerned with the population of the area as that primary care trust is defined? This all seems to me like gobbledegook.

[Baroness Thornton]

My Lords, it is about the people in the area—but of course primary care trusts are going to be abolished by this Bill.

[Lord Newton of Braintree]

The noble Baroness said that this was the first time that we had had area-based planning, but a primary care trust is an area-based entity, planning for the population of an area.

[Baroness Thornton]

I think that the noble Lord misheard me. I said that it was the first time that we had discussed this in the process of this Bill. I beg to move.

--- Later in debate ---

[Baroness Hussein-Ece]

I should like to ask a couple of questions to clarify where the debate is going. As my noble friend Lady Tonge said, for a number of years some groups have found it almost impossible to get a GP. It is almost a case of GPs selecting the people they want on their lists; it is an unwritten code. That is why asylum-seeking families, refugee families and others with very high needs will always find it difficult to get a GP, and I want to ask the noble Baroness, Lady Finlay, how her amendment will assist that.

Equally, as has already been mentioned, areas of high need have in my experience always been in inner cities, where it has been difficult for some people to register with a GP. We know that attendance at A&E departments has become extremely high in some areas—almost unsustainably so—and I want to ask how the amendment will address that too.

There are also families who are placed by local authorities in temporary accommodation in other areas. Currently, a local authority is responsible for such a family—for example, social services or family support may be involved with the children. However, if that family is placed in another borough way out of the catchment area, I am not sure who their GP will be. Perhaps the Minister can respond to that as well and say how that would work with a local authority having responsibility for a family placed well outside the area. Would that family still be able to get support by going on to a GP list in the new area? Would that connection be made? Over the years we have worked very hard to make sure that social care, healthcare and local authorities all work together in partnership. Perhaps we could have an explanation of how it is going to work when families with very high needs are spread around.

[Lord Newton of Braintree]

My Lords, your Lordships will have realised by now that I am basically a simple-minded soul. I am struggling to discover what this issue is but it seems to come down to one specific point: do clinical commissioning groups have the same responsibilities as primary care trusts for planning services for all the people that they think live in their area? That is the core question. Do they have an area base—I dare to risk upsetting my noble friend—for their activities? I understand that it has been decreed that no practice can be part of two clinical commissioning groups; they cannot overlap and have to be distinct and separate. In a sense they are the same as primary care trusts. Do they have a responsibility to plan and provide services for all the people known to be in that area? The rest of this is all peripheral. I require services from the NHS both in London and at home in Essex, and I normally get them. But people in Westminster, where my flat is, know perfectly well that there are lots of second homes in Westminster, and presumably the health authorities and primary care trusts know that as well and plan on that basis. It is a simple question: does somebody have a responsibility to plan and provide services for all the people in their area? Yes or no?

[Noble Lords]

No.

--- Later in debate ---

[Earl Howe]

I will cover that point in a second. I should perhaps clarify that the area covered by an individual clinical commissioning group will be agreed with the NHS Commissioning Board and, as I will explain in a minute, that area should not without good reason cross local authority boundaries. That is a different issue from the issue raised by the noble Lord, Lord Rea, of GP practice boundaries, and we need to distinguish the two in our minds.

The right reverend Prelate asked why we could not remove the words “provided to individuals”. The duty on the Secretary of State to act,

“with a view to securing continuous improvement in the quality of services”

is worded to refer to the “services provided to individuals”. This is because the NHS treats patients on an individual basis. Overall improvement in the quality of the treatment service will improve the health of the population as a whole, but we must not forget that there is a separate, complementary duty to improve the health of the population as a whole using public health mechanisms. Improvement is necessary in both prevention and treatment, and the Bill sets out separate duties in relation to other population-based activity; for example, population-based public health research.

In answer to the noble Baroness, Lady Finlay, the Government accepted the NHS Future Forum’s recommendation that the boundaries of local clinical commissioning groups should not normally cross those of local authorities, and this is now reflected in the proposed authorisation framework for CCGs, subject to the agreement of the process with the NHS Commissioning Board. However, we do not believe it would be in patients’ interests to make this an absolute rule. One of the key roles for clinical commissioning groups will be to manage relationships with local hospital providers and in some areas patient flows into acute hospitals do not match local authority boundaries. The proposed authorisation framework makes clear that CCG areas may cross local authority boundaries only where, for reasons like these, it is demonstrably in the interests of patients.

In answer to my noble friend Lady Cumberlege, whose comments I very much welcomed, all relevant clinical commissioning groups will be required to appoint a representative to the health and well-being board if part or all of their area falls within or coincides with the local authority area. That will provide a vehicle for NHS and local authority commissioners to work together on the health and well-being of the population. There is nothing to prevent health and well-being boards from inviting other clinical commissioning groups that have large numbers of registered patients within the local authority area to attend and be represented. I hope that goes some way towards addressing the concerns that the noble Baroness raised. She expressed a general fear about lack of coterminosity between local authorities and CCGs, leading to fragmentation. As I have said, there is going to be a presumption against CCGs crossing local authority boundaries, but there is an important point in this connection in Clause 20, which will impose a duty on the board in new Section 13M in relation to promoting integration; in particular, new Section 13M(3) will impose a duty on the board to,

“encourage clinical commissioning groups to enter into arrangements with local authorities”

where this would assist with integration of health and social care.

The noble Baroness also referred to GP practice boundaries. She will know that the previous Government, as well as the present Government, were keen to ask patients about the choice of GP practice. It is our aim, which we expressed in the White Paper, to give every patient a clear right to register with any GP practice they want from an open list without being restricted by where they live. Many, if not most, patients are quite content with their local GP practice, but a significant minority have problems registering with a GP practice of their choice or with securing access to the high quality and range of care services that they deserve.

I can inform the Committee that agreement was reached with the BMA today. NHS employers have been discussing our proposals with the General Practitioners Committee of the BMA as part of the annual GP contract negotiations, and the agreement that we have reached with that committee is that from April 2012 GP practices will agree with their primary care trust an outer practice boundary whereby they will retain, where clinically appropriate, existing patients who have moved house in the outer boundary area.

There will also be a choice pilot in two or three cities, or possibly parts of cities, whereby patients will be able to visit a practice either as a non-registered out of area patient, for which the practice will receive a fee, or as a registered out of area patient. Practices will join the pilot on a voluntary basis. I think that that represents a very satisfactory way forward. We can look at which model works, if either of them does, and see what the problems are with each.

The noble Baroness asked about the risk of cherry picking patients. We do not see that as a danger. Under their contracts, GPs have a measure of discretion in accepting applications to join their patient lists. However, they can refuse to register a patient only on reasonable and non-discriminatory grounds. They cannot turn patients away simply on the grounds of their medical condition, or for that matter on the grounds of their race, gender, social class, age, religion, sexual orientation, appearance or disability. In future, we want to make it easier for people to choose the best GP practice for themselves and their families. The pilot arrangements that we have agreed will be invaluable to understanding more fully the issues of GP choice.

I hope I have covered most of the points that have been raised. I hope that my answer to the question posed by the noble Lord, Lord Warner, satisfied him, but I just reiterate that CCGs’ responsibility for planning for homeless people and all the groups that he mentioned is a core part of the CCGs’ functions.

[Lord Newton of Braintree]

My Lords, I take it that the answer to my question is that CCGs do have a duty to plan for everyone in their area. However, along the way, the Minister indicated that some of the information that will enable them to do this will come from health and well-being boards and their assessment of the needs of the population. The fact is that the health and well-being boards do not cover the same areas. They might cover the area of a number of CCGs, but they do not relate to the specific area of any specific CCG. The question is therefore: do the health and well-being boards have a duty to translate their information into the areas covered by CCGs?

[Earl Howe]

I am grateful to my noble friend. The point I was seeking to make was that health and well-being boards will be in a very good position to assess and have a sense of the unregistered and, if I can express it this way, the more dispossessed elements of society. I think CCGs will find that an invaluable source of information in planning the commissioning of services.

My noble friend asked me a yes or no question: are CCGs just like PCTs? In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities, as I pointed out, linked to their unique geographic coverage. It is possible for individuals within that area to be registered with a GP practice which is a member of a different CCG. They would therefore be the responsibility of that other CCG. So that is a slight complication. However, it is important to remember the critical role of health and well-being boards in planning in a holistic way across an area covering not just the NHS but public health, social care and other services.

[Lord Newton of Braintree]

I am sorry to press the Minister further. I want to ask one further question and then I will shut up—I promise. Health and well-being boards, and possibly CCGs, will cover widely differing kinds of area: urban populations where there may be many more homes and people, asylum seekers and the like; conurbations of one kind or another; and a rural periphery. Let us make this oversimple. Do the CCGs in the conurbations know what their situation is in respect of homelessness, asylum seekers and all the other things that the noble Lord, Lord Warner, talked about?

[Earl Howe]

My Lords, there are perhaps several issues bound up in my noble friend’s question. It is entirely possible that a CCG will cover two local authority areas. In that event, it will have a clear duty to work in partnership with both local authorities to improve health and well-being and to secure more integrated services. Do health and well-being boards need to translate their assessments for each clinical commissioning group area? The CCG will need to use the joint strategy of the health and well-being board to inform its commissioning plan according to the needs of its local population. It is in its interests to ensure that the information is translatable.

I would be happy to write to my noble friend because there is a clear narrative here, although I may not be expressing it entirely clearly. Obviously, there will be instances where boundaries do not coincide. As I have said, we are aiming for that not to happen but it will in some cases and it has to be dealt with in terms of the duties that we set out.

--- Later in debate ---

[Lord Ribeiro]

My Lords, I am very pleased to—I am sorry; I know how difficult it is for my noble friend. Would he like to go ahead?

[Lord Newton of Braintree]

I am sorry but I am really quite slow in standing up, as noble Lords will observe.

I do not want to take a huge amount of time. I am not a member of the Alderdice-Patel-Hollins club and I will therefore not attempt to go down their professional path. I am, however, for the moment at least, a member of another club in that I chair a mental health trust—the Suffolk Mental Health Partnership NHS Trust—so I have an interest to declare. I want to express my strong general support for the basic thrust of these amendments, whatever the wording: to emphasise, in the words of the Government’s White Paper, “No health without mental health”. We need to ensure that mental illness is treated with parity in these matters, so far as we can.

I will make only another couple of observations. First, it is worth remembering that one of the notorious pressures on A&E departments at the moment is people turning up with mental illness problems, in effect, and needing the attention of mental illness specialists. This spills over and crosses the boundaries. I still think it right that there should be separate mental health trusts, but we need to recognise these linkages. Secondly, we need to recognise that this is an area in which integration with social services is particularly important. Integration is key because of the extent to which mental illness services are provided not in hospital but in the community and on a combined operation. As an aside which we will return to, the CQC needs to improve its act in terms of assessing community services for the mentally ill, which in my view it is not at present sufficiently equipped to do. That is a point we shall come back to. My main point is strong support for the principal thrust of these amendments, which I hope my noble friend will feel able to accede to.

[Lord Williamson of Horton]

My Lords, briefly but warmly, I support Amendment 11, which seems to me to be desirably explicit and logical in the structure of the opening clauses of the Bill. It is desirably explicit because, while I am sure that the Minister actually wants continuous improvement in the quality of service in connection with the prevention, diagnosis or treatment of physical and mental health, those words do not appear in Clause 2. There remains in the wider public some feeling that mental health has a lower priority than physical health. I believe that there has been a huge improvement in the priority given to mental health—I have a lot of experience of that because of my family circumstances—but the feeling I have referred to exists. Therefore, to be explicit on mental health in this clause is good.

The amendment is logical in the Bill because under subsection (1) of the new clause in Clause 1:

“The Secretary of State must continue”,

to promote,

“a comprehensive health service designed to secure improvement … in the physical and mental health of the people of England”,

yet we do not have that phrase in Clause 2, where we come on to,

“improvement in the quality of services … in connection with … the prevention, diagnosis or treatment of illness”.

That directly contributes to what is expressed in Clause 1, so we need to carry over that phrase and avoid its omission in Clause 2. That is why I support this amendment.