Health and Social Care Bill

Lord Patel Excerpts

Monday 28th November 2011 Lords Chamber

[Lord Newton of Braintree]

As this is Committee stage, I hope my noble friends will forgive me if I play Oliver Twist and seek a small second bite. I promise to be brief and make only three points. The first picks up on maternity and the remarks of the noble Lord, Lord Mawson, about consultants versus patients, if I may put it that way. I remember, in the far-off days when I used to sign 18th birthday cards to prospective or actual constituents, noticing a remarkable bunching. If you checked back 18 years you would find a correlation with Fridays and particularly the period in the run-up to a bank holiday. Secondly, nobody else has followed up the amendment of the noble Baroness, Lady Royall, about specialist nurses. I have an interest to declare here as—there are probably other things as well—president of the Braintree Parkinson’s Disease Society and the Braintree Multiple Sclerosis Society. The importance of specialist nurses in some of these areas is both extremely great and underestimated. I hope that we will therefore not lose sight of the point made by the noble Baroness, Lady Royall, in her amendment, supported by the noble Baroness, Lady Thornton.

Thirdly, to assure the noble Lord, Lord Walton—who I thought was at one stage going to accuse me of being a wimp for not pressing this to a vote—I do not rule out returning to the matter on Report, unless the Minister is really nice to me.

[Lord Patel]

My Lords, I shall speak to several amendments to which I have put my name, but I shall start with the amendment of the noble Baroness, Lady Cumberlege, to which I have also put my name. The noble Baroness is well placed to talk about maternity services. She has championed their cause, particularly regarding choice, for nearly two decades. It is she who should be credited for getting us to where we are now, whereby choice of where to have their babies is available to all would-be mothers.

The noble Baroness covered most points, and I support them all. The one on which I should like to expand relates to maternity networks. It appears that both the Prime Minister and the Department of Health have accepted that maternity networks are the way to improve maternity services, and I agree. Maternity networks have the potential to increase clinician involvement and service-user engagement in the planning, delivery and, where necessary, reorganisation of services. They also have the advantage of being able to scrutinise the performance and outcomes of all maternity providers within the network, thereby helping to drive up standards and reduce unwarranted variations in outcomes. This will help to develop shared services across the network. Thus a home birth service provided by a modern maternity unit could be made available to maternity units in areas where the home birth rate is very low.

I know that a current review of clinical networks is being undertaken for the Commissioning Board, and is due to report soon. Perhaps the noble Earl can tell us more about it. I hope that the review recommends that maternity networks be established to cover all maternity services in England. The concern is that if providers are expected to self-fund networks, there is a risk that some providers, especially foundation trusts, will not engage in networks, thereby reducing their effectiveness. For this reason, I hope that the Government will accept the case for providing some funding and support for maternity networks in the same way as neonatal networks and cancer networks have been able to access central funding and support.

One other issue that will improve the quality of maternity services, no matter where that care is delivered, is the establishment of maternity dashboards. They are a good way of auditing the outcomes on a daily basis and establishing whether the clinical guidelines have been achieved. I therefore strongly support the noble Baroness’s amendment.

The amendment in the name of the noble Lords, Lord Newton of Braintree and Lord Butler of Brockwell, is saying “comply or explain”, whereby if you do not comply with NICE guidelines you must explain why. I agree. Not all standards should be complied with, because there may be reasons why they are not. If you do not comply, you have to explain why. However, you also have to explain why the outcome for patients will be the same or better, because if the outcomes through not complying are not the same or better, you should not be allowed to fail to comply.

I understand that there might be good reasons why certain NHS bodies do not comply. Another way could be the establishment of an alternative compliance system in which organisations and clinicians are required to justify why they have not complied with the standards or, for that matter, innovations that will aid delivery of the best clinical practice. The Commissioning Board, in conjunction with senates and by way of patient pathways, could develop a compliance regime that measures, monitors and incentivises the use of innovation or compliance where these will improve standards of care. So I support the proposal, and I know that we might return later to the issue that my noble friend Lord Walton raised about innovation, tariffs and the innovation tariff. That is the other side of the coin regarding non-compliance and going beyond the standard of care laid down by NICE.

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Amendments 110 to 120B not moved.

[Lord Patel]

My Lords, the amendments in my name are about patient and public involvement, and accountability to patients and the public. They would amend new Sections 13H, “Duty to promote involvement of each patient”; 13I, “Duty as to patient choice”; and 13J, “Duty to obtain appropriate advice” by the Commissioning Board, in the 2006 Act. I shall also speak to Amendments 141A and 206A. The latter is in the name of the noble Baroness, Lady Hollins, who unfortunately had to leave for another engagement but will return later.

All these amendments are about the requirement for the NHS Commissioning Board and all clinical commissioning groups to engage in meaningful and substantial consultation with users of services, particularly with regard to ensuring that commissioners commission services and pathways that are navigable and coherent.

The current requirement to be placed on the board and the clinical commissioning groups is that they must make arrangements to secure that individuals to whom the services are being provided are involved. It is not enough for the suggested means of doing this to be quite as open-ended as the Bill suggests. The Bill implies that this consultation is really aimed at representatives of patient groups, and I would like clarification from the Minister that both individuals and groups of patients should be able to make representation. It is quite easy to conceive of a situation in which a patient is consulted or provided with information and yet is none the wiser and no more involved in the services that they receive.

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[Lord Clement-Jones]

My Lords, I shall speak to Amendments 127B and 197B. As they relate to pharmacy, I declare an interest as the chairman of the Council of the School of Pharmacy, University of London. The intention of these amendments is to ensure that all relevant healthcare providers, including community pharmacists, are consulted when the NHS Commissioning Board and commissioning groups are discharging their functions and developing their business and communications plans. The essence of these amendments is to retain the long-standing arrangement whereby, under the 2006 Act, commissioning bodies have to consult widely and in good time with all relevant stakeholders, including local service providers or their representatives.

Under the current system, primary care trusts are required to consult widely in relation to their commissioning duties. There is concern in the pharmacy profession that the current provisions under Clause 20, new Section 13J, for the board, and Clause 23, new Section 14V, for clinical commissioning groups, to obtain appropriate advice are too vague. It is important that consultation with all local healthcare providers should be done via local representative bodies as well as directly with providers. Clinical commissioning groups should consult pharmacy professionals when making decisions in relation to the commissioning of relevant services in order that the professional skills, knowledge and expertise of pharmacists are used in planning, commissioning, delivering and evaluating NHS services. They should also demonstrate arrangements systematically to seek the views of all appropriate local clinical groups throughout the commissioning process, in general and for particular services. This would include ensuring that all local representative committees are fully engaged in the commissioning process and signed up to the outcomes agreed.

As part of their local leadership role, clinical commissioning groups also need open and transparent processes for reconciling different professional perspectives and contingency arrangements for seeking the agreement of non-GP professional groups in the case of urgent service change. These processes should be clearly set out as part of the CCG’s governance procedures for commissioning decision-making. The above will be of particular importance in the immediate term, given the influx of new commissioners into the market, to ensure commissioners commission services effectively. Without relevant healthcare providers being consulted, the different contributions that such providers, including pharmacy, can make to local healthcare could be lost.

If used effectively, pharmacy has the potential to deliver a great deal more both to patients and commissioners. For example, it is estimated that some 57 million GP consultations each year involve minor ailments which could be dealt with at a pharmacy. If these patients could be moved to a pharmacy, more than £812 million could be saved annually, and GP capacity could be freed up to deal with more complex cases.

In summary, it is critical that there is a duty on commissioning groups, when developing their commissioning plans, to consult primary care providers such as pharmacists as there is a danger under the proposed legislation that some groups may not do so, leading to ineffective commissioning of services. At the Royal Pharmaceutical Society Conference in September, the Minister said that pharmacists are pivotal to every aspect of the Government’s plans to modernise the NHS. I find those words very encouraging and hope that he can give further encouragement in the course of this debate.

[Lord Patel]

My Lords, I support the amendment of the noble Lord, Lord Warner, on patients holding their own records. Speaking from personal experience, I know that it was not uncommon in maternity services years and years ago for patients to be given their old, shared maternity card. The difference was that that card was extra to the actual notes, so what doctors and midwives wrote in those cards was probably an abbreviation.

For 25 years of my life, I allowed patients to carry their complete set of records, thus avoiding having to write another card. That meant that what you wrote and what you told the patient had to be precise, and clear thought had to be given to the purpose of writing it down. It also taught people not to use abbreviations that do not mean anything, or that might be misconstrued. It is not uncommon for doctors to use abbreviations such as SOB or NAD. They do not mean what you think they might mean. SOB stands for “Shortness of breath”, and NAD stands for “No abnormality discovered”. This also meant that when you were putting the results of diagnostic tests into the notes you were forced to explain to the patient what those results meant. If the results were ambiguous, then you had to explain to the patient what that ambiguity was. That improved the quality of record keeping, communication with the patient and the quality of care given to the patient. In 25 years of allowing thousands of my patients to carry their own notes—and some of the noble Lords sitting today are well aware of my habits—I lost only two notes. One was eaten by a dog in the patient’s house and the other was torn up after being left by the mother-to-be on a bus. Apart from that, there was no loss of notes, while in hospitals usually you can hardly find any notes.

There is a double issue here. How do we make notes that are compatible—easy to write and yet which communicate with the patient. An electronic version is better, but even a hand-written version works. I am convinced that allowing patients to carry notes is not a problem.

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[Earl Howe]

I am. The intention is that no clinical commissioning group will be authorised in the first instance unless it can demonstrate to the board that it can fulfil the legal duties that the Bill places on it. That is key to our thinking. Indeed, as time goes on, it will be under a continuous duty to show it is abiding by those duties. In the first instance, it is very important that clinical commissioning groups demonstrate they are fit for purpose in that sense.

I also appreciate the concern to ensure that the board and CCGs benefit from as wide a range of advice as possible. The Government have been clear that everyone with a role to play in securing the best possible services for local people should be able to do so. The definition used in the duties to obtain advice is that used to define the comprehensive health service. It would encompass the areas covered by Amendment 127C. Indeed, I do not think it would be possible to cast it in broader terms. These duties will apply to every function the board or a clinical commissioning group will exercise. Again, within those broad parameters it is important to retain some discretion for the board and CCGs to determine how best to exercise this duty.

The board and CCGs will certainly have to work closely and effectively with all the providers with which they contract as Amendments 127B and 197B suggest. I would say to my noble friend Lord Clement-Jones that that most certainly would include pharmacists. I also agree as to the expertise and the unique perspective that patients and their representative bodies can bring not just to the commissioning process but also to the way the board and clinical commissioning groups approach many of their functions. The same would apply to many other groups, including academic institutions, as the noble Lords, Lord Kakkar and Lord Walton, have highlighted.

The noble Lord, Lord Kakkar, spoke powerfully in favour of academic health partnerships. Academic health science centres have been successful at developing these partnerships within their local areas but understandably have been less successful in spreading innovation across the NHS. As the noble Lord set out, the NHS chief executive’s innovation review is due to be published next month. That will set out how we can accelerate the adoption and diffusion of innovations across the NHS. It will include a mix of bottom-up, horizontal and top-down incentives and pressures that will drive adoption and diffusion of innovation and behaviour change. The role of academic health partnerships may or may not feature in this review. I hope the noble Lord will forgive me if I do not at this stage anticipate or pre-empt what the report will say by elaborating any further. However, I counsel noble Lords to play close attention to what the noble Lord said in his speech.

While these duties refer to obtaining advice from people with expertise in relation to the health service, that is not confined to clinical expertise. Indeed, in fulfilling these duties we envisage a role for clinical senates, as we have already discussed, in providing not just clinical advice but multidisciplinary advice from professionals in health, public health and social care backgrounds alongside patient and public representation and other groups as appropriate.

I am sure we all share a desire that these duties are effective. However, I am not convinced that imposing specific duties as to where the advice should come from, including through the membership of governing bodies, or how the advice should be acted on is the right way to proceed. If we become too prescriptive we risk overburdening CCGs with so many duties and obligations that they could never be sure whether they were doing enough and in reality we must trust them to build these relationships themselves and judge them on the outcomes they achieve.

The noble Baroness, Lady Finlay, asked me about the secondary-care doctor role on CCGs and whether it had to be somebody from outside the area or retired or whether it could be a local person. We are looking carefully at that question. The secondary-care doctors on CCG governing bodies will not be able to have a conflict of interest in the decision-making process of the CCGs. That is where the noble Baroness, Lady Murphy, was absolutely correct. We will use regulations to set out more detail about this and we will work with stakeholders, including pathfinders, to develop these proposals. The noble Baroness referred to the secondary-care doctor coming from either outside the CCG area or being retired. Those are two ways in which a conflict of interest could be avoided but they are only examples and do not represent an exhaustive list.

I want to finish by returning to a point raised earlier by the noble Lord, Lord Warner. We too are aware of the very good work of National Voices, as well as a range of other organisations, on how patient and public involvement could be strengthened in the Bill. While I have explained why I think these specific amendments are not necessary, I am happy to go on listening. I feel that the Bill is already strong in this area but we are always open to new ideas and I look forward to further discussions on this general topic. It is for those reasons that, while sympathetic to the intention behind the amendments, I am unable to accept them and I hope noble Lords will agree not to press them.

[Lord Patel]

My Lords, on behalf of all noble Lords who took part in the debate I thank the Minister for his comments. He excited us all by first saying that the only thing he would not be able to accept would be the death penalty. He finished by saying he could not accept most of what we were saying, partly because it was already in the Bill, which most of us did not think was the case. He demonstrates a commitment that patients’ voices and public involvement will be paramount and that all the commissioning boards and commissioners will be expected to demonstrate that they listen to the voices of patients and the public. We will watch and see how they are made accountable.

The Minister referred to innovation. Of course, the next group of amendments focuses on innovation, so we may come back to it and also the involvement of the academic health centres. We have had a good debate and maybe after reading Hansard some of us can decide whether we will come back to some of these issues. In the mean time, reluctantly, I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

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[Lord Warner]

My Lords, I will speak in support of Amendments 129 and 129A in the group. First, I will take up the point made by my noble friend Lady Thornton about the long-standing problem of the slowness of the NHS to take up innovative ideas, and the frustration often felt by people in this country who have invented new approaches and created new innovations, only to find that they have had to go abroad to get them projected, promoted and sold, with the NHS being one of the last to take up the innovation, which was often funded in one form or another with public money by the British taxpayer. It is a long-standing problem and not a party-political issue; it has been a challenge for successive Governments. One of the most embarrassing moments one has as a Minister is when one meets foreign delegations or travels abroad to back Britain and is asked, “Has this innovation been taken up in the NHS?”, whereupon one has to shuffle one’s feet and think of a suitably weaselly form of words to avoid answering the question directly. It is a very long-standing and difficult issue.

Amendment 129 draws attention to the importance of the procurement of goods and services in the promotion of innovation, and to the duty that that places on the national Commissioning Board. There are many reports about the importance of public procurement in advancing innovation and in ensuring the take-up of UK inventions and innovative practices. The latest one was by the Science and Technology Committee of your Lordships' House, of which I was a member. The report brought out some of the dilemmas around using procurement to take forward innovation. Yet again it cast doubt on central government's use of their purchasing power and muscle to drive the take-up of UK innovations in public services.

The NHS is not alone in having this problem, but it is part of the problem and it is a big part of the public sector. A major and long-standing problem is that too many purchasing decisions are taken too far down the organisational food chain, with too little intervention at senior level and too little willingness to use large-scale purchasing to spread the use of innovative approaches. Whatever else the national Commissioning Board has, it has a lot of financial muscle. It must use that, through the NHS’s purchasing capacity, to drive innovation, which often comes from publicly funded research. I hope that the Minister, who is well aware of the issue, will see the sense in putting something like Amendment 129 in the Bill. We cannot say too often that public procurement is a way of helping to establish and drive innovation in the NHS.

Amendment 129A seeks to add the idea of an innovation fund to the board's armoury on innovation in new Section 13K. There is nothing novel in this. The amendment continues and builds on the proposals of my noble friend Lord Darzi, which led to regional innovation funds that strategic health authorities currently manage. Again, we need to strengthen the mechanisms in the Bill for driving innovation in an NHS that historically has been slow to take up innovations and apply them to scale for the benefit of patients. We are not talking about huge sums of money in the innovation fund, but relatively modest amounts in relation to the scale of NHS expenditure. However, an amendment of this kind would ensure the continuance of the useful work that has been started by the strategic health authorities following the promptings of my noble friend Lord Darzi.

It is typical of what we sometimes do in this country. We start an initiative with a fund at strategic health authority level and then shuffle the cards so that somehow, along the way, some of the initiatives and their benefits get lost. I hope that we can get some reassurance from the Minister that some kind of innovation fund will be available so that we can continue the work that my noble friend Lord Darzi so ably started to ensure that patients can secure the benefits of UK innovations.

[Lord Patel]

My Lords, I support the amendments tabled by the noble Lord, Lord Warner, to which I have added my name.

First, I will speak very briefly about innovation and procurement. I also contributed to the report by the Science and Technology Committee on procurement. The public sector could learn a lot from the private sector about using procurement to drive innovation. Perhaps the Minister can comment on this. The NHS is a huge organisation that uses about £20 billion-worth of procurement a year and if that was done in a co-ordinated way, it could drive an immense amount of innovation within the NHS.

My second point is about how to drive innovation into clinical care. There are lots of examples I could give, but I will give one from my own specialty. It took us 20 years to take the learning from research into the kind of treatment to be given to the mother in premature labour that would considerably reduce the incidence of respiratory distress syndrome, which causes a lot of harm and death in neonates, and embed that into practice. There are lots of examples of such innovations not being embedded into the NHS and we need to look at ways of doing that faster.

My third point is how to use tariffs to drive innovation. If I as a provider will not be given a higher tariff if I drive innovation or innovate a different way of providing the service, and all that will happen is that the tariff for procuring my services as a provider will be less the following year, there is less incentive for me to use innovation in clinical care to improve patient care and also to make it cheaper.

The fourth issue is about an innovation fund, which I support. Together with the Wellcome Trust, the Government have an innovation challenge fund that asks for tenders in particular areas of innovation. The one I know about is in reducing infection rates. Innovation funds of this kind will drive further innovation; for example, in the United States Medicaid and Medicare have a joint innovation fund to drive improvements in healthcare. So I support that amendment.

[Baroness Finlay of Llandaff]

My Lords, I rise to speak briefly to Amendment 129ZA, which is really a probing amendment. I hope that the Minister will be able to explain what these “prizes” are that are referred to in the Bill. The Explanatory Notes do not really help. They talk about the Bill providing for,

“the NHS Commissioning Board to make payments as prizes in order to promote innovation in the provision of health services”,

and that:

“Innovation will originate primarily from the actions of commissioners and providers but it is intended that the NHS Commissioning Board will take a lead role in promoting it”.

The changes should bring about continuous improvement and innovation often happens outside the main NHS. Indeed, in my own discipline, end-of-life care, the innovations have happened by and large in the third sector, particularly in care in the last 48 hours of life. In some ways, this is where these organisations, the different hospices and those working with them, have felt freed up to pilot different ways of doing things which have subsequently been adopted within the NHS.

There is a huge need for more health services research and for good, qualitative methodology. My only anxiety about the word “prizes” being in the Bill is not that I do not want innovation to happen—I desperately want innovation to improve services for patients—but that I want to make sure that innovations are also properly evaluated; that they are piloted, evaluated and audited in the long term. It is terribly easy for people to have great flashes of inspiration and great ideas but they might not necessarily roll out appropriately across all aspects of the health service. Many of us have seen innovations that seem to be excellent in one setting but when they are rolled out without adequate support and training, mistakes are made and problems arise.

I had the privilege of chairing the commission into medical generalism, and our report noted the shortfall in both funding in primary care and in researching ways of delivering primary care to common conditions. We welcomed the National School of Primary Care Research and the recognition that more funding was needed, but we urged the MRC and other funders to create a dedicated funding stream for clinical research in primary care as it is difficult to secure funding. I hope the Minister will explain what these “prizes” are and say that they will in no way detract from the much needed research funding to really evaluate innovations and innovative ideas, particularly in primary care.