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NHS Commissioning Board

Volume 559: debated on Tuesday 5 March 2013

(Urgent Question): To ask the Secretary of State for Health if he will make a statement on comments by the deputy medical director of the NHS Commissioning Board on the regulations on procurement, patient choice and competition under section 75 of the Health and Social Care Act 2012.

I know that the right hon. Member for Leigh (Andy Burnham) and others have raised concerns about the effect of the regulations and I would like to address them in my response. First, however, I would like to make it absolutely clear that the regulations must be fully in line with the assurances given to the House during the passage of the Health and Social Care Bill. The former Secretary of State, my right hon. Friend the Member for South Cambridgeshire (Mr Lansley), said to clinical commissioning groups in 2012 that

“commissioners, not the Secretary of State and not the regulators, should decide when and how competition should be used to serve…patients interests”.

That must be the case. I made it clear in Health questions last week that we would review the regulations to ensure that that was the case and that they were not open to any misinterpretation.

The right hon. Member for Leigh himself gave guidance to primary care trusts which made this clear in 2010:

“Where there is only one capable provider for a particular bundle of services or the objective of the procurement is to secure services to meet an immediate interim clinical need there will be a case for Single Tender Action (i.e. uncontested procurement). By definition, an immediate or urgent scenario will be exceptional and likely to only arise on clinical safety grounds or for example, where existing services have been suspended following intervention by the Care Quality Commission.”

The next bit is very important.

“A decision to procure through single tender should always take account of the potential to secure better value by investing in a competitive process, as long as this is justified by the scale and importance of the opportunity (i.e. it has to be worth it).”

[Interruption.] Those were the comments of the right hon. Member for Leigh.

In the Government’s response to the Future Forum report, we committed to ensuring that the regulations would simply continue that approach. However, I fully recognise that the wording of the regulations has inadvertently created confusion and generated significant concerns about their effect. I have therefore listened to people’s concerns and my Department is acting quickly to improve the drafting so that there can be no doubt that the regulations go no further than the set of principles and rules that we inherited from the previous Labour Government. Following our commitment in response to the Future Forum report, the co-operation and competition panel has been transferred to Monitor. That will ensure consistency in the application of the rules.

Concerns have been raised that commissioners would need to tender all services. That is not our intention and we will amend the regulations to remove any doubt and to clarify that the position remains the same as at present and as stated in my right hon. Friend the former Secretary of State’s letter of 2012.

Concerns have been raised that Monitor would use the regulations to force commissioners to tender competitively. However, I recognise that the wording of the regulations has created uncertainty, so we will amend them to put this beyond doubt. Concerns have also been raised that competition would be allowed to trump integration and co-operation. The Future Forum recognised that competition and integration are not mutually exclusive. Competition, as the Government made clear during the passage of the Bill, can only be a means to improve services for patients—not an end in itself. What is important is what is in patients’ best interests. Where there is co-operation and integration, there would be nothing in the regulations to prevent this. Integration is a key tool that commissioners are under a duty to use to improve services for patients. We will amend the regulations to make that point absolutely clear.

In less than four weeks’ time, new GP commissioners take control, yet today there is complete confusion about the job they are being asked to do. Following comments by the deputy medical director of the NHS Commissioning Board and the statement we have just heard, coalition policy on competition in the NHS is in utter chaos. It beggars belief that almost three years after the White Paper introduced by the right hon. Member for South Cambridgeshire (Mr Lansley) and after all the upheaval he inflicted on the NHS, there is still no clarity on policy today. They are in this mess because the “doctors will decide” mantra was always a fig leaf for their true ideological purpose of driving competition and privatisation into the heart of the NHS.

We notice that the Secretary of State is not here today, but perhaps the Minister will remind him of the statement his predecessor made to GPs:

“I know many of you may have read that you will be forced to fragment services, or to put services out to tender. This is absolutely not the case.”

I am tempted to ask: if the aim is to revert to the position we held, why on earth bring forward a 300 page Bill to rewrite the entire legal basis of the national health service? The truth is that they have been found out trying to sneak through the back door privatisation proposals that the Minister’s predecessors were forced to rule out to save their discredited Bill. In that light, does the Minister accept that it will not be good enough to bring these proposals back with a few cosmetic changes? Will he give a categorical assurance that there will now be a fundamental rewrite to reflect to the letter commitments given to the House and to the professions?

More broadly, we now need urgent clarification, in a full and detailed statement, of what Government policy on competition actually is. Will the Minister today send the clearest message to clinicians that they will control whether or not to use competitive tenders, and will he fulfil the pledge by his leader to protect the NHS from the full glare of EU competition law? If the Government still want to argue for more private providers in the NHS, is he confident that this will not restrict whistleblowing as it has in other outsourced public services?

Will they also respond today to the research of the Nuffield Trust, which shows that more competition in the NHS has resulted in falling productivity? A quarter of a million people who signed the 38 Degrees petition have forced the Government into yet another humiliating U-turn, but there will be lingering distrust at the fact that they had the audacity even to attempt this. The simple truth is this: the British public have never given them permission to put the NHS up for sale. Until they acknowledge that, we will never tire of reminding them.

I sense that the right hon. Gentleman’s speech was written before he heard what I had to say. If he had listened to it, he would know that we recognise concerns about the drafting and whether it absolutely meets the commitments already made. We want to be certain that the commitments made in this place during the passage of the Bill are met. Indeed, when the Secretary of State wrote to clinical commissioning groups in 2012, he made it absolutely clear that those groups would not be forced to go out to tender. We will make sure that that is met. [Interruption.] If Opposition Members had simply listened to what I said, they would have avoided coming up with a set of questions that completely ignored my points.

The right hon. Gentleman referred to the question of quality of care. From my point of view, poor care should be condemned wherever it happens, and he needs to remember that the scandal of Mid Staffordshire hospital happened under his and his party’s watch. The poor quality of care uncovered in that NHS hospital is completely unacceptable—just as unacceptable as poor quality care from any private provider at all. Let us be clear about that.

There will be no privatisation of the NHS under this Government. Furthermore, there will be no special favours for the private sector, which were provided under the right hon. Gentleman’s Government. It was his Government who gave £250 million to private providers of independent sector treatment centres—whether or not they delivered care. There will be no special favours under this Government’s new rules. No clinical commissioning group will be forced into competitive tender. The rules will be absolutely clear, and we shall publish the amended regulations shortly.

Does my hon. Friend agree that the effect of his response to the urgent question this afternoon is to say that this Government are pursuing precisely the same policy as their predecessor on competition for the provision of NHS services? Does he further agree that that demonstrates that the cloud of rhetoric surrounding the passage of the Health and Social Care Act 2012 was so much hot air?

I absolutely agree with my right hon. Friend. There has been a lot of cant and hypocrisy in this debate. The guidance given by the previous Government to primary care trusts in 2010 makes absolutely clear their commitment to competition. That shows how crazy this debate has become. We will ensure that the debate is balanced and that the interest of the patient trumps everything else, as it should.

My constituents’ view is absolutely clear: they do not want back-door privatisation of our national health service. I am pleased that the Minister is making a U-turn on these regulations, but given the chaos of recent days, how could anyone trust this Government with our NHS?

When the hon. Lady talks about back-door privatisation of the NHS, I am not sure of her view of the previous Government’s commitment to spend £250 million on independent sector treatment centres, whether or not they undertook any operations. I am not sure that she agreed with it, but that is what her Government did. There will be no privatisation of the NHS, and the rules we introduce will make it absolutely clear that the power lies with clinical commissioning groups to use the tools available to them—co-operation and integration, but also competition where it drives up standards, just as her Government recommended.

Last year, the right hon. Member for Leigh (Andy Burnham) claimed that there were less than 72 hours to save the NHS. Yesterday, when referring on his Twitter feed to the regulations, he claimed that there were two weeks to save the NHS. Does not the Minister believe that in fewer than 140 characters, the right hon. Gentleman has shredded any credibility that he might once have had? [Interruption.]

Order. I apologise for interrupting the hon. Lady, but there is too much noisy chuntering from both sides of the House, including from Members whom I have previously told to keep it to themselves. They cannot think that they are different or separate because they feel strongly about something—that way, we get to cacophony. Members should keep the chuntering to themselves, ask a question and listen to others with a degree of courtesy.

Last week, during business questions, the Leader of the House said that the regulations would not introduce compulsory competitive tendering in the NHS; today the Minister has said that he will have to revise them in case they do. Is it not a fact that the Government actually do not have a clue about what they are doing? If the Minister wishes to disprove that, will he tell us exactly what changes he will make to the regulations—or will this just be like the pause in the Health and Social Care Bill, after which it carried on regardless?

The Leader of the House was absolutely correct in stating—[Interruption.] If the hon. Lady will listen to my answer, she may benefit from it. The Leader of the House made it absolutely clear in the House last week that the regulations would not introduce compulsory competitive tendering. We are amending them because there was legitimate and understandable concern about the impact of some of the provisions. We will make the position clear so that the policy intent of the Health and Social Care Act is implemented faithfully in these regulations.

The Labour regulations are not perfect, and neither the regulations introduced by Labour nor those initially proposed by the coalition Government in section 75 will do in any sense. Do we not need regulations that embody the assurances given to peers and to GPs themselves during the passage of the Health and Social Care Bill, and not a charter for privatisation?

We will make absolutely sure that the amended regulations meet faithfully the commitments given in the Upper House during the passage of the Bill, and in the letter sent to clinical commissioning groups by the former Secretary of State following the legislation.

During the passage of the Health and Social Care Bill, the Government withdrew clauses that promoted competition and replaced them with clauses that would prevent anti-competitive behaviour. I never understood that at the time. Is it not the case that compulsory competitive tendering is the intention of the regulations and the intention of the original Act?

The right hon. Gentleman’s own Government had guidance in place precisely to address anti-competitive behaviour. Let me again reiterate that these regulations will not introduce compulsory competitive tendering. The amendments that we will table will make it absolutely clear that the power rests with clinical commissioning groups, and not with the Government, Monitor or anyone else.

My hon. Friend will have heard the charge of audacity from the shadow Health Secretary, whose expertise and qualities in this area should be acknowledged to place him in a league of his own. If there is still no clarity on the competitive position, which has not moved on from that of the last Administration, the responsibility lies precisely over there, on the Opposition Benches.

I take the point, but I again reiterate that the rules and guidelines for commissioners will remain exactly as they were under the last Government and under the right hon. Member for Leigh as Secretary of State.

The Minister referred to the amending of regulations. Will he tell us first when that is likely to happen, and secondly how it will ensure that the cloud of uncertainty hanging over the NHS is dispelled?

The amended regulations will be published within days. I entirely agree with the hon. Gentleman that it is important for clinical commissioning groups to have absolute clarity, so that they can prepare for the date in April when they take responsibility.

What my constituents want is first-class health care, free at the point of delivery. Will the Minister confirm that the Government want that too?

I absolutely confirm that the patient’s interest must always trump everything else. Sometimes it is right to challenge existing services which are not providing a good enough service for patients, and we must encourage clinical commissioning groups to do that. Whether poor care is in the public or the private sector, it should always be condemned, and we should always put the interests of the patient first.

If I understood the Minister correctly, he is withdrawing the regulations in order to rewrite them so that we are back where we were under the Labour Government. Does he now wish, with hindsight, that he had never started this?

Absolutely not. The legislation and the regulations will faithfully implement our policy intent, which is to put clinicians at the heart of decision making in the NHS and to make the interests of the patient paramount.

I thank the Minister for his statement, and especially for confirming that the regulations will be rewritten to put it beyond doubt that the patient’s interest always trumps competition in these circumstances. Will he also confirm that any tendering arrangements currently operating in the NHS are operating under legislation introduced by the last Labour Government?

My right hon. Friend is right on all counts. As he says, the patient’s interest must trump everything else. One of the things that we will reinforce in the amended regulations is the paramount importance of integrated care. We legislated for that for the first time through the Health and Social Care Act, which the Care and Support Bill will reinforce and which, indeed, is reinforced by the mandate of the NHS. The Government’s whole intent is to drive a fundamental shift to integrated care for the benefit of the patient.

The Minister has been put up by the Secretary of State to explain the Government’s incompetence, which he may be ideally placed to do. Will he tell us what will happen if the four accident and emergency units in west London close and replacement services are taken over by companies, such as Harmoni and Care UK, which are unfit to run them? That can still happen under his redraft. Will he confirm that members of clinical commissioning groups who have financial interests in the private providers that are bidding should not decide what should replace public services when they are inevitably handed over to the private sector?

The regulations as currently drafted are absolutely clear about the importance of avoiding the conflicts of interests that the hon. Gentleman has described.

Does the Minister agree that the mantra that we are hearing from Opposition Members confirms that their party remains obsessed with process and means rather than outcomes for patients, which are what drive this party and our reforms?

Indeed. That is precisely the lesson to be learnt from Mid Staffordshire hospital and the Francis report. The last Administration and the top-down culture of targets lost sight of the importance of the quality of care for patients, but the current Government are absolutely intent on always putting the patient first, and that is what this legislation is about.

The Government seem to be saying, “There is nothing wrong with the regulations that we have laid, so we must amend them as a matter of urgency.” Will the Minister tell us when that decision was made, and why the Secretary of State has not come to make a statement to the House about it rather than the Minister’s having to come here as a result of an Opposition urgent question?

I made it clear during Health questions last week that I was anxious to ensure that the regulations faithfully implemented the commitments that had been given in the other place during the passage of the Health and Social Care Bill, and indeed we have worked since then to ensure that the regulations achieve that. I believe that we need to make it absolutely clear that clinical commissioning groups will not be forced into competitive tendering, which is why we are amending the regulations. That is entirely sensible and entirely rational.

Will the Minister take no lectures from the Labour party, which oversaw the downgrading of the maternity unit at Huddersfield royal infirmary, and will he reassure my constituents that patient care will always be put first in this universal health service, free at the point of delivery?

I congratulate my hon. Friend on getting an issue of local concern into his question. He is entirely right: I will take no lessons from the Opposition, given what happened when they were in government, and patients’ interests must indeed always come first.

Will the Minister tell me which part of the NHS preferred provider status, which was introduced by the last Labour Government, his Government do not understand?

According to my recollection, at the last general election all three parties committed themselves to any willing provider. The degree of hypocrisy that we sometimes encounter beggars belief.

Because I had feared that the regulations as currently drafted would result in an NHS driven by profit rather than concern for patient care, I welcomed my hon. Friend’s statement. However, he said that he would base the future draft on the principles set out by the last Labour Government, who favoured the private sector over the NHS. Can he reassure me that the redrafted regulations will enable commissioners to encourage collaboration and the integration of health services, and that that will trump competition on many occasions?

I am grateful to my hon. Friend for that question. I should make it clear that we have enhanced the position that we inherited by absolutely reinforcing the importance of co-operation and integration for the first time—that was not part of any legislation under the previous Labour Government. Our Government are totally committed to legislating on and then enacting the importance of co-operation and integration, as he rightly says.

On 15 March 2011, the then Minister of State, the right hon. Member for Chelmsford (Mr Burns), said that in the NHS

“UK and EU competition laws will increasingly become applicable.”––[Official Report, Health and Social Care Public Bill Committee, 15 March 2011; c. 718.]

How can this Minister assure us that the amended regulations he intends to introduce will prevent a successful legal challenge from a private provider against a clinical commissioning group’s decision not to put out a service to tender?

The regulations will help substantially in ensuring that CCGs maintain control over the judgments they make in the interests of patients. European competition law existed as much under the previous Government as it does under this one, and these regulations will help to protect CCGs against those powers.

I thank the Minister for his statement. Will he assure us that competition will be at the core of what he is trying to achieve? Will the Government prioritise clinical outcomes, with targets to deliver and an increasing number of patients to be looked after?

We wish it to be heard. The hon. Member for Strangford (Jim Shannon) must always be heard when he is on his feet. Let us hear it.

Perhaps I should give a lesson in Northern Ireland-speak. Will the Minister assure us that competition will be at the core of what he is trying to achieve and that the Government will prioritise clinical outcomes, with targets to deliver and an increasing number of patients to be looked after?

Competition should only ever be used to enhance the interests of the patient and to improve patient care; it is not an end in itself, and that must always be the case. These regulations will ensure that that is the case and that other vital factors such as co-operation and integration must be taken into account by CCGs in making their judgments.

This top-down reorganisation has, from day one, been a chaotic waste of time, money and effort. Now that the Minister has made a U-turn, will he make things clear, so that I can tell all the professionals and patients in the Wirral what his policy is? Will he say when he will bring to this House a statement of what the Government’s policy is on competition in the NHS?

I repeat that we will be publishing amended regulations within days and that the Government’s reforms are about putting the clinician centre stage in decisions about how money is spent, rather than unaccountable bureaucrats, as happened in primary care trusts up and down the country. The reforms are also about ensuring that the patient’s interests and patient care are always uppermost in the minds of everyone making decisions about the use of money in the NHS.

As my constituent Terry Eastham told me, the regulations, as they stand, make privatisation of the NHS swift and inevitable. The Minister says that he is confident that his changes will guarantee that private companies will not be able to challenge CCGs to demand full and open competition. Will he give that assurance now and explain how the changes he is proposing will make absolutely certain of that?

It is absolutely not the case that the regulations, as currently drafted, drive the privatisation of the NHS. As the hon. Gentleman will discover in the next few days, the amended regulations will make it abundantly clear that CCGs will be in the driving seat—the letter from the former Secretary of State made that clear back in 2012. They will take into account the importance of co-operation, integration and putting the patient’s interest first.

On competition and integration, my hon. Friend the Member for Walsall South (Valerie Vaz) and I spent some time this morning talking to academics from Sweden, who told us how competition and fragmentation were preventing them from moving ahead with integration. The Minister should be concerned about the integration of health care and social care, so will he address that point? We will certainly never make progress on integrating health care and social care if we move ahead with all this privatisation, which will lead to a lot more fragmentation. Leaving that aside, 70 of my constituents also think this is just the wrong way to go.

This Government will ensure that there is no unfair competition, such as existed under the previous Government, whereby private providers got handed guaranteed income on a plate, irrespective of whether or not they did the work. I am clear that nothing in our legislation will prevent a real drive towards integrated care, to which the hon. Lady and I share a commitment.

Will the Minister say whether there was a mistake in the instructions given to parliamentary counsel in drafting these regulations? Will he also tell us which Minister signed them off?

This comes down to a question of the legal drafting and a legitimate concern that the regulations did not meet the policy objectives set out clearly in the Health and Social Care Act and during the course of the debates on it in Parliament. We simply want to ensure that that objective is faithfully met.

Professor Steve Field, who chaired the NHS Future Forum and is now deputy medical director of the NHS Commissioning Board, has said that the Government must make it clear how the regulations are “consistent with the commitments” they gave him. He said that he was clear that there must be “no backtracking” by the Government on the commitments that they gave the NHS Future Forum. The Minister suggested that he will satisfy those demands, and the demands of commissioners and doctors across the country. Is he really guaranteeing to do that today?

I thank the hon. Gentleman for the question. I spoke directly to Steve Field about this yesterday and I am absolutely satisfied that the amended regulations will totally meet the commitments made during the passage of the Bill in the other place.