[2nd Allocated Day]
Further consideration of Bill, as amended in the Public Bill Committee
New Clause 34
The Health and Social Care Information Centre: restrictions on dissemination of information
‘(1) Chapter 2 of Part 9 of the Health and Social Care Act 2012 (the Health and Social Care Information Centre) is amended as follows.
(2) In section 253(1) (general duties), after paragraph (c) (but before the “and” after it) insert—
“(ca) the need to respect and promote the privacy of recipients of health services and of adult social care in England,”.
(3) In section 261 (other dissemination of information), after subsection (1) insert—
“(1A) But the Information Centre may do so only if it considers that disseminating the information would be for the purposes of—
(a) the provision of health care or adult social care;
(b) the promotion of health.”.
(4) After section 262 insert—
“262A Publication and other dissemination: supplementary
In exercising any function under this Act of publishing or otherwise disseminating information, the Information Centre must have regard to any advice given to it by the committee appointed by the Health Research Authority under paragraph 8(1) of Schedule 7 to the Care Act 2014 (committee to advise in connection with information dissemination etc).”’.—(Dr Poulter.)
Brought up, read the First time, and Question proposed (10 March), That the clause be read a Second time.
Question again proposed.
I remind the House that with this we are discussing the following:
Amendment (a) to Government new clause 34, in subsection (3), after ‘of’, insert ‘improving’.
Amendment (b) to Government new clause 34, in subsection (3), after ‘adult social care’, insert
‘; and if it has satisfied itself that the recipient is competent to handle the data in compliance with all statutory duties and to respect and promote the privacy of recipients of health services and adult social care.”.’.
New clause 25—Misuse of data provided by the Health and Social Care Information Centre: offence—
‘(1) A person or entity commits an offence if they misuse, or negligently allow the misuse of information they have requested and received from the Health and Social Care Information Centre.
(2) “Misuse” means—
(a) using information in a way that violates the agreement with the Health and Social Care Information Centre;
(b) using information in a way that does not violate the agreement with the Health and Social Care Information Centre, but that gives rise to use that is outside the agreed limits of use; or
(c) using information supplied by the Health and Social Care Information Centre in such a way as to allow or enable individual patients to be identified by a third party.
(3) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to an unlimited fine;
(b) on conviction on indictment, to imprisonment for not more than two years or a fine, or both.
(4) An entity who is guilty of an offence under subsection (1)—
(a) is liable to an unlimited fine; and
(b) must disclose the conviction on all future applications to access data from the Health and Social Care Information Centre.’.
Government amendment 8.
Amendment 29, in clause 116, page 100, line 29, after ‘Authority’, insert
‘and the Secretary of State’.
Government amendments 17, 18, 15 and 16.
I love medical data. They have undoubtedly saved my life and the lives of almost everybody in the House. Medical data, particularly big data, allow us to identify which drugs and procedures work and which do not work. They enable us to pick up the rare side effects of medications that have recently been released on to the market before they can wreak the kind of havoc that we have seen in the past. They enable us to identify which are the good hospitals and which are the failing hospitals. They allow us to identify which clinicians need serious retraining and from which clinicians the public need protection.
I would argue that evidence-based medicine is one of the greatest advances of our age. Evidence-based medicine works a lot better if we have access to big data. I state for the record that I do not intend to opt out. I hope that the Government will use the six months that we have to mount a clear campaign to the public that sets out just what the possibilities are.
I also feel that some of the concerns about releasing big data to pharmaceutical companies are misplaced. We need our pharmaceutical companies to be able to access those data, and there is a virtuous circle. We know that if we attract more research to the UK, not only will that benefit our universities, it will create more employment.
My honourable colleague from the Health Committee mentions pharmaceutical companies. Does she feel it is appropriate—we touched on this in the first part of the debate—that insurance companies have access to hospital data? As I said yesterday, BT now has access to our hospital patient data on the cloud systems in the United States. Does she think that those uses are concerning, and what should we do about them?
That is absolutely correct and I will come to those points later in my remarks. The public did not expect to see their records uploaded to insurance companies, specifically where that resulted in higher premiums for many people.
We have a virtuous circle of improving access to data for our universities and creating high-quality jobs within the industry. If we can attract research to this country, and it is carried out among the UK population, the results from that research will be more relevant to the British population. Also, less research will be carried out in circumstances that are ethically questionable or with oversight that may not be up to the standards we expect in this country, or that sometimes exploits people in developing countries and where we cannot be sure of the accuracy and reporting of that research.
This is a virtuous circle, but I am afraid it has unfortunately been broken by the oversight and some of the arrangements that have taken place in NHS England and the Health and Social Care Information Centre. It is frankly beyond me that nobody has assumed responsibility for destroying the trust in what should have been the most exciting advance that would have benefited countless hundreds of thousands of people, not only now but in the future.
On the six-month delay, I call on the Minister to set out clearly how we will campaign to inform the public of the benefits of the proposal, but also of the risks. We have seen a rather patronising approach that has assumed the public will not notice or care about those small risks, but they are there and we must set out clearly what they are and how they will be addressed and minimised. There is much more we can do to minimise those small risks.
Of course we need transparency about past errors; the performance of NHS England and the Health and Social Care Information Centre in the Health Committee was disappointing. I am glad that on its website, NHS England has now clarified that Sir Nick Partridge, former chief executive of the Terrence Higgins Trust, will conduct an audit of all previous data releases by the NHS information centre—the predecessor body. We are also expecting the release on 2 April of all the data released by the current body. I understand that that will set out the legal basis for those releases, but also their purpose, and that goes to the heart of my amendment.
We must have clear penalties for breach, not only in the provisions in the Bill, but across the whole NHS and social care sector. The Minister will know that in practice, if somebody wants to snoop on someone’s personal medical data, there are far easier ways to do it. He will also know that the penalties are derisory. In a well-publicised case in December 2013, a finance manager at a general practice had been deliberately snooping on the records of thousands of patients within the practice, and focusing—rather disturbingly—on one young woman he had gone to school with and her family. Those were repeated breaches of her and her family’s privacy in a really toxic way. That individual was fined only £996. The public need to be clear that there will be severe penalties not only for individuals who deliberately breach privacy, but for companies. A fine of £996 for an insurance company or a large body is laughable.
I thank the shadow Minister for making the point that £5,000 is woefully inadequate. The financial penalties—significant ones on a sliding scale commensurate with the wealth of the individuals or organisations concerned—should be set out, but I believe that people should go to prison for such data breaches. Organisations should be clearly held accountable. It should be made clear to them that, should such breaches occur, requests from them will not be looked on favourably. There should be a clear penalty. Currently, those penalties simply do not exist.
How do we explain to the public the small risks and how we will address them? One significant risk has not been covered: the powers of NHS England to direct the Health and Social Care Information Centre to collect information when it is considered “necessary or expedient”. That could include full identifiable, confidential data. Will the Minister address one point on that? I have been told that NHS England has, in meetings with senior researchers, discussed the fact that, in the next releases of care data, it plans to include free text. Free text takes us into an altogether different area, so will the Minister give categorical reassurances on it? I support the principle of a default opt-in, but might not support it if the data included free text. Free text is deeply and intensely personal data and is not coded, and the public need specific reassurances on it.
Given that the intention, as I understand it, is to create wholly anonymised data, surely the use of that contextual information creates the possibility of re-linking to an individual’s identity. The hon. Lady is right to make that point, and I hope the Minister can reassure us, but surely that is a step too far.
I agree with my right hon. Friend. Free text takes us into a different territory. People say things in free text to their doctor knowing that it will not appear in a coded form.
There are other ways in which we can improve reassurance for the public. Perhaps we could pseudonymise data before they leave the practice, which would introduce another important layer of protection. That suggestion has been made to the Minister on a number of occasions.
The hon. Lady was in the Chamber yesterday when I talked about the cloud systems using NHS patient data launched in the States. What disturbed me about that was that the commercial companies involved said that the data—our patient data that they were using—included clinical data, demographics, education and income. That provided a context, and the companies could link episodes throughout a patient’s life. People would be disturbed if they understood that companies charging for usage in another country had linked their data in that way and had almost a lifetime’s coverage of people’s medical records.
Linking primary and secondary care data is so important, but the purpose to which it is put is at the heart of the matter. To whom are the data released? If data are uploaded to Google—27 CDs of our database—and leave the premises, we have no control over them. We could not apply in the States the controls and sanctions I have described. It is simply not good enough to be reassured that the data will not be handled by Google staff. What is to stop them accessing the data when they have gone offshore? The hon. Lady is right to make that important point.
My amendments are about improving the situation in two ways, the first of which is on the purpose of the information. Will the Minister consider adding the word “improving”? He might be concerned that, if the wording is “improving health and adult social care”, the Bill could restrict open research. I do not agree. He will know that improving the care of patients is fundamentally the purpose of research. The amendment would therefore not restrict open research. The amendment would put beyond doubt the fact that the fundamental purpose of releasing data to, for example, insurance companies or Genomics UK, is improving care. People would see that the data release is not for a fundamentally commercial purpose to benefit a commercial organisation without a necessary link to improving care for people in the UK. Those questions should be asked at every stage of the process.
It was reassuring yesterday to hear the Minister clarify that insurance companies will be specifically excluded. However, there is no reassurance in the existing wording in respect of other organisations, including, for example, the Department for Work and Pensions. We can see how the case could be made that disseminating information to the Department for Work and Pensions is for the purposes of
“the provision of health care or adult social care”
or “the promotion of health”, which is the existing wording of new clause 34. As he knows, the longer somebody is off work with, say, lower back pain, the less likely it is that they will ever return to work. The Department for Work and Pensions could argue that disseminating information is all about improving care, but in fact, the fundamental purpose might be altogether different. If the principle in the Bill is that information dissemination is clearly about “improving” care, it would focus people’s minds on the underlying purposes when they make appraisals about whether their information should be given out. That could happen without disadvantaging primary medical research access to the information—the principle of improving care would clearly be at stake. I hope the Minister considers adding the word “improving” to the Bill.
My amendment (b) would mean that there is a reassurance in the Bill on how the data are handled by the person receiving them. We have the reassurance of the confidentiality advisory group, but including a responsibility and a duty in the Bill not just for those giving out the information but for those receiving it would be helpful. I ask anyone following this debate to hold their fire and not to be distracted by those who are rather jumping on the bandwagon on this issue and seeking to undermine the fundamental principles behind care.data. Those principles are important and we could save countless hundreds of thousands of lives in the future by having good access to medical data. But it simply will not do to gloss over the very real concerns that have been expressed. We will see the same problems arising six months down the line unless those very real concerns are addressed. To those who are following the debate, I say, “Do not opt out.” Let us give the Government, NHS England and the Health and Social Care Information Centre the opportunity to address those real concerns and to put them beyond doubt. I will not opt out and I hope that others will join me.
In my early career, I worked as a systems programmer and engineer for IBM. I do not usually have much opportunity to mention that, but it is probably appropriate in this debate. I have been struck in recent weeks by how many people with an IT background—as well as those with medical backgrounds—have serious concerns about care.data and the plans of the Health and Social Care Information Centre.
The Minister was not keen to take interventions last night, so I will ask my questions now. I want to touch on the important issue of consent for the uses of patient data. As I said earlier in the debate, the hospital episodes statistics database was originally an administrative database. When did any of us sign up to having our data used to recalculate the cost of insurance cover for long-term illness? Given the points I made about the use of our confidential hospital patient data in commercially chargeable systems in the US, when did we sign up to have our data used on a chargeable basis by companies such as BT and MedRed on their cloud systems in the US? I do not recall doing that, and I suspect no one else does either. Does the Minister agree that patients should have the option of having their data used only for clinical care and for commissioning that care? If the genie is not completely out of the bottle yet, that is a question worth asking.
The hon. Lady is making important points about the need to be clear about what these data are used for. There is an argument that anonymised and properly controlled data have a part to play in the area of medical research. Does she think that should be out of scope, or can we have safeguards that enable it to be in scope? Understanding whether a medicine works in a particular way with a population is a very powerful use of such data. In her view, is that appropriate or not?
In the concerns I am listing, I am not touching on the use of data in medical research. My concern is about the revelations we have had in recent weeks. I am citing commercial uses. Those data are being used on a chargeable basis and the companies involved seem to be crowing about it.
Can a project such as care.data guarantee that what patients sign up to now—or at any point in time—will not mean something different in future months when new datasets are gathered? The hon. Member for Totnes (Dr Wollaston) touched on some of the exciting possibilities for data, but new uses are being planned all the time. I mentioned systems in the US, but the Health Secretary recently signed a memorandum of understanding with the US Health Secretary for secondary uses sharing. The Minister last night said that he would not comment on a US system, but our hospital patient data is on those systems being used on a chargeable basis. Should patients have the right to withdraw their consent if new uses are developed that they do not approve of? The data have gone, and people are developing new uses for them, way beyond what any patient may have felt they consented to.
My right hon. Friend the shadow Health Secretary raised the issue of lack of transparency over the patient’s right to opt out. He asked about the junk mail leaflets— as they have been called—that were not even delivered to every household. What do Ministers propose to do to explain to all patients about the extraction of their identifiable personal data, and what precisely the dissent codes mean? We touched on this in our Health Committee inquiry sessions, and it was not clear, although some people thought they knew. It is a pity that Ministers have not taken the opportunity to answer the questions that were put to them in Health questions—the information changed on the HSCIC database on the very day we had Health questions in the morning.
We know that NHS England and the HSCIC can require GPs to upload patient data in an identifiable form from every GP practice in England, to be linked with the hospital episode statistics and other datasets. That is concerning enough, because it is a powerful new use of a lot of data, but the hon. Lady suggested that the HSCIC is talking about free text. That is a concern, because that is the place where people open up to their doctor and might give information that they do not want to be shared.
It is important that we know exactly how the HSCIC is funded. In the spirit of transparency, will Ministers request full disclosure of all funding sources of the HSCIC, including outside earnings from third parties for the use of data? I have talked about seeing our hospital data now being used on a chargeable basis by companies such as BT in the US. Who pays for the HSCIC’s staff? Are staff seconded to the HSCIC? Who pays the transaction costs? We have seen examples recently of networks of private organisations coming into NHS England to write and fund reports and lead consultations. Who pays for staffing and transaction costs, if it is third parties, is a key aspect of transparency.
The Health Committee has held an initial inquiry into care.data, and I and other Committee members expressed real concerns about the scheme and the impact it could have on the trust between patient and doctor. Our concerns have been compounded by news that commercial companies have been allowed to pay for NHS patient data, and use them for purposes unknown to the public. The use of our data has gone beyond our control, the data are in other countries and uploaded to cloud servers, and we do not know where they are.
My hon. Friend is making pertinent and relevant points. Does she share my concern about the need to tighten up on section 251 exemptions? They allow the use of identifiable data for commissioning purposes. NHS England was granted a 251 exemption last April, and that may lead to identifiable data being used at a national level, a regional level, in the area teams and in the clinical commissioning groups. Is that something that the Government should address?
Indeed it is. There is a question about why CCGs have to have identifiable patient data, and there is a lot of concern about that, which my hon. Friend is right to raise.
We expressed our concerns, but they have been compounded by reports of use of data unknown to the public. The Minister was unwilling to answer the point I wanted to put to him earlier in the debate about how the HSCIC will treat organisations such as BUPA, which are insurance providers as well as providers of health and care. I hope that he will answer that question when he winds up the debate. BUPA is one example, but there are other companies that have multiple functions—some of them are straightforwardly commercial and others involve health and social care—and there is scope for confusion if those firms apply for and obtain access to the data.
The revelations we have already had show that HSCIC does not have accountability, transparency or sufficient control over releases of patient data. In our Committee inquiry, it was put to HSCIC and to NHS England that one of the ways being recommended to ensure that escapes of patient data did not happen, and to allay the fears and concerns we have expressed, was for HSCIC to run on the basis that it kept the database intact and did not download datasets outside the information centre. What it did was take in research queries and ran them. That would be much safer and that is what is done on secure systems in other places. A mechanism has been suggested and I hope it is being considered.
I appreciate the comments made by my colleague, the hon. Member for Totnes about not opting out, but a recent survey of 400 GPs found that 40% intend to opt out of the scheme because of a lack of confidence in how the data will be shared.
Does the hon. Lady agree that we have an opportunity, in the next six months, to provide reassurance on some of these real concerns? Does she share my hope that GPs will change their position and that we should be doing everything we can, as opinion-formers, to encourage them to do so?
I would like to think so, but I am not going to hold my breath. I think I am a lot more pessimistic than the hon. Lady. Indeed, we know that some GPs have been so alarmed that they want to opt their patients out of the scheme. They should be able to do that without penalty. It is up to Ministers, NHS England and HSCIC to rebuild that confidence, but they are not doing so at the moment. They seem to see what is going wrong as a communication or public relations problem. It is not a communication or PR problem; it is a very serious problem with regard to the integrity of what they are doing, and a lack of transparency and accountability. We cannot say that enough times.
I have worked alongside the hon. Lady to try to improve our social care system, so does she not agree that it is important that we work on this issue so that GPs are confident about sharing data? Otherwise, how will we enable the integration of social care with the NHS in the community to give people the sort of care that I know that she and I, through all our work together in Parliament, want to see?
Yes, indeed, but I cannot emphasise enough that I do not feel much confidence at the moment and I do not blame GPs for not being confident. They are, in data protection terms, the owners of their patient data. If they do not feel that their concerns have been allayed, we have some way to go. I will touch on that point in a moment.
There are fundamental concerns on how data will be shared and the Government’s amendments do not address them. The amendments would improve Government new clause 34, but broadly it offers no further protection. It seems that data could still be released to commercial bodies, such as private health care companies that are also health insurers, the pharmaceutical industry and private health care providers. We need assurances on that. As far as I can see in this debate, we have not had them.
The Government’s new clause will actually widen the dissemination of information to include the promotion of health. Promotion of health can take in all kinds of commercial companies, for example food and drink companies that say they have a public health campaign. This will cause more problems. It draws the purposes so widely that misuses would still be permitted, and even be given a statutory basis. The requirement that the HSCIC must have regard to the advice of the confidentiality advisory group is still an inadequate protection.
I have added my name to amendments (a) and (b), tabled by the hon. Member for Totnes, because they would narrow the purposes for which data can be disseminated. However, I remain concerned about the commercial exploitation of patient data. I support new clause 25, which highlights the seriousness of the offence of misusing patient data. We need a clear disincentive for institutional abuse of confidential patient data with appropriate penalties including, as the hon. Lady said, imprisonment. Imprisonment is appropriate for the abuse of confidential patient data.
The Health Committee has started looking at these issues, but I fear that our inquiry and this debate are only the start of a necessary process of scrutiny. We will need a much longer period of consultation to get the provisions right. As a stop-gap measure, I have tabled new clause 35 as a manuscript amendment, because there is a need to ensure that Parliament retains oversight of the HSCIC. The amendment would ensure that the main powers and duties in part 9 of the Health and Social Care Act 2012 that relate to the functions of the HSCIC are all made subject to the super-affirmative resolution. That would be needed until we felt more comfortable and our concerns had been allayed.
My final point is that it is vital that the relationship of trust between a patient and a doctor is not lost. To ensure that that does not happen, patients must feel that their personal information that they disclose to a doctor will remain confidential. I do not think that people have that confidence at the moment, and much needs to happen to make sure that they will.
I was under the illusion that there would be five speakers ahead of me, but I am none the less pleased to make some comments on amendments (a) and (b) to Government new clause 34, and on new clause 25. I thank the hon. Member for Totnes (Dr Wollaston) for setting the scene, and the hon. Member for Worsley and Eccles South (Barbara Keeley) for her contribution.
My inbox, like many others, has been full with messages from various charities on different aspects of the Bill. Having sat on the Care Public Bill Committee, I can well understand many of their concerns. I received a briefing from Cancer Research UK, as many other Members did. It was informative and clear, and raised points that I do not believe have been addressed in the Bill and require greater clarity through amendment.
Along with Cancer Research UK, I warmly welcome the clauses that will introduce the Health Research Authority as a non-departmental government body. I have the highest respect for the Minister, but last night clarity on this was sought by the shadow Secretary of State, the right hon. Member for Leigh (Andy Burnham), the hon. Members for Easington (Grahame M. Morris) and for Worsley and Eccles South (Barbara Keeley) and me. With respect, I do not think that Hansard gives the clarification that right hon. and hon. Members, Cancer Research UK and Macmillan are seeking. I am hopeful that the Minister will today be able to give us that assurance and clarity.
Clarification of the amendment of section 261 of the Health and Social Care Act 2012 is needed to ensure that access to data for research is not restricted on the basis of the amendment. Cancer Research UK states:
“While we appreciate the context of this amendment and understand that the motive behind it is to avoid inappropriate disclosures of data, we are concerned that the wording of this is unclear. We would like reassurance that access to data for researchers is included under ‘provision of health care and adult social care’ and that access to research data will not be restricted on the basis of this amendment.”
I hope the Minister will be able to provide assurance on that.
Cancer Research UK is one of the largest funders of clinical research in the United Kingdom of Great Britain and Northern Ireland. It is currently running more than 240 clinical trials, which in 2012 recruited some 37,000 patients. Clinical research is important to find drugs that work and treatment that saves lives. Today in Westminster Hall, we were made aware that with better access to new cancer drugs, 5,000 more people would be alive today and that many more lives could be saved. It is essential that we develop an understanding of both new and existing treatments, and that they are offered through the NHS. We therefore want to see a regulation and governance system in the NHS that promotes and supports research, while also protecting patients.
There has been significant controversy surrounding the proposed care data upload of GP records to the Health and Social Care Information Centre and there have been at least two debates in Westminster Hall on these issues where Members have expressed their concerns strongly. Concerns have been expressed that the public have been insufficiently informed about this upload and that data may be released inappropriately, for example to insurance or marketing companies. I know the Minister replied last night to my intervention, but the doubt lingers even today within Cancer Research UK, Macmillan Care and other charities that had expressed initial concerns. I have concerns regarding the nature of the release, but it was never my intention to restrict data going to the likes of Macmillan or Cancer Research UK to aid in their fight against the scourge of cancer.
I read a blog article this morning written from the point of view of people with disabilities who had real concerns about the mention of insurance providers. It is often very difficult for people with serious conditions to get insurance, even travel insurance, and the notion that their medical data are being linked to insurance information, or might be sold in future to companies that are insurance providers—even if those are health and social care providers—is a real worry for them. They are really fearful about this and I think we would see a mass opt-out by people who have that fear.
May I reiterate what I said many times in my opening remarks, which I hope will be helpful to the hon. Gentleman? Clear safeguards are being put in place to ensure that the data cannot be used for insurance purposes. I give that reassurance again today.
Does the hon. Gentleman agree with many commentators, including the British Medical Association, that it would help if the remit of the confidentiality advisory group could be extended from currently just looking at patient-identifiable data to looking at pseudonymised data or potentially identifiable data? That would give further reassurance that there is more oversight so that we do not see the kind of instances that many people are expressing concerns about.
The hon. Lady is right that the amendments would go a long way to addressing that issue. I hope that the Government take that on board.
In response to the fears expressed by many, several amendments were tabled to clarify the circumstances in which the Health and Social Care Information Centre will be able to release data. We need further clarification of the provisions concerning the dissemination of information, which suggest that the information centre may disseminate it only if it considers that doing so would be for the purposes of the provision of health care and adult social care. Clarification is needed for those charities that have contacted many of us in the Chamber. Cancer Research UK, among other worthy causes, would like reassurance that access to data for research is included on the
“provision of health care and adult social care”
and that access to research data will not be restricted on the basis of the amendment. That is the reason I support the proposals.
Cancer Research UK has said that it particularly welcomes the Government’s inclusion of proposals that would give the Health Research Authority the ability to accept guidance on how the governance of particular research should be handled by the NHS trusts and their duty to adhere to it. These proposals were added following calls from Cancer Research UK and the medical research sector, and were supported by many parliamentarians during the pre-legislative scrutiny of the Bill of which I, with others, was a part.
Governance continues to be the primary barrier to conducting research in the NHS. A single trial can take place across multiple trusts, so obtaining governance approvals from each participating trust, which may have different approval criteria and often duplicate checks, can cause significant delays. New clause 25 would put in the Bill the firmness, accountability and legislative control that is necessary to ensure that the leakage, for want of a better word, of information does not take place. It is important that we do that.
In conclusion, statistics indicate that by 2020 one in two people will get cancer. We had a debate in Westminster Hall this morning on cancer care; it was passionate and well thought out by many Members with personal experience of cancer in their families and their constituencies. The enormity of cancer and what it will do to society is why we have a responsibility in the House to ensure that we help. The need for research and new treatments for cancer is greater now than ever. We must ensure that while protecting people from the unsafe or mercenary use of personal information, we are not hampering the fantastic work done by these charities to discover more about cancer and to help more people win their personal battle. I support these amendments and I ask the House to do the same.
It is a great honour to follow the hon. Member for Strangford (Jim Shannon), who touched on an incredibly important point: we must not forget the people whose lives have already been transformed by research organisations’ access to data to find cures and prevention for diseases such as cancer. There cannot be anyone in the House who has not been touched by cancer, personally or within their families. It is incumbent on us all to do everything we can to create the right ecosystem and regulatory environment to enable research that will have a life-saving and transformative effect for people.
That is a very important point. Without the sharing of data, such patterns would not occur and we would have the much-talked-about postcode lottery whereby someone’s ability to get timed referrals and access to the best quality care depends on where they live and who their GP is.
I have the great pleasure and privilege of serving on the Science and Technology Committee. We have recently undertaken an inquiry into the regulatory framework for research into all sorts of diseases, including cancer. A very important finding of the inquiry was the essential role of sharing data. It is incredibly important that we come up with the right structures and protections to enable people, and GPs, to have confidence to enable the sharing of that data.
We should be very proud—we in the Chamber must not forget—of the fact that the UK leads the way in many areas of medical research; our universities, our trusts and our foundations are world leaders in what they do. That is very important in terms of our universities’ standing and important to a lot of high-quality jobs in our economy, not only for the benefit of citizens here but people all over the world. We must to do all in our power to maintain a system that enables money to be invested in research at our universities.
The hon. Lady is making a powerful case for the benefits of a system that would make it possible to identify hotspots of disease and carry out early interventions. I think that it could also be useful to studies of the long-term effects of medication. For instance, there was a long-term study of the link between the oral contraceptive and the incidence of particular forms of cancer. I think that such a database would be incredibly useful to studies of that kind, provided that there were the necessary safeguards in relation to privacy and access.
The hon. Gentleman has given yet another reason for the importance of collecting and sharing data in a way that helps to improve health outcomes. A further example is an inquiry into medical implants that was conducted by the Science and Technology Committee. Orthopaedic surgeons were able to keep a great many data relating to the types of implants used in, for instance, hip replacements, and to track, over time, the outcomes for the patients. As a result of that research, they were able to identify particularly problematic implants, and the information was shared among clinicians so that they could improve existing implants and develop new ones. Hip replacements have improved greatly as a result. It is vital that we establish frameworks that give confidence to patients and to medical practitioners, so that such information can be collected and used to improve patient outcomes.
The hon. Lady clearly supports such uses of the databases, but, as I said earlier, there is concern about the fact that this is going global. There are memorandums of understanding between countries, and the granting of access to one organisation seems to lead to its being granted to others. The whole thing could easily spiral out of control. Does the hon. Lady share that concern? I do not know whether her inquiry established any way of describing the system that would enable people to understand it and have confidence in it.
In many of our inquiries, we have looked into international collaborations between universities that are tackling some of the greatest challenges of our time. One example is research into various forms of dementia, and proteins in the brain that contribute not only to vascular dementia, but even to vCJD. We have concluded that in order to meet the huge challenges that those diseases pose to the whole world, we need to pool our resources across universities and research communities internationally. There is an increasing number of well-established protocols and sensible ways of reassuring patients and others about the use of their data. Such international collaboration makes it more likely that we can make discoveries that will drive improvements in people’s outcomes.
Frameworks and safeguards exist to enable universities and academics to collaborate. We should be careful about the language that we use in this context, because there has been scaremongering, and people are identifying all sorts of potential uses for the data for which there is not much evidence. We have been reassured several times today that the information would not fall into the hands of insurance companies and be used in a harmful way.
The hon. Lady is making a strong point. I visited the oesophageal cancer research unit at Southampton hospital. As I am sure all Members know, oesophageal cancer is a particularly filthy disease, and is very difficult to treat. The lack of data made it hard for those in the unit to find out what was going on, and to have more information to work on. I am glad to say that they are getting there—slowly—but I think it particularly important to note that data of this kind can be used to save lives.
We could spend a great deal of time talking about different types of medical research that are enabling huge progress to be made with particular diseases. Given the time that is available to me, however, I now want to talk about another aspect of the importance of sharing medical data to improve patient outcomes—the integration of social care with NHS services. I am sure that everyone in the Chamber would say that that was a good thing. It is important for all the services in a community, whether provided by a local council or by primary or acute care authorities, to be joined up around patients and their families to ensure that patients receive the best possible care, whatever their long-term condition may be. That is a subject that we all discuss, and on which we largely agree. However, when it comes to practical implementation, what we hear in inquiry after inquiry is that the barrier that prevents the delivery of those joined-up, improved outcomes is a lack of ability to share data.
The hon. Lady is being extremely generous in taking so many interventions. I agree with her assessment of the value of integration and better collaboration, but does she agree with me that the most important way of getting primary care on board is winning the confidence of general practitioners? One suggestion from the British Medical Association is that the Department of Health should offer GPs an indemnity against the possibility of being sued by patients who feel that their data has been misused. Does the hon. Lady think that that would be a good way of rebuilding their trust?
I think that GPs are some of the most trusted people in our communities, and that the relationship between them and their patients is incredibly special and important. I certainly have not detected any lack of trust in GPs in the course of my constituency work.
Let me tell the hon. Gentleman about a wonderful initiative that is taking place in Cornwall as part of the Government’s pioneer programme. Many organisations in various parts of the United Kingdom applied to the Government to become integration pioneers, and 14 areas were chosen. I am very proud that Cornwall was one of them.
We are blessed with a unitary authority and a commissioning group of GPs, the Kernow commissioning group. They are full of great ideas about working in new and collaborative ways to improve health outcomes in Cornwall: they are truly dedicated individuals, with an inspiring programme of change. However, all that depends on data sharing. If patients in Cornwall are to be given the joined-up care that they need, general practices must be able to share patient information with other organisations in Cornwall—organisations such as Peninsula Community Health, a social enterprise that is delivering most of our community services alongside the acute hospital, Royal Cornwall hospital, and voluntary sector organisations. They are leading the way in our pioneer bid to enable patients to live independent, good-quality lives at home.
All that great work is underpinned by the need of all those people, working together to bring about health improvements in Cornwall, to share patient information. At present the Cornwall pilot is going very well, is growing, and is supported by both GPs and patients. That leads me to believe that the relationship between GPs and others is different from the relationship described by the hon. Gentleman, in that it is based on trust.
I apologise if I did not make my point very well. I was suggesting not that there had been a breakdown of trust between patients and GPs, but that there was a tension between GPs and the Department of Health—or, at least, NHS England—over the way in which the scheme was being administered, and that there was an opportunity for that to be corrected. That was my simple contention.
Again, I thank the hon. Gentleman for his intervention and I am sure we are going to hear more from the Minister, although we have already heard a great deal from him, about the sorts of reassurances GPs and other people have been seeking about how the data are going to be used.
It is essential that we address the fears and concerns that have been so well raised today, particularly by my hon. Friend the Member for Totnes (Dr Wollaston), because it is vital that people do not opt out. For all the benefits we have heard about today in improving care in our country by integrating the NHS with social care and in making sure we get the benefits from our first-class medical research, we have to have a data capture and data sharing set of regulations and behaviours among the people who are making those decisions that gives us all confidence so that we truly do derive the benefits we have heard about today.
Mr Speaker, I take your rap across the knuckles in the spirit in which it was intended. I apologise to the House for being late today, due to a diary conflict. I hope I can claim that I do not arrive, speak and then disappear very often. My practice is to be here for a debate and to contribute and listen to it, and I apologise to the House for not matching that standard in this debate.
I am, however, grateful for the opportunity to speak in this debate, because a discussion about the way in which the health service handles data and introduces a culture that allows a freer exchange of data around the health and care system is fundamental to the delivery of more joined-up services—ultimately between the NHS and the social care sector—which is an objective that is espoused widely, and regularly repeated, in this House.
The Select Committee had a session at which NHS England gave evidence about the position it got to with care.data and the delay that was announced two or three weeks ago. Although there is a widespread view within the Select Committee that it is important to get better at handling data in order to allow the delivery of improved services, we also had a sense that NHS England, in its handling of the care.data programme, had not respected sufficiently the sensitivities both of individual GPs, as the hon. Member for Easington (Grahame M. Morris) was saying, and—more importantly, ultimately—of individual patients about the safeguards that apply to their data and the uses to which those data can be put.
I agree with the hon. Gentleman that it is important that the six months of additional breathing space NHS England has given itself is used to address those concerns, both within the service and among patient groups, about security of data and the safeguards in respect of which data are used as a result of a more open—in the correct sense of that word—use of data around the system.
As the right hon. Gentleman was not here at the time, he will not know that I moved a manuscript amendment on better parliamentary oversight of the Health and Social Care Information Centre. It seemed to me—I wonder if he noticed this, too, in our Committee inquiry—that there were a great many individuals making decisions on key issues. Questions were put to the HSCIC about the pseudonymisation of data at source, yet the answer we got back was, “Well, I’ve looked at that, and I don’t support it.” The comments were all a bit “I”, but I would like a bit more of the “We” in oversight, and not so much of the “I”.
I was told a long time ago that it is important in certain circumstances in life to be careful with pronouns. It is fair to say that in the evidence we heard last week not all the witnesses were as careful as they could have been with their pronouns. However, I do not want to follow the hon. Lady too far down that road. Instead, I want to make a couple of broader points that I think are important if we are to deliver the objective of the efficient use of data within the health and care system in a way that respects the sensitivities of patients and the people who work in the system.
In the policy arena, when we talk about data and the safeguards around data, there is quite properly an instinct to be concerned about the power of information technology to make information available on a scale that was undreamt of a generation ago and to recognise that that requires proper safeguards. The default question is: what are the safeguards? That is a perfectly proper question, which has to be answered, but it is important that we do not lose sight of the benefits that can come from proper and efficient use of data.
I want to dwell on one illustration of that in the context of the health and care system. Traditionally we have been moderately good, in particular in the hospital service, at measuring episodes of care. What we have been almost completely blind about are the patterns that link one episode of care to another along an individual patient’s life journey. Care.data, as I understand it, is designed to address that weakness in a properly anonymised way, recognising that if we connect the patterns, one episode of care is often linked to another, and another and another, in that patient’s life journey. If we are to build a health and care system that is more joined-up, to use one bit of jargon, or, to use another cliché that is often repeated, treats patients or people not conditions, we need to equip ourselves with an information system that traps, and allows us to see, the experience of those people around whom we are trying to build the system.
The current information systems available to the health and care system simply leave that gap wide open. They do not connect up the individual episodes of care experienced by individual patients. They measure the numbers of people who go in for diagnostic services or the numbers of people who are treated for a particular condition or the number of attendances of care workers at home. They measure all those things, but they do not connect the individual patient-person experience through the line. Addressing that weakness is fundamental to what we are trying to do, and we must not lose sight of that in the concern we properly have about the safeguards that are required if care.data is to proceed with the public and professional support it needs.
The right hon. Gentleman is making an important point about why the programme has to succeed. Given that about 70% of what the NHS spends goes on the management of multi-morbidity—on people suffering from long-term conditions, often physical and mental—the ability to look at those data across the journeys people make through our care system is an essential part of good commissioning for population health.
My right hon. Friend is rightly concentrating on the benefits of the programme. Sharing large datasets clearly has big research and integration benefits, but we now have a huge confidence problem with the programme. It will be beneficial only if it gets widespread buy-in from patients. What does he believe is the answer if we are to regain the public’s confidence?
First, we must concentrate the rationale for the programme on to patients. Looking back at how NHS England has got itself into this position over the past few weeks and months, I have lost count of the number of times I have been told how important the programme is for research. I absolutely agree that it is important for research, but the health and care system does not exist to support research; it exists to treat and care for patients. The logic of allowing commissioners to develop joined-up services that respond to individual people’s needs—and the pattern of need based on multi-morbidity to which the right hon. Member for Sutton and Cheam (Paul Burstow) has referred—must be placed centre stage in the justification for the improved handling of data in the health and care system.
I go back to the point that this must be about treating people, not conditions. We cannot achieve that if we do not have the information to allow us to connect up the experience of the patient between one part of the system and another. In regard to the logic behind NHS England’s plans, yes there is a research argument, but—with apologies to the research scientists—it is a secondary argument. The primary argument is that we must improve the services delivered to patients and service users.
The hon. Member for Oxford West and Abingdon (Nicola Blackwood) has just mentioned the need to reassure patients; that is a big concern at the moment. I have here the transcript of the information I was given in the Health Committee, in which Max Jones of the HSCIC said of the care.data programme that the GP extraction services
“took great care to make sure that we only extract the coded information in those records and not the free text notes”.
However, the hon. Member for Totnes (Dr Wollaston) said earlier that there had been discussions in HSCIC meetings about extracting free text data. Is the right hon. Gentleman as alarmed as I was to hear that? Does he agree that, in the light of the need for reassurance, we do not need such revelations, news and other bits and pieces coming at us from every direction every day to make the whole fiasco worse?
I am not going to comment on whether the free text data should or should not be part of the system, or on whether the safeguards are adequate. However, I agree with the hon. Lady absolutely that the one sure way of undermining public confidence in safeguards is to change those safeguards every five minutes according to whichever witness we are listening to.
My hon. Friend is right, as she always is on these issues. This is about improving the care that is delivered to patients.
Getting away from the debate about data, I want to make my final point. We are repeatedly told that the system is too fragmented and has not taken advantage of the opportunities created by the proper gathering and manipulation of data—as other sectors of the economy have done—in order to reshape services around the needs of consumers. That is the opportunity that the proper handling of data provides, and it is hugely in the interests of patients that we ensure that we take that opportunity. We must take it, but we must do so with proper safeguards.
It is a real pleasure to follow the hon. Member for Totnes (Dr Wollaston), my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley), the hon. Member for Truro and Falmouth (Sarah Newton), the hon. Member for Strangford (Jim Shannon), who made a typically excellent speech, and the Chair of the Health Committee, the right hon. Member for Charnwood (Mr Dorrell). I am really glad that the right hon. Gentleman did not miss the debate. The Health Committee did some excellent work in considering the issues before us, as we have heard during our debates yesterday and today.
I rise to speak to new clause 25 and amendment 29, tabled in my name and those of my hon. Friends. We are discussing these in light of clause 116, the Government’s new clause 34 and the dramatic events that have led to the cessation of the roll-out of the care.data scheme since we first expressed concerns in Committee about how the Government were treating the implementation of this vital project.
Let me be absolutely clear. Opposition Members—and, I am sure, most other Members—passionately want the care.data project to succeed. The failed implementation of the scheme to date is a matter of profound regret, and the shadow Secretary of State, my right hon. Friend the Member for Leigh (Andy Burnham), has offered cross-party support to help to salvage the project. We are serious about it and we want it to work. Many individuals have real and legitimate concerns relating to the use of their private medical records, but, as the academic and writer Ben Goldacre has pointed out,
“we learn how to save lives by studying huge datasets on the medical histories of millions of people. This information helps us identify the causes of cancer and heart disease; it helps us to spot side-effects from beneficial treatments, and switch patients to the safest drugs; it helps us spot failing hospitals, or rubbish surgeons; and it helps us spot the areas of greatest need in the NHS.”
He is undoubtedly right.
A growing population, an ageing population, the rise of co-morbidities and the necessary drive to improve the quality of care and the treatments available to patients mean that the success of the NHS will increasingly rely on the data to which it has access. The care.data scheme was meant to be designed to link together medical records from general practice with data from hospital activity, eventually extending to cover all care settings in which a patient receives treatment, inside and outside hospital.
The improvement of health care depends on removing the barriers between primary and secondary care, between the GP surgery and the district general hospital and between social care providers and traditional health care providers. Integration is key to meeting the needs of patients, and the availability of integrated data is central to shaping the services that will meet those needs. It is in that context that the need for the care.data project should be seen.
Given the real and tangible improvements that such a project could provide to our health care system, as well as the clear public benefits and what I believe is genuine political consensus surrounding the project, it really is inexplicable that we should now find ourselves at this point as a result of the Government’s rank incompetence in its implementation. The tragedy is not that this failure will draw political criticism, heated argument or the condemnation of campaigners outside the House of Commons; it is that it risks the project and jeopardises the benefits that it could provide. That is the real tragedy. At stake here is the means by which we can improve the lives of millions of people. Also at stake is a way in which we can serve the people of our country by easing suffering, pain and distress. This is not simply an arid, technocratic Government data collection programme. The success of the project should be the concern of every single Member of this House. Why, then, has growing public fear about the programme led to the Government having to stop its implementation for six months? There are a number of reasons for that, and our new clause and amendment seek to address the issues that have led us to this point.
It is worth noting that many of the public and professional concerns that have led to the near-collapse of this vital project were raised in Committee. Unfortunately, the Minister described Opposition Members’ concerns as a “false debate” and a “straw man”. How he must regret those words. Had he listened to the concerns expressed by many in Committee, and had reasonable attention been paid to people with no party political axe to grind, we might well have found ourselves in a position in which the care.data scheme could have been successfully rolled out on schedule. As it is, the Minister has had to table a series of amendments to the position he was defending in Committee and, only weeks after he dismissed those widespread concerns, the implementation of the care.data scheme has ground to an enforced halt.
Given the need for the care.data scheme, and its likely benefits for patients, the Government should have adopted a profoundly different duty of care for the implementation of the scheme. The collection and use of data are becoming ever more contestable public issues. Whatever the data in question, when data relating to an individual are subject to collection, collation, analysis and investigation, individuals and society at large will always ask a standard set of questions: who wants these data; why do they want them; what will be done with them; what will the effect of this be; and in whose interests is this being done?
The sensitivity around personal information is always acute, but sensitivity and anxiety around personal medical information are understandably the most acute of all. When that sensitivity is set against the widely publicised issues relating to the National Security Agency of the United States, GCHQ in our own country and the broader emerging themes relating to how Governments in modern western democracies routinely gather and use data specific to individuals, the need for a considered, calm, detailed and honest approach to care.data could not be more important.
The communication about care.data and the provision of safeguards around it were always going to be a difficult, fairly complex task. At the heart of this issue, however, is trust. It was always going to be difficult for any Government to ask the public to trust them on a matter of such sensitivity, in particular on health policy, but for this Government that notion was destroyed as soon as the reorganisation of the health service was introduced—a reorganisation that was deliberately hidden from the public before the election and which no one wanted or voted for. That duplicity probably destroyed at a stroke the notion of trust or, at least, made it exceptionally difficult to rebuild.
From such a fragile starting point and dealing with such a sensitive issue, the Government should have taken care to be scrupulously candid at every opportunity. Ministers ought not to have claimed that the Health and Social Care Information Centre would never make identifiable patient data available to third parties, whether medical research charities, pharmaceutical companies or university research programmes. Although it is true that the data will be pseudonymised, it is still possible for individuals to be re-identified from them. To claim otherwise is simply not accurate, and I suspect that Ministers know that.
Concern about how the HSCIC deals with applications for patient data and how such data will be used is now widespread. The Chair of the Health Committee has written to the Secretary of State asking for the details of which organisations have acquired medical records since 2010. The whole country will look forward to reading the detail of the Secretary of State’s reply.
In 2012, the Department for Work and Pensions tried to obtain access to confidential patient data so that they could be linked to information about employment, tax credits and benefit claims. The request was rejected. In the same year, however, the Institute and Faculty of Actuaries received the hospital records of 47 million people from between 1989 and 2010. Also, management consultants PA Consulting Group secured the
“entire start-to-finish HES dataset across all three areas of collection—inpatient, outpatient and A&E”,
and those data were uploaded to Google’s servers for use with Google’s other software. As the hon. Member for Totnes rightly pointed out, who consented to that? Perhaps the Minister can tell us when he responds.
Trust was damaged further when the Secretary of State claimed, incorrectly, that every house in the country had received a leaflet on care.data, informing them of the project, its purpose and how individuals could opt out if they wanted to. That is not true. A freedom of information request has revealed that NHS England did not ask for the leaflet to be classified as in “in exceptional circumstances”, so the leaflet has not been delivered to households registered with the Royal Mail’s door-to-door opt-out.
My hon. Friend is making a good speech and laying out the issues clearly—he is talking about the junk mail leaflet that was not delivered to every household. It also did not have an opt-out form. As a member of the Health Committee, however, I am still getting queries from people who fear that even after opt-out data will still leave their GP practice to be used by HSCIC. Do we need to be assured about that as well?
Absolutely. That is one of the real issues. As we have heard from Members on both sides of the House, absolute clarity is needed on such issues and on the data, which we as individuals own, from those who seek to provide that data to other people for other purposes. This goes to the heart of the matter, and the fundamental issue—that fundamental breach—is one of trust. My hon. Friend is absolutely right to raise that.
Trust can never be given with blind faith, but it can be built if it is based on accountability. That is what new clause 25 and amendment 29 seek to achieve. The new clause seeks to create a new, specific offence of the misuse of data provided by the HSCIC. Building on the schedule of offences in the Data Protection Act 1998, it makes it an offence to use data provided by the HSCIC for the purposes of re-identification. A person or organisation found guilty of that offence would be subject to an unlimited fine. In addition, it makes it a requirement for any organisation making applications for data from the HSCIC to disclose any previous convictions under the offence.
The purpose of the new clause is to help build public confidence in how individual patient data are used by ensuring that any person or entity who misuses the data is liable to significant criminal sanctions. Patients can then be assured that their privacy and the proper use of their medical data are of the utmost importance to Parliament, the judiciary and the NHS. The new clause would also place a duty on those convicted of misusing data to declare that conviction when reapplying for future data. In reality, barring some unforeseeable public interest, those guilty of misusing data once would be unlikely to gain access again.
In order to ensure a robust system, accountability for the use of the data must also cover those who grant permission for the data to be used. Clause 116 removes from the Secretary of State the duty to approve applications to use patient data for medical research. That is wholly and entirely wrong, and amendment 29 seeks to restore that duty.
In light of the letter from the Chair of the Health Committee to the Health Secretary, the emerging details of how patient data have been used and the rather strange pronouncement from the HSCIC that it will not say more about improper release of medical records until “later in the year”, the Secretary of State’s accountability for how patient data are used is absolutely critical. The use of patient data is a matter of huge import, and the issues surrounding it are enormous, too.
My hon. Friend is making important points and I hope that the Minister is taking note of them. Does my hon. Friend share my concern about the Minister’s assurances last night on the security of the data? The buck stops with the Health and Social Care Information Centre, not the Minister, but Ministers come and go, so it is easy to make assurances, as he might not be here next year.
I absolutely share those concerns. We did not hear anything last night that reassured anybody who understands the Bill. Certainly, Government new clause 34 is not worth the paper that it was hastily written on, and I want to move on to that right now.
Surely it is not too much to expect the democratically elected politician who sits in Cabinet and is responsible for the national health service to be accountable for how the medical data that that service captures is used. Crucially, the Secretary of State for Health is accountable not only to this House but to the people of this country in a way that a quango cannot be and has never been. Such accountability can begin the process of building the trust necessary to ensure the success of projects such as care.data. Without that, QED, the Secretary of State is asking Parliament and the people of this country for permission to remove democratic accountability from how their confidential medical data are used. The implications for the use of patient data in any project are utterly toxic.
I said earlier that it would be tragic if the Government’s failings were to continue to contribute towards the erosion of trust in care.data. Sadly, the Bill provides scope for other regrets. Part 1 seeks to make worthwhile but modest improvements to our care system, falling a long way short of the concept of whole-person care articulated by Labour. The Government new clauses and amendments that we are now discussing, however, and clause 119—the hospital closure clause that we will discuss later—fundamentally disfigure what is without doubt a worthwhile Bill. Perhaps that shows us the two sides of the coalition in the ministerial team. We shall see. None the less, it is a cause for regret.
Trust is at the heart of Government new clause 34. Yesterday, the Minister tried to reassure the House that the new clause would provide the safeguards that people require for the protection of their confidential medical data. He demonstrably failed to do that. Challenged time and again to illustrate how his new clause would facilitate the claims he has made for it, or improve safeguards for patients, he could not do so. Next time, it might be a good idea if the Secretary of State could get the same person to write both the Government amendments and the Government press release, because the amendments and the new clause do not provide what the Government claim they will. Sadly, that erodes trust yet further.
New clause 34 has been made necessary due to the appalling handling of the care.data project by the Government and the resulting erosion of public trust. The truth is that the new clause was hastily tabled again just before the deadline for amendments because the original, botched new clause 14 did not do what the Government said it would. Guess what? New clause 34 does not do what they say it will either. Subsection (3) would amend section 261 of the Health and Social Care Act 2012 to read:
“The Information Centre may disseminate (other than by way of publication), to any such persons and in such form and manner and at such times as it considers appropriate.
But the Information Centre may do so only if it considers that disseminating the information would be for the purposes of—
(a) the provision of health care or adult social care;
(b) the promotion of health.”
Yesterday, the Minister was given numerous opportunities to explain how this provision would prohibit private health insurance companies from gaining access to our data—he could not do so. The new clause provides for entirely elastic definitions that, in practice, will have a limitless application.
What happens when a private health insurance company requests information from the HSCIC on the basis that it was going to conduct specific controlled, randomised assessments of the impact of physical activity on various age groups in order to promote and recommend appropriate physical activity to its policyholders— perhaps with a view to reducing their premiums? That is clearly being used to promote health and well-being, so how would new clause 34 stop it? It would not—under the proposed wording, it would be facilitated. Once such a company has the data, what prevents it from using them for other means? Under our new clause 25, such use would be a clear offence, but sadly the Government have offered no such safeguards.
It is no wonder the public cannot trust Ministers. Just a few weeks ago, in Committee room 9, the Minister assured me and the rest of the Public Bill Committee:
“There are strict controls about the release of potentially identifiable information; for example, that type of information would only ever be released to approved organisations for approved purposes”.––[Official Report, Care Public Bill Committee, 30 January 2014; c. 516.]
Yet these strict controls fail to appear time and again. The only comfort offered to the public is that those issues will be resolved by regulations drafted by Ministers in whom confidence and trust has been lost—that is not good enough. With that in mind, can the Minister explain who signed off the release of data covering 47 million patients that were obtained by the Institute and Faculty of Actuaries? Such issues must be addressed, and it seems likely that when he eventually responds to the Chair of the Health Committee, the Secretary of State will give cause for yet further concern about how patient data are being used.
In responding to the news about that massive data breach, a Department of Health source stated:
“The rules changed last year so this would no longer be allowed. Information like this can only be accessed now if there is a clear benefit to improving health or health systems.”
It is chaos: if the rules have already been changed, the new clause tabled in haste by the Minister is full of superfluous subsections. Why does he need to change the rules again if they have already been changed?
We have a golden opportunity to get this right. The more that patients allow their data to be used, the greater the positive effects of care.data. These issues will not be resolved today and they will not be resolved by any of the Government proposals before us. If we want care.data and schemes like it to work in the future, we need to establish trust. Getting this right will save lives. Accountability is critical when accessing and using the most sensitive personal data, and the whole House can send a message to the people of this country—that we understand their concerns, that we are serious about safeguarding their most private data and that we are determined to continue to improve our health services—by voting for new clause 25 and amendment 29.
I thank hon. Members for the many comments and pertinent points made during the debate, both last night and today, and I will do my best to respond to the main issues raised. In particular, I wish briefly to respond to a couple of points raised by the shadow Minister. He talked about rank incompetence, but let us remember that the previous Government wasted £10 billion on an NHS IT project that was not fit for purpose and did not work. So Government Members will take no lessons about information services in the NHS from Labour Members, given that their Government wasted £10 billion, which I would have rather seen spent on front-line patient care. Furthermore, Labour Members repeatedly raise the issue of the lack of safeguards, but they failed to put them in place when they were in government. Only this Government have put in place safeguards, doing so through the 2012 Act, which I outlined clearly in my contribution last night, and through the further reassurances provided by the proposals we are making today.
Let me deal with some of the very good contributions that have been made to the debate. My right hon. Friend the Member for Charnwood (Mr Dorrell) made a characteristically strong contribution and we should take note of it. The purposes and benefits of the care.data programme, and of joining up and properly putting together patient data, have to be a universal good. What we do not always understand in the health service is how the different parts of the system integrate and join together. My right hon. Friend made it clear that if we want to understand what good joined-up care and good integrated care look like, it is very important that we ensure we have the right data to understand that. If we want to know how we better keep people out of hospital and better look after people with multiple medical comorbidities—my right hon. Friend the Member for Sutton and Cheam (Paul Burstow) discussed that—we need to understand what good care looks like, where we can make better community-based interventions and where we can put in place better care pathways to understand what that good care looks like and ensure we improve patient care. That is one of the overriding benefits and improvements that this system will put in place, and it is long overdue.
It was very clear, as NHS England has acknowledged, that the communication exercise put forward was not ideal. That is part of the reason why we are debating the issue today. I hope I have brought further reassurance to hon. Members about the fact that the 2012 Act does put in place robust safeguards, which were not in place under the previous Labour Government. We have put in place the safeguards through that Act and through the Government amendments we have tabled.
As the hon. Gentleman will be aware, under the 2012 Act, NHS England has responsibility for much of the operational day-to-day performance of the NHS, and NHS England has accepted responsibility for the fact that it did not communicate some of the information about care.data in the best way. But I hope that by referring the House to the safeguards we have in the 2012 Act and the additional safeguards we are putting in place through our Government amendments, we can reassure hon. Members that data will be used for the benefit of the health and care system, and for the promotion of health.
I wish now to deal with some of the good points raised in the debate and I hope to bring further reassurance to hon. Members. My hon. Friend the Member for Totnes (Dr Wollaston) rightly asked about an issue that came up recently in the Health Committee: whether data would be allowed to be passed on to the Department for Work and Pensions. The overriding purpose of any release to the DWP could not conceivably be the provision of health care or adult social care in England or the promotion of health so, no, that could not happen under the 2012 Act or under the provisions we have introduced today.
My hon. Friend also raised issues relating to the HSCIC and free text. As the hon. Member for Worsley and Eccles South (Barbara Keeley) said, it was outlined in the Health Committee evidence sessions that the use of free text had been examined and had, in effect, been ruled out—I hope that my recollection is correct on that. To give further reassurance, may I say that the HSCIC made it clear that the General Practice Extraction Service that we have in place to support the extraction of the data from those GP systems for care.data has taken great care to ensure that we extract only the coded information in those records, not the free text notes, which patients may well have shared during consultations with their GPs? In addition, a number of explicit conditions were excluded from those extractions, including issues relating to HIV/AIDS; sexually transmitted infections; termination of pregnancy; in vitro fertilisation treatment; complaints; convictions; imprisonment; and abuse by others. Clear safeguards and reassurances have been established on those issues, and I hope that reassures my hon. Friend further.
As things stand at the moment, free text is not going to be used. That is the reassurance given by the HSCIC; it clearly does not envisage that text being used and it has given reassurances on that. That is reassuring for me and I hope it is reassuring to my hon. Friend. There are those additional safeguards in place, particularly for vulnerable patient groups, to make sure that more personal data about convictions, imprisonment and abuse by others will not be collected by the information centre.
I will deal first with the points made by the hon. Member for Worsley and Eccles South and then I will give way. I inferred from the hon. Lady’s remarks that she thought that GPs should be able to opt out for their patients. However, we have made it clear that it is a decision not for GPs to make on behalf of their patients but for the patients themselves. Furthermore, people can, at any time, object or change their mind, and the Health and Social Care Information Centre must respect their wishes and remove their data from records.
I am grateful to the Minister for giving way. Will he clarify the point raised by the hon. Member for Totnes (Dr Wollaston) in relation to vulnerable patient groups? Does that include patients with very rare conditions who could be identified, even from anonymised data, because they are part of a relatively small group?
Of course strict criteria are in place under the 2012 Act about the use of data where a patient could be identified. The Health and Social Care Information Centre cannot randomly release data that would identify patients, except where there are specific public policy reasons for doing so, such as in the event of a flu pandemic or a public emergency. There are strong safeguards in place under that legislation to protect patient data. It would be wrong of the hon. Gentleman—I know he often inadvertently misleads himself in some of his conclusions and goes around in circles in his remarks—to confuse Members and to confuse the House. The legislation is clear. He has been in many debates on the matter over the past few weeks, and strong protections are in place to protect patient confidentiality and to prevent patients from being inappropriately identified.
I do not want to be drawn into individual cases, but the hon. Member for Worsley and Eccles South also raised the issue of the MedRed BT Health Cloud, which will provide public access in the United States to 50 million de-identified patient records from the Health and Social Care Information Centre in the UK. We have clarified the matter. The data referred to are not confidential, but are published anonymous data of the aggregate population—not at patient level. The data are available freely to any member of the public or organisation via data.gov.uk. There is no conspiracy about the data; they are freely available to any one of us in this Chamber or to any member of the public.
It is worth highlighting the powers of the Secretary of State, which the shadow Minister also raised in his comments. Let me reassure the hon. Member for Worsley and Eccles South in respect of the amendment that she has tabled today. Section 245 of the 2012 Act enables the Secretary of State to direct the Health and Social Care Information Centre to establish information systems—to collect data—including systems on how to carry out that collection.
The Secretary of State can also direct the Health and Social Care Information Centre to report on any matter about its functions. If concerns were raised about the issue of free text data, which my hon. Friend the Member for Totnes mentioned, the Secretary of State could pass on directions to the Health and Social Care Information Centre.
The Minister referred to my manuscript amendment on parliamentary oversight of the actions of the HSCIC. I tabled that amendment late because there is a belief that the Secretary of State and the Minister have not been asking the right questions. It has taken the Health Committee and other Members making inquiries to bring out all the issues. We need to keep on doing that, which is why I tabled that important amendment. There was not time to do it in a timely way, but that is why it was done.
As a Member of the previous Government, it is a pity that the hon. Lady did not take these issues more seriously at the time. It has been left to the current Government to fix the problem through the 2012 Act and the amendments that we have tabled today. That is not good enough and she knows it. It is also the case that she has not read the 2012 Act properly, because I have just outlined the section 245 powers that the Secretary of State has. That is parliamentary oversight in anyone’s terms.
Finally, let me turn to amendment 29 tabled by the hon. Member for Copeland (Mr Reed). As he has said:
“The importance of such data in medical research, and in the synthesis of new treatments and better care, cannot be overstated. In research terms, more information about how people with certain conditions react to treatments can led to better research being undertaken, which uses resources more efficiently and improves a patient’s quality of life.” ––[Official Report, Care [Lords] Public Bill Committee, 30 January 2014; c. 513.]
I completely agree with that. It is important that we uphold a person’s right to confidentiality while enabling the use of information to improve the current and future health and care of the population, with appropriate safeguards to protect confidentiality.
The Health Service (Control of Patient Information) Regulations 2002 made under section 251 of the National Health Service Act 2006 modify the common law obligations of confidentiality. It allows researchers, public health staff and other medical practitioners to access information where there is no reasonably practicable way of obtaining consent to use such information for the purposes of medical research. That is in the interests of improving patient care or in the public interest.
Amendment 29 requires the Secretary State to give approval for the processing of confidential patient information for research purposes. In January 2011, the Academy of Medical Sciences published a review of the regulation and governance of health research. It criticised the complexity of the arrangements for regulating the use of patient information, saying that they are a significant barrier to research. None of us in this House wishes to put barriers in the way of medical research. The Secretary of State has already delegated the function of the approval of processing confidential patient information for research purposes to the existing Health Research Authority special health authority. The 2002 regulations as amended by this Bill would give the new HRA this function directly.
Under this Bill, the HRA would be responsible for overseeing the ethical review of health and adult social care research. As access to patient information may involve the consideration of ethical issues, it makes sense for the HRA to make decisions on applications for access to confidential patient information for research purposes.
Robust legislative safeguards ensure approval for access to patient information for research purposes is given appropriately by the HRA. These include a condition that the HRA may approve processing of patient information for research purposes only if approval has been given by a research ethics committee, established or recognised by the HRA, and a requirement that the new HRA appoints an independent committee to provide advice on applications to process patient information. This provides continuity for the committee known as the confidentiality advisory group, which I spoke about earlier in my opening remarks.
If my hon. Friend will forgive me, I will not give way. I have only two minutes left, and I want to address some of the other points made in the debate.
The HRA was set up to streamline approvals for research. The Academy of Medical Sciences has said that the transfer of responsibility for the research use of confidential patient information to the HRA provides a good opportunity to reduce the complexity in this area of regulation and governance that has in the past led to conflicting interpretations of it by researchers, trusts, patients and other stakeholders. It brings important clarity to the people whom we care about the most—the patients and the users of our health and care services.
Given those reassurances, I hope that the hon. Member for Copeland (Mr Reed) will withdraw his amendment and that Members will feel able to support the Government’s revised clauses in the interests of bringing greater clarity to safeguard patient confidentiality in the use of health and care information.
I am also grateful to my hon. Friend the Member for Totnes and other colleagues for tabling amendments (a) and (b) to new clause 34. It is clear that we share the desire that the huge wealth of data available through the health and care information system must support research to improve health and care. Although I welcome the intention behind amendment (a), which is to clarify that data should generally be disseminated only for purposes that improve health and care, the proposed wording would have the unintended effect of closing down access to data for some wholly legitimate purposes. For example, it might effectively block the Health and Social Care Information Centre from disseminating data that could be used to ensure that a particular health care service change will not have a negative impact on current levels of safety and quality of care or, worse, on the prevention of harm. I am sure that we would all want to avoid such an unintended consequence in the wake of the Francis report and the need to use health and care data properly to expose the rare examples in our NHS and care system of care that does not meet the standards we expect.
I have done my best to address many of the concerns raised in the debate. The care.data programme is a good one that we should all support. This Government, unlike the previous Government, are ensuring that we have proper safeguards in place to protect patient confidentiality.
Question put and agreed to.
New clause 34 accordingly read a Second time, and added to the Bill.
Proceedings interrupted (Programme Order, 10 March).
The Deputy Speaker put forthwith the Questions necessary for the disposal of business to be concluded at that time (Standing Order No. 83E).
New Clause 25
Misuse of data provided by the Health and Social Care Information Centre: offence
‘(1) A person or entity commits an offence if they misuse, or negligently allow the misuse of information they have requested and received from the Health and Social Care Information Centre.
(2) “Misuse” means—
(a) using information in a way that violates the agreement with the Health and Social Care Information Centre;
(b) using information in a way that does not violate the agreement with the Health and Social Care Information Centre, but that gives rise to use that is outside the agreed limits of use; or
(c) using information supplied by the Health and Social Care Information Centre in such a way as to allow or enable individual patients to be identified by a third party.
(3) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to an unlimited fine;
(b) on conviction on indictment, to imprisonment for not more than two years or a fine, or both.
(4) An entity who is guilty of an offence under subsection (1)—
(a) is liable to an unlimited fine; and
(b) must disclose the conviction on all future applications to access data from the Health and Social Care Information Centre.’.—(Mr Jamie Reed.)
Question put, That the clause be added to the Bill.
The HRA’s Functions
Amendment made: 8, page 96, line 2, after ‘individuals’ insert
‘aged 18 or over who are’.—(Dr Poulter.)
Approval for processing confidential patient information
Amendment proposed: 29, page 100, line 29, after ‘Authority’, insert
‘and the Secretary of State’.—(Mr Jamie Reed.)
Question put, That the amendment be made.
The Health Research Authority
Amendments made: 17, page 145, line 34, at end insert—
‘(c) to the Health and Social Care Information Centre in connection with—
(i) the exercise by the Centre of functions conferred in regulations under section 251 of the National Health Service Act 2006 (processing of patient information for medical purposes);
(ii) any publication or other dissemination by the Centre of information which is in a form which identifies an individual to whom the information relates or enables the identity of such an individual to be ascertained.’.
Amendment 18, page 146, line 4, at end insert—
‘8A Regulations may provide for the committee appointed under paragraph 8(1) to be required, in giving advice, to have regard to specified factors or matters.’.—(Dr Poulter.)
New Clause 6
Secretary of State’s response to a section 65 regulator’s report on an NHS foundation trust
‘In section 65KD of the National Health Service Act 2006, after subsection (1) insert—
“(1A) If the Secretary of State, in relation to the report, would be satisfied as mentioned in subsection (1), with the addition, omission and/or alteration of recommendations contained therein that the Secretary of State regards as reasonable—
(a) to secure the safety, quality or efficiency of some or all services, or
(b) in the circumstances of the case
he may accept the final report as if it had been amended to provide for the addition, omission or alteration so specified.
(1B) Where the Secretary of State has accepted the report with amendments as specified in subsection (1A), the Secretary of State must as soon as reasonably practicable—
(a) publish a notice of the decision, the amendments and the reasons for them;
(b) lay a copy of the notice before each House of Parliament.”.’.—(Jeremy Lefroy.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 16—Powers of local commissioners in relation to TSA recommendations—
‘(1) In section 65DA(1) of the National Health Service Act 2006 (Chapter 5A of Part 2: Objective of trust special administration) omit “objective” and insert “objectives” and omit “is” and insert “are”.
(2) After subsection (1)(a) insert—
“(b) the continued provision of such of the services provided for the purposes of the NHS by any affected trust at such level, as the commissioners of those services determine.”.
(3) After subsection 1(b) omit “(b)” and insert “(c)”.
(4) In subsection (2) of that section after “The commissioners” insert “of the trust in special administration and any affected trust”.
(5) In subsection (4) of that section after “the commissioners” add “of the trust in special administration and any affected trust”.
(6) In subsection (9) of that section after ““commissioners” means the persons to which the trust provides services under this Act” add “and the commissioners of services at any affected trust”.
(7) In section 65F insert—
“(2E) Where the administrator is considering recommending taking action in relation to another NHS foundation trust or an NHS trust which may become an affected trust, the administrator shall engage with the commissioners of services at any such NHS foundation trust or NHS trust in order to enable those commissioners to make decisions pursuant to the matters set out in section 65DA.”.
(8) In section 651(1)—
(a) after “action which the administrator recommends that the Secretary of State” insert “or the commissioners of any affected trust“; and
(b) after “should take in relation to the trust” insert “or any affected trust”.
(9) In section 65K add—
“(3) Where the final report contains recommendations for changes to be made to services provided by an affected trust, the commissioners of services at that affected trust shall make a decision within 20 working days whether they wish to undertake public and patient involvement regarding all or any of the recommendations and, if they are so minded, shall comply with any arrangements for patient and public involvement agreed by those commissioners under this Act before making any final decision concerning the said recommendations.”.
(10) In section 65KA add—
“(7) Where the final report contains recommendations for changes to be made to services provided by an affected trust, the commissioners of those services shall make a decision within 20 working days whether they wish to undertake public and patient involvement regarding all or any of the recommendations and, if they are so minded, shall comply with any arrangements for patient and public involvement agreed by those commissioners under this Act before making any final decision concerning the said recommendations.”.
(11) In section 65KB(1)(d) after “that” insert “to the extent that the report recommends action in relation to the trust in administration”.
(12) In section 65KB(2)(a) after “decision” insert “in relation to any recommendations made the in relation to the trust in administration”.
(13) In section 65O add—
“(4) In this chapter “affected trust” means—
(a) where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report; and
(b) where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.
(14) In section 13Q(4) at the end insert “save to the extent required by section 65K(3) or 65KA(7)”.
(15) In section 14Z2(7) at the end insert “save to the extent required by section 65K(3) or 65KA(7)”.
(16) In section 242(6)(b) at the end insert “save to the extent required by section 65K(3) or 65KA(7)”.’.
This Clause ensures that all commissioners of services affected by a trust special administrator’s report have the right to define local specified services; clarifies that, save for the trust in administration, local commissioners remain the decision makers for services they commission; and restores public engagement for changes other than for a trust in administration.
Amendment 30, page 102, line 31, leave out clause 119.
Government amendments 35, 36 and 11 to13.
I wish to speak to new clause 6, which stands in my name and those of hon. and right hon. Members from across the House.
The new clause would give the Secretary of State some discretion to amend details of the final recommendations from Monitor regarding the outcome of the administration of an NHS foundation trust. As the law stands—so I am advised—the Secretary of State must either accept or reject Monitor’s recommendations in full. If they are rejected, there is another lengthy period of reconsideration. The result is that even if the Secretary of State broadly welcomes Monitor’s recommendations but has concerns about some matters of detail, it appears that he has to reject everything.
I have tabled this new clause as a direct result of my experience representing a constituency that has undergone the very first trust special administration of a foundation trust. I hope it will also be the last—at least in its current format. It has been a hugely time-consuming and costly process, and I would not wish it on any other community, constituency or Member of this House. The new clause would slightly improve the process, but what I would much rather see is a total rethink of the way in which the basic tasks of a trust special administration are carried out, both for NHS trusts and for NHS foundations trusts.
In my view, the relevant legislation—introduced by the previous Government and continued under this one—is not fit for purpose, but that is a debate for another day. In the meantime, I simply urge Monitor and the NHS Trust Development Authority not to put any other trusts—whether they be NHS trusts or foundation trusts—into the current form of administration. I urge everybody to work together on developing a system that enables trusts that are too small, such as the Mid Staffordshire trust, to be dissolved without having to go into a rapid, short-term and wholesale redesign of services. It can be done and I am certainly willing to work with anyone who wishes to design a better system.
I will not go into the full details of the administration of the Mid Staffs NHS Foundation Trust—that is a subject for a full debate on another day—but I will simply point out that it was made a foundation trust in 2008 on the recommendation of Monitor after a lengthy process, and that it is now being dissolved in 2014 on the recommendation of Monitor after a lengthy process. In paragraph 4.269 of his inquiry report, Robert Francis says:
“There can be no doubt that the Trust should never have been authorised as an FT”,
which happened in 2008. There must be a better way of doing things.
My new clause 6 would give the Secretary of State the power to accept the broad thrust of Monitor’s recommendations in the unhappy event of any future administration, giving her or him discretion to alter their detail without having to reject them in their entirety. The new clause therefore offers the Secretary of State flexibility and discretion in what is too rigid a process. I think that any Secretary of State would welcome that. A constant theme of the Ministers whom I have heard in my short time in Parliament has been that such and such an amendment would introduce too much inflexibility into the law. I am therefore doing exactly what Ministers long for, which is to offer them such flexibility.
Of course, the law—the previous Government’s National Health Service Act 2006, as amended by this Government’s Health and Social Care Act 2012—may already provide flexibility, and my new clause may be unnecessary. While Mid Staffordshire was going through its administration, I was told that the Secretary of State had no flexibility under the law, but when he made his decision two weeks ago, he accepted Monitor’s recommendations with a welcome addition—an instruction to NHS England to review how consultant-led maternity services might still be provided at Stafford. I and my constituents have been arguing that case throughout the administration, and I sincerely hope that NHS England will see how vital it is for consultant-led services to continue in a networked form within the University Hospital of North Staffordshire NHS Trust, of which Stafford hospital will now be an important part.
The hon. Gentleman is making well-informed comments about the whole issue we face. He says that the arrangements need to be looked at on another day, but surely our experience in Staffordshire and the complete confusion over a set of recommendations that have been accepted but cannot be implemented means that we ought to find some way to resolve the whole issue in this evening’s debate, not give the Secretary of State powers to close down general hospitals at random all over the country.
I am grateful to the hon. Member for Stoke-on-Trent North (Joan Walley) for playing an extremely important and constructive role in this whole matter. She has been very supportive, and she makes some extremely important points. We need to look at the whole issue of administration, to which I will come in a few moments.
The Secretary of State’s decision to introduce the addition has given me considerable comfort about new clause 6, which I tabled before his decision, not being necessary. He does not seem to consider himself entirely constrained by the law into only accepting or rejecting Monitor’s recommendations in full; there is clearly room for proposing changes to details while still accepting the main thrust about the dissolution of a trust.
We shall of course need to see the results of the NHS review of consultant-led maternity services. If, as I hope, they are retained as a vital part of the regional health service—together with the level 1 special care baby unit, which serves a much wider area—it is important that finances are put in place to ensure that they are sustainable. I would therefore welcome clarification from the Minister about how the Department of Health now interprets the law.
If the Secretary of State’s decision on Mid Staffordshire demonstrates that the law allows for positive changes to the details of recommendations without Monitor having to go through another lengthy and legalistic process at a time when, as in the case of Stafford, a hospital is in a very fragile state, I welcome that fact, and new clause 6 will be unnecessary. However, if the Minister wants confirmation of the flexibility set out in the new clause, I would be happy for the Government to accept it or something similar.
Finally, to return to the question of trust special administrations, I believe that they are the right way to dissolve the legal entity of a foundation trust, but they are most certainly not the right way to redesign clinical services. That is not to criticise Monitor generally or the trust special administrators in the case of Mid Staffordshire—I believe that they acted within the remit given to them by this House—but we as a House did not get it right either in 2006 or in 2012. I urge a complete rethink, starting today.
I rise to speak to my amendment 30. When the coalition came to office, it made a series of grand promises about future changes to hospital services. The coalition agreement proclaimed:
“We will stop the centrally dictated closure of A&E and maternity wards, so that people have better access to local services.”
GPs were to be put in the driving seat and given the power to shape local services. That was then; now we have a Secretary of State who has not just failed to stop centrally dictated closures but wants to legislate to make them much easier. What a difference four years make.
Clause 119 allows a hospital to be closed or downgraded simply because it happens to be near a failing one. It denies local people a meaningful say in those life and death decisions. It creates an entirely new route for hospital reconfiguration—top-down and finance-led. It subverts the established process in the NHS, which requires that any changes to hospitals should first and foremost be about saving lives, rather than saving money. It puts management consultants, not medical consultants or GPs, in the driving seat. By any reckoning, it represents a major change of policy from the one originally set out by the coalition.
If the right hon. Gentleman is so concerned about issues of financial failure, why did the Health Act 2009, through which the previous Labour Government introduced the regime, allow trust special administrators to consider only financial failure, not care failure, a fact which we are changing in the Bill?
The Minister anticipates me—he has hit the nail on the head. It was a different vehicle. It was a vehicle for financial and administrative reconfiguration, not service reconfiguration. In our view, those important decisions cannot be imposed on people, but should follow an established process. It should begin with local consultation, with local elected members involved in overview and scrutiny having the chance to make challenges, and then it should be referred for independent reconfiguration. That was the previous Government’s established policy, and in my view it is the right way to make changes in the NHS. As I shall explain, that is why I believe that he and his colleagues are spectacularly wrong.
Does the right hon. Gentleman agree that as well as being profoundly undemocratic, the measure is likely to be incredibly counter-productive? Any Government who try to use a trust special administration to impose sweeping change without proper local public engagement will face a barrage of opposition because, as he says, change should be driven by clinical arguments, not imposed top-down.
The hon. Lady is absolutely right. The measure risks damaging, rather than building, public trust in the whole process of changing hospitals. In the end, that is probably the most powerful argument against what the Government are seeking to do.
By any reckoning, the proposal is a major change of policy from the one set out in the coalition agreement; yet there has been no Green Paper, no White Paper, no policy document, no statement to Parliament, no proper explanation of the Government’s intentions and no justification of the extreme measures sought. Instead, on the back of a court defeat, the Secretary of State has rammed a new clause into the Bill, asking the House to give him sweeping powers over the NHS in all our constituencies without even having the courtesy to come to the House to make the argument for the changes himself. How arrogant to expect us just to rubber-stamp the powers, without even coming to explain himself. That really shows the House a major discourtesy.
The fact is that the Secretary of State has not adequately made the case for what he wants to do. Instead, Members are asked to take a leap of faith and to trust him, but that is very hard to do when we see what happened to the people of Lewisham. In standing up to this Government, they won a victory for everyone; without them, we would not be debating clause 119 today. I pay tribute to my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock) and my hon. Friends the Members for Lewisham West and Penge (Jim Dowd) and for Lewisham East (Heidi Alexander), who provided superb leadership when the people of Lewisham felt incredible outrage at their trusted and valued local hospital being prised out of their hands.
I am most grateful to my right hon. Friend. He should also pay tribute to the efforts of all the clinicians, GPs and health workers. It was not just down to the leaders of the community; everybody was united. That was because the decision was not about clinical standards, but was an accountant’s solution to a different problem.
My right hon. Friend makes a very important point. The community came forward, with clinicians standing beside ordinary people on the streets of Lewisham, to say, “This is not acceptable.” My right hon. Friend and others gave voice to that concern and brought it to this House. That incredible campaign gave heart to campaigners everywhere. She was right to put that point on the record.
The Save Lewisham Hospital campaign was terrifically important, but there was also a protection written into law in relation to the trust special administration regime. Does my right hon. Friend agree that clause 119 will today remove that legal protection?
I agree with my hon. Friend. That is the point that the Minister revealed in his intervention. The original power was designed for something entirely different. It was designed to deal with financial failure in a trust. It put in place measures to dissolve and rescue that trust through administrative reconfiguration. It was never intended as a vehicle for back-door reconfiguration across a whole health economy. That is where the Government got themselves into trouble. The fact that they cannot see that now, after the court has told them that they went way beyond Parliament’s original intention, reflects badly on their ability to listen.
I ask the right hon. Gentleman to reflect on what he has just said. Does he really believe that we can make the changes that are necessary, whether in an individual health institution or in a whole health economy, by looking purely at the finances, without looking at the effect that changing the financial structure needs to have on the structure of care delivery, particularly through the delivery of more integrated care, which he and I so often talk about?
This is where the right hon. Gentleman and I differ. I believe that we need to begin by asking whether there is a clinical case for change and build from there. Clause 119 seeks to turn things around. It starts with the financial case for change and the clinical issues come second. The previous Government established a very clear policy, advised by Sir Ian Carruthers, that the clinical case must be front and centre, and that we must build from there. Clause 119 completely subverts that.
The shadow Secretary of State is rewriting history. Under the TSA clause written by the Labour Government, only financial failure could be considered as part of a trust special administrator regime. That is not the case under the changes in the Bill, in which it is about patient care. The Care Quality Commission has a clear role in assuring that patient care. Will he now accept that?
The Minister makes my point again. The powers dealt only with financial failure. That is the point. The Government tried to misappropriate those powers and use them as a back-door route to impose reconfiguration on local communities. That is where they got into trouble. That is why the High Court said that they were acting beyond their powers and breaking Parliament’s original intention in the legislation. In his two interventions, he has made my fundamental case, which is that this is the wrong vehicle for making major changes to hospital services.
My right hon. Friend says that clause 119 is the result of defeat in the courts. That is true. However, the Government capitulated before the decision of the appeal court was known, just after the decision of the High Court in July. My contention—if I am able to catch your eye later, Madam Deputy Speaker, I would be happy to elaborate further—is that the Government knew from the outset that they had no legal power to do it and were just, in the way of all bullies, trying it on until somebody stopped them.
That is why I say, “Thank God for the people of Lewisham.” The Government may well have got away with it if they had picked on a community that does not know how to fight like my hon. Friend’s community. I say in all seriousness that they did a service for every community that is worried about its hospital services. That fight inspired everybody. He is right that the arrogance is breathtaking.
We have not had a White Paper or an explanation of why the Government have tried to misappropriate these powers. In the absence of information, mistrust is building about the Government’s intentions. Why are they doing this? It seems to many people that they would not be driving these powers through today if they did not have every intention of using them to the full. It will not have escaped people’s attention that financial problems are building in the NHS, with the King’s Fund predicting that more than one in five hospitals will end this year in deficit. The Labour party has today identified 32 communities where there are entrenched financial problems and that could be at risk of imposed change if clause 119 passes.
The Minister must answer a straight question: are any plans being worked up in the Department of Health, NHS England or Monitor to begin an administration process in any of those areas or in any other parts of the country if the clause passes? The hon. Member for Stafford (Jeremy Lefroy) made a similar point a moment ago. Indeed, he went further and said that there should not be a further administration process. I hope that the Minister will listen to that point. The House deserves an honest answer to that question today before it can be expected to give its consent.
As a constituency MP, I have seen hospitals that are well supported by their community, and which happen to be in Labour marginal seats, create powerful political forces. As a result, decisions were made by two of the right hon. Gentleman’s predecessors that materially damaged the delivery of secondary health care in my constituency. He will therefore understand why I am considerably happier with the arrangements in the Bill, which take both care and money into account. The Secretary of State will have the powers that he needs to make sense of the delivery of health care so that it is not at the mercy of the kind of decisions that his predecessors took.
Before the hon. Gentleman makes that argument, I suggest that he speaks to the people of Lewisham to see whether they think that the process was fair. I suggest that he goes and speaks to the people of Stafford to see whether they think that the process has been fair. I do not know how he can argue that the new process is better than the original process, whereby there was always local engagement and through which elected Members had a chance to refer matters to the Independent Reconfiguration Panel.
We often debate this matter in the House and we all agree in principle with the concept of reconfiguration, until it is the local hospital in our constituency that is affected. That is the conundrum. What facility does the right hon. Gentleman think the Secretary of State and the Department of Health need to overcome the fact that every MP will defend their local hospital, even though reconfigurations are clearly required?
The hon. Gentleman makes that argument as if there were no changes to hospitals under the previous Government. There was plenty of change, but there is a right way and a wrong way of doing things. I would argue, as I just have, that the previous way of doing things was a better way.
In a moment.
The previous Government made changes to stroke services in London just before the last election. The number of units went down from 12 to eight. That was based on a clinical case for change. We took that argument to local people and said, “Look, it will save lives if this goes through.” That is how the Department can take people with it—by building a case for changing hospital services. Clause 119 threatens to set that back, because it puts finance in the driving seat. That risks losing public trust in the case for change. That is why what we are being asked to endorse today is, in my view, fundamentally wrong.
My right hon. Friend has made his point powerfully. I was going to ask him for an example of how it is possible to make a reconfiguration that is clinically driven. He has given the example of stroke services in London. Another example is coronary services in the north-east, where an overwhelming clinical case was made by clinicians and accepted by the general public.
The difficult thing for me is that when I think back to some of the processes I was involved with—stroke services in London, child care and maternity services in Greater Manchester, changes to A and E across the country, Chase Farm hospital, and other places—those issues were cynically used by those on the Government Benches when they were in opposition, and it was a bare-knuckle fight to save every hospital in the land. That is what they said, whereas we made the case for change because it would improve patient safety. I would not change my tune if I was in opposition; I still believe that hospitals need to carry on changing, but as I said, I will not do that by imposing changes on local people. The right way is to explain why, and take people with us.
Let me give my right hon. Friend another example. I and my hon. Friend the Member for Lewisham West and Penge (Jim Dowd) both supported the closure of a local children’s hospital, and its services were moved to Lewisham hospital. When the trust special administrator looked at Lewisham hospital, children’s services were not even considered.
Government Members would do well to listen to my right hon. Friend because she followed that whole process in detail. If people listen carefully, she is saying that clinical evidence took second place, and the process was driven by management consultants, not by clinicians. Government Members told the House that doctors would be in charge from now on, but that was not the experience of my right hon. Friend or the hon. Member for Stafford. That is why this proposal should not be accepted by any Member of the House.
My right hon. Friend says that the propositions were made by management consultants. He will be aware that those consultants were from PricewaterhouseCoopers, which was Northern Rock’s auditor and did not notice that it went broke, and KPMG, which was the auditor for Halifax Bank of Scotland and Bradford and Bingley, and did not know that they went broke. They are probably giving bad financial advice as well as clinical advice.
It is always dangerous to wander into territory that is not necessarily our own, but what happens—or is likely to happen—here today, has an awful habit of happening up in Scotland tomorrow. As a consequence of the fact that the Scottish Government are perhaps the most centralist and draw in all their powers, what representations, if any, has my right hon. Friend made to his equivalent in the Scottish Parliament to find out exactly how they would go about the same business?
I speak to my counterpart in the Scottish Parliament on a regular basis, and we are clear that this proposal is not the way to take people with us or build support for change in the NHS. This is a way to alienate people and damage public confidence, and that is why it is so dangerous.
I will make some progress but I will give way to the hon. Gentleman before the end of my speech.
Let me set out more of the background, because the Minister raised it a moment ago. In 2009 I took proposals through the House to create a process that could be used in extremis to deal with a trust that had got into serious financial problems. That was a financial and administrative vehicle, not a vehicle for widespread service change across the health economy. That is why the High Court was quite correct in upholding Parliament’s original intention when it accepted the case of the people of Lewisham against the Secretary of State, and threw out his plan to downgrade a much-loved and successful hospital. At that point, common decency would have suggested that the right response to the reverse in court would have been to listen to the court and bow down gracefully. Instead, it appears for all the world as if in a fit of pique, the Secretary of State is changing the law to get his way because he can. Imagine the outcry if someone caught breaking the law could simply come along and change it to their satisfaction. We would not accept that for burglars, and we should not accept it for politicians.
The right hon. Gentleman is being very generous in giving way. He makes the point that, during his time in office, the regime was very limited. In the interests of consistency, I point out that page 6 of his own impact assessment for the TSA regime in May 2009 states:
“NHS Trusts…are not free-floating, commercial organisations …State-owned providers are part of a wider NHS system.”
That directly contradicts what the right hon. Gentleman has just been saying.
Is the Minister listening to the debate and to what I am saying? I have explained to him carefully that that was a vehicle for financial and administrative reconfiguration. Yes, a neighbouring trust might have had to come and help with a solution to carry on with the administration and the running of that trust. That is the point, and that is what he has just read out. It was never a vehicle for service change—I do not know how many times I can make that point to the Minister before he actually listens.
I will come on to that point, but the CQC had existing powers on care failure, and powers to move more quickly than clause 119 provides for. Adequate powers were in place to deal with the point the hon. Gentleman has just made.
In truth, it is arrogance in the extreme for the Government to be coming along today—and worse, it seriously risks damaging public trust in how change in the NHS is made. That will be the real loss if the clause is accepted. It threatens to destroy any public faith in a sense of fair process governing these crucial decisions, and any prospect of cross-party consensus on a way to make changes to hospital services.
Making changes to those services is about the most difficult decision that politicians have to make, but the fact is that hospitals need to change if we are to make services safer and respond to the pressures of an ageing society. We did not shy away from that in government, and we do not say something different now. However, there is a right way and a wrong way of going about such things.
The Government’s answer—to use a brutal administration process to take decisions above the heads of local people—is a spectacularly wrong response to a very real problem, and precisely because those decisions arouse such strong emotions, we must find better ways of involving people, not shutting them out. If people suspect a stitch-up, and see solutions imposed from on high, they will understandably fight back hard. Does the spectacle of tens of thousands of people marching in Stafford or on the streets of Lewisham not give Ministers pause for thought that this new approach might seriously set back the goal of better public engagement in the NHS?
I am most grateful to the right hon. Gentleman and I have listened extremely carefully to what he has said. Wycombe lost its A and E under his Government. Does he seriously suggest that that change was not imposed on the people of Wycombe, or that they were listened to, engaged and approved of the change?
I am saying to the hon. Gentleman that the previous Government had a process at the end of which was an independent panel—the Independent Reconfiguration Panel—to take a decision on whether a proposal was right or wrong in the interests of patient safety, which was the driving principle. I will defend the changes we made to improve services. I have given him the example of stroke services in London. The Opposition are not against making change in the NHS, but we are emphatically in favour of local people in areas such as his having the ability to have their say in the process. Clause 119 seeks to drop solutions on local people from on high.
Our policy was set out in the Carruthers review, commissioned by Patricia Hewitt in 2006, which concludes:
“Reasons for change should be built on a clear evidence base of clinical and patient benefits.”
That principle guided the Darzi review towards the end of the previous Government, which put quality centre stage. The Darzi review influenced the plans for stroke services in London and others, and the difficult changes we planned to make in south-east London before the last election. A detailed consultation, “A Picture of Health”, had brought together a case for change to how services were delivered across the area. It was given formal approval before the election, but was subject to the Government’s moratorium after it.
In the space of a few years, Ministers have gone from campaigning outside hospitals to save services to campaigning for extra powers to close them down without debate. That will leave the NHS more top-down than ever before, with the patient and public voice utterly marginalised.
I want to deal with whether clause 119 gives powers to shut down services for clinical reasons. The fact is that the CQC already has power to take urgent action to shut down unsafe hospital wards or services. Nothing in the clause allows the failure at a single trust to be dealt with any quicker than it was previously. In fact, the clause extends the period the TSA can spend on drafting the report, elongating what was designed to be a very quick process.
Opposition Members are clear that the clause adds nothing, but instead takes away the patient, public and professional voice, and establishes the dangerous principle that changes to hospitals can be financially and not clinically driven. We will vote for amendment 30 to delete the clause, but we will also back new clause 16, tabled by the right hon. Member for Sutton and Cheam (Paul Burstow), which returns a degree of power to local people.
I am sorry that the Secretary of State is not here, but I ask the Minister to pass on my message to him. The NHS does not belong to him to chop and change as he pleases. It belongs to everyone. He would do well to remember that. The way to achieve change is to involve the public early on, give them a meaningful say and build confidence in the clinical case for change. Clause 119 sets back that cause and will damage already fragile confidence in hospital reconfiguration. In the end, that is the most powerful argument against it. By shutting the public out, the measure risks creating a backlash against change in the NHS when it needs to change to survive. I appeal to Members on both sides of the House to think about that and to put constituency before party when voting on this crucial measure.
I have left instructions for my body to be left to Oxford university medical school, partly because there is quite a lot of it, but also because I hope that, in that way, I can demonstrate that engraved on my heart are the words, “Keep the Horton General”. When the right hon. Member for Leigh (Andy Burnham) was Secretary of State for Health, my local general hospital was threatened with the downgrading of its maternity and children’s services. We went to the health overview and scrutiny committee, which referred matters to the independent reconfiguration panel. As a consequence, we now have consultant-delivered children’s services and a consultant-led maternity service. I, too, am slightly disappointed that the Secretary of State is not here to listen to the debate, because I am concerned about the proposals as someone who has had to contest the downgrading of hospital services.
I have some questions to put briefly to my hon. Friend the Minister. The “Dear colleague” letter circulated to us gives the impression that the powers in the proposals will be used only in exceptional circumstances, when services are clinically unsafe or when a trust is financially insolvent. However, hon. Members know that many trusts will end up with a deficit this year. I need the Minister’s assurance that the measures will be used in truly exceptional circumstances. They have been used only twice so far, in Mid Staffordshire and Lewisham. However, if TSAs are to be used simply if a trust moves into deficit, rather than going into a process of health overview and scrutiny committees and the Independent Reconfiguration Panel, that is a matter of great concern.
I hope I can reassure my hon. Friend on that now, before my closing remarks. The right hon. Member for Leigh (Andy Burnham) did his best to conflate routine service reconfiguration, which should be clinically led in the best interests of patients, with those in extremis measures, which have been used only twice in five years. They were used only in circumstances of extreme hospital failure when patients’ lives were at risk. There is a clear distinction. I hope my hon. Friend finds that reassuring.
I do find that reassuring, but I have a final question that I hope my hon. Friend will address when he winds up the debate. There has to be a trigger, but what will the trigger be for these extreme circumstances? In other words, what distinguishes a proposal for hospital reconfiguration, in which local people can go to the health overview and scrutiny committee and the Independent Reconfiguration Panel, from a crisis situation, such as occurred in Mid Staffordshire and may have occurred in Lewisham? We all have local hospitals and we all need to be able to explain to our constituents how we might find ourselves in the circumstances of these short-cut situations. We really need Ministers to make it clear to the House that these powers will be used in extremis, and I hope that my hon. Friend will address that point when he winds up.
I agree strongly with the sentiment expressed by the hon. Member for Stafford (Jeremy Lefroy) that no community should be subjected to the tender mercies of the trust special administrator regime. It is brutal, harsh, unfair, unreasonable and impervious to local knowledge or opinion.
Following the way in which most reports are presented, I shall start with my executive summary—my understanding of what happened in the South London Healthcare NHS Trust. The right hon. Member for Banbury (Sir Tony Baldry) was wrong. The special administrator was not appointed to Lewisham hospital. That is the very heart of the matter. He was appointed to the South London Healthcare NHS Trust, which is the adjoining trust, then comprising the Queen Elizabeth hospital in Woolwich, the Princess Royal university hospital in Orpington and Queen Mary’s hospital in Sidcup. He then decided to take a well-functioning, well-respected, well-performing and financially sound institution, in the shape of Lewisham hospital, and use it to deal with problems elsewhere.
In an Adjournment debate 18 months ago when the issue first occurred, I used the simile that it was like the administrator for Comet advising that the best thing to do, in the interests of Comet, was to close down Currys. That is exactly what the trust special administrator did.
If the hon. Gentleman believes that it is important that local people are listened to, would he care to comment on the decision by Labour’s Health Minister in Wales, Mark Drakeford, to shut down or downgrade Withybush hospital in west Wales?
The short answer is no, I do not wish to comment.
Lewisham was stitched up from day one. In 40 years as a public representative I have rarely come across anything so disreputable, so devious, so mendacious, so dishonest and so duplicitous as the process that was employed regarding south London health care. It started on 13 January 2012 when the then Secretary of State, the right hon. Member for South Cambridgeshire (Mr Lansley), now Leader of the House, laid an order before the House entitled the South London Healthcare National Health Service Trust (Appointment of Trust Special Administrator) Order 2012, alongside an explanatory memorandum that included the case for applying the regime for unsustainable NHS providers—the first time it had been done. There was also an additional order that extended the consultation period for the trust special administrator. As I say, it was called the South London Healthcare National Health Service Trust. When the administrator got on with his work and produced a report, it was entitled, “The Trust Special Administrator’s Report on South London Healthcare NHS trust and the NHS in South East London”. Parliament did not authorise an inquiry into the NHS in south-east London, but, by that cover, they attempted to shut down a perfectly well-functioning district general hospital in Lewisham because it was administratively more convenient.
On 16 July, Mr Matthew Kershaw was appointed as the trust administrator. I had numerous dealings with Mr Kershaw. Personally, I found him to be a perfectly reasonably, sane and sensible person, but he was commissioned by the Department to do a job. His priority, quite plainly and self-evidently, was not to decide what was in the best interests of the people of south-east London, but to do the bidding of Richmond House.
May I just clarify my concern that administrators can reach out, far beyond where we initially thought they could, into such areas as community hospitals, of which there are several in my constituency? The NHS is in such a financial mess, and getting worse, that these powers will inevitably provide a temptation to interfere more, and the Secretary of State will be able to close hospitals against the will of local people.
I accept absolutely the hon. Gentleman’s point. The wording of the clause is such that the powers are virtually unfettered—they are untrammelled. It does not say that an administrator can make recommendations about neighbouring trusts or nearby trusts; it says that they can make a recommendation about any trust anywhere in the entire health economy. It will be a threat to every single Members’ community willy-nilly, because it will be the new norm.
I will come on to what Lewisham experienced previously, but there used to be clinically led reconfiguration panels. This Government seem to have eschewed them. They are difficult and complicated, but they need to be so because this is a premier public service that matters so much to people in every part of this country. They are eschewing that in favour of an administrative route that will give them untrammelled powers.
I thank the equally gallant hon. Gentleman and a neighbouring Member of Parliament. I, too, have never understood why Lewisham hospital had to be involved in this exercise, and I still fail to see why it has to suffer as a consequence of the failure of other hospitals that, although they are outside my constituency, affect my constituents deeply.
The hon. Gentleman is right. We have discussed the impact of this on our constituents many times.
I will try to shed some light on why Lewisham was put in the firing line, and why such administrative vehicles are so dangerous and antithetical to good health care. On 24 July 2012, the then Secretary of State invited the Members for Bexley, Bromley and Greenwich to a meeting in his office. That is entirely logical, because South London Healthcare Trust covers Bexley, Bromley and Greenwich. Strangely, he also invited the Members for Lewisham. My right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock) was unfortunately unable to attend, but my hon. Friend the Member for Lewisham East (Heidi Alexander) and I did attend.
I thought this was rather strange because if they were looking at the south-east London NHS, why not invite the hon. Members who represent Southwark and Lambeth, the other two boroughs that comprise south-east London? I think the answer is that the services provided principally in Southwark and Lambeth are provided by foundation trusts in the shape of King’s, and Guy’s and St Thomas’. Various people were there, including my right hon. Friend the Member for Greenwich and Woolwich (Mr Raynsford), my hon. Friend the Member for Eltham (Clive Efford) and the hon. Members for Beckenham (Bob Stewart) and for Old Bexley and Sidcup (James Brokenshire); there were probably some others as well. There were various NHS officials including David Flory, who at the time—I do not know where he is now—was a deputy chief executive, and a woman whom I later discovered to be Hannah Farrar, who played a considerable role in the work of Mr Kershaw as the administrator and came to be roundly despised right across Lewisham for her efforts.
I remember them saying repeatedly—almost as if it were some kind of religious incantation—that “the solutions to the problems of South London Healthcare NHS Trust cannot be found solely within South London Healthcare NHS Trust.” I woke up at that moment to the notion that they were after Lewisham again and that that was the only reason we had been invited. At the margins of every constituency, people can be treated in a neighbouring health area rather than the one they are currently in, so there would be some impact there. They were signalling the fact that it was going to be a back-door reconfiguration, although the Secretary of State, in announcing the original order, said that it was not a back-door reconfiguration. In football parlance, that is the same as getting your retaliation in first. By saying that it was not going to be a back-door reconfiguration, that is exactly what it was going to be without any of the four so-called tests that the Government have much trumpeted but never used.
The key element of the four tests is the consent of local commissioners. The summer reshuffle gave us a different Secretary of State but he accepted with alacrity and enthusiasm the task that his predecessor had set out. As my right hon. Friend the Member for Leigh (Andy Burnham) mentioned, just four or five years previously Lewisham had been through a clinically led process of reconfiguration, called “A Picture of Health.” It found that there was an incontrovertible case for Lewisham to remain as a fully functioning district general hospital and for the formation of the South London Healthcare NHS Trust with the three hospitals that I have mentioned. That report was independently vetted by Professor Sir George Alberti, professor of surgery at King’s College, London, and was found to be sustainable and reliable. The decision on how health care is provided in this country should be made by a clinically led process assessed by a clinician.
For some reason, NHS London, as it once was, always had the idea that there should be only four A and Es in south-east London; St Thomas’ over the river, King’s, the Princess Royal in Orpington and the Queen Elizabeth in Woolwich. It did not want Lewisham; I do not know why it has been obsessed with that for years. It obviously saw the opportunity to dust off that idea—despite the fact that Lewisham had only recently been through a clinical reappraisal—and tried to achieve its goal.
It set out a timetable which, as the hon. Member for Stafford will agree, was pretty brisk to put it mildly for setting up the TSA South London healthcare. There were 75 working days between 16 July and 29 October 2012 for the provision of draft reports. Consultation was to run between 2 November and 13 December 2012 and the final report was to be presented by 7 January last year, with the Secretary of State making a decision prior to 1 February. He actually made the decision on 30 or 31 January. The whole thing from beginning to end was to take five or six months.
I will describe briefly how the TSA process works because, let us not forget, if this clause goes through, this could be coming to a community near you. They—and I say “they” because they come mob-handed, bringing all their own clinical advisers—are almost like the Moonies: they have a mission, a task, to bring understanding to those who are less well endowed with it than themselves. All the advisers are imported and paid for, and, together with the consultants—who, as was pointed out by my right hon. Friend the Member for Leigh, are management consultants, not clinical consultants—they set about their task.
One thing that amazed me was the astounding rate at which they were able to get through public money. It was absolutely phenomenal. The consultants—as we were told by my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson), they were mainly from KPMG and PricewaterhouseCoopers—consumed over £2 million of the £5 million cost of the TSA process. The people to whom they were least likely to listen were the local clinicians, whether GPs or hospital doctors, and the local residents and patients. Those people were invited to the consultation groups—although not to the public meetings—but they were then told what they could and could not discuss. If they tried to discuss anything that was not on the facilitators’ list, they were threatened with expulsion. If that is the consultants’ idea of public engagement, it does not commend itself much to the public.
I want to ensure that my hon. Friend does not end this part of his speech without reminding the House that one of the things that those involved in the TSA process intended to do was sell off half the land occupied by the buildings of Lewisham hospital—and that was not in the public consultation document.
It is with some trepidation that I must disagree with my right hon. Friend. In fact, the figure was closer to two thirds of the estate. The scheme was so well engineered that they left the bit that we were keeping, allegedly, for whatever was going to be there—a glorified first aid post—completely landlocked. There was no access apart from via the River Ravensbourne, which is not the mode of transport favoured by most people using Lewisham hospital. Oh yes, it was all worked out well beforehand.
The public meetings following the publication of the draft report were, of course, rather more difficult to control. People were able to ask questions, although they did not receive many answers. Those who were presenting the case on behalf of the trust special administrator did not seem particularly receptive to what was being said, although on occasion, when they came up against a difficult objection, they would say “South London Healthcare NHS Trust is losing £1 million a week: £1 million that is not being spent on health care for patients.” We know that—it is self-evident—but when they were told “That is not the problem of Lewisham hospital”, and asked “Can you not understand that?” , the answer was no, they could not understand it.
That was followed by a little homily of the kind much beloved of some people: “If your domestic budget was being overspent week after week, you would need to take action, would you not?” Naturally everyone agreed, but a woman who attended the public meeting at Sydenham school said to Mr Kershaw, “If your domestic budget was being overspent, of course you would have to do something about it, but that would not include breaking into the house of the people next door and nicking all their stuff”—which is what was being proposed in south London by the special administrator.
After attending numerous meetings with Mr Kershaw and his associates, and at the other south London hospitals, I eventually concluded that—recognising that those who would be worst affected by their proposals were hardly likely to be very receptive to them—they automatically assumed that there would be opposition and hostility, and automatically factored in and discounted it, saying “Of course they are going to object to the changes, but we have a task and a mission to pursue.” The whole process was condescending, impenetrable and antagonistic. The special administrator and his acolytes and accomplices had a mission, given to them before they ever left Richmond House, which they were determined to deliver. They already knew the answer, and they were not going to bother to do anything other than go through the motions.
We owe thanks to Lewisham council, to the Save Lewisham Hospital campaign and, amazingly enough, to the High Court and the Appeal Court, whose three judges—Lords Justices Dyson, Underhill and Sullivan—within 24 hours unanimously overturned the Secretary of State’s case that he had the powers to do this. As I have said, the Secretary of State had already capitulated by then. The Government knew from the outset that this was legally questionable. They knew they did not have the powers to behave in the way they were behaving, but they basically just said, “Who’s going to stop us?” I will tell you who stopped them: the people of Lewisham and their supporters and the High Court. That is who stopped them.
This clause will make occurrences like that more, not less, likely. More communities across the country are going to be threatened and will come under the tender mercies of the TSA process.
My right hon. Friend is right; that is precisely the point and that is precisely what this Government intend. I have absolutely no doubt about that; their writ will run whether people want it or not.
After all that, what is the current position of South London Healthcare NHS Trust—after that £5 million? Princess Royal in Orpington is now an adjunct of King’s College hospital. The TSA was quite happy to say the whole thing should be passed lock, stock and barrel to King’s. There was a rather unseemly squabble about the size of the bung King’s should get for taking on Princess Royal, but there was no specification about the services that should be provided there or anywhere else; that was entirely up to King’s. Queen Mary’s, which of course is not a fully functioning district general hospital, is now being managed by Oxleas NHS Foundation Trust, the primary care trust in that part of the world. Again, the TSA made no recommendations about what services, or what range of services, should be provided there.
Queen Elizabeth, which, of course, is the biggest problem in what was South London Healthcare NHS Trust, has now merged with Lewisham university hospital in the Lewisham and Greenwich NHS Trust. It is now managing a very difficult proposition; I do not dispute that for a moment. I have my doubts about whether that is the best move for the people of Lewisham, but I understand why it has been done. Yet, the board at university hospital Lewisham was prepared to enter into that agreement before the TSA even set foot in the area. So what we have now in south-east London was entirely possible by rational argument and reasoned consent without the need for the TSA and all the disruption, anguish and distress he and his acolytes have caused. I say to Members voting on this tonight, “Remember; you may not want to visit a TSA and I don’t blame you, but that won’t prevent them from visiting you if this clause goes through.”
I start by acknowledging the receipt of a petition handed to me yesterday, containing 159,000 signatures collected by members of 38 Degrees, expressing their concerns about the matter we are debating today. I know that a great many Members will have received e-mails about that and will have their own opinions, and I want to discuss the issues.
Will the right hon. Gentleman refresh my memory? Is that the same pressure group that a few years ago was saying that the NHS was going to be privatised, which is completely untrue, and which a couple of months ago was saying that it was about to be silenced by some Bill the Government were pushing through yet is now very noisily campaigning once again? Surely this cannot be the same completely unreliable group of left-wingers with links to the Labour party, can it?
That was a lot of accusations and I will leave 38 Degrees to answer for itself. All I wanted to do was formally announce that it had given me this petition because, out of conscience, I thought that was the right thing to do. I want now to share my concerns about, and view of, new clause 16.
First, however, I want to reflect on what the shadow Secretary of State, the right hon. Member for Leigh (Andy Burnham), said. He made the point, on which I think there is consensus, that we should not reach the stage at which a trust special administration process is embarked on, and that we need to take every possible step to avoid that. That means that we must learn the lessons from the successful reconfigurations and reorganisations. Unfortunately, there are too few successful reconfigurations that do not lead to people mounting the barricades to oppose the change. The right hon. Gentleman referred to the example of stroke services, but such successes are few and far between. Part of the reason for that is that, historically, the NHS has not been good at engaging with its population in a way that brings them with it and gives them a feeling of being jointly involved in the process. People need to feel part of a shared endeavour and that their health services are fit for their community. That is what we need to instil in the process if we are to avoid the need to use the power that the Government are proposing.
I accept that no NHS organisation is an island. Hospitals sit in complex webs of health care, and changes to one hospital will have knock-on effects on those around it. It is therefore right, when a trust is deemed to be failing administratively, financially or clinically, that the consequences of decisions about its future should be set in that wider context. I said as much in Committee. This is what clause 119 sets out to achieve.
I also expressed concern in Committee about the arrangements for engaging the public. I suggested that local authorities, which have strategic and scrutiny responsibilities in health, should be fully engaged in the trust special administration process. I am pleased that the Government have accepted that, and tabled amendments to clause 119 in order to achieve that. However, while local authorities have a role in giving voice to the wider public interest—indeed, in Lewisham, the local authority was critical in regard to the legal challenge—I believe it is essential that the views of the public are represented in other ways as well. When the TSA process is triggered, it should be pervious to those views. That is a role for the healthwatch organisations, which this Government put in place a year or so ago. They are well fitted to discharge that role, and I am pleased that, as a result of my representations, the Government are tabling amendments to add such a provision to the Bill.
When the trust special administration process was first introduced in 2009, Labour Ministers told the House that it was to be used only as a last resort, and that must remain the position of the coalition Government today. I believe that that is the case.
The hon. Gentleman anticipates my next point. It is far from clear how the judgment should be made that a trust is failing. In my view, the gateway to the process should be a narrow one, and it should be jealously guarded. My concern is that so many trusts are sitting on top of private finance initiative debt, and that hospitals could be at risk as a consequence. That debt amounts, over time, to about £70 billion; a significant burden has been hung around the neck of the NHS. I want to ensure that we have processes that can recognise and manage that without tipping organisations into crisis unnecessarily.
Does the right hon. Gentleman agree that trust special administrators coming in and making recommendations, as they have done in the case of Staffordshire, can completely undermine the hospitals that are being asked to take over the failing hospitals? Such a process brings about no resolution to the problem at all.
I think the hon. Lady will find some sympathy for that view.
Local commissioners and trusts should be responsible for sorting out difficulties that could lead to a failure. Again, it needs to be clearer what happens at the pre-failure stage, and Ministers need to work with NHS England and Monitor to set out the pre-failure regime so that it is crystal clear what needs to happen to avoid triggering the TSA process. It might be argued, as Labour did in 2009, that when an NHS trust fails, there needs to be a fast way of making decisions about its future. Those decisions might have knock-on effects, but that should not mean that one trust’s failure triggers a wholesale re-engineering of local health services without proper checks and balances and accountability. Decisions about local health services should be taken by clinical commissioning groups.
I have tabled new clause 16 because I believe that two principles established by the Health and Social Care Act 2012 deserve to be protected. The first principle is—
If I may develop my point, I shall be happy to give way to the right hon. Gentleman.
The first principle is that, in the absence of failure in the arrangements set up by local commissioners, decisions about what services should be provided at an NHS trust or an NHS foundation trust should be taken by local commissioners working within their local health economies, and should not be foisted on the local NHS from outside. This autonomy principle is reflected in the absence of any general right for the Secretary of State or NHS England to direct local commissioners about the discharge of their functions. The previous position under the Labour Government was that the Secretary of State could issue directions to primary care trusts. We did not replicate that in the 2012 Act.
The right hon. Gentleman has made an outstanding contribution to proceedings over the past couple of days and I pay tribute to him for that. He was centrally involved in the development of coalition health policy after the last election. Does he agree with us that clause 119 represents a major departure from some of the statements that were being made by him and by others in this House when the Health and Social Care Act was going through?
I am grateful for that intervention. As I develop my argument, I think the right hon. Gentleman will hear where I sit on the spectrum of viewpoints. He may be interested in what I am about to say.
The second principle is that commissioners who have successfully managed the quality and demand in their area should not have decision making taken away from them. Decision making can be removed from the trusts that are failing, and this may mean that commissioners of such bodies have to accept unwelcome changes. But local decision making should remain in place where a local commissioner and provider are working successfully together. Thus the first purpose of my new clause is to seek to place with the commissioners of services at NHS foundation trusts and NHS trusts that are not in special administration the same decision-making powers as are given to commissioners of services of NHS trusts that have been found to fail and are in special administration.
At present the Bill creates two classes of commissioner. Where there is a trust in special administration, the clause provides that commissioners of services at that trust are able to define the services that the failing trust should continue to provide. The commissioners are thus entitled to ring-fence certain services that they feel must be preserved for the benefit of local patients. They are, in effect, given a veto on the extent of changes that can be made to a troubled trust because of the statutory objectives set for the administrator. The commissioners are thus able to act to preserve local services.
However, the present text of section 65DA does not give the same rights to the commissioners of adjoining trusts. They are relegated to second-class status. Clause 119 as drafted envisages that a special administrator is entitled to make recommendations for changes at trusts other than the trust in special administration which are not approved by local commissioners. In its present form clause 119 does not provide that the commissioners of the services at trusts other than the trust in special administration enjoy the same veto over the extent of any changes as the commissioners of a trust in special administration. There is a fundamental lack of parity of esteem between the different organisations and the different commissioners in a locality. It is that inequality that I am seeking to change.
I am grateful to the right hon. Gentleman. Will he explain to me whether, if his new clause had been on the statute book at the time of the south London TSA process, only Lewisham clinical commissioning group would have had a veto over services at Lewisham hospital that it was proposed to change, or whether commissioners of services at Lewisham hospital, such as Greenwich, Bexley or Southwark CCGs, would also have had such a veto? Exactly who is he talking about?
What I am saying is that in a situation where trusts that are not themselves in special administration are being brought into the process, the commissioners of those trusts should be given equal standing in the process. At present they are not given the same standing as the commissioner of the failing service. The commissioner of the failing service is given a greater role in determining the outcome of the process. I want to ensure that if we use this process in future, in the way the Government intend, there is a parity of esteem between all commissioners, representing the clinical interests in the area and the interests of patients.
Forgive me, but I will not give way. I want to ensure that others have a chance to debate the clause and my new clause, and I need to make some progress.
Why therefore should responsible commissioners who have worked successfully with their local NHS trusts to produce a sustainable set of NHS services be prejudiced by the failure of a commissioner who has not secured such an outcome? Clause 119 risks penalising responsible co-operation between commissioners and providers, and it gives a veto to the potentially irresponsible. My new clause removes that inequality by providing that commissioners of services at an NHS trust that is affected by any proposed changes should be placed in the same position as the commissioner of those services covered by the administration process.
Secondly, my new clause makes it clear that, if the special administrator issues a final report recommending changes at a trust that is not in special administration, the decision makers to decide whether those changes ought to be accepted should be the commissioners of services at the successful trust and not the trust special administrator, the Secretary of State or Monitor. Clause 119 envisages that the TSA can recommend changes at an NHS foundation trust which is not in special administration, but fails to provide any mechanism to put those changes into effect. It follows that the recommendation from the TSA is left hanging in the air. The TSA cannot impose decisions on a reluctant CCG, because the Secretary of State is unable to direct CCGs and cannot, through Monitor, require changes to the services by the foundation trusts.
When making submissions to the Court of Appeal in the Lewisham case, leading counsel for the Government accepted that chapter 5A of the Health Act 2009 was a purely procedural statute. Chapter 5A does not provide any additional powers for the Secretary of State or Monitor. It simply defines the process that must be followed before existing powers may be exercised. The TSA takes over the role of the board of the trust in administration, so that it can make decisions about that organisation. The Secretary of State and Monitor have powers to dissolve NHS bodies, but the TSA does not have a role with regard to any trust that it is not administering. There is therefore a fundamental problem with clause 119 in that particular case, and that is what my new clause attempts to address.
I am proposing a new clause that would make it clear that a TSA report is to be provided to commissioners of services at any affected trust who are the decision makers as to whether they wish to accept or reject the recommendations. They are the relevant decision makers —in other words, the local commissioners.
I will conclude, because I want to ensure that there is time for other people to speak. I am sure that the hon. Lady will make a speech. If she comments on my remarks, she might be gracious enough to allow me to intervene to clarify if she is still unclear.
Obviously, if the local commissioners decide that they are minded to accept recommendations, local people who use services provided by trusts that are not deemed to be failing should not have changes foisted on them without proper consultation.
In conclusion, I am grateful to the Government for what they have already done by including Healthwatch and local authorities as consultees in the process, but we need to go further to ensure that all the commissioners who we in this House, under the 2012 Act, said should be the primary decision makers in arranging health care should be treated the same and have a genuine say in any trust special administration process. That is an essential safeguard, but it is not clear at the moment; it needs to be clear in the future, so that we ensure that this process works in the interests of patients and the local public.
I want to do two things in my contribution: first, to speak in support of amendment 30, which would delete clause 119; and, secondly, to make a few comments on new clause 16, which was tabled by the right hon. Member for Sutton and Cheam (Paul Burstow). I would be content to support the right hon. Gentleman’s new clause, but I have some reservations and some questions that I would like his assistance in answering.
I do not want to rehearse everything that has been said about the case of Lewisham and the trust special administration process that took place in south London. My hon. Friend the Member for Lewisham West and Penge (Jim Dowd) summed up well the feelings of frustration and anger that existed in Lewisham at the time. Like him, I do not wish to inflict that process on other communities across the country.
I concur with everything the shadow Secretary of State said about the TSA regime being the wrong starting point for a discussion of how and where local health services are provided. Such a regime starts with the need to save money, and all the members of the public I spoke to saw through it straight away. They asked, “Why on earth is this not driven by what is in the best interests of people’s health, as opposed to having the starting point of needing to save money?” Such an approach breeds cynicism and scepticism among the public from the very outset.
In my experience, the TSA process also leads to rushed and shoddy work being done by those who are carrying it out. As I said on Second Reading—this is worth repeating—in Lewisham the special administrator suggested that his proposed changes to the whole health economy of south-east London would cost £266 million and would take three years to implement. His projections were shown to be catastrophically wrong: it would cost twice as much and take twice as long.
The process and the consultation were atrocious. I stood outside a public meeting where 100 people were trying to get into a packed hall in which there were already 300 people. The police had to be called to escort the trust administrator into the room.
The experiences in Stafford and in Lewisham have probably been very similar. Multiple public meetings were run in a chaotic and haphazard fashion, and if I had not intervened in this particular meeting in Catford to try to calm the audience down and enable them to ask questions, I am not sure whether it would have been able to proceed.
We have heard about the quality of the consultation in Lewisham. The fact that the online consultation did not include a direct question about the closure of accident and emergency services and maternity services at Lewisham hospital beggars belief. My constituents were asked whether they agreed that acute services should be consolidated on four instead of five sites in south-east London. It is no wonder they came to me asking, “Where is the question about Lewisham A and E?” As my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock) said, the consultation contained no direct question about the sale of two thirds of the land. There was a question about the sale of land at the hospitals that were placed in administration, but there was no such question about Lewisham hospital. We must be under no illusion that if clause 119 had been on the statute book at the time the administrator made recommendations about Lewisham hospital, its full A and E, its full maternity service and its excellent paediatric unit would now be closing.
Many people have said to me that I am somehow against change in the NHS, but nothing could be further from the truth. We have already heard about the successful changes to stroke care in the capital. They did not come about overnight, or over 45 nights or 75 nights; they came about as a result of clear and calm consultation and communication with residents. They came about as a result of clinicians, not accountants, being in the driving seat. The public rightly care about their NHS and the local health services to which they have access. As I said on Second Reading, that is because people experience the best and the worst moment of their lives in our hospitals. It is right that they have their say in a process that is fit for purpose, but an extended and augmented TSA process, which the Government propose through clause 119, is not the right way to take decisions of such significance and which excite such public interest.
The Government have tried to spin clause 119 as some sort of clarification of existing policy. That is nonsense. It is a direct result of the Lewisham hospital case that was heard in the courts. We know that the previous Government produced guidance that said that the TSA regime should not be used as a back-door approach to reconfiguration. This is a fundamental change in policy. It removes the legal protection that currently exists for successful hospitals located adjacent to failing hospitals that have been placed into administration.
The Government also claim that such a process would be used only in exceptional circumstances, but how do we know how often it will be used in future? I press the Minister to respond to the point made by the shadow Health Secretary about whether he has had any discussions with his officials about other hospital trusts being placed into administration and about applying the unsustainable provider regime elsewhere.
That is useful. I am sure that Members are grateful to hear that from the Minister, but we know that there are many trusts in serious financial difficulties. Given the huge pressures on the NHS at the moment, this regime could be applied in many more places in the future. The truth of the matter is that the TSA regime will be used as a steamroller to force through the closure and downgrading of hospital services with limited public consultation, using a process that is set up in a way that creates public scepticism and mistrust from the word go.
The Government want to change the law to allow them to do elsewhere what the courts told them they could not do in Lewisham. As I have said already, I would not want to inflict that chaos on anyone else. It damages trust not only in NHS leaders who are meant to be leading change but in our democracy.
I wish to say a few words about new clause 16. As I have already said, I will vote for the new clause if the right hon. Member for Sutton and Cheam pushes it to a vote this evening, because it offers a limited improvement on clause 119. None the less, it raises its own set of questions. The new clause leaves clause 119 in the Bill, so it still allows an administrator appointed to a failing hospital trust to make recommendations about services provided at successful neighbouring hospitals, which are not part of the trust to which the administrator has been appointed.
As I understand it, the right hon. Gentleman’s new clause would give power to the commissioners of such services at the affected hospital outside the failing trust to have some sort of veto over whether the recommendations go any further. It suggests that if the commissioners of services at the affected hospital, such as Lewisham, agree with the changes being proposed, full public and patient consultation would kick in, consistent with the normal levels of communication and engagement that are required in full-service reconfigurations. If the local commissioners disagree with the recommendations, they can, if I understand his new clause correctly, call the process to a complete halt. I can see why that has some attractions, because it seems to provide some kind of brake on the all-encompassing powers of an administrator, and for that reason I am content to support it. However, it does not provide an entirely coherent solution to the problem that lies at the heart of clause 119.
The hon. Lady is helpfully setting out her concerns and her support for the new clause. The first proposition must be that we should never even get to that stage, so we need to have much better processes in place beforehand, and I hope that we will hear something about that from the Minister. More importantly, the commissioners, all of whom have a stake in a local health economy—the different trusts—ought to be around the table to sign off on what a TSA will actually do.
I am sorry to be down in the detail of the new clause, but I think that it is very important, not least because many of us have received hundreds of e-mails about this. We need clarity on which commissioners are being given an effective power of veto by the new clause. Is it just the primary commissioner of services at a hospital, or does it go wider than that? To take the Lewisham example, it is not clear whether the power of veto would be given only to Lewisham CCG or also to the commissioners of services at Lewisham hospital, such as Greenwich or Bexley CCGs.
It is also not clear from new clause 16 whether there is a definite guarantee that full consultation would kick in if commissioners agreed to the recommendations of the TSA, because with reference to commissioners it includes the words
“if they are so minded”.
It is not clear what would happen if they were not so minded. Where is the redress for the public in that?
Another concern about new clause 16 is that if commissioners of services at a trust outside the failing trust disagree with the TSA’s proposals, potentially millions could have been spent bringing in the administrator and the management consultants and working up a whole series of proposals, but it could then be brought to a halt by a group of commissioners. I cannot help but question whether it would not be better either to apply the TSA regime to one individual trust or to go through a proper reconfiguration process, with all the safeguards that would include.
I am also intrigued as to why the right hon. Member for Sutton and Cheam tabled new clause 16 at this time. It is quite detailed, and given that he was a member of the Public Bill Committee, it might have been wise to introduce it in Committee and thrash out the detail there. I would like to add that he has always struck me as a man of principle. He has a deep understanding of how the NHS works and, I believe, a deep commitment to tackling the care crisis we face. However, tabling the new clause as some kind of alternative to voting against clause 119 seems to me to be tinkering at the edges. What we really need to do is vote to remove that clause from the Bill, because it poses a significant danger to hospitals across the country.
I am conscious that I have spoken for a long time, so I will say just a few words in conclusion. We know that the Conservatives stated in their manifesto that they would stop the forced closure of A and E departments and maternity wards. We know that in the coalition agreement both the Liberal Democrats and the Conservatives talked about stopping the centrally dictated closure of A and E departments and maternity wards. The truth is that neither the Lib Dems nor the Conservatives are stopping these closures; instead, they are legislating for them. They are paving the way for a wholesale programme of hospital closures and downgrades. We might stop them if we vote for new clause 16, but for me “might” is not good enough. In my view, amendment 30, which would delete clause 119, is our best hope for putting the Lewisham debacle behind us and providing the public with a fair and transparent means of making decisions about the public service that matters most to people—the NHS.
I want briefly to explain why I intend to support clause 119 in the Lobby this evening and to say that I have some sympathy with the points that my right hon. Friend the Member for Sutton and Cheam (Paul Burstow) made about new clause 16. I hope that the Minister will address his specific points about the importance of equivalence between the commissioners of unaffected hospitals and the commissioners of key services. This is not about a veto, I suggest to the hon. Member for Lewisham East (Heidi Alexander); it is about the right of commissioners out of area to safeguard essential services in a parallel way to commissioners in the core area of the affected trust that is subject to the trust special administrator regime.
The core points made about the consequences when a trust special administrator is appointed are important, although, with respect to other Members, we must be clear that those consequences are very limited. We are talking about the consequences of appointing a TSA to a trust that is financially unsustainable. We are all agreed that if the trust is not financially unsustainable, a TSA will not be appointed. We all agree that reconfiguration is necessary. Of course it is better done in consultation with local communities and professional groups and through the normal reconfiguration process; everyone agrees about that. The question before the House in relation to clause 119 is what happens if those preferred options fail, the trust becomes financially unsustainable, and a TSA is appointed. It is a question of whether the TSA, in that narrow set of circumstances occurring twice in five years, is required to think only about the institution in isolation or should be looking at the interests of patients as a whole in the context of the health economy in the immediate and surrounding areas.
I hold the Chairman of the Select Committee in high regard for his expertise. Let me point out, though, that he analyses this on the basis of two cases in five years, but in fact the situation has changed rather dramatically. The information presented to our Committee is that about a third of NHS trusts are predicting deficits, and, as we heard earlier, 32 are in severe financial difficulty. Those may not be the exceptional circumstances that the Minister would have us believe, and that should be a cause for concern for Members on both sides of the House.
Saying that a trust is in deficit is not the same as saying that it is heading into administration. It lies within the power of the commissioners and the trust management regime to avoid administration, which everyone in the House agrees is the preferred outcome. Indeed, it is striking that each of the Members from Lewisham and from Staffordshire identified the difficulties that the TSA regime creates and the difficult circumstances that arise when a TSA is appointed. Some Labour Members have suggested that this is a back-door means of driving change without consultation by appointing TSAs to trusts all around the country. If I thought that that was anywhere near to being anybody’s intention, I would oppose clause 119. However, the important point about clause 119 is that if it were the Government’s intention, which I do not remotely believe that it is, they could pursue that policy whichever way the Division goes.
The point about clause 119 is that it raises an extremely narrow question: should the TSA take into consideration only the institution that has been demonstrated historically to be unsustainable, or should the TSA look outside that immediate health economy for solutions that will better serve the needs of patients in that area? It seems to me that we need only pose the question in that precise and, I believe, accurate way for it to be seen to be a rhetorical question.
Rather than looking at administrators and what can be done in the event of a disaster, let us look at Dorset county hospital as a classic case of what to do. It was in trouble and has been turned around, and local clinicians and managers are now talking to the GPs in Weymouth. They are now thinking—don’t laugh—of integrating their services. Well, whoopee doopee, this is huge common sense: not an administrator in sight and, more to the point, not a politician in sight either.
I do not always agree with every word my hon. Friend says, but I agree with everything he said in that intervention, so I am delighted that I gave way to him. His argument is that commissioners and the trust management should get ahead of the trust administrator. Nobody should sit around waiting for an administrator to be appointed; the objective should be to avoid trust administration along precisely the lines identified by my hon. Friend.
I want to make a few points in support of amendment 30, which would delete clause 119 on the basis that the TSA was never designed to deal with reconfigurations across an entire region. Despite the assurances given by the right hon. Member for Charnwood (Mr Dorrell) and Government Front Benchers, the potential remains for this mechanism to be used as a back-door route to making changes and closures at hospitals.
I also declare my support for new clause 16. However, although it would ameliorate the worst parts of clause 119 by ensuring that local commissioners in non-failing areas had a veto over any decisions affecting their trust, it is not, as colleagues have said, a perfect solution.
Clause 19—or, as 38 Degrees and other campaigning groups refer to it, the hospital closure clause—should not stand part of the Bill. I had the honour to serve on the Bill Committee for what is now the Health and Social Care Act 2012 and I attended 39 out of 40 sittings. I missed one because I attended a Health Committee sitting at which the then Health Secretary was giving evidence about NHS England, which was previously called the NHS Commissioning Board, and I did not want to miss that.
I sat through that Bill Committee and listened to the Government’s reasons for their reorganisation. We were told that it would deliver a decentralised service and put power in the hands of clinicians. To be frank, clause 119 makes a mockery of that claim. Far from delivering a decentralised service that puts power in the hands of clinicians, the Secretary of State seems to be seeking to take power away from GPs and local communities in order to further reconfigure the NHS for purely financial reasons.
To suggest that the trust special administrator regime is a natural extension of the existing legislation is a gross distortion. The TSA process was never intended to be used as a back-door way to make unpopular reconfigurations. Potentially, clause 119 could take control of every NHS trust and foundation trust away from the public, leaving no hospital bed in the country safe. It should not stand part of the Bill.
If the Bill is enacted, clause 119 will mean that the NHS in England will face further wholesale, top-down reorganisations. The clause could be used as a method to achieve that. I do not think that anyone in this House wishes that to happen. I am sure that, in their hearts, some Government Members do not want that, and certainly no one in the country voted for it. Our problem is that there would be virtually no accountability to local people.
The successful legal challenge brought by the London borough of Lewisham and the Save Lewisham Hospital umbrella campaign—I pay tribute to their efforts, which have brought about this situation—showed conclusively that the Secretary of State did not have the power to axe Lewisham’s accident and emergency and maternity wards as a solution to problems in the neighbouring South London Healthcare NHS Trust.
Clause 119 is designed to allow the Secretary of State to do what he failed to do in Lewisham—to close down thriving and financially sustainable hospitals on a whim, without full and proper consultation. To suggest, as was said in Committee, that a tokenistic meeting with a local authority overview and scrutiny committee would assuage public concerns does not hold water. We must rebuild trust: we need full and proper consultation with patients and the public, and we need agreements with clinical commissioning groups. I am somewhat surprised at the willingness of Government Members, who have championed the cause of GP-led commissioning, to subvert the role of CCGs in that respect.
As a fellow member of the Health and Social Care Bill Committee, does my hon. Friend remember that we warned the Government that although there were clearly problems with strategic health authorities, those bodies could take a wider view of the health economy, and that having very new, young and small clinical commissioning groups that are all separate meant that it would be very hard to take such wider views? Does he remember that we warned the Government in those debates, and does he agree that they are doing this top-down reorganisation now precisely because there is no mechanism for delivering wider health views?
I do remember those debates, some of which were very long and acrimonious. I still have the scars on my back. They are a badge of honour, and I am proud to have been in the trenches with hon. Members fighting to preserve our NHS and to save it from the Trojan horse of privatisation.
To return to the matter in hand, the trust special administration process will bring drastic changes to hospital configurations. It represents a move away from the principle of reconfiguration of services on the basis of clinical need in favour of doing so solely on the basis of financial considerations. The justification process starts with the need to save money.
There have been attempts to reassure hon. Members and the general public that the trust special administration process would be enacted only in exceptional circumstances. As in our earlier exchanges about clause 119, hon. Members need to be alive to the situation confronting many NHS trusts, including the fact that about 30 trusts have been identified as being in particular financial difficulties. Those circumstances are not exceptional: come the end of the year and next year, there is a very clear and present danger that they will be not exceptional but normal.
In this situation, the NHS and foundation trusts are struggling, for a variety of reasons, to do more with less. I accept that the burden of the private finance initiative is one of those reasons, but there are others. There have been problems where walk-in treatment centres have closed. NHS spending has fallen in real terms. Almost a third of NHS trusts in England now forecast a deficit at the end of the financial year. There is growing pessimism about the financial health of the NHS, and figures suggest that the number of trusts undergoing the trust special administration regime will grow. As I have said, some 30 trusts have been identified as at risk of closure were clause 119 to be enacted as part of the Bill. Under this Government, it seems that the exceptional circumstances that would trigger the trust special administration process would no longer be exceptional.
I advise hon. Members who want to avoid soon having to take part in campaigns to save accident and emergency or maternity wards in their own constituencies —as has been done by my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock), my hon. Friends the Members for Lewisham West and Penge (Jim Dowd) and for Lewisham East (Heidi Alexander), and the hon. Member for Stafford (Jeremy Lefroy)—to support Labour’s amendment 30.
Clause 119 will permit the Secretary of State, on the recommendation of a trust special administrator, to take actions against hospitals that lie outside the initial scope of the administrator’s investigation. Any organisation that neighbours a trust that is in financial distress, regardless of how popular, successful or robust its services are or how financially viable it is, could be downgraded or closed. The whole House—not just Opposition Members, but Government Members—should be concerned about the implications of the clause.
I have no doubt that, as was outlined by the Chair of the Health Committee, there are cases in which changes are needed in the local health economy that extend beyond the trust that is failing. The fundamental problem is that clause 119 seeks to change the trust special administration process in a way that was never intended. It has the potential radically to change the configuration of our NHS services. When hospitals are identified as being no longer viable, it risks being used as a Trojan horse to privatise our hospitals. [Hon. Members: “Oh!”] There is a groan from Government Members, but one of them suggested a merger between two hospitals in or nearby his constituency in Devon. There are practical issues to consider. We saw what happened in Bournemouth and Poole, where a sensible merger proposal was resisted on the grounds that it was anti-competitive.
Given that clause 119 is a dramatic extension of the Secretary of State’s powers, as my hon. Friend is rightly saying, does he agree that it is astonishing that the Secretary of State is not in the House this afternoon to make the case in person, to ask for the powers and to justify the idea that we should entrust the future of our hospitals to him?
I am absolutely amazed. I share my right hon. Friend’s incredulity that the Secretary of State is not here. In my view, clause 119 is one power too many for a Secretary of State who apparently believes the NHS to be a 60-year-old mistake. [Interruption.] That is a direct quotation from the Secretary of State before he took office.
The Secretary of State’s increased power and Monitor’s expanded role directly contradict the Government’s earlier promise that local commissioners would no longer be subject to central diktat. That represents a reversal of the vision that was presented during the consideration of the Health and Social Care Act 2012. Clause 119 supports none of the preconditions for a legitimate reorganisation of a local health economy and will allow trust special administrators to overrule any concerned parties.
If clause 119 becomes law, the Secretary of State will be granted the power to issue directions to require foundation trusts and clinical commissioning groups to take steps that they do not want to take. Any Member who wants to prevent the Secretary of State’s axe from falling arbitrarily on their own hospitals without clinical justification should seek to remove the clause from the Bill. I therefore urge right hon. and hon. Members to support Labour’s amendment 30 and new clause 16, which is a compromise measure to ameliorate the worst aspects of clause 119.
I have listened with quiet astonishment as Opposition Members have suggested that the NHS previously offered meaningful accountability and public control.
In the manner in which the right hon. Member for Leigh (Andy Burnham) spoke to amendment 30, he viciously punched a raw and delicate bruise in Wycombe. As I indicated in my intervention, it was under the last Government that we lost A and E services, maternity services and paediatrics. Years later, all that people want is to have those services back. They want an emergency unit that is capable of accepting whoever turns up. To use the jargon, they want the treatment of undifferentiated emergency patients. The NHS should not be offering constant excuses for why that cannot be provided. God knows, we pay enough in tax and in salaries that people ought to be creative enough to figure out how to offer the treatment of undifferentiated emergency patients at local hospitals like the one in Wycombe. There is a proposal to do so, which I will return to another day,
I have found myself listening to some sort of exposition of a democratic utopia that has never existed. When considering how this has been positioned—the idea that it is about reconfiguration rather than urgent procedures when a trust is in extreme difficulty—will the Minister reassure me that the Government did not establish clinical commissioning groups and health and wellbeing boards, and the rest, just so that they could use this clause and power to override everything else they have put in place?
I am happy to give my hon. Friend that reassurance. We believe in locally led commissioning and in listening to patients locally. That is what devising services locally is about. This clause is not to be conflated with normal procedures for designing and arranging local hospital services. I hope that that reassures my hon. Friend and other hon. Members.
I am extremely grateful to the Minister for that reassurance because in my constituency there is really only one story: the loss of services, and, because of the way the clause has been presented by Labour Members, people are worried about that.
It has been said that these hospitals are categorically different because they exist in a broader health economy, but that is not why they are different. Any business exists as part of a wider economy with dependencies and so on—the hon. Member for Lewisham West and Penge (Jim Dowd) suggested the example of Comet versus Currys. In private enterprise, if the administrator turned up and shut down our competitors when we failed, it would obviously be absurd, but the truth is that both sides of the House have made a positive decision to use the techniques of state socialism to provide health care. That choice has consequences, one of which is this clause.
It will come as no surprise that I support the proposal to remove clause 119 from the Bill. Of all reforms in the Bill, this clause has attracted the most attention from my constituents. They recognise it for what it is—a frightening power grab by central Government that will put services across the whole country at risk from the Secretary of State. It is a cynical move from the Government, who in their wildly unpopular top-down reorganisation of our beloved NHS claimed that they wanted to put more power in the hands of doctors. Now they seek to give sweeping new powers to the Secretary of State.
It is of course true that some NHS trusts and foundation trusts find themselves in tough financial situations, and in those difficult situations decisions will have to be made so that services continue to operate. That is what the TSA regime was set up to do, and it is an appropriate process for dealing with the difficulties within a trust. It is true that trusts do not operate in complete isolation, but the TSA is already required to act with the interests of the wider health service in mind.
My hon. Friend is right when she says that the Secretary of State wants the power to privatise—I will be brutal about it—NHS services. We must recall—this is why we cannot believe the Minister or the Secretary of State—that before and during the general election, the Prime Minister said that there would be no top-down reorganisation of the national health service—[Interruption.]
I am sure my hon. Friend will agree that the changes the Government want to make are in order to privatise the national health service through the back door. That is why the Secretary of State wants that power. Equally, we cannot believe the Secretary of State because, during the general election, the Prime Minister said that there would be no major changes to the national health service, and no top-down reorganisation. Why should we believe this lot now?
I could not agree more with my hon. Friend.
TSAs can consider the impact on neighbouring authorities when making their recommendations, but they cannot and should not reconfigure services in well-performing trusts. Well-run trusts can and do collaborate with their neighbours, and play a role in reconfiguring services to help to achieve financial stability, but that must be voluntary. It is wrong for the Government to act through TSAs to reconfigure services in well-run trusts, and to do so against the wishes of local people and clinicians. It is also wrong that the opinions of health care professionals should be overruled by financial concerns, especially when the decisions being made affect trusts that are not at financial risk. That undermines the ability of health care professionals to act in the interests of their public.
The Government’s defence of the proposal is that clause 119 is a clarification of existing law, and yet the amendment was tabled in the other place while the Government’s appeal over the downgrading of services at Lewisham was still being considered. Surely it is the role of the courts to interpret and therefore clarify the law. It is more likely that the Government anticipated that their appeal would be rejected, as it was, and acted to expand the powers of TSAs so that reconfigurations such as that proposed for Lewisham could go ahead in future. I want to be clear: when any Government amends legislation so that it can be interpreted differently in the courts, they are not clarifying things but changing them.
I take the hon. Lady’s general point and understand why she is making it, but yesterday we debated new clause 11, which would have made clear a mistake that hon. Members on both sides of the House believe the courts made on the applicability of human rights legislation to social care that is publicly provided within private institutions. In that instance, we were not changing the law, but trying to ensure that the courts interpreted it correctly in the first place. There are instances when we do that.
I agree with the right hon. Gentleman, but I do not believe it applies to clause 119.
My constituents are not especially concerned by the technicalities of legislation. The letters and e-mails I receive show concern with the practicalities of clause 119. People tell me that they fear for local services because, as more trusts fall into financial difficulties—more than 30 are reported to be in serious danger of doing so—the Secretary of State’s power will spread over a wide region. Perhaps the trusts that those people or their relatives use will not have a TSA appointed, but it is likely that services in their area will collaborate with trusts that do have one appointed. That makes them a target.
If the heroic efforts of the people of Lewisham and my hon. Friends are anything to go by, public concern will quickly turn to public outrage and protest if clause 119 makes it to the statute book. Lewisham has shown the Government the strength of opposition they can expect when they attempt to force unpopular reconfigurations on local communities. It is difficult to understand why they propose using that model throughout the country, but it appears that that is their intention.
I am concerned that, by taking that approach and using the TSA regime for a purpose for which it was never intended, the Government will make it more difficult to have a level-headed discussion on meeting financial challenges. We need a mature debate on how to adapt services to improve sustainability, but clause 119 will lead to pitched battles up and down the country over the closure of individual departments. The clause has attracted more controversy than any other in the Bill, and with good reason. It ignores the will of clinicians and the communities they serve. It puts at risk services in every corner of the UK. The Government must change course now.
I shall make a short contribution on clause 119. I agree with the principle behind the clause and the Bill, but we must ensure that the NHS can operate properly and efficiently, and provide our constituents with the care they deserve. My hon. Friend the Minister and my right hon. Friend the Secretary of State know very well of the review in Worcestershire in the past two years. My hospital—the Alexandra—has been in the spotlight. We have fought long and hard to retain services locally. I pay tribute to the tireless campaigners who, like me, are desperate to keep our services. Finally, we have seen a clinical solution to the problem. We all welcome that in Redditch, but it is not the end of the story—I wish it were.
We now have to wait to see if the clinical solution is affordable. If it is not, would our trust be put into administration? Our trust owes £10 million today and is forecast to owe £12 million by the end of the financial year. The people of Redditch are concerned about the future of our hospital. I ask the Minister to allay their fears today and to make it clear that Worcestershire Acute Hospitals NHS Trust is not on his radar and that the Alexandra hospital is safe in his hands and will continue to be so.
I know that my hon. Friend has campaigned tirelessly for her local trust and I can reassure her that there are no plans for the TSA to have any involvement in the issues that she has mentioned locally. It would be wrong and irresponsible for people to conflate those issues. There are local processes in place and they will continue.