We will withdraw this amendment but I am bound to say that on the question of conflicts of interest, we were really rather disappointed that my noble friend the Minister maintains the very clear view that he expressed. Of course we accept that there is power in the Bill to deal with conflicts of interest, but there is no assurance that that will be done. I stress that there can be no public confidence that it will be done unless there is something on the face of the Bill, so I hope he will depart from that clear view and take these amendments away with him for consideration for the next stage. I beg to move.

My Lords, if I could just respond to my noble friend I will of course reflect, as I always do, on the debates that we have and the points put forward and I should be glad to discuss the matters that he raised outside the Committee if that would be helpful to him.

I am very grateful. On that basis I beg leave to withdraw the amendment.

My Lords, we come to a second large group of amendments concerned with clinical commissioning groups and the way they do business. They also relate to responsibility for primary medical services and also relationships with the other healthcare professions. Amendment 176B adds to the responsibility stated in Clause 14O(1)(b), on page 35, in lines 40-1,

“to promote awareness of the NHS Constitution among patients, staff and members of the public”.

I would have thought a good basis for the promotion of awareness of the constitution might be to assure that GPs themselves were knowledgeable about the NHS Constitution and hence my amendment to promote awareness among GPs by clinical commissioning groups.

The noble Earl has got two answers to any issue raised as to how the Secretary of State will ensure that there is comprehensive provision. One is the mandate and the other is the NHS Constitution. Given that, and given that he puts so much store by the NHS Constitution, which is very welcome, it would be nice to know that general practitioners had some knowledge of it and some understanding of their responsibilities under it as commissioners.

One of the most important responsibilities laid upon clinical commissioning groups is to promote the involvement of each patient in decisions about the provision of health services to patients. However in Clause 14T(2), on page 36, it is surprising that while the board may publish guidance to clinical commissioning groups on this, it is not required to. Equally surprising is in Clause 14T(3) that the clinical commissioning group is only required to have regard to such guidance. My Amendments 194A and 194B require the board to publish guidance and require clinical commissioning groups to implement the guidance. I hope the noble Earl will be able to accept that involvement of the public is of such importance that it ought to be a mandatory requirement.

My Lords, I shall speak to three amendments in this group. The purpose of Amendment 203B is to ensure that any healthcare provider to which a commissioning group gives a contract allows its clinicians enough time to work for the benefit of the NHS and its patients. The work to improve patient care does not just take place in a clinician’s own place of work. A great deal of background planning and preparation must be done in order for patients to see improvements in their care. Developments in service improvement, clinical standards, research, education and training only happen because clinicians and others are able to contribute their time and expertise to work outside their own organisations for the benefit of the wider NHS. There is always an understandable pressure to make service delivery the priority, but clinicians are increasingly finding it difficult to find the time from their employers to participate in activity outside their own organisation. This includes work such as developing clinical guidelines, setting standards, ensuring research ethics, developing and providing educational curricula and assessments, and providing expert clinical advice for a range of regional or national bodies, including the Department of Health itself. Most national bodies now report that they find it increasingly hard to secure clinician input to their work. Given the importance of their contribution, I do not think it unreasonable to ask all healthcare providers, including private providers who have won contracts with commissioning groups, to allow their clinicians reasonable time to help the NHS and its patients in this way.

The active engagement and leadership of clinicians underpins the Government’s reforms. New structures, such as clinical senates and clinical commissioning groups, require the active involvement of clinicians, but this will not happen unless clinicians are supported and given the time to participate in this work for the benefit of the wider NHS. This is work to improve patient care, and patient care will suffer if it cannot be provided. The Academy of Medical Royal Colleges, of which I am a past member, would like to see the Bill contain a duty on employers to facilitate staff involvement in defined work on behalf of the wider NHS outside their own organisations.

I will now speak to Amendments 210 and 217. The purpose of Amendment 210 is to place on the NHS Commissioning Board a specific duty to issue guidance on the production of joint strategic needs assessments. Should that amendment be accepted, Amendment 217 places upon clinical commissioning groups a specific duty to demonstrate ways in which they have taken into account such guidance on production of JSNAs when presenting their commissioning plans. The Bill in its current form places a duty on the NHS Commissioning Board to publish guidance for commissioning consortia on the discharge of their commissioning functions. This is inadequate since it does not place upon the board a specific duty to produce guidance on the production of JSNAs. The transfer of commissioning from PCTs to clinical commissioning groups is arguably the most fundamental change in the Bill. Commissioning carried out by clinical commissioning groups must accurately identify and meet the needs of patients with mental illness and their carers. It is vital that the JSNAs that inform their commissioning decisions are of a high quality and capture as well as practically possible the prevalence of mental health problems within populations and the needs of people with mental health problems within those populations.

JSNAs are currently carried out by local authorities. Many local authorities acknowledge a lack of data available to them regarding the prevalence of mental health problems and learning disability in the populations they serve. For example, in 2008 the Cambridgeshire Joint Strategic Needs Assessment for mental health reported:

“There is a lack of good-quality local data on mental health prevalence and national data is used to calculate the estimated prevalence of mental ill health in the local population using the population statistics”.

Or take Barking in Dagenham in 2010-11:

“The next JSNA needs to explore more specific data and actions for people with learning disabilities and people with autism. A recent self-assessment carried out by the trust highlighted this as a major gap”.

Or take Southwark:

“There are limited data available about the prevalence of mental illness and the demographic profile of sufferers in Southwark”.

Often, particularly in relation to moderate mental illness, there are little—if any—locally collected data, and estimates have to be used.

In Part 5, the Bill outlines the framework for joint strategic needs assessments and sets out a joint responsibility between local authorities and clinical commissioning groups. Commissioning plans are formulated on the basis of joint strategic needs assessments, and if we look at the organisations that will be involved with drawing up the commissioning plans, the problems are clear. Many local authorities acknowledge their difficulties with obtaining adequate and robust prevalence data on mental health issues and learning disability, while clinical commissioning groups will lack any experience of carrying out this kind of audit. As a result, patients with mental health problems and their carers may have little confidence that the commissioning plans produced with local authorities, under the Bill’s provision as it currently stands, will reflect the true prevalence of mental health problems and learning disability in the population of which they form part.

There is some existing guidance on the construction of joint strategic needs assessments, produced in 2009 by the National Mental Health Development Unit. It said that,

“population level mental health needs assessment has not yet featured prominently in the joint strategic needs assessment process”.

The toolkit was designed to,

“allow a wider range of local partners to become more aware of how mental health needs and issues”,

should be addressed. It went on to say that it would hope to,

“facilitate more joint working at a local level to deliver better outcomes for the population”.

However, this organisation no longer exists and I do not think the Department of Health currently has any such guidance. It is dangerous to expect that clinical commissioning groups, which have no prior expertise in this area, will, in undertaking joint strategic needs assessments, stop the problems which local authorities have already encountered.

I shall speak in support of Amendments 210 and 217 which, as the noble Baroness, Lady Hollins, has just said, concern the quality and use of joint strategic needs assessments. These assessments are potentially vital to the work of CCGs and, more importantly, for the benefit of the populations they serve. The joint assessment is designed to lead to stronger partnership between communities, local government and the health service by providing a firm foundation for commissioning. This not only leads to improvements in health and social care provision, but also reduces health inequalities. It is an essential tool in the development of a truly integrated service across health and social care, which is why it is so important that the CCGs have adequate guidance on how to ensure that high-quality needs assessment is undertaken and used.

The benefits are clear—helping commissioners, especially CCGs, to specify the outcomes that they want to see, including those that encourage local innovation and, in so doing, helping providers to better shape services that address needs fully. However, the experience of joint assessments has not been uniform across the country and there are challenges in making these assessments as effective as they can be. A joint assessment inevitably involves complex sets of information and data from a wide range of sources, and this brings challenges in analysis and presentation which allow data to be intelligible and used for the intended purposes.

Joint needs assessments are a lot more than a technical exercise in data management. The most effective assessments involve local communities and use direct feedback and knowledge from those communities. I saw the power of this kind of assessment at first hand when I was fortunate enough to lead the Department of Health’s black and minority-ethnic needs assessment programme on drug use across England. The strength and success of the approach undertaken in this programme was that local people were integral to its work. When it comes to identifying needs, there can be no greater source of information than that which comes directly from the people who are most affected by the issue. For example, in the case of drug use, it was important to recognise the experiences of a wide range of people who were affected, including women, young people, older people, people with disabilities, families, carers, and particularly drug users. The Department of Health programme demonstrated, however, that it is not an easy or simple process. It does not just happen, and it is vital to distinguish real engagement from mere consultative involvement.

Here in London, I have recently seen further evidence of the significance and impact of such effective community engagement in identifying and addressing needs. The Well London project, which is funded through the Big Lottery Fund, is an exciting £9.6 million programme that has been working with local people in 20 of the most deprived boroughs across the capital. Speaking about Well London, following a recent award for the project from the Royal Society of Public Health, Professor Sir Michael Marmot, director of the UCL Institute of Health Equity, said:

“If we are to reduce health inequities it is essential to take action on the social determinants of health—the 'causes of the causes' of ill health. That means working in partnership at local level to improve the social conditions in which we are born, live, grow, work and age. The Well London Alliance Partnership does just that. Empowering individuals and communities, and giving people a voice is integral to addressing health inequalities. I am delighted the Partnership has achieved well-deserved recognition for its work”.

Running over the past three years, Well London has transformed health through promoting health and well-being, improving healthy eating choices, promoting access to open spaces and increasing physical activity. The University of East London, which is a lead partner in the research phase of the project, is revealing some absolutely fascinating results and I will share a few of its findings with the House.

Results show that from a total of 10,843 participants, 8,400 reported an increase in healthy eating, 7,800 reported increased access to healthy food, 9,400 reported an increase in physical activity, 8,900 reported feeling more positive and 8,500 reported an increase in the understanding of mental well-being. The real key to success is having community engagement at heart. Professor Adrian Renton, the director of the Institute for Health and Human Development at UEL, said of this work:

“When we designed the project, we took account of the evidence that local social economic and physical environments provide strong barriers which prevent people from adopting healthier lifestyles and leading happier lives”.

This is an excellent example of how to undertake a strategic needs assessment across health and social care that is driven by local communities and brings together commissioners, providers and the university sector to work alongside those communities in making a real difference to health and well-being. This is why it is essential to have adequate guidance on how to conduct such assessments, and that clinical commissioning groups should be required to demonstrate how they use such guidance. I hope that the noble Earl will see the benefit of these amendments and lend his support to making joint strategic needs assessments truly effective tools in health improvement and service planning.

My Lords, I, too, support Amendments 210 and 217, for the reasons which the two noble Lords who have just spoken have given in respect of mental health and learning disabilities. There is another vulnerable group that I would like to draw attention to. The Minister told me in his extremely helpful answer to my Written Question:

“The Government are developing statutory guidance … to support health and well-being boards in undertaking joint strategic needs assessments … including the need to take full account of the needs of vulnerable groups”.—[Official Report, 17/10/11; col. WA 16.]

This is excellent. Will this be published for consultation and, if so, when? Commissioning boards also need guidance and I cannot see why, if it is statutory guidance, it is not in the Bill? There is one further reason why it should be. I shall briefly cite one of my colleagues who works with Gypsies and Travellers. She points out that currently, most local authorities and PCTs take their data about the ethnic breakdown of their population from health records. We know that not only are Travellers not included as a category in many of these data collecting tools, but many Gypsies and Travellers do not want to disclose their ethnicity for fear of discrimination, so they are wholly underestimated and consequently, based on the inadequate data they have, PCTs and local authorities do not see the need to do a thorough needs assessment. That is why there has to be an explicit provision in the Bill, so that authorities will look for the information. It is not going to be there to hand; they will have to look for it. Guidance is essential if we are to have the full picture.

My Lords, I shall speak to Amendments 203D, 216ZAZA, and 216ZAZB. This is all about strengthening the relationship between health and well-being boards and clinical commissioning groups. These relationships will be key. Unless they are right and work properly, we will not get the system that patients deserve.

Partnership is key. Amendment 203D puts a new duty on clinical commissioning groups to ensure that their communication plans address the priorities of health and well-being board strategies. Amendments 216ZAZA and 216ZAZB work together, and are about strengthening language. We go from a fairly weak,

“The clinical commissioning group must involve each relevant Health and Wellbeing Board in preparing or revising the plan.”

to a stronger,

“Clinical commissioning groups must ensure each relevant Health and Wellbeing Board is a key partner in preparing or revising the plan.”

It puts the onus on clinical commissioning groups to ensure that health and well-being board plans are involved. The aim of the amendments is to give health and well-being boards more teeth in expecting commissioners, including councils, to do their bit to deliver the agreed priorities of the health and well-being board as expressed in the joint strategy.

Health and well-being boards are intended to bring a strong sense of place, local priorities, and democratic accountability. Advised by the director of public health, they will have population accountability for the whole area, and this is likely to be expressed as local priorities for action to address inequalities of outcome or access within the area.

As the Bill stands, the onus is on the commissioners to have regard to population outcomes and local priorities, consider joint commissioning, and to involve health and well-being boards throughout the preparation of their commissioning plans. This will, at best, create locally flavoured service accountability. There is no weight in the legislation.

I am grateful to the noble Baroness for giving way, but I am very puzzled. I thought that Liberal Democrat policy was to give local authorities much greater involvement. Why does she not support my amendment, which would give much greater teeth to local authorities by giving them veto power over the commissioning plan? I fail to see why the Liberal Democrats are not supporting local government. In their manifesto they talked about much greater local government involvement. Why will they not support my amendment?

I will explain to the noble Lord where this amendment came from. Certainly, as a group we were concerned that the relationship between health and well-being boards and clinical commissioning groups should be strengthened, so we spoke to the LGA. The LGA worked with us in producing these amendments. I would expect that the LGA, which clearly has a view about localism, would have given that priority.

My Lords, we are not here merely to express the views of pressure groups.

It is not a view of pressure groups. It was the view of our group when we were discussing what we wanted to pursue. We decided we wanted to look at how these links could be strengthened. Without the expertise among ourselves, we consulted with the LGA.

No weight is given in the Bill to the health and well-being boards’ whole population planning for its area, and to the jointly agreed local priorities. If the health and well-being board judges them not to be adequately addressed in service commissioning plans, it should have the power to refer them back. This may be particularly important in relation to the NHS Commissioning Board and Public Health England’s plans for the area.

I hope that the Minister would agree that the need for these two organisations to work closely together, delivering local plans for local authorities, is taken as read. I wonder whether he would feel minded to make this more explicit at Report.

My Lords, I shall speak to several amendments in this group. Some have already been spoken to. Some that have been led by my noble friend Baroness Hollins have already been addressed. I emphasise the importance of their benefit to the NHS as a whole—in fact, the whole of healthcare—by professionals being able to participate in the broader standard-setting and educational functions that she outlined in her speech.

It is also important that those from further afield are able to participate. It is quite easy for employees in the south-east to get to educational committees or colleges and participate in developing NICE guidance, but for those in rural areas, it may take hours to come down to committee. Even if they try to do video, links they do not necessarily work well. Those are the clinicians who will be the local leaders driving up the quality of services in their areas, so there is a direct benefit to the services in which they work, as well as to the broader NHS. However, their time has to be accounted for and unless it is recognised this is important national work, there is a real danger that some of these standards driven will be by those who happen to live and work in the London or Greater London area.

I turn to Amendments 208, 209, 212, and 214, which concern the importance of commissioning for less common conditions. Earlier this evening the noble Lord, Lord McKenzie of Culkein, already addressed the different population sizes that are ideal for different groups for commissioning. I emphasise that a lot of people in the country have rare and complex conditions, rare to the GP, but not rare in secondary care. Take, for example, cystic fibrosis, or patients with neurological disease who will need non-invasive positive pressure ventilation. This will be completely outside a GP’s competence to establish and maintain. They need a highly specialized service within an area that they can access from where they live. Similarly with genetic services, the importance of good genetic advice at all stages, particularly when genetic conditions are diagnosed, is important. Sadly, many in primary care do not yet have a full understanding of the importance of such advice. Children with conditions such as diabetes may be seen quite commonly in a paediatric clinic, but insulin-dependent diabetic children under five will be a rarity for a GP who is likely to have one on their list at any time. It will also be important that guidance is developed as to how commissioning for this broad range of conditions will occur. Otherwise we will have an increasing number of patients who cannot access the excellence that they know that they could—or even worse, they may just be excluded from it. It is not until they are running into major complications that they become aware of a service that they should have had for many years.

These are all probing amendments. I draw the Minister’s attention to Amendment 211, where we are trying to require an audit of the decisions taken and linking back to HealthWatch England and the CQC itself to see whether the guidance is being followed and implemented in practice.

I hope that, when the Minister responds to this group of amendments, he will outline what will happen to the patient whose clinical commissioning group does not commission a service that that patient needs. I have already given the example of end-of-life care for patients in Southampton with motorneurone disease. Currently, those patients are moving house to go to Gloucester or they are just dying badly, never accessing the specialist care that they ought to get. Will the Minister respond by saying that it is up to the clinical commissioning group and therefore that this inequity will continue, or is there a way that patients will be able to bypass their clinical commissioning groups and have a central point of appeal? Will it be through the Commissioning Board that they genuinely access the core clinical care that they should have? We have the skills in the country; we can provide it for people.

The same sort of situation arises for children with diabetes accessing insulin pumps. We know that they are under-utilised at the moment. There are a lot of children whose diabetes could be better controlled if they were accessing insulin pumps earlier and if the support services were in place for it. If the clinical commissioning group does not commission them because it does not understand that, in the very long-term, to avoid complications much later, it is a priority in this child’s life, how will those people access the service? I look forward to the Minister’s reply.

My Lords, I have put my name to Amendment 209. Many GPs do not know about many less common conditions. Many surgeons do not know either. To give myself as an example, on several occasions when I have had a disaster I have had to explain that I do not feel from my lesion down, with all the dangers that that involves. Most of them cannot take it in. Amendment 209, to give guidance, might prevent mistakes. The expert patient has become useful with many conditions in helping in these matters.

My Lords, I rise to speak to one amendment in particular. I will be very brief. I support some of the comments made by the noble Baronesses, Lady Hollins and Lady Finlay, about the clinicians’ need to have time where they can contribute to the work of the wider NHS. I strongly support Amendment 210. The noble Lord, Lord Patel of Bradford, gave an excellent example of the value of the JSNA. I wish we could have a similar kind of needs assessment in the community for the care of people with chronic diseases. It might be good to use it to do so.

I speak briefly to Amendment 219 about the performance assessment of the clinical commissioning groups. Quite rightly it says that the local health and wellbeing board should be consulted. My amendment asked the question: why not go wider than that? Although I used only the provider as an example of going wider to consult the performance of CCGs, it equally applies to consulting Monitor or even the CQC. I look forward to a reply from the Minister as to why it should not be wider than just the health and wellbeing board.

My Lords, I rise to speak to Amendments 209 and 212, to which I have put my name. I spoke earlier about the issue of commissioning for less common conditions when I expressed my concern that CCGs governing small populations would not be able to deliver a service to patients in these categories. We heard from my noble friend Lord Warner earlier today and in earlier debates about the reduction of PCTs from 302 to something like 51. This would cover enough of the population to ensure effective commissioning. However, despite all his best efforts, many long-term conditions are still falling between all stools. We heard from the noble Baroness, Lady Finlay, about the difficulties in different parts of the country. She referred to Southampton, for example.

Those with an interest in this matter will have been briefed by the neurological alliance about the paucity of the present Lincolnshire service. The PCT there has never implemented its own plan to address the problems for patients with less common conditions. A Lincolnshire neurological alliance tried to get the prototype CCGs engaged with that issue, but so far to no avail. When they called a meeting to try to bring the matter forward, not one of the CCGs sent anyone to the meeting. This is what many of us feared and why we need these amendments or something like them on the face of the Bill. If we will deliver a better, more coherent and joined-up service, we cannot just rely on the promise that all will be all right when the Bill becomes law. The Commissioning Board must have the ability to see how CCGs plan to commission services for people with less common conditions, and be able to take a country-wide view of what is going on.

Services for patients are patchy in many parts of the country, and if this Bill becomes an Act there will need to be considerable improvement on that. I hope that the Minister can tell us tonight that the necessary steps will be taken to ensure that that patchiness will end, and that guidance is developed as set out in Amendment 209.

My Lords, the broad theme of these amendments is to ensure the effectiveness of the commissioning process and the competence of commissioners, which includes the engagement with local authorities, patients and experts to ensure that clinical commissioning meets patient needs. Of course, that theme is entirely to the point.

In support of this, there is an extensive framework in the Bill to encourage CCGs to work with health and wellbeing boards in the exercise of their commissioning functions, and to seek expert advice. To my mind though, it is important that requirements in this regard remain proportionate and do not encumber CCGs with a duty to consult—as, for example, Amendment 197C would require—on the exercise of all of their functions. The health and wellbeing board is the forum for ensuring democratic legitimacy in the commissioning process.

Indeed, the health and wellbeing board is very much a key partner of the CCG, to use the good phrase used in Amendments 216ZAZA and 216ZAZB, but the partnership takes physical form in the jointly agreed health and wellbeing strategy, which is based on the JSNA. It is a joint production, it captures an agreed outlook for commissioning, and it should inform the commissioning decisions of the local authority, and indeed the CCG.

I listened with care to the noble Lord, Lord Patel of Bradford, in this context. He spoke very convincingly about the need for evidence to support commissioning, but also, most importantly, that such evidence is used. We completely agree with him on that, and that is why we have created that link between the JSNA and the joint health and wellbeing strategy. The strategy here will play a key role in shaping service commissioning across the area.

Clause 189 of the Bill specifically refers to the “partner” CCGs of the health and wellbeing board. However, the CCG has to retain ultimate responsibility for the commissioning and spending decisions of the commissioning plan. That is important. The health and wellbeing board is not accountable for those decisions, and, of course, it does not have the same statutory responsibilities as CCGs, so we would not want to suggest that the plan is a joint one. It remains the CCG’s plan.

Noble Lords will find quite detailed procedures in the Bill in Sections 14Z9 to 14Z12 in Clause 23, on the process of drafting and revising commissioning plans. These include requirements in relation to consultation.

There are also direct requirements in the Bill in relation to ensuring that CCGs secure appropriate advice. We have also signalled the intention to facilitate the development of clinical senates and networks in order to provide a supportive matrix of expert opinion. However, I would not point to the particular duties or powers within the Bill or to contractual obligations in order to reassure noble Lords, or indeed to reassure the Royal College of Physicians, in relation to Amendment 203B. Rather, I would point to the tremendous potential in the new arrangements for bringing about a cultural change, and above all, to the key principle of clinicians leading the whole process of commissioning, from the assessment of need to the management of contracts. I believe that the system we are aiming to put in place will provide the right elements to stimulate the involvement of clinicians across sectors and organisations, with everything focused on that specific goal of delivering improved outcomes for patients.

The Bill institutes a framework for ensuring that clinicians are fully involved and supportive of commissioning, either as commissioners, or providing expert advice. Again, this is a duty that should not be amended so as to become a burden.

Can the Minister define “reasonable requirements”? What is “reasonable” and in whose mind would something be reasonable or unreasonable? Some of us would say that the discrepancies we see emerging now are not reasonable, but they are decisions that are already being made in commissioning. This will become very important because of the financial climate in which the commissioning groups will operate. I would also appreciate knowing who the patient can actually appeal to. The noble Earl has just said in his response that patients can go to judicial review, but the terms of such reviews are tightly drawn and it is a difficult, adversarial process. You have to be a very motivated person to pursue it. But we are talking about patients who are ill, who often are vulnerable and do not have the financial resources needed to undertake such an activity.

I appreciate what the noble Baroness says about judicial review, and of course she is right that it is a daunting process for the average citizen. As to her question of what is reasonable, I am sure she knows that that is not a question I can answer in general terms. It will depend on specific circumstances. I can only say that the board will have a duty to perform an annual assessment of how well each CCG has fulfilled its duties in the previous financial year. During the course of a year, matters may be drawn to its attention which it will take a view on, either that the CCG has taken a reasonable stance or an unreasonable one. I would have thought that if a patient insists on having a treatment that NICE has said is not cost-effective, that is not a reasonable request for an NHS patient. However, that is only one example, and it is not one that the noble Baroness cited. I had better write to the noble Baroness to set out further and better particulars on this issue, if that would be helpful to her.

We fully recognise the importance to effective commissioning of ensuring that allocations give CCGs the resources to meet the distinctive needs of their local population, and clearly we would expect the board to ensure that their methodology of allocation takes into account local factors, and inequalities would be one of those factors. Our preference, however, is not to place particular weight on one factor or a set of factors, however meritorious they may be, to which the board would be tied, but to give the board a free hand in setting the methodology for its allocations and the scope of its analysis of the needs of a CCG’s population. I am really addressing Amendment 220 in that context.

In resisting the proposals that CCGs should be under a duty to agree their commissioning plans with the relevant health and well-being boards or an absolute requirement for plans to address the priorities of the health and well-being strategy, we are actually following the advice of the Future Forum. It said that to give health and well-being boards powers to sign off commissioning plans would create an unworkable dual accountability as boards could oppose decisions by Cogs which would have, after all, the statutory responsibility to arrange services to meet the needs of patients and responsibility for the budgets with which to do this. Commissioning competence will also be assured through the board’s annual performance assessment of each CCG, which I referred to a minute ago and in which the board must have regard to commissioning guidance that it has published under new Section 14Z6. Clearly, the board would be exercising its function of assessment and report only if it provided all relevant information at its disposal. Giving the board the role of determining how it presents this information is a proportionate and appropriate level of responsibility. The Secretary of State may issue advice on annual performance assessments under the provision in new Section 14Z14(5)(a).

Amendment 245A places a limit on the general power of the Secretary of State, the NHS Commissioning Board and Cogs to take action to discharge their functions. While the amendment is no doubt well intentioned, it is unnecessary and would have the unintended consequence of preventing the NHS Commissioning Board from using its general power to support it in commissioning pharmaceutical services.

The only amendment that I have not specifically addressed is Amendment 176B, from the noble Lord, Lord Hunt of Kings Heath, which is about the NHS constitution. It would expand the duty in new Section 14O to promote the NHS constitution to require Cogs to promote awareness of the constitution among providers of primary medical services. Cogs are already under a duty to promote awareness of the constitution among patients, staff and members of the public, which would not exclude staff in primary care providers. CCG membership would have to be aware of the constitution to promote awareness of it among others.

I am conscious that I have not answered the question from the noble Baroness, Lady Whitaker, and I hope that she will allow me to write to her.

My Lords, I do not think that the Minister answered the question that I asked about the performance assessment of Cogs—that it is to be done only by health and well-being boards and not by wider groups such as the providers, Monitor or the CQC.

Well, my Lords, again that is a matter on which I will have to write to the noble Lord. The thinking is evolving on this—that is the truth of it—and it is probably best if I set out in a letter where our thoughts have reached.

If the thinking is evolving, I hope that my question is helpful.

My Lords, I am grateful to the Minister for that very comprehensive response. There are just two points to make. First, I thought that the noble Baroness, Lady Finlay, raised a very interesting question about the test of reasonableness. I come back to the issue of PCTs delaying treatment but keeping it within the 18-week wait, which the Secretary of State intervened on. CCGs may well do the same because it is a way of saving money but keeping within the target set, which no doubt will be reinforced by the mandate. I am not expecting him to answer, but it is an interesting question of whether that is reasonable or not.

On the question of the relationship between the health and well-being board and CCGs on their clinical commissioning plans, I realise that I caused great offence to the noble Baroness, Lady Eaton, and my noble friend Lord Beecham by describing the esteemed Local Government Association as a pressure group. I meant it in the context of tabling amendments here; although we are often helped by groups outside, we none the less stand on our own two feet. Now that my noble friend has given me the LGA evidence, I have to say that it was pretty weak and woeful stuff in relation to health and well-being boards. I have another document here from the Association of North East Councils which has produced an excellent paper on health and well-being boards that really gets to the heart of how these could be the engine room of change, collaboration and co-operation across public health, health and social care.

I understand the point the noble Earl has made about CCGs being accountable—I am not sure who they are accountable to, but they are accountable—for the commissioning plans, but my amendment allows for that. Essentially it says that the health and well-being board has the leverage to be able to call in the commissioning plans. In the end, if there is no agreement, although I suspect that normally there would be agreement, it will be up to the board to decide how to go forward, so there is a kind of mechanism for dealing with that. However, we underestimate the potential of health and well-being boards at our peril. I hope that I can persuade the Liberal Democrat Benches to have the courage of their convictions and support giving local authorities, through the health and well-being boards, much greater clout in this in the future. I beg leave to withdraw my amendment.

My Lords, Amendment 185, tabled in my name and that of my noble friend Lord Patel, proposes that each clinical commissioning group must monitor the performance of primary care practitioners within its area and report its findings to the NHS Commissioning Board. The purpose of this amendment is to try to explore with Her Majesty’s Government their approach towards performance management and the assessment of outcomes in primary care.

In hospital practice we are all obliged to subject ourselves to very careful performance assessment. There is careful collection of data on clinical outcomes, patient safety and patient experience. Indeed, with the adoption of service line reporting in many acute trusts, there is also meaningful information on the utilisation of resources to be able to determine whether those resources are being appropriately used to achieve the best clinical outcomes for our patients. The availability of the collection of these data and their reporting is having an important impact on transforming clinical care in the acute secondary sector. For instance, only this week the report on data analysed by the Dr Foster organisation has demonstrated that in certain acute trusts at weekends, where staffing levels are potentially not appropriate, particularly for senior clinical staff, the management of acute stroke, myocardial infarction and other acute emergencies is associated with a less good clinical outcome.

To date, a similar approach to the collection of outcome data in primary care has not been achieved. As a result, it is not possible to speak with the same certainty about the performance of individual practitioners in primary care or indeed the performance and outcomes of primary care teams. This is a particularly important issue in the Bill. Rightly, the Bill recognises the importance of trying to change patterns and pathways of care to ensure that those with chronic conditions are more routinely managed in the primary care environment rather than being referred to the secondary care environment. However, if appropriate arrangements are not in place for the assessment of outcomes and performance in primary care, the transformation of clinical pathways of care to the primary care environment could result in a deterioration of standards and poorer outcomes for those patients because there will be no routine collection and reporting of the data on performance.

My Lords, I support my noble friend Lord Kakkar’s amendment on the performance of general practice and primary care physicians. I am a fellow of the Royal College of General Practitioners, although after I have said what I am going to say, maybe I will not be any more. I hope that that not will happen, because I say this wishing to help my primary care colleagues.

The noble Lord referred to the King’s Fund report, published in April 2011, which was an inquiry into the quality of general practice. The inquiry was conducted by an independent panel of experts, chaired by Sir Ian Kennedy, and represents the most extensive review of quality across general practice undertaken in recent years, bringing together a wide range of evidence for the first time. The inquiry concluded that, while the majority of care provided in general practice is good—I emphasise that—there are widespread variations in performance and gaps in the quality of care delivered by some general practices. There are variations in the quality of diagnosis, particularly for cancers. There are disparities in the rate of referrals; for example, there is an eightfold variation in the rate at which practices urgently refer patients with suspected symptoms of cancer to a specialist. There is variation in the quality of prescribing. It is estimated that the NHS could save at least £200 million a year through more efficient prescribing of drugs such as statins.

The report also highlighted concerns that continuity of care is worsening, despite the evidence that this is what patients prefer and that they prefer to see the same general practitioner. Variations in the experience of patients and co-ordination of care highlighted by the report also included wide variations in admission rates for patients with conditions that could be treated outside the hospital. While we are promoting fewer patients going into the hospital, that is an important point. Only one in 10 patients with long-term conditions reports being told that they have a care plan, despite a policy commitment that all of them should have one.

There are a number of challenges facing general practitioners: demographic change, higher patient expectations, new technology and medicine, and the changing environment in which they operate. The challenges are therefore accelerating the trend for practices to work as multi-professional teams, with GPs working closely with specialists and other professionals within and outside their practice, delivering a new deal for patients that involves them much more closely in decisions about their care. GPs are moving from being gatekeepers—usually keeping the gate closed—to navigators, co-ordinating care for people with complex needs and helping and guiding patients to other public services, and being held accountable for the quality of care provided, which is accelerating the shift away from small practices working in isolation towards a more federated network of practices working more closely with one another and other professionals. Practices are looking beyond their surgery door by focusing on prevention and taking a more active role in public health issues such as obesity and reaching out to deprived communities.

CCGs will have a critical role to play in supporting quality improvement in general practice, monitoring the quality of individual practices and sharing their knowledge of this with the NHS Commissioning Board, which will hold the contracts of nearly 2,000 practice groups, and with the Care Quality Commission, which will be responsible for registering practices. It will also be important that the national contracts, the commissioning outcomes framework and the quality premium—no doubt we will discuss that in another group of amendments—are aligned to improve patient outcomes. The experience of the quality outcome framework, QOF, has been that it is too narrowly focused. Research has shown that it has not actually delivered in improving outcomes and is insufficiently ambitious in the performance benchmarks that it has used. With most practices scoring over 90 per cent against QOF measures, the National Quality Board concluded that it,

“is not sufficiently able to discriminate between performance”.

In terms of measuring performance in primary care, and particularly in terms of measuring performance in relation to chronic diseases, the experience from the United States is quite interesting, and I shall quote it so that we can learn from it:

“All of the US groups in this study aimed to performance manage their doctors”—

this is in California—

“both specialists and primary care. For primary care physicians especially, where quality indicators were more prevalent, peer review of performance data on productivity and quality was relied upon as a valuable route to improved performance”.

The document also says:

“It was common for data to be reported back to individual physicians, usually with names attached”—

a practice that is carried out in some specialities in the United Kingdom—

“The leadership of medical groups was clear that intra-peer competition was a powerful tool for improvement”.

It states further,

“It is notable that the US medical group leaders were clear that the financial interests should never interfere with decisions about what was best for individual patients. In containing utilisation, they attempted to appeal primarily to doctors’ clinical professionalism”,

and that CCGs and the NHS Commissioning Board will,

“have to make a convincing clinical case to their rank-and-file GPs for efficiency, based on evidence about service quality. Without this, GPs are unlikely to cooperate with a consortium’s wider goal of achieving cost-effective care”.

My noble friend Lord Kakkar quoted the noble Earl being reported in the Health Service Journal. If I might tease him a bit more, he also said that CCGs and the NHS Commissioning Board would be better able to tackle performance than PCTs, and that the report that he approved of,

“makes clear we haven’t had sufficient levers in the system to expose substandard general practice in the past, and we do need to do that”.

He might, then, be able to say what the thinking is towards achieving this.

My Lords, this group of amendments is complex. I declare an interest as I chaired the commission on medical generalism, whose report is currently being consulted across the general practice community in the UK. I am also a fellow of the Royal College of General Practitioners, having worked as a GP myself. Having said that, our report highlighted the wide variation in training of general practitioners, and the need for general practitioners to develop new pathways of working with secondary care, to be gate-openers at appropriate times, and not to keep the gate closed inappropriately.

I would also draw your Lordships’ attention to an article in this week’s British Medical Journal which asked whether general practitioners are being adequately monitored, and quotes a senior general practitioner as saying:

“If you asked me, ‘Do you know how safe general practice is?’, I would say, ‘I have no idea’”.

The article, sadly, highlights the fact that, in a snapshot of GPs referred to and subsequently disciplined by the General Medical Council, GPs are overrepresented in comparison to hospital doctors. That is partly because hospital doctors are employed in NHS trusts, working in teams where they are overseen by other people, whereas GPs are, typically, independent contractors, sometimes working in isolation, despite the recommendations from people like Dame Janet Smith. That makes it harder for those with responsibility for primary care to access the information that could alert them to poorly performing doctors.

That was the background to my amendment about NICE, which I unfortunately missed in the order—I realise that I can do nothing about that now; it was, anyway, a probing amendment—but it came out of evidence given to us in the commission. One of the pathfinder groups was clear that it did not feel under any obligation to adhere to or observe NICE guidance in the way in which it commissions services.

My Lords, I will speak to Amendments 213A and 213B, which are both probing amendments that concern the powers of the board with respect to clinical commissioning groups, and the all-round capacity-building of the clinical commissioning groups. Clearly, in their emerging, embryonic state they will need guidance, support and assistance. We hope that as they grow and improve, the need will decrease with time. However, when the need for growth and nurturing ends, the needs will change, new challenges will come along and there will be a constant need to ensure that clinical commissioning groups are able to draw on expertise in capacity-building. The amendments call on the board to offer this.

Proposed new Section 14Z8(2) states:

“The assistance that may be provided includes … financial assistance”.

That is already there. We propose to add,

“building and supporting capabilities”.

We anticipate that the board will do this, perhaps through the local field forces that will be best placed.

When the Bill was published, there was no provision. There was financial assistance and an undertaking to make available the services of the board to clinical commissioning groups, but it was not made absolutely clear what that meant and there was nothing specific about providing capacity-building. The amendment fills that gap. Will the Minister explain how it is anticipated that this could be provided? Is it expected that this should be commissioned by CCGs from the private sector?

My Lords, the preceding speakers put their finger on a big issue—namely, the quality of primary medical services and GPs. As noble Lords tactfully put it, the Government propose to give enormous power to GPs when the quality of their provision is variable, as we know. There is a fundamental question about why the Government consider that GPs are so well placed to exercise this huge commissioning responsibility. All Governments have struggled with this area. Out-of-hours services is an example of where GPs should have been in the driving seat, but it was not a great advert for their commissioning abilities. There is a genuine question, although it is probably a bit late for the noble Earl to answer it in depth, about the great ability that GPs are supposed to have in relation to commissioning. I am extremely puzzled by the logic of the government reforms. We have never been given an answer about why so much power will be given to general practitioners. It is extraordinary.

My Amendment 213 in this group concerns the power conferred in new Section 14Z7 on the board to exercise the functions of the clinical commissioning group at the request of a clinical commissioning group. I also have another probing amendment, Amendment 213ZA, concerning the power conferred in new Section 14Z8 for the board to “provide assistance or support” to clinical commissioning groups. Can the noble Earl clarify the kind of circumstances in which those powers can be used? Could he also say how this relates to the failure regime for clinical commissioning groups?

On a somewhat different tack, Amendment 220C concerns new Section 223G with regard to the financial allocations to clinical commissioning groups. The amendment requires the board to publish each year details of the methodology used to determine allocations to clinical commissioning groups. It is important that there is transparency in the allocation process, and the best way to ensure that is to publish full details of the methodology behind the allocation. For instance, will socio-economic factors influence the allocation? How much will health inequalities be taken into account? It would be helpful if the noble Earl could give an indication at some stage of the methodology and how transparent it will be.

My Lords, I speak to Amendment 239A tabled in my name. The Minister will remember the protracted debates surrounding the drug tariff and the concerns of the thousands of people who use a wide range of incontinence products and services. As anyone who knows what life is like if you have to depend on the reliability of a stoma bag or a catheter, these products and services provide the bedrock of our dignity. Soiling ourselves in public is one of the deepest fears we all share, and despite the dry sound of the wording—I forgive the unintended pun there—this is what the amendment is about.

The months and years of negotiation around the drug tariff were finally resolved, but concerns have now been renewed with this Bill. Currently, it is the Secretary of State’s duty to set the drug tariff’s national framework. This sets the price and standards of prescription products such as stoma appliances, and the fees that pharmacies and appliance contractors can charge for their services, such as a home delivery service. But now the Explanatory Notes to the Bill suggest that, in the future, the drug tariff will be split. The NHS Commissioning Board will determine the level of fees and allowances paid for pharmaceutical services, while the Secretary of State will determine the reimbursement price for actual products. This amendment would require the NHS Commissioning Board to consult with appropriate representatives of patient groups and the industry before determining the payments. It is a probing amendment to get clarity on the relationship between the Secretary of State’s powers to set national frameworks and those of the NHS Commissioning Board in relation to pharmaceutical expenditure. There are concerns that changes to this system and any reduction in the Secretary of State’s powers to set national pharmaceutical reimbursement and remuneration will lead to the potential fragmentation of services across the country and deteriorating quality of care, with patients unable to get the products they need to ensure their well-being and independence.

There is particular concern about the implications for the services that pharmaceutical contractors provide to patients. These should be determined separately from the products that patients use. Obviously, being taught how to use an appliance properly is essential for its effective and safe use, but without that support in the community, there is a much greater likelihood of inappropriate usage, the increased risk of infection and higher rates of device wastage, which will result in greater costs for the NHS and much more risk for patients. There is a need for greater clarity about what the changes to the Secretary of State’s powers would mean in practice and what the impact of these changes will be on the future stable supply of these products and services.

There are around 400,000 people in the UK who use urology and stoma products on a long-term or lifelong basis and, of these, around 150,000 who use a dispensing appliance contractor to deliver their products rather than a pharmacy. It is important that a wide range of products is available as people’s needs vary so much. It is essential that someone can continue to receive a product in which they have confidence. What is more, these are invasive products, so the clinical services offered by pharmacies and dispensing and compliance contractors are also critically important to being able to steer clear of hospital and maintain your ordinary life and work. At present, the existing pharmaceutical service regulations provide patients with choice: choice of a clinically appropriate product and a delivery method that suits their needs as long-term users. It is vitally important that this security is protected in the new NHS architecture.

There are already concerns about the fragmentation of arrangements. Some PCTs have introduced restrictive formularies in an attempt to limit patient product choice, while others have tried to restrict choice of supplier by introducing a preferred provider. There is concern that the number of such developments could expand once the number of commissioning organisations increases, creating more and more postcode lotteries.

I would ask the Minister four questions about what is an essential service, despite the amount of talking that goes on in the Chamber. First of all, what powers will the Secretary of State have to determine reimbursement prices for products and remuneration fees and allowances for pharmaceutical contractors? Secondly, how will the changes to the Secretary of State’s duty to determine pharmaceutical remuneration affect the drug tariff? Thirdly, what is the Government’s position on the future of the drug tariff? Finally, how will the Government ensure that patients and industry are consulted before the NHS Commissioning Board and/or the Secretary of State determine pharmaceutical remuneration? I beg to move.

My Lords, I want to support my noble friend. All I want to say is that these products are absolutely vital for people with long-term conditions. Will the Minister say why there is a split between remuneration and reimbursement? We would really like the answer to that question. It is even more worrying if the Minister does not know that there is a split, since that will cause fragmentation.

My Lords, if I might intervene briefly, I think that this short debate has just illustrated that some people in our community are extremely vulnerable to small changes in commissioning, which may deny them a product that they need to maintain their independence and dignity and to be able to function fully in life and feel like a whole person. It is not appropriate for us to look only at some of the things that are easy to count—such as hip operations, major heart disease or whatever. Issues such as continence devices are difficult for people to talk about. It takes a lot of courage to raise them in a debate, as the noble Baronesses have done today, but they are incredibly important and there is a real concern out there that people will not get what they need to carry on functioning in the society in which we live.

The point that I will raise with the Minister is far less important than the one just raised by the noble Baroness, Lady Finlay. I merely point to new Section 14Z19. Simply, I am puzzled about its heading, which refers to the “Power to give directions”. My understanding was that we had already discussed at great length the fact that the only powers to give direction depended on the existence of a failure. Whether there is a mistake in the text, I do not know. Perhaps the Minister can explain why the power to intervene relating to the Secretary of State suddenly creeps back into the Bill when I thought that we had established that it was elicited only by a significant failure.

My Lords, in responding to these amendments, I begin by highlighting one basic point. Our intention is that the relationship between the NHS Commissioning Board and CCGs should be mutually supportive. Of course, the board will have responsibility for overseeing the system of CCGs, authorising them and making any subsequent changes to their constitution, as well as for assessing their performance each year. In addition, the Bill gives the board clear powers of intervention. We should recognise, without the need to change the heading of new Section 14Z19, as Amendment 220ZA would do, that the intervention powers of the board are expressly designed for circumstances in which the CCG is at significant risk of failing, is failing, or has failed, to exercise its functions.

However, the board is also there to provide effective support to CCGs beyond the allocation to them of commissioning budgets. On this topic, while supportive of the principle behind Amendment 220C concerning transparency in how the board determines its allocations to CCGs, we should be cautious in our consideration of amendments on the specifics of how the board performs its functions, which would be better suited to the Secretary of State’s mandate.

The Bill contains provisions to equip the board to act as a supportive partner to CCGs in the exercise of their functions. These provisions are flexible and proportionate, and I would urge that they stand unchanged. The board has the power to provide direct support to a CCG if it requests it, by taking on the specific commissioning function of a group. That is to say, if a CCG needed support in exercising its ability to commission care to meet the needs of its population, as set out in these proposed new sections, the board could, at its request, step in and undertake the commissioning function on a temporary basis. This is a sensible power to give to the board and CCGs, and it would be unwise to remove it. CCGs would only make such requests where they felt they needed the support of the board—that is obvious—and the use of this power would prevent deterioration in a CCG’s ability to exercise a commissioning function, with its attendant threat to patient outcomes. It might be valuable, in particular, where a CCG or CCGs were finding it difficult to effectively commission for more specialised services across a much wider area than that covered by individual, or small groups of, CCGs.

There is no question of CCGs using this power to delegate their legal responsibilities for their patients. Even where the CCG requested that the board should support it by exercising a function on its behalf, the CCG would retain legal responsibility for the exercise of the function. That could not be delegated. The board, similarly, could not arrogate CCG functions. A CCG must expressly request that the board undertakes a function on its behalf. Noble Lords should also note that the power in new Section 14Z7 may be limited by the Secretary of State in regulations so as to ensure, should it be necessary, that certain functions of the CCG cannot be so delegated to the board.

Likewise, Amendment 213B is not necessary. I emphasise that the support or assistance that the board can supply would be in order to build CCG capability. This is unequivocally one of the reasons why the board would provide resources, or employees, or financial assistance to a CCG, so I fully support it. The amendment is slightly out of place as it adds to the list of ways in which the board would provide support, but is in fact an outcome of those inputs. I worry that it may lead the board to give undue weight to that outcome when we do not want to imply that board support should be limited to that objective. Clearly, without this amendment, the board has perfect freedom within the provisions of this section to support CCGs in building their capacity and capability. I hope, therefore, that this will be sufficient for the noble Baroness.

Some of these amendments would change the relationship between CCGs and providers of primary medical services and pharmaceutical services. CCGs must support the board in discharging its duty under Section 13E in relation to securing continuous improvement in the quality of primary medical services. It is right that this duty is expressed in terms of quality improvement. Amendment 185 would place a duty on CCGs to support the NHS Commissioning Board in securing continuous improvement in primary medical services by monitoring the performance of individual primary care practitioners in their area and reporting their findings to the board.

I support the concern of the noble Lord, Lord Kakkar, to ensure that CCGs are effective in supporting the board on the quality of primary care. As the noble Lord rightly said, quality in primary care is absolutely key to the success of the NHS, not least in managing chronic conditions. A great deal of work is currently going on in the Department of Health to construct meaningful quality metrics for primary care, including patient-reported outcomes, combined with plans to ensure the transparency of general practice performance. Our information strategy, which we will publish in a few months, will say a lot more about that. However, I fear that stipulating what activity CCGs should undertake in exercising this function would be to impose too specific a requirement on them in the performance of their duty under new Section 14R. The philosophy of the Bill is very much to limit processes and instead focus on outcomes.

The Commissioning Board will performance-manage contracts with providers of primary medical services, although it may ask CCGs to carry out on its behalf some aspects of the work involved. That could include promoting reviewing practice performance and ensuring clinical governance. However, it must be the board’s decision as to how it wishes to performance-manage its contracts with providers, and how it should be supported in that by CCGs. The CCG will similarly want flexibility in its approach to how, as a peer group, it ensures the quality of the care provided by individual practitioners and practices. In this regard, the experiences of GPs as commissioners under practice-based commissioning will be invaluable in identifying ways to strengthen the relationship between practice and commissioner. There have been a lot of very useful lessons learnt from practice-based commissioning, which must not go by the board.

In general, clinical commissioning groups will play a systematic role in helping to monitor, benchmark and improve the quality of primary medical services for the practices within their membership. This will include the use of clinical governance and clinical audit. Armed with the right information systems, clinical commissioning groups will be well placed to spot potential issues of poor performance at an early stage, to identify the root causes of the problems and to work with the board or the Care Quality Commission and other agencies as necessary to support practices and practitioners in improving performance. I see it as a mutually supportive arrangement. We have already had proof of this, as I say, in many practice-based commissioning consortia.

Local medical committees will also have a role to play here. I very much recognise the important role played by LMCs in relation to the local provision of primary medical services. We want this to continue, which is why the Health and Social Care Bill continues to provide a legal framework within which local medical committees may operate. The proposed amendments to Section 97 of the NHS Act 2006, which are set out in paragraph 42 of Schedule 4 to the Health and Social Care Bill, fully preserve the existing primary legislative provisions, with references to primary care trusts being replaced by references to the NHS Commissioning Board. This is a straightforward consequence of the proposal that the NHS Commissioning Board should take on statutory responsibility for the commissioning of primary medical services from PCTs.

Under the Bill, the NHS Commissioning Board will be able to arrange for clinical commissioning groups to undertake some of the board’s functions relating to primary medical services. Where these functions include a duty on the board to take certain actions with regard to LMCs, the delegation of a function will not alter this duty. As well as protecting the existing legislative framework, I very much wish to encourage both the board and emerging clinical commissioning groups to identify ways in which they can work with LMCs for the greater good. I believe that this important task will be more successful if it is not constrained by further primary legislation. After all, local relationships have been shown to flourish within the existing primary legislative framework, which we are maintaining.

The noble Lord, Lord Hunt, asked, “Why GPs?”, and contended that the Government had never explained why GPs should be given the responsibility for commissioning. I found that a rather extraordinary statement. He may recall that his right honourable friend Andy Burnham was very keen on GP commissioning—and I hope still is. In May 2006 in another place he said:

“We are introducing practice-based commissioning. That change will put power in the hands of local GPs to drive improvements in their area, so it should give more power to their elbow than they have at present”.—[Official Report, Commons, 16/5/06; cols. 861-2.]

That is an endorsement of the principle if ever there was one.

My Lords, I cannot let that pass. Of course, but that was within the context of a statutory framework that was a delegation from primary care trusts. The problem with the new system is that there is no accountability for what GPs do. There is simply no accountability whatever for GPs’ commissioning decisions to the public and patients.

I totally and utterly disagree. There is bags of accountability in the form of accountability to patients in the local area, accountability to the health and well-being board, and to the NHS Commissioning Board which we have debated at length. I do not understand why the noble Lord should doubt this. It permeates the Bill. Indeed, the whole thrust of our policy has been around two words: “autonomy” and “accountability”. They are two sides of the same coin. You cannot have responsible autonomy without accountability, and we believe that we have built it into the system. The noble Lord may not have been in the Chamber when I answered my noble friend Lady Tonge a while ago, who asked me a similar question: why on earth are we doing this? We have published a White Paper and numerous documents to explain why we think this is the way to go and the philosophy behind what we are doing is that clinical commissioning about placing the financial power to change health services in the hands of those NHS professionals whom the public trust most. We know that the public trust them most and we believe that they are up to the task, and so do they.

The noble Baroness, Lady Wilkins, asked me about the drug tariff and appliances. I am the first to recognise how important this is. I myself, when in opposition, lobbied the department rather hard on the subject on a number of occasions because I well recognise all the issues to which she referred. Appliance contractors will be consulted about appliance services and remuneration, as they are now. As now, a full range of pharmaceutical services are expected to be commissioned in the future, including appliance services, but in view of the hour the best thing for me to do is to write her a letter. She raised a number of issues and it is probably appropriate that I should write to her and copy the letter to noble Lords.

I hope that I have at least illuminated these areas helpfully for noble Lords and that the amendment will be withdrawn.

I thank the Minister for his detailed and helpful response to Amendment 185 and to the amendments tabled by other noble Lords in this group. With regard to the question of securing the information and proceeding with some certainty on being able to understand that there will be an appropriate assessment of outcomes and performance in primary care, I think that more work needs to be done. It is clearly a very important area and this debate has highlighted ongoing concerns and anxieties; not so much about the principle—I think that all noble Lords have accepted the principle that it is important that there is appropriate assessment of outcomes and performance in primary care—but that mechanisms are going to be in place to ensure that those data are collected, are made publicly available and can be acted upon to ensure that the very best healthcare is provided for the patients of our country. Recognising that there is more work to be done, I beg leave to withdraw the amendment.

My Lords, the Minister already knows that, in moving the amendment, I use the example of the dangers of prescribed drugs and the urgent need to commission services for those suffering from addiction and withdrawal. This amendment follows the interesting amendment of the noble Lord, Lord Rooker, on Monday. I am sorry that I could not support him in his attempt at a Division because he said a lot of interesting things, although I know that this has become an historic occasion. That amendment pointed to the advantages of building on the work of voluntary organisations, especially those in the vanguard of meeting a particular need, as they are in this case. I know that the Minister has given an answer, that the board and clinical commissioning may want to find work that will assist in the effective commissioning of services:

“For instance, the board may provide funding to voluntary organisations with particular expertise in the provision of support to people with rare specialist conditions”.—[Official Report, 28/11/2011; col. 119].

I have some experience of voluntary organisations, and I know that, on the whole, they provide a cost-effective service; the argument has already been well made in the debate. Using the example of prescribed drugs, research into current services has shown that, in a few cases, the NHS is already working alongside very frail NGOs. In some cases, the relationship is symbiotic. For example, in Belfast a very skilled NHS worker is leading the team. In Bristol, Oldham and Newcastle the PCTs are part-funding local services and providing care workers. However, in most areas of the UK PCTs are woefully unaware of the problem and the department is woefully unaware that the PCTs are unaware, and therefore no-one is able to provide the necessary training and meet the need. The noble Lord, Lord Warner, spoke earlier about the shortcomings of PCTs as commissioning groups in certain situations.

My first question is already answered: can the Minister assure me that he will do everything to support good practice in the voluntary sector for victims of prescribed drugs or for any other deserving category of patients? It would help if there was a duty to support NGOs in the Bill. I know that cannot be the case, and, as I say, the Minister has answered this.

Coming specifically to Amendment 203, I will briefly repeat my interest, because, as the Minister already knows, a relative of mine has been confined to his room for over a year in almost constant pain, unable to take part in everyday life or even in family life. I do not wish to ask for special pleading, because he is one of perhaps 1.5 million people who have taken sleeping pills or other benzodiazepines who are now at risk from drug addiction which in some cases is worse than illegal drug addiction. Most of this is at the hands of doctors. As I said at Second Reading, the NHS has created a problem and it is up to the NHS to solve it.

My research tells me that the Government are not solving it. They are confusing illegal with legal drugs and they are making polite noises about what they might do, but they are not doing it. They are making claims at a high level about services which are clearly not being provided at a lower level. While the voluntary sector is being forced to act on its own, the Government show little sign of supporting it and in the present climate are likely to resist anything new.

My amendment is about the CCGs commissioning services themselves. I know that we are going through a period of change and it is very hard to see what is now a PCT or an emerging CCG. I do know that a service confronting benzo-addiction withdrawal is not an easy service to set up. Voluntary activity so often stems from the experience of individuals who have had such experiences. Up and down the country, there are some people of high quality who have either been through the perils of addiction themselves or have been very close to someone who has been addicted. They are the people who can do the job. They are remarkable not only because they are able to apply their experience as carers and therapists without training, but because they have also had to teach themselves management, the ability to start an office, to raise funds, to advertise a service and most of all to balance time and money when there are so many other things to think about. It is like a health service in miniature. These are the people whom this Bill should support and to whom the CCGs should have a duty. I beg to move.

My Lords, I support my noble friend’s amendments. Addiction to over-the-counter drugs is an important issue. It can cause suicide. It ruins families. People cannot work. It needs all our support and I hope that the Minister will do something about this.

My Lords, I support the noble Earl. He initiated a debate on this question some time ago. As I said at the time, one has to be careful. There are many patients who benefit considerably from some of these medications, when they are given responsibly and monitored responsibly, but that does not always happen. One has to take this particularly seriously because, while those with alcohol and drug addiction often come to the health service for treatment—although perhaps they should come more often—this kind of addiction to prescribed drugs is effectively an iatrogenic disorder. Patients have come to have these medications, and they are not all over-the-counter medications. They are available properly only through doctors, so doctors and the health service have to take a particular responsibility. In that regard, I support the noble Earl in his concerns and I hope my noble friend the Minister will be able to give some reassurance that this is regarded seriously as an iatrogenic disorder that the health service is in some cases responsible for bringing into play through absence of proper monitoring and, in some cases, errant prescribing.

However, there is a second component, which is the involvement of NGOs and charities in treatment. When I was a young psychiatrist, I was very interested in alcohol and drug addiction and I worked in a unit. We did not have a specialised unit in Northern Ireland at that time to deal with drug addiction. I looked around in Ireland, North and South, and on this side of the water to find a service that would work. I found a voluntary organisation for addicts. I had myself admitted and went through the whole process as though I was an addict, removing myself from any contact with family and all my worldly goods, as it were, engaging in all the groups and the responsibilities that people undertook, the therapy sessions and so on. It was a very important experience for me because, like some other things that I did, it helped me to see things from the point of view of the patient and the kind of things that we were expecting patients to undertake.

However, I was doing it not only for my own interest, but to try to see what services would be possible in Northern Ireland. It became clear to me that, for all sorts of reasons, it was extremely difficult—well nigh impossible—to implement a service of that kind within the NHS, because we put all sorts of restrictions on the NHS. For example, one of the things that was very important was to go and do the washing and the cooking and be involved together in those kinds of things. If you tried to do that in the NHS, you immediately ran into all sorts of regulations, which we frequently discuss in a place like this. So it is not always that easy to do.

In a more general sense, sometimes charities and voluntary organisations can bring special things to services that it is very difficult to provide in the context of the NHS. Some of these are experimental and we should wait to see whether they are successful before the NHS takes them on board. That is very appropriate, but the burden of my plea in support of what the noble Earl says is that we should try to ensure that the contribution that is made by charities, particularly smaller charities, and voluntary organisations, which can experiment in these ways, continues to be valued. I have received a number of reports of some of the smaller charitable organisations, in the current climate—not after changes in legislation—finding it increasingly difficult to survive, because they only provide limited services. We have to take this seriously. I do not necessarily say that it has to go in the Bill, but even at this late stage in the evening, the noble Earl deserves credit for raising this question, and I hope my noble friend can give some comfort on it.

My Lords, I also support my noble friend Lord Sandwich on this terribly important topic. It links back to standards of primary care, which we have spoken about earlier this evening. I know that it is very late, but I hope that the Minister might take this away and consider it in terms of the standards of monitoring of primary and secondary care—as has been said, this is an iatrogenic disease for many people—and the importance that the third sector can play and fill a major gap that is not filled by any services that are formally commissioned. Without the third sector, these people will end up becoming ever-more needing of NHS services, but sadly they often get services that are not appropriate to their needs.

My Lords, may I briefly speak in support of the amendment? I suggest that the duty to provide services to those suffering from addiction and withdrawal should also be a duty to ensure prevention of inappropriate prescription, which I think was implicit in what the noble Earl was saying. There are some very good NICE guidelines available. That refers back to an amendment of my noble friend Lady Finlay. It is important that commissioning groups require clinicians to take note of NICE guidelines, which might assist in preventing this kind of problem developing in the future.

My Lords, I was very pleased to put my name to the amendment tabled by the noble Earl, Lord Sandwich. He and I have been discussing this for several years from various vantage points of my own, as a Minister and then supporting him in debates in the House. In a way, we lose sight of patients with conditions when we discuss this Bill. We talk about the theories of the clinical commissioning groups and how the relationships will work, the coterminosity of things and all of that, but at the end of the day it is about people who are ill, who have conditions or who are in very grave need of support. That is this group of people—those who have been prescribed drugs in a perfectly normal way by doctors and who then become addicted to them.

Several things happen here, which the noble Earl has very eloquently described. One of them is that the NHS seems to find it difficult to distinguish between the addiction of these people and drug addiction for illegal substances. That means that the treatment that is offered is often inappropriate.

In a way, this amendment is a test of the efficacy of the Bill. Can this new architecture deal with the problem that is being posed by this group of patients? In a way, I am looking for an answer from the Minister to address that. There is no question that some small progress has been made in support of voluntary organisations and in a few parts of the National Health Service through PCTs, which are of course being abolished, to address this issue, but it is not sufficient. I am worried that that progress is in jeopardy in the transition.

How will the transition ensure that what already exists is supported? This particular issue is a special and important one. It is not a huge issue in the framework of billions of pounds being spent by the NHS, but it is very important for those patients for whom it matters and for those in the future. So who will have responsibility for it? At what level will it be addressed? And how will the transition protect what exists at the moment?

My Lords, the point raised by the noble Earl, Lord Sandwich, who has worked very closely in this field, should disturb all of us. It is a very late hour and I do not wish to detain the Committee any longer, except to say that one of the parts of the answer to this problem could be a much closer involvement of pharmacists in the whole issue of the drug regulation of individual patients. I know that my noble friend Lord Clement-Jones has raised before the question of how far qualified pharmacists can be brought more closely into very integrated working with CCGs. I simply suggest that this may be one of the ways to limit the terrible plight that the noble Earl, Lord Sandwich, was talking about—an individual pharmacist related directly to somebody who was closely dependent on a drug regime and the misuse of that drug regime in a way that leads to addiction.

My Lords, I add my thanks to the noble Earl for his continued commitment to highlighting the needs of those suffering from addiction to prescribed drugs. It is one of the virtues of our House that it allows scope for noble Lords to highlight these issues in this kind of context. I am the first to recognise the pain and the plight of those whose lives have often been seriously damaged by such addiction, not to mention the damage done to families.

There are clear national guidelines for the usage of and withdrawal from prescribed drugs such as benzodiazepines, and GPs, pharmacists and specialist prescribers have those guidelines, but we know that what the noble Earl said is correct. There is access to support and treatment services for addiction to medicines in most local areas but some local areas are woefully short of such services. My department has commissioned evidence-gathering reports looking at the problem of addiction to prescription and over-the-counter medicines. We published a report on that in May which found that support is provided from a variety of services across primary care, community care and the voluntary sector. However, it also found such patchiness of provision.

I am sorry that the noble Earl said that he felt the Government showed little sign of supporting this group of patients or indeed taking the cause seriously. The national drugs strategy sets out an ambition to tackle all drugs of dependence, including dependence on prescription and over-the-counter medicines. My honourable friend the Minister for Public Health, Anne Milton, convened a round-table meeting of experts to discuss the future action required to prevent addiction to medicines and to improve support for people who develop problems. It included consideration of specific actions to support the commissioning services to respond to addiction to medicines, and a draft note of the actions agreed at the meeting has been published. We will be convening that round-table meeting in four to six months to review the progress against the action points. I hope that the noble Earl will accept that this is an indication not only of good faith on the part of the Government but of our appreciation that this is a problem that we have to tackle.

We believe that local bodies, with their greater knowledge and understanding of local health needs, are best placed to assess the needs for services in general. That includes rehabilitation and support services. Under the arrangements set out in Healthy Lives, Healthy People, local public health bodies will be responsible for the commissioning of services in line with local need to support people recovering from dependence. This will provide local areas with an opportunity to better integrate the commissioning of drug and alcohol intervention and recovery services. Services will be contracted from a wide range of providers including the voluntary and community sectors.

We think that local areas have a wealth of data at their disposal and the ability to consider this group of people within their local commissioning plans. The noble Earl, both implicitly and explicitly, cast doubt on the ability of local health bodies to tackle this problem. I have to concede that in many areas, or at least in some, the local structures have not been fit for purpose, but I highlight my belief that those local structures are being immensely strengthened by the arrangements that we are putting in place. Here I have in mind the health and well-being boards, which will be a local hub in which the health needs of an area and the priorities for healthcare can be defined and built in to the joint health and well-being strategies on which commissioning decisions should be based. The whole idea of that is that no group should fall through the cracks. If there is a need for a service, it should be identified through that process.

We do think that the outcomes framework, which does not appear in this Bill but overarches everything that we are doing, will expose poor practice. It will expose those groups of the population that are not being well served, and the commissioners will be called to account for their actions or lack of actions. So I cannot promise jam tomorrow, but I do, I hope, hold out the prospect of significant improvement in this area. I would just emphasise to the noble Earl that, in the mean time, the Government are not going to take their foot off the accelerator. We do intend that his concerns should be addressed, and I hope that what I have said is of some help and comfort to him.

Well, I certainly am not going to pick a quarrel with the Minister after midnight. I do not accept everything that he said. I do not think that I have convinced him, but at the same time I have heard some very encouraging sounds, and he is quite right that I have followed what the Minister’s personal interest has produced so far, because that is important. His colleague, Anne Milton, is certainly seized of the problem. The question is: where do we go from here? I certainly will not prolong the discussion now, but I am grateful to have had the opportunity to raise it and thank everybody who took part in the short debate. I beg leave to withdraw the amendment.

My Lords, as we come to our final group tonight, I shall be brief. This amendment relates to payments to clinical commissioning groups in respect of quality. Noble Lords may speak to other amendments in the group which focus on payments for improving health outcomes and the use of payments made to clinical commissioning groups. It would be helpful if the Minister could briefly explain the rationale for the payments, the potential size of the payments and the factors that will be taken into account. Can he provide reassurance that the payments will be used by clinical commissioning groups for commissioning services and not to make payments to general practitioners that they can then treat as personal income?

Will the Minister also comment on the potential for perverse incentives? The factors in new Section 22K(2) are very broadly defined. Could they be used in relation to a scheme to discourage patients from being treated? We know that the architecture of the Bill is built round the supposition that, as GPs are responsible for so much expenditure, if you give them the budget they will have an incentive to contain that expenditure, and I understand that. However, that might lead to commissioning groups seeking inappropriately to lessen the availability of treatment because of budgetary considerations. If there are quality incentives that could be interpreted as “demand management”—which is the term used in the health service—that is entirely understandable, but there could be concerns vis-à-vis the GP-patient relationship if patients felt that their GP was receiving personal payments in order to discourage treatment, and that that was inappropriate.

We have not yet discussed the impact on the doctor-patient relationship of these arrangements. This could be quite damaging and unless there are very strict safeguards about these quality payments there may be a lot of suspicion that essentially GPs are being given money to put in their own pockets in order to reduce availability of services to patients. Some clarification on this would be appreciated. I beg to move.

My Lords, the noble Lord, Lord Hunt, has raised an issue that has created concern in a great many quarters. The idea that an outstanding clinical group should be able to gain as a result of its outstanding performance but should then plough the money that came from that back into further improvements of the CCG is, I think, is broadly acceptable to the House. On the other hand, the possibility of such quality payments being used to benefit individual persons who are members of or partners in that CCG raises very large questions, not least about the relationship between patients and their providers within a CCG.

This issue deserves much longer consideration. It has caused quite a lot of concern in a number of quarters, some of which has been made available to us through e-mails and letters. I will not pursue the detail of the matter this late at night—I would be very unpopular if I did so—but this is not a trivial issue; it is a substantial issue and one that I hope that the Minister will feel able to answer briefly tonight, but, if not, perhaps he could return to it at a later stage.

My Lords, my name is on Amendments 222, 223 and 223A, which relate to the same issue that both the noble Lord, Lord Hunt, and the noble Baroness, Lady Williams, have covered about the quality payments. It would be wrong if these quality payments were going to any persons, whether they be GPs or employees of the commissioning groups. If they are, my amendment says states we should specify in the Bill what they can be used for. It would be perfectly appropriate if they were used for improving patient care and better outcomes for patients—that is what they ought to be about.

My Lords, this highlights clearly the difficulty we face when GPs are independent contractors. Improvements in patient care may result in increased capital investment, which is to the benefit of patients, but the capital investment is also essentially their practice pot, in some areas. If they then move on, we get into complicated areas as to what, at the end of the day, is the GP’s personal funding and what is ploughed back into improvements. It is a major incentive to improve the premises in which you work, and everybody benefits from it. Systems have been in place until now for GPs to access funding to improve their premises. That has been necessary to drive up standards in primary care. When we are looking at this issue, the way that the Government tackle will to set a very important foundation for the whole direction of primary and community care services.

My Lords, Amendments 221, 222, 223 and 223A refer to the incentive scheme for CCGs. This scheme will allow the board to reward CCGs for their performance in the light of at least one of the following factors: the quality of services provided; any improvement in the quality of those services compared with previous years; outcomes achieved for patients; and any improvements in outcomes as compared with previous years. The board may also consider the extent to which the CCG has tackled inequalities. The purpose of the quality payment is to reward CCGs for these areas, and not, as some saw it, for saving money on their budgets. Unequivocally, the board can make a payment to a CCG only where the group has performed well on quality of services or outcomes achieved for patients. It is a well established principle of public health service reform to acknowledge and reward the provision of high quality services. Quite simply, we believe that commissioners should also be rewarded for commissioning high quality services for patients.

Amendment 222 amends the criteria which the board will take into account. The amendment would mean that the board would be able to consider only improvements in health outcomes identified during the particular year. Health outcomes will indeed be crucial, and will be measured through the commissioning outcomes framework, but we must not prevent the board from rewarding improvement in other outcomes which are of benefit to patients.

The Bill gives the Secretary of State the power to make regulations as to how CCGs may spend payments received in respect of quality. Amendments 223 and 223A would require any regulations made under this provision to limit CCGs to using any payment received under the scheme for the benefit of patients or to improve health outcomes. This risks blunting the scheme. There are a range of ways in which CCGs could potentially use the money that they have earned for quality of patient care, and we must not exclude the potential for the CCG to allow members to spend this money as they see fit, including rewarding the members for their work if that incentivises the membership. If the payment is required to go into the commissioning budget, it might well eventually be no incentive at all. To ensure transparency, CCGs must publish an explanation of how they have spent any quality payment which they receive. If we can get this right, it is money well spent, as it will incentivise the delivery of improved outcomes. If such performance is not apparent, then the payment will not be made.

As the Bill makes clear, the quality payment rewards outcomes for patients, not processes or targets. It is certainly not a reward for efficiency. Final decisions, however, on the design of the quality reward have not been made yet. We intend to discuss our proposals further with the profession. This is not about paying GPs extra. It is about rewarding CCGs for successful commissioning. We agree that there needs to be further debate about how CCGs use the reward, and that is why we have introduced a regulation-making power which will enable limitations to be placed on how it is used.

We do not want to rule out the possibility of clinical commissioning groups being able to reward their members. We would otherwise run the risk, as I said, of blunting the value of the quality payment as an incentive, but we agree that great care would be needed to devise any such payments so that they are fair and proportionate, and create the right incentives to deliver high-quality care for patients—hence the provision in the Bill to make regulations.

That is probably all the detail that I can give at the moment. The noble Lord, Lord Hunt, asked me about the size of payments. I am not in a position to commit to an indicative figure at the moment. It will be up to the NHS Commissioning Board to determine the level of payments, and I am not in the business of tying its hands on that. There is quite a lot of thinking still to do about the design of this payment, as I indicated. I am sure we will return to the subject at a later date.

My Lords, that was broadly reassuring. There are just two points I would make. First, there are plenty of examples where cost-improvement programmes have taken place and staff on the unit have received a certain percentage of that cost-improvement to spend on better services. I do not think that there has been any inhibition on their part because it has not gone into their personal pocket. I would have thought that most people in the health service, including GPs, would accept that if there were payments to be made, it would be right that they go to improve patient care one way or another. I hope the Minister might look at that again.

There is a real risk here. Let us look at outcomes, quality and improvement. I would have thought that an impact on demand management, where the commissioning group GPs were working together to ensure, for example, that there were not inappropriate admissions into hospital, would qualify as a quality improvement. However, we must accept that, for the public, demand management sometimes presents some really tough issues. Even when they instinctively think that they might be better off in hospital, they probably would not be, but in encouraging patients not to go into hospital, GPs may find that the public query their motivation for doing so. Because of that, if there were any financial rewards, it would be much better if they were to go into the commissioning group as opposed to its members’ own pockets. I am genuinely concerned about this impacting adversely on the doctor-patient relationship.

The noble Lord has said that this is work in progress. My aim has been to pass on comments to the noble Earl about what he might consider in the future. On that note, I beg leave to withdraw the amendment.