Committee (13th Day)
Relevant documents: 19th report from the Delegated Powers Committee, 18th and 22nd reports from the Constitution Committee.
Clause 148 : Governors
296: Clause 148, page 148, line 11, leave out subsection (2) and insert—
“(2) For paragraph 9(3) of that Schedule (requirement for at least one member of council governors to be appointed by PCT) substitute—
“(3) At least one member of the council of governors must be appointed by the NHS Commissioning Board.”.”
With due apologies to my noble friend, it is very difficult to hear her when people are leaving the Chamber. I wonder if we might just wait for people to clear the Chamber as quickly and quietly as they can so that my noble friend may resume with her amendment.
I thank my noble friend Lady Garden very much indeed for intervening. I would like to express the apologies of my noble friend Lord Marks of Henley-on-Thames for being unable to be here on this occasion. Unfortunately he has been taken ill and will probably not be in the House again before the Christmas Recess. He extends his apologies to the House and his deep regrets at being unable to be here to move this amendment. It is therefore my honour to do so on his behalf.
The first amendment amends paragraph 9(3) of Schedule 7 to the National Health Service Act 2006 to remove the requirement for a governor to be appointed by a PCT. The reason for governors being appointed by PCTs, of course, is that they were the key sub-national level of organisation under the previous National Health Service. The Act of 2006 therefore reflects that organisational structure. I submit to the House that in the new structure it is as important that the national Commissioning Board should be able to appoint at least one—and, one hopes, more—governors to the board because of the need for a clear link between the clinical commissioning groups and the boards of the foundation trusts. Our amendment requires that at least one member be appointed by the NHS Commissioning Board in the place of the PCT appointee who will no longer be able to take his place. A substantial number of NHS patients—one hopes a majority—are patients under the foundation trusts. It is therefore important that the concerns of the CCGs and of the board should be represented on foundation trust governing bodies.
I will also briefly speak to Amendments 300, 301, 302 and 303 in the same group. All relate to the decisions to be made about the mergers or dissolutions of foundation trusts. The purpose of the amendments is to add the name of the Secretary of State to those who are required to consent to either a merger or a dissolution. I shall explain very briefly why we believe this to be of great importance. Despite these amendments looking rather petty, they are not.
The Secretary of State is in a unique position to decide on the strategy of the National Health Service over the whole country. He is in an especially good position to be well-informed on the balance between demand and supply across the territory of England. If there is no requirement for him to emerge at this point as the figure who makes the ultimate decision as to whether there should be a dissolution or a merger, there is nobody else able to detect whether the needs of all patients in England are met. As the House will be aware, if a foundation trust merges and perhaps one part of that merger ceases to offer services, that may be very much in the long-term interests of the National Health Service. The noble Lord, Lord Warner, spoke eloquently on this point yesterday. Where a foundation trust is the centre of, for example, pathways in a particular chronic illness, and where it meets the hospital needs of a substantial part of an area of the country, only the Secretary of State is in a position to decide whether that foundation trust merger or dissolution will have a major impact on the health services available in that part of England.
We suggest, once again, that this is not a tactical or micromanagement issue, but a strategic one, given the significance of foundation trusts in many parts of the country. We therefore very strongly urge the Committee to agree to this amendment. We believe it is a crucial part of the strategy of running a National Health Service in England. I beg to move.
My Lords, we have all been precipitated into this debate some 10 minutes earlier than we might have expected. I should like to speak to Amendments 296A and 298A, and to whether Clauses 176 and 177 should stand part.
Amendment 296A provides that foundation governors must,
“be notified and have the right to attend all meetings of the Board and its sub-committees and have access to all relevant documents and papers”,
under a “duty to protect confidentiality”. Amendment 298A provides that the accounts of a foundation trust or other public benefit corporation,
“must identify separately the income and expenditure which relates to any private income business, and the audit of such accounts must include assurance that all costs which relate to private income business have been properly calculated or recorded”.
I accept that the Minister has an amendment that is not totally dissimilar to this, but it does not include the words about the need to audit and have income and expenditure on the public record, which we think are rather important. Clause 176 stand part would leave out the clause that abolishes NHS trusts. Clause 177 stand part objects to the repeal of various provisions in the authorisation of foundation trusts.
We have already touched on aspects of foundation trusts. Our position is that we support the concept of foundation trusts as a model for developing a form of multi-stakeholder or community-based governance, and allowing earned autonomy for NHS providers from direct performance management. As we discussed on Tuesday, we accept the role of Monitor as a regulator of foundation trusts. We agree with my noble friend Lord Warner that the plethora of other roles that Monitor has been asked to play poses risks, and we have set out our objections to and worries about that.
We accept that the foundation trust journey is still being travelled. I suggest that it is probably time for a proper independent study of how the foundation model might be taken forward. We are where are, not where someone might have hoped we would be. We make no great claims for foundation trusts but we would agree that the more trusts that can meet the standard the better. However, some will not meet it, for many different reasons. The rush to force them into hasty mergers and takeovers will bring great risks. I point to the fact that only today the House of Commons Public Accounts Committee has issued the report Achievement of Foundation Trust Status by NHS Hospital Trusts, which I have asked the Printed Paper Office to make available. I said that it is quite possible that other noble Lords might be interested in it in the course of today’s debate.
On the point about how many trusts will make it to foundation status, I quote from the document:
“By 1 October 2011 there were 139 NHS foundation trusts, and 113 NHS trusts at various stages in the 'pipeline' towards foundation trust status. Only 14 trusts have achieved foundation status since the end of 2009 … The Department expects the majority of trusts to achieve foundation trust status by 2014, but recognises that a small number may not do so before 2016”.
The report goes on to say that there is indeed a very serious problem of hospitals not achieving foundation trust status:
“Twenty hospital trusts have declared themselves unviable in their current form”.
It suggests that more than,
“half of all trusts are not yet foundation trusts and more are likely to conclude they are unviable”,
and goes on to say:
“A particular concern is what will happen to trusts that are unable to achieve foundation status but nevertheless provide an essential service to local people”.
This report’s very timely publication needs to be acknowledged in the course of our debates on these matters.
We do not accept that every NHS provider must be a foundation trust. We agree with Sir David Nicholson that there is scope for some NHS trusts to be permitted. This also allows us to say that a foundation trust can be de-authorised in exceptional circumstances. This Committee needs to discuss the issue of the Government’s rush to say that all trusts must have foundation status. That is clearly not going to work and we have no satisfactory answers at the moment about what is intended under those circumstances.
We will discuss the issue of the private patient cap so I will not refer to it now. We do not go the whole way in deregulation and see a continuing role for Monitor, not just in authorising foundation trusts but, as we said in our earlier debate, in retaining oversight and intervention powers. We agree that the authorisation process should be rigorous and demanding, so the question there which the Minister needs to answer is: if the department is determined to push hospital trusts into foundation status, what does it mean for standards—will they be relaxed? We think that they should not be. If further lessons are needed from Mid Staffs then I suspect that this is one that the inquiry will raise.
We share the view expressed by several noble Lords on Tuesday that there may be examples where the cause of a foundation trust’s problem lies with the local health system rather than poor foundation trust management. A more effective approach to reconfiguration and a sensible pre-failure regime is absolutely necessary. We understand and hope that the Minister is looking into this and look forward to being part of those discussions. Our view is that while having a great deal of autonomy, foundation trusts remain within the NHS; they are not to be hived off as quasi-businesses. We believe that in general only the two extremes differ from our view—those who want a fully publicly owned, public-provided NHS with no split, and a small band around the current Secretary of State who want to make foundation trusts into businesses and, like a private provider, free from all scrutiny. The rest of us are probably somewhere in the middle.
I turn to the amendments. We support the idea that foundation trusts must open their governance and must meet in public—which is vital. We support the idea that to be effective in their duty to hold the board, and especially the non-executives, to account, the governors must have the right to access and observe all meetings and to see all papers. The confidentiality issues which this might involve can be resolved through appropriate codes of conduct, but if governors are to be the main lines of defence then they must be able to know what is happening. Sadly, that is not the case in some foundation trusts.
We support the need to separate properly the accounts in respect of non-NHS business. It is important to avoid smoke-and-mirrors accounting, especially on the issue of the private patient cap, which we will discuss later. Transparency on that issue is vital. The bottom line is that NHS resources should not be provided at knock-down prices. We have had an undertaking that foundation trusts will provide information showing how non-NHS income acts for the benefit of NHS patients, but in the absence of detailed regulations about how that is to be done it would be best to maintain a sceptical view.
In line with our view that foundation trusts remain part of the NHS family, we support the amendments that ensure the Secretary of State must approve major transactions such as mergers. We do not support the Government’s amendments which are a further example of layering of bureaucracy and paperwork to try to justify their failure regime, which pretty much got a hammering on Tuesday and must be thought about again.
My Lords, I have amendments in this group to which I shall speak briefly. The noble Baroness, Lady Williams, introduced her amendments clearly and concisely. Some figures from the latest Health Service Journal underpin the reason why these amendments are so important. It has reported that foundation trusts are planning to cut at least 30,500 staff over the coming two years and that at least five acute foundation trusts have forecast a wage-bill cut of 10 per cent or more over the coming two years. According to the Health Service Journal’s analysis, patients in the poorest areas are 63 per cent more likely to find it difficult to see a GP than are patients in the richest locations, and 53 per cent more likely to attend accident and emergency.
I put those figures into the debate now because they demonstrate the pressure there will be on trusts. Changing to foundation trust status will put additional pressure on them. Amendment 304C in my name is a probing amendment. I tabled it to seek reassurance from the Government that the timetable for repealing NHS trust legislation will not revert to the originally proposed date—1 April 2014. I hope that the deadline will be extended to April 2020. I was going to say more but I await the Minister’s reply.
My Lords, I should like briefly to comment on the amendments proposed by my noble friend Lady Williams of Crosby. In one respect, I was sorry that she spoke so briefly because I should have liked to have heard more of her reasoning for Amendment 296. I am not at all clear about what the advantage is to either the Commissioning Board or the hospital if one serves on the board of the other. Is it because that is the only conduit of information? Frankly, I do not think that anyone believes that. If that is actually the argument then the whole NHS is in a much greater state of peril than any of us thought was the case until now. I honestly do not see the importance of or justification for the amendment. It may be a probing amendment, but it would have been helpful if the noble Baroness had given us a bit more of the thinking behind it. As of this moment, pending her winding up, I am not at all convinced that the amendment is either important or necessary.
However, I turn to the noble Baroness’s Amendments 300 to 303, which are also in the name of our noble friend Lord Marks of Henley-on-Thames, who I am sorry to hear is unwell. I very much support what she said about those amendments, even though—to use the word of the noble Baroness, Lady Finlay—she explained them concisely. They take us back to one of the main issues of this legislation: where is the Secretary of State in this brave new world? The Minister knows that a number of us think that the Government are thus far underplaying the role of the Secretary of State.
As my noble friend Lady Williams of Crosby was speaking, I thought of the condition of a number of foundation hospitals that have been the product of a PFI system. That was triggered in my mind by her comment that if there was a coming together of hospitals, or if some element of service was not provided, it may be of a sufficient scale for the Secretary of State to want to take a significant interest. The truth, to the best of my probing, is that a number of hospitals out there—the products of PFI—are in very difficult and probably, without help, unsustainable positions.
I know that the Minister understands that and that it is a matter of concern to the department, so I do not make any comment prejudging the outcome, but my noble friend brought the Secretary of State into this precisely because there could be serious, significant or catastrophic effects on the provision of healthcare in the hospital sector which, by definition, would include the importance of ministerial—that is, Secretary of State—involvement and consideration.
I welcome Amendments 300 to 303, but I say to my noble friend Lady Williams of Crosby and the Minister that I think they are part of the bigger picture of where the Secretary of State will be when the Bill finally reaches the statute book. The Minister has kindly and, I think, genuinely agreed to reconsider all those issues and bring them back for our consideration at Report. Subject to him saying the same about the issues raised by our noble friend Lady Williams, I hope that she in turn, hearing his response, will not feel it necessary to push the amendments to a vote today, although that might become an issue, depending on where we are at, on Report.
Perhaps I may respond briefly to the points raised by the noble Lord, Lord Mawhinney. I apologise if I spoke too briefly, but I am conscious that there are an awful lot of amendments to get through and I do not want to steal the time of other people on other crucial amendments.
On the group of four amendments that the noble Lord is in accord with me about, as he will be well aware, consideration has been given to the material put before us by my noble friend Earl Howe, the Minister of State, about an attempt to bring together discussion within the House and among lawyers about the issue which the noble Lord, Lord Mawhinney, rightly identifies as being central to the Bill: the responsibility and powers of the Secretary of State. Because we are in Committee and the Committee will, we hope, be ending in a few days’ time, the only opportunity we have to table amendments that would bear on the issue of the Secretary of State’s powers is on the Bill as it stands—prior to any changes that may be made. It is in the light of that that we tabled this group of amendments to highlight the areas where, in our view, the responsibility of the Secretary of State is central. That is true of this group of amendments, and I am delighted that the noble Lord, Lord Mawhinney, takes the view that they should be seriously considered by the Minister.
The point of Amendment 296 is to recognise that, in many cases, CCGs have to take account of the services given by foundation trusts—not least in respect of, for example, pathways and networks for people with chronic conditions. We thought, therefore, that it was important that there be not just sharing of information between the two but, rather, a process of interactive education, where the foundation trusts become increasingly aware of the responsibility that CCGs bear, particularly for those clinical conditions that lie beyond the capacity of a single CCG. That is why we suggested that a governor should be named by the national board to set up that communication—which, as the noble Lord, Lord Mawhinney, knows far better than I do, because he is an expert on the subject, sometimes, sadly, does not exist.
My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.
Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.
As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.
My Lords, I echo many of the words of the noble Lord, Lord Warner, although I wish to put a slightly different slant on the issue. It is crucial that we press on with the project to get all trusts to foundation status. There is no doubt in my mind that having this two-tier system, which we have allowed to continue for too long, has led to difficulties in foundation trust hospitals becoming more self-reliant, more seriously entrepreneurial in the way that they think about their services, and more responsive to the local agenda, and so on. They have not had to bother because they have always had Big Brother watching. The de-authorisation process, which threatens to drag them back to the Department of Health, has acted as a sort of brake on their thinking. That has been quite difficult. I seriously think that we should move trusts to foundation status. The noble Baroness, Lady Thornton, is looking puzzled, but I think that it has been a really serious problem.
Some kind of break in the system? I shall continue with my theme: it is crucial that we move all trusts to foundation status. I quite agree that the dates that have been set before have come and gone, but quite often they have come and gone because the strategic health authorities have not provided the necessary support to move trusts to foundation status. In fact, some strategic health authorities were positive blocks in the system to the development of expertise within the foundation trust. I accept that there are some at the moment which, as the noble Lord, Lord Mawhinney, has mentioned, face the PFI problem. Te recharge is too great for them to subsume and the debt is too great. Others have long-standing debts that cannot be written off. Some are not viable because of the populations they serve. Unless we have a definite aim and objective to get them there, they will never get there. We can get there if there is a concentration on the problem. Each hospital is different. I share the concerns of the noble Lord, Lord Warner, about some of the projects to merge one failing hospital with another, or one failing hospital with a less than successful one.
The evidence from NHS trusts’ failing hospitals merging has been that they continue to fail in a bigger way. The Barking, Havering and Redbridge three-trust hospital merger was a striking example of one that did not work and never could. I have that anxiety. If we are going to move away from the process that we have put into this Bill and retain de-authorisation and NHS trusts, we accept that we are continuing with a two-tier system for ever. That would be seriously detrimental to trying to get everyone moved over into a properly regulated system. It is going to be difficult. Certainly, the role of governors needs strengthening. Governors in some places are wonderful. In other trusts, they are mixed-ability classes, let us say. They will need considerable support and development to get there. Nevertheless, it would be catastrophic to have a two-tier system continuing to run after the introduction of the Bill. We need a fixed end point to work to.
I totally support the idea of getting everybody into foundation trusts. I am questioning whether the processes that we have in place will actually deliver that in the time scales that are being set by the Government. I suspect that in practice you can make the kind of progress required to achieve the Government’s objective only if you reconfigure services rather than just pursuing merger mania.
My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.
They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.
Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.
To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.
I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.
I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.
The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.
A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.
The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.
I apologise to the House, having regained my voice. The point I wanted to make was that there is a tension sometimes between changes of administration and management and the pressure to try to maintain the quality of patient service. We have already seen a situation where it went too fast and in the wrong direction without sufficient regard to quality. The Minister has often given us reassurances that quality of patient care lies at the heart of what the Government are trying to do. I just want to have reassurance that there would not be undue pressure. While there is always a need, if you are bringing about change, to have some pressure because organisations have an inherent resistance to change, rather than unduly pressurising an organisation that was not in a fit state to cope with that change, going a little more slowly might allow it to cope better.
I understand that point. That is why we have built additional flexibility into the system. Although we have target dates for each of the NHS trusts that we plan to move to foundation trust status, we understand that nothing can be fixed in stone. There is some latitude here but at the same time it is important to have target dates; otherwise the momentum that the noble Baroness, Lady Murphy, referred to will be lost and that would be very regrettable.
That brings me to the point made by the noble Lord, Lord Warner, that there appears to be a rush to mergers. We agree with the Public Accounts Committee and the noble Lord himself that mergers are only one way of creating more sustainable providers and services. Mergers must be assessed robustly to ensure that they really will deliver the promised benefits. The Co-operation and Competition Panel does that but at present it can only make recommendations. The NHS Trust Development Authority, which we propose to establish, will play an important complementary role in avoiding what one might call silly mergers. The key has to be local ownership and accountability, not oversight by the department. I was interested to see the amendment tabled by the noble Lord, Lord Warner, about the gathering of management accounting data. I am personally a strong advocate for effective financial and management controls. I am sure we all want to see the NHS become more efficient. The problem with the amendment as drafted is that the system it proposes looks a bit clunky and bureaucratic. It goes against the grain to impose an extra layer of accounting and reporting requirements from the centre and it would clearly cut across the responsibilities of the foundation trusts’ governors and directors.
It is right for me to emphasise by way of concluding remarks that these reforms have been developed in discussion with, and informed by, the Foundation Trust Network, the Foundation Trust Governors’ Association, Monitor and individual foundation trusts. They are built on the experience of what foundation trusts know will work. I hope that in itself is a reassuring statement. I have not addressed the point by the noble Baroness, Lady Thornton, about the PAC report, which I am happy to do once she has intervened.
My understanding is that the emphasis that we are placing on continuation of services rather than receivership and failure regimes has been welcomed. There are ways around what some might see as an inevitable conveyor belt to receivership. That should be only a last-ditch resort. We are putting mechanisms in place to ensure that the essential services on which patients depend should continue. That is a better way of looking at things.
I have been thinking about something that my noble friend the Minister said a moment ago. The amendment would require the Secretary of State’s approval, in addition to that of more than half of the members of the council of governors, for an application made under this section. He did not welcome the amendment of the noble Baroness, Lady Williams, on the grounds that the approval of the Secretary of State amounted to an added layer of bureaucracy. It would be helpful to the Committee if we were to know whether the Secretary of State is always considered to be an added layer of bureaucracy and, if not, can he give us a couple of examples of when the Secretary of State is a net plus?
My Lords, since my question to the Minister, before he rises, is in similar territory, I might as well leave him sitting down for the moment and get my question in. As I indicated the other day, I have been involved in what is legalistically an acquisition, although we have always talked of it as a merger, of a foundation trust by its neighbour, due to come to fruition at the turn of the year. The last hurdle that we had to overcome, though it was not much of hurdle, was the need for the Secretary of State to sign off dissolution orders for the existing trust, and at least one other order, to allow this to happen. Is my noble friend saying that, under this Bill, such things could proceed untouched by the Secretary of State? I do not have a strong view one way or the other, but it is quite an important change if that kind of reconfiguration can occur without the Secretary of State even having to agree.
My Lords, I would not dream of putting my right honourable friend the Secretary of State’s nose out of joint by calling him “an added layer of bureaucracy” in all circumstances. If I did so, I retract it immediately before it catches up with me. The answer to my noble friend is that the Secretary of State is not that of course; he has a major role in the structure of accountability and decision-making in the architecture of the Bill.
The issue to which my noble friends Lord Mawhinney and Lord Newton have referred is, however, complicated. I have asked for briefing on the way in which the merger process will work. It is quite extensive. To cut to the chase, an application from an NHS trust to merge with a foundation trust must be supported by the Secretary of State. That reflects current rules. However, the Bill removes the requirement for a foundation trust to consult the local authority on a merger. Section 244 of the Act, as amended by the Bill, would provide powers for regulations to make provision as to matters on which NHS bodies, including foundation trusts, must consult local authorities. We intend that foundation trusts will continue to be required to consult local authorities on particular matters set out in regulations and we will consult on those. That is the local authority bit of it. There will also be a duty of public involvement on foundation trusts in relation to such matters as the planning of service provision, proposals for changes in the way in which services are provided and decisions affecting the operation of services. I would be happy to write to both my noble friends—it would probably be better if I did so—to set out exactly what we envisage in the circumstances that they have raised.
I do not want to delay the Committee unduly, but perhaps I could refer to the PAC report to which the noble Baroness, Lady Thornton, referred. We welcome the report, which says that the NHS is in need of major overhaul. What is interesting about the report is what it shows about the state of the provider sector when the Government took office last year. It had problems such as hidden bail-outs, inadequate leadership and toxic PFI deals. These matters had not been addressed and we have made the firm decision that we cannot continue on that basis. That is why we are proposing independent assessments of trust boards as part of the foundation trust authorisation process.
As regards that process, trust boards will be independently assessed. The point of that is to ensure that they are up to scratch and able to lead their hospitals to foundation status. The underlying issue here is that we want all trusts to be clinically and financially sustainable in the future. The Public Accounts Committee has, very properly, drawn to our attention various issues around the capacity and capability of leadership, among other things, and my noble friend Lord Mawhinney mentioned PFI as another issue. All NHS trust boards will have to identify their strengths and weaknesses before being independently assessed. That is a robust discipline.
As my right honourable friend made clear in October, if, even after receiving support, management teams fail to improve their performance, then action will be taken. This could include their possible removal as a last resort. The Government will provide help to a small number of challenged hospitals to turn themselves around where necessary, but only after they have met the four tough tests that we have laid down. The problems they face must be exceptional and beyond those faced by other organisations; they must be historic; they must have a plan to deal with them in the future; they must demonstrate that they are improving their productivity; and they must deliver high-quality, sustainable services.
Before I conclude, I should like to speak to a number of minor and technical government amendments—for that is indeed what they are—in this group. These make consequential amendments in line with the revised provisions of the Bill; they correct drafting errors to correct references and numbering, or they remove redundant references to repealed legislation. Their purpose is to make the Bill work properly and to ensure that the legislation is up to date.
I beg leave to withdraw my amendment, with the simple comment that I thought the reply of the Minister—which was, as usual, very well argued—strengthened the case for both of my amendments even more than I had thought before, and I am grateful for that. Strong leadership, as the Public Accounts Committee calls for, was exemplified by the Minister but should include the Secretary of State. However, may I now move on to the next group?
If the noble Baroness would indicate what she wishes to do with Amendment 296, that would be helpful.
Amendment 296 withdrawn.
296A: Clause 148, page 148, line 34, at end insert—
“( ) After paragraph 10C of that Schedule insert—
“10D The governors shall be notified of and have the right to attend all meetings of the Board and its sub-committees and have access to all relevant documents and papers.
10E For this purpose, governors will be required to acknowledge their duty to protect confidentiality.”.”
My Lords, I listened with interest to what the Minister had to say and I was surprised that he dismissed, in a rather cavalier fashion, our two very small and modest amendments about access and transparency for foundation trust boards. We had to force foundation trusts to meet in public. They do not have a good record for their transparency or their willingness to be accountable. That is not so across the board—some are absolute models. I looked in vain for something among all the amendments that the Minister has proposed that might address this important issue of accountability.
I am very disappointed with the answers to my Amendments 296A and 298A. They are modest amendments about accountability. I beg to move, and I would like to test the opinion of the House—
If the noble Baroness would like a fuller answer, I would be happy to give her one. I am glad to give the Committee an opportunity to hear a slightly fuller answer to the noble Baroness’s amendments. I apologise that I skirted over them in the need to move on.
On Amendment 296A, the purpose clearly is to ensure that governors of foundation trusts have all the relevant information about their board’s activities and decisions to be able to hold them to account. That is not a controversial idea, but the amendment may have the opposite of the effect that the noble Baroness intends. If boards are forced to have governors present at all meetings, they may instead discuss confidential matters in private to maintain confidentiality and hold robust and frank discussions. If governors are admitted to private board meetings, the directors may be inhibited from discussing those confidential matters. The governors can best be kept informed of directors’ activities by close working relationships with them, regular performance reports, meetings with directors including the chair and chief executive, access to all directors and joint activities with directors. It does not have to be the formula that the noble Baroness has suggested.
The noble Baroness said that we had to force foundation trusts to meet in public. That is not right at all. It was we who made foundation trusts have their meetings in public; the previous Government resisted doing that for the whole of the time when they were in office, or from the whole of the time when foundation trusts were set up in 2003, so I do not think that that criticism is at all fair.
On Amendment 298A, the purpose is to require foundation trusts to account separately for NHS and private activity, to show whether that activity is making a profit or a loss. We agree with the broad principle of separate accounting, as we indicated earlier, but we are concerned that putting a requirement like this in statute would impose high costs on foundation trusts with low levels of private activity. Many foundation trusts have little, if any, private activity. We have given a commitment that to provide assurance and transparency we will require foundation trusts to produce separate accounts for NHS and private funded services where they exist. To support its new regulatory functions, Monitor will require foundation trusts to report separately within their accounts their NHS and private funded income and expenditure. That will increase transparency.
We are onside with the theme of the noble Baroness’s amendment, but we do not think that she is setting about it in the right way. It is too heavy handed, and I hope that she will withdraw it.
It seems rather extreme and extraordinary to be plunged into the possibility of a vote on a matter such as this without further consideration of what the Minister has had to say, particularly with a fairly thin House at the moment, although I have some sympathy with the noble Baroness. But it is obviously up to her to make her own dispositions.
My Lords, the problem with transparency and accountability is that the issues of confidentiality and expense are always used as excuses. I do not deny that my own Government almost certainly used them as reasons for not proceeding with issues of confidentiality and accountability. I am struggling with the idea that we should withdraw this amendment, because I feel that this is a really rather important matter. It may be a very small and minor matter, but it is actually rather important and I would like to test the opinion of the House.
Clause 148 agreed.
Clause 149: Directors
297: Clause 149, page 149, line 20, after “whole” insert “for the purposes of the National Health Service”
My Lords, I shall speak also to Amendments 299A and 299AA.
Before I do so, let me say just a word or two about two other amendments in this group, that is, Amendments 299ZA and 299AZA. I warmly thank the Minister, my noble friend Lord Howe, for having listened with such care to those of us who spoke to him about the issue of foundation trusts, in particular the issue of the private income paid into foundation trusts and the question of how that private income should be used ultimately for the benefit of the health service. He has been very patient, very willing to listen and extremely helpful. On behalf of these Benches and my own party I would like to thank him, and I am sure that others in the House will share that gratitude for the way in which he has responded.
I do not want to go into detail, because the amendments are very clear and have been laid, beyond saying that the first of those amendments, Amendment 299ZA, clearly states the situation with regard to income that comes into a foundation hospital—that is, that that income must be ultimately devoted to the health service. It sets beyond question or ambiguity the Government’s position on this critical issue. I am therefore extremely grateful to the Minister for that.
I also strongly support the proposals about the annual report. I take to heart the Minister’s distinction between the way in which the annual report deals with the funding of National Health Service patients in foundation trusts and with the separate funding of private patients in foundation trusts. On both those issues, it is extremely helpful that the annual report should be clear and open, so that we can all discuss not only the very serious issues that have been raised by the noble Lord, Lord Warner, but also, as pointed out by the noble Baroness, Lady Thornton, the very disturbing report from the Public Accounts Committee, which reiterates over and over again the need for leadership and for a clear statement of where the trusts stand, and the real concerns it has about the difficulties that some of them now confront. It is a dramatic report, and we should commend it to this House as far as we possibly can. Perhaps a separate debate on that issue in the Public Accounts Committee report would be appropriate on some future occasion.
Having said that, I will add only one other thing with regard to the first two amendments I mentioned, which are familiar enough to the noble Earl. In my view, it would be very helpful if there were “belt and braces”, by which I mean a government amendment which would indicate that, in the case of foundation trusts, the majority of patients should be NHS patients. That is, there should be an unquestionable commitment to having a majority of NHS patients. There are two reasons for that. One is simply that, good as the amendment unquestionably is, it is difficult for the general public—I certainly include myself in this—to understand the precise thrust of Amendment 299ZA, which I have quoted. It is helpful in this complicated Bill to have some islands of clarity that those who are not experts in the field—again, I include myself—can understand. People could understand the simple concept that a majority of patients should be from the NHS, not the private sector.
The other reason why I beg him to look at this carefully is that it is also important from the point of view of the complex debate that we have already had in this Committee on the issue of competition policy and EU competition policy. If there is a clear statement that the majority of patients must come from the NHS, that should be immensely helpful in ensuring that we are not then subjected to the rigours of the extreme competition policies defended at present in the EU and, indeed, by our own Competition Commission. My noble friend Lord Clement-Jones, who knows a great deal about the legalisms of competition policy, may have something to add on this point.
I turn briefly—well, fairly briefly; I am now conscious of the disapproval of the noble Lord, Lord Mawhinney, so I shall be a little more detailed—to the three more minor amendments in the group that my name is associated with. The first of those is Amendment 297, where we would like to add the words,
“for the purposes of the National Health Service”.
In order to persuade noble Lords of the importance of this, I will read out the text that the Bill currently inserts:
“The general duty of the board of directors, and of each director individually, is to act with a view to promoting the success of the corporation so as to maximise the benefits for the members of the corporation as a whole and for the public”.
In that wording, the public trail far behind the interests of the members of the corporate body. That is unfortunate and unwise. We are therefore proposing the simple amendment that the words “for the purposes of the NHS”, which, as noble Lords will appreciate, recur in other parts of the Bill on many occasions, should be added to this section about the directors of foundation trusts. It is important to reiterate that foundation trusts work for the interests of the NHS, which is why we have suggested this simple amendment.
On Amendment 299AA, on which my noble friend Lord Clement-Jones will speak in slightly more detail, the point here is quite straightforward. Clause 162(1)(a), which we are suggesting should be left out, removes the existing subsection in the National Health Service Act 2006 that limits the provision of private services. In particular, the 2006 Act permits not the abolition but the restriction of private health services within foundation trusts. Section 44(1) of the 2006 Act provides that,
“An authorisation may restrict the provision, for purposes other than those of the health service in England, of goods and services by an NHS foundation trust”.
In other words, that subsection again sustains the argument that there is a role for the private sector but that there must be restrictions on it if the NHS trusts and foundation trusts are to sustain their fundamental legal obligation to the NHS. It is important that these restrictions should be upheld. Indeed, the authorisations that I have referred to are critical to the concept of maintaining the foundation trusts within the health service system and therefore making it less vulnerable to competition legislation.
The final amendment that I want to refer to is Amendment 299A, where we are simply bearing out what I have already said. I therefore hope the House will now hear additional arguments from my noble friend to show why this group of amendments is very important in order to retain the current status of foundation trusts, which is very welcome, and which will assist in meeting some of the trenchant criticisms of the Public Accounts Committee about this whole sector of the health service. I beg to move.
My Lords, I will come in very briefly. I declare a past interest as former chairman of the Royal Brompton and Harefield NHS Foundation Trust, which probably has as large a private patient income as any in the country. Frankly, that income considerably benefits the two hospitals and their NHS patients.
I welcome the amendments of my noble friend, and hope that the Minister will give them careful consideration. All of us in this House, not least those of us who are former Ministers of health, have been united in our wish to see a successful and flourishing NHS, and in being really dedicated to it. It would be an oddity if a hospital designated as an NHS trust—whether foundation or otherwise—were treating a majority of patients who were not NHS patients. That is quite a simple proposition, and it is the one advocated by my noble friend Baroness Williams.
The amendments already tabled by my noble friend on the cap on income are extremely welcome and sensible. However, I hope that he might think of—dare I say it—embracing the thoughts of my noble friend Lady Williams as well in some further modification of those amendments so that they refer both to income and to numbers. The numbers thing will be more readily understood by many members of the public. Clearly we do not want NHS trust hospitals to gain most of their income from doing non-NHS work or from treating non-NHS patients. That just does not make sense. It would helpful if we could make that clear.
My Lords, my noble friend Lady Williams very clearly set out the approach of these Benches to a number of amendments in this group. I simply want to return to EU competition law for a moment. The noble Earl’s amendment regarding limits on the cap goes quite some way to mitigating one of the elements of risk associated with the greater application of EU competition law. As I outlined on Tuesday, there are some really significant issues in the Bill which will introduce EU competition law to a much greater extent if we are not careful. One of those, clearly, is the uncapping of private patient income of foundation trusts. I am very pleased that the noble Earl has gone some way to dealing with some of those concerns. However, I of course very much share the view of my noble friend Lady Williams that we are not quite there yet, and that it would be belt and braces to have the additional safeguard of a limit on the numbers as well as on the revenue.
Generally, four key issues arise from the changes to Sections 43 and 44 of the 2006 Act, quite apart from that of EU competition law. First, there is the question of limits on the cap—what kind of limit is appropriate? Secondly, there is the question of being absolutely certain that any income from private patients is exclusively devoted to the National Health Service. Thirdly, there is the question of prospective transparency—of being well aware of what the plans of foundation trusts will be. Fourthly, there is the question of transparency after the event, in terms of reporting in an annual report.
As far as the limits on the cap are concerned, as I have mentioned, the noble Earl’s Amendment 299ZA is welcome, but it would be useful if he could consider whether any further qualification of that cap was appropriate. There is also the question of being absolutely certain that we are talking about this income going exclusively to the NHS, which is what my Amendment 299A goes towards—that is why I seek to add the word “exclusive” to the changes to Section 43 of the Act.
On the question of prospective transparency, I very much welcome the Minister’s Amendment 299AZA, but that simply provides for reporting after the fact. It is important to share prospectively with the general public and people in the locality the governors’ process for determining the right balance between private income and the NHS activities in a trust. That is what my amendment seeks to achieve by requiring the situation to be set out in an annual plan.
There are four elements. We are some way down the track towards achieving a number of them. At that point, I think that on at least one of the limbs that I and many others are concerned about—the further introduction of competition law to the NHS—we will be satisfied. We will at least have knocked over one of the green bottles, so to speak, with several more to come.
My Lords, the noble Lord, Lord Clement-Jones, has put his finger exactly on the point here. I absolutely agree that, welcome though the amendments in the Minister’s name are, they do not go far enough. Counting things after the fact will not necessarily provide the kind of protection that is required in this area.
Section 44 of the National Health Service Act 2006 currently provides for a limit on the proportion of income that an NHS foundation trust obtains from private charges. I am familiar with this; I had to deal with it in the Health and Social Care Act 2008. That was the point at which my party agreed that there needed to be a review of the private patient cap. That is absolutely the case and we would agree on that. The restriction was introduced to ensure that NHS foundation trusts continued to focus primarily on NHS patients, as the noble Baroness, Lady Williams, explained. However, as we accepted at the time, the way that the cap was based on the financial year cemented in a widely varying range of restrictions, from zero to a little more than 30 per cent, with the average being around 1.5 per cent.
The Bill lifts the cap completely. The abolition of the cap on the amount of income that foundation trusts can earn from other sources has the potential to act as an incentive for foundation trusts and could earn them income. However, we believe that it is not right for the Bill to lift that cap unconditionally. I would pray in aid of this many organisations. For example, the Royal College of Nursing said in its response to the October 2010 White Paper:
“the RCN cannot support the removal of the private income cap”,
until foundation trusts can credibly demonstrate,
“that private income is not taken at the expense of NHS patients … the current arrangements … should remain in place”.
The Royal College of Midwives similarly said that its,
“chief concern is that this could accelerate the development of a two-tier service within foundation trusts, with resources directed towards developing private patient care service at the expense of NHS patients”.
The King’s Fund, in the consultation on Liberating the NHS, supported reform of the cap. However, it stated that processes need to be in place to ensure that there is no conflict with or compromising of quality of care for NHS patients or efficient use of taxpayers’ money. The question is: have the Government achieved that? I think that there is still a question mark over it. In its briefing on the Bill’s Second Reading, the BMA said that,
“this could lead to a two-tier health service, as foundation trusts invest more resources in non-NHS facilities”,
and could come at the expense of NHS patients’ ability to access facilities.
In fact, the Department of Health’s legislative framework of December 2010 acknowledged that concerns were legitimate, but chose to rely on FTs’ “social ethos and values” rather than impose proper procedures, accountability, transparency and regulation which would ensure the protection of NHS patients. We oppose the Question that the clause stand part of the Bill in order to have this necessary discussion.
I refer briefly to Amendment 299 in the name of my noble friend Lord Beecham, which is a probing amendment. His concern was that the regulator must be satisfied that any application for FT status is able to provide goods and services for the purposes of the National—National—Health Service in England. In parts of the Bill, that is not absolutely clear.
My Lords, I welcome the comments of the noble Baroness, Lady Thornton, that her opposition to the Clause standing part of the Bill is for probing purposes, as are some of the other amendments. We have all welcomed the review of the private patient income cap introduced by the previous Government following the judicial review by Unison of Monitor’s interpretation. The Government’s amendments go a long way to addressing our concerns about the extension of private income diverting NHS hospitals into private activity. I understand and have great sympathy with the amendments tabled by the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, in that respect.
I ought to say that I have never, as an NHS consultant, practised privately. This is both an ideological and a practical matter. As I mentioned before in Committee, my own professional activity simply could not be done effectively without working in conjunction with social services, housing and the voluntary sector. It would not, therefore, have sat very easily with my activities. I have, of course, seen the very important role that private income plays in swelling the NHS coffers in many foundation trusts. However, it is worth reminding ourselves how dreadfully unfair that private patient cap has been. Hospitals like the Royal Marsden have a cap of 30 per cent, but they manage to do that work without any diversion of activity from their brilliant NHS service. Many acute FTs and all mental health foundation trusts have a cap of zero. For NHS FTs as a whole, the average PPI cap is 1.5 per cent of their income. The overall figure is therefore tiny. Foundation trusts’ private income was less than 2 per cent of their total income across the board. However, this income can be very welcome to individual hospitals. Anything that makes the system fairer for hospitals is extremely important. It is of course worth saying that ordinary NHS trusts do not have a cap and can make as much income as they like.
We need a mechanism to enhance FTs’ commitment to remaining focused on NHS patients. I believe that all existing foundation trusts are focused on that, but if we approve the government amendments—Amendment 299AZA and one other—they will go some way to ensuring that at least the majority of activity remains as it is. In reality, private practice is not likely to extend very much. The provisions will prevent the kind of unfairness and terrible bureaucracies that have been associated with joint ventures and the complexities of the current rules which even the judge in the judicial review of the private patient income cap admitted were real practical difficulties for foundation trusts that needed to be addressed.
The government amendments are strong, but I would not entirely not support some of the stronger amendments tabled by the noble Baroness, Lady Williams.
I have listened closely to the noble Baroness. I should perhaps add that within these Benches we discussed, and at one stage talked to Monitor about, the possibility of an individual cap for hospitals outside London. I completely take the noble Baroness’s point that in places such as Newcastle the figure for private patients is less than 2 per cent—even though the hospital there is renowned. One can think of many similar examples. We would therefore be perfectly open to reaching an agreement under which Monitor was responsible for there being lower caps in different parts of the country. The proposal that the number of patients from the NHS should be greater than the number from the private sector is an overall statement of principle that virtually every hospital can easily meet. We hope that it might, among other things, disincline our friends from the competition area from deciding that foundation trusts were undertakings and not private agencies.
My Lords, this has been an interesting short debate because the whole business of the cap has imposed wide variations on trusts. Where trusts cannot have any private activity, there has been an unintended consequence if some staff, particularly consultants, undertake private work. They have carried out that work offsite and not been available if there has been an emergency onsite, and travel times also have worked against patient care.
I can therefore completely understand why these amendments are before us and why the Government wish to act as has been outlined. Perhaps in his closing remarks the Minister can provide us with an assurance that any guidance—it is not necessary to include this in the Bill—will ensure that trusts do not inadvertently double-pay staff. The point of splitting private and NHS treatment was precisely to ensure that staff do not carry out private work in their NHS time and receive double pay, and that the accounts are clear. There are advantages to staff doing private work on NHS premises and to a flexible interpretation whereby, when there is a medical emergency, staff can run down the corridor. Private patients completely understand when someone has to be called away because there is a life-threatening emergency. They are happy to wait until the staff return. That system operates at the hospital in which I work. Although I do not do any private work, some of the oncologists have clinics in the evenings.
There is a need for clarity and I hope that some reassurance will be given that in removing the cap there will be good husbandry of public money.
More than 20 years ago, I was director of finance of the NHS, on secondment from my firm, as some of my noble friends will recall. One of my areas of responsibility was something we called the income-generation initiative. It was sponsored wholly by the Department of Health which was to encourage NHS hospitals to maximise their assets and to generate income for the purposes of the NHS. The origins of the private patient income lie with the Department of Health wanting to ensure that the NHS maximised the returns from its assets and took opportunities to generate income solely for the NHS. Those of us who were involved in developing that initiative would regard all these discussions as a mark of success of the initiative, as it has generated so much income that other questions are now asked.
I never supported any kind of cap, because the circumstances of individual foundation trusts vary so significantly that any cap would never be effective. The way in which income can be structured to flow into a trust can markedly change the impact of the cap. By structuring your relationships with partnership organisations, for example, you can massively change whether a cap bites or does not.
I support the amendments in the name of my noble friend, because perhaps it now needs stating that you should concentrate largely on the NHS—although, as I said, those of us who started this find it a rather surprising conclusion—and I support transparency. If I ever had one concern about the income-generation initiative, it was that costing was never particularly well understood in the NHS, and, therefore, neither was the net result from the activity nor how that activity was used. It is important to have transparency. I hope that other noble Lords will not encourage the Government to keep any limits which constrain the NHS from maximising its assets for the purposes of the NHS.
My Lords, I was not going to speak in the debate and I certainly do not want to speak on the subject of the cap, in case I get into too much trouble from my Front Bench. I would like to pick up the point made by the noble Baroness, Lady Noakes. We are moving into a world in which the NHS will have to look at how it uses its assets. As I have said in earlier discussions, the NHS footprint on its sites and its utilisation of buildings is relatively small given the size of the sites.
We are also moving in a direction where, across the House, we favour integration of health and social care. It would not be surprising if, in the next few years, on some sites of district general hospitals, there were nursing homes run by the private sector which had self-payers as well as state-funded payers. The way the Government are approaching this creates flexibility in how income might be generated. I hope we will not be so prescriptive in how we meet the legitimate concern that NHS trusts should concentrate on their core business, if I may put it that way, that we shoot ourselves in the foot again by having a cap that actually works against the best interests of the NHS.
My Lords, I have never known my noble friend to show particular restraint about how he felt about his Front Bench.
This discretion has morphed into something that says that making efficient use of assets and being effective is the same as maximising private income. Of course, that is not the point here. The point is getting the balance right. The noble Baroness, Lady Noakes, made a very good point: the NHS does not exist to maximise private income profit.
My Lords, this is an important issue and one that I recognise is of considerable interest to the Committee. To start at the beginning, the Government are clear that NHS providers should always focus on the provision of care to NHS patients. However, we cannot ignore the fact that the private patient income cap, which Clause 162 would remove, is damaging to the NHS and to patients’ interests. We think that there is a very strong case for removing the cap, because doing so will allow NHS patients to derive even greater benefits from foundation trusts. At the same time, we understand the sensitivities. The key to addressing those sensitivities is to have adequate safeguards to ensure that NHS patients and resources continue to be prioritised and protected. I reassure the Committee that we believe we can achieve that through the Bill and through the government amendments, and I shall explain why and how in a moment.
The words “private patient” in the cap’s title may have unfortunately given the wrong impression about the substance of the argument. My noble friend Lady Noakes was quite right in what she said. The cap’s scope goes far wider than just private patients. It captures income from activities such as innovations involving research, joint ventures and the sale of medicines and intellectual property to private healthcare providers in the UK and abroad. This means that innovative partnerships of the kind that the noble Lord, Lord Warner, indicated might happen are being hampered, and the ability of foundation trusts to earn more income to help to bring in leading-edge technology to the NHS faster—for example, for cancer treatment—is unnecessarily restricted.
Foundation trusts have told us that the cap is detrimental to care offered to NHS patients. They have welcomed our move to remove what they and we see as an outdated, unnecessary and arbitrary legal instrument that locks them into maintaining income from private charges below the levels that applied in 2002-03.
Perhaps I may remind noble Lords of the compelling reasons for removing the cap. As I am sure the Committee will agree, the rule itself is unfair. Some foundation trusts have much higher caps, and hence much more flexibility, than the majority. In 2010-11, around 75 per cent of foundation trusts were severely restricted with caps of 1.5 per cent or less. Meanwhile, the Royal Marsden benefits from a 31 per cent cap and is the country’s highest private patient income earner. It has also been consistently rated as a highly performing NHS provider.
I have a question for the noble Earl on this. He is absolutely right that the Royal Marsden is a very effective hospital, but what independent evidence is there that the cap harms the interests of NHS patients? We know that quite a few foundation trusts have been going on about it, and I absolutely agree that the cap needs to be reviewed properly, but what independent evidence is there that it harms the interests of patients?
My Lords, if the noble Baroness is calling for evidence beyond the testimony of numerous NHS trusts, I am not sure what more I can offer her. I can write to her on this but there is very considerable evidence—almost a priori evidence—that if you restrict a trust’s ability to earn income which would otherwise go to improve facilities for NHS patients, you are damaging the interests of those NHS patients. That is an argument that we have consistently put forward ever since the 2003 legislation. However, it is also an argument that I recall Ministers in the previous Administration making when we last debated this subject at any length.
I was going to point out too that NHS trusts as distinct from foundation trusts do not have a private income cap. A number of them earn private incomes well in excess of many foundation trusts. There is absolutely no evidence that these providers are ignoring NHS patients as their prime responsibility—no evidence at all. A number of noble Lords, not least my noble friend Lady Williams, have tabled amendments in this area to ensure that foundation trusts must protect the interests of NHS patients above all and that public money should not subsidise private care. I wholeheartedly agree with that. I would like reassure noble Lords of the safeguards that the Bill already contains to this end. Some of these safeguards are prospective in nature and some are retrospective.
First, foundation trusts will continue to be bound by their principal legal purpose, which is to provide goods and services for the NHS in England. I am going to move Amendment 299ZA today to state explicitly that “principal purpose” means that the majority of every foundation trust’s income must come from NHS service provision. That amendment will make it certain that the trusts are NHS providers first and foremost. I admit to my noble friend Lady Noakes that this is something of a belt and braces amendment, but I believe that it directly addresses the main concerns voiced by my noble friend Lady Williams.
The second safeguard is that the Bill would make foundation trusts more accountable and transparent to their public and NHS staff. My second amendment in this group, Amendment 299AZA, would support that by requiring every foundation trust to explain in its annual report how its non-NHS income had benefited NHS services. The Bill gives governors, who represent the public and NHS staff, greater powers to hold directors to account and this amendment would help them do so. My noble friend Lord Clement-Jones sought to place additional duties on directors. The Bill would also place an explicit duty on them to promote the success of their foundation trust with a view to maximising benefits for its members and the public. If, for example, directors were to pursue private patient activity against the interests of members and the public, the governors would be able to, and they should, use their new powers to challenge directors or they could use their existing power to remove the chair and non-executive directors.
My Lords, it will be open to governors to seek information from the boards of directors on the plans that they have for the trust. They will have access to key papers. There should be no difficulty about knowing what the board has in mind for the trust in that strategic sense.
Thirdly, the NHS Commissioning Board and NHS commissioners would be responsible for securing timely care for NHS patients. They would be under a duty to exercise their functions with a view to securing continuous improvements in the quality of NHS services. That is an important provision too.
Finally, to achieve a fairer playing field, Monitor’s licensing regime would allow it to step in to prevent NHS money cross-subsidising private care. Foundation trusts would also be required separately to report to Monitor their NHS and private-funded income. My noble friend Lady Williams said that in her view it would be useful to have in the Bill that the majority of foundation trust patients have to be NHS patients. While I agree with the intent behind that thought, I cannot agree with her two arguments that support the need for an amendment. First, we do not agree that legislation should be used symbolically in this way. Foundation trusts’ principal purpose already covers the point that she raised. Secondly, even if we had such an amendment, it would not make any difference to how the courts interpret and apply EU competition law. It is the nature of the activities that they are undertaking that matter, not how many patients they treat or how much income they earn.
Perhaps I may make a specific point about my noble friend’s Amendments 297 and 299. They would duplicate unnecessarily the legal description of the NHS, which since 1946 has been described as “health service”. Use of the word “national” would be inconsistent with references to the NHS throughout existing legislation.
Just to elaborate on EU competition law, the Bill, as we discussed the other day, does not change the position on EU competition law or the applicability of the law. It remains the case that there is uncertainty on the status of NHS providers as undertakings for the purposes of competition law because no direct case law exists. In so far as foundation trusts already provide private healthcare services, they may be engaged in economic activity. Therefore competition law, both the prohibitions on anti-competitive behaviour and the prohibitions on state aid, may apply to their activities in these markets. Although the Bill would offer more flexibility to participate in these markets if the cap were lifted, it does not mean that foundation trusts are more or less likely to be considered undertakings in their provision of NHS services.
It was suggested by my noble friend Lady Williams that there might be a sort of case-by-case approach to lifting the cap. I recall that that approach was strongly rejected by the previous Government, and for very good reasons. We agree with those reasons. The disadvantages of that approach would be that it would be very difficult to set up a clear system and it would be likely to be difficult to administer and to increase bureaucracy. It would potentially lead to greater variation between foundation trusts and to claims of unfairness between different trusts, which could possibly be a source of litigation. It would maintain the problematic definitional issues around the cap itself. We are not drawn to that approach.
The noble Baroness, Lady Finlay, asked whether we could consider including in guidance to foundation trusts the need to avoid double-paying staff. I think she makes a very interesting point and I can confirm that we will give that some active consideration.
While the principles of some of the amendments tabled by noble Lords are ones that we could all agree with, we believe that the amendments are unnecessary and could be damaging. For example, a requirement for non-NHS income to support only NHS services could mean that foundation trusts would find it impossible to invest in their non-NHS activities and therefore make greater profits to support core NHS work. We want to avoid safeguards, no matter how well intentioned they may be, having a perverse legal consequence on foundation trusts’ ability to innovate.
I hope I have said enough to persuade the noble Baroness to withdraw the amendment because I am completely convinced that the necessary safeguards are there and that what we are proposing are the right things to do.
My Lords, I think that the board of directors is best placed to decide how much private income overall a trust should receive, on the proviso that the principal purpose of the foundation trust remains adhered to. Governors should concern themselves with any threat to that status. If they perceive that the board is in danger of overstepping the mark in that sense, then of course it is their province. Otherwise, I think it is for the board of directors to judge what is in the best interests of the trust as a whole and of NHS patients. That could mean expanding the trust’s private patient work, capitalising on intellectual property, or whatever it happened to be.
My Lords, I shall intervene briefly before my noble friend Lady Williams sums up on her amendment. What the Minister just said about this relationship between governors and directors and the advancement of the principal purpose of a foundation trust added another dimension. It is not so much the question of the majority of income or of patients coming from the private or the public sector that is important. That is simply a test for competition law purposes. The issue is whether the principal purpose of the foundation trust remains within a social purpose. The element of solidarity established by FENIN is there and it is therefore at less risk of falling totally within EU competition law as an undertaking.
The Minister’s comments bear considerable study, but what he has said does not completely take us out of the risk area. I know he does not use the word “risk” in relation to EU law applying further, but that is certainly the mindset of a number of us looking at these provisions, particularly in relation to the cap. It is the question of social purpose and solidarity that is crucial in law, and the question of whether what my noble friend has done to date is sufficient. I will obviously read his comments carefully but I do not think we are quite there yet.
I am happy to withdraw the amendment, but I would like the Minister to consider very carefully the words of my noble friend Lord Clement-Jones because my impression is rather the same as his, although on a much weaker basis of expertise. On the one or two occasions when I visited the Commission to discuss this matter, I had a strong sense that social purpose is one of the main criteria that they look at in deciding whether something counts in the area that captures competition law in the EU. I cannot speak about the Competition Commission in England because I do not have enough expertise to do so, but I hope that the Minister will consider what my noble friend has said because I believe that it is a crucial factor for the EU Competition Commissioner.
I want to add one further point about “prospectivity”, if there is such a word, and governors and/or directors looking at the activities of the trust. It is important that one considers that point from the social purpose point of view. One can then look at the pattern of activity of the trust and see what investments are going to be devoted to private and NHS patients. That is an important part of looking at the risk factors associated with a purpose not being a social purpose.
I am glad that the two parties of government are in discussion with each other about these matters. However, there are Members on the Cross Benches and on these Benches who also have opinions on these issues. If it is appropriate, we would like to be involved in those discussions.
Amendment 297 withdrawn.
Clause 149 agreed.
Clause 150 agreed.
Clause 151 : Accounts: initial arrangements
Amendments 298 to 298A not moved.
298B: Clause 151, page 151, line 6, at end insert—
“( ) In sub-paragraph (3) of that paragraph, in paragraph (b) for “any records” substitute “the records”.”
Amendment 298B agreed.
Clause 151, as amended, agreed.
Clause 152 agreed.
Clause 153 : Annual report and forward plan
298C: Clause 153, page 152, line 38, at end insert—
“( ) In paragraph 22(1) of Schedule 7, omit paragraph (e) (duty to make forward plan available to the public).”
Amendment 298C agreed.
Clause 153, as amended, agreed.
Clauses 154 and 155 agreed.
Clause 156 : Authorisation
Amendment 299 not moved.
Clause 156 agreed.
Clauses 157 to 160 agreed.
Clause 161 : Goods and services
299ZA: Clause 161, page 159, line 12, at end insert—
“(2A) An NHS foundation trust does not fulfil its principal purpose unless, in each financial year, its total income from the provision of goods and services for the purposes of the health service in England is greater than its total income from the provision of goods and services for any other purposes.”
Amendment 299ZA agreed.
Amendment 299A not moved.
299AZA: Clause 161, page 159, line 16, at end insert—
“( ) After subsection (3) of that section insert—
“(3A) Each annual report prepared by the NHS foundation trust must give information on the impact that income received by the trust otherwise than from the provision of goods and services for the purposes of the health service in England has had on the provision by the trust of goods and services for those purposes.””
Amendment 299AZA agreed.
Clause 161, as amended, agreed.
Clause 162 : Private health care
Amendments 299AA to 299C not moved.
Clause 162 agreed.
Clauses 163 and 164 agreed.
Clause 165 : Mergers
Amendments 300 and 301 not moved.
Clause 165 agreed.
Clause 166 agreed.
Clause 167 : Separations
Amendments 302 and 303 not moved.
Clause 167 agreed.
Clauses 168 and 169 agreed.
Clause 170 : Repeal of de-authorisation provisions
303ZZA: Clause 170, page 163, line 34, leave out “(but not the following “or”)”
Amendment 303ZZA agreed.
Clause 170, as amended, agreed.
Amendments 303ZA and 303ZB not moved.
Clause 171 : Trust special administrators
Amendments 303A to 304 not moved.
Clause 171 agreed.
Clause 172 : Objective of trust special administration
Amendments 304A and 304B not moved.
Clause 172 agreed.
Clause 173 : Procedure etc.
304BA: Clause 173, page 168, line 8, leave out “(7)(d)” and insert “(7)(c) and (d)”
Amendment 304BA agreed.
Clause 173, as amended, agreed.
Clause 174 agreed.
Clause 175 : Sections 171 to 174: supplementary
Amendments 304BB to 304BS
304BB: Clause 175, page 173, line 5, leave out “65K” and insert “65KC”
304BC: Clause 175, page 173, line 7, at end insert—
“( ) a copy of any information published under section 65D,”
304BD: Clause 175, page 173, line 8, at end insert—
“( ) a copy of any statement provided under section 65F,”
304BE: Clause 175, page 173, line 9, after “65F,” insert “65G,”
304BF: Clause 175, page 173, line 10, after “65KB” insert “, 65KC”
304BG: Clause 175, page 173, line 11, after “statement” insert “published or provided”
304BH: Clause 175, page 173, line 13, at end insert “or 65KC”
304BJ: Clause 175, page 173, line 18, leave out “65K(4)” and insert “65KC(3)”
304BK: Clause 175, page 173 , line 19, leave out paragraph (d) and insert—
“(d) for “65L(2), (4) or (5)” substitute “65L(2) or (7), 65LA(3)”.”
304BL: Clause 175, page 173, line 34, leave out “65K” and insert “65KC”
304BM: Clause 175, page 173, line 36, at end insert—
“( ) a copy of any information published under section 65D,”
304BN: Clause 175, page 173, line 37, at end insert—
“( ) a copy of any statement provided under section 65F,”
304BP: Clause 175, page 173, line 38, after “65F,” insert “65G,”
304BQ: Clause 175, page 173, line 39, after “65KB” insert “, 65KC”
304BR: Clause 175, page 173, line 40, after “statement” insert “published or provided”
304BS: Clause 175, page 173, line 42, at end insert “or 65KC”
Amendments 304BB to 304BS agreed.
Clause 175, as amended, agreed.
Clause 176 : Abolition of NHS trusts in England
Amendment 304C not moved.
Clause 176 agreed.
Schedule 14 : Abolition of NHS trusts in England: consequential amendments
Amendments 304CA to 304CJ
304CA: Schedule 14, page 388, line 10, at end insert “, and
( ) in subsection (3), omit paragraph (a) (and the following “and”)”
304CB: Schedule 14, page 388, line 13, after “trust” insert “established under section 25”
304CC: Schedule 14, page 388, line 14, after “trust” insert “established under section 25”
304CD: Schedule 14, page 391, line 18, leave out sub-paragraph (2)
304CE: Schedule 14, page 394, line 7, leave out paragraph 64
304CF: Schedule 14, page 394, line 11, leave out paragraphs 65 to 67
304CG: Schedule 14, page 397, line 18, at end insert “, and
( ) omit sub-paragraph (ii) of that paragraph (and the preceding “or”)”
304CH: Schedule 14, page 398, line 21, after “body”” insert “—
304CJ: Schedule 14, page 398, line 21, at end insert “, and
(b) in paragraph (c), for “that Act” substitute “the National Health Service Act 2006” (and omit the “or” preceding that paragraph)”
Amendments 304CA to 304CJ agreed.
Schedule 14, as amended, agreed.
Clause 177 agreed.
Clause 178 : Healthwatch England
Amendment 305 not moved.
306: Clause 178, page 175, line 17, leave out subsections (2) and (3) and insert—
“(2) Healthwatch England is to be appointed in accordance with regulations made by the Secretary of State.”
My Lords, unfortunately the noble Lord, Lord Patel, had to leave before we could get to this amendment so I shall speak on his behalf in moving Amendment 306.
The amendment brings us to Clause 178, which is about HealthWatch England. In simple terms, the amendment seeks to make HealthWatch England an independent body and not a sub-committee of the Care Quality Commission. That is its purpose. We have to some extent already touched on this issue and made the arguments in earlier debates about why we think, in terms of public credibility for HealthWatch England, it should not be nestling within, hosted by or whatever else you want to call it the Care Quality Commission. I shall turn to the issue about that particular body in a moment but, as a matter of principle, whether it is the Care Quality Commission or some other body, we take the view that it should be a free-standing body so that it can exercise—and, perhaps just as importantly, be seen to exercise—a very independent role in pursuing the purposes and interests of patients and the public.
The whole area of public and patient involvement and them having their say in the running of the NHS, the way it works, its standards and its standards of care has caused difficulty across the political spectrum in getting it right. The Government deserve considerable congratulation on having another go at this. It is not a matter of principle, certainly as far as the noble Lord, Lord Patel, and I am concerned, that we should not have a body called HealthWatch England—we totally favour that—but you might as well go the whole hog if you are going to claim that it is an independent body. Calling it a sub-committee of the Care Quality Commission does damage to the public perception of its role.
I know that the noble Earl, Lord Howe, has seen recently the NALM to discuss these issues and I want to quote from some of the briefing that it used in that meeting with him. The NALM made it very clear that it saw collaborative working between HealthWatch England and some of the other bodies as important, but that did not mean to say that it wished it to be hosted in one of those bodies. The briefing is most interesting. It says:
“Our work with the CQC over the past year has given us little confidence that this is the right location for the public’s independent national body concerned with health and social care”.
It is concerned that it will not be seen as independent. Whatever arguments the Government may have, we have to take careful note when representatives of the public and patients do not believe that they will be seen as independent if they are placed in the CQC.
I do not want to prejudge or make comments on some of the criticisms that have been made about the CQC in recent times. Many of us would say that it has a very heavy load to carry. I played my part in giving it that heavy load, so I own up to that and get my retaliation in first before I am accused of contributing to its heavy load. It is right that we should have that body looking across the NHS and social care, as it is consistent with the enthusiasm for integration of health and social care which has been voiced so eloquently in your Lordships' House. But it has taken on a lot; it has a lot to do. Occasionally, it would be fair to say—and this could be said to be an understatement—it has struggled with the load that it carries.
It does not get HealthWatch England off to a good start to place it as a sub-committee of a body which itself is struggling to maintain its public reputation at present. Rightly or wrongly, it is being seen as a body that is struggling to maintain that reputation. That is not to say that it is not an effective body or that it should not carry on in that particular way but, in the present public mood, to put HealthWatch England in the CQC as a sub-committee is at the very least a major presentational mistake. The Government ought to have the courage of their convictions. Having gone along the path of wanting to set up an authoritative body to argue the case for patients and the public, they should make sure that that body is independent.
A number of amendments in this group deal with how you select that body. Amendment 306 leaves it to the Secretary of State in effect to make regulations governing how that body is established. I do not have a strong view on how that appointment is made, whether it is made by election from the local level—I can see the case for that—or by some other means. What we care strongly about is that this body is independent not just of the CQC—although particularly of the CQC—but of any other body. If is fine if there are economies to be made by having a memorandum of understanding about back-office services between the CQC or any other body to help HealthWatch England run its affairs in an efficient and effective way. That would not in any way undermine the publicly seen independence of HealthWatch England.
In conclusion, I quote again the NALM briefing which was used in the meeting with the Minister. It says:
“HealthWatch England needs to be lean, focused and independent and able to freely criticise the CQC and hold it to account. To place it within a bureaucracy which currently has diminishing public confidence hardly seems wise, bearing in mind the fundamental role of HealthWatch England”.
That sums up the case for it being an independent body and being seen to be an independent body. I beg to move.
My Lords, we have already debated to some extent the way in which HealthWatch England might operate. However, this group of amendments returns not just to that issue, but to a number of other important issues which go to the core of the extent to which HealthWatch England is genuinely going to be an effective organisation. I give Ministers and the Government the benefit of the doubt on this—that that is something that they want to see happen. Therefore, the way in which HealthWatch England is established, the way in which it functions and the powers that it has are going to be critical to whether or not this body will simply join the long list of organisations that have been set up over the years to represent patients’ interests and have then been dismembered after a short period, or in some cases a slightly longer period, because they are not seen to be effective. If the Government are genuine about putting patients at the heart of the new NHS, then they need to ensure that HealthWatch England and healthwatch organisations are effective.
My noble friend Lord Warner, slightly unusually, pulled his punches. He talked about it perhaps being a major mistake to host HealthWatch England within the CQC. I have to say there is a danger that this could be a disaster. It is a disaster because of the sustained attacks that the CQC is currently undergoing, which seem to emanate in some instances from Government and Ministers who clearly are not satisfied with the direction of travel. There are clearly concerns that this is an organisation which is being asked and expected to do far too much at the moment. To add this additional responsibility is not necessarily helpful.
I can understand that it is important that HealthWatch England relates effectively to the Care Quality Commission: that is one of the organisations it must relate closely to. But it must also relate closely to the NHS Commissioning Board. It must also relate properly, under certain circumstances, to Monitor. Simply saying that the relationship with the CQC is paramount does not necessarily make an enormous degree of sense.
My noble friend Lord Warner made a specific point. If the motivation for hosting HealthWatch England within some other national organisation is to save money—I understand that it may not be the prime motivation but it is a concern in all this—then there are plenty of other ways of achieving those savings in terms of back-office functions. Those functions can be provided by agency agreements; you can have organisations which are in the same building and able to share some of the physical facilities and so on. It does not necessarily require that the organisation sits as an integral sub-committee within or as part of the organisation concerned. You can do it in other ways; you can achieve those savings in other ways.
However, if you place HealthWatch England in the Care Quality Commission, or for that matter in the NHS Commissioning Board or any of the others, you are in danger of there being either a real or perceived conflict of interest. It may well be the case that HealthWatch England will, on occasions, be asking the Care Quality Commission to do certain things. It may well be the case that there will be, on occasions, circumstances in which HealthWatch England will be saying that the Care Quality Commission has failed to do certain things. That is not a happy situation; nor is it one that is likely to engender the trust of the public if they are seen as being part of the same organisation. That is the principle which underpins some of these amendments.
There is then the question of the extent to which HealthWatch England is seen as being a creature of either the CQC or Government. That then relates to how the ruling body of HealthWatch England—the committee, if it is a sub-committee of the CQC—is appointed. That is why one of the amendments to which I have my name, Amendment 307, specifically refers to the committee of HealthWatch England being,
“elected from local Healthwatch organisations”.
It is a principle of accountability; it is a principle of ownership; it is a principle of safeguarding that independent viewpoint and voice. That is why that is necessary and that is why Amendment 307 in this group is so important.
We also have a series of amendments, Amendments 308, 309, 312, 313, 315 and 316, which try to make sure that it is absolutely explicit that HealthWatch England's role is not just to provide information or advice but, on occasions, to make recommendations to the bodies concerned. It may be a recommendation to the CQC or to the other major national organisations. This group of amendments specifies that that is part of its functioning. It also makes it clear that there should be proper responses to those recommendations from the bodies to whom they are directed. Again, if the Government are serious about making HealthWatch England effective and about having a genuine and clear voice of the users of the NHS and social care services, surely placing in the Bill the power to make recommendations is central to that.
Amendment 314, to which I have also put my name, essentially requires HealthWatch England to provide the CQC with information and advice on the views of patients and the public, and of local healthwatch organisations. It is not a question of it being a discretionary responsibility but a clear responsibility—it “must” rather than it “may”. I know that, in this Committee or in your Lordships’ House more generally, we sometimes get into esoteric discussions about the relative force of “must”, “shall”, “may”, and so on and so forth. I am quite clear that must is stronger than may. That is to avoid a situation where the national body fails to take into account the views and opinions being expressed locally. It is saying that this is an obligation on the organisation to reflect that. Again, if you want to see an independent voice for patients at national level, it must be clear that that body is obligated to put forward the views of patients, the public and local healthwatch organisations.
Amendment 317 also goes to the heart of the relationship between HealthWatch England and local healthwatch organisations. It is a very simple expectation, which I am surprised was not included in the Bill already. HealthWatch England must send a copy of any report it produces to all local healthwatch organisations. This is about the way in which local healthwatch organisations relate to their national body. I speak as someone who ran a national body for patients for a number of years. I know that we would have had an extremely difficult time with our member community health councils had we been making advice and recommendations at a national level without keeping the local organisations, on whose advice those recommendations were based, fully informed of what we were saying and doing. The Bill sets out some of the people who should receive the reports produced by HealthWatch England, but fails to mention local healthwatch organisations. It is a simple change. I am sure it was a mere error in drafting and that the Minister will be able to accept Amendment 317 without wasting time at Report on the issue.
Amendment 318 relates to the relationship between the Secretary of State and HealthWatch England. Clearly, there is a nagging concern in the Department of Health that HealthWatch England may not do all that the Government are hoping, which it certainly will not be able to do unless they make some of the changes being suggested in this group of amendments. However, the Secretary of State has taken upon himself the power to give directions to HealthWatch England. Personally, I do not have a problem with that. I accept that Secretaries of State like to have that in respect of all sorts of organisations. However, before making those directions, which the Secretary of State should not make lightly, Amendment 318 provides that the Secretary of State,
“shall consult local Healthwatch organisations”.
If the Secretary of State were to give a direction on the basis that it was failing to discharge its functions, that should be in the light of the knowledge that local healthwatch organisations, to which HealthWatch England should be responsible and is, in part at least, servicing and supporting, have been properly consulted.
I think that the amendments are entirely modest, sensible and ones that the Government can accept without further problem. They are integral to ensuring that HealthWatch England is the proper voice of the users, patients and those who depend on the NHS.
I rise to speak to Amendment 311ZA, in the name of my noble friend Lord Clement-Jones, which calls for people’s views on those services commissioned by the board, whether locally or nationally, to be taken into consideration. I need to make a declaration, because I am chairman of the Specialised Healthcare Alliance. When she sums up, will my noble friend the Minister try to give some assurance that those with rare and complex conditions, services for whom will be commissioned by the board, will be included in all consultations by local healthwatch organisations and by HealthWatch England?
I have some general remarks about HealthWatch, which is to be the voice of the patient both nationally and locally. I want to tease out what it is all about, where it should be and who should be doing it. HealthWatch has to do far more than its name suggests—it has to do more than just watch. Clearly, it needs to listen. I totally support the amendments of the noble Lords, Lord Rooker and Lord Harris of Haringey, who are pushing the idea that HealthWatch should be able to recommend. This is not just a tacit thing: it has to be very much more proactive, to push things back. Whether it is pushing it back to the Secretary of State, CQC, local authority boards, NICE or even clinical commissioning groups, it is critical that that should be seen as part of HealthWatch’s role. “No decision about me without me”—well, we will not know about that unless the recommendation amendment is actually woven in.
The amendment of my noble friend Lady Cumberlege is about local healthwatch organisations. Local healthwatch organisations will have an opinion on clinical commissioning groups’ commissioning plans, and that opinion should go to the board.
Where should healthwatch organisations be placed? We have said it before in this Committee and I suspect we shall have to say it again on Report: we on these Benches are not convinced that the role for HealthWatch England is with the CQC—as a sub-committee of the CQC—or that the role locally should be with local authorities. One of the things that these organisations will have to do, whether nationally or locally, is to be quite critical of their hosts. It is very difficult to be critical of your host, so it is perhaps not appropriate that they should be their host.
Along with the question of where healthwatch organisations should sit, another issue—certainly, this is an issue at local level—is funding. Funding is currently held by local authorities for LINk organisations. I suspect that many of us who have been involved in this Committee have been receiving letters from LINk organisations saying that their funding is being cut and they cannot possibly manage. That needs to be taken into consideration. I understand that, currently, the pot of funding for local healthwatch is going to be given to a local authority. Should we be unsuccessful in moving local healthwatch out of the local authority, I would like the Government to give some thought as to how that money might be ring-fenced. I know that they are not happy about ring-fencing money, but should money be ring-fenced and be part of, for the sake of argument, the public health budget? If local healthwatch organisations have to remain with local government, then the funding needs some sort of protection.
Who should be involved with HealthWatch? I support the amendment of, I think, the noble Lord, Lord Beecham, that there should be locally elected delegates. HealthWatch England would be far stronger if there were local voices from local healthwatches. Now that we will have not strategic health authorities but sub-national areas, perhaps there should be two members from each sub-national area to represent their patch who could give the views of local healthwatch organisations to HealthWatch England. Perhaps that might be appropriate.
The local healthwatch organisations—LINks and their immediate predecessor organisations—have had problems with who actually forms part of these organisations locally. Some have been very good, but some have been less than effective. The members of these groups have just happened to be whoever was interested and keen at the time. Sometimes the groups were positive, but sometimes they really did not work at all. There might be shades of the past here: I wondered if there was any mileage in suggesting that the local healthwatch should be composed of someone from the local authority, someone from the voluntary sector and, of course, someone representing the patients, so that you weave into the local group some professional expertise in order to help with some of the strategic work.
I pass on apologies from my noble friend Lady Tyler, who was going to speak about children—she had her name down to Amendment 311ZA. Children need to be heard. When you talk about the views of children, you might have a mental picture of very little children, but in this context children go up to the age of 18. A lot of interesting services are currently available for teenage children, teenage individuals, young people or young citizens. It is critical that their views, needs and experiences are sought so that they can be fed into the mix.
I have probably said enough now about HealthWatch for the three groups so I shall sit down and not stand up again, but it is critical that we do this right in the Bill. I look forward to seeing what comes out on Report and to seeing where we need to move on to from there.
My Lords, my contribution in support of the amendments is simple and brief: it is to ask that the Minister ensures that we learn the lessons of history and do not repeat the mistakes of the past when it comes to patient involvement. As we know, there is a huge evidence base about the benefits of patient involvement in health outcomes, and I am sure that the mantra of “No decision about me without me” is something that all noble Lords will accept.
While successive Governments have been committed to patient and public involvement, the history of it has not been a happy one. Some of us can go right back to 1974 when CHCs were first set up. Like my noble friend Lord Harris, I believe that this Government are committed to putting patients at the heart of the NHS, but let us look at why the previous attempts to do so have not been successful. In summary, I suggest that the reasons are these: the efforts have not been sufficiently well funded; they have not been seen as sufficiently independent and therefore have had conflicts of interest; they have not had enough status; and there has not been seen to be enough communication between national and local bits of the set-up.
I leave aside the current problems of the CQC, although I agree with noble Lords who have spoken about that, but the very idea of making the new body a sub-committee of anything seems to me to ensure that we are in fact going straight down the route where we have made so many mistakes before. I remind the Committee that those who do not learn from history are doomed to repeat it.
My Lords, the noble Lord, Lord Harris, is right that we have already had this debate much earlier in the progress of the Bill, when we discussed the relationship between the Care Quality Commission and HealthWatch England. The debate took place on 22 November and I spoke in cols. 977-79, and your Lordships will be very grateful to hear that I am not going to go through it again.
There are just one or two things that I want to say. The amendments that I tabled at that time were very similar to some of those that have been tabled today. However, I want to make it plain that I am not, in principle, in favour of making Healthwatch England totally independent. I think there are enormous advantages in having a very close relationship with the Care Quality Commission. As I have said, I am not going to go into the reasons why at this time.
The first amendment that I have tabled provides:
“The majority of the members of the Healthwatch England committee shall not be members of the Commission”.
I think that is very important, in order to give them opportunities to criticise the CQC. The second amendment provides:
“The provision that must be made by virtue of sub-paragraph (1A) includes provision as to—
(a) the majority membership of Healthwatch England committee being elected from representatives of Local Healthwatch organisations, and
(b) the manner in which those representatives are elected, the term which they must serve and the role that they must fulfil”.
That has been very well argued again this afternoon.
Both the independence and the influence of Healthwatch England can be secured, providing that the right sequence of accountability is in place. I see this as follows: Healthwatch England must have a majority membership made of elected people from local healthwatches, and it must be accountable for the way it influences the CQC by local healthwatches across the country. The CQC must be accountable for the way in which it responds to HealthWatch England, and local healthwatches must be protected from interference and bias from local authorities. I will say more about that in the next group.
I want to take up the very good points about history made by the noble Baroness, Lady Pitkeathley. The question of whether Healthwatch England should be a stand-alone organisation is actually answered in history. Fourteen years ago, the then Association of Community Health Councils for England and Wales published Hungry in Hospital?. This highlighted the failure to feed elderly patients in hospital separately. Just a few weeks ago, exactly the same problem was highlighted in the dignity and nutrition programme report from the CQC. We know it is still a problem but have failed as a nation to sort it out. I wonder if ACHCEW had been part of the regulator, whether the CHCs could have ensured that the matter was addressed by the regulator and then monitored whether it was or not. Simply making an organisation stand-alone does not give it influence; indeed, it can distract it into supporting its own infrastructure, leaving less capacity for getting on with the job. Its functions, membership and accountability are what make it independent, and not, necessarily, its stand-alone status.
My Lords, my name is not under any of the amendments, but I want to say briefly how much I support what has been said by the noble Lords, Lord Warner and Lord Harris, and the noble Baroness, Lady Pitkeathley.
Following on from the noble Baroness, Lady Cumberlege, I think that, while Healthwatch will have some opportunity to look at the CQC, it will usually look at the negative side. However, I thought HealthWatch was going to be a body that might be able to influence future policy. Certainly, when I had the experience of sitting on a CHC board, it was able to contribute to the future policy of a new development. I feel we are looking very much at the negative, rather than the positive and the contribution that can be made by members of HealthWatch, possibly to future national policies.
Thinking back to the changes that took place in mental health and learning disabilities, I think that it would have been very valuable to have had the contribution of the HealthWatch group of people. We did not have it at that stage. Somehow we need to weave into this the positive side of policy-making and strategy that HealthWatch can often contribute in a very positive way. While HealthWatch will have a contribution to make in looking at the negative side—which usually means the critical side in relation to the CQC—I do not think that that should be its sole role. I hope the Government will take that away and perhaps feed it in.
My Lords, I shall speak briefly in favour of these amendments, which would make HealthWatch England independent of the Care Quality Commission and strengthen its role so that it has the function of making recommendations, not just providing advice and information, to the Secretary of State, the NHS Commissioning Board, Monitor, the Care Quality Commission and local authorities.
I emphasise that we are strongly in favour of HealthWatch England having the powers that will make it the powerful consumer champion for the views and experiences of patients, their families and carers that we want to see. However, we firmly believe that this will not be achieved if it remains a sub-committee of the Care Quality Commission—an important issue that we will return to on Report, and which we believe is crucial to HealthWatch England’s success as a public watchdog and patients’ champion that is able to make a real difference. My noble friends Lord Warner and Lord Harris have set out the arguments for this very strongly. I will not go over them again. They were indeed thoroughly aired in the previous debate anyway.
The amendments in this group from my noble friends Lord Harris and Lord Rooker also seek to ensure that the Secretary of State consults local HealthWatch organisations before he or she gives a direction to HealthWatch England concerning its failure to discharge a significant function that it is required to undertake. We support this requirement. We also support the amendment requiring HealthWatch England’s annual report to be sent to all local healthwatch organisations.
On the issue of how the committee of HealthWatch England is to be constituted, although we are supportive of its members being elected from local HealthWatch organisations—as also proposed by my noble friends—we will want to consider this issue more fully in the light of whether the full independence of HealthWatch England from the Care Quality Commission is secured. We also want to consider how we can ensure that members of both HealthWatch England and local healthwatch organisations, are more fully reflective of their communities in terms of gender, disability and ethnicity. A great deal more thought and work needs to be undertaken on this issue, possibly as part of the pathfinder healthwatch transition pilots. I will be interested to hear the Minister’s views on how this could be taken forward.
I was going to comment on a number of other amendments but they have been thoroughly gone into by noble friends, so I will leave it at that.
My Lords, this has been another excellent debate. We have returned to the topic of HealthWatch, which we also discussed on 22 November. I listened very carefully to the views expressed in that debate. It seemed that there was a consensus, as there has been again today, about the need to have the patient voice very much at the heart of the NHS. There was agreement then, as I think there is today, that the Bill moves us forward in making sure that the patient voice is at the heart of the NHS. I thank the noble Lord, Lord Warner, for his comments in this regard.
However, I fully recognise that there are significant concerns about the way in which the Government are taking forward these proposals. When we discussed this previously, I made a commitment to continue discussing these issues. We have had subsequent meetings, which some noble Lords have attended; I thank them for their input. I found those meetings extremely constructive. I also attended the meeting between the noble Earl, Lord Howe, and the national association.
Our previous debate focused on the independence of HealthWatch England, which will be a statutory committee of the CQC. I understand that this risks, as the noble Lord, Lord Harris, said, dangerously compromising the independence that I talked about as being so important. Let me be clear why we are proposing this arrangement. There is a reason why, at present, there is no national statutory organisation to champion the patient voice. The last body, to which noble Lords made reference—the Commission for Patient and Public Involvement in Health—was abolished for being ineffective and lacking influence as well as being too expensive and too centralising. To quote from the Health Select Committee’s 2007 report into Patient and Public Involvement in the NHS:
“The evidence we received was overwhelmingly critical of the Commission”.
The noble Lord, Lord Warner, said that the Government should set up an authoritative, stand-alone body, and others have made similar points. This is, however, precisely the point. While I respect the view of the noble Lord, the Government have not been convinced that it would be possible to have such an authoritative stand-alone body in the form that they suggest. The previous Government’s attempt to do this with the commission did not work out well, as noble Lords know. The abolition of the commission was announced five months after it started work. It limped on for a further three years, chewing up £100 million and was universally criticised.
Bandying around figures—“it chewed up £100 million”—gives a completely misleading impression. Could she tell us what proportion of that £100 million was the administrative cost of the commission, as opposed to the provision of patient and public involvement forums in every part of the country? The figure of £100 million is totally misleading.
I suggest that if you use a figure like £100 million, which was not the figure used by the noble Baroness, Lady Pitkeathley, you need to explain that that includes the running of the public and patient involvement forums. It is not the cost of the administration of the national body itself.
The organisation used up £100 million. There were criticisms from the local organisations that they were not getting the money they needed, so there was widespread criticism. There was criticism at a national level within the NHS and, in particular and importantly, the local organisations did not feel that it was acting in the way they needed it to, or feeding through to them the resources they needed to do what they felt was appropriate.
One of the failings of the commission was that it did not have a relationship with local public and patient involvement. The purpose of the amendment which talks about direct election would be to obviate that problem and provide a constraint in terms of whether or not there were going to be overly centralised administrative costs, because the body itself would be accountable to the local bodies that would be the recipient of most of them. My concern and my frank irritation with the commission—which I had no part in at the time—was the suggestion that all the £100 million was somehow used by the central administration. That was not the case.
One of the failings of the commission was that it was not accountable and did not have a proper direct relationship with local public and patient involvement. That was a fault both of the way it was constructed in terms of the legislation, for which the Labour Government of the time must take responsibility, and of the way in which the commission chose to work, with the support of the Department of Health at that stage.
What the noble Lord has said bears out the point. This was a nationally established commission which we all agree did not work. We therefore need to learn from that costly experience to try to move on and to work out a way in which you can have local healthwatch organisations as the local eyes and ears, feeding through to HealthWatch England, a national organisation. We are at the moment looking at how that national organisation should be sited. Everyone has said that the relationship between the national organisation and local organisations did not work previously. We are seeking here to make that relationship work much better. I can see another noble Lord is about to hop up.
The Minister will be pleased that it will be the noble Lord who pulls his punches, as my noble friend said earlier. I wish to pursue this issue of how much money the Government think they need to spend on funding HealthWatch England. This is the real issue: say, for example, it has £10 million—I do not know what figure is being considered, but there will be a sum of money. It seems to be agreed that there ought to be some kind of national body. I do not altogether understand the Minister’s argument that we got it wrong in the past, because we fully accept that we got it wrong. However, it does not follow from that there should not be a national public body called HealthWatch England. The Government seem to accept that. The argument is over whether you should place that body in the Care Quality Commission. I can see that one might argue that costs could be reduced by doing that, but we first need to know what the Government are prepared to spend on this body, and then we can discuss the best way of spending that money in terms of independence.
Perhaps I may come on to the points that I was going to make regarding why we are making our proposals in light of the experience of the national organisation that did not work brilliantly. They address some of the issues that the noble Baroness, Lady Pitkeathley, raised and are implicit in the points made by the noble Lords, Lord Warner and Lord Harris, and others about the independence and status of the new organisation.
I cited what happened with the previous national organisation, and the point about where we are placing HealthWatch England is that it is an attempt to ensure that it is in a strong position to influence the regulator, the CQC, rather than sitting off to one side and not necessarily being listened to. A lot of concern has been expressed about how that relationship would work, but I point noble Lords towards the other side of the issue. If HealthWatch England is sitting there alongside the CQC, with local healthwatch feeding into HealthWatch England, what better way to make sure that you flag up to the regulator concerns from local areas. Noble Lords should try to look at the issue from that point of view, as opposed to seeing the CQC as somehow silencing HealthWatch England. It is vital that the views of patients and other service users are taken on board by the CQC and that it does not close its ears and eyes to what is happening.
I am still struggling. I am sorry to keep interrupting the noble Baroness, but let me give her an example. Could HealthWatch England, as a sub-committee of the CQC, run a national campaign against what is being done by that regulator on an issue such as feeding elderly people in hospital?
HealthWatch England has a statutory obligation to represent the position of patients and, if it is concerned about the feeding of patients, yes, it indeed has the right to set its agenda, to campaign on that and to argue that this must be checked on and brought up to a much better standard. As my noble friend Lady Cumberlege said, we have throughout the NHS and through its recent and long-term history, problems and challenges in meeting basic standards of care and attention. All of us know that, whatever party we come from. The previous Government did not get this right; we are seeking to move forward, and we need to ensure that we consider these questions fundamentally and address why these problems continue to arise. They have been intractable; we will continue to address them; I welcome noble Lords’ contributions on that.
The noble Baroness made a very important point just now. She said explicitly that HealthWatch England could and should be a campaigning organisation, although it would be a sub-committee of the CQC. This is irrespective of the debate about where it is located. I think that the principle of creating a national patient organisation as a campaigning organisation on behalf of patients is extremely important. I am very grateful to the noble Baroness for making that commitment on behalf of the Government.
HealthWatch England will represent the voice of the patients. It will publish on that; it will advise on that; to take up a point raised under one of the earlier amendments, it will no doubt make recommendations within the areas of its advice. It has the obligation to make those recommendations to various organisations within the NHS. Various organisations, including the CQC, have the responsibility to respond to that. All those obligations will flag up problems, so I do not see that I have made a startling admission. I would have thought that the noble Lord, Lord Harris, would know that transparency—publishing information—was the best way forward.
However, I agree with many noble Lords that this has been rather a patchy area. We have to try to give greater strength to these organisations both locally and nationally. Much of that is not based on their structures, because all sorts of structures have been tried, but we are trying to take them further forward.
I just want to pursue the issue of the campaign, because it is very important. Currently, there has been a very effective campaign about literacy run by the Evening Standard. That has attracted lots of voluntary money to run it and led to some interesting changes and the Government supporting it. To be absolutely clear, I ask: are we saying that a sub-committee of the regulator—the Care Quality Commission—could run a campaign on the feeding of elderly people in the National Health Service in association with a national newspaper and criticise the Government strongly, implicitly, about the way that they are running the NHS in that area? If the Minister, on behalf of the Government, is saying that yes, it can, I start to get more convinced about the Government's commitment to independence of the sub-committee of the CQC.
As I said, HealthWatch England will need to look at what works well and what works not so well right across the country, gathering the information from local healthwatch. It will flag up things which, no doubt, will be uncomfortable at all levels of the NHS and the Government. Noble Lords would not expect change to be driven in any other way. If things are unsatisfactory locally, as fed by local healthwatch to HealthWatch England, if it is doing its job it will obviously flag up areas where change is required.
I am not talking about flagging up; I am talking about a campaign. A campaign means that you take action, using the media, to put serious pressure on the Government in relation to their record in running the NHS for elderly people. I am not saying that that should happen; I am trying to understand what power this body would have as a sub-committee of the regulator, which is the point that we are discussing.
Does the noble Lord, Lord Warner, agree that much depends on the membership of this body and whether it is independent? I am not sure why people call it a sub-committee. In the Bill it is called a committee. I have chaired the top board in organisations and I know that you get very close to some of those committees—you listen to them. If an organisation is totally independent and it goes left field, making a whole lot of noise, you just dismiss it and say, “Oh, they’re always making problems”. The opportunities are far greater if part and parcel of what it does is informing you of what is going on. I honestly think that you will listen much more carefully to people whom you meet in the corridor, in the chambers or wherever the debates are going on.
I take the point made by the noble Baroness, Lady Emerton. The Care Quality Commission does not always say that everything is dreadful. The Healthcare Commission used to say, “This bit’s good; this bit needs addressing”. I can see that this committee—not sub-committee—of the Care Quality Commission will serve a very useful purpose. It could put enormous pressure on the Care Quality Commission really to understand what is going on and it would not just be an irritant that is offside.
I thank my noble friend Lady Cumberlege for that and I agree with her very much. We all wish, and have all sought, to drive up quality in the NHS. That is so often difficult to achieve but this is one of the means by which we hope to make that happen. No doubt some people will be made to feel uncomfortable by what the committee reports and says, and I hope that that will be the case.
Perhaps the noble Baroness can take that a little further. For example, could HealthWatch, in the position envisaged for it by the Government as a committee of the CQC, join with a national campaigning charity—I am thinking of something such as National Voices—to put pressure on the CQC itself about how it was reporting patient outcomes?
I am sure that it could. If it felt that it was not managing to persuade the CQC or some other part of the NHS to do what it considered to be in the best interests of patients, then I am sure it would go to greater lengths to ensure that it got its message across. It is very important that we have a louder patient voice within the NHS, and this is one means of seeking to achieve that.
I return to some of the amendments that noble Lords have flagged up. This is a very important debate. I think we agree on where we wish to head and what we are seeking to achieve, but I hear noble Lords’ concerns about whether this is the right way of going about it. Noble Lords talk about an independent organisation and so on but that route was tried. This is another route for trying to make sure that there is a body close to an organisation which itself must have a major role in driving up quality. The synergies there are very important.
The question was raised of how local healthwatch is going to influence HealthWatch England. I heard what the noble Lord, Lord Harris, said about elections to HealthWatch England from local healthwatch. Clearly, as my noble friend Lady Cumberlege said, a great deal will depend on who is on these organisations nationally and locally, and it will be necessary to ensure that they are as strong as possible. The Secretary of State will determine how the membership is comprised through regulations and we will be discussing with a wide range of stakeholders the contents of those regulations. I can confirm that we will discuss the suggestions put forward by noble Lords. We had from the noble Lord, Lord Harris, an emphasis on election and a concern about that route from the noble Baroness, Lady Pitkeathley. Both noble Lords might wish to feed in to how those regulations are taken forward so that we can best comprise HealthWatch England and local healthwatch.
Can the Minister indicate the timetable for consultation on the content of those regulations? Those of us who wish to see an election process in the Bill will need to know sooner rather than later whether that is the way in which the Government’s thinking is going. When is that consultation going to take place and when is it likely to conclude?
In the meeting that I was in yesterday with NALM this was an issue. The noble Lord, Lord Harris, is probably aware of that. No? That was one of the issues—perhaps the noble Lord, Lord Warner, referred to it—that did come up. The consultation will be early next year. Given that we are almost in next year, that is pretty soon.
The noble Lord, Lord Harris, wanted to make sure that HealthWatch England’s annual report was shared with local healthwatch. While we do not feel that that is a matter for the Bill, the annual report must be published. It is important that that information is made widely available. I am sure that the noble Lord’s suggestion will be noted by HealthWatch England and local healthwatch as the information between the two must go back and forth, in both directions.
It is clearly important that the information goes back and forth between the local and national organisations.
If HealthWatch England were significantly failing in its duties, the Secretary of State has powers to intervene. An amendment addressed whether the Secretary of State should consult local healthwatch. This was on the assumption that HealthWatch England was in effect failing local healthwatch. While the Secretary of State should not be bound into a rigid consultation—something else entirely could be in question here—we would fully expect him to seek the views of others where appropriate in coming to a decision to intervene. I hope that that will reassure noble Lords.
My noble friend Lady Jolly talked about local healthwatch needing to look widely at all groups of patients, including those with rare diseases and so on. She is right. We will be coming on to other amendments where we look at this a bit more. LINks and its predecessors recognise that they have not had as wide a coverage as they would like or been as representative of their communities as they would need to be. This concerns us. The noble Baroness, Lady Pitkeathley, referred to it briefly in relation to whether local healthwatch should elect to HealthWatch England. We are seeking to learn from this. We want to try to make sure that local healthwatch has as broad a spread as possible. It is worth bearing in mind that it has a place on the board of the health and well-being boards and so there will be information feeding back to local healthwatch from the others on the health and well-being boards and from local healthwatch into the health and well-being boards. We will come on to local healthwatch in relation to local authorities, but there is synergy there too.
While I feel that the Bill provides safeguards for the independence of HealthWatch England within CQC, I would like to repeat my commitment that we are prepared to listen to further views. It is very clear that we are all trying to head in the same direction. There is a variety of views about how best to do this. We would welcome noble Lords’ continued input as we take this further forward. In the mean time, I thank noble Lords for flagging up these issues. I hope that the noble Lord will withdraw his amendment.
My Lords, this has been an interesting and spirited debate. I will certainly reflect on the Minister’s willingness to consider some of these issues further. My noble friend Lord Harris and I will certainly be considering this further and I would not rule out the possibility that we might come back to this on Report. I beg leave to withdraw the amendment.
Amendment 306 withdrawn.
Amendments 307 to 309 not moved.
310: Clause 178, page 176, line 10, after “people” insert “, including children,”
My Lords, I shall speak also to Amendments 311 and 320. This group of amendments seeks to ensure that the voice of the child is heard in health matters. Too often in Bills that do not relate specifically to children and young people, they are marginalised, yet, as has been said before in debates, child health is a vital aspect of healthcare and children are patients, just like adults. They have opinions just like adults and, in my experience, consulting children about what works for them always results in improved services and policies.
These amendments seek to ensure that HealthWatch England’s functions are clear and explicit in relation to children as well as to others and that its functions in providing advice to the Secretary of State, the NHS Commissioning Board and monitoring authorities on the views of patients and members of the public refer to the views of children, who are patients and members of the public.
Local healthwatch functions must also promote and support patient and public involvement in the commissioning, provision and scrutiny of local care services and must obtain the views of patients and the public about people’s needs for and experience of local care services. I submit that those functions must be carried out to include children. HealthWatch England must provide support and assistance to local HealthWatch organisations in relation to this.
Furthermore, as noble Lords may know, Article 12 of the UN Convention on the Rights of the Child makes clear that children have a right to be heard on issues that affect them. Measures to promote patient and public involvement in decisions about their own care and in the development of health services and care services must include children from the start. I believe that this will make for better health services.
The Bill does not make this clear enough. Research commissioned by the NCB has found that local involvement networks or LINks, which the Bill will transform into local healthwatch, are not always clear that children and young people are part of their remit. Local healthwatch and HealthWatch England will need to be able to identify capacity and maintain the skills to reach out to and engage children, including the most vulnerable children and their families.
A recent review of law, policy and practice in relation to children’s participation in the NHS and other public services and settings found that, in their efforts to support user involvement, the health authorities and NHS trusts had not specifically identified children as service users. The review also found that although 41 per cent of GP practices reported to have a patient participation group there was no evidence of children’s active engagement in these forums. The Royal College of Paediatrics and Child Health has argued that reforms have been lacking in providing the structures and frameworks where children and young people are properly represented. And concerns about children’s involvement in patient and public voice mechanisms were also reflected in the report of the NHS Future Forum. In 2009-10 Professor Sir Ian Kennedy carried out a review of how the NHS delivers to children and recommended a local partnership in each local authority that would co-ordinate public services in the best interests of children. His ambition was that,
“the welfare and well-being of children and young people, seen as so important by so many, will be the prevailing cultural approach”.
My amendments here try to make clear that children are within the remit of local HealthWatch and HealthWatch England and that children’s and young people’s views should be heard. I beg to move.
I put my name to these amendments, which are incredibly important. I hope that the Government’s response will be that they are listening and prepared to change this. It is worth noting that the Government’s response to Professor Sir Ian Kennedy’s report said:
“In the past, the NHS was not always set up to put the needs of patients and the public first. Too often patients were expected to fit around services rather than services around patients. Nowhere was this more the case than for children, young people and their families … If we are to meet the needs of children, young people, families and carers, it is vital that we listen to them in designing services, gather information on their experiences and priorities, provide them with the accessible information that they need to make choices about their care, and involve them in decision making”.
That is the Government’s own response to the report.
I also draw attention to the report from the ombudsman in Wales. I know we are going to debate ombudsmen later but I will make this one point. The ombudsman upheld a complaint that Health Inspection Wales,
“failed to seek the child’s perspective on her care”.
The Royal College of Paediatrics and Child Health is very concerned that “no decision about me without me” must extend to children and should involve both children and young people. Without that we will have poorer service planning and, as a result of that, poorer health outcomes. A voice for children and young people needs to be incorporated in the decision-making process of the NHS Commissioning Board, health and well-being boards and clinical commissioning groups, and a safe conduit for this involvement may be HealthWatch and local healthwatch.
I want to briefly draw the House’s attention to the fact that we have many young carers so it is not only children as patients that we need to consider. In the 2001 census it was found that there were 175,000 young carers and no one is disputing that those numbers have gone up significantly since then. A third of those are caring for somebody with mental health problems and the average age of young carers is 12 years old. Reading their comments, society clearly does not understand the pressures that they are under. There is evidence that when they get to school late, the school does not understand. When they try to accompany their parent to out-patient or even in-patient appointments, they are not listened to even though they have been providing all the care. The facilities where their relative is looked after are not appropriate for them to stay overnight. I remind the Committee that when a young parent is dying, the children will want to stay at the bedside. They may want to sleep in the same room. They do not want to be taken away. They may want to have a break; they may want to go out; they may want to watch a video. If we are really going to invest in quality of care and health outcomes for the next generation, and meet the Marmot review’s requirement for health inequalities not to be widened but narrowed, we must address the needs of this group in our population who provide a lot of care, who are incredibly important and who will be the citizens of the future, but to whom the system does not currently give a voice. To expect adults to be a voice for them is completely unrealistic, because, when they are a young carer, there is no other adult there apart from the person whom they are caring for.
I hope that these amendments will not be dismissed with a whole lot of reasons as to why they cannot be put into practice. If we are really committed to changing healthcare services for the population, we should listen to the voice of children and young people.
My noble friend Lady Massey is, as usual, correct about these matters. I am always happy to take my lead from her. All my experience of working with NCH and lots of children’s organisations over the years, and, more recently, of talking to YoungMinds, leads me to think that this is a matter that the Government need to take into consideration.
My Lords, my name, too, is on the amendments. I support what my noble friend Lady Massey and the noble Baroness, Lady Finlay, have said. I want to refer to adolescent health services. We know that primary care services are not often very user-friendly in relation to adolescent health needs. I have come across GPs who have had special sessions and even private doors so that adolescents can come into their surgeries without being spotted by nosy neighbours. There are some real issues of privacy with young people in the adolescent years. They do not always find these services easy to use, when they often have considerable health needs and sometimes quite serious mental health needs. In my time as chair of the Youth Justice Board some time ago, we were starting to find that for many young offenders the origin of their offending was when someone significant in their family had died. It was the absence of any bereavement services that caused them to go off the rails. It is more than just symbolism to put these extra words in the Bill; it is a very important signal to the NHS that Parliament recognises the need to pay attention to the needs of children, to listen to them and to meet a set of needs which are often not being met.
My Lords, I thank the noble Baroness, Lady Massey, for flagging up this issue and for the work that she has long done in this area, which I saw particularly clearly when she and I were both trustees of UNICEF. Our aim is that HealthWatch England and local healthwatch organisations should be there to understand the views and needs, locally and nationally, of patients and other service users and members of the wider public—everyone.
I reassure noble Lords that, at both national and local level, this clearly includes children and young people. I realise that the concern expressed by noble Lords arises from deficiencies in how things have operated in the past. The Future Forum flagged up the need to ensure that, for example, local healthwatch should be more representative of communities than had been the case previously, which why is my honourable friend Paul Burstow in the other place introduced an amendment to the effect that local healthwatch should represent the breadth of views and diverse characteristics within a community, whether it be carers, young people or otherwise.
It is important that children should not be overlooked, either as patients or carers. The key is empathy and understanding whoever the person is, focusing on the patient and their family and looking at things from their point of view. As we change from LINks to local healthwatch this may be an important opportunity to try to work out how better to address, in a more strategic, holistic view, what the needs of patients, their families, children and young people might be, including those in the kind of incredibly difficult situation to which the noble Baroness, Lady Finlay, referred.
It is clear that not only within the National Health Service are children often overlooked—as are the elderly often—but that the patient groups are not as focused as they might be. In the annual reports of LINks and so on there are wide areas which currently are not getting the attention that they should be, which I am sure local healthwatch will wish to address.
Specifically, local healthwatch needs to represent the views of all people within the local population, including children and young people. However, we do not think that this should be in the Bill because, whatever the age of the patient or their family, and however marginal they may seem, we want to be inclusive and not exclusive, and if you list one group you are in danger, therefore, of excluding others.
However, we hear what noble Lords say and, as these organisations and the pathfinder local healthwatch organisations come into play, we will ensure that what noble Lords have said is flagged up to them. I hope that on this basis the noble Baroness will be willing to withdraw the amendments.
If we come back later with an amendment which specifies people of all ages—I accept what she said about the elderly also not having an adequate voice at times to meet their needs—will the noble Baroness consider it? This is one occasion when the legislation can give a lead and set a moral code. I also seek an assurance that there will be specific mention of children in the official guidance that goes with the Bill so that they are incorporated at every stage and do not remain left out, as they have been until now.
I hear what the noble Baroness says. It is interesting that she said “people of all ages”. The purpose of healthwatch and the NHS is to help and try to assist people of all ages, whether they are patients, their families and so on. We need to make it more person-centred—we all agree that that is what we are seeking to do—and I hear what she says in regard to the regulations.
My Lords, I thank the Minister for her words. I have some concerns, to which I shall come in a minute. I am glad that so many noble Lords contributed. I am particularly glad that the noble Baroness, Lady Finlay, mentioned young carers and that the noble Lord, Lord Warner, talked about adolescent health, so long an area which has been very much neglected in relation to health services.
I would also like to thank the Minister for meeting a group of noble Lords to discuss the issue of children’s interests in this Bill. I hope that the Government have got the message about the need to involve children in decisions about their care and treatment. Many have considerable health needs, although the young population is generally considered the healthiest. They have health and care needs, including mental health needs, disability and so on. I worry that when children get lumped in with expressions such as “the community” or “the family”, their needs are ignored. Children have very little redress on this. If we do not make it explicit that we should consult children, they often do not have the ability or contacts to come back at that and make a protest. We have to do that for them, and children must be included in and consulted on all Bills that affect them.
I would like the words “children” and “young people” and consultation with them to be made very explicit in this Bill. I have amendments later, although I cannot remember their numbers, which will also reintroduce the notion of children into this Bill. In the meanwhile, I will withdraw the amendment, but I may well wish to return to the matter on Report with other noble Lords and look at it again.
Amendment 310 withdrawn.
Amendments 311 to 317A not moved.
317AA: Clause 178, page 177, line 4, leave out “, so far as practicable,”
My Lords, I rise to move Amendment 317AA and shall also speak to Amendment 317AB, 336B and 336C and 318BA to 318BC, which are in the name of the noble Lord, Lord Whitty.
The Bill contains a number of provisions which relate to the handling of information by various bodies. Amendments 317AA and 317AB relate to HealthWatch England and Amendments 336B and 336C relate to health and well-being boards. Amendments 317AA and 317AB come in Clause 178 and seek to strengthen the safeguards against HealthWatch England publishing information which relates to the private affairs of an individual.
The Bill already contains some safeguards, but I do not believe that they are adequate. Clause 178(4) states that,
“any matter which relates to the private affairs of an individual”
“would or might seriously and prejudicially affect that individual’s interests”,
should be excluded from the reports that HealthWatch England is empowered to produce. But it states that information should be excluded only when it “seriously” prejudices an individual’s interests, not if it prejudices their interests less than seriously—and who decides what is serious and what is prejudicial—and that it should be excluded only “so far as practicable”. It is not clear to me why information that relates to the private affairs of an individual should be published at all. It seems to me that the prohibition should be absolute and that, in Clause 178, proposed new Section 45B(4) should simply read:
“Before publishing a report under subsection (1)(b) or (3), the committee must exclude any matter which relates to the private affairs of an individual”.
That is what Amendments 317AA and 317AB would bring about. Paradoxically, this is a case where no safeguards would be better than the inadequate ones we have in the Bill.
Similarly, health and well-being boards are given wide powers under Clause 196 to request information—powers that are clearly wider than they need to be. As the Bill stands, a health and well-being board can ask a local healthwatch organisation for details of people who have complained or raised concerns about a service and, as the Bill stands, a healthwatch organisation would be obliged to disclose that information. Amendments 336B and 336C would stipulate that no information be requested which would require the disclosure of personal information within the meaning of the Data Protection Act.
The noble Lord, Lord Whitty, will speak in more detail to Amendments 318BA, 318BB and 318BC, which come in Clause 179, but I would like to indicate my support for these amendments. I am aware of concerns that have been raised about the independence of local healthwatch organisations arising from the fact that they will be both funded by and accountable to the local authority. It is explained in paragraph D35 of the integrated impact assessment that this is based on the importance of localism. Paragraph D106 of the integrated impact assessment states:
“There is a risk that tying local HealthWatch into local authorities could reduce their independence and effectiveness”.
So it seems that the imperatives of localism trumped those of independence and effectiveness.
The integrated impact assessment goes on to recognise that the duty on local authorities to fund local healthwatch arrangements may be perceived as giving rise to a conflict of interest for local authorities, given the role of local healthwatch organisations in relation to scrutiny. It is stated that work is under way to map out the concept of independence for local healthwatch organisations, and to use this to promote the arrangements as accountable to local government for performance and to local citizens for the issues raised with commissioners and providers, but we do not know the outcome of this work as yet. The Bill does not provide any detail on the membership of local healthwatch organisations. It is left to regulations to specify who makes appointments to these bodies, and how. It would be extremely helpful if the Minister could give some indication of how this separation of accountabilities, which is evidently envisaged, is to be realised and institutionalised.
In any case, however, the fact that the local authority holds the purse strings remains a risk to the independence of local healthwatch. There is therefore a strong case for local healthwatch organisations not to be funded by the local authority. The argument that the importance of localism requires accountability is not as strong as the need to have effective, independent local services. These amendments would make local healthwatch organisations responsible for their own activities and accountable only to HealthWatch England, rather than the local authority, but I fear the risk from local authority control of the purse strings would still remain.
My Lords, I shall speak to Amendment 324, tabled in my name and those of my noble friends Lord Tenby and Lord Wigley, in this rather Christmas stocking grouping of amendments. This regards the provision of independent advocacy services for people who are in the process of making a complaint against the NHS. This amendment is particularly relevant to the needs of disabled people, including those with a learning disability, and I would like to take this opportunity to declare an interest as president of the Royal Mencap Society.
For those who are unfortunate enough to encounter it, the NHS complaints system is deeply flawed and ineffective. It is complex in its make-up and lengthy during the course of its deliberations. I welcome the Government’s proposal for local authorities to make appropriate provision to support people in the complaints process, through the use of advocacy services. Effective and high-quality advocacy services are of course an essential prerequisite for many families to secure the answers they want and the justice which they really require.
Without this amendment, there is a risk that advocacy support could be started and then abruptly halted some time before any conclusion to the ongoing complaint which has been made. As I have already mentioned, the NHS complaints system is a lengthy and complex process and the level and scope of advocacy support made available by local authorities should reflect this.
I am also aware that in some cases advocacy support services have been denied to families, as the level of support deemed necessary has been regarded as too onerous and burdensome on the provider. This is an unacceptable state of affairs, where people are denied the help they need on the basis that they may need too much help. At a time when families could be dealing with the emotional upheaval and distress of coping with the loss of a loved one, any uncertainty about the level and period of advocacy available to them is, to put it somewhat generously, an unhelpful distraction. This is why I believe it necessary to ensure that advocacy support during the NHS complaints system is not restricted in length and type for those families who need it. This amendment would help to provide such a guarantee.
My Lords, I thank the noble Baroness very much. In this case, logic trumps chivalry.
I have four amendments in this group, all of which relate to the independence of the local healthwatch—some of them in some slightly indirect ways. We spent some time at an earlier stage, and again today, talking about the independence of Healthwatch England from the regulator. I did not intervene today, but it is evident that the Government are not persuaded that we need to unravel them. I am afraid we are going to have to return to that at a later stage, because I am certainly not convinced by the Government’s arguments. However, I think that even the Government must recognise that a body representing patients, users and consumers of health and social care services has to be independent from the provider.
The problem with some of these clauses is that the local healthwatch organisation, as the noble Lord, Lord Low, has said, is not clearly independent from the local authority in all respects. We are not yet clear how independent of the local authority it will be in its membership and how that membership is appointed. Schedule 15, which comes in with Clause 179, is pretty general as to who the members would be. As the noble Lord, Lord Low, said, we have to await regulations before we see that. Meanwhile, there are other reasons why one is a bit suspicious that the local healthwatch organisations would come too much under the sway of the local authority, which is going to be the provider of many of the services to which they relate.
There may be other ways of doing this, but these amendments are attempting to make clear the independence of the local healthwatch body by establishing that it sets its own priorities and manner of operating, subject only to any guidance given by Healthwatch England; that is, it would not be subject to any guidance, restriction or direction from the local authority. There are then a number of clauses which are pretty complicated in themselves, but appear to treat the local healthwatch as if it were an excrescence of the local authority.
For example, I want to delete the bulk, or the purport, of Clause 181, which appears to treat local healthwatch organisations as if they came through the local authority rather than being independent bodies. Some of the requirements may well apply to healthwatch locally, but they should not be implemented and enforced via the local authority in any sense. The noble Lord, Lord Low, has already referred to some of the problems about freedom of information, but some of the other provisions could well raise difficulties if the local authority was the one ensuring that the local healthwatch met those provisions.
Independence of consumer organisations across the economy is important, and I will return to that on Report. Local bodies, in particular, need to be independent. They are the bodies to which individual patients and users will relate, and if they believe that the local healthwatch is in any way associated with, dominated by, or accountable to the actual providers of the bodies that provide the services, its credibility will be diminished. I would therefore hope that the Government took note of these concerns and made it more explicit in the final version of this Bill that local healthwatch organisations were independent of the local authority and made their own decisions, with their own priorities and manner of operation. I do not think that we can leave all that to regulation; it has to be more explicit in the Bill. This is one way of doing it, although the Government may well come up with better ways of doing it, but I think that we need to ensure that we reach that stage before we finish with this Bill.
My Lords, I have a number of amendments in this grouping concerning local healthwatch. As has already been said this afternoon, local healthwatch is the source of intelligence from the people who are actually using the services. This intelligence is gathered through their enter and view monitoring visits to both health and social care services—we should not forget that it is social care as well—and through their local involvement work.
However, neither commissioners nor overview and scrutiny committees have the same binding arrangements to enter and view health and social care facilities. Local healthwatch has the opportunity to interview people at the time they are actually using the service. The local healthwatch has the independent messenger status with local people that neither commissioners nor overview and scrutiny committees have. Local healthwatch has the right to enter and view, to talk and listen, to the most vulnerable of all people, those with dementia or other mental illness, those lying on trolleys in A&E, or on mental health in-patient wards. “No decision about me without me” can be tried and tested when most fresh in the minds of patients and users. It is only here that the reality of the services that results from the theory of commissioning is to be found. To fail to take due account of this perspective in commissioning services is commissioning wearing a blindfold. The purpose of Amendment 318E is to ensure that commissioning is evidence based.
New Sections 14Z and 14Z11(2) require clinical commissioning groups to involve and consult on their commissioning plans. We know that this is a somewhat bureaucratic exercise, and it is often simply for the cognoscenti. Although these clauses are to be welcomed, they do not go far enough—hence the insertion of my new clause. Frail elderly patients lying in hospital wards who are not being fed will not be responding to consultations any more than will patients who have been sectioned under the Mental Health Act. The local healthwatch must talk to those patients and its findings must be an indispensable component of the evidence on which commissioning is based.
New subsection (3A), inserted by Clause 180(6), also requires commissioners and others to have regard to reports and recommendations from local healthwatch. This replicates the current arrangements for reports and recommendations from LINks, which has failed to bring the patient experience into the heart of commissioning. Compared to the status given to the views of health and well-being boards on commissioning plans—the strategic beginnings of commissioning—this is weak. What is needed is equal attention to the evidence on the outcomes of that commissioning, which local healthwatch is uniquely well placed to provide.
My new clause requires local healthwatch to hold the clinical commissioning group to account for incorporating the evidence that the local healthwatch has produced at the very start of the commissioning period. It should then heavily influence the commissioning plan for that period in taking the reality and applying it to commissioning theory. Binding the patient experience into commissioning is a much more specific requirement than merely “having regard to” local healthwatch reports and recommendations. The conjoint benefit of this new clause is that it increases the accountability of local healthwatch for producing robust evidence of the patients’ experience. Providers must also satisfy the local healthwatch if they are to secure further contracts.
My Lords, I think that my noble friend said that providers must satisfy the local healthwatch before they can proceed with their commissioning. Is this another barrier to the commissioning process, or does she anticipate a collaborative conversation? I am not clear on whether this is another hurdle in the commissioning process or a lesser effect. It would be helpful, at least to me, if she would expand a little on that thought.
My Lords, there is no intention that this should be a further hurdle, but if commissioners are going to commission services that are really relevant to local people then they need to take account of what the local healthwatch is saying. This is a huge resource that could improve services enormously and make contracts much more relevant than some of them have been in the past. I hope that that answers my noble friend.
I shall take three quick examples to illustrate my point. The first is a patient in an older persons ward who leant forward confidentially to the CHC visitor, saying, “They don’t feed them in here, you know. They just put the food at the end of the bed, then they take it away again. Please don’t tell them it was me who told you”. The second one is the mental health in-patient in a unit with an outside garden, who explained that he could not go out even though the summer was really hot. There were not enough staff to accompany the patients outside so he “had to stay in all the time”—his words. What quality of life is that? The third is from another patient in an older persons ward who expressed concern about a patient whose hearing aid battery was flat: “They could just have gone to the audiology department to get another battery, but they wouldn’t”. The staff just spoke more loudly to the profoundly deaf patient, increasing his distress and isolation.
To some people these examples may seem quite trivial, but to the people concerned they are not—they are very important. I took those three examples because the first is over 10 years old, yet we know from the CQC’s recent dignity and nutrition inspection programme, and from the evidence from Mid Staffordshire, that patients are still not always adequately fed in hospital. That makes the point of the amendment perhaps more powerfully than anything else. What we are doing now is not working; it is not effective, and does not bring about the radical changes that are necessary. We have to do things differently, and the suggested new clause gives us the opportunity to do just that. I feel strongly about this issue and I hope that the Minister will give it serious consideration. Otherwise, I may have to bring it back at Report.
My remaining amendments, Amendments 320ZA, 321C and 322A, are designed to ensure that local healthwatch organisations have the status, powers and functions necessary to be efficient and effective. Without these proposals, they will be another initiative to involve citizens without the necessary infrastructure, and will betray all those volunteers who put so much time and effort into trying to get the voice of users heard. We cannot afford for another attempt at this to fail. Otherwise, our credibility will evaporate.
Amendment 320ZA concerns the pay and rations functions of local authorities which need to be delivered to local healthwatch, and takes up the concerns expressed by the noble Lord, Lord Low of Dalston. It reduces the role of the local authority to the minimum needed for the local healthwatch to come into being and to work efficiently. It provides pay and rations for local healthwatch and gives the local healthwatch the option to have a budget, if that is what it prefers. The current contracting arrangements are unduly complex and inconsistent with the status of local healthwatch as an independent body rather than a mere creature of the local authority. Clarity and simplicity are essential. Local healthwatch needs to be an enabler of local people and local groups, including those groups which support vulnerable and marginalised people, who should have a voice that is heard directly at the decision-making table by those reaching decisions on health and social care. This is an important job that needs to be got on with as soon as possible.
Local healthwatch must of course have the rights, powers and functions necessary to work flexibly and to have some autonomy over its organisational destiny. It needs independence so that it can work with lay people on local programme boards, in partnership with local community groups through pooled budgets, or as commissioners of projects through support groups. Above all, it needs the confidence of vulnerable groups that will only speak openly through it. How local healthwatch then establishes its ways of working to meet its functions cost-effectively and efficiently is then for local determination.
For an effective local healthwatch to get on with the job of patient involvement and monitoring services—its core function—as soon as possible, five ingredients are essential: a simple, clear structure requiring minimal input locally before starting work; a set of functions on which local healthwatch can be held to account; consistent standards to measure that accountability; a suite of powers to enable it to achieve those functions in a range of ways for maximum efficiency and effectiveness; and a transparent enabling role for local authorities, rather than a directive one.
Many amendments in this group are designed to go some way towards this. Transition must be managed very carefully. Who steps into the body from the local involvement network should depend on how well the existing LINk has met a set of transition criteria, which could be set in consultation with LINks and others, and which should be transparently and consistently applied by local authorities. I hope my noble friend will consider these amendments very carefully.
I turn very quickly to my last two amendments. Amendment 321C enhances the structure of local healthwatch by giving it functions instead of activities controlled by the local authority. It is another attempt to make local healthwatch independent. Either local healthwatch is going to be independent or it is not. In the scheme that the Bill currently sets up, with the term “activities”, the local healthwatch could be a creature of the local authority instead of an independent organisation hosted by it.
My final amendment, Amendment 322A, seeks transparency and consistency in local authority decisions on local healthwatch. At the moment, a local authority may cut funding from a local involvement network, and may do so in future for a local healthwatch, and then criticise the poor performance which has, in fact, been caused by inadequate funding. The Bill must safeguard local healthwatch from such undue interference and give confidence to local communities that we are creating something that will help prevent a repeat of Mid Staffordshire. Furthermore, in its role of scrutinising social care, local healthwatch scrutinises local authorities, who are also its funders, as commissioners of social care—a peculiar version of arm’s-length accountability. This introduces the potential for bias in local authority decisions about funding and setting up local healthwatch. In Clause 182, new Section 223A(6) recognises that independent advocacy services must involve neither the person complained about nor someone who has investigated the complaint.
Therefore, I am seeking that a similar principle should apply to the role of local authorities, who are sometimes commissioners and even providers of social care themselves, as funders of local healthwatch. Greater transparency in decisions made about local healthwatch by a local authority is part of the solution, as it would make bias and undue influence much more difficult as a rationale. All the decisions would have to be explicit and aligned with the statutory functions of both organisations. This is not to reduce the autonomy of local authorities but merely to improve the transparency with which they exercise that autonomy. I hope the Minister will consider these amendments carefully.
My Lords, I will speak to the seven amendments in my name in this group, Amendments 319, 321, 322, 323, 325, 326 and 327. The noble Lord, Lord Rix, described this group as something of a Christmas stocking; I have to say that even my seven amendments do not have a common theme. They are on a variety of topics, ranging from some that simply correct what I assume are drafting errors in the Bill to others that raise rather more fundamental issues along the lines of the amendment of the noble Baroness, Lady Cumberlege.
Amendment 327 deals with what is, I think, a drafting error. Unless I have misinterpreted the interlaying Acts that are being subsequently amended, the Bill leaves a reference to primary care trusts in the base Act. Presumably the assumption is that the commissioning groups will take on those functions and should be expected to respond to the local issues raised by local healthwatch organisations. I am sure that is simply a drafting arrangement.
Amendment 323 would slightly tighten the wording on how independent advocacy is organised and says that the provision should be appropriate to the needs of those for whom that provision is being made available. I am sure that the Government will have no problem with that. It makes sure that advocacy arrangements recognise the very different nature of the problems and the client groups who will raise them.
Amendment 321 puts into the Bill a requirement that arrangements be made to enable members of local healthwatch organisations to have indemnity cover against the risk that a claim may arise from their duties. I am doing the Government a favour by highlighting this at this stage. I certainly recall, from the time of my involvement in community health councils, and in another sector prior to that—the work of electricity consultative groups for a completely different government department—that the same issue arose. I refer to the indemnity or protection that is there for people who are carrying out public duties if they are involved in an accident and a claim is made against them for it. What we will have—I am sure it will be in the Minister’s brief—is some vague statement about Treasury indemnity.
The problem for individuals in this position is that it is not clear what such indemnity will cover and how they will be able to access it if, for example, they are involved in an accident or an incident during their work as a member of a local healthwatch organisation. I would advise—I am trying, as ever, to be helpful to the Government—that this should be sorted out now rather than waiting to get into a tangle about it. I remember spending many happy years, when I was Director of the Association of Community Health Councils, trying to get a definition that would satisfy local CHC members that they were protected. Otherwise, the answer goes back that you should claim on your own insurance policies; yet those insurance policies often exclude people who are carrying out work—even voluntary work—or similar duties. Acting on behalf of a local healthwatch organisation will almost certainly be excluded by the individual members’ insurance policies. My experience on CHCs and in other organisations is that this is a constant pressure and a constant concern. There should be something explicit in the Bill to provide a degree of reassurance to people who are undertaking these activities on behalf of their communities.
Amendment 319 relates to the membership of local healthwatch organisations and is put forward today as a probing amendment. I hope the noble Baroness will give us details of how it is envisaged that local healthwatch members will emerge in that role. The question of how legitimate local healthwatch organisations will be—how representative they will be—depends critically on the precise arrangements by which people end up as members of the organisations. The previous Government’s proposals in respect of LINks, which I never fully understood, left it in a state of limbo and people were, essentially, self-appointed as members of LINks. There must be a degree of transparency and clarity in the process by which people end up as members of local healthwatch organisations. The proposal here is that there should be some system of election. Often, although this was not exclusively the case, the most effective members of local community health councils were those who were elected by local voluntary organisations in the areas concerned. They were often the people with the most detailed, personal knowledge of the services they were monitoring. They often had a constituency they could draw back into for information and support for the work they were doing. Above all, they had the added legitimacy of having been chosen for that role by other local voluntary organisations.
I am not suggesting that as a model that should necessarily be adopted. What I am saying is that the clarity it gave those individuals was very helpful. Other members were appointed directly by the local councils for the area. Again, that gave clarity about who they were representing and what their legitimacy was. Some were appointed by regional health authorities, though this changed every time the health service was reorganised, which was every two or three years. That is something that does not change, even now, and I am sure we will be back here in two or three years unpicking whatever finally emerges from the sausage machine of legislation that we are processing now.
It is going to be critical to have a clear process by which local healthwatch organisation members are appointed. It is also important that they have legitimacy. Otherwise the organisations to which they relate will say, “You are not representative. You are self-selecting” or “You do not represent the communities you purport to represent”. Clarity about the appointments process is important. Some system of election would be valuable, but it would be helpful if the noble Baroness could tell us today exactly what is envisaged. We certainly need to know that before we proceed further with the Bill.
The orange in the Christmas stocking is the relationship between the local authorities and local healthwatch organisations. I have tabled Amendment 322, which refers to local healthwatch organisations not being subservient to the body that is responsible for their establishment. That goes to the core of the issues raised by the noble Baroness, Lady Cumberlege, about the extent to which local healthwatch organisations can be effectively under the control of local authorities.
I know that we will be assured that local healthwatch organisations will be independent and have all this additional legitimacy because they will know that local authorities have provided them with support, and that that is why the proposed structure is being adopted. However, that model will not necessarily work. I speak as someone who was leader of a local authority for 12 years and I know how decisions are made. In particular, I know how decisions are made at times of financial stringency. Unless the resources for these local organisations are guaranteed in some way, they will be vulnerable—not necessarily because they are saying unhelpful things but simply because the local healthwatch organisation will not be seen as a core activity of the local authority at a time of stringent finances and resources. That is why this issue needs to be addressed head on.
There is a problem of potential conflict of interest. Local authorities are responsible for providing certain types of social care. They are responsible for commissioning and providing that care. They will have a responsibility with others through the local health and well-being boards. There is a danger that local healthwatch organisations will be seen as being conflicted because they are subordinate to the local authorities in their area.
There are two simple ways for the Government to solve this problem, both of which I know they are not currently minded to consider. One model is a separate structure that provides the funding and resourcing for local healthwatch organisations; and that would flow back to HealthWatch England. The other model is to ring-fence the resources that are passed through to local authorities for this purpose. I know that Her Majesty’s Treasury is always against ring-fencing and, indeed, the Local Government Association, of which I have the honour to be a vice-president, always argues against the ring-fencing of resources because it is always better for local authorities to make their own determinations. However, this is not about determining local needs. This is about providing something for the local community on behalf of another government department.
The Department of Health has, no doubt, fought a valiant battle with the Treasury to secure the resources for HealthWatch and the Treasury is passing that money through the Department for Communities and Local Government down to local authorities. There is no ring-fencing. The reality is that local authorities will not be able to say to the Treasury at the next comprehensive spending round how those resources have been used. They will not even be able to demonstrate that those resources have been used for the purposes for which they were given, and they will lose the battle for the continuation of that funding. If there is a ring-fenced structure, you will ensure that the resources are there for local healthwatch organisations. There may then be a question about how effectively those local organisations operate, but at least the resources will be clear and the local authority will be accountable for how it has used that money explicitly, rather than for whether or not it has used the money for that or for other purposes.
Unless that issue is addressed, there will be not only perceptions of conflicts of interest but the problem that local healthwatch organisations may, in time, be starved of resources. This is not an idle concern. We have all received the correspondence from LINks, talking about the budget cuts that they have faced in the current financial year. We can expect that to continue. If the Government are serious about having vibrant and effective local healthwatch organisations, they have also to solve the resourcing question and the perceived conflict of interest between the local authority and local healthwatch organisations.
We heard much in our earlier debates about the synergies and wonderful effects that talking in corridors would have within the CQC. I thought at one point that the noble Baroness was going to talk about talking in the toilets about decisions and how you infuse ideas from one organisation to another if they are co-located. That will not be the case with local authorities and local healthwatch. You will not get that same connection. The mere fact of being in the same organisation will not matter because they will not be physically located with the people who are making the decisions about social care; they will probably be in an outward-facing office, meeting the public. It will be an outpost of the local authority. There will not be that informal interchange which we were told would be so valuable if Healthwatch England was placed within CQC. The issue is how you make these organisations effective. That will require independent resources and it will require that the question of conflict of interest is dealt with.
My Lords, very briefly, I support the amendment in the name of my noble friend Lord Rix. He has clearly outlined the rationale behind the amendment; accordingly, I do not intend to keep the House long—sighs of relief all round, I should think—although, like my noble friend, I should declare an interest. Until last Wednesday, I was chairman of a residential home for those with learning disabilities.
I think we are aware that the complaints process against the NHS can be extremely complex and challenging for those involved. That nearly always coincides with a period of some personal distress. Indeed, the very inclusion of Clause 182 indicates that the Government, to their great credit, are aware of that factor. However, there is a danger that the provision is not sufficiently explicit. My noble friend has highlighted the potential for advocacy support to stop before a conclusion has been reached. I share his concern, and add that the amendment safeguards against the freedom given to a local authority to define what it deems to be “appropriate arrangements” for the provision of independent advocacy services.
The critical point is that, at a time when local authority budgets are particularly stretched, to expect them to provide additional resources for advocacy support could result in the needs of people being sacrificed in favour of councils balancing their books. We all understand that that goes on. In other words, the level of advocacy support offered might be dictated by available funds and, accordingly, “appropriate arrangements” might be taken as being what is appropriate for the council to offer.
That detracts from what I assume is the object of making advocacy support available: to benefit the individual. The ability for people—often in mourning and in some distress—to seek justice should surely seek precedence over what is convenient to the local authority. By explicitly removing any upper limit on the length and type of advocacy, the amendment sends a strong message to councils that the individual must be the priority in this situation. It removes the excuse that a council might have not to provide the adequate level of advocacy support required by those who need it; and instead gives the individual the power to challenge any decision they feel is unjust on the basis that their advocacy needs are greater than the support proposed.
My Lords, noble Lords have spoken to their amendments effectively and comprehensively, so I will not deal with all the amendments. I start by giving our support to the spirit behind Amendment 318BA, tabled by my noble friend Lord Whitty and the noble Lord, Lord Low, and Amendment 322, tabled by my noble friends Lord Rooker and Lord Harris. They underline the crucial need to uphold the independence of local healthwatch organisations by enabling them to carry out their activities as they see fit, subject to any directions from Healthwatch England, and emphasise that they must not be regarded as either servants or agents of the local authority.
Local independence is vital for people to have trust and confidence in their local healthwatch organisations to articulate their priorities and the needs of the local community. To be effective, they must be able to scrutinise how consortia and health and well-being boards have undertaken public engagement and transparency, and how they are ensuring that the patient voice is embedded in the care pathway design. They also need to be able to scrutinise how lay representatives on consortia and health and well-being boards themselves undertake public engagement and transparency.
Amendment 318E in the name of the noble Baroness, Lady Cumberlege, would require local healthwatch organisations to provide the NHS Commissioning Board with their opinion on whether local plans take proper account of their views, as evidence in reports and recommendations. We support this, and of course underline that CCGs must also be required to consult local healthwatch organisations while commissioning plans are drawn up and developed.
On the question of how local healthwatch organisations are funded, we need to recognise the widespread concern raised by noble Lords and current LINks organisations that the arrangements for local healthwatch organisations and their dependence on funding from local authorities compromise their independence, particularly in terms of public perception and confidence in their role and work. With local authorities having greater involvement in healthcare—particularly public health—how will healthwatch organisations be able to exercise the independence that the public would expect?
A number of amendments seek to address that issue, either through guaranteeing resources or prescribing how the local authority should take decisions in relation to its commissioning of healthwatch, the allocation of resources and the governance arrangements. Perversely, some of them could have the unintentional consequence of tying in local healthwatch groups to the local authority more tightly. In view of the current economic climate and the massive cuts that local authorities are having to make, the concerns and unease over the future resourcing of local healthwatch organisations need to be addressed. I hope that the Minister will recognise this as a major issue, consult all stakeholders and come back to us on Report with reassurances and solutions.
This is the first time we have touched on the new independent advocacy services that local authorities will be required to establish to provide assistance to individuals making complaints about health or community care services or providers, including using the local healthwatch organisation to deliver this service. We are very sympathetic to Amendment 324 from the noble Lords, Lord Rix and Lord Wigley, and the noble Viscount, Lord Tenby. It seeks to prevent any case being dismissed from the outset or midway through as too complex or lengthy. Complaints against the health service are often complex and require long periods of support to be provided to the complainant. It is a service that should be provided to all users, and provision will need to be made to support people with mental health problems and learning difficulties, as well as people with disabilities.
We support Amendment 325 in the names of my noble friends Lord Rooker and Lord Harris. This would provide for advocacy to cover complaints about both health and social care. I look forward to the Minister’s response on these issues.
My Lords, again, we have had a very impressive and wide-ranging debate. It links in with the earlier debate on this area, as well as with our discussion the other day.
The noble Lord, Lord Low, made a very strong point when he talked about the need for confidentiality. I hope I can reassure him that HealthWatch England will be subject to the provisions of the Data Protection Act and other applicable law. However, these are complex matters, involving a number of interlocking pieces of legislation and other issues. As a result, I hope that the noble Lord will allow me to write to him with full details of how we see these provisions working. However, I hope that he will be reassured about the overarching effect of the Data Protection Act. He made some very telling and important points.
Our aim is for local healthwatch organisations to become an integral part of the commissioning of local health and social care services. They will build on the strengths of the existing Local Involvement Networks and, we hope, address their weaknesses. I have listened to the concerns that various noble Lords have expressed about independence, given local healthwatch organisations’ contractual relationships with local authorities. I hope I can reassure noble Lords that local healthwatch organisations will be very firmly in the lead in determining their own work programmes and local priorities. Local authorities, for example, cannot arbitrarily veto a local healthwatch organisation’s work plan or stop a local healthwatch organisation providing feedback or recommendations to HealthWatch England, nor can they suppress local healthwatch organisations’ reports with which they disagree. I am sorry that the noble Lord, Lord Warner, is not in his place, as no doubt he would be hopping up and down challenging me on these matters. It is extremely important that local healthwatch organisations are effective in this way: we have made the provision that we have. Nor can local authorities starve local healthwatch organisations of funds, as the noble Lord, Lord Harris, implies. Local healthwatch organisations must have sufficient resources to fulfil their statutory functions. Those are laid down and they have to deliver on that.
I thank the noble Baroness for giving way. The problem with not ring-fencing funds and simply relying on the statutory requirement is that there are many ways of interpreting a statutory obligation. For example, there is an obligation on local healthwatch organisations to provide information to the public. You can provide information at various levels. At one extreme, this could be leaflets to every household, or it could be telephone helplines. It could be all sorts of things—or it could simply be to say that the information manual has been placed in the local library. If the local healthwatch organisation does that, it has fulfilled its statutory obligation in providing information to the community. I am assuming that Ministers do not want that to be the scale of the provision, but simply saying that you have met your statutory obligation is not a sufficient safeguard to provide £60 million-worth of services, if that is the sum of money being made available to local healthwatch organisations.
The noble Lord, Lord Harris, made exactly this point at the meeting that we had the other day with my noble friend Lord Howe, who I thought countered his points extremely effectively. However, I realise that is now almost 6 pm and I know that noble friends have other appointments; maybe we would otherwise carry on until Christmas. We take on board what the noble Lord, Lord Harris, has said. I am sure that he takes on board the counterpoints from my noble friend Lord Howe, but we will continue to discuss how best to ensure that local healthwatch organisations are effective in the way that we need them to be.
Some of the amendments of my noble friend Lady Cumberlege would increase the role of the Secretary of State in relation to local healthwatch organisations. Though we understand the intent behind the amendments, we do not feel that that is quite the way to go. Nevertheless, we acknowledge the need to keep the issue of local healthwatch organisations’ independence under review and we are working closely with stakeholders to look at how best we can support that independence at local level.
My noble friend made a range of proposals which were extremely interesting and we will take those back, along with other noble Lords’ suggestions. We are keen that local healthwatch organisations have the flexibility to work with and for their local communities. I am aware of the concern expressed by a number of stakeholders that the Bill does not contain sufficient flexibility. I can confirm that we also want to make sure that the process of getting local healthwatch organisations started is as efficient as possible. We want to assist in that and again we discussed this with stakeholders yesterday. We would not want to see local healthwatch’s ability to get on with its valuable role slowed down.
My noble friend suggested that local healthwatch organisations should have a stronger role in relation to CCGs’ commissioning plans. I sympathise with the sentiment behind this amendment and with other proposals to try to make sure that the voice of the patient is heard. However, this would place a further statutory function on local healthwatch organisations, and it might be unnecessarily prescriptive. There are, of course, arrangements in place in the Bill for local healthwatch organisations to feed their concerns to HealthWatch England, and HealthWatch England can also provide the NHS Commissioning Board with information and advice on the views of local healthwatch organisations on the standard of healthcare. Were a local healthwatch organisation to have concerns that a clinical commissioning group had not taken proper account of its views in commissioning plans, they could be raised by this route. However, this is an important issue, and I will take it away to consider it further.
Will the Minister clarify whether she is seriously suggesting that rather than having a route going direct from a local healthwatch organisation to a clinical commissioning group, it is better to have a route that goes from the local healthwatch organisations to HealthWatch England—I do not know whether we would include CQC in that process—then through the national Commissioning Board and then back down to—
I did not put that clearly enough. Local healthwatch organisations will be feeding into clinical commissioning groups. That is already apparent. They have all sorts of ways, not least through the health and well-being boards, to make sure that the needs of the community are clearly expressed so that commissioning is as appropriate as possible. Where that is not being properly listened to, and therefore serious issues need to be addressed, there are other ways of ensuring that actions can be taken.
However, all these groups need to be talking to each other. I hope very much that they will. One of the reasons for local healthwatch organisations to have the association with local authorities is that local authorities have responsibility for so many areas that also affect the health of the population. They will have new responsibilities in public health as well. All this needs to link up to make sure that the quality of health is improved. This is part of that arrangement. We are looking at it locally and nationally. However, I will take back the suggestions that my noble friend Lady Cumberlege made. We want to make sure that this system works effectively without being overly prescriptive.
I agree that indemnity is a fundamental issue. It is one to which the Government have given significant consideration. We have concluded that it is most appropriate for it to feature in local contractual arrangements rather than in primary legislation that may lack flexibility.
The noble Lord, Lord Harris, is right that the system by which people serve on local healthwatch organisations needs to be transparent—all this needs to be transparent. I heard what he said in that regard, and I will feed it into the discussions that are going on at the moment.
On some matters it is probably best, if I need to follow up, that I do so in writing, as I am acutely aware that my noble friend Lord Howe and the noble Baroness, Lady Thornton, have another engagement this evening, and we must release them.
I turn to NHS complaints advocacy. Clause 182 has the effect of transferring a duty to commission independent advocacy services for NHS complaints from the Secretary of State to local authorities. The principle behind advocacy will remain unchanged: it is the provision of appropriate support to people who wish to make a complaint about the NHS to enable them to make their own decisions. We propose that commissioning of advocacy shifts from the Secretary of State to local authorities to best meet local needs.
I note the wonderful Amendment 324, tabled by the noble Lords, Lord Rix and Lord Wigley, which seeks to ensure that advocacy will be provided without limits on the length or type of support. I commend them for their ambition but it would not be appropriate to put that limit in the Bill. I am sure they understand that but we take what they say about the importance of advocacy and commend them for their strong advocacy of advocacy.
I realise that all these areas are of great concern to noble Lords. This may be just one part of the Bill but in many ways it is the heart of the Bill, which is about patients and how best you ensure that patients’ experience translates into an improvement in quality in practice. Other noble Lords have grappled with this before. The previous Government did and Governments before that. We are trying to take this further forward, both in terms of the national and local arrangements. We hear what people say in response to the proposals but I hope that in the mean time the noble Lord will not press his amendment.
I am grateful to the Minister for the way in which she appeared to take the force of the points that I was making with my amendments about the use of information. When she referred to the overarching effect of the Data Protection Act it appeared that she was listening more to my amendments about health and well-being boards than those relating to HealthWatch England, but I will wait to receive the letter that she kindly has promised to write to see how fully she has taken the force of my points in relation to both those bodies. I was encouraged by what she said so for now I will withdraw my amendment.
Amendment 317AA withdrawn.
Amendments 317AB to 318B not moved.
Clause 178 agreed.
Clause 179 : Establishment and constitution
Amendments 318BA to 318BC not moved.
Clause 179 agreed.
Amendments 318C to 318E not moved.
Schedule 15 : Local Healthwatch Organisations
Amendment 319 not moved.
Schedule 15 agreed.
Clause 180 : Activities relating to local care services
Amendments 320 and 321 not moved.
Clause 180 agreed.
Clause 181 : Local authority arrangements
Amendments 321A to 322A not moved.
Clause 181 agreed.
Clause 182 : Independent advocacy services
Amendments 323 to 326 not moved.
Clause 182 agreed.
Clause 183 : Requests, rights of entry and referrals
Amendment 327 not moved.
Clause 183 agreed.
Clause 184 : Dissolution and transfer schemes
Amendment 327ZA not moved.
Clause 184 agreed.
Clauses 185 and 186 agreed.
Amendment 327ZB not moved.
House adjourned at 6.01 pm.