Report (2nd Day)
Health and Social Care Bill
3:18 pm

Clause 6 : The Secretary of State's duty as to education and training

Amendment 13

Moved by Lord Patel

13: Clause 6, page 3, line 28, at end insert-

"(1A) Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority)."

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Lord Patel (Crossbench)

My Lords, here we go again. I wish to speak to today's first group of amendments-Amendments 13, 16, 62 and 106-but, before doing so, I thank all noble Lords who have put their names to the amendments. Many noble Lords wanted to put down their names to Amendments 13 and 16 in particular but were unable to do so. However, I thank them all for supporting these amendments.

Perhaps I may start in reverse order. Amendment 106 would impose a duty on clinical commissioning groups in respect of training and education. This matter was debated on the first day on Report and the Government produced Amendment 104 to the same effect. Similarly, Amendment 62 puts a duty on the NHS Commissioning Board in relation to training and education. As the Government have brought forward Amendment 61 to achieve exactly that, I shall no longer speak to Amendments 62 and 106. I can now move on to the proper business, as the House has quietened down.

I apologise that Amendment 16 is badly worded and has some rather deliberate mistakes. Much of it was debated in the context of a second group of amendments moved on the first day of Report last week, and I shall not labour those points.

There are three key issues that we might explore further in relation to this amendment. The first is the establishment of Health Education England as a special health authority. I have no doubt that the Minister will be able to reassure us about the timing of that. Secondly, there is the issue of funding the education and training of the healthcare workforce. That budget will be held by Health Education England. The role of the respective regulators, professional organisations, universities, higher education institutions and so on has already been discussed. The Minister accepted that they have an important role to play, but it is important to establish that the postgraduate deans will continue to perform their current role. The third key issue is the role and authority of the local education training boards. They will not be controlled by employers, and employers will not have a right in statute to chair local education training boards.

Those are the key issues on Amendment 16. I can now turn to my key amendment, and I emphasise the word key-Amendment 13. This amendment tries to encompass all the issues that we discussed in Committee and last week on Report. As noble Lords may remember, I tabled some amendments on education and training and the Minister was sympathetic to several of them. They alluded to the responsibility of all those who provide health services or care or who make any provision for health services to pay regard to education and training. I have tried in this amendment to bring all those amendments together in a simplified way. I now have an admission to make. At an earlier stage I tried a slightly different amendment on the Minister-Amendment 12-which I then withdrew. However, I hope that he finds it acceptable now as I think that it encompasses the matter in a much simpler form.

What is this amendment about? It states:

"Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority".

The purpose of the amendment is to ensure that any person providing services as part of the health service has a duty to co-operate with the Secretary of State in the discharge of the duty in new Section 1E of the National Health Service Act 2006 to exercise his functions so as to secure an effective education and training system, or with any special health authority which is discharging that duty. The amendment would achieve that by requiring commissioners of health services to include a duty of this kind in their commissioning contracts. The amendment applies to all persons commissioned to provide services as part of the health service, including NHS services commissioned by the board and public health services commissioned by the Secretary of State or local authorities. This is consistent with the powers of the Secretary of State that we discussed previously.

The amendment seeks to ensure that all providers of services commissioned as part of the health service, including NHS and public health providers as well as private alternative providers, have a duty to co-operate with the Secretary of State in the discharge of his duty to ensure an effective system for education and training. The duty will apply equally to Health Education England when it is created as a special health authority with responsibility for health education and training. Perhaps the noble Earl will confirm that that is likely to happen by June 2012. It would also require commissioners to include a duty for providers to co-operate on education and training when they issue commissioning contracts.

Since we last discussed the issue, the Government have set out their intention for the new education and training system. I welcome that. I am pleased to see that there will be a national system for education and training, and that Health Education England will be established as a special health authority. However, it is important that we secure a future for education and training through the Bill-hence my amendment-and that the necessary connections are made with other national bodies and with local service commissioners and providers. It is important that all providers of NHS-funded services participate in the planning, commissioning and provision of education and training. They are responsible for delivering front-line NHS services and therefore have a key role to play in supporting local education and training boards-and I mean supporting, not controlling. One previous issue of concern was how the budgets would be used.

It is also important that local employers should provide the highest-quality clinical placements. These placements are an essential element of the education and training process for doctors, dentists, nurses and other healthcare professionals. They give them hands-on experience of their profession or specialty through the delivery of health services in the NHS. It is important, if we are to continue to develop high-quality clinicians and health professionals, that these placements are continued. In the past, there was a tendency when budgets were tight to cut the placements. That is why I make this comment.

My amendment covers all these issues and therefore makes the Bill stronger. It is in the true spirit of revising the legislation that I move it. I was told last week that I misread the signals given by the noble Earl when I pressed my amendment. In order that I do not do so again, I ask him, if he is not minded to accept Amendment 13-although I sincerely hope that he will be, because it makes the Bill clearer-to give me clear signals that he is prepared to talk about this and bring it back at Third Reading if necessary. However, I sincerely hope that we will not go that far and that he will be persuaded to accept the amendment. I beg to move.

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Baroness Finlay of Llandaff (Crossbench)

My Lords, my name is on two amendments in this group. However, in large part they were covered by the government amendments that we accepted on the previous day of Report. Amendment 13 is particularly important. In our last debate on education and training, we spoke about the need to thread education and training as an infrastructure like scaffolding through the Bill. Carrying on with another analogy, Amendment 13 acts like a superglue that holds all the bits together. We need to make sure that education and training run through every provider, whoever they are. We cannot have some people saying, "Fine, we will have a contract and use staff who have been trained by the NHS but we will not have any obligation toward education and training". It is within NHS services that the vast bulk of training occurs, although valuable experience can be obtained elsewhere.

The other question the Government need to ask themselves if they are thinking about turning this amendment down, but I hope they are not, is whether they can honestly say that there is anywhere that is fit to provide a service but is not fit to share its knowledge and skills with those who are in training in any part of the discipline. This is not only about specialist education and training but is about increasing the knowledge base and skills at every level throughout the system.

3:30 pm
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Lord Ribeiro (Conservative)

My Lords, my name is on this amendment, and I wish to say a few words about it. First, I welcome the amendments moved by the Government in Committee which give the Secretary of State a duty to secure medical education and training. A comprehensive health service cannot be achieved without a properly trained and educated workforce. Health Education England, as a Special Health Authority, must be given the authority to influence the function of local education and training boards not just in the short term, as it is established this year, but must influence local providers of all sorts-private, NHS or any other type-and other organisations responsible for the education and training of their workforce.

The influence of Medical Education England and the Medical Programme Board, of which I was a founder member after the MMC/MTAS débâcle, will provide HEE with invaluable information about the oversight of doctors and dentists. For that reason, I believe there should be a medical director of MEE within HEE. While I welcome funding for education resting with Health Education England, as mentioned by the noble Lord, Lord Patel, I remain concerned that the education levy will be raised from providers who may not have the same objectives and consider that their obligation to patient care trumps their obligation to provide training.

I have concerns about who should be responsible for quality assurance and through that for quality improvements. I believe it would be best to have this done at national level. The LETBs and providers cannot be judge and jury in relation to quality assurance and the principle of independent assessment and assurance must be maintained. Quality control and quality management are local functions, currently performed by the deaneries. Quality assurance and quality improvement, which imply that after the assessment lessons can be learnt and good practice passed on, must be at national level. They must have input from the profession to provide the appropriate oversight. In this regard, royal colleges, as national bodies, are ideally placed to assist deaneries in providing independent quality assurance and quality improvement. I hope the Minister will give assurances that this will be the case.

More specific functions of HEE as a Special Health Authority are outlined in Amendment 16. It may present more of a problem for the Government as the role and function of the LETBs are not defined in the Bill. If they are to take responsibility for funding, then the lessons of the strategic health authorities' 2006 raid on the education budget to balance the NHS budget must be learnt and the education and training budget must be ring-fenced to prevent this happening. I hope the Minister can give the House assurances on this point.

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Lord Turnberg (Labour)

My Lords, my name is also attached to Amendment 13. The case has been very well made by the noble Lord, Lord Patel, so I have very little to add, except that it is obvious that education and training are a key part of any service provision. For a service under pressure, looking after the patients always comes first, and it is very difficult in some circumstances to provide the time that education and training need. It takes a bit longer in an outpatient clinic to teach a young graduate medical person; it takes longer in the operating theatre, I suspect, to show how it should be done; it takes time to allow junior trainees to go on education courses and rotations. The pressure on a service is always to concentrate on caring for the patients and education and training can easily be given a back seat. This amendment helps straighten that balance.

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Lord Mawhinney (Conservative)

My Lords, I spoke in favour of training and education at an earlier stage of the Bill, so I have no inherent antagonistic thoughts about the amendment moved by the noble Lord, Lord Patel. However, listening to him and to the noble Baroness, Lady Finlay, and the noble Lord, Lord Turnberg, it was quite clear that there is a financial cost attached to this amendment. They did not spell it out and I wish that the noble Lord, Lord Patel, had. My noble friend the Minister has already responded to the House's concern about health training. Whether he is minded to accept or reject the amendment, can he tell us his estimate of its cost?

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Lord Walton of Detchant (Crossbench)

I support the amendment and will make a point about costs. As I said last week in a debate on education and training, since the health service began, the actual financial consequences of training specialists in all branches of medicine-surgeons, physicians, psychiatrists and all other specialists-have been the responsibility of the National Health Service. Many of us will remember the days of SIFT-the service increment for teaching-a financial increment that was given to hospitals and other organisations that provided postgraduate training at the same time as training undergraduate students. I have, I believe, an assurance from the Minister that that process is going to continue, which is extremely welcome. So I am not speaking primarily about finance.

However, I want to raise a point with the Minister that was touched on only superficially in the very helpful debate we had last week where the Minister tabled a series of very important and constructive government amendments and gave a number of very crucial assurances. I particularly want to raise the interrelationship between the health education authority and the regulatory authorities, which has not yet been clarified. The Explanatory Notes mention the importance of Health Education England working with professional regulators. I shall refer to the General Medical Council as an example because I was its president from 1982 to 1989, and before that, for seven years, chairman of its education committee. The fundamental point is that under the Medical Act, the General Medical Council's education committee has the responsibility of ensuring,

"high standards of medical education and co-ordinating all stages of medical education".

It is the regulator. If a new medical school is created, it has the authority to inspect it and consider whether its curriculum is sufficient. It has the authority to inspect the qualifying examinations of the medical schools in order to make certain that they are achieving an appropriate standard.

The fundamental point is that the GMC and the other regulators are not just stakeholder groups. Their statutory powers,

"provide independent assurance to patients, the professions and the service that national standards apply across the UK both in terms of the quality of medical training and the outcomes it produces".

Of course, the important difference here is that Health Education England applies only to England, whereas the GMC and the other regulators are responsible for the oversight of education across the entire United Kingdom. What I seek from the Minister-formally, if I may-is an assurance that the activities of Health Education England will not usurp or attempt to usurp any of the statutory responsibilities of the regulatory authorities, which are already enshrined in law.

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Lord Kakkar (Crossbench)

My Lords, I support Amendment 13 in the name of my noble friend Lord Patel and Amendment 16, which again is in the name of my noble friend and to which I have added my name. This is the first time that I have spoken at the Report stage of the Bill and I remind noble Lords of my entry in the register of interests as professor of surgery at University College London, consultant surgeon to University College London Hospitals NHS Foundation Trust and fellow of the Royal College of Surgeons of England, which is one of the royal colleges that has decided critically to engage with Her Majesty's Government with regard to the further passage of this Bill through its parliamentary stages.

The reason why there is such anxiety among so many bodies associated with the practice of medicine in our country as regards education and training is in no small part due to the fact that there was terrible trouble and a very unfortunate turn of events associated with the medical training application system-MTAS-some years ago. As a result of that, all those who have some responsibility for education and training are obliged to pay particular attention and scrutiny to any provision concerning the future of education and training for all healthcare professionals in our country.

Amendment 13 in the name of the noble Lord, Lord Patel, is very important. It brings together all those with responsibility for the commissioning and provision of healthcare under a single obligation to respond to the responsibilities of the Secretary of State for Health with regard to the specific question of education and training. There can be no doubt that all those who wish to engage in the provision of a national health service must be alive to their responsibilities in this regard. To have that commitment in the Bill would provide a very important opportunity to allay the considerable anxiety that might exist among the regulatory bodies, such as the General Medical Council, which the noble Lord, Lord Walton, mentioned, and the medical royal colleges to ensure that they have done their duty in terms of protecting a structured process for the delivery of education and training for the entire healthcare workforce.

Amendment 16 is very important because it deals with the establishment of Health Education England. At this stage, it is important to recognise the very proper and constructive way in which the Department of Health, the Secretary of State for Health and the Minister have engaged with the professional bodies with regard to education and training. It has been a remarkable process of discussion, which resulted in the important government-sponsored amendments that we were able to debate last week on the first day of Report and the important recognition that in creating Health Education England there is an obligation to bring together all the resources available for undergraduate training in the healthcare system and for postgraduate education and training.

Is it absolutely the intention that all three funding streams-SIFT, MADEL and MPET-will come together as a single budget for Health Education England at the time of its creation and that that budget will be spent by HEE through local education and training boards to engage a variety of providers at a local level in discharge of responsibilities for education and training in a postgraduate sense and to maintain the additional resources available in clinical environments-primary, secondary and tertiary care-for the continued undergraduate education of our medical and dental students and other healthcare professionals?

It is also important for your Lordships to understand how Health Education England will be composed. What will be the process for appointment to HEE once it is established, potentially first as Special Health Authority later this year? Will the composition and membership of HEE include representatives from medical royal colleges and other organisations, such as the regulators and so on? Will HEE be responsible for the appointment of the chairs of the local education and training boards? There is particular concern with regard to the need to have independent chairs of local education and training boards. It is vital not only that at the local level these boards have appropriate provider, employer, patient and trainee representation, but also that their deliberations are conducted in a transparent fashion. This can be done only if the chairs are indeed independent of all the interested parties.

There is a further question with regard to the relationship between local education and training boards and the proposed academic health science networks. Do Her Majesty's Government have a view about that? It is particularly important because a process is ongoing at the moment for the designation of 12 or so additional academic health science networks in the country. Those broad networks will have an opportunity to have substantial employer and provider representation, encompassing universities and NHS providers. It would be useful to understand their potential relationship with local education and training boards. Then there is the question of the future of postgraduate deans. Again, this is a matter of detail, but it is important in understanding how the structure of independent deaneries will work in a future system and, in particular, what relationships the universities will have at the level of provision of local training and education.

I think it is well recognised in your Lordships' House that the Government have come a very long way on the question of education and training, which is much appreciated, but some further detail is important to allay anxieties and to ensure that the best possible advice, expertise and knowledge can be brought to bear in creating a new system for education and training for the future that does not result in unintended consequences and some of the disastrous outcomes associated with the previous MTAS scheme.

3:45 pm
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Lord Willis of Knaresborough (Liberal Democrat)

My Lords, briefly, I support Amendment 13 in the name of the noble Lord, Lord Patel, and others, particularly on what is behind the amendment. I agree with the noble Lord, Lord Kakkar, that enormous progress has been made since our first debate in Committee where we neared the point of voting through an amendment that would have stymied any discussion on education and training, and I am very grateful that that vote did not take place. However, the reality is that there is a feeling abroad that when you have underqualified providers entering the health space, they will be able to offer services without having to invest in the very important aspects of training.

Given that on the first day of Report the Minister and the Secretary of State agreed to significant amendments about a research-led National Health Service, it is absolutely crucial that whoever takes part in that is able to offer the kind of education and training that enables it to become a reality rather than simply dealing with past techniques. I hope that when the Minister sums up on this group of amendments, and particularly on Amendment 13, he will make absolutely clear what the contractual obligations of other qualified providers will be in order to ensure that the duty placed on the Secretary of State in relation to those who are wholly NHS providers is actually carried through. Will there be a contractual agreement so that they have to agree to education and training, otherwise they will not get a contract?

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Lord Winston (Labour)

My Lords, I support what the noble Lord, Lord Kakkar, said about higher education. He talked about the academic health science centres, but they are not what I want to talk about, although I come from Imperial College, which of course has such a centre. My conflict of interest arises possibly as chancellor of Sheffield Hallam University, which has a very big stake in health service education, as I am sure the noble Earl knows. It has one of the most successful schools of radiography in the country, a very large physiotherapy school and an immense nursing school. In particular, of course, the university has very close connections with the University of Sheffield and with health services in the area. The reason for my supporting these amendments is the need to make sure that integration continues in a health service that might become rather more fragmented as more providers come in. It would be helpful if the Minister could address that issue.

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Baroness Emerton (Crossbench)

My Lords, I support the amendments in the name of the noble Lord, Lord Patel, from the point of view of other healthcare professionals-our debate has focused mainly on medical professionals to date. The noble Lord was careful to relate his Amendment 16 to all healthcare professionals. We need to make sure that Health Education England is multiprofessional in its focus. However, the amendment makes no mention of any links with social care. I am aware that we will debate social care in the spring, but it is important that healthcare professionals have included in their programmes and curriculum information on social care.

Amendment 16 mentions workforce planning, which must be a joint exercise between healthcare education and commissioning. The professions will be reassured if they know that workforce planning will be shared between the two rather than it being the concern of health education or commissioning alone. I support wholeheartedly Amendment 13, which encompasses all our discussions and brings to the fore the need for wholeness in healthcare professional education.

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Lord Hunt of Kings Heath (Labour)

My Lords, I support Amendments 13 and 16. This debate follows on from our useful discussions on education and training last week. Once again, we see a tension between the need for a national strategy on education and training and the need for local ownership. Amendment 16 in the name of the noble Lord, Lord Patel, gives us that, and I hope that the noble Earl will be sympathetic to it.

We all know about the problems that have arisen in the past where there has not been sufficient national leadership. Decisions about training places have been left to local bodies and the budget has been squeezed, the result being that a few years later there have not been enough people coming into the National Health Service, which has had a very damaging impact. I think there is unanimity in your Lordships' House that there has to be a very strong national strategy.

I very much take the point made by the noble Baroness, Lady Emerton, that there must be co-ordination in workforce planning between Health Education England, as the national strategic body, and commissioners, but I would add providers because it is they who will employ the staff who have been trained. It is essential to get our workforce planning and our commissioning at a national level into sync. It is more an art than a science, and I suppose that it has never been achieved to 100 per cent satisfaction. None the less, that is what we should strive to do. Speaking as a foundation trust chair, I say to noble Lords who have discussed the national element of this that it is vital that NHS trusts and foundation trusts play a full part in the discussions. At the local level, the local education boards have a crucial role to play.

I very much support the argument of the noble Lords, Lord Patel and Lord Kakkar, on independent chairs and transparency. That is important, but it is also important that the education providers feel sufficient challenge from local NHS bodies when it comes to the quality of their education and training. I am sure that we will come later to the issue of nurse education and training. There are some real issues about the quality of nurse education and training in our universities. It is important that the local education bodies and employers provide sufficient challenge to the work of the universities. I hope that in accepting the need for an independent chair, noble Lords will agree that there should be no cosy relationship between commissioners, who ultimately have no real responsibility for the employment of staff, and universities. Unfortunately, the current system has led to too cosy a relationship. I look to the noble Earl, Lord Howe, for recognition that NHS trusts and foundations have to be very much around the table.

It would be useful if the noble Earl replied to the noble Lord, Lord Kakkar, and gave some sense about where postgraduate deans are to be placed within the new structure. I also hope that postgraduate deans will be able to recognise that in the new circumstances they can have a huge impact on NHS trusts and foundation trusts when it comes to their visitations. I also hope that clinical commissioning groups will recognise that if they are going to start shifting resources away from NHS bodies, that might have an impact on their capacity to provide education and training in the future.

That brings me to the point raised by the noble Lord, Lord Kakkar, about whether private providers will have contractual obligations with regard to education and training. It is important that there is a level playing field. If the Government insist on more contracts being placed with private sector providers in the future, there will have to be obligations on the part of providers. It would be grossly unfair and in the end it would not lead to the establishment of a national coherent system if private sector providers did not pay their fair share.

On governance, again, the noble Lords, Lord Patel and Lord Kakkar, made some substantive points about local education and training boards. It would also be helpful if the noble Earl responded to the point raised about academic science networks. We all agree that we must make the most of the fantastic basic education and science capacity in this country, and the links with the provision of patient care and the pharmaceutical industry. They have great potential. It would be useful to know how the noble Earl thinks they will fit into the new structure and particularly how they will link to the postgraduate deans and the academic science network. Overall, I am sure that the noble Earl will be able to come forward with a constructive response and I certainly hope that he is prepared to accept Amendments 13 and 16.

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Earl Howe (Conservative)

My Lords, as I set out in our previous discussion on education and training, the Government are putting in place a strong national system for education and training, with a strengthened focus on quality outcomes.

We have introduced a clear duty on the Secretary of State to ensure that such a system is in place, and are now making good progress with establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system and are proceeding with care and at a sensible pace to ensure the new system is fully up and running by April 2013.

As noble Lords will be aware, we have confirmed that we will set up Health Education England as a special health authority in June 2012, so that it can take on some operational functions from October 2012 and be fully operational from April 2013, when it will take on the strategic health authority education and training functions. I repeat those assurances today. It will have an independently appointed chair and non-executive appointments. For this reason, we do not think that that part of Amendment 16, tabled by the noble Lord, Lord Patel and others, which would place a duty on the Secretary of State to set up Health Education England as a new special health authority, is necessary.

I hope that the undertaking will be sufficient by way of reassurance to noble Lords on that score. Nevertheless, in addressing the more detailed issues set out in that amendment, it would be helpful to elaborate a little on what I was able to tell the House last week.

First, it is important for me to reassure the noble Lord, Lord Patel, and others that Health Education England will draw upon expert advice provided by the Centre for Workforce Intelligence and will work with a range of key partners, including the medical royal colleges, the professional regulators-including the GMC, I can say to the noble Lord, Lord Walton-and the academic and research sectors. It will not affect or cut across the duties or functions of the medical regulators. It will be responsible for the investment of the multiprofessional education and training budget, which currently stands at just short of £5 billion. Indeed, many respondents to the consultation that we held called for education and training funding to be protected; we agree with that and will ensure that Health Education England establishes transparent systems to ensure that organisations that receive MPET funding are held to account for using it for the education and training of the NHS workforce.

I was asked by the noble Lord, Lord Kakkar, whether the budget would sweep up with it SIFT and MADEL. I am reminded that the MPET budget was created in 2001 and consists of the following three elements: non-medical education and training, or NMET; medical and dental education levy, or MADEL; and service increment for teaching, or SIFT. So the answer to the noble Lord is yes.

Health Education England will hold local education and training boards to account for their investment in education and training and for their delivery against national priorities and, critically, the quality outcomes that we will set in the education outcomes framework. That framework will directly link our investment in education to improvements in patient care outcomes and will, we hope, help to address variations in standards. This is new, and it presents the trainers in universities with a fantastic opportunity to drive quality in medical and nurse education forward.

I was asked by my noble friend Lord Ribeiro whether Health Education England would have a medical director. It will require strong professional leadership, it goes without saying, and we expect it to have senior medical appointments. Health Education England will build on the work of Medical Education England and the Medical Programme Board, which have done such excellent work in recent years and provided a solid foundation to build on for Health Education England, with its new multiprofessional focus.

On the subject of quality, one of Health Education England's key functions is to promote high-quality education and training that is responsive to changing needs of patients and, indeed, local communities. Quality standards will prove to be of key importance in the contracts that LETBs will hold with higher education institutions, as will the postgraduate deans, of whom I shall speak in a moment. Employers and healthcare professionals will play a leading role in workforce planning and development through the establishment of local education and training boards, working with the education and research sectors. The local boards will identify and agree local priorities for education and training, and plan and commission education and training on behalf of their local health community. The boards will bring together all healthcare and public health employers providing NHS-funded services with education providers, including universities and colleges, the professions, local government and the research sector-and, I can tell the noble Lords, Lord Kakkar, Lord Winston and Lord Hunt, including as well the emerging academic health science networks. We see that element as particularly important. I can tell the noble Lord, Lord Kakkar, that each local board will have an independent chair and that we do not expect the chair to be drawn from employers within the LETB geographic area-it should be an independent person.

4:00 pm
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Lord Hunt of Kings Heath (Labour)

On that welcome news, I assume that would mean that it would also not involve having a higher education chair and that, in fact, to have an independent chair means that they should be independent of commissioning, providing and university providing.

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Earl Howe (Conservative)

That is a logical inference but, if I can get further and better particulars for the noble Lord, I would be happy to do so. Each local board will set up local advisory arrangements to reflect the breadth of local interest and ensure that its decisions are informed by clinicians, clinical networks and education providers. My noble friend Lord Willis and the noble Lord, Lord Winston, asked about "any qualified provider" and whether non-NHS providers will have to play their part. Yes, indeed; all providers of NHS services will be expected to participate in education and training activities, and Health Education England will invest only in organisations which do that. The answer to the question from the noble Lord, Lord Hunt, is indeed yes. He is correct.

By April 2012, we expect the strategic health authorities to establish sub-committees that will develop the emerging local education and training boards. The role of strategic health authorities to lead on education and training has been extended until April next year. When Health Education England is fully functional as a special health authority from April 2013, it will then, as I have explained, take on the responsibility for hosting the local boards. There are plans for a safe and effective transition to the new system, which will ensure that the strategic health authority functions for education, training and workforce planning, including the work of the postgraduate deaneries, are continued. LETBs will take on these education and training functions and it is expected that many SHA and deanery staff will migrate to the local boards to ensure continuity and essential skills and knowledge for the future, subject to affordability.

As I emphasised in our earlier debate, postgraduate deans will continue to be a critical part of the medical training arrangements. We expect LETBsto be able to demonstrate that their postgraduate deans will be able to act independently so as to be able, among other things, to provide challenge where necessary-a point raised, quite rightly, by the noble Lord, Lord Hunt. There will be systems and indicators in place to hold local education providers to account for the quality of education delivered by individual providers. Postgraduate deans will have all the powers that they have now to respond to any concerns about the quality of training, and to take action where required to improve standards and to assure the professional regulators, and indeed Health Education England, that poor performance is being tackled. In the new system, they will have support from the LETBs themselves and, if necessary, from Health Education England to challenge poor quality and behaviours.

Our proposed funding mechanisms reinforce that focus on quality by putting responsibility for education and training decisions in the right place, to be transparent so that funding follows the student on the basis of quality and value for money. The MPET budget will, as now, be predominantly provided to support the next generation of clinical and professional staff. Local boards will have some flexibility to invest in innovative approaches to continuing professional development and the education and training of the wider workforce. Health Education England will be responsible for developing a more transparent allocations policy for distributing education and training funding to local boards.

Now that the policy framework has been worked out, we need to push on and get the foundations of the new education and training system in place. We are doing that by establishing Health Education England and supporting the development of the emerging LETBs. It remains our intention to consolidate the functions of Health Education England by establishing it in primary legislation as a non-departmental public body. That will enable it to operate on a permanent statutory basis at arm's length from the Department of Health while remaining accountable to the Secretary of State.

We want to do all this on the basis of consensus. We want to ensure that people with an interest have the opportunity to comment on and feed into the design of the new system, ahead of bringing forward the primary legislation in a second Bill. With that in mind, we intend to publish draft clauses on education and training for pre-legislative scrutiny in the second Session to ensure that the legislation is fit for purpose and to give Parliament an additional opportunity to scrutinise the proposals. I add that our vision for an education and training system that gives greater responsibility to employers and health professionals has been warmly welcomed.

As noble Lords will see, we have tabled amendments to strengthen links with the wider system. We have already discussed government Amendments 61 and 104, which would place duties on the board and on CCGs to promote education and training. These amendments were accepted in a previous debate. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions. The noble Lords, Lord Patel and Lord Warner, have tabled the very similar Amendments 62 and 106, and I hope that they will be reassured by the amendments that we have tabled and will feel able to withdraw them.

The noble Lord, Lord Patel, has tabled Amendment 13 on the role of providers. I say straight away that I am sympathetic to his intentions and I have given the amendment significant thought since it was first put down. In the beginning I thought that an amendment might not be needed, given that, in order to be established, LETBs will need to demonstrate that they meet robust authorisation criteria set by Health Education England, including demonstrating that all providers of NHS-funded services are fairly and properly represented in the LETB's business.

At this point I shall answer the question posed by my noble friend Lord Mawhinney about the estimated costs of the amendment. I understand that Amendment 13 would be delivered by requiring commissioners to place a duty of this kind in their commissioning contracts. We do not anticipate any additional costs as a result of the amendment. Employers have told us and the Future Forum that they are keen to participate and play a leading role in the planning and commissioning of education and training through the LETBs, and of course we plan to legislate further for education and training, which will provide the opportunity to consider any duties that might be required of providers.

However, the amendment is satisfactorily drafted. In the light of what the noble Lord and others have said today in support of it, and in recognition of the strength of feeling on the issue, I can tell the noble Lord that I am willing to accept his proposal and support the amendment.

Photo of Lord Patel

Lord Patel (Crossbench)

My Lords, how can I put this? I am enormously content with all the things that the Minister has said about Amendment 16, which was badly drafted and defective but he has answered all the questions. I hope that all noble Lords who supported me will feel content that he really has been helpful. As far as Amendment 13 is concerned, I would much rather win it this way than by going through the Lobbies. I thank him enormously.

Amendment 13 agreed.

Amendment 14 had been withdrawn from the Marshalled List.

Amendment 15

Moved by Earl Howe

15: Clause 6, page 3, line 30, leave out from "and" to end of line 33 and insert-

"( ) this Act,

( ) the Health and Social Care Act 2008,

( ) the Health Act 2009, and

( ) the Health and Social Care Act 2012.""

Amendment 15 agreed.

Amendment 16 not moved.

Amendment 17

Moved by Baroness Masham of Ilton

17: After Clause 6, insert the following new Clause-

"The Secretary of State's duty to ensure openness and transparency with patients when things go wrong

After section 1D of the National Health Service Act 2006 insert-

"1E Duty of candour when things go wrong

The Secretary of State must act with a view to securing that any organisation registered with the Care Quality Commission to provide healthcare is required to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the regulated healthcare to that patient where the incident has resulted in-

(a) any injury to a patient which, in the reasonable opinion of a health care professional, has resulted in-

(i) an impairment of the sensory, motor or intellectual functions of the patient which is not likely to be temporary,

(ii) changes to the structure of a patient's body,

(iii) the patient experiencing prolonged pain or prolonged psychological harm, or

(iv) the significant shortening of the life expectancy of the patient; or

(b) any injury to a patient which, in the reasonable opinion of a health care professional, requires treatment by that, or another, health care professional in order to prevent-

(i) the death of the patient, or

(ii) an injury to the patient which, if left untreated, would lead to one or more of the outcomes mentioned in paragraph (a).""

4:15 pm
Photo of Baroness Masham of Ilton

Baroness Masham of Ilton (Crossbench)

My Lords, Amendment 17 would require the Secretary of State to introduce a statutory duty of candour for all registered healthcare providers, so that they are open with patients when things go wrong and cause harm, by amending the Care Quality Commission's registration regulations. The amendment has been changed significantly in the light of the previous amendment, which was debated in Committee with the same aims, as a result of the helpful comments made by Members of your Lordships' House and the noble Earl, Lord Howe. I hope it deals adequately with the concerns raised, as it draws on the existing wording and definitions used in the CQC regulations. This should be the case for the most of the issues.

However, I know that, unless things have changed since we exchanged letters, the views of the noble Earl, Lord Howe, and the Government will be different. They will argue that their proposed contractual duty is an adequate or even better way of achieving the same thing. They will argue that the CQC could not cope with regulating such a duty in its regulations. I wish to summarise briefly why they are wrong on both these counts.

In Committee and since, the noble Earl, Lord Howe, brought to our attention the consultation on the proposed contractual duty of candour, which has recently closed. It is very regrettable that the consultation stated at the outset:

"This consultation does not re-open debate about the most appropriate mechanism for requiring openness and the decision to impose a contractual requirement is set".

The least one might have expected is for it to invite the views of patients, the public, health professionals and other stakeholders before setting the decision in stone. Had this happened, the Department of Health would, I am sure, have heard even more resoundingly that the statutory duty is favoured over the contractual one. None the less, it is clear from the responses that I have seen from leading patient organisations and other knowledgeable people in the field that the department's proposals are unlikely to enjoy public confidence.

Many Peers will have seen the letter in Tuesday's Daily Telegraph, which was signed by 10 prominent patient and health organisations in support of this amendment. They include Action against Medical Accidents, National Voices, the Patients Association, the Health Foundation, the National Association of LINks Members, Patients First, the Neurological Alliance, Rethink Mental Illness, Asthma UK and the Stroke Association. May I remind the House that just last year the Health Select Committee in another place also recommended that a duty of candour be included in the CQC's registration requirements? Also, in his closing submission to the Mid-Staffordshire public inquiry, which found gross examples of what happens when cover-ups are allowed, counsel for the inquiry raised doubts about the adequacy of the proposed non-statutory contractual duty of candour. The inquiry may well have something to say about the merits of a statutory duty. I hope that in his response the Minister will at least indicate whether he can promise that the Government will consider their current refusal to listen to alternative views and what the inquiry has to say and hold a new consultation including the option of a statutory duty.

As your Lordships should be aware by now, the contractual duty will not apply to GPs and others in primary care but just to NHS hospitals. Since the debate in Committee, it has been brought to my attention that the contractual duty proposal has another fatal flaw-it would apply only to those incidents which have already been reported to the CQC through the national reporting and learning system. It would therefore be next to useless in preventing cover-ups and, as the NHS Confederation has said in its response to the consultation, might actually discourage reporting these incidents in the first place.

I am sure that the noble Earl, Lord Howe, has had time to consider responses to the consultation. He will also have seen extreme disquiet from GPs and others who will be on clinical commissioning groups, who are being asked to take on the wholly unexpected role of a national regulator with regard to a duty of candour. They will have quite enough on their hands to cope with without taking on this additional role. Frankly, it is hard to see how they could possibly do it justice.

The argument that the CQC could not cope with regulating the duty of candour proposed for its essential standards of quality and safety is simply not credible. It is clear from the letter the noble Earl sent me that either there has been a fundamental misunderstanding of what is actually proposed by the amendment, or the CQC is playing games, or both. The amendment would mean that organisations would have to demonstrate that they take all reasonable steps to ensure openness with patients. This is the same formulation of words used for the regulation covering the obtaining of consent. It does not mean that the CQC would have to monitor each individual communication of incidents any more than it monitors individual incidents of consent being obtained. It would, however, be able to check that organisations have the appropriate policies and procedures in place and train and support staff in being open. It would be able to take action on suggestions that an organisation was not promoting and supporting openness when things go wrong. The CQC already has in its regulations a requirement for organisations anonymously to report incidents that have caused serious harm through the national reporting and learning system, but no requirement to be open with patients. This is a truly shocking anomaly which would remain in place under the current proposals. How can it possibly be right that the CQC can use enforcement powers as regards an organisation which is not reporting incidents through the official system but cannot take action against an organisation which it knows may be covering up these incidents from patients and their families?

We should just look at the "Panorama" programme that exposed terrible bullying and cruelty to patients at Winterbourne View. We must do better. While the ability of the CQC to use its enforcement powers when there is no compliance is an important safeguard, we should not lose sight of the fact that it is the very inclusion of an issue in the essential standards of quality and safety that makes up the CQC registration requirements. That sends such a powerful message and supports cultural change.

I do not think for one moment that creating the regulation that I am seeking will, on its own, change culture and behaviour overnight. However, just as with the other essential standards, the fact that openness with patients would be enshrined in the standards and given the priority it deserves would underpin and promote a culture change in the right direction. Not to do so sends the message that being open with patients is not really important at all.

I believe we are all in agreement that being open with patients is the right thing to do, and something serious needs to be done to make this a genuine requirement. In effect, the question is whether or not being open should be an essential standard of quality and safety, along with the other essential standards that make up the CQC's regulations. The Minister pointed out to me that if they were minded to do so, the Government could introduce the statutory duty that I am seeking through secondary legislation, without the need for the amendment. If the noble Earl is able to give the House an assurance today that this is what the Government undertake to do, I would be happy to withdraw the amendment. I beg to move.

Photo of Lord Harris of Haringey

Lord Harris of Haringey (Labour)

My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.

As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,

"no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records".

Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.

In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,

"were unaware of any investigation, everything was released in drips".

Another family claimed:

"They didn't disclose anything, it was a battle to the end".

Another said that

"the shutters came down as soon as I started asking questions".

One parent explained that it was like being,

"in a void whilst waiting".

These are parents or families of people who have died while in mental health care.

Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:

"The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened ... Consultant and matron came for the meeting with no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence".

The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.

The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.

I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers-for example, GPs, dentists, pharmacists, and so on do not have such contracts-and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government's proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.

The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians' professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals' codes of conduct.

Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:

"We support the introduction of a duty of candour in the CQC's registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services".

Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.

Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.

Photo of Lord Walton of Detchant

Lord Walton of Detchant (Crossbench)

In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.

Photo of Lord Harris of Haringey

Lord Harris of Haringey (Labour)

I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation's responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.

I know that there has been some concern-I think that the Minister has expressed it at various points-about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.

There is already a duty in the CQC's statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.

The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act-

Photo of Baroness Wall of New Barnet

Baroness Wall of New Barnet (Labour)

I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own-Barnet and Chase Farm-would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience-and I hope that it is not a lone experience-I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.

Photo of Lord Harris of Haringey

Lord Harris of Haringey (Labour)

I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.

So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions-indeed it would support it-and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue-

Photo of Baroness Whitaker

Baroness Whitaker (Labour)

I apologise for interrupting my noble friend. Perhaps I might add something to the other side of the balance. I am aware of two very recent cases-one of a death and one of a hospital-acquired infection-where information was covered up. It is not simply the case that there is a uniform culture of candour.

Photo of Lord Harris of Haringey

Lord Harris of Haringey (Labour)

I am grateful to my noble friend for that reinforcement. I regret that, within some NHS trusts and some provider organisations, there is not the same approach. There is a concern that it is better to keep a patient, or the family of a patient, in ignorance and hope that the whole matter goes away. The purpose of the amendment is not to penalise the individual clinician-we all recognise that accidents happen-but to foster the culture of openness that the department wants to see; it wants to ensure that that duty is reflected, not only as far as the individual professionals are concerned, but also as far as the organisations are concerned. Otherwise, too often the lawyers and managers will say, "In the interests of the trust, let us try to keep this quiet". I am glad to hear that it does not happen in every instance, as I am sure it does not, but the purpose of the amendment is to provide a statutory framework that will make it quite clear to all those who might otherwise be tempted to cover up these incidents that they must say, "This is important and we have to be open".

Photo of Baroness Tyler of Enfield

Baroness Tyler of Enfield (Liberal Democrat)

My Lords, I have a few remarks to make in support of the amendment, to which my name is attached. I shall be as brief as possible, because much of what I wanted to say has already been said. I pay tribute to the noble Baroness, Lady Masham, for arguing so eloquently for a statutorily enforceable duty of candour.

Having listened to the debate, I remain of the view that a provision in the Bill requiring provider contracts to include a duty of candour clause would be the best way forward and would send the clearest possible signal to the whole healthcare system about the need for openness. We have already heard that, as presently constructed, not all parts of the healthcare system would be covered by the contractual route. It would certainly send a much stronger message than merely relying on the contractual route. I do not see the two being mutually exclusive nor do I think that the principle of contractual freedom would be compromised by having a statutory duty of this sort. I believe that the duty of candour issue is of a different order from much of what else will appear in provisions in provider contracts. I also believe that it resonates very well with the public and would make a reality of what I think should be the most important underlying philosophy of the Bill, putting the patient first and the whole "No decision about me, without me" mantra.

Many noble Lords on these Benches feel very strongly on this issue. The key principle at stake is the right of patients, their families and their carers to know what has gone wrong with their care and treatment when, unfortunately, mistakes, including negligence, have been made. The statutory route would help to ensure consistency. We have already heard an interesting debate about the current lack of consistency. I very much agree with the noble Lord, Lord Harris, about the extent to which it would help to change the culture under which, currently, we know cover-ups have occurred, and make them much less likely to happen in the future. I recognise that a statutory duty alone will not achieve this; it will be a necessary but not a sufficient condition. The culture change that we have heard about will need role models among both clinicians and managers walking the walk, as well as training and support for staff, so that mistakes are acknowledged and, critically, lessons are learnt from the mistakes.

I know that my noble friend the Minister has taken a close interest in this issue and listened very sympathetically to the many representations that he received. I will listen very carefully to his remarks. I ask him to respond to two points in particular. First, if the Government are not minded to accept the statutory route at this juncture, will he undertake to review how the contractual duty is working, say, two years after it has come into effect, and consider again the statutory route if it is not proving to be effective? Secondly, will he report back to the House on the outcome of the recently closed consultation on the proposed duty of candour-notwithstanding, as we heard earlier, that it did not canvass views on other approaches; on whether the respondents thought the current arrangements would be adequate; on whether any other approaches were advocated; and on whether the Government intend to respond to the consultation?

4:45 pm
Photo of Lord Faulks

Lord Faulks (Conservative)

My Lords, I join the debate for the first time, conscious that I was not here in Committee. However, I read closely the debate that took place then and have also read the debates on the subject in the other place. My perspective on the issue comes from spending the past 25 years or so involved in clinical negligence cases, acting as a barrister for patients, doctors and other healthcare professionals, employed privately or by the NHS. Although the amendment is not specifically about litigation, the effect it may have on claims is important.

Much has changed in the way that healthcare professionals approach complaints and claims made against them. Where once it was difficult to obtain clear information about what had happened in some adverse event, often this is no longer the case. Similarly, where once medical professionals were inclined to close ranks, this is very far from the case now, where many current and former healthcare professionals provide opinions about the competence of their fellow professionals. In my experience, some of them are remarkably uninhibited in doing so.

Why have the changes come about? The establishment of the National Health Service Litigation Authority, which commenced its activities in November 1995, has been very much a force for good. Consistent with its aims, objectives and functions, the NHSLA has administered the schemes in a way that has done a great deal to increase public confidence that the truth can be obtained without too much difficulty. Where fault is found, the NHSLA is committed to providing proper apologies and explanations.

I pay tribute also to organisations such as AVMA, which was mentioned by the noble Baroness and which has championed the cause of the victims of medical errors and contributed to a much more effective system of litigation. It is appropriate to acknowledge also the major contribution of the civil procedure rules, which were the result of the investigation into civil procedure by the noble and learned Lord, Lord Woolf. The result is a much more open approach, with disclosure of rival opinions before trial and much greater control by the courts of this potentially vexed field of litigation.

I have a reservation concerning legal aid. The LSC, shortly to be replaced as a result of the LASPO Bill, has ensured that firms that conduct this type of litigation are franchised. I worry that with the potential disappearance of legal aid in this field we could return to a situation where those who conduct this complex litigation would not necessarily have the relevant experience. Be that as it may, matters have advanced very considerably and many experiences that were encountered by those in your Lordships' House who in the past had to deal with constituents would not now happen on anything like the scale that they did in the past.

That is not to say that all is perfect. The duty of candour was, I think, first encapsulated in the Making Amends report in 2003 and has been championed by the former Chief Medical Officer, Sir Liam Donaldson; and, as other noble Lords have pointed out, the case of Robbie Powell has had a great deal to do with promoting the need for candour. I cannot imagine that anyone in your Lordships' House is against candour or in favour of medical cover-ups. However, the question that the House has to consider is whether this amendment is really the right way of improving the culture when there are iatrogenic events.

There has been a considerable amount of research, mostly in the United States, about the effect of greater candour on patients' willingness to sue, including an article in the New England Journal of Medicine in 2006 by two obscure politicians, Hillary Clinton and Barack Obama. I think it would be fair to say that the research on the issue is somewhat inconclusive. While some have clearly welcomed an earlier explanation of medical errors and have been dissuaded from litigation by a culture of openness, equally others have been encouraged to pursue cases that they might otherwise not have pursued because of the disclosure of errors by medical professionals.

The House is, of course, aware that when mistakes happen the NHS constitution requires staff to acknowledge them, apologise, explain what went wrong and put things right as quickly and effectively as possible. Professional codes of practice for doctors, nurses and NHS managers contain similar duties, and there are rights in the Data Protection Act that serve to empower patients, but the Government, as we know, intend to go further. It is a matter for consultation, but it is anticipated that there will be a contractual requirement on the part of all those engaged by commissioning bodies to have this duty of candour, which will involve openness about incidents involving at least moderate or severe harm or death, if not even minor incidents.

We must be careful not to underestimate the difficulty involved in trying to encapsulate the obligations that could be placed upon healthcare professionals. Thanks to the Compensation Act 2006, an apology is no longer to be construed as an admission of fault, but the House ought to consider, I suggest, just how difficult it may be for an individual, albeit via an organisation, to decide whether there has been an error such as to come within the scope of this amendment so as to bring about the various consequences envisaged by it. Where there has been an egregious error, such as the wrong patient being administered an injection or even the wrong limb being removed, that is one thing, but there are many cases in which there may be a suboptimal outcome and it is arguable that there was a departure from the appropriate standard of care.

I have spent a large part of my professional life listening to doctors of one sort or another giving their opinions, often contradicted by other opinions, about whether there has been fault. Even a so-called reasonable opinion, the expression used in the amendment, may not be accepted by another reasonable expert. What of the quite frequent cases where some acknowledged risk involved in a procedure has eventuated? Very often, this will just be the result of happenstance and involve no fault on anyone's part. I am concerned about how this amendment would work in such circumstances.

I noted the observations made by the noble Lord, Lord Winston, and the noble Lord, Lord Walton, who is in his place, about this. I have often found that some doctors are almost too ready to admit mistakes when they have not made one, so anxious are they about the welfare of their patients. We should be careful that in encouraging candour we do not impose what I have to say is a not particularly coherent obligation in the form of this amendment. Surely the most important objective is to encourage candour so that it becomes embedded in the culture of the NHS. The intense difficulty in defining what that obligation should mean is far better teased out as a result of the consultation that is being undertaken rather than being imposed in the statutory form proposed.

I do not know whether those who propose this amendment intend to press it to a vote. Of course all noble Lords are in favour of candour and against cover-ups. Those who have supported this amendment have done a great deal to contribute to the continuing debate about the whole question of candour and should be congratulated on that, but I respectfully suggest that this amendment will not help patients or provide clarity for professionals and therefore will not provide any real benefit. I will oppose it.

Photo of Baroness Oppenheim-Barnes

Baroness Oppenheim-Barnes (Conservative)

My Lords, I am obliged to my noble friend Lord Faulks for provoking me into thanking him for having read the proceedings of our earlier debate on a similar amendment, in which I spoke at length about the total impossibility of someone with money and influence bringing a case against a doctor or a hospital in a situation that was completely black and white. I went into this detail only to convince those who-quite rightly-want this candour that it will not result in an "open sesame" for bringing cases in which a mistake has been made or completely bad treatment has been given.

I would also say that I wish anyone trying to deal with the General Medical Council the best of British luck, because it is not easy. It is a long process, and it involves a great deal of information being given. Even when the consultant involved has said, "I am very sorry, I have made a mistake, I have failed", the GMC still does not find it necessary to criticise that surgeon in any way at all.

On the amendment, my noble friend the Minister was kind enough following the last debate to circulate to those who had participated a note from the NHS giving details of the steps that it takes after a mistake has been discovered: dealing with patients in counselling, apologising, all the important things that we would expect it to do. However, one thing was missing, and I hope that my noble friend will feel kind enough to grant it; it did not say that in such cases the NHS was required to circulate throughout the health service what accident had happened or what mistreatment had taken place, so that it could warn in advance that special care must be taken in the future.

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Baroness Pitkeathley (Labour)

My Lords, the noble Lord, Lord Faulks, speaks with his extensive legal experience, which I certainly could not match, but I have very extensive experience of working with patients and their families. It is in that respect that I support this amendment. I particularly support what noble Lords have said about seeking culture change in the NHS.

One thing that gets in the way of that culture change is the anxiety about why patients want candour and the truth. My experience is not that they seek redress or even want to pursue legal action-time and again any consultation with patients will show you that that is not their aim. Their aim, almost always, is to achieve closure after a distressing incident. What a patient said to me a year or so ago is typical: "I just wanted them to admit that something had gone wrong and say sorry. I knew it could not bring my brother back but it would have helped us come to terms with it". That is what patients are seeking and that is what this amendment will help to achieve. We can all agree that if we are to achieve more culture change, we must move towards a greater degree of openness throughout the NHS.

Photo of Lord Newton of Braintree

Lord Newton of Braintree (Conservative)

My Lords, I am tempted to chip in-rather unwisely, no doubt, as usual-by the last two speeches. If it does not seem paradoxical, I must say that I agree with almost every word of both of them.

I certainly share the view of the noble Baroness, Lady Pitkeathley, and have some experience in having chaired three NHS health trusts since 1997, that there are too many cases in which an apology, together with an assurance that action will be taken to make sure it does not happen to anyone else, as well as achieving closure in the individual case would have made a material difference. I would add that ingredient to what she said. Indeed, I could give examples of where I spent hours of doing exactly that in one of my capacities with some parents who had experienced a tragic loss. I endorse that and I think that she is right. I also endorse her comments about not quite recognising this as a common feature in health trusts.

Most importantly, like everyone else I am in favour of motherhood, openness, transparency, guide dogs for the blind and all sorts of things. However, I have some worries along the lines so expertly expressed by my noble friend Lord Faulks about the effects of writing this proposal into the Bill and whether it would achieve what we really want. Everyone agrees that a culture change is required. From my experience, the key culture change is the willingness of teams of clinicians-I do not mean just great doctors but nurses and all sorts of others-to own up in case conferences and in peer-group reviews to what has gone wrong and to collaborate on how to make sure that it does not go wrong again.

My concern is that this duty of candour, which in this amendment is placed on organisations and not on individuals, seems to lead inescapably to the imposition of such a duty by the organisation on the individuals in their contract of employment. Therefore, at one remove, the effects would be much the same. My concern is one of ambivalence rather than certainty as to which will prevail. Will it be the influence on the organisation, or will it be the effect on the individual who knows that something has gone wrong and finds himself in a position not to own up or to be faced with the possibility that if he does own up, it might escalate all the way up to a massive clinical negligence claim?

I am only speculating, but it is very difficult to predict exactly what the effects of legislating in these terms would be. Since we all want to see greater openness and transparency, a greater willingness to apologise and for teams to say, "We got that wrong. How will we make sure that it doesn't happen again?", we should be a bit cautious before going down that track. If, as the noble Baroness, Lady Masham, said, the Minister has indicated that he would like to tackle this matter in secondary legislation, guidance or whatever rather than through primary legislation, as there is for welfare reform, that may be a far more productive way to approach it than what is proposed in this amendment.

5:00 pm
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Baroness Williams of Crosby (Liberal Democrat)

My Lords, we have had an extraordinarily well argued debate and I do not want to involve myself for more than a minute or two because it would waste the time of the House. Perhaps I may pursue for a moment, in the hope that my noble friend Lord Howe will respond, to the point made by the noble Lord, Lord Walton of Detchant, earlier in the debate. When teams of people are involved, as they clearly often are in the case of major surgery or other major treatment systems, the team has to be persuaded with regard to the duty of candour. Very often, it is not the most senior members of such teams, such as the consultants, or the most junior members of such teams who know best about what has gone wrong. It is often true of nurses. It can even be true of assistant care workers, as we learnt all too severely from the case of Southern Cross and the cases in Bristol.

I simply want to ask whether we should not couple whatever we decide on this amendment with a complete refusal to accept gagging orders on junior staff when inquiries are made of those who are senior to them, whether they are private companies or senior figures in the National Health Service. It was encouraging to hear the noble Lord, Lord Walton of Detchant, say that there is a long way to go. Unfortunately, gagging orders are very common in the health area, and they are something that must be addressed if we are serious about getting to the bottom of things that go wrong in medical treatment.

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Baroness Finlay of Llandaff (Crossbench)

My Lords, I considered long and hard whether to add my name to this amendment. The gagging orders to which the noble Baroness, Lady Williams, has just referred run completely counter to openness and candour, and there has to be candour. I hope that the Government will take away from this debate the fact that, first, something has to be done to stop people being gagged; and secondly, whether it is in guidance or on the face of the Bill, there must be a way to ensure that there is candour throughout the whole system and that it applies to everyone. The implication that general practitioners, dentists and so on are not on an equal footing with other organisations is invidious.

Patients need to know what has happened. I admire my noble friend Lady Masham for persevering with her research into this issue and presenting it to us today. The tension arises between an individual, a doctor registered with the GMC, on whom there is a duty of candour as an individual to be open and honest with patients if things go wrong-indeed, in the relevant paragraph in Good Medical Practice 2012, the word "must" appears, which means what it says, as opposed to "should", which is advisory-and organisations. When things go wrong, there is often a series of errors that become compounded, along with other events that may seem insignificant. For example, a patient's notes were not available on one occasion when they were seen so the wrong investigation was ordered, and things went on from there. Another difficulty is that it is sometimes the patient's own behaviour which contributes to the cascade. It can be difficult to confront a patient who is already distressed with the fact that the way in which they have behaved-perhaps by discharging themselves or by going off to some alternative practitioner-has contributed to the way in which things have gone wrong. Another simple example is, if you do not know that a patient is taking a certain medication, it can be very difficult to predict an interaction with a prescribed medication.

I should declare my interests, which I did not do earlier in our debates-I hope that the House will forgive me-as a fellow of the Royal College of Physicians, a fellow of the Royal College of General Practitioners, a member of the British Medical Association and a practising clinician. I will always remember as a medical student meeting a general practitioner who took me for a walk in a small village on a Welsh hillside. He took me to the churchyard and said, "I want to walk you around the churchyard". I asked him why, and he replied, "Because I want to introduce you to my errors". He had been working in the village for many years. Sadly, as a junior doctor I was in a hospital where there was a catastrophic medical error. What that taught me more than anything is that you have to be open from the first moment you realise that an error has been made. Anything other than openness fails.

To reinforce the remarks made by the noble Lord, Lord Newton, and the noble Baroness, Lady Pitkeathley, whenever I have had to tell patients that something has gone wrong, however minor it may be, I have been astounded at how grateful both they and their families have been for the fact that I have told them. They are also grateful when we institute intensive monitoring procedures, which can mean that patients are woken every hour through the night, and express relief touched with a sense of humour when such intensive monitoring is no longer required. Time and time again when things have gone wrong, there is an overwhelming sense that whatever it was should not happen to anyone else, along with the realism of knowing that you cannot put the clock back, and that medicine is about not absolutes but all shades of grey.

The difficulty with having this clause in the Bill is the potential for unintended consequences. That is why I hesitated about adding my name to it. I hope the Minister will take the matter forward, because this has been a very powerful debate, and put something in guidance. In 2009, the CMO recommended a duty of candour. We really must make it a reality if the implication of "nothing about me without me" is to be honoured. We need to be open, honest and realistic with our patients.

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Baroness Hussein-Ece (Liberal Democrat)

My Lords, I, too, had no intention to speak on this amendment, having spoken on and supported the proposal for a duty of candour in Committee. Patients and public quite rightly have higher expectations of the services they receive from the NHS, both for themselves and their families. They are also better informed, and they expect NHS clinicians, carers and nursing staff to respond to that. This is not just about graveyards, as mentioned in the rather alarming story recounted to us by the noble Baroness, Lady Finlay, but also about care. Patients might not have received the quality of care that they expected. I have had experience of that with my late father. When he was terminally ill, the standard of nursing care was so poor and so distressing that the onus was on me, on behalf of my family, to take it up with the chief executive or whomever I could find and say that things were just not good enough. Even as someone who had worked in the health service and spent time as a chief officer for a community health council representing patients, I still found it hard to know who was the right person to take a complaint to. It was not a serious complaint-about medication, for example-it was just about the standard of care. In fact, the consultant on the ward asked me to take up the matter because he was so concerned and could not do anything about it himself.

What worries a lot of trusts, and I came across it in my career in the NHS, is that an apology might somehow be taken as an admission of guilt. They were therefore reluctant just to give a straightforward apology. In my case, I had to complain about a particular member of the nursing staff, with the case continuing after the death of my father and disciplinary action being taken against the individual concerned, but I still did not receive an apology. Even after my complaint was upheld, there was no apology. There was no sense of, "Yes, we realise things we went wrong"; rather, it was, "Yes, this person did something wrong and she is going to be dealt with". There was no apology, no statement of how things would change and how the culture in that particular ward in terms of caring for older patients would improve. A basic apology should be the very least thing that could happen, without there necessarily being an admission of liability or of guilt. At the human level, an apology should be made to somebody who has suffered, or to their family.

People also want a simple explanation. They do not want an incomprehensible letter about treatment; they want a step-by-step, basic explanation of what should have happened but did not-just to give someone some background. This should be done very quickly. Trusts should also offer a face-to-face meeting, which not all of them do, particularly early on. It may already be offered further down the track.

Those two or three simple measures should be put in place and become the norm. We have heard in this very interesting debate that there are variations, and there probably always will be, but we should expect a minimum standard when things go wrong or when services are perhaps not what they should be.

5:15 pm
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Lord Ribeiro (Conservative)

My Lords, I would like to comment on the good medical practice to which the noble Baroness, Lady Finlay, referred. It was introduced some time ago to ensure that medical practitioners would know how to communicate with their patients and were always honest and truthful when things went wrong. In surgery, we produce good surgical practice to complement that exercise. In relation to patient communication, we require surgeons to keep patients fully informed both during and after their treatment. We require them to act immediately when patients suffer harm and to apologise.

As for anecdotes, I had one patient on whom I operated for varicose veins. I pulled up something in the back of her leg that looked like a vein, but in fact it was a nerve. The net result was that the next day she had a foot drop. I went to see her and explained that I had made a mistake-I thought that it was a vein but it was a nerve. I said that we would get a plastic surgeon to see her and we would re-explore the nerve to see if it was all right. The operation was done, and, fortunately, the nerve was not torn. The period required for regeneration was likely to be six months. Every time she came to my out-patients' clinic-although she was a private patient-I used to get a terrible feeling in the pit of my stomach, because I could hear her coming down the corridor as her foot drop made a flopping sound on the floor. She would sit down opposite me and say, "You know, I really ought to sue you". She never did, however, because she had been told straight away the whole truth of what had gone on.

Therefore, I have tremendous sympathy for this duty of candour. What worries me is that we could end up with a contractual mechanism in legislation that leads to nothing more than a tick-box exercise. The problem with such exercises is that people will fill them in to try to avoid the legal implications that we have heard of. They will try to avoid litigation. The quality of any genuine explanation may well be lost in such a mechanistic approach. Although it has taken five or six years since the CMO first introduced this concept, we need to do very much more to change the culture. I hope that with the creation of new organisations such as local healthwatch there will be opportunities to raise the profile of the issue and to achieve the sort of explanations that patients rightly deserve.

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The Countess of Mar (Crossbench)

My Lords, when my daughter was a little girl I brought her up to tell me immediately if she had done something that she should not do or if she had had an accident, and to say sorry, and she would be forgiven immediately. It has been my experience with the OP sufferers from sheep dip, Gulf War veterans and ME sufferers that, if a mistake has been made, all they want is an apology and an explanation and to be able to say, "Please do not do it again". That has happened over and over again. I have a drawer full of letters from people saying that.

I suspect that it is not necessarily the doctors and nurses-the medical practitioners-who are covering things up when there is a cover-up. It might be what we euphemistically call the pen-pushers-the people behind the doctors and behind the organisation who are afraid that the organisation will come into disrepute. That is where much of the problem lies. Many doctors would like to be able to say, "I'm sorry-I made a mistake", but they are held back, which is what the noble Lord, Lord Harris of Haringey, said. If we are going to change the culture, we must start with leadership. We have heard about leadership in nursing. A nurse leader or a doctors' leader can say to the whole of his team, "If you make a mistake please come and tell me immediately and we will go and tell the patient". That would wipe out a whole lot of anxiety.

The noble Lord, Lord Faulks, talked about litigation. People go to law because they are angry. They have not had an explanation and they are worried that something has gone wrong with a relative or themselves. That is when they go to law. That is what happened with the sheep-dip farmers, and it certainly happened with the Gulf War veterans when Mr Soames, the MP with responsibility for the Gulf War veterans at the time, said, "See you in court". They rise to that. If people have an explanation, they will accept it. Everybody makes mistakes, and they will understand it. So I support the noble Baroness, Lady Masham, in her cause.

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Lord Cormack (Conservative)

I was not intending to take part in this debate, but it has been a thoroughly fascinating one. The noble Countess, Lady Mar, talks about people wanting an explanation, and of course she is absolutely right. People go to law when they are angry, she says-and that is also right-but they also go to law when they can afford it. One of the problems is that so many people cannot afford to contemplate it, yet as we have grown into this no-win no-fee culture more and more people have thought of the law and more and more doctors and nurses have become terrified of finishing up in a court of law. This is why I, as a former constituency Member for many years, who saw many of these cases, am persuaded by what my noble friend Lord Newton said. While we wish to see the Minister respond sympathetically to the amendment so movingly proposed by the noble Baroness, Lady Masham, I hope that he will give the undertaking for secondary legislation and guidelines that would meet our concerns this afternoon.

I have great confidence in my noble friend. I have an anecdote in which he is involved. For many years, I had a constituent who came to me with a series of stories, some of which were very plausible, others of which were less so. I referred this lady to my noble friend, who was the health spokesman for my party-we were in opposition at the time. I was tremendously impressed by the thoroughness with which he looked into these cases with me. Indeed, we came to the conclusion that there had been instances of neglect and even of malpractice. The way in which he looked into it and the thoroughness and compassion that he displayed makes me confident that when he replies this afternoon he will be able to give us an assurance that, whether or not this amendment goes into the Bill-and frankly I think that it probably should not-he will not forget what has been said in this Chamber. Rather, I hope that he will try to ensure that, although one cannot compel candour whatever one does, one has a right to expect it. Every patient in the National Health Service has the right to expect that those who care for him or her will do so with dedication, following a vocation, and that if mistakes are made, as from time to time inevitably in any human situation they are made, there will be a full and honest owning up to those mistakes. That, as the noble Countess indicated, is what people hope for and expect-and, if they receive it, we might gradually see the end of the litigation that has so distorted much of our public life in recent years.

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Baroness Wheeler (Labour)

My Lords, on behalf of these Benches, I would like to support Amendment 17 in the name of the noble Baroness, Lady Masham, to which I have added my name. As we did in Committee, we have again had an excellent debate, which I believe has gone a long way towards addressing the concerns expressed by some noble Lords during Committee and during this debate about making the duty of candour statutory, as well as demonstrating why the Government's approach of relying solely on a contractual duty will not work or lead to the sea change in culture in the NHS that is needed to ensure openness and honesty when things go wrong in the care and treatment of patients.

The case for the introduction of a statutory duty has been forcefully made by the proposers and supporters of the amendment, and I shall not go over the issues again in detail. The amendment from Committee has now been substantially redrafted to ensure that there is no duplication or clash with the professional regulation and that the duty of candour applies only to actual patient-safety incidents, as already defined in statute. Thus we would no longer face the problem of how to define whether or not an incident is serious or harmful or whether it could lead to potential harm in future, a consequence feared by some noble Lords and by the Minister in his response to the Committee debate. Instead, our amendment would amend the current Care Quality Commission (Registration) Regulations by drawing on the actual text used in those regulations, requiring patient safety incidents which cause harm to patients to be notified to the CQC. The effect would be to place a statutory duty on any organisation registering with the CQC to,

"take all reasonable steps to ensure",

openness with patients when things go wrong and cause harm. The definitions of harm and the organisations to which the duty would apply are exactly the same as those currently used to require notification of incidents to the CQC.

The Government's main arguments against statutory duty of candour are threefold: first, that implementing the contractual duty would suffice, and bring the responsibility for requiring openness closer to patients and with clinician-led commissioners; secondly, that the current consultation exercise on the contractual duty has only just closed and the Government need to analyse the responses-not much of an argument when the Government ruled out introducing the statutory duty in that consultation; and, thirdly, that existing provisions including the professional codes of practice, National Patient Safety Agency policy guidance and the requirements of the NHS constitution, with the new contractual duty, will address the problem.

However, as noble Lords have said, existing provisions exhorting NHS organisations to openness and health professions to openness and disclosure are not changing the culture of denial, obfuscation and blame that is so deeply embedded in many parts of the NHS when things go wrong. The instances of serious failure in care and treatment that have led to the campaign by patients' organisations are, as we have heard, deeply shocking and tragic. Expecting CCGs to have the strength and will to take on powerful providers that have failed to be open and to enforce remedial measures without the support of a statutory authority will not achieve the changes we need.

On the role of the CQC, noble Lords have more than answered the Government's reservations. It is an appropriate role for the regulator and the new duty of candour would not require detailed monitoring of individual incidents or communications with patients, but could be reinforced by the CQC by using its guidance already in existence and setting it alongside all the other essential standards of quality and safety which have statutory force. I hope the Minister will reconsider his position and accept in principle that the duty of candour should be statutory, and incorporated into the Bill.

We of course recognise that there would need to be considerable work and consultation undertaken with all stakeholders to introduce and implement the statutory duty of candour. The work around implementing the contractual duty could be put to good use in this effect, as it would complement the statutory duty. Moreover, putting the principle into the Bill and working out later how it is to be implemented has been a central feature of most of the Bill's provisions, so it can be applied in this case. Tuesday's letter in the Daily Telegraphfrom all the leading patient organisations emphasised that the introduction of a statutory duty of candour,

"would be a historic step forward for patients' safety and rights".

On these Benches we endorse this, and I hope that the Minister will now reconsider his position and accept this amendment.

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Earl Howe (Conservative)

My Lords, this has been an excellent debate and I would like first to pay tribute to the noble Baroness, Lady Masham, for her tireless advocacy of the need for openness and transparency in the NHS. She spoke very powerfully. What struck me from the debate is the consensus that there seems to be on all sides of the House on three key points. First, there is agreement on the importance of openness and candour in healthcare, and I think we would all accept that the NHS could only call itself a world-class health service if it embraced openness wholeheartedly. Secondly, there is agreement that at present there is significant room for improvement, the story of my noble friend Lady Hussein-Ece being a case in point. While areas of the NHS, such as Barnet and Chase Farm, are already providing exactly the transparency we wish to see, that is not by any means universal. Thirdly, there is agreement that something needs to change.

I, too, am in complete agreement with those points. I agree that we must do all that we can to encourage the development of a culture within the NHS that supports people to disclose where errors have occurred, so I am at one with the noble Baroness in her intention in tabling her amendment. The question before us is not whether we should do something but what we should do. We need to ensure that the route that we choose gives that good intention the best chance of succeeding. I note from today's debate that opinion has not been all one way.

In that context, I remind the House that the Government's preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that the responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC. I would like to focus noble Lords' minds on that point. A contractual duty of candour places the responsibility for requiring openness directly with the organisation looking after patients and with clinician-led commissioners. That is the main reason why we think it will be more effective. By proposing to place a duty of candour in the NHS standard contracts, we are placing the power to hold the NHS to account as close as possible to the people affected by a lack of openness.

There is another dimension to this. Our proposal would create a single standard requirement that applied across all providers of NHS acute, community, mental health and ambulance care. If you had a statutory requirement, there would always be the potential for different interpretations of it. On a purely practical basis, that means that instead of a national body having to examine many thousands of cases, individual commissioning groups would have the much more manageable task of examining only their own local providers.

Making this a local contractual issue would enable the use of local intelligence about openness, or a lack of it, shared among clinicians, including those leading the commissioning process. That, too, we see as an advantage. That would maximise the chances that a lack of openness would be detected and acted upon, and that the action taken would be appropriate. More importantly, though-and this point was made effectively by my noble friends Lord Faulks and Lord Newton-it would be much more effective at achieving culture change, which, as many noble Lords have said, is what is really required, rather than trying to drive improvement through yet another law or regulation.

I listened closely to the arguments put forward by the noble Baroness, Lady Masham, in support of the amendment. She suggested that the contractual duty would be useless in detecting cover-ups because, as she put it, it would apply only to incidents that were reported. Checking if an incident has been reported to the CQC or the national reporting and learning system is only one mechanism by which commissioners could check if an incident had occurred but had not been disclosed to the patient. It is not the only mechanism; a commissioner could review medical records or review the care received outside incident reporting. If the evidence indicated that an incident had occurred but not been reported or disclosed, that would be a breach of current CQC regulations and, indeed, the contract. That would be quite unacceptable and action could then be taken.

5:30 pm
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Lord Harris of Haringey (Labour)

My Lords, is not the point that the contractual obligation that the Government are proposing would in effect be triggered only by the reporting of an incident to the CQC? Is it not also the case that the contractual obligation that the Government are talking about would not apply to primary care?

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Earl Howe (Conservative)

I will move on to primary care in a moment, but I do not agree with the noble Lord at all on his first point. What we see happening from a contractual requirement is a process of culture change taking the form of conversations between management and clinicians about the fact that this was something that the organisation had to focus on. I do not agree that it will arise simply by reason of reported incidents.

As I said, any disagreement that I have with the noble Baroness is not out of any difference of intent; it is because of a difference of opinion about what we feel would work. Her amendment would require the Secretary of State to act with a view to securing that any CQC-registered organisation providing healthcare was required-we should perhaps log that word-to take all reasonable steps to ensure that a patient or their relatives were informed of a serious patient safety incident.

The key points here are around a requirement in relation to CQC-regulated healthcare. Any requirement must come with enforcement, otherwise it is not a requirement. The amendment as drafted would extent to providers of purely private healthcare-that is, non-NHS-funded healthcare-which suggests that any requirement would have to be enforced by the CQC. I and my officials have spoken at length with CQC colleagues regarding this. In response, the CQC has clearly stated that it would not be able to routinely monitor and enforce such a duty. This is not due to attaching less importance to this issue than to the others areas that they regulate. It is the very nature of openness that when errors occur, it is not easy to detect routinely where a lack of openness has occurred. When a patient or their relatives are not told of an error and the incident is not reported, it is often very difficult to discover that there has been a failure by an organisation to be open. The only way to fulfil this requirement would be to verify that openness was happening and, given the very nature of the issue, that would not be possible for a national regulator. It would require it to prove a negative-in this case, that people were not told about something going wrong with their healthcare.

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Lord Harris of Haringey (Labour)

I am grateful to the Minister for giving way again, but I am now genuinely confused about why this is different. His argument seems to be that a contractual arrangement-we will come back in a moment to the question of who that will cover and whether it will cover primary care-would magically produce a change in culture but that a statutory obligation, applying to all providers registered with the CQC, somehow would not. This is not about requiring the CQC to monitor every interaction with a patient; it is about creating that culture change and a clear sense of obligation-you cannot be registered as a provider with the CQC unless you are committed to doing this.

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Earl Howe (Conservative)

My Lords, I hope that the noble Lord will allow me to remind him very respectfully that we are on Report and not in Committee. I am trying to work through my arguments, which I hoped would have a flow to them, but my flow has been interrupted. I am getting to what I hope he wants me to get to.

I was saying that the amendment would effectively require you to prove a negative-in this case, that people were not told about something going wrong with their healthcare. If they were not aware of the error, they would not be aware that they had not been told about it, and the volume of incidents is such that a single national body could not possibly verify compliance with that requirement.

I know that the noble Baroness advocates that the CQC should not routinely monitor this duty and instead should require organisations only to provide evidence that they encourage openness through having appropriate procedures and policies in place. Unfortunately, what that creates-this point was made by my noble friend Lord Ribeiro-is a tick-box exercise. Organisations can provide all the assurances in the world that processes are in place and therefore they are considered to be compliant, when in actual fact it could be that patients were still not being told about errors in their care. That is not acceptable and would not deliver the culture change that we need. We must have a requirement that ensures that patients are told of errors, not one that pays lip service to this and allows organisations-

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Baroness Northover (Liberal Democrat)

I remind the noble Baroness that, as my noble friend said, we are on Report. If she is seeking clarification or questioning something, that is slightly different, but she should not make a speech at this point.

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Baroness Young of Old Scone (Other)

I merely want to ask the noble Earl what the material difference is between this requirement being laid on organisations by the CQC and many of the other basic requirements that are laid on organisations by the CQC. Those organisations are not inspected in detail on an ongoing basis, but the requirement is intended to seek from providers of health or social care an outline of how they intend to deliver that requirement, without their being inspected regularly in all cases.

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Earl Howe (Conservative)

My Lords, I hope I have already explained that. In our conversation with the CQC, it made very clear that this would not be like any other requirement placed upon it. A requirement to prove candour will require the CQC to engage in a much more continuous and intensive process of monitoring than some of its other requirements. That was the distinction that it made and that is why it said that it did not have the capacity to fulfil this duty if it were built into the Bill.

I am afraid that the amendment would not be effective in meeting our shared objective. That is my problem with it. I have listened to the arguments put across by noble Lords in relation to primary care. I want to see openness in primary care as much as I do in secondary care. However, we still need to consider which requirements would work best in primary care.

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Baroness Kingsmill (Labour)

Can the Minister explain the distinction and why we cannot have both? It seems that culture change is best reinforced by legislative change, and the contractual point that the Minister made is a good idea.

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Baroness Northover (Liberal Democrat)

For clarification, can I point out that only the mover of an amendment or the noble Lord in charge of a Bill should speak after the Minister on Report, other than for short questions of elucidation to the Minister or where the Minister speaks early to assist the House in debate? As this makes very clear, it is possible for a noble Lord to ask a short question about what the Minister has just said, but he or she should not introduce other speeches.

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Earl Howe (Conservative)

The question of the noble Baroness relates back to something that I said some time ago. The answer is that we believe that culture change stands the best chance of happening when you bring home to those with direct responsibility for patient care that it is in the contract of the organisation that it must be candid. There are different views about this. I do not disagree with the noble Baroness that, in some cases, regulation is the right way to go. I will say a little more about that in a moment, as I wind up.

I was just talking about primary care in sympathetic terms. We need to remember that other requirements for openness still apply to all NHS services. All primary medical service contractors must have regard to the NHS constitution, professional codes of conduct, any guidance issued by PCTs or the Secretary of State and so on in relation to openness. Once they are registered with the CQC, a failure to be open with patients contravenes clear expectations set out in CQC guidance. The CQC can then take action. Therefore, primary care contractors currently have no excuse to avoid telling their patients about things going wrong with their healthcare. However, I acknowledge the concern of the noble Baroness, Lady Finlay, and others that primary care contractors will not be covered by the current proposals for a duty of candour in the NHS standard contract. Any contractual amendment in relation to primary care contractors is a more complex process, requiring amendments to secondary legislation, among other things. Specifically because of this, we asked for views on this in our recent consultation, which closed at the end of last month. I can confirm to the House today that we are giving further thought to the issue of primary care and the duty of candour in light of the consultation responses we have received. They are complex issues. I hope noble Lords will understand that I cannot prejudge the careful analysis that is already under way in deciding how we go forward in this area. However, it is something that we are actively considering.

My noble friends Lady Hussein-Ece and Lord Ribeiro, the noble Countess, Lady Mar, and the noble Baronesses, Lady Pitkeathley and Lady Wheeler, all made the same point: more than anything else, patients or their families often wish for an explanation, an apology and some assurance that lessons have been learnt. As part of our consultation, we have reiterated that there must be an apology and a basic step-by-step explanation in a face-to-face meeting quickly. That should be required as a minimum. The NHS Litigation Authority has made clear, as have we and the National Patient Safety Agency, that an apology is not an admission of liability and should be immediately offered.

My noble friend Lady Williams and the noble Baroness, Lady Finlay, spoke about whistleblowing. I completely agree with them and the Government support the right of NHS staff to raise concerns. We expect all NHS organisations to do likewise. Measures to promote whistleblowing include a free, independent advice line for staff and a proposal to strengthen the NHS constitution in this area.

My noble friend Lady Oppenheim-Barnes asked me whether the NHS should circulate information about a mistake after it has been made so that lessons can be learnt. I completely agree with her. It is a very important issue. The NHS can and should report the details of patient safety incidents to the National Reporting and Learning System, which collates such information, distils the learning, spots trends and risks and then disseminates the information to the whole NHS to prevent a recurrence. That will continue.

My noble friend Lady Tyler asked whether I would report back to the House on the consultation that recently closed. Of course I shall. The Government will publish a full response to the consultation once the submissions that we have received have been fully analysed. Early indications are that opinion is split. Our initial analysis suggests that around one-third of respondents were supportive of a contractual duty, while a similar number were not. The remainder provided mixed comments. We will review the information carefully and respond to it in due course.

In addition to this and, once again, in response to my noble friend's question, I confirm that I agree with the proposal that she put forward, which I think the noble Lord, Lord Beecham, asked about in Committee. It was that the Government should undertake a future review of the effectiveness of the contractual duty of candour after an appropriate interval and include within this a specific analysis of whether its effectiveness is being substantially held back by the lack of a reference in primary legislation. If this review were to highlight that this was happening, the Government would give it very significant consideration and take it fully into account in the context of future primary legislation.

I hope that the noble Baroness will take that reassurance on board. I hope, too, that it will be clear to her that this debate is not about the principle of candour, but about what in practice is most likely to influence the culture of an organisation. We simply do not think that more regulation is the right way to go. I hope that the noble Baroness will accept that we have listened to her point of view and considered it very carefully. However, for very good reasons we think our preferred route is better.

5:45 pm
Photo of Baroness Masham of Ilton

Baroness Masham of Ilton (Crossbench)

My Lords, this is a very complex health Bill and I should like to pay tribute to the Minister for all the work that he does-for the meetings that he has and for his letters and explanations.

I feel that patients are not covered enough by this Bill. Patients and their supporters have to fight for everything. Why do they have to fight so much for something that should be good practice? The noble Lord, Lord Ribeiro, said that surgeons and doctors should do this. Why are they not doing it? If you look in today's Yorkshire Post, you will see a tragic case of a woman who lost her baby through negligence in Scarborough Hospital. I have received a letter today from Dr Frank Arnold. I shall quote some of it. It states:

"I am a doctor, who suffered a near fatal adverse event in my local hospital due to errors subsequently accepted as negligent ... Part of the reason that these cases recur is that they are not admitted, reported and learnt from. Similar considerations apply to many other types of repeated serious adverse events and preventable deaths. It took more than two years of struggle against hospital management and NHSLA evasions, denial and delay before my case was settled and I could speak of it in public. After that time, I took part in the discussions at the DoH about duties of candour. These revealed the extent of hostility of the Academy of Royal Colleges, insurers and GMC to any requirement to be honest with patients and the professions".

We need an open and honest system right through primary care and secondary care and even extending to dentists. I have been very lucky. I have had serious accidents and my doctors have always been open and told me the problems, for which I am grateful. However, there are others who do not do so. Generally, the ones who do not do so end up facing legal action. We must do something. We must find a way. I am grateful to the noble Earl but I do not think that it is good enough. It is a case of words and more words.

There is another problem. The other place was not able to discuss these amendments. They did not come up as the other place ran out of time. We have time. If we could get something in the Bill it might not be perfect but at least the other place would have another chance to discuss this. Every Member of Parliament has this problem, I know. Therefore, I would like to test the opinion of the House.

Division on Amendment 17

Contents 198; Not-Contents 234.

Amendment 17 disagreed.

Division number 1

See full list of votes (From The Public Whip)

Amendment 18

Moved by Lord Hunt of Kings Heath

18: After Clause 7, insert the following new Clause-

"The Secretary of State's duty as to preventing bureaucracy

After section 1F of the National Health Service Act 2006 insert-

"1G Duty as to preventing bureaucracy

In exercising functions in relation to the health service, the Secretary of State must, so far as in consistent with the interests of the health service, act with a view to securing-

(a) that the NHS Commissioning Board shall exercise its functions in relation to the health service with a minimum level of management tiers, and

(b) that any other person exercising functions in relation to the health service must have regard to the need to curb bureaucracy.""

6:07 pm
Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, one by one, the pillars holding up the Government's reasons to justify the mayhem they are raining on the NHS are being kicked away. The Prime Minister promised "no top-down reorganisation" of the NHS, yet it is faced with the biggest change since it started life 64 years ago. The Government implied that the NHS was failing, yet the 2010 British social attitudes survey put public satisfaction with the NHS at its highest-ever level. The Government have said that falling productivity is a problem, yet Professor Nick Black, writing in the Lancet, described this as a myth. The Government said they wanted to encourage collaboration and the integration of services, yet Mr Lansley spilled the beans this morning by making it clear that competition between doctors and nurses is really what he is about.

The Government argue that they will end micromanagement by the Secretary of State and introduce democracy. Last week, the noble Earl, Lord Howe, on the first day of Report, sought to persuade your Lordships that the Government were aiming to free the service from micromanagement by the Secretary of State. Indeed, the noble Earl went further and said that Mr Lansley is the only Secretary of State,

"who has not succumbed to the temptation of micromanaging the NHS".-[Hansard, 8/2/12; col. 349.]

The noble Earl went further when he said that the NHS Commissioning Board will have a facilitating role to promote guidance, and is,

"not ... a replica of the kind of line management that the NHS has seen to date".-[Hansard, 8/2/12; col. 352.]

I say gently to him that the reality seems a little different. Indeed, since your Lordships started to debate the Bill, the Secretary of State has shown no inclination whatever to keep his hands off the National Health Service. He has announced a set of indicators for patient outcomes for NHS trusts to meet; he has pronounced that hospitals are admitting too many patients; he has pronounced that patients are being discharged from hospitals too quickly; the A&E four-hour indicators have been extended; primary care trusts have been told to speed up treatments for patients waiting longer than the 18-week waiting limit; hospitals have been ordered to remove advertisements for personal injury lawyers in NHS-branded leaflets from being distributed in casualty wards; primary care trusts have been told to identify three services that can be handed over to the private sector; and the Prime Minister-no less-has announced that there will be hourly nursing rounds to check that patients are properly fed and hydrated. I might have missed a few examples in my recording of the interventions that have taken place in a short period of time.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My noble friend urges me to keep going. I will certainly continue to note down the evidence on whether the Secretary of State is not micromanaging the National Health Service.

Let me make it clear to the House that I do not have a problem with those kinds of interventions. In fact, I wish the NHS could be left to get on with dealing with some of those issues rather than having to be diverted by this centrally imposed top-down restructuring.

I do not think that we should let the Government get away with the myth that what they are proposing is some kind of anti-bureaucratic Minerva or kid us that they are standing back from interfering in the NHS. I have no doubt that the noble Earl, Lord Howe, will regale us with how many reductions there are in the number of bureaucrats employed in the NHS. He will probably pass over the huge redundancy costs that are being paid out. He might also pass over the possibility of there being a cost-shift as clinical commissioning groups, for instance, hire the very people made redundant by strategic health authorities and primary care trusts.

The fact is that the Government are busy constructing a huge edifice of confusion and a multilayered decision-making process. I remind the House that the Commons Health Select Committee report on 24 January concluded that the Nicholson challenge, the £20 billion efficiency challenge,

"can only be achieved by making fundamental changes to the way care is delivered".

It continued:

"The reorganisation process continues to complicate the push for efficiency gains. Although it may have facilitated savings in some cases, we heard that it more often creates disruption and distraction that hinders the ability of organisations to consider truly effective ways of reforming service delivery and releasing savings".

Let me be clear. In criticising the Government's approach, I do not seek to undermine the role of managers and leaders in the NHS. They are at a premium, and I have been somewhat concerned by the tenor of some of the Government's remarks about the role of managers in the health service. We need good managers to lead and support change on this vast scale. What we do not need are layers and layers of bodies without any clarity in organisational responsibilities. We do not need systems and practices that mean that the same information is collected many times over, and we certainly do not need the increasingly complex paperchase that the internal market will morph into when it becomes a real market.

In essence, the Government are replacing a managed-system bureaucracy with a market bureaucracy. Monitor and the national Commissioning Board will grow and grow, mostly by spending on external consultants to mask the baseline costs. Here I return to the point made by my noble friend Lord Graham. Again, one sees a plethora of organisations in the new structure. We have Monitor, with its hugely contradictory role in both supporting the foundation trusts and being the economic regulator for the NHS. We will have the national Commissioning Board overseeing the system in accordance with a mandate given to it by the Secretary of State. However, the board, which the noble Earl, Lord Howe, talked of as being a facilitating organisation, will none the less have a massive £20 billion commission of services. The national Commissioning Board will also have four regional outposts and 50 local outposts. The noble Earl called them field forces last week, but I suspect that the jargon has moved on since then.

We then have 244 clinical commissioning groups, at the last count, but because the clinical commissioning groups do not have the skills to commission services we are also to have 35 commissioning support units. Then there are the clinical senates-15, perhaps-but no one has any idea who they will be, what they will do or who they will be accountable to. We then have 165 local authorities taking over responsibility for the public health function, 165 health and well-being boards and the same number of local healthwatches. As we heard earlier, the local education and training boards are accountable to Health Education England. Then there is the leadership academy and the improvement body that the noble Earl referred to last week.

If that is confusing enough to NHS experts-and it is-what about patients and the public? How do the public and patients influence the national Commissioning Board and its massive number of outposts? For all the criticism of strategic health authorities and primary care trusts, at least they were local and had their own corporate boards, so there was an effort at independence and autonomy. Under the national Commissioning Board all the outposts are simply layers of management with no pretence of any accountability or autonomy. With more commissioners and more providers, more services subject to tariff and a more complicated tariff, the cost to the transactional bureaucracy in running the internal market will have to rise considerably. No estimate has been made of that at all. I wonder why.

The Prime Minister has made big claims about savings, but as the impact assessment makes clear there has been no estimate at all of savings based on expected and actual running costs. No one has worked out anything for the increasing cost to providers in a new contract and legal market world.

A Bill that was partly proposed as a way to tackle bureaucracy has turned out to give the NHS the most complicated structure that it has ever seen. I think we should build some protection into the Bill for the NHS from the massive bureaucracy that it will now come under. I beg to move.

6:15 pm
Photo of Lord Warner

Lord Warner (Labour)

My Lords, I must congratulate my noble friend. He has obviously had an extremely good weekend and is in very fine fettle. He has done a great service in moving the amendment, because it gives us a chance again to air the continuing concern in many parts of the NHS and the outside world about the cost of the organisational changes that flow from the Bill and the risks of those administrative costs escalating in future.

I recognise that nearly all organisational changes have transitional costs, and I do not doubt the Government's genuine belief that their changes will lead to savings in what they call bureaucratic costs. As the Minister knows, I moved some amendments in Committee to try to cap management costs and their annual increases. He told me in the politest possible way and with his normal, reasonable manner that that was unnecessary.

However, I remain concerned about the Government's ability to keep under control the costs of the organisational changes that they have set in train with the very large number of new bodies that can play in the NHS game, as my noble friend Lord Hunt made clear. I do not intend to go over them again, but there are a lot more of them than there were before. Whether we call them bodies or ill-defined entities, such as the senates, they are still people who will be involved in the administrative processes, and I have never found anyone able to engage in administrative processes who does not incur costs and increase the cost of those services. Some of us have been around the public sector quite a long time. Those bodies can use the age-old arguments to grow their organisations over time. Those growths of organisations are, of course, always in the interests of the public. It is always for the best of purposes that they expand.

I see nothing in the Bill that enables those costs to be contained from escalating in future. It is not just about the start-up costs of the national Commissioning Board or Monitor in the early stages; it is a question of where this whole system will end up in two, three, five or 10 years' time, when we see, in its full glory, how it works in providing our NHS.

My scepticism rests on how the Government have modified the Bill as it has progressed through Parliament. It would be easier to be more confident about containing those costs if, after the pause and as the Bill has progressed, we had not seen modification, often done with good intentions and often moved in amendments from other parts of the House. However, we have ended up with a model that looks jolly different from the one that we started with when the Bill began its passage through Parliament.

I have also been struck by what I can only describe as the naivety of the language of some of the Government's supporters, who seem to equate eliminating managers with reducing bureaucracy. As my noble friend said, we badly need managers to make this system work. There is a growing belief that somehow, after all these years, clinicians will suddenly be efficient, cost-cutting commissioners of services and we can forget about the quality of general managers. I am pleased to see the noble Lord, Lord Fowler, in his place because he was, if I may put it this way, the father-or grandfather-of the general management that was introduced into the NHS, and he deserves a lot of credit for that. In the 1980s, the Conservatives decided that what the NHS needed was a good dose of general management, and that is what it had. However, managers suddenly seem to be equated by some of the Government's supporters with the cause of the problem. They are the people whom we seem to need fewer of while we undergo a massive organisational change and have to save £20 billion over four years. How that is all to be done with a new set of organisations and with many of the most experienced managers being lost to the NHS slightly eludes me.

The Government turned their face against using existing legislation to reduce the number of PCTs significantly, reconstituting them with more members from local authorities and more clinicians. Some of us have reduced the number of PCTs and SHAs and have substantially reduced the number of ambulance trusts without any primary legislation at all. I am still waiting to hear convincing arguments as to why we could not have done some of that under existing legislation without inflicting much of the organisational change relating to commissioning. I support in principle more clinician involvement in commissioning, but why could that not have been done within the existing legislative framework without this plethora of new entities being created? These new bodies will have to learn how to run the NHS and will incur quite a lot of costs while doing so.

In the current public expenditure climate, we cannot afford to have what I would call youth training scheme approaches to managing the NHS. A lot of new people will have to learn on the job. If we do not introduce into the Bill some constraints on these costs, they will escalate out of control. That is why I do not think that my noble friend's amendment is the perfect solution, although it is an attempt to try to curb costs and stop them running out of control. However, I fear that that is what we shall see when the sets of changes in the Bill are implemented in the real world.

Photo of Lord Fowler

Lord Fowler (Conservative)

My Lords, when the noble Lord said that the amendment was not exactly the perfect solution, that was a brilliant understatement of the position, as I think almost everyone would agree. My concern about the amendment is that it is a prime example of declaratory law. Almost no one would disagree with the aim of reducing bureaucracy. I suspect that almost every Government since 1946 have said that that has been their aim, although I am not sure that it takes the argument very much further. I am delighted that the noble Lord, Lord Hunt, is proposing this. He was a former director of the National Association of Health Authorities and Trusts, which I never felt was in the foreground of reducing bureaucracy in the health service, but that is doubtless a very unworthy allegation to make against him. However, going purely on the basis of the wording of the amendment, I think that it is simply impractical to have a,

"minimum level of management tiers" .

What does "minimum" mean? It is a wonderfully generalised statement.

The noble Lord, Lord Hunt, touched on the fact that there is a slight implication-I know that he distanced himself from it-of there being opposition to management inside the health service. Of course I agree with the noble Lord, Lord Warner, that management is absolutely of the essence, and I am delighted to have received praise from him. When I introduced general managers into the National Health Service following the report of the late Roy Griffiths, who, people may remember, did so much and produced a wonderful and exemplary report, it was in the face of opposition from virtually all the health service unions, including, needless to say, the British Medical Association, and most of the people who have been opposing the current Bill. It was also in the face of fierce opposition from the Labour Party-in the Commons at any rate; perhaps it was different in this House. Therefore, if I can make an entirely partisan point, I am delighted that we all agree on this serious point. More than 1 million people are employed in the NHS and there is a vast budget. To believe that you can get through the reorganisation without skilful and good management is completely ridiculous and we need to underline that. We are not talking about administrators-a phrase that is still used far too often. We are talking about managers, and what the health service needs is good managers.

I hope that the noble Lord, Lord Hunt, regards this as simply a good amendment for debate and that he will withdraw it because of its manifest defects. However, he rather criticised the new organisation going down to the local level regarding health promotion. Obviously, if you go down to the local level, you are going to have a number of local authorities. However, I should have thought that one thing on which both sides of the House would agree is that health promotion should be carried out with a ring-fenced budget and with local delivery. I should have thought that most people would want to see that. It contrasts with what the previous Government did and doubtless with what happened before that. Money which went to health promotion-I remember this happening with HIV/AIDS-simply was not used for that purpose; it was used for something else inside the health authority. I think that we are taking a giant step forward with health promotion and I am passionately in favour of that.

The amendment of the noble Lord, Lord Hunt, is interesting. I obviously agree with all the sentiments behind it, as I think most people do. However, as a piece of law, it is, frankly, defective.

Photo of Lord Harris of Haringey

Lord Harris of Haringey (Labour)

My Lords, it is an enormous pleasure to follow the noble Lord, Lord Fowler. I was particularly taken with his support for the principle of ring-fenced funding, which I trust the Minister will take into account when, a little later, we come to consider local healthwatch organisations.

Earlier today, we had a Question on the initiatives that had been taken in London on stroke care. I did not get an opportunity to pose this question but I was interested in who, in the absence of NHS London driving the process, would have taken the quite difficult decision to reorganise stroke care in London, given that it was opposed by a lot of the local providers and local organisations. This question also came up during the first day on Report when we looked at who would make decisions on reconfiguring services and who would make decisions when services were not adequate or when there were issues of equality of healthcare to be addressed. At one point, the Minister said,

"The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board".-[Hansard, 8/2/12; col. 314.]

Later on, when I probed him on this, he said that "the board"-that is, the NHS Commissioning Board-"will be represented sectorally". I was not quite sure what he meant, but it being Report stage I could not challenge him. He said:

"There will be field forces in all parts of the country ... The majority of its staff will be a field force".-[Hansard, 8/2/12; col. 316.]

I do not know how a majority can be a field force, but there we are. Later on, he said:

"However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there".

When I questioned whether that meant that they would be members, he said:

"It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that".-[Hansard, 8/2/12; col. 340.]

I took that to mean that the NHS Commissioning Board will be sitting at the centre of the National Health Service with its tentacles going out to all parts of the health service. The Minister did not really like that. He said:

"The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier".-[Hansard, 8/2/12; col. 352.]

If the noble Earl does not like the metaphor of tentacles reaching out across the health service, perhaps a better metaphor would be to see the NHS Commissioning Board as some sort of Spanish Inquisition, reaching out to the local clinical commissioning groups and to the health and well-being boards, saying, "We are here to help", which is no doubt what the Spanish Inquisition said in its heyday, and, "We are a resource to promote guidance", which is also what I suspect that the Spanish Inquisition might have said in its heyday. I have to ask whether what we have before us is really a less bureaucratic structure when it has this enormous inquisition-like structure sitting in the middle of it, promoting things at a local level.

We are replacing a fairly simple, basic idea: the Department of Health in the middle with a series of strategic health authorities and below those the PCTs. I believe that the previous Government should have done more to reduce the number of PCTs and I know that my noble friend Lord Warner worked very hard, in his various incarnations, to try to achieve just that. There are too many PCTs, but we did not need this Bill to reduce the number of PCTs. Nor did we need this Bill to give those PCTs clinical leadership. All that was required was to appoint local doctors, local clinicians, to lead those PCTs, and that could have been done from the Department of Health. You did not need this Bill to reduce bureaucracy and to simplify that fairly straightforward structure; you did not need this Bill to give clinical leadership; and you certainly did not need the top-down reorganisation, which I think we were promised we would not have.

Instead we shall have the Department of Health at the centre and the Secretary of State, who will not micromanage but who will have instead the NHS Commissioning Board. No doubt the Secretary of State, like some latter day Henry II will say, "Who will rid me of this rebellious CCG?", or, "Who will require something to happen in a local provider?" and popping up like some-I am mixing my metaphors-Torquemada will be the chief executive of the NHS Commissioning Board, Sir David Nicholson, who will say, "Ah, right, this is something that we will take on; it is not something that you, Secretary of State, should be micromanaging yourself; we, the NHS Commissioning Board will micromanage it through our network of clustered strategic health authorities, through our commissioning support groups and through the 300 CCGs, not forgetting these wonderful bodies, the clinical senates". No doubt this is my failure rather than anyone else's, but I have yet to understand exactly how the clinical senates will operate. I rather suspect that they will be like the Deputy Prime Minister's proposals for a replacement for your Lordships' House: they will be costly, rather powerless and part of this panoply of structures.

Throughout all this, there will be the field forces of the NHS Commissioning Board, not reaching out like tentacles, but being there as a resource to promote guidance and to make things happen. Apparently from this Bill, which allegedly will reduce bureaucracy-this morning I heard a government apologist on the radio saying that the Bill is all about reducing bureaucracy-we will have this network of individuals who will work with, or even sit on, local health and well-being boards, working to encourage and promote guidance and advice and working with clinical commissioning groups. They will be individuals who will, largely, be anonymous, invisible and unaccountable, except upwards to the NHS Commissioning Board. I am not sure that I accept that this will be a less bureaucratic structure but I am quite sure that it will be a much less clear and accountable structure than anything we have had before.

Recently, I was in a meeting with a number of London MPs who were talking about how these new arrangements will work. The question they wanted answered-this is the Henry Kissinger question-was who do we phone to talk to when some issues takes place which is not soluble by an individual clinical commissioning group or is not simply an issue that relates to one provider? Where do we go? Presumably, we ought to go to this anonymous individual, anonymous representative of the NHS Commissioning Board. No one will know who that person is. That person will not be accountable and presumably will not be supposed to talk to Members of Parliament.

The question that I hope the noble Earl will answer about where the Bill is going-I accept the comments of the noble Lord, Lord Fowler, that it may not be perfectly drafted-is: how baroque will the structure be underneath the NHS Commissioning Board? How will that structure of individuals and field forces, which will manipulate what happens in local CCGs and in local health and well-being boards, work? How will a field force be held accountable, visibly and locally to the population who will be affected by the decisions of those influenced by that local field force?

6:30 pm
Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

My Lords, the description by the noble Lord, Lord Hunt, of the NHS Commissioning Board and its satellites shows that you do not get economies of scale, but complexities of scale. This amendment contains a wonderful concept that bureaucrats should curb their deepest urges and I think that should be in all public sector body reorganisation Bills, but how would you enforce it? What sanctions do we have against a person who does not comply and does not curb their bureaucracy? The challenge is the same as with the previous amendment: how do we motivate people to behave in a correct and ethical way, so that patients' and the taxpayers' interests are looked after? I do not think that it can be done by regulation, which is very sad.

Photo of Baroness Tonge

Baroness Tonge (Liberal Democrat)

My Lords, I cannot resist putting my oar in on this Bill. I do so because, many years ago, I was in middle management in the health service. I had to take part in the many reorganisations that happened. I suppose the noble Lord, Lord Fowler, must have been one of the culprits who added to my misery at work. I tried to concentrate on clinical work but people pestered me about filing cabinets, which office they should work in, who would be their line manager and what exactly would they be managing. The noble Lord, Lord Hunt, is quite right to point out that as soon as you start on any sort of reorganisation, the people themselves enlarge it. They need PAs, they need offices and so on. Suddenly, they find they have no one to do the bean counting, so they need a bean counter. The Government give the impression that this is all a delightfully simple, wonderful, altruistic idea that GPs, in consultation with their patients, will commission the care for their patients. I have been a GP as well, and I can tell the House that GPs are not going to go home instead of going to the golf club, take out their laptops and do a bit of commissioning in the evening. It will not work like that. There will have to be an office block full of commissioners-just like PCTs-to do the job for them. What is worse, I understand that private medical companies are anxious to do the commissioning for the clinical commissioning groups. That will mean that taxpayers' money will go directly to private medical companies that will advise GPs on how to commission. I find that absolutely iniquitous and will fight it to the end.

We will see a mushrooming commissioning group with its advisers, whoever they are, in an office block. It will not stop there. The noble Lord, Lord Hunt, mentioned the number of different organisations that had been set up. The noble Lord, Lord Harris, mentioned the connections between them. It was deliciously simple for him to give us the image of tentacles reaching down from the National Commissioning Board to all parts of the health service. The noble Lord, Lord Rea, and I helped send round some information many weeks ago. There was a wonderful diagram of the interconnections between all the new bodies in the health service. It was like Spaghetti Junction. I am a midlander so I know what that junction is like. There is no way that one can navigate the maze of who provides what, and whether it is done nationally, locally, by local authorities or by clinical commissioning groups. It is overly and unnecessarily complicated. As the noble Lord, Lord Harris, said, we could have adapted the existing system to work much more efficiently, which would have been much cheaper and better. No wonder Professor McKee recently wrote an article in the BMJ asking who understood the Health and Social Care Bill, in which he explained that he did not understand it at all.

I will finish with an image that will delight noble Lords who are fed up with me. I went to the dentist this morning. Just as he got me in the reclining position, with the torture instruments looming, he said: "By the way, I know what I have to ask you: can you explain the Health and Social Care Bill?". About 10 minutes or so later I noticed that his eyes had glazed over and he was reaching for the drill, so I shut up and gave in.

Photo of Lord Newton of Braintree

Lord Newton of Braintree (Conservative)

My Lords, I hope that the noble Lord who moved the amendment will accept my apologies. I needed to recuperate after the previous debate so I was not present for the earlier part of this debate. Therefore, it is probably unwise for me to speak. However, I have checked that I will not cross the path of my noble friend Lord Fowler in what I intend to say, so I will risk it.

The noble Lord, Lord Hunt, will also recall-if I dare advert to it-that we had a somewhat jocular conversation in a cafeteria last week. He sought my support for the amendment and I said that I thought he was joking. There is a serious point here. First, we really should not include in primary legislations things such as minimum tiers of management. Secondly-I say this with an eye on my own Front Bench as well-one of the most irritating features of the discussions for any practitioner is the naked populism of assuming that anybody who is not a doctor or clinician contributes nothing to the service. I have been chair of three health trusts, as well as Health Minister many years ago. What do we mean by "bureaucrats"? Do we mean the people who pay the nurses and doctors, and who make sure that the drugs are ordered on time and organised in neat rows? Do we mean the people whose duty is to pay small businesses in time so that they do not go bankrupt? We are all against having a system in which it takes 25 men to change a light bulb and costs about £20 when the rest of us could go out and buy one and put it in the socket. I am not talking about that kind of thing but about the fact that these resources-nurses, doctors, pharmacists and a lot of other people-are precious, and if they are not well organised by people setting up sensible systems, we will not get the best out of them. The constant knocking of management under the heading of "bureaucracy" is deeply counterproductive and I will not go along with it in the course of these debates.

I will make two further points. First, why do so many GPs' practices have practice managers? It is because they recognise that somebody needs to manage the resource to get the best out of it. The managers perform a very valuable role. My second and even more important point, born of my experience in the three health trusts, and perhaps particularly at the Royal Brompton and Harefield, is that it is critical to involve doctors in that management. Therefore, in some ways the problem is much more complicated than has been registered. Trusts where managers sit in one silo and fire bullets or bombs at doctors sitting in another do not work. We need to engage doctors and, where they have an interest in performing a managerial role, train and involve them as managers. That is what we did at the Brompton-which was no great credit to me-and it transformed things.

This is a grossly oversimplified amendment. It does not belong in primary legislation. It rests on a crude, populist misunderstanding of what we mean by bureaucracy and management in the NHS.

6:45 pm
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Earl Howe (Conservative)

My Lords, during the passage of the Bill we have had much discussion about the importance of freeing front-line professionals from needless bureaucracy and ensuring that they are able to focus on patient care-not least when we considered the duties of autonomy. This is one area where the House is in agreement. Certainly one aim of the Bill is to reduce bureaucracy and micromanagement, prevent politicians in Whitehall second-guessing the decisions of doctors and nurses, and streamline the architecture of the NHS.

The noble Lord, Lord Hunt, indulged himself in one of his occasional rhetorical forays, which I enjoyed. However, the amendment is rich coming from him. Perhaps I should remind the House that the previous Government did to management costs what the noble Lord accused us of doing. Since 2002-03, the management costs of PCTs and SHAs have increased by more than £1 billion-a rise of more than 120 per cent. The Bill aims to get a grip on a problem that under the previous Government simply got out of control. The noble Lord will know that my department has confirmed an overall running-cost budget of £492 million. That represents a 50 per cent reduction in costs and staff compared to the current cost of functions that will transfer to the board. At board level, the work previously done by 8,000 people will be done in future by approximately 3,500 full-time equivalent people. That is a major reduction.

The amendment tabled by the noble Lord seeks, first, to introduce a new duty on the Secretary of State to prevent bureaucracy and, secondly, to minimise the layers of management tiers within the Commissioning Board. The noble Lord produced a confection of arguments to bolster his case that bureaucracy in the NHS is increasing rather than diminishing. I can tell the House that the opposite is true. In saying that, I should stress that I am not in any way denigrating NHS managers. I have never done that and I will never do it.

Setting aside the noble Lord's knockabout routine and getting back to earth, I agree with the principle behind this amendment. Noble Lords will already be aware of the autonomy duties, which we have recently amended, in no small part due to the Constitution Committee. Those duties ensure that proper consideration is given to whether any requirements or objectives set by the board or the Secretary of State will place unnecessary burdens on the health service or distract from good quality patient care. In addition, the Bill places duties on the NHS Commissioning Board, CCGs and other bodies to exercise their functions effectively, efficiently and economically. That is in new Section 13D of the National Health Service Act 2006 for the board and new Section 14P for CCGs. Together, I believe that these provisions ensure that the duty to maximise efficiency and minimise bureaucracy is embedded throughout the system. We do not need anything further.

The noble Lord, Lord Warner, asked me a question that I have been asked before in these debates. It concerned why we did not simply reform the PCT model. We chose not to try to reform the PCT model because it would not have delivered the empowered clinical commissioners we want to see and, indeed, the Opposition want to see. This Government supported the principle of practice-based commissioning, but there is one thing to say about practice-based commissioning: it was not working. It did not live up to the ambitions that people had for it. Central to this was clinical commissioners' lack of autonomy. Only by conferring functions directly on clinical commissioners, as this Bill does, can that autonomy and responsibility be properly established.

Subsection (a) of the noble Lord's amendment refers rather bafflingly, as my noble friend Lord Fowler, pointed out, to a minimum level of management tiers. I am not quite sure how that would be interpreted by the courts, but I believe that the noble Lord is drawing attention to the published proposals for the board's organisational structure. In line with the vision we set out in the White Paper, the proposals put forward make clear that the board will be a single nationwide organisation that will work across the country to improve quality and outcomes. However, there are some who have focused on the board's proposal for a maximum of five layers of management, claiming that this represents some sort of increase rather than a reduction in bureaucracy. That is not the case. The structure proposed by the board is based on sound and well recognised principles of effective organisational structure. The proposed organisational structure for the board is designed above all to support it in its overarching role to improve health outcomes. What surely matters is the board's efficiency and effectiveness. In fact, as I have already said, the board will operate with a 50 per cent reduction in running costs in comparison with the current system. I am not attracted to the part of the amendment that requires the Secretary of State to influence the number of management tiers in the NHS Commissioning Board. Apart from being inappropriate, it is unnecessary. The Bill already makes clear that the Secretary of State sets the resource limit for the board and new Section 223E of the 2006 Act allows him to impose a cap on administrative spend. Together these provisions ensure that financial limits are placed on the board, which will necessarily influence the way in which it is structured. However, I believe it would be inappropriate for the Secretary of State to go any further than this in influencing the organisational design of the board. The board is the body best placed to determine how to organise itself in the most effective and efficient way. It is therefore our intention to allow it as much autonomy as possible in determining its own membership, structures and procedures.

All our proposals for modernising the NHS, including the provisions in the Bill, are designed to minimise bureaucracy, micromanagement and unnecessary waste to enable the whole system to focus on what really matters, which is patient outcomes. For example, the outcomes framework will directly link quality improvement and outcomes with commissioning; clinically-led commissioning groups will be judged, through the commissioning outcomes framework, on whether they improve patient outcomes and experience rather than process targets; the NHS Commissioning Board will hold GP commissioners to account for their performance against NICE indicators; and CCGs will hold providers to account for driving up quality improvement using contracts and incentives. It is quality and outcomes that matter and with the safeguards already in place to limit administrative spend throughout the system, I believe that the noble Lord's amendment is unnecessary. I hope that he will feel able to withdraw it.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

I must say that I am really rather disappointed by the noble Earl's response to my constructive amendment. He does not seem to have answered the charge that is being made. First, I think we are all agreed that when we talk about bureaucracy we are not talking about the fine managers that the NHS has to whom we owe so much. This is an argument about the structure, the layers and the cost of a market that the Government wish to bring in to the health service. It is not about managers in the health service.

The fact is that the Secretary of State and his colleagues, including the noble Earl, have continued to intervene in the health service on a daily basis. They have yet to explain how, if this Bill eventually receives Royal Assent, at that point, magically, Ministers are going to step back and simply let this new system continue. I do not believe a word of it. What I believe will happen is that on the one hand you will have this complex structure where the mantra is that it is all arm's length, it is all down to the clinical commissioning groups, the market and the gentle guidance of Sir David Nicholson and his colleagues at the national Commissioning Board, and Ministers can simply step back. It will not happen. What we will have is the system that the Bill enacts, if it is enacted, and Ministers continuing to micromanage. It is inevitable that Secretaries of State are accountable to Parliament, and they will be required by the very process of parliamentary democracy to continue to intervene and to take a close interest in what is happening. That is the charge I put to the Government as to why I believe that this is going to be a very complex situation indeed.

It is always good to debate with the noble Lord, Lord Fowler. Twenty years ago, I enjoyed debating with him issues mainly to do with the funding of the National Health Service. I think the National Association of Health Authorities and Trusts was a very modest organisation. It was very lean and certainly not subject to the strictures of the noble Lord who suggested that it was part of the bloated bureaucracy that I think he was implicating me in. He does not like the idea of declaratory law. That is all very well, but what is Clause 4 but a declaratory statement: "The Secretary of State's duty as to promoting autonomy"? Indeed, the noble Earl, Lord Howe, referred to it in his winding-up speech. I have to say to him that if the duty of autonomy were currently on the statute book, I do not think that he could have brought this legislation in under it because it states that,

"unnecessary burdens are not imposed on any such person".

This whole edifice is going to impose enormous burdens on many such people within the National Health Service.

The noble Lord, Lord Fowler, referred to the Griffiths report-24 pages, it was a remarkable letter which had a long-term impact on the health service. He will recall that we were very strong supporters of the introduction of general management. I am very concerned about the structures that are now being brought in because they may well inhibit the kind of leadership and clinical engagement that we saw as a result of the Roy Griffiths management inquiry.

I have to say to my noble friend Lord Harris that the description of Sir David Nicholson as the chief inquisitor was a little unfair.

7:00 pm
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Lord Hunt of Kings Heath (Labour)

All of us who have worked with Sir David will know that he is a very fine manager and I am very glad that someone of his calibre is in that position.

The worry is that although the national Commissioning Board is going to be one organisation, it will have different layers and at the local level it will be very powerful. If there are, say, 50 local offices of the national Commissioning Board, given the smallness of clinical commissioning groups-the Government have followed us into the trap when we created too many primary care trusts-when it comes to the real issues at local level and the kind of leadership of a system that goes across local authority boundaries and covers populations of around 1 million to 2 million, the clinical commissioning groups are simply not going to be big enough to provide the kind of strategic leadership that is required. Inevitably it is going to fall to the local office of the national Commissioning Board. I worry that there is no accountability because these will be simply the outposts of a national body.

However much one might criticise primary care trusts or strategic health authorities, the fact is they had a majority of non-executive directors on their boards, they met in public and they felt some local accountability. The local offices of the national Commissioning Board will have no such feel because their sole accountability will be to the national Commissioning Board at national level. Alongside that, we see from Mr Lansley's article in the Health Service Journal that he is very keen on the implementation of a market. We know that that will come at a price-in terms of the complexity of contract-making and of legal costs and certainly in the profits that private sector companies will wish to take out of the National Health Service.

This is a very complex structure that the Government are introducing. My amendment is a helpful reminder to the Secretary of State that there should be a very clear presumption that the kind of bureaucratic monstrosity that is now being introduced ought not to be introduced. I wish to test the opinion of the House.

Division on Amendment 18

Contents 169; Not-Contents 231.

Amendment 18 disagreed.

Division number 2

See full list of votes (From The Public Whip)

Clause 8 : The NHS Commissioning Board

Amendment 19

Moved by Lord Hunt of Kings Heath

19: Clause 8, page 4, leave out lines 10 to 21 and insert-

"(2) The Board has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act and subject to any directions issued by the Secretary of State.

(3) The Board must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act.

(3A) The Secretary of State may give a direction to the Board to discharge each of those functions, and in such manner and within such period or periods, as may be specified in the direction."

7:15 pm
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Lord Hunt of Kings Heath (Labour)

My Lords, Amendment 19 comes back to a theme which takes us to the overriding responsibility of the Secretary of State for a comprehensive health service and to the relationship between the Secretary of State and the national Commissioning Board. I do not want to go over the ground that we went over in the previous debate but I want to make just two or three points.

The Minister will recall that in Committee we debated the whole question of the concurrent power being given to the national Commissioning Board in relation to the Secretary of State's responsibilities in Clause 1. Given Clause 1 and our really important debates on it, and the welcome agreement on the first day on Report regarding the way in which an amendment was accepted to make clear that the Secretary of State is accountable to Parliament for NHS provision, I remain concerned as to whether it is right that a body such as the national Commissioning Board should carry such responsibilities as well-that it should have a concurrent responsibility and duty.

Surely, ultimately, the national Commissioning Board is a secondary body as compared to the Secretary of State. The very fact that there is a mandate in which the responsibilities and duties of that board are laid down on a regular basis by the Secretary of State reinforces the proper relationship between an unaccountable body, such as the national Commissioning Board, and an accountable person, such as the Secretary of State. I should be grateful if the Minister would give further reflection as to whether a concurrent power really is the appropriate way in which that relationship should be set out.

Of course, that is associated with the power of intervention by the Secretary of State. It seems to me that in the end, since the Secretary of State is accountable to Parliament for provision and for ensuring a comprehensive service, if he feels that the national Commissioning Board is not doing the right thing or that there is a matter which requires the intervention of the Secretary of State, it is right that that intervention can be taken out without obstruction or legislation. In my view, that would lead to a confusion of role as between the Secretary of State and the national Commissioning Board.

When we discussed this issue in Committee, I asked the Minister what would happen if there was an issue. Let us take, for instance, some of the recent interventions by the Secretary of State. He has expressed concern about the way in which primary care trusts have manipulated waiting lists. Rightfully, in my view, he sought to intervene. How would you do that under the new arrangements if clinical commissioning groups or some individual clinical commissioning groups were not doing what the Secretary of State thought to be appropriate?

From our debate in Committee, I had the impression from the Minister that in those circumstances provision could be made in the mandate set for the board by the Secretary of State. I can see that every so often you can alter the mandate to deal with an issue like that. But sometimes he will need to intervene rapidly rather than have to wait for the process of a mandate to be set. I also suspect that there is a risk that the mandate could become very detailed and prescriptive-in other words, the micromanagement that the Minister is so keen not to see introduced. There will be issues that arise during the year which might not have been envisaged when the mandate was drawn up.

The noble Earl may well say that we will have the intervention powers set out in proposed new Section 13Z1 set out on page 24. My problem with this is that the wording constrains the intervention because it has to be based on a failure to discharge or a failure properly to discharge any of its functions, and the failure is significant. Of course, the intervention none the less is based on what the Secretary of State himself considers, and no doubt he would always be properly advised by his officials and, in extremis, the Government Law Officers. But I can envisage situations in which the NHS Commissioning Board actually rejects the Secretary of State's view and where it would be deemed that the issue is not one that comes under the auspices that could lead to intervention under Section 13Z1. I think that there should be a clear right in the Bill for the Secretary of State to have a power of direction.

In the end the sole accountability of the national Commissioning Board has to be through the Secretary of State and thus to Parliament. The board is not elected; it is an appointed body. There has to be full accountability, and for me, one element of that accountability is that the Minister responsible to Parliament has the right to tell that body what to do. I feel very uncomfortable with a body that is floated off. Okay, we have the mandate, but in the end it is not an accountable body except through the relationship it has with the Secretary of State, so it is right that the Secretary of State should issue direction powers without being fettered as I believe he is in Section 13Z1.

I do not think I need to mention the other two amendments at great length. Amendment 23 merely tries to encourage the noble Earl to say that clinical commissioning groups have the function of safeguarding the comprehensive provision of NHS services. It is very important that within all the autonomy that the Secretary of State wishes to give the clinical commissioning groups, it is made clear that they must, none the less, sign up to the overriding responsibility of anyone involved in the NHS to ensure that comprehensive provision is safeguarded. Amendment 70 is really consequential on Amendment 19. I beg to move.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, Amendments 19 and 70 seek to reintroduce the Secretary of State's powers to direct the health service. I have listened with care to what the noble Lord has said, but I continue to believe that this would be a retrograde step on every count, not least that of transparency. Under the Bill as it stands, the Secretary of State will be able to set objectives and requirements both through the mandate and through "standing rules" regulations under Clause 19, but unlike directions, these would be subject to full scrutiny, and the Bill creates a clear expectation that they would be set only once a year in order to provide certainty for planning. Ministers would also have robust intervention powers in the event of significant failure, as the noble Lord mentioned.

The system we are creating is designed to be predictable, transparent and structured, and will provide stability for the health service. I think that this is a better approach than allowing the Secretary of State to direct the health service whenever he wants, which risks returning us to the unpredictability and opaqueness of the current system. The noble Lord described the Commissioning Board as "unaccountable". I must scotch that myth. The Secretary of State will have wide-ranging powers over the Commissioning Board, most prominently through the mandate and the standing rules, which will enable the board to be held rigorously to account. In addition, the board will have to meet in public, produce a business plan and an annual report, both of which will have to be laid before Parliament. Further, I would remind the noble Lord of Clause 51, which covers the,

"duty to keep health service functions under review".

The process of holding the board to account is not a once-a-year task. In turn, the Commissioning Board will hold CCGs to account for the quality outcomes they achieve and for financial performance-and, again, will have the power to intervene where there is evidence that CCGs are failing or likely to fail to fulfil their functions. If the Commissioning Board fails to hold CCGs to account, the Secretary of State could then direct the board to do so. If the board failed to comply with that instruction, the Secretary of State could either discharge the function himself or make arrangements for another body to do so on his behalf. So it is quite wrong to say that there are no levers available to the Secretary of State.

I turn now to Amendment 23, which emphasises the need for clinical commissioning groups to safeguard,

"the comprehensive provision of NHS services".

Noble Lords will recall that the House has already agreed an amendment to Clause 12 which explicitly requires CCGs to act consistently with the discharge by the Secretary of State and the Board of their duties to promote the comprehensive health service, and with the objectives and requirements in the mandate.

I fully appreciate and support the intentions behind this amendment, and I hope that the discussion we have already had and the amendment we have already discussed to Clause 12 will offer the noble Lord a reassurance that the effect of this amendment is already covered in the Bill. In the light of what I have said, I hope that he will feel able to withdraw the amendment.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, I am grateful to the noble Earl, Lord Howe, particularly for his remarks in relation to Amendment 23. Clearly we are not going to agree about this matter. I do wish that the late Lord Marsh could still be present because he would have enjoyed these debates. I think that he would have reminded us of the traditional relationship between the chairman of the board of a nationalised industry and the Minister responsible to Parliament. Although we have lost those nationalised industries, in one sense the Department of Health is now busily engaged in setting up the kind of structure that in many ways is akin to those industries. That is because the chairman and chief executive of the national Commissioning Board are, in essence, being handed a huge amount of power by the Secretary of State. They are to be given the budget, the mandate and the standing rules, and are to be told to get on with it. If we go back to our experience with the nationalised industries, of course it never worked because there was a continuous tension between the board of a nationalised industry and the Minister which arose from the fact that the Minister was accountable to Parliament for the running of the railways, iron and steel and the coal board.

That is exactly what we are constructing today. We have the myth that simply by having a mandate and standing rules, we can say to the national Commissioning Board, "Get on with it. I as a Minister will no longer intervene unless in extremis", under the circumstances set out in Bill. Life is not like that. Parliament will continue to debate the health service, issues will arise and Ministers will make pronouncements. I do not believe for a minute that the 12 or so pronouncements we have heard from Ministers over the weeks that this Bill has been in your Lordships' House will not be followed by similar pronouncements under the new structure. They will be forced to do so because Parliament will require it. That is the risk and why I believe it is such a complex system. On the one hand there is a structure which is based on an arm's-length relationship, a market, with clinical commissioning based on a mandate, while on the other hand there is still the Secretary of State who will be fully held to account in Parliament. There will be enormous tension and great confusion within the National Health Service. For that reason, there is a strong argument for accepting that, in the end, the Minister is accountable and ought to have a power of direction. Saying that this can be done through a mandate and standing rules is not realistic, and no doubt, if the Bill is enacted, we will see this played out. I do not think anyone should be under the misapprehension about the fact that we are building into these arrangements a very unstable situation. But we have had a good debate, and I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Consideration on Report adjourned until not before 8.31 pm.