Clause 1 — Secretary of State’s duty to promote comprehensive health service

Oral Answers to Questions — Attorney-General – in the House of Commons at 5:42 pm on 20th March 2012.

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Photo of Simon Burns Simon Burns The Minister of State, Department of Health

The aim of this Bill is to secure a national health service that achieves results that are among the best in the world. Through it, the Government reaffirm their commitment to the values and principles of the NHS: a comprehensive service, available to all, free at the point of use and based on need, not ability to pay. However, we have always been prepared to listen and make changes to improve the Bill, and we have continued to do so in another place. The Lords amendments in this group fall within five main areas.

First, we recognised that concerns had been expressed about the Secretary of State’s accountability for the health service. Although it was never our intention in any way to undermine that responsibility, we have worked with Members of another place and the House of Lords Constitution Committee to agree Lords amendments 2 to 5, 17, 18, 24, 39, 40, 74, 246, 287 and 292. Those amendments put beyond doubt ministerial accountability to Parliament for the health service. In addition, they amend the autonomy duties on the Secretary of State and the NHS Commissioning Board, to make it explicit that the interests of the health service must always take priority. They also amend the intervention powers of the Secretary of State and the board, to clarify that they can intervene if they think a body is significantly failing to exercise its functions consistently with the interests of the health service. Finally, a new provision will make it explicit that the Secretary of State must have regard to the NHS constitution in exercising his functions in relation to the health service.

Although clinical commissioning groups will have autonomy in their individual decisions, Lords amendment 9 clarifies that CCGs must commission services consistently with the discharge by the Secretary of State and the board of their duty to promote a comprehensive health service, and with the objectives and requirements in the board’s mandate.

The Government also tabled amendments in response to the recommendations of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, all of which we have accepted. Amendments 15 and 16 ensure that the requirements set out in the mandate, and any revisions to those requirements, must now be given effect by regulations.

Commissioning will be led by GPs, who know patients best. However, with that responsibility must come accountability. Therefore, further to the amendments made in the House requiring CCGs to have governing bodies, the other place has strengthened requirements in relation to CCGs’ management of conflicts of interest. We recognised how important it is to ensure the highest standards of probity in CCGs and accepted amendments 31, 300, 301 and 302, which were tabled by the noble Baroness Barker, and which require CCGs to make arrangements to ensure that members and employees of CCGs, members of the governing body, and members of their committees and sub-committees, declare their interests in publicly accessible registers.

The amendments also require CCGs to make arrangements for managing conflicts of interest and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes. The board must issue statutory guidance on conflicts of interest, to which CCGs must have regard.

Taken together, those amendments provide certainty that there will be clear and transparent lines of accountability in the reformed NHS. However, I cannot support Opposition amendment (a) to Lords amendment 31. The Bill is clear that CCGs must manage conflicts of interest in a way that secures maximum transparency and probity. In most cases, that would mean that a conflicted individual withdraws from the decision-making process, but that might not always be possible, for instance when a CCG is commissioning for local community-based alternatives to hospital services, and determines that the most effective and appropriate way to secure them is to get them from all local GP providers within its geographic area. In that event, it would not be possible for every GP to withdraw from the decision-making process. We cannot, therefore, agree to a blanket ban.

Photo of Andrew George Andrew George Liberal Democrat, St Ives

Will the Minister clarify something in view of what he has just said about the conflict that all members of the board and the CCG will have with regard to decisions on the provision of new services? Does he share my fear that the structure of CCGs results in bodies that will continue to be conflicted? Does that continuing conflict not undermine that important structure within the health service?

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I appreciate the hon. Gentleman’s intervention, but I am afraid I do not share that view. I hope that what I shall go on to say will help to give him additional reassurance on that.

There will be additional safeguards in the Bill to ensure that those processes are transparent, including the regulations that Monitor will enforce on procurement practices and its accompanying guidance. In addition, the board must publish guidance for CCGs on their duties in relation to the management of conflicts of interest. Of course, the CCGs' commissioning intentions will have been set out in its commissioning plan, which is subject to consultation with both the public and the health and wellbeing boards.

The second area in which the other place has strengthened the Bill relates to the duties placed on commissioners to ensure a patient-focused NHS. It has always been the Government’s intention to put in place reforms that support the simple principle, “No decision about me without me.” To achieve that, commissioners will for the first time have a duty in relation to patient involvement in decisions. The House strengthened those duties following the listening exercise, and they were further improved by amendments 19, 32 and 33 in the other place, to make it explicit that the duty means promoting the involvement of patients in decisions relating to their own care or treatment.

Another core principle of the White Paper was the need to eliminate discrimination and reduce inequalities in care. The Bill will for the first time in the history of the NHS place specific duties on the Secretary of State and commissioners to have regard to the need to reduce health inequalities.

To reinforce that further, the other place agreed amendments 22, 23, 36, 37, 38 and 60. These ensure that the Secretary of State, the board and CCGs will be better held to account for the exercise of these duties through their annual reports, the board’s business plan and, in the case of CCGs, their commissioning plans and annual performance assessment by the board. However, improvements in quality, outcomes, and reduced inequalities will not happen unless we better integrate services for patients. That is why we placed duties on commissioners, again for the first time, to promote integration in new sections 13M and 14Y, and made clear, following the listening exercise, that competition will not take priority over integration.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I met GPs and consultants in Tavistock in west Devon the other day. One of the great concerns that consultants have, particularly in the field of paediatrics, is the integration of children’s services. A great deal of work has gone into that. In dealing with these amendments, what assurance can my right hon. Friend give that the integration of children’s services will be particularly emphasised in these changes?

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I hope that my hon. Friend will be reassured by two points. First, the Bill contains far greater duties and responsibilities for integration over the whole provision of care within the NHS, and that will obviously include children’s services. Secondly and more precisely on the narrow issue that he raised, the children’s health outcomes strategy, published some time ago, will ensure that commissioners provide services to improve integration and that there is greater working together between the NHS, public health bodies and commissioners in securing an improved pathway of care and greater integration.

Lords amendment 320 ensures that the NHS continues to provide funds to local government for investment in community services at the interface between health and social care.

Thirdly, amendments in the other place have placed a greater emphasis on the duties of the Secretary of State and commissioners with regard to system-wide issues, such as education, training and research. Amendment 7 ensures that the Secretary of State will remain responsible for securing an effective system of education and training. Amendments 21, 26, 35 and 42 will place duties on the board and CCGs to have regard to the need to promote education and training, and the Government supported the noble Lord Patel’s amendment to ensure that providers of health services were required to participate in the planning, commissioning and delivery of education and training.

The Government have also listened further to concerns that the strength of the research duties on the Secretary of State, the board and CCGs did not properly reflect the importance of the NHS as a world leader in supporting research. Amendments 6, 20 and 34 have strengthened these to a more direct duty to promote research.

Fourthly, concerns were expressed in the other place about the treatment of charities, other voluntary sector organisations and social enterprises that provide or want to provide NHS services. We are committed to a fair playing field for all providers of NHS services, regardless of their size or organisational form. We see voluntary organisations and social enterprises as key to this vision. For example, they can play a key role in understanding the needs of local communities and delivering tailored services.

Amendment 8 commits the Secretary of State to undertake a thorough and impartial statutory review of the whole of the fair playing field for NHS-funded services. I can confirm that it will cover all types and sizes of provider, including charities, social enterprises, mutuals and smaller providers. It will consider the full range of issues that can act as barriers for providers, including access to and cost of capital, access to appropriate insurance and indemnity cover, taxation and access to the NHS pension fund. The Secretary of State will be required to keep consideration of these issues under review. As my noble Friend Earl Howe set out in another place, during preparation of the report there will be full engagement with all provider types, commissioners and other interested stakeholders to ensure their concerns are looked at.

Finally, I turn to the amendments relating to mental health services. I would like to thank my noble Friend Lord Mackay for his work in developing amendment 1, which inserts the words “physical and mental” into clause 1 in order to promote “parity of esteem” between physical and mental health services. In response to the Royal College of Psychiatrists’ concerns, I would like to offer the reassurance that the definition of “illness” in section 275 of the National Health Service Act 2006 would continue to apply to section 1, meaning, for example, that learning disabilities, mental disorders and physical disabilities would continue to be covered by the comprehensive health service.

Although our view is that the most important work in achieving genuine parity of esteem will be non-legislative—for example, through our recent mental health strategy, “No Health without Mental Health”—we recognise the symbolic significance of including these words in clause 1. Mental health is a priority for this Government, so I commit to considering further the role that the mandate, the NHS and public health outcomes frameworks can play in driving improvements in mental health services. Similarly, we decided not to oppose amendment 54 by the noble Lord Patel of Bradford relating to mental health aftercare services provided under section 117 of the Mental Health Act 1983, and tabled a number of consequential technical amendments.

I am grateful for the scrutiny that the Bill has received in another place. There is no doubt that it has been strengthened and improved as a result. It will help to ensure that the Secretary of State will remain accountable overall for the health service and provide a robust framework for holding commissioners to account. I urge hon. Friends and hon. Members to agree to the Lords amendments in this group, but to reject Opposition amendment (a) to Lords amendment 31.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

There have been 1,000 Government amendments to this disastrous Health and Social Care Bill—374 in the other place alone—and it is unacceptable that elected Members in this House have been given so little time to debate amendments that will affect patients and the public in every constituency in England.

It is essential that we reach the second group of amendments, on parts 3 and 4 of the Bill, which deal with Monitor, foundation trusts and the Government’s plans to raise to 49% the private patient cap in foundation trusts, but I want to start with the Lords amendments to the Secretary of State’s duty to ensure a comprehensive service in the NHS. I will remind hon. Members where this all began. On 10 February last year, my hon. Friend Debbie Abrahams challenged the Secretary of State, in his evidence to the Commons Bill Committee, over why he was removing the Secretary of State’s responsibility to provide a comprehensive service in the NHS. He said:

“I have not... It is in the original language. It is reproduced the same way.”––[Official Report, Health and Social Care Public Bill Committee, 10 February 2011; c. 166, Q402 and 404.]

On 15 February, my hon. Friend Derek Twigg challenged the Minister of State, Department of Health, Mr Burns about the removal of the Secretary of State’s duty to provide comprehensive NHS services. Again, this was categorically denied. The Minister said:

Clause 1 retains the overarching…duty which dates from the original 1946 Act”.––[Official Report, Health and Social Care Public Bill Committee, 15 February 2011; c. 178.]

He also said that any amendments to the clause were “unnecessary”. Today the Government are being forced to eat their words.

For the record, it was the determination of Labour Members in the other place, not Liberal Democrat Members, that forced the Government to place the clauses relating to the Secretary of State’ duties on promoting a comprehensive service and on autonomy within the remit of the Lords Constitution Committee, chaired by the noble Baroness Jay of Paddington. The result of the Committee’s deliberations are the amendments before us today. The amendments do not deliver exactly the same duty as the National Health Service Act 2006, but they are a significant improvement. Pressed on this issue by Labour Members in both Houses and at every stage of the Bill, the Government have been forced to concede.

A similar thing has happened on education and training, which is the subject of Lords amendments 7, 21, 26, 35 and 42.

Photo of John Healey John Healey Labour, Wentworth and Dearne

Before my hon. Friend moves on, will she pay tribute to our Labour colleagues in the Lords, who have worked across the House, but who, by dint of the way the House of Lords works, cannot always claim credit for the results they have achieved by working in that way?

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People) 6:00 pm, 20th March 2012

I absolutely concur with my right hon. Friend. For the record in this House, I pay tribute to our colleagues in the Lords for their achievements and their efforts in securing some of the protections for the NHS that we are debating today.

There was absolutely no mention of education and training in the original Bill, despite the fact that the Bill abolishes strategic health authorities, which play a vital role in education and training—for example, by hosting deaneries. Labour Members raised this issue in the first Commons Committee stage. We also tabled an amendment on Report to place a duty on the Secretary of State to ensure a comprehensive education and training system for all professions in the NHS, which would have included continuing professional development. Labour Members in the other place then tabled amendments to address the issue. I should note, again for the record, that it was Labour and Cross-Bench Lords, not Liberal Democrat Lords, who argued for those important amendments and who forced the Government to introduce substantive new clauses placing duties in respect of education and training on the Secretary of State, the NHS Commissioning Board and clinical commissioning groups.

However, the critical issue that I want to focus on is how to deal with conflicts of interest in clinical commissioning groups. Clinical commissioning groups will be responsible for spending around £65 billion of taxpayers’ money. They will be made up of a majority of GPs—professionals who run businesses that are largely, and in many cases wholly, dependent on the NHS for their income. Clinical commissioning groups will commission NHS services, some of which will be provided by GPs who are members of the group, or—as is increasingly envisaged by the Government—by companies in which GP members may have a financial interest. The public must have confidence that clinical commissioning groups are making decisions based on patients’ and taxpayers’ best interests, not the financial interests of GPs.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I will finish this point.

However, under the Bill, clinical commissioning groups—the newest bodies in the NHS, and with the least experience—will have the weakest corporate governance of any public body in the country. They are required to have only two lay members. However, there has been no reassurance in this House or another place that those members will be independently appointed. The Government have not even given a reassurance that the chairs of clinical commissioning groups will be lay members. The Government have also failed, at every faltering stage of this Bill, to ensure robust protections against actual or perceived conflicts of interest in clinical commissioning groups.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

No, I am going to proceed.

Let me remind hon. Members that the Bill started out without any requirement for GP consortia—as they were then called—even to have a board to govern their work, let alone any measures to deal with potential conflicts of interest. On 3 March last year, in the first Commons Committee stage, Labour Members called for effective corporate governance and robust measures to deal with conflicts of interests in clinical commissioning groups.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I am going to finish this point.

The Minister of State, Paul Burstow, said that all and any changes to those provisions were “unnecessary”, and denied that there was any lack of effective governance. I would remind Liberal Democrat Members that the Minister argued that putting a board in place or dealing with conflicts of interest would mean that clinical commissioning groups would fail to be “liberated”. Those criticisms were among the many issues that were supposed to be dealt with when the Government embarked on their now infamous “pause” in the Bill’s progress last spring, but they were not. The Government were therefore forced to return to the issue in the other place. However, the amendments before us are still weak, incomplete and ineffective.

The Government say that clinical commissioning groups will have to include in their constitutions how they intend to manage conflicts of interest. However, I am afraid the Government are deluded if they think that the national NHS Commissioning Board will be able adequately to scrutinise whether hundreds of clinical commissioning groups are properly implementing the measures in what will be thousands of contracts, particularly when the board has already taken on so many other huge responsibilities for managing the Government’s new system. Giving Monitor powers to scrutinise clinical commissioning groups is inadequate for the same reason. Saying that Monitor can deem a clinical commissioning group’s contract to be ineffective, if it thinks that conflicts of interest have not been dealt with, will in effect mean closing the stable door once the horse has bolted. Indeed, there could be huge problems on the ground, as a provider may have already started delivering services to NHS patients by the time Monitor takes its decision.

Labour’s Front-Bench team in the other place tabled a comprehensive amendment to deal with conflicts of interest in clinical commissioning groups. It would have ensured a code of conduct for how clinical commissioning groups register, manage and report on conflicts of interests among its members and employees, and imposed a duty on CCG members to abide by the code. The amendment would have ensured that no member of a clinical commissioning group could take part in discussion or decisions concerning any provider of services with which that person had a registrable interest, and allowed the Secretary of State to appoint an adjudicator to investigate complaints about any breaches of the code, with a range of financial and other sanctions available, including the ability to suspend or remove a person from the clinical commissioning group. However, the Government rejected that comprehensive amendment, saying that such sanctions were unnecessary.

The Government have agreed to Lords amendment 31, which at least says that there must be a register of interests for a group, along with its governing body, sub-committee and employees, and that the register must be kept up to date, with information updated within 28 days. That change is welcome, but it does not go anywhere near far enough in ensuring that conflicts of interest are robustly dealt with. That is why our amendment (a) to Lords amendment 31 would ensure that members of a clinical commissioning group would not be able to take part in discussions or decisions about services in which they had declared a registered interest, which is the same format as in local government.

Photo of Andrew George Andrew George Liberal Democrat, St Ives

Although we welcome Lords amendment 31, which was tabled by my noble Friend Baroness Barker in another place, the hon. Lady’s amendment (a) proposes to go a stage further. I personally welcome that, but did she notice that the Minister, in justifying the Government’s position that it would not practically be applicable, gave the example of a CCG commissioning from all its membership? Does that not fundamentally undermine the argument that clinical commissioning groups cannot be conflicted per se?

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I am simply arguing in amendment (a) that the same robust mechanisms that exist in local government should apply in this case. The hon. Gentleman will have to have a conversation with his own Ministers about what they have said in response.

The potential for conflicts of interest under the Bill is so great, and the amount of public money being spent by clinical commissioning groups so substantial, that the Government should have put in place far tougher provisions to deal with conflicts of interest. The Deputy Prime Minister has failed to guarantee the integrity of clinical commissioning groups, as he claimed in his joint letter with the noble Baroness Williams to Liberal Democrat Members. The integrity of clinical commissioning groups cannot be guaranteed by having only two lay members who will not even be independently appointed, nor can it be guaranteed through guidance for GPs, which the General Medical Council is currently developing. Indeed, I would argue that the GMC’s role should be to ensure professional integrity in the treatment of individual patients, not with regard to organisational misconduct, which would be a complete change in its current role. Nor can the integrity of clinical commissioning groups be guaranteed by national bodies such as the NHS Commissioning Board and Monitor, which will be too distant, too remote and too busy dealing with the fallout from other aspects of the Government’s Bill to be able effectively to address the potential conflicts of interest that clinical commissioning groups will face every day.

This issue might not have received as much public or media attention as other aspects of the Bill, but it will become significant in future, as patients and taxpayers struggle to determine whether their best interests—not the financial interests of GPs—are at the heart of the NHS. Examples of that have already come to light. In October last year, the Haxby practice in York wrote to its patients to say that a range of minor treatments would no longer be available on the NHS, but that they could be carried out privately at a number of clinics, including one owned by the practice itself. Those treatments included the removal of skin tags, at a cost of £56.30, and the treatment of benign tumours at a charge of £243.20.

Dr Richard Vautrey, of the British Medical Association’s GP committee, has rightly said that

“the direction of travel in NHS policy, particularly combined with the financial situation, does increase the risk of conflicts of interest for GPs which is one of the reasons the BMA is so concerned about the Health and Social Care Bill.”

Similarly, the NHS Confederation and the Royal College of General Practitioners have felt forced to issue guidance to GPs on how they should manage conflicts of interest, because they believe that the arrangements will become more complex under the Government’s plans. The Lords amendments before us are not robust enough to deal with this. It is a real concern for GPs that they will be unable to deal with conflicts of interest. That is what they are saying, and they need to be protected. The Government should support our amendment, because that would enable that to happen.

Photo of Andrew George Andrew George Liberal Democrat, St Ives

I congratulate my noble Friends Baroness Jolly, Baroness Barker, Lord Marks, Baroness Williams, Baroness Tyler and Baroness Northover on putting in a tremendous amount of work during the Bill’s various stages to negotiate and table amendments to advance the arguments that my Liberal Democrat Friends and I have expressed concern about. I have already put on record the fact that, although some of those amendments represent important strides towards making the Bill less bad, the changes still do not satisfy me to the extent that I feel that the Bill should be entitled to go forward from this, the elected House, as a piece of legislation. Unfortunately, that is not an argument that I am going to win, but I wanted to put the point on record.

Lords amendment 31 represents an important step forward, but it will merely provide a sticking plaster in what will be a fundamentally challenging scenario. The clinical commissioning groups represent a crumbling pillar in the edifice of the legislation. The big weakness at the centre of the CCGs is the fact that their members will, collectively and individually, be conflicted in almost all circumstances, and they will be unable to escape from that.

The Minister emphasised that point further when he told the House why he could not accept the amendment tabled by those on the Labour Front Bench. He told us that members of a CCG should not take part in certain discussions and decisions, even though they had declared an interest, because the groups would, on occasion, be commissioning to all their members. In those circumstances, a CCG would be incapable of making a decision because none of its board members or general members could be brought in to help because they would all be conflicted. That demonstrates a fundamental weakness in the legislation. My noble Friend Baroness Barker has tabled an excellently drafted amendment to deal with that problem, but she was working within very limited parameters. The amendment would simply provide a sticking plaster for a crumbling edifice that will be unable to hold up this policy. I have a fundamental concern about the way in which the legislation will work in this regard.

The solution would be to go back to the coalition agreement. I have advanced that argument before. Although no such amendment is before us today, I suggest that we revert to the idea of a much more wide-ranging commissioning body, perhaps based on the infrastructure of the old—or, in some cases, existing—primary care trusts. In so doing, we could get rid of the Government-placed people who come through the Appointments Commission, and instead graft in clinical representatives. The Government are absolutely right to ensure that clinicians play a central role in providing good clinical advice on the decision making and the awarding of contracts. Such a structure would also ensure that the voices of the community, the local authority and patients’ representatives would be heard. Unfortunately, we do not have such a pillar in place, and we are now trying to achieve iterations that, I am sorry to say, will not go far enough in addressing the fact that clinical commissioning groups will be fundamentally, endemically conflicted, and there will be no escape from that.

Photo of Grahame Morris Grahame Morris Labour, Easington 6:15 pm, 20th March 2012

I want to make a few points on Lords amendment 2, which deals with the Secretary of State’s duties. This has been the subject of one of the most fundamental debates during the course of the Bill. The Lords still have grave concerns about whether the Secretary of State does indeed have a duty to

“provide or secure the effective provision” of health services in England. In addition, concern remains over exactly what the Secretary of State will remain accountable to the House for.

In Committee, the Lords agreed not to amend clause 1, or clause 4, in regard to the duty to promote a comprehensive health service and the Health Secretary's accountability to Parliament. Instead, they preferred to engage in negotiations with the Minister with a view to bringing back proposals before the Report stage. The Lords Constitution Committee also proposed amendments in the other place on the issue of ministerial accountability for the NHS. The Committee’s concern was that, even after the months of debate here and in the other place and the amendments that had already been tabled, the Bill still posed an undue risk to maintaining adequate ministerial and legal accountability for the NHS. Given the number of amendments that had been tabled, it was a remarkable achievement still to have such uncertainty.

The wording of amendments remained an issue, and on 2 February 2012, the Government tabled 137 amendments to the Bill covering a range of areas, including changes to clarify the responsibility of the Secretary of State for the health service. There were two key amendments: one sought to ensure that the Secretary of State

“retains ministerial responsibility to Parliament for the provision of the health service in England”.

The other sought to place the duty to promote a comprehensive health service and to exercise functions to secure the provision of services above that of promoting autonomy.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport)

The hon. Member used the term “comprehensive health service”. Does he feel that the changes to the NHS will deliver a comprehensive health service, or does he feel that what we will see is some people being able to access services while others are not? Is that not the sort of health care service that he would be against and to which the people of this country would object?

Photo of Grahame Morris Grahame Morris Labour, Easington

I am grateful for that intervention and I share the hon. Gentleman’s concern that this amendment, which deals with the Secretary of State’s powers, and, indeed, the whole thrust of the Bill, are likely to lead to a fragmented service, when what we all want to see is co-operation and integration. I am concerned about the direction of travel in that respect.

The point about autonomy is relevant, because Lords amendment 2 reiterates that

“The Secretary of State retains ministerial responsibility to Parliament for the provision of” health services. Lords amendments 4 and 17 would further amend clauses 4 and 20 in order to downgrade the duty to promote autonomy even more, through the idea that the Secretary of State must only

“have regard to the desirability of securing” autonomy instead. When it comes to ministerial accountability for the Secretary of State, we have a yearly mandate to the NHS Commissioning Board, which will remove the Secretary of State—and therefore Parliament—from being involved in or interfering in the running of the NHS. In that case, I ask the Minister: what would be the point of Health questions? As private health care interests take over the provision of health services, they will not be subjected to freedom of information requests or other forms of accountability to which NHS providers are subjected.

Photo of Grahame Morris Grahame Morris Labour, Easington

I will in a moment, but I want to pose a few questions first. The Secretary of State clearly cannot answer for private companies that are exempt from FOI requests. He cannot answer for GP commissioning groups, which are essentially independent contractors and private bodies. Surely, it is clear that the Secretary of State is handing over a big chunk of the NHS budget to private GP commissioning groups, cutting himself and Parliament out of the loop. I therefore believe that it is a fantasy to say that the Secretary of State will remain accountable.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

There is almost—no, there is—an air of déjà vu to this part of the hon. Gentleman’s speech, as there always is. We discussed this in Committee, and I am a bit frustrated that he cannot quite get it. The fact is that at the moment there is virtually no transparency and no real accountability as to what a Secretary of State does with regard to the provision of health services. The fact is that the mandate will be published; it can be debated in this House either on a motion from the Government or from the Opposition; there will still be Question Time at which hon. Members will be able to ask questions; there will still be an opportunity for Adjournment debates, urgent questions and statements. There will be accountability.

Photo of Grahame Morris Grahame Morris Labour, Easington

Well, as Aneurin Bevan said, “You give your version of the truth, and I will give mine.” In my assessment, yes, there will certainly be a mandate, but this House’s power to scrutinise and hold

Ministers to account will be severely diminished under the new arrangements. Writing down that the Secretary of State has the duty

“to exercise functions to secure the provision of services” is thus rather perverse—one might even say ridiculous—when the rest of the Bill hands over those duties to other bodies, often private bodies outside the NHS such as the clinical commissioning groups. Indeed, the National Commissioning Board—the world’s biggest quango—will also secure provision through clinical commissioning groups, which will not be done through the Secretary of State. [Interruption.] I think the Minister is being extremely disrespectful, Madam Deputy Speaker, in the way he is gesticulating when I am trying to make my points.

In effect, the Secretary of State’s only duty seems to be to pass over the money or the resource and write one letter a year—this mandate—to the National Commissioning Board. On the issue of the duty to promote a comprehensive health service and secure the provision of services as opposed to any duty to promote autonomy, this surely remains a conundrum, as they are virtually mutually exclusive. How the Secretary of State thought that those two competing principles could sit side by side or that he could balance the two is beyond me. This is the problem with the Bill as a whole. No matter how much tweaking is done to clauses 2, 4 or 20 by these amendments, we cannot escape this dilemma. That brings me back to my key point that this Bill’s driving ideological purpose remains to commercialise and privatise each and every service in the NHS.

Finally, let me return to the definition of autonomy—[Interruption.]—for the information of Conservative Members, who are shouting across the Chamber. According to the dictionary, autonomy means

“the condition of being autonomous; self-government or the right of self-government; independence”.

What we are talking about here is being autonomous or independent of the Secretary of State. My contention is that only central planning can deliver a comprehensive service. Otherwise, we will have postcode lotteries—identified in the risk registers we have discussed, such as the one from the Faculty of Public Health—and unprofitable services being cut back. Once the private sector is too big to control, what then?

Photo of Grahame Morris Grahame Morris Labour, Easington

I have concluded my remarks, so perhaps the Minister can address those points in his summing up.

Photo of Daniel Poulter Daniel Poulter Conservative, Central Suffolk and North Ipswich

I shall make some brief remarks, but I first want to welcome the renewed focus on integrated care, as outlined by the Minister this afternoon. He clearly outlined the importance of mental health services and clarified that the primary duty in commissioning will be to ensure that there is integrated care.

We all know the importance of dealing with the biggest challenge facing the NHS, which is how we are going to look after our ageing population. How are we going to improve the care for the increasing numbers of people living longer, which is a good thing but poses a big financial challenge for the NHS as well as a big human challenge in how to look after them? How are we going to address the challenge of looking after people living at home with diabetes, heart disease and dementia?

This Bill goes a long way towards meeting those challenges, and I believe that the renewed focus on integration is key and vital. It is only by different services and different parts of the NHS working together effectively—with primary care working effectively with hospitals, as well as with social services—that we are going to meet the big financial and human challenge of improving the care of older people. That is why I am reassured—I hope that my Liberal Democrat colleagues will also be reassured—by this renewed focus on integration, which is at the heart of the debate and at the heart of the way in which we will make our NHS meet future challenges.

Let me deal briefly with the Opposition amendment 31, which deals with what they believe is an inherent conflict between people involved in delivering care—health care providers or GPs—and others when it comes to involvement in the clinical commissioning groups. The amendment ignores the fact that, presently, good commissioning involves a partnership with primary care trusts that were set up by Labour when they were in government. GPs who are engaged in the provision of health care in local communities are involved in PCTs and involved in the Government arrangements for PCTs, working in partnership with local managers. So, if it was good enough to have that inherent partnership in the current structures set up by the previous Government, I do not see why, when we all believe that clinical leadership is a good thing in the NHS, a conflict of interest should suddenly be created under the Bill. That does not make sense; it is not intellectually coherent. For that reason, we must oppose the amendment.

We have before us more reassuring amendments to promote integrated care, to focus it on more joined-up thinking between the primary and secondary care sector, and to ensure that we do not have to deal with patients with mental health problems only when they get to the point of crisis. The focus on integrated care will mean that they are better supported in their communities. Opposition amendment 13 is, as I have explained, inconsistent with how they managed the NHS when they were in government.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People) 6:30 pm, 20th March 2012

The fundamental difference is that under the Bill only two lay people will be appointed as members of clinical commissioning groups, and no independence will be involved. Under the old system, lay members of primary care trusts were independently appointed. The degree of independence that provided checks and balances has gone.

Photo of Daniel Poulter Daniel Poulter Conservative, Central Suffolk and North Ipswich

I thank the hon. Lady for her intervention, but I will give way to my right hon. Friend the Minister before I respond to it.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

The hon. Lady may not fully appreciate this, but the regulations refer to a minimum of two lay members. There is nothing to stop a clinical commissioning group from appointing more than two.

Photo of Daniel Poulter Daniel Poulter Conservative, Central Suffolk and North Ipswich

I thank my right hon. Friend for that clarification. The Government are clearly committed to the value that lay members bring to commissioning groups, and, as my right hon. Friend has said, two is the minimum. I hope the hon. Lady will accept that it is very disingenuous to suggest that lay members who are appointed to boards of hospitals or primary care trusts, or indeed to commissioning boards, show a lack of genuine care for patients in the way in which they commission services.

Given that the Opposition have tabled a bad amendment, and given the renewed focus on a commitment to integrated care for the benefit of older patients and people with mental health problems, I believe that we should support the Government this evening.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I support the amendment relating to Monitor and NHS foundation trusts. The Government seek to amend the Bill to allow—[Interruption.]

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I think the hon. Gentleman will find that he is referring to the wrong group of amendments. The group that we are discussing is headed “Secretary of State, NHS Commissioning Board and CCGs”. We will be discussing the amendment to which he referred later, and I presume that for that reason he will now resume his seat.

Photo of Nicky Morgan Nicky Morgan Conservative, Loughborough

I will speak very briefly. Let me begin by pointing out to Liz Kendall, who said that we did not have enough time to consider all the amendments, that if we had not spent an hour and a half discussing the risk register yet again, we would have had more time to discuss the amendments.

I congratulate the Government on accepting Lords amendment 1, which relates to parity of esteem between physical and mental health. As the Minister said, genuine parity cannot be laid down in legislation, and the mental health framework will be very important to the achievement of it. However, research findings published by the Centre for Mental Health, which I mentioned to the Minister during health questions recently, show the link between physical and mental health conditions. As I am sure we all know from our constituency casework, when someone presents with a physical health condition, it may be clear that there is an underlying mental health condition which has been either undiagnosed or untreated, and which is therefore hampering the person’s physical health recovery.

The Minister spoke of the “symbolic significance” of including a reference to mental health. He is right, but I think that on a day when we have seen Her Majesty the Queen address Parliament, we should recognise that there is sometimes a place for symbolism, particularly when it comes to something that is as cherished on the Government Benches as the NHS. I know that the Opposition claim ownership of the NHS, but in fact it is cherished by all of us, and by our constituents.

I also thank the Government for accepting Lords amendments 19, 32 and 33, which concern the duty of commissioners and commissioning groups to provide patient-focused care—the “No decision about me without me” duty. My hon. Friend Dr Poulter rightly spoke of the importance of mental health care in that regard. I have certainly found, when listening to patients in the mental health system, that they want their doctors, consultants and everyone else in the system to ensure that they are involved in their own care. I am glad that the clinical commissioning groups will be given guidance on that, but I do not expect the very best CCGs and GPs to need to follow it. They are likely to know that treatment is more likely to succeed if patients are involved in it.

Having spent 10 weeks on the Public Bill Committee, and having been present during all the debates on the Floor of the House, I am especially pleased to be able to welcome the amendments.

Photo of John Pugh John Pugh Liberal Democrat, Southport

Let me begin by paying tribute to my colleagues in the House of Lords, who have improved the Bill significantly.

I want to raise two issues relating to conflicts of interest. Subsection (1) of the new section proposed in the amendment tabled by Baroness Barker states:

“Each clinical commissioning group must maintain one or more registers of the interests of—

(a) the members of the group,

(b) the members of its governing body,

(c) the members of its committees or sub-committees or of committees or sub-committees of its governing body, and

(d) its employees.”

I looked in vain for a paragraph (e) specifying “parties with which it is contracted for commissioning support”. I think that that is a live issue. There will be commissioning support organisations—some of which will be private institutions, and some of which will be allied with organisations that provide the clinical services that are commissioned—and there may be occasions when those advising the commissioners make recommendations that benefit some parties with which they are contracted. That model, involving the influence of the executive, will be fairly familiar to those who have been members of local authorities. Councillors, like doctors, are often very busy. They rely heavily on expert advice provided by officers, and they generally follow it.

The issue was raised in the House of Lords—I believe that it was raised by Lady Barker—but, when I read the report of that debate, I could not help feeling that it had been glossed over. I should welcome any enlightenment from the Minister on how such a quandary can be dealt with. Clearly it must be dealt with, because otherwise it will create general anxiety about how commissioning will proceed.

The second issue is a bigger one. I think that it is of particular interest to us all, because it affects the general position of the commissioning consortia themselves. There is a view that PCTs are more or less in the same legal boat as GP or clinical commissioning consortia would be. I disagree with what Dr Poulter said about that. The PCT, as a unit, is not built around general practices, which, as we have said several times in this place, are small businesses. It is possible to view a clinical commissioning consortium as an association of undertakings, which creates serious issues as to how it is able to use public money. If it used public money to benefit itself, that would obviously become a big issue immediately.

Photo of John Pugh John Pugh Liberal Democrat, Southport

The Minister says “No”, but I tabled a question recently in which I asked him whether he had taken advice from the European Commission. He told me that he had not. [Interruption.] We are talking about European law—

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. This is not just a conversation between the Government Front Bench and its supporters and the hon. Gentleman. If Members want to intervene to disagree with the hon. Gentleman, they should do so, rather than shouting at him while he is speaking.

Photo of John Pugh John Pugh Liberal Democrat, Southport

The Minister could undoubtedly answer my query and deal with my anxiety. A significant regulatory issue is involved in the provision of regulations that will work for commissioners in the Department of Health, and he knows that that is the case. It is not a question of what we intend to do; it is a question of what those in the European legal system will make of the function and the nature of what we have set up. If they interpret it as an association of undertakings, that is exactly how they will treat it, regardless of what the Bill says or of what the Minister says at the Dispatch Box. This is a matter of concern that has been raised by people who are more knowledgeable about such matters than I am, and it genuinely needs to be addressed.

Lords amendment agreed to.

Lords amendments 2 to 10 and 13 to 30 agreed to, with Commons financial privileges waived in respect of Lords amendments 7 and 21.

Question put, That amendment (a) to Lords amendment 31 be made.

The House divided:

Ayes 233, Noes 313.

Division number 500 Attorney-General — Clause 1 — Secretary of State’s duty to promote comprehensive health service

Aye: 233 MPs

No: 313 MPs

Ayes: A-Z by last name


Nos: A-Z by last name


Question accordingly negatived.

Lords amendment 31 agreed to.

Lords amendments 32 to 42 and 54 to 60 agreed to , with Commons financial privileges waived in respect of Lords amendment 35.

After Clause 59