Amendment 17

Health and Care Bill - Committee (2nd Day) (Continued) – in the House of Lords at 4:15 pm on 13th January 2022.

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Baroness Morgan of Cotes:

Moved by Baroness Morgan of Cotes

17: After Clause 5, insert the following new Clause—“Duty to consider residents of other parts of UKFor section 13O of the National Health Service Act 2006 substitute—“13O Duty to consider residents of other parts of UK(1) In making a decision about the exercise of its functions, NHS England must have regard to any likely impact of the decision on—(a) the provision of health services to people who reside in Wales, Scotland or Northern Ireland, or(b) services provided in England for the purposes of—(i) the health service in Wales,(ii) the system of health care mentioned in section 2(1)(a) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)), or(iii) the health service established under section 1 of the National Health Service (Scotland) Act 1978. (2) The Secretary of State must publish guidance for NHS England on the discharge of the duty under subsection (1).(3) NHS England must have regard to guidance published under subsection (2).””Member’s explanatory statementThis new Clause places a duty on NHS England to consider the likely impact of their decisions on the residents of Wales, Scotland and Northern Ireland, and to consider the impact of services provided in England on patient care in Wales, Scotland and Northern Ireland.

Photo of Baroness Morgan of Cotes Baroness Morgan of Cotes Conservative

My Lords, in moving my amendment I will speak also to Amendments 205 and 301. I thank my noble friends Lord Moylan and Lady Fraser of Craigmaddie for their support for these amendments.

It is a pleasure to follow two excellent debates. I suspect—although, as the noble Baroness, Lady Hayman, said, we are never quite sure how feisty the debates on these groups will get—that we may spend an even shorter time on this group to enable the Committee to make progress. These amendments are relatively simple, designed to improve transparency, quality and access to healthcare for residents in all parts of the United Kingdom. I thank Ministers for their engagement so far on the amendments. In particular, Amendments 205 and 301 were tabled in the House of Commons by Robin Millar MP and others.

The NHS is a UK institution. It could not have been developed without the combined economic strength of our United Kingdom and has developed from unifying United Kingdom values—you might even say that the NHS embodies them. It includes a promise that, wherever in the United Kingdom you are from and whatever your situation, you are entitled to the same protection and treatment. That is why the first two amendments, Amendments 17 and 205, are about access by patients to a consistent national standard of healthcare.

The unfortunate reality, of course, is that many UK residents do not have equal access to healthcare. Referral-to-treatment waiting times for England, Scotland and Wales are, respectively, 11 days, 32 or 42 days—depending on whether you are talking about in-patients or out-patients in Scotland—and 21.5 days. These headline figures are concerning enough. However, they obscure even more stark differences when treatments are considered separately.

For example, in Wales, waiting times in Swansea for routine shoulder, hip and knee operations before the pandemic averaged, respectively, 128 weeks, 120 weeks and 103 weeks. By comparison, 95% of routine hip replacements and 94% of knee operations in England at that time—of course, we all know how very difficult and challenging the last two years have been for waiting lists in our NHS—were taking place within 18 weeks, a seventh of the time.

Although we, in both this House and the other, often talk about people living in one area or another, or one country or another, patients and their families do not think like that; they do not think about barriers and borders. They simply want the best treatment, and if necessary they are prepared to travel to get it in an appropriate time, particularly where, as many people will know, without that necessary treatment their quality of life is literally endangered.

Amendment 301 is about improving public services, because the key step towards improvement of public services is securing transparency, scrutiny and accountability. Data that is not collected or not comparable limits public access to information about the quality of the public services that those who pay for them are entitled to expect. As a result, if that information is not easily available, elected leaders avoid pressure to improve those public services.

For example, cancer referrals in England and Scotland both have “test within six weeks” targets. However, comparisons are frustrated by different numbers of tests—there are eight tests in Scotland and 15 in England—and different measures for when the period ends. It is until the last test is complete in England, but until the report is written up in Scotland.

England has condition-specific targets for children’s mental health—for example, children with eating disorders must be seen within a week—whereas Scotland has a generalised target of seeing a specialist within 18 weeks, for all conditions.

I have already mentioned orthopaedic surgery, but Scotland and England have that 18-week target for hospital admission for knee and hip replacements. However, those unavailable for treatment due to ill health, work or family commitments are discounted from statistics by Scottish but not English trusts. Patients waiting in Scotland who are suffering chronic pain are discounted from orthopaedic waiting lists unless they choose to opt in for treatment.

This pattern has continued during the pandemic. In one example, an extra 300 care home deaths were identified in Scotland when a media campaign forced the revelation that the original figures had excluded residents who died in ambulances and intensive care units.

Comparable health data helps everyone. Access to data on waiting lists and outcomes helps both healthcare professionals and patients make informed decisions about referrals, treatments and where to live. As we have seen in the last two years, when the quality of data in relation to Covid-19 cases and treatments has improved beyond all recognition, a larger pool of healthcare data drives better public health policy and intelligence on population health.

I thank noble Lords who have expressed an interest in these amendments and Ministers who have engaged so far. I look forward to hearing from the Minister on these important amendments, which are really all about recognising, as I said at the start of my remarks, that the NHS is a UK institution embodying United Kingdom values.

Photo of Baroness Fraser of Craigmaddie Baroness Fraser of Craigmaddie Conservative 4:30 pm, 13th January 2022

My Lords, I am very keen to speak to these amendments. This is the first time I have been able to contribute to this Bill, and I apologise for not being here for Second Reading. I was actually talking to Members of the Scottish Parliament about NICE and SIGN guidelines on the day of Second Reading, so I am delighted to have an opportunity to contribute now. I will speak to Amendments 17, 205 and 301. I thank my noble friend Lady Morgan of Cotes for tabling them; I would have added my name to all three if I had got in quick enough.

We all appreciate that health and care are devolved matters. As my noble friend outlined, the Scottish Administration have taken a very different path on health and care over recent years, which perhaps could be characterised as worrying less about long-term funding and pursuing a more centralised approach. The Bill is therefore predominantly and rightly focused on matters relating to England, but a number of clauses addressed by these amendments relate to devolved areas. I note that the Scottish Government and the Cabinet Secretary for Health in Scotland have yet to grant the Bill legislative consent, believing that some clauses do not reflect the devolution agreement. I beg to put that these amendments are slightly different, in that they do not cover a specific area of delivery within devolved nations.

Amendment 17 simply covers how NHS England should consider the impact of any decisions it might make on patient outcomes in the devolved Administrations. Amendment 205 protects the right of access to treatment and services for all citizens throughout the UK. Amendment 301 seems to be simple common sense, in that it ensures the interoperability of data and collection of comparable healthcare statistics across the UK.

I support these amendments on a number of counts. First, the pandemic has highlighted the huge importance of good data, and close collaboration and working, throughout all health and care services in all parts of the UK—whether that is knowledge gathering, information sharing, vaccine development and rollout, or anything else. The pandemic has demonstrated yet again that we are “better together”. In the realm of healthcare, I support any measure that ensures that we do not work in silos and that barriers are not created in the provision of healthcare that prevent seamless co-operation throughout the UK. This will become ever more important as roles change, technology advances and services develop.

We particularly need to ensure a UK approach to data gathering and healthcare statistics, as set out in Amendment 305. The disparities do not just present a barrier to consumers of healthcare—the public: voters, indeed—and their understanding and ability to evaluate standards of care in their area, as my noble friend Lady Morgan just illustrated. The lack of interoperability of data has real and detrimental consequences for health research, patient care, and ensuring and promoting continuous improvement in healthcare. This is before we even consider inconvenience and inefficiency.

My eldest daughter stands in danger of being caught out by the current unsatisfactory situation. As a student at the University of St Andrews, she had her first two Covid vaccinations in Scotland, recorded on the NHS Scotland app under her CHI number, which is the number that NHS Scotland uses to identify patients. By the time it came to her booster and third injection, she was working as a graduate trainee in London. She duly went along in December and queued at a drop-in centre for her booster. However, the two systems do not match, so nowhere can she now show her proof of having three doses of the vaccine—which might lead to some problems if she wants to go to the rugby, a nightclub or somewhere else where she has to show it; or if she wants to travel. The same situation has arisen for many students or others who regularly cross the borders of the United Kingdom for work, study or family reasons. For these reasons, I commend the Minister to look at initiatives such as patient-held records. After all, we should always remember that, importantly, this is the patient’s own data.

Another challenge we faced at the beginning of the pandemic was when consultants across the four nations sought to identify who should be in the shielding categories. Ensuring that the right people with the right conditions were identified and then notified was made far more challenging by the disparity of health data for different populations. It is bad enough that primary care, secondary care and social care data do not speak to each other, but healthcare is far too important to be allowed to become a political football within the UK.

The Prime Minister has put ensuring the viability and security of the union as one of his top priorities. We have heard the excellent recommendations of my noble friend Lord Dunlop, and many times in this Chamber we have been assured that the recommendations will be enacted by Ministers across government departments, so that decisions taken in Westminster and England that affect the devolved nations will be considered proactively, positively and constructively, and we can build mutual respect. This Bill and this moment are an ideal opportunity to put some of these principles into practice. What could be more positive and constructive than legislating for NHS England to ensure that this body considers the impact of its decisions on patient care in Scotland, Wales and Northern Ireland?

Like Amendment 301, where better data will lead to greater transparency, the new clause proposed by Amendment 17, which aims to ensure that the Secretary of State publishes guidance on these matters, also goes some way to ensuring transparency, which is so important in the building of mutual respect. These amendments would ensure that those with different approaches and political views across the UK cannot simply manipulate the delivery of healthcare and sacrifice patient outcomes on the altar of division.

Turning to Amendment 205, at the moment, if a treatment is available to patients in one of our bigger teaching hospitals—say, in London, Glasgow or Edinburgh—should that treatment not be available to anyone in the UK? I refer to my interests in the register, particularly as the chief executive of Cerebral Palsy Scotland. I recall that, when the procedure for children with cerebral palsy, known as selective dorsal rhizotomy, was first performed in the UK, it was available at first only in Bristol. However, NHS boards in Scotland were able to refer suitable patients on an ad hoc basis, with funding following the patient. This saved families having to raise around £80,000 to travel to the United States for the procedure—but it did not just help the families. The practice was able to ensure that good practice and learning were shared. Now, the procedure, pioneered in Bristol, is available in a number of areas across the UK.

Specialist, life-saving cancer services are another example. I think of a recent case where a patient from Glasgow—a good friend of mine—was able to benefit from treatment in Liverpool, which was his only option for treatment in the UK. However, it is not just for rare procedures or difficult cases that this is applicable. I have often seen families of children with cerebral palsy from Belfast, Carlisle or Northumberland who wish to travel to Glasgow or Edinburgh for relatively routine but condition-specific input instead of having to travel to London. At the moment, as I said, these arrangements are made largely on an ad hoc basis rather than being broadly available. This is what Amendment 205 seeks to correct. The NHS is a great British institution. The clue is in the name: it is a national health service. Therefore, should access not apply right across the UK?

I urge the Government to accept these amendments. I cannot see why they would not, as they will not only ensure better co-ordinated healthcare throughout our United Kingdom; they will ensure that patient care for all our citizens, wherever they live, is given due consideration, and they will clearly illustrate the importance that the UK Government place on the well- being of people right across the UK. I look forward to the response from the Minister.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

I am most grateful to the noble Baroness, Lady Morgan, for tabling these amendments and starting this debate, because these three amendments are very different.

I welcome Amendment 17. Of course we should consider the devolved Administrations because of all the cross-border flows. As we have just heard, people move around the UK. We have a lot of patients from Wales—I should declare my interests; I will not list them all in Hansard, but I have various roles in Wales and have done various things with IT in Wales as well—who routinely go into England from across north Wales; and in south and mid-Wales, they go across to Hereford and Shropshire. So I say to the Government, please make sure that you do always consider the impact.

We need patient-based clinical information that flows between different systems in a timely manner. The noble Baroness, Lady Fraser of Craigmaddie, referred to patient-held records. I hate to disappoint, but we did a quite extensive research project on them and found that there were all kinds of problems with them, one of the main ones being that, when the patient turned up in ED, they inevitably did not have their record with them—or they did not want things written in it in case somebody else in the family saw them, and so on and so on.

Here, I must have a bit of a boast about Wales because we are years ahead of other places, certainly of England. I think Scotland is also ahead of England here. For over six years now we have had a shared care record through the Welsh Clinical Portal. That means that wherever you are in Wales your primary and secondary care data can be instantly accessed through the shared portal. That extends out into voluntary sector providers such as hospices, which have all been provided with secure routers. There are over 30,000 users and this extends also into the ambulance service and the out-of-hours advisory service.

This is not read-only. This has read and write functionality and is extremely secure. There have been very few breaches and there are very clear codes to make sure that people do not inappropriately access a record. On the system there are over 30 million care records, 200 million test results and over 3 million GP summary records. There has been backloading of historic records, including the all-Wales cancer records systems, of which there were—I would have to say—two and a bit because there were two main ones and another one. The GPs have all come on board as well to simplify their systems to bring it all in. That figure of over 3 million GP summary records is important because I remind noble Lords that the population of Wales is just over 3 million. That gives an idea of the completeness of the system.

When a patient is offered treatment available in England but not in Wales there is another issue: cost recovery. This is negotiated on an individual basis. A difficulty arises when the suggestion is that English demands are imposed on the devolved responsibilities through imposed interoperability of data and collection of healthcare statistics across the UK. This undermines the devolution settlement and, sadly, opens the door to politicising the use of official statistics. I will go into that now.

Amendment 301 would specify binding data standards across the UK. However, because health is a devolved responsibility, there is a problem if the Secretary of State is able to make decisions affecting Wales that are outside the reserved areas; decisions can be made in reserved areas, such as over human tissue. It is not acceptable for the Secretary of State to, in effect, grab powers or impose into a devolved area. This can be done on a voluntary basis by UK health performance outcomes observatories, with negotiated arrangements for data sharing on the basis of mutual consent. However, I suggest that it should not be in primary legislation. There is already a concordat on statistics that sets out how the four nations will work together to produce comparable statistics and the code of practice. For statistics, this ensures that their content, timing and method are free from political interference.

The second problem is that data interoperability is much broader than statistics on performance and outcomes. I have already illustrated that there is benefit to patients from data interoperability at the health record level. We have it for the whole of Wales and it works incredibly well. However, we need data interoperability between England and Wales, as has already been outlined, because of the problems for individuals where there is relatively high traffic across the border, covering cross-border referrals specific to patient care. There is already a project to address this with NHSX and all the trusts that border Wales, making good progress on a voluntary co-operation basis, so direction from the Secretary of State is not needed. I gather too that NHSX is a bit behind, and an audit showed that 37 out of 42 ICBs had a shared basic care record in place—the remaining five did not —but there was not adequate interregional connectivity. This connectivity has been an ambition since 1990 so there is a serious lag in making this happen, for a variety of reasons.

Amendment 205 reveals the funding differentials between the four nations, in large part because of the Barnett formula, which works against Wales and does not solve the problem. Wales has a higher burden of illness, mainly because of demography. We have a more elderly population. In terms of equality, we are relatively less prosperous, which drives social determinants, as we have already discussed today, and different behaviours.

An additional factor is that people want to retire to Wales. We welcome them. They come for positive reasons. Having been in England while economically active with relatively little healthcare need, they come to Wales, and they age and need more health and care. I was interested to see that the examples given related to degenerative disease; hips and knees give out as people get older. So, we have a bigger burden, but we do not have the funding, and that is a problem.

The need/demand burden is objectively different, and Barnett has never been a needs-based formula, yet funding determines what can and cannot be provided. Workforce supply depends on UK training quotas, and higher training placements across the UK. Much of this is outside of Wales’s control. To give just one specific example: in critical care, there are shortages in the allied health professions. They are everywhere, but they are worse in Wales—well below the recommended levels for critical care in the UK. Without the money to employ the staff and without the supply of those professionals, we are stuck. We would gladly employ them if we could. The ability to manage patients will not be improved until we make sure that the funding is looked at, addresses need and recognises some of these demographic differences.

I strongly welcome Amendment 17 and say “Please take notice of the devolved nations, even though the populations are smaller”, but there are, I am sorry to say, real problems with Amendments 301 and 205, and I hope the Government will come up with a solution and make sure that we have the health service that Aneurin Bevan wanted to instigate, which was for everybody at the point of need.

Photo of Lord Lansley Lord Lansley Conservative 4:45 pm, 13th January 2022

My Lords, I will intervene briefly, if I may, to support my noble friend in her Amendment 17. I am glad to follow the noble Baroness, Lady Finlay of Llandaff. I will not follow her in discussing the financial settlements between NHS England and NHS Wales; there is a lot to that. But I confess that I rather share her view that it would be a stretch too far for us to seek to legislate in this Bill for matters that are the subject of devolved powers for the parliaments in Wales and Scotland, even though the issues are very interesting and the points that were made, not least by my noble friend Lady Fraser, were perfectly sensible and rational objectives.

I will confine myself to Amendment 17 and say there are good reasons why my noble friend and the Government might adopt it. It seeks to amend what is presently Section 13O of the National Health Service Act. The differences are important. First, if one looks at Section 13O as it stands, it requires the board—NHS England for these purposes—to

“have regard to the likely impact of those decisions on the provision of health services to persons who reside in an area of Wales or Scotland that is close to the border with England.”

It is perfectly reasonable that it should do that, but that is not, as the debate has illustrated, the extent of the issue.

Speaking entirely personally, my late father-in-law was resident in Anglesey. He needed cancer services, so—perfectly sensibly—he went to Clatterbridge in the Wirral. My noble friend Lord Hunt is of course a former Secretary of State for Wales. He will be very familiar with the way in which services between north Wales and Cheshire, which he formerly represented, were provided. That is one straightforward example.

A number of noble Lords will recall the debate when I was Secretary of State about paediatric congenital heart services. In north Wales, they were provided in Liverpool, if I remember correctly. In south Wales, they were provided in Bristol. Those are one or two aspects of a necessary relationship for specialised services between different parts of the United Kingdom. At the border, there is a relationship in day-to-day healthcare services. There is an arrangement for that, and we do not need to interfere with it in this legislation. Shropshire CCG presently runs it on behalf of NHS England.

NHS England and NHS Wales have a statement of values and principles which, as far as I could see on looking it up, was last renewed in 2018. I think it is due for renewal. Basically, it relates to about 21,000 patients from England who are registered with Welsh GPs. About 15,000 patients resident in Wales are registered with English GPs. There is a transfer and a netting off of costs between them of about £6 million, and arrangements exist for referrals between the two countries. So we do not need to interfere with any of that, but the legislation needs to cover in particular this first point: that we are concerned not only with those who live in the areas bordering England and Wales; we are concerned with people in England and in Wales more generally, as well as with people elsewhere in Scotland and Northern Ireland.

The second point is that the present drafting excludes Northern Ireland. Clearly, there should be a role for NHS England. It should be prepared to consider its functions in relation to the provision of services—obviously where required and requested—by the Administration in Northern Ireland.

Finally, the drafting of Amendment 17 rather sensibly says not only that one should consider the impact on people living in Wales, Scotland and Northern Ireland but that one should think about the provision and delivery of additional services for people living in those areas. Amendment 17 makes this clear in 1(b):

“(b) services provided in England for the purposes of” the health services in Wales, Northern Ireland and Scotland. In so far as any of those Administrations were to make a request or, under the concordat that exists, to look for support for services, that is something that NHS England would have the necessary legislative cover to support.

I appreciate drafting, if I may say so, and even at this stage my noble friend has drafted a very good amendment which I am rather hopeful that my noble friend on the Front Bench will also commend.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, in very clearly introducing these amendments, the noble Baroness, Lady Morgan, said that this group might not get feisty. I hope that we can manage to be very civil and calm in tone. None the less, there is a degree of disagreement—to which I am going to contribute.

In concluding her remarks, the noble Baroness said that this is a UK institution, embodying UK values. That seems to deny the reality of devolution. It is entirely possible that at least one of these countries could be an entirely separate nation very soon. That is the practical reality.

Once again, I was struck by the similarity with the climate change debate we had earlier. Sometimes people say, “Well, the scientists will tell us what to do about climate change”. Of course, this cannot be true, because how you get to 1.5 degrees involves a huge number of political choices around the allocation of resources. Similarly with health, many different routes and choices are involved in the effort to produce as healthy as society as we can. Whose health are you talking about? These are all political choices.

The noble Baroness, Lady Fraser, said that this was about data, not delivery. Of course, we know that very often what is delivered is what is measured, and if you choose to measure different things, maybe that is because you are seeking to deliver different things.

Like other speakers, I do not have any particular problem with Amendment 17, but I do with Amendment 205 and, in particular, Amendment 301, which says:

“The Secretary of State may … specify binding data interoperability” and

“Scottish Ministers, Welsh Ministers and Northern Ireland Ministers must arrange for the information”.

I do not speak for the Scottish Government—albeit that they have some Green elements—but I would be surprised if they accepted that kind of wording. I do not wish to redraft on my feet but, if the Minister were looking to redraft, I suspect that something like a direction to the Secretary of State to “work with the Scottish, Welsh and Northern Ireland Ministers to agree” would definitely be preferable.

However, I agree with the noble Baroness, Lady Finlay, who gave us some very detailed and informed comment, that the best way to achieve this is by institutions at an operational level working together to find ways to link things up. If we take the example given by the noble Baroness, Lady Fraser, about her daughter’s situation, we can all be very annoyed that that apparently rather simple situation has not been sorted out. But I do not think drafting law in your Lordships’ Chamber is the way to sort that problem out. That needs to be at a very different level, and it needs to be sorted out as soon as possible.

Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers 5:00 pm, 13th January 2022

My Lords, I support Amendment 17 from the noble Baroness, Lady Morgan. There are of course different waiting-list lengths in the different Administrations, but I take the point made by the noble Baroness, Lady Finlay, about fair funding. She makes a very good point about Wales.

I too have had experiences like those of the daughter of the noble Baroness, Lady Fraser, over my Covid vaccination status, because I live in Wales and the NHS app in Wales did not seem to speak to the other one. But, as the noble Baroness, Lady Bennett, said, that is something that needs sorting out at a different level.

As I said, I live very near the border in Wales, so I am acutely aware from personal experience that the nature, quality and resources of healthcare in England affect the people of the devolved Administrations. I accept what the noble Lord, Lord Lansley, said: it is not just about people near the border—Anglesey is not at all near the border—but in day-to-day working it affects people near the border very frequently.

These are of course devolved matters, but in their practical, day-to-day operation the borders are what people call “leaky”—in other words, people travel both ways for work, school, shopping, leisure and indeed health services. So, particularly in the border areas, it makes a lot of sense to do what the noble Baroness, Lady Finlay, said happens all the time: for GPs to be able to refer patients for a particular service to or from the devolved nations. That is why anything that affects the provision and quality of services in England also affects Welsh and Scottish people in particular. I suspect it is slightly less the case for people in Northern Ireland, although waiting lists there are particularly concerning.

So this is particularly important in relation to the location of specialist hubs, because the border areas of both Wales and Scotland are very rural and the distances and transport difficulties to their own hospitals can be long and difficult—even more so if the patients have to cross the border. We need to ensure that anything done in the Bill makes cross-referral able to continue as easily as it does at the moment.

What discussions have taken place with the devolved Administrations about the Bill? Are there any aspects of it that are still waiting for the agreement of the Governments of Wales, Scotland or Northern Ireland?

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Health)

My Lords, I am very grateful to the noble Baroness, Lady Walmsley, because she has helped me to clarify my thinking about this group of amendments. Basically, they have good intentions and they make good points about the things that need to happen, but I am not absolutely certain they need to be in the Bill. I am also particularly grateful to the noble Baroness, Lady Finlay, for her very well-informed contribution about what actually goes on. There are of course problems in relationships between the devolved nations and NHS England, some of which are down to not being very well organised, some of which are down to arrogance on the part of the bigger ones, and some of which are down to the funding not actually being available—and some of them might be politically motivated too.

Amendment 17 opens some new thinking on the subject of integration, and accepts that devolution has given us different systems for care in Wales, Northern Ireland and Scotland, but seeks to ensure that what is done in one part of the UK—that is, England—does not adversely impact on other parts. The intention to bring collaboration between the nations is, of course, commendable.

I note that Amendment 205 places some requirements such that

“Welsh Ministers, Scottish Ministers and a Northern Ireland department must make regulations providing that the choices available to patients in England by virtue of regulations under section 6E(1A) or (1B) of the National Health Service Act 2006 (inserted by section 69 of this Act) are available to patients for whom they have responsibility.”

Again, we can understand the need for consistency, but I am unclear about how that will play out against the devolved nature of healthcare—so I think the case will have to be made out for that and, indeed, why that would be included in the legislation.

In a similar fashion, Amendment 301 looks to establish interoperability around the use of data across the whole UK. Again, that is a wholly worthwhile intention, and one that I would hope that the various authorities could collectively work on and agree. Once more, what the role is for primary legislation to address this point is not entirely clear, and I welcome the discussion. I look forward to hearing what the Minister has to say.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, I begin by thanking my noble friend Lady Morgan for raising these important matters both via this Committee and by engaging—as I understand she has recently—with my honourable friend the Minister of State for Health. I am also grateful to all other noble Lords who have spoken so powerfully and knowledgably on these issues.

There is no escaping one overarching reality in this policy area, to which the noble Baroness, Lady Thornton, has just alluded. As a Government of the whole United Kingdom, Ministers are responsible for all people of the UK; that is a given. However, while the core principles of the NHS are shared across all parts of the United Kingdom, it is the devolved Governments in Scotland, Wales and Northern Ireland who are responsible for developing their own health policies. Health is largely a devolved matter in the UK, and the commissioning and provision of health services for people in Scotland, Wales or Northern Ireland will continue to be a matter for the devolved Governments.

It will not surprise my noble friend to know that the UK Government continue to respect existing devolution settlements, so our aim is close collaboration with the devolved Administrations to deliver the best outcomes for the people across the four nations. This means that, while we are sympathetic to the spirit of these amendments, I am afraid that we cannot accept them.

I shall address the detailed issues. On Amendment 17, I agree with my noble friend that there is more we can do to align our healthcare for the good of patients across the United Kingdom. We are already exploring several projects to support the NHS to work more closely across the UK, and this includes refreshing the current memoranda of understanding between all four Governments and working with the Office for National Statistics to establish a number of UK-wide datasets. Steps like that will improve transparency and collaboration for the good of all patients across the UK. We do not believe that these steps require primary legislation, but we will keep that question under review. We will also continue to work with NHS England to ensure that a number of groups that it currently hosts, such as the rare diseases advisory group, and their specialised commissioning processes, also meet the relevant needs of the devolved Administrations.

Turning to Amendment 205, we know that choice of healthcare is an important right for patients across the UK. The NHS Constitution for England, for example, enshrines the patient’s right to informed choice. We will be preserving the important right for patients in England to choose their first elective outpatient appointment, GP and GP practice through regulations made under powers provided by the Bill. NHS England works closely with the devolved Governments, including on commissioning and ensuring access to specialised services. Requests for patients to have treatment in other nations are generally to secure continuity of care, to provide care close to patients’ support mechanisms, or because of specialist expertise.

The health services in Scotland, Wales, and Northern Ireland already have the power to contract with any NHS provider in England. As my noble friend Lord Lansley rightly pointed out, they already have in place arrangements for commissioning specialised services from English providers, including cross-border agreements, referral schemes and service-level agreements. Taking further steps, as suggested in this amendment, would place a significant burden on a smaller number of providers, particularly those along borders, with consequences for the smooth running of those health systems. From a legal perspective, such a change would be a significant impingement on a devolved competence and would require the consent of the devolved legislatures. Of course, patients matter most, but such a change would also be unlikely to greatly benefit them, since they are already served by existing arrangements.

Amendment 301 deals with data interoperability. The UK Government are committed to working with officials across the devolved Administrations to explore the benefits that healthcare data can provide while working collaboratively to respect the devolved nature of this work. As in other areas, we are looking at ways to improve collaboration on data matters and address issues with data sharing. There are commitments within the data strategy for health and social care to work across central government and the devolved Administrations to improve appropriate data linkage, thus supporting people’s health care outcomes. This builds on the work of units such as the Joint Biosecurity Centre, and the newly established UK Health Security Agency.

That work will help us to collaborate to solve public health issues, improve disease surveillance and overcome any behavioural or structural obstacles to appropriate data sharing across our respective health and social care systems. In addition, we are speaking to the Office for National Statistics about collecting data on performance and outcomes across the UK. We are pursuing this with it, working in concert with the devolved Administrations. The ONS has assured us that it does not need additional powers to gather such data.

The problems encountered by the daughter of my noble friend Lady Fraser in proving her vaccination status are being actively addressed on both sides of the border. I must concede that the problems are not fully resolved yet, but understand that a Covid status pass from Wales, Scotland or Northern Ireland will be recognised in England and vice versa.

Photo of Lord Bradley Lord Bradley Labour

My Lords, I am sorry to interrupt, but I have been meaning to ask this question for a while. Will that also apply to students who currently study abroad and had their first vaccinations abroad, and who then come back to work in their home country? Will that be connected to the NHS app as well?

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 5:15 pm, 13th January 2022

Rather than give a wrong answer to the Committee, I had better take advice on that and write to the noble Lord, if he will allow it.

I say to the noble Baroness, Lady Walmsley, that if we look at this area in general, we are clear that we must and will continue to work closely with the devolved Administrations to ensure a fully interoperable, UK-wide approach to healthcare, including in relation to the provisions in this Bill.

It is worth adding that the devolved Administrations already have powers in legislation under Section 255 of the Health and Social Care Act 2012 to request NHS Digital to collect and analyse data, so they have that ability if they wish to exercise it. I am very grateful for my noble friend’s interest in this important area. I assure her that we will continue to keep listening to ways in which we can make the NHS work for all four nations of our union. It is vital that we do so and implicit in the collaborative processes we are engaged in. However, for the reasons I have set out, I ask my noble friend to understand why I am unable to accept this amendment.

Photo of Baroness Morgan of Cotes Baroness Morgan of Cotes Conservative

I thank my noble friend very much for his response. Although this has been a short debate, it has been a very good one. It has certainly been very helpful in noble Lords on all sides sharing their experiences and thoughts. It has raised some important issues and some comments on drafting. I am grateful to noble Lords for them. It has also enabled your Lordships to share some practical experiences, not least about the NHS Covid app. It sounds as if it is moving towards a resolution.

I was slightly amused that some of those who said that these issues do not need to be addressed in the Bill are often those who say that other issues need to be addressed in primary legislation so, when we are talking about consistency, we all need to think about that.

I am very grateful to my noble friend for saying that he agrees that more needs to be done and is being done to align healthcare across the United Kingdom and for stressing the importance of collaboration. I will, of course, withdraw this amendment, but the amendments in this group raise important issues and I hope that discussions can continue. As the noble Baroness, Lady Walmsley, I think, said, this is about practical, positive treatment and outcomes for patients, which is what we all want to see regardless of where they live.

Amendment 17 withdrawn.

Clause 6 agreed.

Clause 7: Support and assistance by NHS England