13J Duty as to promoting integration
( ) The Board must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would—
(a) improve the quality of those services (including the outcomes that are achieved from their provision),
(b) reduce inequalities between persons with respect to their ability to access those services, or
(c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.
( ) The Board must exercise its functions with a view to securing that the provision of health services is integrated with the provision of health-related services or social care services where it considers that this would—
(a) improve the quality of the health services (including the outcomes that are achieved from the provision of those services),
(b) reduce inequalities between persons with respect to their ability to access those services, or
(c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.’.
With this it will be convenient to discuss Government amendments 74 and 117.
I am aware, Dr McCrea, that we have considerable work to progress through in the next four hours, so I shall be as swift as I can.
One of the main themes in the NHS Future Forum report was the need for better collaboration and integration between different care sectors and settings. Although it is acknowledged that there are many examples of integration between health and social care, too often services have been fragmented and have failed to join up for the people who use them. The amendments strengthen and expand the provision in the Bill for clinical commissioning groups, and replace the board’s current duty in relation to integration.
Having listened to the concerns of the Future Forum and others that the existing duties on the board and CCGs are insufficient to promote integrated care centred on the needs of patients, we are responding with these amendments, which reaffirm the Government’s commitment to integration. National Voices said in response to the Government’s announcements on 14 June:
“The Government has listened to patients and charities. National Voices called above all for ‘integration, integration, integration’, meaning that patients should get seamless services and continuous care. The government has highlighted that goal and given duties to secure it.”
The King’s Fund has said:
“the new emphasis on integration…offers the most promising approach to addressing demographic change and supporting the increasing number of people with long-term conditions.”
By inserting new section 13J into the National Health Service Act 2006, the Bill places a duty on the board to exercise its functions with a view to encouraging CCGs to work closely with local authorities in arranging for the provision of services. We recognise that that could be perceived as giving the impression that partnership working is an end in itself, and I therefore seek to amend new section 13J with amendments 73 and 74, which place a duty on the board to promote integration by requiring it to exercise its functions with a view to securing that health services are provided in an integrated way when it considers that that would be beneficial to the people receiving those services.
The new duty is concerned not just with integration between health services or health and social care services, but with the integration of health and health-related services such as housing that might have an effect on the health of individuals but are not health or social care services. An equivalent new duty is being placed on CCGs, and I will come to the relevant amendment in a moment. The amended duty requires the board to exercise its functions with a view to securing that health services, health and social care services, and health and other health-related services are provided in an integrated way if it considers that that would either improve the quality of health services and their outcomes, or reduce inequalities in access to and outcomes from health services.
Integration can be an effective means of tackling health inequalities. People in disadvantaged groups, for example, often experience multiple disadvantages and complex co-morbidities. The new duties to promote integration would cover integration between service types, for example between health and social care, and between different types of health services. Whatever the combination and however the services are integrated, the practical effect should be that services are co-ordinated around the needs of the individual. The duty would apply to the board in the exercise of all its functions, not just its commissioning ones.
The board will be able to promote innovative ways of demonstrating how health services can be provided in a more integrated way, for example by developing tariff currencies for integrated pathways of care, and exploring opportunities to move towards single budgets for health and social care, in line with the Government’s wider proposals on community budgets. Amendment 117 puts the same duty to promote integration on CCGs. Clause 192 already requires CCGs, as members of health and well- being boards, to encourage integrated working between commissioners of NHS, public health and social care services for the benefit of the health and well-being of the local population. Amendment 117 builds on that requirement and takes it significantly further. CCGs could comply with the duty, for example, by choosing to commission services jointly with local authorities. To my knowledge, this is the first time that a Government have proposed in primary legislation a duty requiring NHS commissioning bodies to promote integration, and it demonstrates our strong commitment to integrated services centred on the needs of patients.
It is a pleasure to see you in the Chair today, Dr McCrea. Listening to a debate about a Government amending a Bill that only a few short weeks ago they were defending was a first for me. This morning was the first time in 28 years I have had that pleasure.
The Future Forum rightly pointed out the difficulties with integration in health care, including the difficulties in the national health service now. In its paper, “Choice and Competition Delivering Real Choice”, it stated:
“It is clear the health service now needs to drive integration in a way that has simply never happened to date. In practice, current contracting processes, funding streams and financial pressures can actually discourage integration.”
That is true in my experience of health care. It goes on:
“There needs to be a culture in the service that both encourages innovation and supports collaboration…But there are still too few examples where NHS organisations have worked with each other to provide that integrated care. If commissioners want to commission integrated care they will only succeed in doing this by creating a new market in integrated care services and stopping the current commissioning of episodic services from different NHS organisations.”
We are celebrating the 63rd birthday of the NHS today—I had my piece of cake on the way in. That those words ring true is a bit of a condemnation of our health care system, particularly when we realise that 70% of the expense of the NHS goes on looking after people who have long-term conditions—not only one condition, but two and sometimes many more. We still have a disconnect, particularly between primary and secondary care, so I hope the intention behind the three amendments is to bring that under statute and ensure that the position changes.
I have a question about what the Minister has just said. Members know that on two occasions during the previous Committee sitting, I brought up primary health care services that are not connected, such as dentistry, pharmacy and optometry. The NHS commissioning board has a responsibility to negotiate the national contract, but there is no statutory responsibility to talk to those three services’ organisations. The original new section 13J in clause 19 said that the board must
“exercise its functions with a view to encouraging commissioning consortia to work closely with local authorities in arranging for the provision of services.”
I genuinely thought that the intention behind amendments 74 and 117 was to bring in those wider health care services, as we call them, although they are provided by the independent sector.
Amendment 74 says
“‘health-related services’ means services that may have an effect on the health of individuals but are not health services or social care services”.
I thought the Minister would mention other primary care services provided in the community by other health care professionals, but the only example he used was housing. Housing is normally, although not in all cases, a local authority function—there is social housing and some privately owned housing. Are we talking about the wider health community that is providing services to NHS patients now through primary care extended services, such as smoking cessation and weight loss clinics?
I am very pleased about that and I suspect that pharmacists, dentists and optometrists outside will be happy to hear it as well, because the original Bill caused great concern. I declare an interest as chair of the all-party group on pharmacy. I have an avid interest in public health and what pharmacists are doing up and down England to help people with lifestyle issues and wider problems, such as long-term conditions. I am pleased that the Minister has made that intervention, but a concern from the original Bill still stands.
The national commissioning board will issue quality standards to commissioners and providers about providing the right type of service. Does the Minister believe that that mechanism, under the newly amended clause 19, will be used to ensure that integration in commissioning takes place properly? The Future Forum and many others believe that that has not been very good in the past, as I have mentioned. I would genuinely like to hear him say that the problem will be addressed, and one way or another, I hope that we will see proper integration of services through the amendment. I would like the Minister to say that it will be about the wider national health service family and not only statutory public bodies, such as local authorities and NHS bodies. If we are going to take a comprehensive view on improving health care and the population’s health, it is integral to local commissioning that the health of the public is high on the agenda.
As my right hon. Friend has said, there are some small “Happy Birthday NHS” cakes outside that have been donated by the TUC. Opposition Members will eat them with relish, and I am sure that they will be offered to those on the Government Benches, too, with the proviso that the NHS sees its birthday next year.
I want to say a few words about the duty to promote integration, and I shall repeat a point, as I have done many times today. We argued strongly during the first proceedings that the Government’s original Bill risked setting different parts of the NHS against one another, even though integrating health services both within the NHS and within social care is absolutely vital to improving care for our ageing population and for people with long-term and chronic conditions.
I want to correct the Minister, because he listed a number of organisations that he said welcomed the amendments. I do not think that they did, however. They may have welcomed what the Government said they would do in response to the Future Forum document, but those organisations had not had a chance to read the amendments, and it is important that the Minister is accurate in that regard.
I am still concerned about the duties to promote integration as they are set out in the Government’s amendments. The proposals remain weak. It is unclear why the duties to promote integration relate only to quality and inequalities in access and outcomes. Why not consider promoting integration where we think it might help to deliver more efficient services that would secure better value for money, particularly considering the financial situation of the NHS?
The importance that the Government have put on promoting integration is also interesting, when we look at what appears to have been a leaked document about the design of the NHS commissioning board, which has been made public today. This relates to a point from this morning. As hon. Members will recall, the Minister clearly said that he was unable to answer my question about how much money would be spent on the new NHS commissioning board. He was unable to answer my question about how many staff would be employed, and precisely what all its functions would be. He said that it was too premature in the process. Yet the document, “Designing the NHS Commissioning Board”, which was leaked today, and is described as
“revised version 3—post listening”, lists clearly a range of functions and responsibilities that the commissioning board will take on.
There are two possible reasons why the Minister was unable to answer my questions today. Many are answered in the document, which is post the listening exercise, so not that long ago. Either the Minister did not know that it had been written and he has not read it, or he was aware of it but was not prepared to tell MPs.
Perhaps the Minister will let me finish. First, on the specific clause, there is very little so far about promoting integration. If there is such a strong duty on the commissioning board to promote integration, I have yet to find a requirement for that. Secondly, the document clearly states: that the new commissioning board will employ 3,500 staff. If David Nicholson, the chief executive designate of the NHS commissioning board, knows how many staff he will employ, he will have a good idea how much they will be paid, as well as understanding the board’s different functions.
The document gives a detailed explanation of what the board will do and what its functions will be. It will work on five domains—for example, it will have a finance director—and all are listed in the document. If the assessment is so clear, why could the Minister not answer our questions about what the board will cost and how many staff it will employ? Does he know what is going on in his own Department, or is he simply not prepared to tell MPs, whose job here today is to scrutinise the Government’s huge reorganisation of the NHS?
Perhaps it is my naivety, but I am disappointed that the document has not been made public before, given that it would at least have provided the opportunity for organisations and members of the Committee more effectively to scrutinise the Bill. My hon. Friend has referred to 3,000 or 3,500 staff, but the Minister has referred to an initial phase of a year when it appears that not much will happen. How many people will be employed during that period?
With the greatest respect to my hon. Friend, I do not want to reply on behalf of the Government about their plans. What I can say is that according to the document, the board
“will need to perform a very significant and varied set of tasks to support improvements in outcomes.”
The Minister told us earlier that the cost of the new board will be limited, but that does not fit with a board that has
“a very significant and varied set of tasks”.
Those tasks include:
“Finance, Performance and Operations…Commissioning Development…Patient and public engagement, insight and informatics…Strategy and transformation…Policy and corporate development”.
There is also a chief of staff. All those functions will have separate directorates within the board.
Further to the question asked by my hon. Friend the Member for East Lothian, does the document not also say that 3,500 staff will be employed during the year October 2012 to October 2013, when the board will be in shadow form? The document states clearly that all staff will be employed and all roles will be filled in that year, prompting the question how much will that cost?
My hon. Friend is right. The board will be ready in shadow form, as the Minister has said, from October this year. It beggars belief that the Government do not know how much that will cost, who the staff will be, what their salaries will be and what other functions and support will be required. The document contains all sorts of information about how the board will work locally, but the Minister has so far refused to say whether it will have regional outposts, although we have asked constantly. Now we hear that about two thirds of staff will work out and about in the local area, supporting professional and clinical leadership functions, direct commissioning functions, relationships with clinical commissioning groups and stakeholder relationships.
When the old Committee took evidence from Sir David Nicholson, it was hinted that there might be people on the ground, but the leaked letter says on page 5 that the national commissioning board will
“commission directly around £20 billion of services including specialised commissioning and local primary care services (including holding around 33,000 contracts for primary care services)”.
The policing of that will mean lots of people from the national commissioning board in our local neighbourhoods.
What the Government have is not a matter for the Chair. I have given the hon. Lady quite a bit of leeway to deal with this matter, so I will allow her to continue.
I am grateful to you, Chair, for allowing us to raise the issue. It is important in light of the Minister’s refusal to answer questions this morning that his own Department has clearly got far along the line in thinking through. In conclusion, the draft gives us a much clearer idea of the timetable for setting up the board. Again, we received very little information on that from the Minister. The draft states:
“Summer 2011: Further detail published about the operating model of the Board including its key processes. Arrangements for senior appointments published.”
It is fairly hot at the moment; I imagine that this is the summer, even if it is a British summer. We are in the summer now. Why do we not know the senior appointments and how much those people will be paid?
“Autumn 2011: Further publication setting out proposed structure for the Board…October 2011: Potential start date”.
I feel that we have not had as much information as I would expect from the Minister about the number of staff and the potential costs of the board. If the Department does not know what it will cost, although I am sure that it does—
Is there not another important point here? If the board is to recruit 3,500 people during 2012-13, the year of its shadow inception, presumably those 3,500 people will be recruited from the strategic health authorities and primary care trusts that still exist at that point. Will that not cause chaos?
One reason why I am sure the Prime Minister was unable to answer the question put to him by the Leader of the Opposition last week about whether he could guarantee, after £850 million had already been spent on redundancy payments, that the people made redundant would not be re-employed in the system, is that there are clearly plans to do so. On that point, understanding that we have stretched the focus of this debate—although rightly, in pursuit of effective scrutiny—I finish my comments.
I am glad that the hon. Lady, in her charming and incisive way, has had a little bit of fun, but I say to her that no document has been published and that we do not comment on leaks. As I said to her this morning when we discussed the future of the commissioning board, she has been a little unfair to me, because she referred to something in the document that apparently involved seeking employment for certain people on the commissioning board. If she was listening to me last Thursday, she will remember that when she asked what was happening, I said that there had been an advertisement and that there would be further advertisements shortly.
Let me finish this important point.
This morning, the hon. Lady asked about the timetable for the progress of the commissioning board as a shadow authority and when it will start operating in full. I gave her the dates, because there seemed to be a little confusion on the hon. Lady’s part as to which years it would be. I am sure that she remembers that. The bottom line is that she may have a leaked document. However, the document has not been published, and I do not wish to comment on leaked documents at this point. I shall stick by what I said this morning.
On costs and so on, the full details will be made public in due course, but they will also be included in the impact assessment. As I said this morning, if the House is willing, that will be produced when the Bill passes from this place to the other place.
This really important point runs to the heart of the business that we are about, which is effectively scrutinising the re-committed Bill. The chief executive of the national health service, Sir David Nicholson, was prepared to comment on the matter this morning to the Health Select Committee. It is incredible that information that is freely given to the Select Committee should be withheld from us.
The hon. Gentleman has made frequent contributions to our debates, much to our merriment at times. I congratulate him on that try, but I repeat that no document has been published, and I am not going to comment on leaked documents.
Does the Minister not realise that this is about trust? The Bill is all about trust. Having documents like that being presented to one Committee but not allowing them to be scrutinised by this Committee is outrageous.
I hope that understood the context of the hon. Lady’s intervention, and that she was not suggesting that I am not trustworthy. I think that she was not doing so—[ Interruption. ] That would take things to another level. The Committee has been conducted on trust. I repeat what I said earlier. No document has been published. I do not believe that the document alluded to by the hon. Member for Easington was provided to the Health Select Committee this morning. I am not going to indulge in conversations about a leaked document that I do not have before me.
Although we are not suggesting that the Minister is in any way untrustworthy, the point raised by my hon. Friend the Member for Oldham East and Saddleworth was well made. The document was provided by the Clerk to the Health Committee this morning. It was on the Health Service Journal website earlier this week. It was leaked, and it is therefore in the public domain. The chief executive designate of the NCB saw fit to comment on it. Ministers cannot hide behind the fact that is a so-called leaked document. Others have already commented on it, and people will not trust the Minister and others if they are not prepared to comment on it.
Is he not? I understood that he was a lawyer and had legal training. If not, I am insulting him. I thought that he was a lawyer and I apologise profusely. However, he speaks like one, because he is playing with words. As I understand it, the document that he is talking about has not been published. It is a leak to the Health Service Journal that was put on a website, printed off the website and given to members of the Health Committee. I may have misunderstood the situation, but that is my understanding. The document has not been published and, for that reason, I am not going down the route of commenting on leaks. The hon. Lady can have one more try and then I will not take any more interventions.
The hon. Lady is trying to tempt me by going round in circles. I will spell it out once more in plain English, so that she understands. No document has been published.
Grahame M. Morris rose—
Just sit down, please. No document has been published and I am not going to stand here discussing leaked documents. I did say to the hon. Lady that I will not be giving way anymore. Given that the Chair has generously given a lot of leeway during the debate, I want to bring the discussion back to the substance of the amendment. I think that the right hon. Member for Rother Valley would like an answer to his point about quality standards and integration. I say to him that the integration duty applies to all the board’s functions, including the publication of commissioning guidance, which will be based on National Institute for Health and Clinical Excellence quality standards. I hope that he finds that helpful.
I also want to refer to another point that the right hon. Gentleman made. I reassure him that the board will be able to promote innovative ways of demonstrating how health services can be provided in a more integrated way. As I said in my original comments, that includes, for example, developing tariff currencies for integrated pathways of care and exploring opportunities to move towards single budgets for health and social care in line with the Government’s wider proposals on community budgets. I hope that he finds that of assistance. For those reasons, not withstanding the distraction of an apparent leaked document, I urge my hon. Friends to support the amendments, because they are an important way forward for integration.
Amendment made: 74, in clause 19, page 18, line 3, at end insert—
‘( ) In this section—
“health services” means services provided as part of the health service;
“health-related services” means services that may have an effect on the health of individuals but are not health services or social care services;
“social care services” means services that are provided in pursuance of the social services functions of local authorities (within the meaning of the Local Authority Social Services Act 1970).’.— (Mr Simon Burns.)
“13KA Duty as respects variation in provision of health services
The Board must not exercise its functions for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to—
(a) whether the persons in question are in the public or (as the case may be) private sector, or
(b) some other aspect of their status.’.
12E Secretary of State’s duty as respects variation in provision of health services
‘(1) The Secretary of State must not exercise the functions mentioned in subsection (2) for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to—
(a) whether the persons in question are in the public or (as the case may be) private sector, or
(b) some other aspect of their status.
(2) The functions mentioned in this subsection are the functions of the Secretary of State under—
(a) sections 6E and 13A, and
(b) section 67 of the Health and Social Care Act 2011 (requirements as to procurement, patient choice and competition).”’.
This is an important group of amendments, because the Government have made their commitment not to privatise the national health service absolutely clear. We will safeguard the principle of NHS services being for all those who need them when they need them. That has been and remains our unequivocal position. There is no variation in any shape or form to that commitment.
However, as the NHS Future Forum highlighted, there were concerns that the Bill, as drafted, could lead to some people maintaining that there would be a possible privatisation of NHS services or some sort of dogmatic preference for the private sector. The report recommended that
“the Government should not seek to increase the role of the private sector as an end in itself. Additional safeguards should be brought forward.”
In responding to the report, the Government made clear their intention to outlaw any policy to increase the market share of any particular sector or provider. What matters is the quality of care that a provider offers—free at the point of use to NHS patients—not its ownership model or status.
These amendments put our position beyond doubt. They would prohibit any policy designed with the purpose of varying the market share of any particular sector or provider.
No, not for the moment. The amendments would prevent the commissioning board, Monitor, and in certain circumstances the Secretary of State, from having a deliberate policy aimed at encouraging the growth of the private sector over existing state providers, or vice versa. That would apply to Monitor and the NHS commissioning board in everything they do across all their functions. It would apply to the Secretary of State when setting objectives and requirements for the NHS, whether through the mandate and standing rules for commissioners introduced by clause 16, or through regulations under clause 17, and it would set requirements for procurement, patient choice and competition. In effect, any deliberate attempt to vary the market share of a particular category of provider based on ownership or status would be unlawful.
That does not mean that there will be no competition for NHS services. The Future Forum stated that
“if competition is used effectively and properly regulated, we do not believe it threatens the fundamental principle of an NHS that is universal and free at point of delivery.”
I think that my hon. Friend the Member for Leicester West will come on to the substantive point to which the Minister has just alluded and the fact that there will still be competition—we think destructive competition—in the NHS. I would like to raise a potential unintended consequence of the provision. In future, the Secretary of State will be prohibited from encouraging the growth of the public sector, which seems a curious constraint. Will the Minister confirm that that is what is suggested in the explanatory notes and tell us whether he thinks that such a provision is sensible? It would, for example, stop the expansion of health care to take into account social care or other aspects of the public purse.
If the hon. Gentleman bears with me, I will come back to that point during my comments. I want to repeat the quote that I have just given, because the intervention distracted the flow of the debate. As I have said, the Future Forum stated that
“if competition is used effectively and properly regulated, we do not believe it threatens the fundamental principle of an NHS that is universal and free at point of delivery.”
No I will not; I want to make a bit of progress, if the hon. Gentleman does not mind. As we will discuss when we debate clause 56, promoting competition will not be an end in itself. Competition will be about creating choice and driving up standards for patients, and there will be no hidden agenda concerning privatisation. The board, Monitor and the Secretary of State could still undertake action that has the effect of varying the market share of a particular sector, if carried out for some other reason. For example—this answers the point raised earlier—the board must have the freedom to commission services from the best providers, regardless of what sector they are in. The NHS does not have a monopoly on being able to meet patients’ needs effectively. There are strong examples of non-NHS organisations that provide high-quality care, for example through hospices. There are also examples where the NHS has not delivered high-quality care or has been poor value for money. However, the board could not commission services with the purpose of favouring one particular sector.
No, not yet. Similarly, Monitor could take enforcement action against providers that were in breach of their licence, even if those were of the same type. Although such actions may have the effect of varying market share, that is not their purpose. The amendments make it clear that Monitor, the NHS commissioning board and the Secretary of State should act in a neutral and even-handed way. The Government want the private and voluntary sectors to play their full part in improving quality of care and choice for patients, but we are not in the business of favouring one type over another; and we are absolutely not in the business of privatising the health service. I hope that the Committee will welcome the amendments and the reassurance that they provide.
The amendments are not a safeguard. Although I may be mixing too many metaphors, I think they are a fig leaf—and a confused one at that. The Government are trying to convince patient groups, staff and other professional bodies that they do not have a plan to increase private sector provision in the NHS. Yet, at the same time they want the right wing of their Back Benchers to think that they are still pushing ahead with competition and choice. They are trying to have it both ways, and the amendments do not convince anybody.
The heart of the Bill is that Monitor still exists as an economic regulator, and UK and EU competition law is still being enshrined in the NHS in primary legislation for the first time. We shall have a debate about whether Monitor is promoting competition or stopping anti-competitive behaviour, and whether it should be an economic or a sector regulator. However, the truth is that the heart of the Bill remains the same. The Government now refer to any qualified provider rather than any willing provider. The idea that there would be somebody willing but not qualified is horrific. However, the policy still remains. Amendment 75 says that no one should purposefully try to increase the proportion, which is in direct contrast to what the Prime Minister said when he launched his first attempt at public sector reform, in the long-awaited White Paper. He said this in TheDaily Telegraph:
“We will create a new presumption…that public services should be open to a range of providers competing to offer a better service.”
There will be no presumption about the public sector providing.
The question that I want to raise relates to my understanding of what that means in practical terms. A particular example is the prison health service contract in the north-east of England, worth £56 million, which was awarded to Care UK. Is the assumption in the amendment that contracts such as that—which I understand faces difficulty in delivery—will never come back to the public sector?
Let me finish my response to my hon. Friend, and then I will give way. On the one hand, the Prime Minister tries to convince people that he is pushing ahead with what he calls public sector reform, where everything is opened up to any willing provider and there is no longer a presumption that the state should provide. Yet, somehow with the NHS, that is not going to be the case. Amendment 75 states that
“The Board must not exercise its functions for the purpose of causing a variation.”
It does not prevent that from happening in the first place. The amendment will do nothing. It is a fig leaf—an attempt to convince people that their fears will not be realised. The other parts of the Bill will be much more powerful than this weak amendment in changing the way in which services are provided.
To bring a bit of balance to the debate, national mental health care services for the armed forces are dealt with in my constituency of Stafford. They were previously the responsibility of the Priory Group, which is in the private sector, but the contract has been won by the NHS trust in Stafford. The contract has returned to the NHS, so these things can go both ways.
I hope that the Minister will answer that question. It is not accurate for the Government to say that the amendment creates a level playing field for providers, because that is not what it does. It is important that the Government are accurate in what they say about what they are trying to do. A level playing field, as we discussed earlier, relates to a whole host of other issues, such as whether the private sector contributes towards training, whether the full costs of care are recognised, and whether there is equal access to commissioning bids among all different sectors. Later clauses will have a far greater and stronger influence than this clause on changing the make-up of providers in the NHS. This is an attempt to mislead people about the Government’s wider purpose and it is insufficient.
We are tasked with looking for unintended consequences in particular wordings. I warmed to the hon. Member for Easington, as I normally do, when he said that what we really need to look at is the practical, real-term consequences of the wording under discussion, as opposed to any other sort of wording. It is hard to gauge, because although we are ostensibly amending clause 19, we are also dealing in part with clauses 56 and 110. We will, therefore, probably have a larger and more thorough discussion on the issue when we get to the big debate on Monitor, which is on the horizon and will probably take place on Thursday.
I want to make a few remarks that might be helpful while not stealing the thunder of that debate. The amendments prevent Monitor from arguing for a fixed quantum of public or private provision, which I think most of us would regard—as an a priori principle—as a bad idea. Monitor is fundamentally tasked, as are most of the organisations with which we are dealing, with doing what is best for patients. None of us know which mix of public and private provision would be appropriate to actually do that. Monitor’s primary duty is to look out for patients and be mindful of the benefits of competition and integration, but it cannot take into account in advance any particular view of what would be the right level of public or private provision, particularly if it is going to adjudicate whether or not contracts are fairly handed out. It cannot pre-empt its judgment.
The hon. Gentleman says that words matter, and he is absolutely right. He also says that the amendment is not about determining a fixed quantum of any one sector in the NHS, but is that really what it says? The actual wording in the three amendments is,
“for the purpose of causing a variation in the proportion of services”, which seems to be a different concept. I agree with the hon. Gentleman about never being able to stipulate what the precise quantum of any one provider ought to be, but my worry is that it stops there being any shift from what we have at present.
Opposition Members are saying two different things. The hon. Gentleman has just said it stops any shift. A few minutes ago, the hon. Member for Leicester West said that the shift could take place regardless, and the hon. Member for Easington seemed to be under the misapprehension that it would stop a contract currently in the private sector going back to the public sector if that is what commissioners wanted to happen. If the critique is correct, one hon. Member has to be wrong.
Is not this what we could term the agnostic clause, which simply states that the Government have to be agnostic about the actual ownership of a service when making a decision? They should not be seeking to vary it. The amendment does not say that they cannot make a decision that leads to a variation; it simply says leading to the variation must not be the motive behind making a change.
I think that is the theory behind it. There is a sort of plausible contemporary view that the commissioners and health service should be, as it were, provider agnostic and indifferent. My suspicion is that they will not be indifferent; GP commissioners will tend to have a bias in favour of the public sector. My view is that there probably are good reasons for doing that, which need to be spelt out. One good reason, which no one has alluded to so far, is that if the choice of choosing 100% private sector means that the public sector fails, the public purse bears the cost of that failure, and therefore we cannot be absolutely and completely neutral. Any public provider is a public investment and lives by virtue of the public will, and we need to be mindful of it when we run the NHS. So, absolute provider agnosticism makes little sense. It also makes little practical sense.
There are certain retail outlets—supermarkets and so on—that sometimes use their own people and sometimes use a commissioned service. Safeway sometimes uses its own lorries and sometimes uses Eddie Stobart lorries. When it decides what to do, it has to think what to do with its own lorries at the end of the day, and therefore absolute provider agnosticism is not possible.
A perhaps more critical point is that commissioners in the NHS, unlike any of the private or voluntary providers, have to have a view with regard to long-term sustainability. They have to ask themselves whether a commissioning decision will lead to the long-term sustainability of services needed in their area. If the private or social enterprise is the peg upon which that is hung, we have to bear in mind that the private and the social enterprise are there because they are promoters and supporters, and not necessarily because they have to be there. So the issue about long-term sustainability and the public provider being a public asset makes pure commissioner agnosticism, if I can put it like that, very difficult.
Opposition Members believe that the clinical and financial sustainability and viability of services is crucial, which is why we tabled the amendment we dealt with this morning. I noticed that the hon. Gentleman did not vote against it; he abstained. If he was so concerned, why did he not support that amendment rather than this mess of an amendment? We are not clear what it seeks to achieve.
I am convinced that the commissioners have the flexibility, within the remit of the legislation, to take into account all the factors that I have spelt out without falling foul of Monitor. Again, I do not want to pre-empt the big debate on Monitor, but my fear is that Monitor would prevent commissioners from taking important considerations—apropos sustainability and the failure of a service—into account. What we cannot have, and the reason why we have this particular clause, is a situation in which someone can commission a public service as a worse alternative, as something that is qualitatively worse than an alternative service. None of us could go out there and argue that the public should accept a public service that is second best, simply because it is a public service. That is why I think the clause is phrased as it is.
It is hard to see why public sector provision—if it is, indeed, inspired by public service ethos and unencumbered by any need to make a shareholder profit and if it exists on a level playing field, which is the crucial consideration that the hon. Lady has brought to our attention—should not, in most circumstances and when it chooses to do so, excel in its performance compared with the private sector. The Government are taking especial pains—they should be given credit for that—to level the playing field. I am convinced that they intend and want to do that, and I hope that the legislation will succeed in doing that.
There seems to be a lot of confusion about the exact purpose of the amendments. The greater problem is that the Bill, in terms of introducing competition law, remains unchanged and uninfluenced by the recent pause. Members will remember my interaction with the Secretary of State in the first sitting on the recommitted Bill, when I questioned him about the unaltered clauses 64, 65 and 66, which are the first three clauses that relate to competition. I will not read it all out, but I remind the Minister, who was sat next to him at the time, that his right hon. Friend said:
“In so far as Monitor will have licensing responsibilities, it will be able to exercise ex ante licensing provisions, the purpose of which is to support the NHS. As a consequence, that will make less likely the intervention of any competition provisions, which tend to fragment and distort what would otherwise be the NHS’s approach.”––[Official Report, Health and Social Care Public Bill Committee, 28 June 2011; c. 92, Q191.]
However, the clause that I and that the Secretary of State were referring to remains unaltered. Any merger between NHS trusts or merger between NHS trusts and other bodies—whatever that means—will be referred to the Office of Fair Trading and the Competition Commission. That is what destabilises the national health service. It destabilised it on the first day, and it remains destabilised in that way. Making amendments, which I certainly will not vote against, that suggest that that type of destabilisation could not happen, while those clauses remain in the Bill, is fundamentally contradictory.
I am not a lawyer, but, in response to his comments about mergers, I said to the Secretary of State:
“And not just have the OFT and the Competition Commission”, look at such issues. He replied:
“Exactly, but in so far as that is already the case, the OFT and the Competition Commission can look at such mergers.”
I interrupted with, “Do they?” He replied:
“They could do. They have not. Actually, there is no reason for us to suppose that they are likely to because—”.
I then asked:
“Why put it in the Bill?”—[Official Report, Health and Social Care Public Bill Committee, 28 June 2011; c. 93, Q192-194.]
That question remains today and will remain throughout the passage of the Bill not only through the House of Commons, but through the other place. It potentially contradicts the amendments that I hope that we will make this afternoon.
I hope that the intention of the amendments is what it is said to be. As I have said on many occasions, I am not against the introduction of the independent sector, but the Government need to have a substantial rethink about the Bill and how it is constructed if we are to believe that there is no potential for such matters to be taken over by lawyers, instead of the current system where the Co-operation and Competition Panel looks at mergers. Such matters should be overseen by people who want to see proper mergers between NHS trusts and proper integration in our national health service.
The amendments deal with the board’s and clinical commissioning groups’ duties in relation to public involvement and consultation. The Government amendments are designed to strengthen local arrangements for public involvement and consultation, responding to the recommendations from the NHS Future Forum. I will take the amendments in two sub-groups. The first sub-group includes amendments 76 and 118, which amend the public involvement duty on the NHS commissioning board and CCGs in new sections 13L and 14P of the 2006 Act by removing the word “significant”.
The NHS commissioning board and clinical commissioning groups are currently required under new sections 13L and 14P to make arrangements to secure that the public are involved first, in planning commissioning arrangements; secondly, in developing and considering proposals for changes in commissioning arrangements; and thirdly, in decisions affecting the operation of commissioning arrangements. These sections are modelled closely on the existing duties on primary care trusts and strategic health authorities in section 242 of the National Health Service Act 2006.
As the Bill stands, the board and CCGs would be required to involve the public only in proposals for changes in commissioning arrangements that would have a significant impact on the manner in which the services are delivered…or the range of health services available”.
The rationale for this was to avoid unnecessary or disproportionate burdens on commissioners. However, Future Forum and a number of charities that responded to the listening exercise raised concerns that that could restrict the scope for public consultation on major service changes and create questions about what would count as a significant change. Responding to these concerns, we have introduced the amendments to remove the word “significant” and to bring the duties into line with the current section 242 duty in the 2006 Act.
I hope that those changes reassure Opposition Members that amendment 8 is not required. I understand that the intention behind that amendment is to ensure increased involvement of individuals who are receiving or may receive NHS services in the planning and development of commissioning arrangements. That is a similar amendment to one that we debated during the first Bill Committee proceedings, which the hon. Member for Islington South and Finsbury withdrew. As I said, the drafting of new sections 13L and 14P follow the existing wording in section 242 of the 2006 Act by stating that individuals may be involved
“whether by being consulted or provided with information or in other ways”.
That provides flexibility for commissioners to decide on a proportionate course of action in involving the public, depending on the significance of the proposed service change. It is important that they can exercise that judgment and that is why we tabled amendments 76 and 118.
The Bill also provides a power, in new section 14P(3), for the board to issue statutory guidance to CCGs in relation to this duty, to which they must have regard. That could be used to make clear the importance of proportionality and to provide examples of it. That flexibility is there for a very good reason: to ensure that CCGs can act proportionately in involving patients and service users. I think we would all agree that a 12-week consultation on, for example, changing the time of a surgery by 10 minutes would be wildly disproportionate. I hope that removing the word “significant” from new section 14P to bring the duty fully into line with the current duty in the 2006 Act satisfies the general intention behind amendment 8 and the concern previously expressed by the hon. Member for Islington South and Finsbury that the duty, in being fulfilled,
“may simply result in a leaflet on a desk”.––[Official Report, Health and Social Care Public Bill Committee, 8 March 2011; c. 534.]
Turning to the second sub-group, amendment 119 is an important amendment that responds to the recommendation by Future Forum that the board should place particular emphasis on the plans that prospective CCGs have for involving the public when considering applications for authorisation. It would require CCGs to include in their constitutions a description of the arrangements they have made to fulfil their duties under new section 14P in respect of public involvement and consultation and a statement of the principles that they will follow in implementing those arrangements. The board would need to be satisfied that a prospective CCG’s proposed constitution is appropriate in that respect when considering its application for establishment under new section 14C. We also intend, Opposition Members suggested, in the spirit of helpfulness, in the first Committee proceedings, to amend the provision both for CCGs’ commissioning plans and for their annual assessments.
Amendment 123 will require CCGs to explain in their annual commissioning plans how they propose to discharge their duty under new section 14P to involve and consult the public, in addition to the current requirement that they explain how they propose to discharge their duty under new section 14L to improve the quality of services. The Bill already requires that a CCG’s annual report must explain how it has discharged its duty to involve and consult the public. Amendment 136 will require that, when the board conducts a performance assessment of each CCG in respect of each financial year, under new section 14Z1, it must now also consider how well the CCG has discharged its duties under new section 14P.
Related to those changes, amendment 78 will require the board to explain in its annual business plan how it proposes to discharge its public involvement duty under new section 13L, in addition to explaining how it proposes to discharge its duty to improve quality under new section 13D. Amendment 78 also requires the board to explain in its business plan how it proposes to discharge its financial duties under new sections 223D to 223DB. The amendment brings the board into line with the requirements on the annual commissioning plans of CCGs.
As I have already mentioned, this suite of amendments is designed to strengthen local arrangements for public involvement and consultation, as recommended by the Future Forum. I hope that the Committee welcomes the amendments and that they satisfy the concerns expressed by the hon. Member for Southport, which arise from his role as chair of the all-party group on patient and public involvement in health and social care.
I commend amendments 76, 78, 118, 119, 123 and 136 to the Committee. I am confident that the hon. Members for Islington South and Finsbury and for Leicester West will accept that we have made sufficient provision and will not press amendment 8.
Finally, the Minister has thanked us for tabling all of those amendments during the original Bill Committee. When we said that the requirements on patient and public involvement were not enough, we were ignored and our amendments were rejected. I am glad that, at least on this clause, the Minister has seen the error of his ways.
I have one plea and a series of questions. The plea is that the Minister does not fall into the trap of my esteemed former colleagues at the Department of Health by talking about suites of policies and amendments—language which is incomprehensible to the public and staff.
I have no desire to talk about that now.
I am pleased that the Minister gave an example of a not significant change in service, such a GP surgery proposing to change its opening hours by 10 minutes. He is not usually keen on giving examples; now that he has opened the door, will he answer some other questions?
This is a serious point. The Minister has removed the requirement that GPs need only consult on significant service changes. Does that mean that GPs will have to consult patients and the public if a bay in a hospital ward closes, if a whole hospital ward closes, or if out-patient appointments for dermatology, which have been discussed today, are shifted out of hospitals and into the community? Would a GP service have to consult if it decided to provide a different form of district nursing, swap a well woman clinic or stop running smoking cessation services? A number of people have rightly asked whether GPs might now be required to consult on every single change. To keep it simple, as the Minister likes it to be, will he say whether they have to consult on the closure of a hospital ward?
I am a teeny-weeny bit hurt by the hon. Lady’s comment about my reference to a suite of amendments. I was doing it to be kind to her because I too have Leicester Liz as one of my favourites. She was talking about this over the weekend, so I thought that if I made her feel comfortable by using the terminology of her tweets, she would support the amendment. It just goes to show that there are no thanks in politics, and I did not get any today. Having said that, I am glad that she and her hon. Friends seem to welcome the amendments. Having listened to the Future Forum, I am sure that they will strengthen and improve the Bill.
The hon. Lady has also raised a number of individual examples, ranging from very significant to less significant, but not as insignificant as the example I deliberately picked so as to illustrate the purpose. As the hon. Lady knows, there is guidance on how PCTs should take these decisions and the board will provide similar guidance for clinical commissioning groups in due course. I think that we can guess that on some of the examples that she gave, the answer will be yes. I do not want at this stage, for historical reasons and others, to commit myself on every single example that she gave, but certainly guidance will be provided that will clarify the situation. For those reasons, I hope that hon. Members will accept these amendments.
The Minister says that there are no thanks in politics. Let me encourage him by saying that the day is not over yet.
“The Board must establish and operate systems for collecting and analysing information relating to the safety of the services provided by the health service.”
Subsection (2), which I would amend, says:
“The Board must make information collected by virtue of subsection (1), and any other information obtained by analysing it, available to such persons as the Board considers it appropriate.”
I am, as it were, depriving the board of discretion by simply deleting the words after “available”. New section 13X lists a series of regulations about disclosure of information by the board. The circumstances listed include
“if…the disclosure is necessary or expedient for the purpose of protecting the welfare of any individual”.
I would add:
“the disclosure is necessary or expedient for the purposes of patient safety.”
Patient safety is a paramount consideration for us all. I am chair of the Patients Association all-party group and this is very much on our agenda. It is clear that there is a long history on this subject. In the past, information on risks and clinical safety has been not only not disclosed, but at times covered up. One thinks of the Mid Staffordshire and Bristol cases, and one thinks of the fate of whistleblowers. Over the weekend, The Independent made quite a deal about the fate of whistleblowers, which was not encouraging.
I accept that no service is risk-free and that judgments on safety are sometimes best made by informed opinion, but our concerns have been accentuated by the abolition of the National Patient Safety Agency under clause 274. I understand the argument for that, because the Minister expressed it relatively clearly in our first thrashing out of the Bill. He suggested that the NPSA was simply being brought in-house to allay concerns about conflicts of interest with the national commissioning board, within which it is hosted, and that there would be a Chinese wall between the section of the national commissioning board that deals with reporting patient incidents and safety and the bit that does the commissioning. The general function and objective behind it was to embed safety in NHS culture, and I think we all applaud that. En passant, clause 274 also changes the NHS Redress Act 2006. I served on that legislation, and I am not certain to what it extent it is implemented or in force today. We might want to revisit that territory.
The current NPSA website has a series of protocols about disclosure, freedom of information and transparency and a scheme for publication of data. The agency put a very clear, overt and explicit system in place, which one assumes will be replicated in part within the national commissioning board. The board is also a commissioning body, however, as opposed to a source of useful information on breaches of patient safety. It strikes me that in the process of commissioning and monitoring contracts, the board will acquire genuinely interesting information about the risks of the service, but such information would not necessarily be formally available to whatever branch of the national commissioning board replicates the NPSA, because, as the Minister says, there will be a Chinese wall between the two. That is why I am slightly concerned that the national commissioning board is free to decide on the appropriate person to whom information on patient safety may be disclosed, or rather I will be concerned until the Minister has expanded on that clause.
It may not be service users who have the biggest interest in knowing which of the services that they are using are safe. In some circumstances, the national commissioning board may not want fully to disclose information about the safety of individual services. That may be, first, because of a breach of contractual confidentiality that might occur from time to time, or breaches of contractual confidentiality may be implicated in disclosure. Secondly—as the hon. Member for Leicester West said when we first discussed clause 274—clinical safety issues may hinge on commissioning decisions. A less clinically safe environment might be produced by a commissioning decision, so there may be a conflict of interests of sorts.
Thirdly, to some extent it always weakens the authority of a commissioning body if is completely and utterly overt about clinical safety. I have noticed—this may be a cynical observation—a tendency for clinical commissioning bodies, particularly when they are dealing with reconfigurations, to work out what configurations are suitable and attractive given their overall objectives, and to cite clinical evidence partially in favour of closing whatever facility they wish to close and not giving an even steer. I have certainly noticed that, as an accusation if not as a fact, when reconfigurations occur. There are reasons, therefore, why a national commissioning board might not be as overt and as explicit we would like.
In a very interesting speech, the hon. Gentleman has sparked a thought in my mind that has not occurred to me before. I wonder whether he shares my concern about whistleblowers. Under the Bill, clinical commissioning groups, as they are to be known, will have licence to set staff terms and conditions, and there may be arms of commissioning groups that are in the private sector or at longer arm’s length from the NHS. Is the hon. Gentleman not concerned that there might be less freedom for individuals working in the new architecture to raise concerns? There might even be contractual obligations on them not to do so.
I have mentioned that concern, but the hon. Gentleman has given me cause to reflect. The Secretary of State himself has mentioned that clinical safety is not necessarily dealt with well in the health service. Clinical safety considerations are often muddled up with other issues, such as financial viability, and in many configuration decisions pleas based on clinical safety are often founded in a different sort of consideration. The different considerations get enmeshed, and clarity and transparency are the obvious antidote.
The hon. Gentleman raises a good point. In the previous Parliament, I sat on a Select Committee that considered patient safety and produced a report. On whistleblowing, we thought that there were a number of great weaknesses in the system. On occasion, whistles are not blown, as in the Mid Staffordshire case, on which we took evidence. In the recent atrocious events in a care home, we see a situation in which the whistle was blown but ignored by people who should have known better. The Health Committee in the previous Parliament recommended that we should have a statutory body very much like the one in New Zealand, so that anyone, no matter what their contractual relationship with the health service, and whether they are a patient or not, can go to that body, which can investigate, sometimes anonymously so that the careers of people who want to alert the establishment to patient safety issues are not threatened.
I am sure that the Minister would welcome such a policy proposal.
My question is simpler. How do we establish that all information about clinical safety held by the national commissioning board is properly available to users and other relevant parties, without causing undue alarm and without leaving that decision solely to the discretion of the board? Although there might be a Chinese wall between the two compartments of the board, I would be much relieved to know that the transmission of information through it went both ways. I am certain that if something is reported to the NPSA arm of the national commissioning board, it will be passed to the commissioners, but if the commissioners chance upon something regarding the safety of services they commission, certain interests they have might mean that they do not go for full disclosure. That is my concern. The amendment is a probing one, and I will welcome the Minister’s comments.
As all right hon. and hon. Members will appreciate, patient safety is of the utmost importance and is at the heart of a modernised NHS. The Bill aims to embed patient safety across the whole of the NHS, for example through placing the definition of quality, which includes patient safety, in legislation for the first time. I thank the hon. Member for Southport for raising a number of interesting and valid points, and I hope to reassure him with my comments.
Amendment 228 would require the board to make information it collected on patient safety and its resultant analysis more widely available to such people as it considered appropriate. The hon. Gentleman is absolutely right that information that can inform and enhance patient safety in the NHS should be made available to everyone who would benefit from it. The public are also entitled to know how the NHS is performing on patient safety.
The clause requires the board to make appropriate information available to any person it considers appropriate and to give advice and guidance to the NHS. If the board did not make important information available to people it thought could reasonably benefit, it would be in breach of its duty. For instance, the National Patient Safety Agency currently collects and analyses information on safety incidents in the NHS, using the national reporting and learning system, and provides solutions to safety issues that are identified. It then disseminates alerts or guidance on urgent patient safety issues to the NHS through the central alerting system. Those responsibilities will move to the NHS commissioning board, covering the whole function, from compiling the evidence, using issuing alerts and providing overall national leadership for safety and quality improvement.
Our intention is to bring that function under the responsibility of the commissioning board to create a more direct link between learning from patient safety incidents and reflecting that in how the board exercises its commissioning functions, and, for example, the guidance it will produce for clinical commissioning groups. We believe that that will enhance our efforts to embed a culture of patient safety in the NHS. In addition to NHS bodies, that information is currently also used to develop products for use by non-NHS organisations, the devolved Administrations and international organisations. The ability to share more widely allows the board to make the judgment as to who else could benefit from the information and to recoup the costs of doing so while maintaining protections around confidentiality. However, we would not want to remove the discretion for the board to determine when it would be appropriate to provide such services.
The amendment would also have the unfortunate effect of creating a greater obligation for the board to make available all the information it gathered in relation to patient safety, much of which is sensitive, confidential and identifiable to individual patients. Notwithstanding the protections offered by the Human Rights Act 1998 and by data protection Acts, it remains important to provide some parameters for the board as to whom it could share that information with. That would be difficult to stipulate in legislation, which is why the clause allows the board to use its judgment about what should be made available, and to what audience.
Amendment 229 would provide powers for the board to disclose information under section 13X for the purposes of patient safety. Once again, the hon. Member for Southport makes an important point: the board should not be prevented from disseminating important information that could help prevent a situation in which patient safety is jeopardised. I hope that I can reassure him on that point. Subsection 1(d) goes some way to addressing that, as it allows the board to disclose information when that is necessary to protect an individual’s welfare. There may, of course, be incidences where the board may disclose information on any potential threat to patient safety in order to prevent it from materialising. However, in that case, the disclosure could be covered under subsection 1(f), as being for the purpose of facilitating the exercise of the board’s patient safety functions under section 13M.
It is our intention that the board should be able to disclose information where that would be in the interest of patient safety. However, I am prepared to look again at the clause to see if there is a need for the wording to be made more explicit in that regard. I hope that that reassures the hon. Gentleman and that he will agree to withdraw his amendment.
With this it will be convenient to discuss Government amendments 80 and 120 to 122.
I move to amend Chapter A1, which is to be inserted in Part 2 of the National Health Service Act 2006 by clauses 19 and 20, and Chapter A2, which is to be inserted by clauses 21 and 22, with five minor and technical amendments with a common purpose—to ensure that when a commissioning body, either the NHS commissioning board or a clinical commissioning group, exercises a function jointly or delegates it to another commissioner as allowed by terms of the Act, it does not affect the liability of that commissioner for its statutory functions.
One of the strengths of the proposed new arrangements for commissioning is the way in which they will facilitate collaborative working between different organisations. Individual clinical commissioning groups will be able to join together, with suitable risk-pooling arrangements and sharing of budgets, to commission more effectively low-volume but high-cost treatments. The Bill gives CCGs the flexibility to adopt a lead commissioning model for large providers. Such models will allow effective management of the interests of a larger number of CCGs, not only in the design of services and contracting, but also in any major reconfiguration. The Bill also contains a power for regulations to provide CCGs to exercise particular functions jointly with Welsh local health boards in cross-border areas. In those instances, the regulations may provide for any such functions to be exercised by a joint committee of the NHS commissioning board and the CCG.
Yes, I am saying that. I hope that is helpful to the hon. Lady.
Similarly, the NHS commissioning board may exercise functions jointly with, or delegate its exercise to, special health authorities, CCGs or other prescribed bodies to ensure that the right arrangements are in place at the right times for commissioning the services for which it has responsibility, and ensuring that it exercises appropriate oversight of the NHS. Among the commissioning board’s responsibilities, it must ensure that it has systems for collecting and analysing information relating to the safety of services, which it might delegate to an individual or another NHS body, which allows it to exercise the right expertise and capacities.
The amendments will ensure that in all such forms of collaboration, joint working and delegation of function, the liability of the board or CCG remains unchanged. Functions and activities might be delegated, but the liability—the statutory commissioning responsibility that is placed on both board and the CCGs—cannot be delegated or transferred to another body or individual. That safeguard is necessary, not least to preserve confidence in the NHS among patients and professionals who have voiced concerns and misconceptions that general practice-led commissioning consortia might outsource their commissioning functions and, effectively, abdicate their responsibility to patients. That is clearly not so, and it was never the policy intention. However, the amendments establish in the Bill the principle that responsibility for statutory functions cannot be transferred and remains vested in the commissioning organisation.
This is an important group of amendments. When the original Bill was in Committee, the Opposition raised, several times, real concerns about GP consortia, as they were then called, delegating their essential commissioning functions to the private sector. The Government denied that that would be the case; they denied that the Bill needed changing; and now, once again, they have seen the error of their ways. I am slightly disappointed that they did not thank us for our foresight and the work that we put in last time.
Before the hon. Lady claims too much credit, I drew attention to a few words she has said when I concluded my remarks. To paraphrase, she said that it was never the intention to make the change, but that the Opposition thought it was responsible to put it in the Bill to put an end to misrepresentations and misconceptions.
The only people who have got themselves into trouble over the Bill are the Government. They got the wrong policy, and it is not just that they failed to communicate it. Their policies were not misrepresented; when people understood the Bill they saw what the Government were trying to do. [ Interruption. ] As my hon. Friend the Member for Islington South and Finsbury says, they were rumbled.
I am looking forward to getting the Minister’s letter, which I hope will come later today, or tomorrow. It would be helpful to have it because, as I said last Thursday, we have seen reports that primary care trusts are already delegating responsibility for commissioning—including prescribing and out-patients appointments—to private sector organisations. I am concerned about what safeguards are in place.
I know that my hon. Friend will forgive me if I anticipate what she was about to say next. Is it not the case that what the Minister just said—and our understanding of the amendment—is that all the amendment does is make clear that the legal liability still rests with the commissioning group? In operational terms it may still delegate all of the commissioning functions to a private company at arm’s length. It may pass off whatever it likes—that is cleared by the Bill—but ultimately it will be responsible.
At this stage I do not need the Minister’s help. He can reply later. If he thinks that what I have said is wrong he will be able to do that when I have finished making my comments. I think that people are still concerned about what checks will be in place if whole commissioning functions are outsourced. They are concerned about how bodies will be held to account for those decisions by patients and the public. I am sure that Members of the House will want to know how they will know when a whole set of commissioning functions have been delegated or outsourced. Crucially, how will we assess the impact on patient care, which is what all of this is about?
I think that the Government will spin this as a major change in the legislation, as on so many occasions before, but Opposition Members will not be convinced. The Government might try to say to the members of the Future Forum that they have done so; we have the great joy and pleasure of actually reading and scrutinising the amendments, and seeing that they do not provide the level of protection that many in the Future Forum think the Government have committed to providing.
The hon. Lady draws a distinction between the actual commissioning—the decision-making process itself—and activities preparatory to commissioning. I assume that she is not saying that commissioning consortia cannot use the private sector to do anything, so she therefore acknowledges that they can do something. At what point would the hon. Lady draw the line and say, “These are the things with which the private sector cannot be involved, or which cannot be outsourced”? It is not at all clear where the line can be drawn if the commissioning itself will be done by a public body.
I think that people will be very concerned if whole sections of commissioning can be outsourced to the private sector. That was the concern raised by the Future Forum. The point that I am making in scrutinising the Bill is that, in the Government’s response to the Future Forum, they convinced people that that would not be allowed to happen. The amendment does not prevent it from happening, which is the impression that the Government have given. It does not match up to what was said and many members of the Future Forum and the wider public will be concerned.
I rise to suggest that the hon. Member for Southport has misunderstood what we are saying. We are saying that the amendment will not change proposed new subsection (7), which states:
“The Board may arrange for any other person (including another NHS body) to exercise any of the Board’s functions under this section”, including its principal function of commissioning. All it says is that even if the board hands off any of its most important functions to a third party, the commissioning group will ultimately retain legal liability. I would have thought that that was a statement of fact. The analogy that I would draw is that if a bank decides to outsource to the other side of the world responsibility for providing advice from its call centre, the bank is still responsible for the advice given, but that does not mean that the recipient of the advice will be happy with the service received.
My hon. Friend puts it extremely well. My point is that the Government have given the strong impression since the listening exercise that that would not happen. They have committed to ensuring that services, and public functions such as commissioning services, are not privatised. The amendment will not prevent that; it only says that ultimately, commissioning groups will retain legal liability. That is not what the Government suggested they would do, and the Opposition will certainly be working hard to ensure that professional bodies, patients’ organisations and others know that the amendment does not change the current situation.
I wish to comment briefly on that, as the same points were made to me by Dr Evan Harris, and I have taken some pains to be clear on the subject. Somebody who works for me on an occasional basis also does commissioning for a PCT, and the other day I got her to sit down and tell me what sort of things she did during her day that counted as commissioning activities. She described a whole range of things, and all of them were things that are sometimes outsourced in a local authority without invalidating in any way the propriety of what the local authority does.
I have tortured myself about the question that the hon. Lady has not answered. She recognises and acknowledges that that decision making will ultimately be done by a public body based on open discussion among its members about what to do, that it will be examined by a health and well-being board, that it is therefore a perfectly overt and transparent process and that a range of other things might therefore be done within a commissioning organisation, most of which will have to do with commissioning and some of which she thinks can be outsourced, but she has proved incapable of drawing the line differentiating those activities that can be outsourced by a commissioning organisation from those that cannot.
With the greatest respect to the hon. Gentleman, who I know is under considerable pressure from Dr Evan Harris, it is not my responsibility to draw the line. The hon. Gentleman and Members opposite are in Government, unfortunately, and it is their role to draw it. He has confused two issues. One is the decision-making process. According to the amendment, that can still be outsourced to the private sector. The amendment specifies only that legal liability remains. Where is the clause that says that health and well-being boards can call in the private sector commissioners to question them about their decisions? It says that they can call in providers of services to examine what they are doing—that is a new addition to the Government’s plan—but not the commissioners. With the greatest respect to the hon. Gentleman, to whom I always listen, those questions are more for his party and the Government than for ours, because it is their legislation.
The hon. Lady says that she cannot draw the line. I am arguing whether anybody can draw the line in any meaningful way. Ultimately, decision making is a public affair. It should be publicly examinable and publicly tested in the same way as it is in a local authority. My local authority’s department of finance happens to be outsourced to Capita. I regret that, but it does not alter the nature of the decision-making process or create any particular perils.
I will be very brief because I have listened to the exchanges between the hon. Members for Leicester West and for Southport. Let me explain the matter. CCGs always remain responsible for their functions. Yes, they can get support in how those functions are exercised, as PCTs can do at the moment. However, the final commissioning decisions remain with the CCG. The hon. Lady has asserted on a number of occasions that CCGs could outsource their commissioning functions to a private company. I have to tell her that using the term “private sector commissioners” is not helpful because it is a complete misnomer. There will be no such things. CCGs can be supported by other bodies, but they are the commissioners.
Let me pick up the point made by the hon. Member for Southport. The straightforward answer to whether a clinical commissioning group could outsource its commissioning functions to a private company is no. A CCG could not transfer its commissioning budget to a different organisation and arrange for that organisation to provide all the services that the CCG is required to commission. It would be unlawful and it could not happen.
Amendments made: 78, in clause 19, page 19, line 32, at end insert—
‘( ) The business plan must, in particular, explain how the Board proposes to discharge its duties under—
(a) sections 13D and 13L, and
(b) sections 223D to 223DB.’.
Amendment 79, in clause 19, page 19, leave out lines 38 to 40.—(Mr Burns.)
These two amendments are very simple and straightforward. They refer to clause 19 new section 13R, which is entitled the
“Board’s power to generate income.”
Opposition Members are concerned that that section opens up the possibility of GP consortia—or clinical commissioning groups, as they are now called—being able to generate additional income through charging for services. Amendments 4 and 9 would place a clear duty on the Secretary of State to publish guidance for both the board and consortia that they must abide by when they are raising any additional income under the Health and Medicines Act 1988. The Minister would no doubt deny that there is any underlying aim or objective in allowing GPs or others to charge for services. Despite some GPs who were mentioned last week wanting to explicitly ration services, exclude them from the NHS and make people pay for them, it is clear that that is not what the Government intend. I am sure that they will join us in voting for our amendments, as it would give ultimate responsibility to the Secretary of State to set clear guidelines on how additional income is to be generated and in which areas. Responsibility would finally lie with the Secretary of State and not with GPs or others. It is on that simple and straightforward basis that I move the amendment.
These amendments, which relate to powers similar to those of the commissioning board and clinical commissioning groups, may have been prompted by a misunderstanding. The provisions that the amendments seek to amend are based on powers currently possessed by the Secretary of State and PCTs under section 21(5) of the 2006 Act, which was introduced by the previous Government.
Those powers play a valuable role. They allow the NHS commissioning board and CCGs to raise additional income for improving the health service through various means. I urge Opposition Members to listen carefully to this, so that they do not misunderstand. Those means include selling goods—for instance, assets in the possession of a CCG such as vehicles; dealing with land if it is surplus to requirements; the provision of training and development to, for example, another clinical commissioning group; or marketing their intellectual property, for example by developing and selling computer software for analysing local demand. Any income raised through these means would be reinvested in the health service.
Those powers would not—I repeat not—allow the board or clinical commissioning groups to charge patients for services that they receive from the NHS, or to otherwise charge for work conducted in the exercise of their commissioning duties. I will repeat that, because the hon. Member for Leicester West unfortunately did not hear it, and it is a critical part of my speech. They would not allow the board or CCGs to charge patients for the services that they receive from the NHS, or otherwise to charge for work conducted in the exercise of their commissioning duties. I think that that is perfectly plain, although I suspect that the hon. Lady still does not see it in that light.
The Minister has taken pains to explain the categories of assets that would be covered. However, I draw his attention to a report from the Bureau of Investigative Journalism. It has identified £630 million of costs to the NHS, with GPs securitising their premises and then hiring them back. Would that be prevented under the Minister’s proposal?
I am not quite sure where the hon. Gentleman’s question is leading. So as not to trip up, I shall give the caveat that the examples that I gave were illustrative so as to draw out when a body might raise funds by disposing of items that were surplus to requirements, such as vehicles, land and so on. It has nothing to do with charging patients for care. I am trying to repeat in the clearest, loudest terms possible that that does not include introducing charges for patient care. I do not think there is anything to argue about; it is quite clear cut. Charging by commissioners in exercising their duties is prevented not only by the exclusion of such powers from the Bill, but by separate regulations governing the application of charging patients, which expressly prevent any charging except in permitted circumstances in which it is a long-established principle, such as prescriptions, dental care and hospital care for overseas visitors in certain circumstances.
We have also made clear our continuing commitment to the NHS constitution and the rights and values it enshrines, including the principle that NHS care is available free at the point of use to all those eligible to use it. As we have already discussed, we intend to introduce a new statutory duty for the commissioning board and CCGs to act with a view to securing health services provided in a way that promotes the NHS constitution, including raising awareness of it among patients, staff and the wider public, for example when consulting on commissioning plans. That means that now, more then ever, patients will know that the NHS they know and love is safeguarded for the years ahead.
The amendments would limit how the board or CCGs could exercise their new powers, presumably to ensure that such activities do not impinge on their duties to patients through the introduction of guidance. However, the Secretary of State has already published guidance specifically on the powers to generate income, which applies to NHS bodies, including PCTs. Further to that, he can update the guidance to the commissioning board and CCGs under his general powers in section 2 of the National Health Service Act 2006, as amended by paragraph 1 of schedule 4 to this Bill. There are therefore adequate safeguards to govern the exercise of the powers. In fact, I would argue that they are more than adequate. In the clause in question, there is a legal duty on both the board and CCGs to exercise the power only in so much as it does not interfere with the performance of their statutory functions.
I assure hon. Members that there are sufficient checks and balances in place to ensure that the powers pose no threat to the bodies’ fundamental role as commissioners of NHS services. Monitor will have a role in overseeing the transactional behaviour of the commissioning board and clinical commissioning groups. The board will have to undergo ongoing assessments of the commissioning groups’ performance. We have also set out a coherent framework in the Bill for monitoring the financial performance of a CCG and holding it to account through the accountable officer. In addition, the Secretary of State can update the guidance on the powers to generate income to apply it to the commissioning board and CCGs or issue new guidance under the powers granted to him by the Bill.
Requiring the Secretary of State to publish guidance on how the commissioning board and CCGs should use the limited powers they have to raise income would not create safeguards greater than those already in the Bill. It is wholly unnecessary, so I cannot accept the amendments. I hope that, on reflection and based on my assurances, the hon. Lady will withdraw her amendment.
I would like to be helpful to the Committee. Members know that proceedings up to and including schedule 3 must end at 8 pm tonight. There is still a great deal of business to go through, but it is appropriate for members to have a short comfort break, if that is possible. Therefore, I propose a 10 minute break when we finish dealing with this amendment. If there are Divisions in the House before 8 pm, I am required to suspend the Committee for 15 minutes and there is no injury time. The deadline is 8 pm and I urge Members to remember that when they make their contributions.
Thank you, Dr McCrea. Your consideration of our comfort is much appreciated.
I have two points in response to the Minister’s comments. He will remember that on many occasions during the previous Committee, he reassured Opposition Members that our concerns were nothing to worry about. Monitor promoting competition in every part of the NHS whether or not it was appropriate was nothing to worry about. Strong requirements on Monitor, the board and commissioning groups to promote patient and public involvement and ensure that they included the views of clinicians were nothing to worry about. Education, training and emergency service planning were nothing to worry about, nor were any of the issues that in fact the Future Forum said we were right to be concerned about. He will therefore not be surprised to hear that I do not take his reassurance to colleagues at face value.
We have concerns. They relate to a clause—I hope that Dr McCrea will not mind my saying this—that we did not discuss last week because the Government have not given us enough time. I am referring to clause 10, which deals with the power of consortia. It states:
“Each…consortium may arrange for the provision of such services or facilities as it considers appropriate”.
If I had had the chance to discuss that clause, I would have said that that provision was not strong enough to guarantee a comprehensive service.
There are additional concerns that clause 19 could give consortia the ability to generate additional income by charging, not least because of the experience in my own area, where a GP has indeed called for that to happen.
On that basis, and in the spirit of getting us all off to our comfort break, I would like to press the amendment to a vote.
With this it will be convenient to discuss Government amendments 82 and 83.
As the Committee will be aware, the Bill gives the Secretary of State powers to intervene if an arm’s-length body is failing to perform its functions. He can give a direction to that body, discharge the functions himself, or arrange for another person to do so. The powers of intervention are an important back-stop to make it clear that the Secretary of State is ultimately accountable for securing the provision of NHS services.
The Committee previously agreed a Government amendment to the intervention powers for Monitor, which would ensure that Ministers could intervene only when a failure was significant and that the reasons for intervening would have to be explained publicly. That was important to safeguard the regulator’s independence and to ensure that intervention powers were used only when appropriate. The Government amendments propose the same changes for the commissioning board, which would ensure a consistent approach. We have proposed similar amendments, which will be discussed at a later stage, for the Care Quality Commission, HealthWatch England, the National Institute for Health and Care Excellence and the Health and Social Care Information Centre.
The second change to the intervention powers for Monitor was to add a condition that the Secretary of State could not intervene in a particular case. Instead, he would need to demonstrate that the failure was more widespread. That further safeguard would protect regulatory independence and avoid any perception that the regulator’s judgment could be swayed on a specific issue through political pressure. For consistency, we now propose to extend that condition to the CQC and HealthWatch England, as a committee of the CQC; again, those changes will be discussed later. As such a limitation would not be relevant for the NHS commissioning board, we do not propose to make a similar change to clause 19.
The board has a wide range of functions relating to the health service. As a result, in the event of significant failure it might be appropriate for the Secretary of State to intervene in a particular case—for example, if the board failed to allocate funds to a particular CCG. Such a limitation would not be appropriate for NICE or the Information Centre, because they are focused predominantly on supporting the health and social care system as a whole, rather than on overseeing individual organisations. Therefore, we have not proposed similar amendments to clauses 242 or 265.
The changes would ensure that the Secretary of State’s powers of intervention for the board are used appropriately, with proper transparency, while preserving Ministers’ ultimate accountability for the NHS.
I want to ask a brief question. The Minister, once again, gave a helpful example of something that the Government would consider the board to have failed on—if it had failed to give money to a clinical commissioning group. Is failure confined only to matters of allocating resources? Would it be a significant failure if the board did not deliver one of the many objectives outlined in the document that we referred to earlier? If the board did not achieve the outcomes specified under the mandate, would that qualify? Would it be a significant failure if the board did not fully consult patients and the public? How about if certain equality indicators were not met?
The trouble is that within the Government’s context, they say that they want the board to be independent and that they will intervene only if there is a significant failure. We have no idea what the Government consider a significant failure of the NHS board to be—or should I call it NHS England now?
I am only repeating the words of the chief executive of the NHS in England. If the hon. Gentleman disagrees with that title, he should mention that to his Minister. Will the Minister give me more information about what a significant failure of the board would look like and whether any further information about that will be published?
May I first answer the initial point that the hon. Lady made about whether this intervention was solely restricted to finances? The example that I gave was about the board’s failing to provide funding for a CCG. The short answer is no. It is not restricted solely to financing, but I am not going to speculate as to what it may be; that is consistent with the view that I take when being tempted down dangerous paths by the hon. Lady.
Would my right hon. Friend agree that throughout the public sector over the past 10 years there have not been proper mechanisms to deal with failure, particularly where management has failed? That was brought out by Professor Corrigan at a recent meeting in the House. My right hon. Friend will be aware that Professor Corrigan was Tony Blair’s special adviser on health.
I am grateful to my hon. Friend. As I said earlier, I will not be tempted through a whole range of examples, although his intervention was extremely helpful.
On a point of order, Dr McCrea. Is it right for a Minister to refuse to give any practical example to any question that Opposition Members raise? The last time that the Minister responded directly, he got himself into trouble over A and E. It is difficult for Members to scrutinise legislation when they ask practical questions and the Minister refuses to answer.
The hon. Lady is well aware that that would be a point of debate, rather than a matter for the Chair.
I thought that that was a little petulant; I had not finished. Perhaps I can cheer the hon. Lady up a little by finishing what I was saying before her point of order. I said that I would not speculate because I know how dangerous that is with her. Simply not meeting an aim in the mandate would be unlikely to represent a significant failure. I gave the example of the commissioning board’s failing to provide finance to a CCG.
Let me give the hon. Lady another example, just to give her a flavour—if the board failed to commission a particular service that it was required to commission under the Bill. I hope that that is helpful. Perhaps next time she will give me the benefit of the doubt and could make her point of order when I have finished, rather than interrupting me when I was about to elaborate on what she wanted to know.
Amendments made: 82, in clause 19, page 22, line 6, at end insert ‘and
() the failure is significant.’.
83, in clause 19, page 22, line 14 , at end insert—
‘( ) Where the Secretary of State exercises a power under subsection (1) or (3), the Secretary of State must publish the reasons for doing so.’.—(Mr Simon Burns.)