Clause 43 - NHS trusts: wider effect of decisions

Health and Care Bill – in a Public Bill Committee at 4:15 pm on 21st September 2021.

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Question proposed, That the clause stand part of the Bill.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

With this it will be convenient to discuss clauses 57 and 65 stand part.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

I hope I can reassure you, Mr McCabe, and the Committee that I do not intend to speak for anywhere near as long as I did on the previous group.


Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

I hear the cries of disappointment from the Opposition.

Clause 43 places a new duty on English NHS trusts, and clause 57 places a new duty on NHS foundation trusts, to have regard to the wider effects of their decisions. The duty, which was described in the NHS long-term plan as the triple aim, is mirrored for NHS England and the proposed integrated care boards. NHS England will be able to produce guidance on the duty that all bodies to which it applies must have regard. That duty is also given effect by clauses 4 and 19 in relation to other bodies, which we debated earlier.

As is indicated by the name, the duty has three limbs. First, NHS trusts and foundation trusts must consider the impact of decisions on the health, including mental health, and wellbeing of the people of England. Secondly, they must consider the impact on the quality of services provided or arranged by relevant NHS organisations, including their own. Thirdly, they must consider the sustainable use of NHS resources, including their own resources.

Decisions about particular individuals are excluded. It would not be practical or appropriate to apply the duty to decisions concerning services to be provided to any particular individual—for example, treatment decisions made by clinicians. The existing duties on those bodies encourage a focus on the interests of their own organisation and those who directly use their services. Although delivery of high-quality services remains critical, the new duty will complement other changes in the Bill to facilitate co-operative working and integration. It will encourage NHS organisations to continue to look at their communities beyond the people they directly provide services to and to consider collaborative, system-wide goals.

Following the merger of NHS England and NHS Improvement, NHS England will be responsible for setting and modifying the conditions contained in the licences of NHS providers. Clause 65 adds a new purpose for which NHS England may set or modify licence conditions: namely, that of ensuring that decisions relating to the provision of healthcare services for the NHS are made having regard to all their likely effects in relation to the three limbs of the triple aim.

Given that I have just discussed the triple aim in relation to clauses 43 and 57, I will not repeat the same arguments. As a consequence of this clause, NHS England will be able to set licence conditions aimed at ensuring that NHS trusts and foundation trusts comply with the new triple aim duty. Conditions relating to the triple aim in licences will ensure that the objectives of the new duty are considered alongside providers’ other duties and licence obligations. That in turn will encourage trusts and foundation trusts to consider the wider effects of their decisions and work on collaborative goals to the benefit of the whole system.

These clauses are essential in encouraging the components of our healthcare system to work together co-operatively and considerately, with an awareness of the wider effects of their decisions. I therefore commend them to the Committee.

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care) 4:30 pm, 21st September 2021

I, similarly, will not go on at great length. The clauses are consistent with the stated aim to move from competition to a culture of collaboration. It is therefore right that under clause 43, NHS trusts will have regard to the impacts of the decisions that they make on their neighbours, with particular reference to promoting the triple aim.

I want to press the point about what is meant by “relevant bodies” in proposed new subsection (4). The Bill states that it means NHS England, the integrated care board, NHS trusts and NHS foundation trusts. All of those, of course, make abundant sense. However, we are missing an opportunity to extend it more broadly to the health and social care family, within which the Bill is meant to promote integration. The obvious exclusion is local authorities.

In previous proceedings, the Minister chided me for jumping about in respect of whether he was going too far or not far enough. I am going to take the cheese on that. There is no inconsistency between saying that in one provision—for example, the powers of the Secretary of State—the Government are going too far, and in another—for example, the status of NHS trusts—they are not going far enough. Provided that those two things are not interdependent, of course the Government might be going too far on one thing and not far enough on another. I reserve the right to say that as I see it.

I might just go back to the Minister at this point on jumping around, because the Bill started as an integration Bill. It was going to be the great integration of health and social care, and what a moment this was going to be in British healthcare history—probably second only to 1948. Obviously, that fell apart straight away because there is not much about social care in the Bill—only two clauses out of 135. Then the Prime Minister said, “Don’t worry, we are going to come back with an integration White Paper in due course.” Presumably legislation would follow that. At that point, the Minister said that this was a paving Bill.

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

Foundation is even lower than paving, so I am not sure that that is a recommending analysis. Then earlier today, the Minister said that of course integration could take many forms. It could be integration of many bodies, and in this case many bodies within the NHS could be integrated. I gently say that, if we are wondering what exactly we are integrating, the title of the legislation is the Health and Care Bill, so I would start with health and care. I think we are missing that opportunity.

The reason for local authorities not being on this list may well be that we cannot bind the NHS to other non-NHS bodies, but that makes my case rather than argues against it. It is therefore not an integration Bill; it is just an NHS Bill. We will come back—that is the point. I keep saying this for a reason. We will have to come back to address that point, because the reason we are considering primary legislation is that systems have outstripped the status of legislation on the statute book. However, if we do not go far enough to catch up with them, we will have to do so in the future. There is an aspiration to do that sort of integration not just within the NHS, but within the broader health and care family. I really think that while it is not too late, we ought to consider what more we could do to put local authorities into this conversation.

As for clause 57, it is welcome that these duties also apply to foundation trusts, but it again highlights the fact that we are going to get to a point where the difference between a foundation trust and other trusts will be a distinction without a difference. We really ought to think about revisiting that, and I hope we will get the chance to do so yet.

Finally, of course it makes sense to amend licences, even if it perhaps does not make sense to have licences. I hope that the Minister can respond in particular to the point about local authorities.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

I have always been clear that the Bill adopts an evolutionary rather than revolutionary approach to driving forward greater integration, not only within the NHS in a locality but between the NHS and local authorities. On multiple levels, this is a Bill about integration and partnership working, and of course one on which the Prime Minister, ambitious as he always is for this country, wishes to build and go further.

The shadow Minister asked some specific questions about local authorities. The reality is that there is a different evolution and genesis in our local government system and the social care that sits with it, compared with the NHS. Up until 1948, effectively we saw that both were local and place-based. The National Health Service Act 1946 and the establishment of the NHS in 1948 set the NHS on a different path, which essentially looked upwards. It was a national system, albeit place-based, and it was national in its accountabilities, whereas local government continues to be based around different accountabilities at a local level.

Although it is important that we do exactly what we are doing, as the Prime Minister continues to, which is to drive forward greater partnership working and integration, we have to recognise those different developmental paths and the challenges they pose. In that context, local authorities do have, as the shadow Minister knows from his time in local government, their own distinct duties and accountabilities. The triple aim should lead NHS bodies to engage with local authorities—for example, in considering the health and wellbeing of the people in England or in their area. It pushes and nudges the NHS to think more widely about how it engages.

Equally, it is important to note that there are other measures in the Bill, such as the ICBs and the partnerships, that bring together those two bodies with their distinct DNA. We want to make it easier for them to work together in partnership and to integrate further, but we do recognise those different accountabilities and approaches —one directly accountable through local councillors to a local community, and the other part of a national system. These measures, we believe, will drive the NHS to go further in having heed to those local factors. That may not fully answer the shadow Minister’s point, but I hope it goes some way to doing so. With that, I commend the clauses to the Committee.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clauses 44 to 50 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Adjourned till Thursday 23 September at half-past Eleven o’clock.

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