HL Deb 29 April 2002 vol 634 cc547-60

8.48 p.m.

Consideration of amendments on Report resumed.

Clause 6 [Local Health Boards]:

[Amendment No. 11 not moved.]

Clause 8 [Funding of Primary Care Trusts]:

[Amendments Nos. 12 to 14 not moved.]

Clause 9 [Funding of Local Health Boards]:

[Amendment No. 15 not moved.]

Clause 10 [Expenditure of NHS bodies]:

[Amendments Nos. 16 and 17 not moved.]

Clause 11 [Duty of quality]:

[Amendments Nos. 18 to 23 not moved.]

Clause 12 [Further functions of the Commission for Health Improvement]:

[Amendments Nos. 24 to 26 not moved.]

Baroness Finlay of Llandaff

moved Amendment No. 26A: Page 18, line 17, at end insert— ( ) The Commission for Health Improvement shall present annually its report to the health joint select committee. The noble Baroness said: My Lords, I understand that Amendment No. 30 has been grouped with Amendment No. 26A.

This is a probing amendment to ask the Government how they propose to monitor the inspection bodies and how that monitoring might be conducted. When the issue was previously debated, on 21st March, the Minister helpfully explained that a Select Committee of both Houses must be established by Parliament and it is not appropriate to seek in a Bill to suggest to Parliament how it should operate. I am most grateful to the Minister for that helpful clarification.

However, time has moved on rather rapidly, as we have already heard tonight. The document Delivering the NHS Plan has been published. As others have already said, it suggests that discussion on the Commission for Health Improvement may by now be obsolete as, to quote the Minister, time moves on. The Commission for Health Improvement is to be brought into the proposed independent single new commission for healthcare audit and inspection, or CHAI, with a longer pronunciation on the vowel sound. This new single commission is to publish an annual report to Parliament on national progress on healthcare and how resources have been used. A similar new single inspectorate for social services is also to be formed from a merger of the Social Services Inspectorate and the National Care Standards Commission. This commission for social care inspection, or CSCI, will also publish an annual report to Parliament on national progress on social care and an analysis of where resources have been used.

Given that the two bodies to be incorporated into those two new inspection commissions currently cover England and Wales, it is very important that there should be a capability to question those bodies in detail. As devolved arrangements will structure NHS services differently, it seems essential that the bodies can be quizzed in detail about their findings. It is also important that they can be questioned as to evidence of their cost-effectiveness, to be sure that they are not imposing an ongoing burden on the health service without proven value for money in their functioning. They should be able to demonstrate clearly that it is they who are driving up standards, as opposed to research findings and other developments that occur in healthcare, which may independently be driving up standards—to return to a phrase that I have used previously on research, confounding variables that may give the same result.

Apparently, legislation will be needed to establish those new commissions. So, no sooner will this Bill pass from us than it will be amended by further legislation hot on its heels. Under that proposed legislation, both CHAI and CSCI are to be more independent of the Government than their constituent bodies have been. The aim of Amendment No. 26A is to explore whether a committee of both Houses might be established in the interim. Such a committee would need to have representation from all four parts of the United Kingdom to consider issues that are partly or fully reserved functions.

The purpose of the amendment is to probe the exact mechanisms whereby debate may be had to establish such a committee that could examine the reports delivered to Parliament from the inspectorate bodies. I beg to move.

Baroness Noakes

My Lords, it appears to be for the convenience of the House that I speak at this point to Amendment No. 30, although, as noble Lords will find out, it addresses slightly different issues from those that the noble Baroness has just addressed. I shall continue nevertheless.

Amendment No. 30 deals with the independence of CHI, which we debated briefly in Committee. Since then, we have had the Government's White Paper, Delivering the NHS Plan, in which they set out their proposals for the new commission for health audit and inspection. One aspect of that new commission is that it will be more independent of government than the Audit Commission, CHI or the National Care Standards Commission. Commissioners will be appointed by the independent appointments commission rather than by Ministers. We were delighted that the Government are moving towards recognising that greater independence for such bodies is desirable. The Minister resisted the idea when we discussed a previous amendment.

I shall not go through the details of the amendment, which would make changes designed to create greater independence for CHI. I shall highlight just two of them. The amendment would amend Schedule 2 of the Health Act 1999, which set up CHI, taking away the Secretary of State's powers of direction. If we are trying to devise a genuinely independent body, giving the Secretary of State massive powers to tell it what to do will negate that independence.

In Committee, the Minister made much of the effectiveness of CHI's work. We have no wish to criticise its work. Nor do I claim that there are instances of CHI's work not appearing to be independent. However, we know how insidious powers of direction in the public sector are. Everyone in the relationship—CHI, its chairman, its chief executive, the Department of Health, its staff, the Secretary of State and others—knows that the directions are there. The powers colour the relationship even if they are not used. In effect, they undermine independence.

I could not say that I was truly independent if someone else had the power to tell me what to do. Much of the way in which relationships are conducted between bodies such as CHI and departments is about subtle inflections. We can be sure that the relationship recognises who ultimately pulls the strings.

Financial independence is another aspect of independence. That is why subsection (2)(e) of the proposed new clause would take away the Secretary of State's discretion as to how much he pays CHI. If someone else determines how much money I get each year, that person determines what I can do and, more importantly, what I cannot do and I am not independent. The same is true of CHI. The 1999 Act simply says that the Secretary of State will give CHI what he thinks is appropriate. It is important that CHI should be given what it needs to carry out its functions. There should be an open and transparent discussion about the amounts needed. CHI should not have to come with a begging bowl to see what scraps the Secretary of State chooses to throw in. There should be a more equal relationship, based on what CHI needs to do.

The Government have announced their additional independence proposals for the new inspection and audit body. The amendment would accelerate that process of independence for one important component of the new body—CHI. I hope that it commends itself to the Minister, as it is now fully in line with government policy.

9 p.m.

Baroness Northover

My Lords, I shall speak to Amendments Nos. 26A and 30, which relate to two key principles: the first is to ensure that the NHS, and its inspection systems, are as independent of government as possible; and, secondly, that the NHS, and those working within it, must ultimately be answerable to Parliament. Amendment No. 26A talks of CHI answering to the health Select Committee of both Houses of Parliament. We are also putting forward this idea in relation to the regulation of health professionals, and shall return to it later.

If the Minister responds by saying that he believes this proposal to be impossible—or even premature—I shall point out that his newest document speaks of reporting annually to Parliament, on national progress, on healthcare and how resources have been used". Something tells me that his line in consistency is, once again, bringing him closer to us, which I welcome. Similarly, we have argued for the greater independence of CHI and—lo and behold!—we see in his document that his new merged creation that will incorporate CHI is to be, more independent of government than the Audit Commission, CHI or the NCSC". My feeling is that it is time to go home, while we await the Minister's new proposals that will shortly supersede all that he has been arguing for here.

Lord Clement-Jones

My Lords, I welcome the fact that the Secretary of State appears to have accepted that accountability for clinical governance and performance standards should be separated from the management of the delivery of healthcare. Currently, when it comes to inspection and bodies like the Commission for Health Improvement, the Secretary of State still calls the shots on the criteria by which hospital trusts are to be judged. But the regulatory system must be publicly accountable and transparent. For that reason, as mentioned by my noble friend Lady Northover, the professional regulatory bodies and the proposed new commission for healthcare, audit and inspection—and, indeed, the commission for social care inspection—should be subject to direct overview by Parliament through a Select Committee, not by the Secretary of State.

From the recent White Paper, to which some noble Lords have referred, Delivering the NHS Plan, it is unclear exactly what the proposed accountability of the new commission for healthcare, audit and inspection will be. As has already been mentioned, the paper states that the new commission will be more independent of government than the Audit Commission. I am sure that many of us will use that as a stick with which to beat the Minister during the progress of forthcoming Bills in an effort to ascertain whether or not that yardstick is being fully applied.

In his current state of grace or knowledge, can the Minister enlighten us as to whether or not the commission will determine the standards and targets to be met without the intervention of the Secretary of State? There are some crucial questions to be answered. I very much hope that the Minister will be able to enlighten us at this stage.

Lord Hunt of Kings Heath

My Lords, I am gratified that the noble Lord, Lord Clement-Jones, believes me to be currently in a state of grace; indeed, that is rather more encouraging than his usual remarks about my position.

The amendments before us are most interesting. They bring us back to one of the essential components of the The Way Forward for the NHS; namely, the Commission for Health Improvement and the health inspectorate, for which we shall bring forward legislation in due course.

I should tell the noble Baroness, Lady Finlay, that it seems to me that we must distinguish between the annual report to Parliament, which forms part of a provision under the Bill, and the separate question as to how Parliament deals with such a report and the work of the commission. It is right to distinguish between those two facets because it is not for the Government to dictate to Parliament on how it discharges its functions. That is my essential difficulty with an amendment that proposes the establishment of a Select Committee.

If I am asked how Parliament discharges its own responsibilities, I should point out that it is abundantly clear: through Questions, through debates, and through the work of Select Committees, Parliament is able to question and call in witnesses from the Commission for Health Improvement, and other bodies, and thereby discharge its own responsibilities. However, that is a matter for Parliament to decide.

Having been responsible for some of the organisations about which we are debating—such as the National Institute for Clinical Excellence—my experience is that Select Committees are most interested in the affairs of such bodies; indeed, they have no hesitation in undertaking reviews through which they call in witnesses, including the bodies and those affected by what they do, as well as Ministers. I have no sense of Parliament not being able effectively to scrutinise the work of CHI, and its successor body. My difficulty is that I could not support an amendment that sought to dictate to Parliament the establishment of a specific Select Committee. At this stage of the Bill, I do not believe it is appropriate to take such a move. However, if it were decided, by Parliament to establish such a committee, it would be the duty of NHS bodies to co-operate with it. I have no hesitation in saying that the Government would encourage that process.

I turn to Amendment No. 30. I should point out to noble Lords that one example of the effect of accepting such amendments would be to give the commission the power to deal with matters like remuneration and allowances. I wonder whether the noble Baroness, Lady Noakes, really considers it appropriate simply to hand over that kind of power, lock stock and barrel, to the Commission for Health Improvement. Surely, public accountability and the discharge of the Secretary of State's accountability to Parliament suggest that that matter should rightly fall to the Secretary of State.

We have already made clear—and shall certainly do so when it comes to the health inspectorate—that we expect the commission to continue to operate at arm's length from Ministers, as is the case with other non-executive public bodies. Indeed, it is a key feature of executive non-departmental public bodies that the Secretary of State remains accountable to Parliament for the performance of the body in question. As a vital part of the constitutional arrangements to ensure public accountability, so far the Secretary of State has appointed the chairman and other members of the commission. Clearly, the debate has moved on and, as the noble Baroness, Lady Noakes, suggested, when we announced plans to establish an independent single new health and social care inspectorate, we made it clear that the commissioners of the new inspectorate would not be appointed by Ministers but by the NHS Appointments Commission. That seems to me to constitute an acceptance that the new body will have more independence. It is an important step forward.

I now turn to the general direction-making powers which the amendment would remove. We debated that matter in Committee. At that time I made it clear that they were reserve powers. There is no question that they should be used as a matter of routine; but one has to accept that there is always a possibility, I hope remote, that a serious problem could arise in relation to the commission's activity or governance which, for whatever reason, the commission failed to address. Surely it would be right that the Secretary of State, who is accountable to Parliament for how that body acts, should be able to take whatever action is necessary at the time. If an executive non-departmental public body receives funds from the Secretary of State, as is the case with a commission, surely it is appropriate and necessary for there to be some control to guard against financial impropriety and to ensure that funds are applied for proper purposes as set out in the Bill.

However, as I said in Committee, one would expect that kind of intervention to be rare indeed. The whole case behind the Government's proposals and programmes for the National Health Service is to put in place a rigorous inspectorate which is fully independent in the way it conducts its reviews and inspections. There can be no advantage whatsoever in the Government seeking to influence such an organisation in the conduct of those inspections. The whole strategy of the Government depends on having a robust independent organisation undertaking those inspections. It must make sense that, as with all non-departmental public bodies, there are safeguards that allow intervention to take place in what one hopes would be wholly exceptional circumstances where the public interest would demand that that takes place. Having said that, I hope that noble Lords will recognise that we have listened carefully to the arguments; that we are moving the agenda on with the announcement made by my right honourable friend two weeks ago; and that we are committed to a robust independent body to undertake the inspections.

Baroness Finlay of Llandaff

My Lords, I thank the Minister for his reply. I am glad to hear that he found the amendment interesting. He clarified the matter by distinguishing between the annual report to Parliament and how Parliament would deal with such a report and monitor it. He clearly outlined that, under the Select Committee structure, Ministers can be questioned and called to account. I understand from that that he is implying that the questioning on the reports as laid before Parliament would come within the remit of the current Select Committee structure.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Baroness for giving way. I was trying to say that it is for Parliament to decide how arrangements will be set in place. I described some of the ways in which currently bodies can be called before parliamentary committees. If Parliament decided to set up a separate Select Committee, it would be the responsibility of NHS bodies to co-operate with it.

Baroness Finlay of Llandaff

My Lords, I am grateful to the Minister for that clarification. It would be helpful for the public to be assured of the mechanisms whereby Parliament will rigorously evaluate the inspection processes. The inspection processes will be more distanced from government than was previously the case, as has been set out in the document to which we alluded and which has been quoted.

The question of reserve powers becomes very important as the process of devolution gets further under way. It is particularly important for areas of health services that develop differently to be sure that the inspection bodies are functioning appropriately, independently and at a level of equity in their judgment of services which may be fundamentally different in different parts of the United Kingdom. Certainly, the Secretary of State funds the bodies as they stand, but if there is irregularity or misappropriation of money, I should have thought that the ultimate sanction was to withdraw the funds. That would have to be justified.

The question of influencing an inspectorate has been raised. That is a concern because an inspectorate may find and report on occurrences in the NHS as it devolves that are not favourable to the government of the day and it may also find that the investment of moneys—even new moneys—has not achieved the required outcome. It is for those reasons that this has been an important debate which has emphasised the need to maintain the independence of the inspectorate and the way in which its members will be questioned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Baroness Noakes

moved Amendment No. 27: After Clause 12, insert the following new clause— "PUBLIC HEALTH FUNCTIONS OF THE COMMISSION FOR HEALTH IMPROVEMENT The Commission for Health Improvement shall have such further functions as may be prescribed relating to the management, co-ordination, provision or quality of public health services for which prescribed NHS bodies, service providers, local authorities or other bodies have responsibility. The noble Baroness said: My Lords, the amendment would give the Commission for Health Improvement responsibility for public health services that are operated by NHS bodies and it would allow CHI to investigate a report on how well public health responsibilities were carried out by the NHS.

We have already had a significant debate today on public health—we did so in the context of primary care strategic health authorities and regional directors of public health. Those debates were led by my noble friend Lord Howe and the noble Lord, Lord Clement-Jones. There is one clear message from those debates—that there is considerable anxiety about how well the bodies populating the Government's new NHS universe will respond to the challenges of public health.

I have two questions for the Minister. First, will the Government say whether public health is important? I know that that is a "motherhood" question; the Government will of course say that public health is important. However, if that is true, will the Minister say why the White Paper that was issued a couple of weeks ago, Delivering the NHS Plan, made no reference to public health? Some of us found that an astonishing omission.

My second question is harder. How do the Government show that they think that public health is important? My noble friend Lord Howe and the noble Lord, Lord. Clement-Jones, displayed the confusions that lie at the heart of the Government's approach to public health—much rests on untried and untested public health networks which are run by primary care trusts. They are struggling to get the right quality and quantity of staff to handle those responsibilities. Above those bodies are strategic health authorities and regional directors of public health, with overlapping, and to some extent indistinct, roles. Many of us are sceptical about the efficacy of all of that and raise questions about how serious the Government are about public health if they are subjecting it to such a bizarre structure.

The amendment is designed to put some degree of oversight into public health, using CHI as the agent. If public health services are not working under those new structures, we can rely on CHI to say so.

When we discussed a similar amendment in Committee, the Minister said that the term "public health" was not statutorily defined and could be very wide indeed. My response is to say that a wide definition is exactly what the amendment would require. I have no problem whatever with the term bearing its natural meaning and not being artificially restricted. If the Minister has a specific definition in mind, I am sure that noble Lords will be prepared to consider it.

In Committee the Minister gave us some comfort by saying that the Government recognised that there was an issue in this regard. He said: the Government are giving serious consideration to how the issues can best be taken forward and to the extent that CHI's remit needs to be revisited in these areas".—[Official Report, 21/3/02; col. 1581.] Since then. I have not heard or seen anything to diminish our concerns about public health. If anything, the lack of a reference in the White Paper increased our concerns. I hope that the Minister will say that the Government have considered the matter further and that they are minded to agree to the amendment. I beg to move.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Baroness for again raising the issue of public health. She asked whether public health was important to the Government. As she would expect, it is very important indeed.

She also asked how the Government showed their commitment in that area. If we look back to 1997, we can see a long series of actions that reinforce the critical importance of public health to the health of our nation. The list includes the development of area strategies in relation to inequalities in health; the work around sexual health; the issues that have been raised in a number of national service frameworks, many of which, as part of their overall strategy, focus on public health elements; the various targets that have been set; and the development of health action zones. That is a long and impressive list which we shall continue to develop in future. Indeed, I would argue that the Chief Medical Officer's announcement earlier this year of a plan for a health protection agency, which we discussed briefly in our earlier debate about public health, provides another example of how we wish to bring together some of the current national public health functions and co-ordinate them rather more effectively with what is happening at local level.

There can be no question about it: public health is important to the Government. We are confident—we debated this matter at some length earlier this afternoon—that from the arrangements that we are putting in place will come a far more powerful public health function because we have made the essential connection between public health and primary care. As noble Lords will know, I am confident that this is the right area on which to place much of our emphasis.

That said, I understand that the noble Baroness has raised a substantial question which, as I said in Committee, certainly needs to be given careful consideration, particularly in favour of giving recognition to the importance of public health services. As the noble Baroness knows, in Delivering the NHS Plan, we stated that a new commission for healthcare audit and inspection would be established. In the light of our discussions in Committee, we have decided—I am happy to assure noble Lords that this is the case—that we shall give careful consideration to the role that that new commission might have in relation to public health services, particularly where the public health responsibilities of primary care trusts are concerned.

However, the issues are complex in terms of clarifying the range of public health services that might appropriately be brought within the new body's remit, the relationships with both the bodies responsible for those services and those currently responsible for their inspection or regulation, and the legislative consequences arising.

The Bill before the House today gives CHI several important roles. At this stage, I should be reluctant to add to those roles in the way suggested by the noble Baroness without full consideration of the implications. However, I hope that she will accept my assurance that we are giving serious consideration to how these issues can be best taken forward, in particular in the light of our announcement about the new health inspectorate.

Baroness Noakes

My Lords, I thank the Minister for that response. I was pleased to hear that the issue of public health in the context of CHI or of a new commission is still live; that is, it has not been closed down. It is perhaps a matter of regret that the Minister will not accept the amendment now as the PCTs get under way with the new public health functions. As several noble Lords have said today, there must be considerable doubts about how they will work in practice.

Despite the optimism that the Minister has expressed, there are considerable doubts about how the system will work in practice. The ability to inspect the public health functions now would be a good arrow in the armoury of CHI. Nevertheless, I am at least pleased that the Government are still considering the matter, and I suppose that I can only say, "Roll on the next NHS reform Bill". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [Commission for Health Improvement constitution]:

[Amendments Nos. 28 and 29 not moved.]

[Amendment No. 30 not moved.]

Baroness Noakes

moved Amendment No. 31: After Clause 14, insert the following new clause— "PATIENT CHOICE It shall be the duty of the Secretary of State in carrying out his functions under the 1977 Act to ensure that, so far as it is reasonable for him to do so, persons who receive services under that Act are given a choice as to the time, manner and location of those services. The noble Baroness said: My Lords, I rise to move Amendment No. 31, which seeks to create a new duty on the Secretary of State to give effect to patient choice. I should not like the Minister to think that my favourite bedside reading at present is Delivering the NHS Plan. However, I shall quote from it again. A whole chapter of Delivering the NHS Plan is dedicated to choice for patients. Paragraph 5.4 of chapter 5 states: For the first time patients in the NHS will have a choice over when they are treated and where they are treated. The reforms we are making will mark an irreversible shift from the 1940s "take it or leave it" top down service. Hospitals will no longer choose patients. Patients will choose hospitals". Amen to that. However, I cannot resist pointing out that the roots of the policy lie in our reforms of more than a decade ago—reforms largely reversed by the Government after 1997. We rejoice that the Government have had a Damascene conversion to putting patient choice at the heart of their policies.

I should like to be able to take more time to explore the mechanisms—especially the financial mechanisms, which seem to be extremely complex—for giving effect to policies such as money following patients. I should also like to be able to explore the technology implications, especially given the Government's failure to date to progress the information management and technology agenda within the NHS. However, the key issue is to get the principle of patient choice firmly embedded in the NHS.

When we discussed this amendment in Committee, I had expected a warm welcome from the Minister. Now that the White Paper has been published, I expect a welcome that is considerably warmer than the one I received in Committee. What the Minister said then was, I do not think that it would be appropriate to put the matter on a statutory basis. It is much more a question of policy to be decided by the Secretary of State."—[Official Report, 21/03/02; col. 1582.] The Minister was effectively saying that patient choice might have been the Government's policy, but they wanted to be able to change it at will without the inconvenience of legislation. That seemed to suggest that patient choice was not a wholehearted policy of the Government. However, we now have the White Paper, and it suggests that patient choice is indeed a government policy which should supersede the Secretary of State's whims or transitory will. I therefore invite the Minister to put the issue beyond doubt by accepting the amendment. I beg to move.

Lord Hunt of Kings Heath

I am sorry to disappoint the noble Baroness but, after reflecting on our discussions in Committee, I believe that this is ultimately a matter for Ministers and government policy, rather than an issue to be addressed in the Bill.

It is tempting to have a wide-ranging discussion on the internal market. However, I shall desist from talking about the grossly unequal effect of that market, in which patients of fundholders got a lot whereas the rest of the patients got very little. I shall also desist from talking about the incredibly bureaucratic structure that was put in place. All I shall say is that this is a real commitment to patient choice by the Government. I think that the noble Baroness herself made it clear from her commendable reading of our Delivering the NHS Plan that this is a very important matter on which we wish to make progress.

Essentially, the aim is that, by 2005, all patients will be able to choose the date, time and place of their treatment. Indeed, one of the "must do" targets set out in the NHS Plan is that, by the end of 2005, all patients will be able to receive treatment at a place and time that suits them. This is a clear and public commitment and—through the additional resources that we are making available to the NHS—we are demonstrating that commitment by piloting patient choice from July.

Patients with coronary heart disease will be able to benefit from patient choice. Where a patient has been on an in-patient waiting list for coronary heart disease treatment for more than six months, he will be offered swifter treatment in a different NHS hospital, in the private sector or indeed in another EU country. We are looking to extend the pilots across other specialities and in different areas. That is the importance of what we are proposing. We are not simply picking out a few GP practices where the arrangements will be on offer. The intent is that all GPs and all patients will have greater choice.

In view of the record of the previous government, I am surprised that the noble Baroness raised the issue of IT. When one thinks of those IT disasters, it is no surprise that, by the mid-1990s, there was a wholesale loss of confidence within the NHS about major IT projects.

I accept that the NHS has a long way to go in order to get the IT up to scratch in the way we all want. However, I am impressed by the commitment of people in the NHS to make IT happen, and by the success of some recent national projects. There is no doubt that we need to give this matter further attention. There is no doubt that it has to become a priority for the Government and for the NHS. IT systems will be part of the essential infrastructure which will enable us to ensure that patient choice will be a reality.

I repeat what I said in Committee. I do not consider that this matter should be on the face of the Bill. It is a matter of policy for the Government. We have unequivocally stated our intent in this area and we are committed to making sure that it will happen.

Baroness Noakes

My Lords, I thank the Minister for that reply. I am left with a puzzle. This is a matter for government policy but not a matter for legislation. I am not sure that I know when government policy should or should not be a matter for legislation. The White Paper contains many government policies, some of which are for legislation and some of which are not. I shall have to consult wiser heads than my own and reflect further on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question. Motion agreed to.

House adjourned at twenty-seven minutes before ten o'clock.