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Health and Social Care Bill

My Lords, I, too, thank the Minister for clearly laying-out of the territory of the Bill. I also thank all organisations and individuals who have sent briefings and advice in advance of this debate, in which the huge number of us who clearly wish to speak is evidence of the great concern that this legislation is causing in this House. Many of us here have considerable experience in both the health and social care fields; I must declare a few interests here as a former member of the GMC, a former chair of an NHS trust, former chief executive of the King’s Fund and various others—I do not wish to detain the House with the list, for all of them were unpaid except at the King’s Fund. I also profoundly thank the Minister and the noble Baroness, Lady Thornton, for organising the meeting last week with the Minister in the other place and the Bill team, which many of us attended. It gave us a chance to ask some questions and to get responses, if not always ones that we could regard as wholly satisfactory given our concerns. Given the pressure on time, I will make six quick points. I remain puzzled by the Government’s wish to press forward now with this legislation. First, we would have to travel a long way to find people who are seriously critical of the present commissions’ work. Of course, things could always be improved, but all the commissions have done sterling work—and made considerable cash savings, as the Government have required of them. Regulation is complex and detailed; it requires long and painstaking work. To destabilise these three commissions now, when they are at the point where they are working so effectively, begs a much broader question; is it really being done because the Government feel that it will improve the regulatory landscape? Or, is it in fact being done because of the pressure of the NHS’s review of its arm’s-length bodies and the desperate desire that exists within the Department of Health to hit the target of reducing their number? If, as I suspect may be the case, it is the latter, this House should ask some fundamental questions about whether that is an aim worth pursuing and whether, provided the commissions work together sensibly and constructively—as they do—that is not enough of an efficiency saving in itself. That question is bothering many of us, quite apart from the question that the noble Baroness, Lady Cumberlege, raised about why this is happening now. Some of us are very puzzled about why the Government should wish to proceed now when the Minister’s review of the NHS is not yet complete. It does not make very good sense. Why merge the organisations at all and, particularly, why now? Secondly, not only are the Government seeking to merge these organisations, but before the Bill has even gone through Parliament, they have advertised for a chair of the new body. That chair is to be comparable in remuneration terms to the chair of an NHS strategic health authority, which is not senior enough and does not recognise that in order to attract someone of sufficient experience, seniority and stature to chair this huge, unwieldy and probably at first very uncomfortable body, the Government need to offer far more. It is worth asking whether Ministers are serious about remuneration at such a low level and whether they cannot see that other arm's-length bodies pay far more, as do the present commissions—as they should, given what is required of those chairs—Ofcom, the post of First Civil Service Commissioner, the Food Standards Agency and others. There is a real problem about how serious a job Ministers think this is and how much status they wish to give to this new commission and its chair. That advertisement and the thinking that underpinned it suggest a lack of seriousness about how difficult, important and challenging the job is, and therefore suggest a lack of understanding about how important and serious the new commission will have to be. Last week, there was some reassurance from the Minister in another place but it would be good to hear rather more from the Minister here. Thirdly, there is the worry about structural change per se. The Prime Minister and the Secretary of State for Health promised last summer that they would not disrupt the NHS with another round of expensive structural change. Any of us who have been involved in any of the previous rounds of changes, mergers and reorganisations, or who have commented on them, shouted out a private ““Alleluia””. We all know that mergers and reorganisations take some two years to bed down, distract the key players from the very important job in hand and mean that staff start looking for new jobs the minute the legislation goes through, which disastrously disrupt present work. Governments always imagine that the savings from mergers will be enormous, but the evidence is not there, and the bodies concerned can learn to work together and share some back office functions, as those of us in this House and in another place suggested when the merger of the Human Fertilisation and Embryology Authority and the Human Tissue Authority was mooted in the legislation we were scrutinising last summer. Indeed, the Government accepted our view, and that is what will happen. Why go for the merger of those organisations and put up with the disruption that will ensue as sure as eggs is eggs at a time when Ministers are deeply concerned about infection rates in the NHS after Kent and Canterbury hospital case and others? Fourthly, there seem to be gaps in the legislation. Like the noble Baroness, Lady Cumberlege, I think that we need principles in the Bill, which we argued, only too recently, in the mental health legislation. We need clear, overarching regulatory objectives. I was a member of Sir David Clementi’s review advisory group that looked at the legal services. Sir David is on the record as saying that the first step in defining a regulatory regime should be to make clear what its objectives should be. That is critical for those charged with regulatory responsibility since the objectives represent the criteria against which they must determine the appropriate regulatory action and against which they will be held accountable. Where is that statement of objectives? The present CSCI governing legislation has encouraging improvement in various areas written into its governing legislation, as does the Healthcare Commission. Where is the absolute duty on the new regulator to encourage improvement in services? I cannot find it in the Bill, where it should be. If it is not there, we have cause for concern. I am sure that Ministers will say that they want lighter touch regulation, and none of us would support heavy-handed, poking-the-nose-in regulation that distracts organisations and staff from their job. But we are talking about regulation for the benefit of patients and service users. This is for the benefit of the public, especially but not only on the social care side for the benefit and protection of the most vulnerable service users and patients. There has to be a duty on the new regulator to encourage improvement in services as well as an assurance that the new regulator will be able to test pathways of care across the piece within PCTs, hospitals, social care and elsewhere. That means being able to look at the purchasing of pathways of care as well. I can see within this legislation new penalties for the providers of care for breach of contract. Are we not talking about more than contract here? Should not the new regulator have a duty to test these pathways of care across the piece, given that those who are usually caught in the fissures between providers are all too often the very old, the very frail and the very vulnerable? I would be grateful for an assurance that the new regulator will have such a duty and that the penalties will go further than simply those provided for breach of contract. Fifthly, I am extremely worried that, as I read it, the Bill contains no special measures as it stands for when the regulator carries out an investigation, as it must have the power to do when things are going really wrong. Where special measures exist—they are there for the Welsh NHS and English local authorities but not for the rest—recommendations are made directly to the Secretary of State by the regulator. This is not about breach of contract where the penalties now lie but about really worrying practice. Of course the Secretary of State does not want to know about every dropped bedpan up and down the line. Yet, as in the cases of Northwick Park or Kent and Canterbury hospitals where something went seriously wrong, the regulator needs the power to say so and make sure that the PCTs, SHAs, trusts and any other players get involved in sorting it out immediately. How can that happen given the Bill as it stands? Where the regulator carries out an investigation or a wider review, will it have the power to make recommendations for an instant remedial action across the whole health and social care economy? The burden of proof should not rest purely with the regulator. My last point has already been made by the noble Baroness, Lady Cumberlege, on the role of users, patients and carers who are not sufficiently represented in the Bill. It is not adequate. We went through all of this in the Local Government and Public Involvement in Health Bill. The patient and user voice is not strong enough here. I have run out of time. Others have much more to say; I look forward to hearing reassurances from the Minister.