NHS Reform & Health Care Professions

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Mr. Hutton: Believe it or not—my hon. Friends will probably be surprised to learn this—the hon. Gentleman is supposed to be providing the independent scrutiny. That is his job; it is the job of all Members of the House. With the greatest respect to the hon. Gentleman, it is not our job to give that responsibility to the Commission for Health Improvement. We need to inject an air of realism into the debate. The hon. Gentleman's argument is largely academic; it is a debating point. The important function that we have in the House should not be supplanted by giving the role of scrutinising Ministers to the Commission for Health Improvement. That is not right. It does not make political or constitutional sense.

In the clause, together with other provisions in the Bill, we are providing the Commission for Health Improvement with a new range of powers and a substantial independence that will allow it to do its job effectively. It will be difficult; let us be clear about that. We are giving the commission new responsibilities; we are distancing it from Government and placing in its hands an important set of tools that will better inform the debate about the future of the national health service. But it remains absolutely right for Ministers to set priorities.

12.45 pm

The hon. Member for Wyre Forest made a fair point about the independent review that the trust at Whipps Cross organised following the tragic death of a patient in accident and emergency. It was a terrible case, and the trust was right to get an independent review of what was happening in accident and emergency. The report has been published and raised several issues that needed to be addressed.

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The hon. Gentleman asked me whether the Commission for Health Improvement would be able to comment on the report. I do not think that that would be a sensible role for CHI. As a consequence of the independent review at Whipps Cross, the CHI will now conduct an accelerated review of clinical governance arrangements in the trust. That is the right balance. It should be within the remit of any trust to call in independent reviews when things go wrong; we do not want to stop that. The CHI's role is different, as it is about ensuring the best safety and procedures across the service as a whole. The debate has been long.

Dr. Harris: I want to draw the Minister's attention to some questions of mine that he has not tackled, which were on the continued inclusion of provisions in section 20(3) and (4) of the Health Act 1999. I asked why the powers to give direction were included, why it was felt that the so-called independent commission must comply with such directions, what was the purpose and what directions he had already issued under that section.

Mr. Hutton: In general terms, the provisions are necessary reserve powers that a Secretary of State needs. We should not lose sight—I am sure that the hon. Gentleman has not done so—of the fact that public money sustains the CHI. I am sorry if I have given him a lesson in constitutional theory and practice, as that was not my intention, but as he knows Ministers are accountable to the House for the use of public money, and long may that continue. Without labouring the point, we need the tools if we are to discharge that responsibility. He and others would be the first to criticise us if the essential procedures to do so were not in place. We have not yet issued any regulations under section 20(3) of the 1999 Act.

If the hon. Gentleman were unhappy about section 20(3) and (4) of the 1999 Act, he could table another amendment to clause 12. He has banged on at length today, but has failed to table an amendment to deal with his point, and he has had plenty of time to do so. Perhaps I am making a rod for my own back for the debate on Report. I look forward to discussing the subject with him if he wants to push it on the Floor of the House, but I think that the powers are a necessary reserve set of arrangements to ensure proper use of public funds. They will not be used in an attempt to subvert the independence that we think should rightly rest with the Commission for Health Improvement, but they are essential in the overall scheme of things to ensure proper accountability for public funds.

Mr. Atkinson: From time to time, the Minister takes a waspish tone with Opposition Members. He accused me of not having read the same Bill as him, and my hon. Friend the Member for West Chelmsford of being a make-work lawyer. That is a little unfair. If I were cynical, I would suspect that the Minister had chided us for not making points when he had a full brief, as he obviously had, on subsection (3) but had accused us of not reading the Bill properly when he did not have a full brief, as I suspect was the case on subsection (5). That is not helpful to our proceedings. I did not find any reason for talking about subsection (3) because the

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provision was manifestly crystal clear. Our job is not to praise parts of the Bill but to question other parts of it about which we are uncertain or unhappy.

The Minister said that he and I were reading different Bills in relation to subsection (5). I remind him that the subsection reads:

    ''In section 33 of the Audit Commission Act 1998 (c.18) (studies for improving economy etc. in services), in subsection (6)(c), after 'Secretary of State' there is inserted ', the Commission for Health Improvement'.''

Who on earth could understand that? I do not have a copy of the Audit Commission Act 1998 but even if I did, the meaning would not be clear. As most members of the Committee would do in this situation, I turn to the explanatory notes, which are normally helpful but in this case say something quite different from the conclusion that one might draw from the Bill. The notes refer to a

    ''better co-ordination of regulation of the NHS.''

That raises serious questions in the minds of Conservative Members about the independence of the Audit Commission when the Bill is enacted. We are entitled to ask the Minister whether that body's role will be compromised.

Mr. Heald: Did my hon. Friend share my confusion when the Minister suggested that the clause delegated to CHI a role of consultation that had previously belonged to the Secretary of State, when subsection (5) suggests that CHI and the Secretary of State will both be consulted? As with so much of the Bill, the Secretary of State does not give away any powers.

Mr. Atkinson: Precisely, which is why the Committee has spent some time discussing the issue—it is not a make-work discussion, because we are playing our essential role of considering such matters. The clause is crucial, and it would be a pity if we allowed it to be added to the Bill simply because the Minister became irritated with us for spending time on it.

I listened carefully to what the Minister said, but I was still not certain whether the Audit Commission's independence would be maintained when the Bill was enacted. I shall read the record carefully to see whether the Minister's assurances are copper-bottomed or whether the Audit Commission's powers are, unfortunately, to diminish.

Dr. Harris: The Secretary of State has not given a satisfactory explanation, although he may have persuaded himself that he has. He likes to have it both ways. First he says that members of the Committee would be the first to criticise; then he claims that we are not giving adequate scrutiny.

I made it clear that the Government's political priorities, such as maximum waiting times, may distort clinical priorities, and are bad not only in their own terms but for patients and quality. The Minister has shown that he sees no role in the matter for the so-called independent Commission for Health Improvement. He will simply say, ''No, it isn't bad,'' while I shall say, ''Yes, it is,'' and we shall never be able

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to ask CHI—or, I suspect, if legislation is consistent, the Audit Commission—to express a view on whether his policy has had an adverse impact on some patients.

Mr. Hutton: Should priorities for the NHS be set by the Commission for Health Improvement or Ministers?

Dr. Harris: There are two separate questions. Should priorities in the NHS that have an impact on quality of care be set by Ministers and, if so, should that priority setting be subject to quality audit to ensure that it does not act against the interest of patients? The Minister may think that every decision, direction and circular issued by the Department of Health will be carefully scrutinised by Opposition Members. That is certainly the case for the Liberal Democrats, but I would not like to speak for Conservative Members. Nevertheless, it is difficult to ascertain through data collection whether we are right in our concerns or he is right in his reassurances, when they are scrutinised.

The Minister looks puzzled, so I will restate my point. First, should Ministers set priorities, given that that may imply micro-management—an allegation frequently made by those on the Conservative Front Bench? More important, regardless of whether it is right or wrong for priorities to be set, we would all agree that it would be wrong to set priorities that act against patients' interests and in the interests of politicians in power. The Minister may not agree with that, but I do not think that it is a contentious issue. In the end, arbitration will be needed to elucidate the matter for the public, because we would both aver that some priorities do not damage the interests of patients, but I would aver that some do. It would be useful if the Commission for Health Improvement could consider the issue, particularly given the Government's claim that it is independent.

That brings us to the key point. The Minister boasted about new subsection (1A), which gives the so-called independent Commission for Health Improvement the

    ''functions of conducting reviews and of carrying out investigations'',

including

    ''(a) the collection and analysis of data, and

    (b) the assessment of performance against criteria.''

He specified that politicians would impose the criteria. The commission will not have the freedom to question them and will be bound by them when it comes to end points and outcomes. It will be asked how a trust is performing on maximum waiting times, without being able to question whether those act against patients' interests. The powers in sections 20(3) and (4) of the 1999 Act force the commission to comply with any directions given under that section, which might include directions not to criticise the criteria against which they should measure performance. That does not reassure us that the commission will be as independent as the Government claim.

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If the Government think that independence is so important, why do they not make the commission independent? One could take the view that the Government have a job to do, that they should determine what they believe to be the quality issues and that the commission should be their tool to ensure that the service does their bidding. In that case, however, they should not claim that they are making the commission independent. The more independence they give it, the less able it will be to do their bidding. That is why the Government seek to have it both ways. They claim that sections 20(3) and (4) of the 1999 Act simply govern the appropriate use of public money. That means that similar provisions would have to be defended using the wide power to give directions and the clear requirement to comply with them that is placed on the commission. Such provisions would have to be reflected in every other statutory body in this area. The Government clearly seek to have it both ways, so I accept the Minister's invitation to return to the issue later at a later stage.

 
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Prepared 4 December 2001