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House of Lords

Monday, 27 February 2012.

2.30 pm

Prayers-read by the Lord Bishop of Liverpool.

Deaths of Members


2.35 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the deaths of the noble Lords, Lord Carr of Hadley, on 17 February, Lord Corbett of Castle Vale on 19 February, and Lord Hooson on 21 February. On behalf of the House, I extend our deep condolences to the noble Lords' families and friends.

Roads: Traffic Lights


2.36 pm

Asked by Lord Spicer

Earl Attlee: My Lords, we believe it is unnecessary since, unlike in the United States, most UK traffic lights use traffic-responsive systems to reduce delays and improve traffic flow. In addition, the majority of UK signal junctions are provided with pedestrian facilities, which give a green signal only when conflicting traffic is stopped. Any proposal to allow traffic to turn through pedestrian signals would need to resolve the potential for pedestrian safety to be compromised.

Lord Spicer: I thank my noble friend for that Answer but the position in the United States needs to be made clear. According to the American embassy, ever since 7 December 1975 every state has permitted right turning on red traffic lights with no consequent detrimental effect on safety, and with a positive effect on the flow of traffic and, therefore, on energy conservation. Why can we not try something similar with left-turning traffic lights here?

Earl Attlee: My Lords, the short answer to the noble Lord's last point-why can we not try something similar here-is that we believe that it would increase the accident rate. It is very important to understand that the road layout in the United States, particularly in urban areas, is very different from that in the United Kingdom. There is far more space, the junctions are much larger and the cities tend to be laid out on the grid system.

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Lord Berkeley: My Lords, does the noble Earl agree that the main difference between the United States and here is that being a pedestrian is thoroughly discouraged in the US? You are supposed to drive around 50 yards if you have to and I do not think that there are any bicycles at all. Given that we have lots of pedestrians and a growing number of cyclists, does he agree that, if anyone is going to turn left on a red light, it would be much better if they were cyclists, if it is to be done carefully?

Earl Attlee: My Lords, noble Lords behind me are saying, "No way", and I think they are right. There are already ways of giving cyclists priority over other traffic and improving their safety at junctions-for example, by introducing advance stop lines and cycle bypasses, and providing dedicated traffic signals for cyclists if required.

Baroness Kramer: My Lords, I am sure the Minister will be aware that New York City does not permit the right turn on red precisely because its layout is so similar to the kind that we see in cities and towns across the UK. Having spent many years driving in the United States, in places that permit a right turn on red, I can say that the problem is not traffic. You can see clearly whether traffic is in the way ahead and to the left, but it is virtually impossible to see whether pedestrians are crossing ahead and to the right. Therefore, in support of all those Members who have said that the difference is that we live in a pedestrian's world, the United States regards pedestrians pretty much as aliens.

Earl Attlee: My noble friend is absolutely right in all respects.

Lord Davies of Oldham: My Lords, I am normally in favour of the British public moving leftwards with the greatest possible facility but on this occasion I agree with the Minister. Very serious accidents have recently been caused by large vehicles turning left and hitting either cyclists or pedestrians because their visibility was restricted. As the Minister has indicated, the fact that our junctions are so much more difficult than the grid system in the United States creates an additional danger and disadvantage.

Earl Attlee: My Lords, I am very grateful for the noble Lord's observations.

Lord Skelmersdale: My Lords, although this question refers specifically to the United States, has my noble friend considered the position in France, where the conditions are very similar to our own?

Earl Attlee: My Lords, if you look at Paris the conditions are more similar but, as I understand it, Paris was relaid out at one point so the road conditions there are different from those in the United Kingdom. In addition, as I said in my initial Answer, our traffic light system is responsive, so allowing left turns would not give the improvements in productivity that you would get in other countries.

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Organ Transplantation


2.41 pm

Asked by Baroness Gardner of Parkes

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the National Organ Retrieval Service-NORS-provides continuous 24/7 cover. I understand there have been two exceptional occasions when a NORS team could not be provided. Contingency arrangements enable other teams to stand in when needed or for local kidney transplant centres to be reimbursed for retrieving from kidney-only donors. NHS Blood and Transplant is also considering a tariff to fund National Organ Retrieval Service teams willing to provide additional cover.

Baroness Gardner of Parkes: Can the Minister confirm for me a statement that was made when I was chairman of one of the London teaching hospitals-that when you die your body is no longer your own? That is a highly significant point in the case of people who carry donor cards but whose relatives reject them. Can he also assure me that they will do something to ensure that when potential donors come to accident and emergency at weekends due to accidents, the retrieval team is alerted to the possibility that such organs-each of which is very precious to the recipient-may be available?

Earl Howe: My Lords, it is a well established principle of law that there is no property in a corpse. This means that, as a general rule, the law does not regard a corpse as property protected by rights. In other words, there can be no ownership of a dead body. However, the law does prescribe what may lawfully be done with the body of a deceased person. For example, a person can say while they are alive what they would like to happen to their body after death, such as donation of organs. My noble friend raises an extremely important point about A&E. The number of donors from A&E units is improving but it is generally recognised that it had to because performance was not good. Since 2007-08 there has been a 388 per cent increase in donations from emergency medicine, which is good news, but there is much more that could be done. The transitional steering group that we have set up under the chairmanship of Chris Rudge is looking at that area as a priority.

Baroness Howarth of Breckland: My Lords, it is widely recognised that the Government and the previous Government have made huge strides in this area but from a fairly low position. Many countries in Europe-particularly Spain-do much better than we do. What are we doing to ensure that we are learning from others and making the improvement even faster? Every day is someone else's life.

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Earl Howe: The noble Baroness is absolutely right. The record in Spain is particularly interesting because the rate of donation is about twice what it is in this country. It is interesting to observe that Dr Matesanz, who is head of the transplantation effort in Spain, observed that this was not, in his opinion, due to the opt-out system which Spain employed in 1979. It is much more to do with the organisation of the service which came in about 10 years later. That is what we are trying to replicate in this country.

Lord Hughes of Woodside: My Lords, is it not the case that despite the great advances that have been made there is still a problem, whereby if someone carries a donor card the relatives still have to be consulted, and very often they say no? Can we do something to speed that up, if we cannot go for the proper opt-out system?

Earl Howe: The noble Lord makes a good point. It is generally the practice that the relatives are consulted even where someone has expressed a wish to donate an organ after death. Doctors will normally respect the wishes of the relatives; however, it is equally true that that person's wishes will be emphasised to the relatives. There is a delicate balance to be struck here. The moment that action by medical teams is seen to be high-handed, it risks damaging the credibility of the transplant service.

Baroness Barker: My Lords, what is the Government's response to the recent BMA report on increasing donation, particularly regarding the obligation introduced last year on individuals who apply or reapply for documents such as driving licences and passports to answer a question about donation of organs?

Earl Howe: My Lords, the report from the BMA was very useful and we are looking at it extremely carefully. It made some useful suggestions about how we might expand the number of donor organs. A number of initiatives have already been taken: for example, there is a prompt when you apply for a driving licence online as to whether you wish to donate an organ. In general, public awareness is being raised in a number of useful ways, which has led to the increase in the number of people donating organs.

The Lord Bishop of Liverpool: My Lords, I very much welcome the increase in the number of donors. I have been pastorally involved with the Alder Hey families and seen the devastating effect of the taking of organs without consent, and I have been involved in the burial of 10,000 bodies and body parts. Can the Minister assure the House that in the work towards a more efficient and effective system of harvesting organs, the principle of requiring the consent of next of kin will not be compromised?

Earl Howe: The right reverend Prelate is absolutely correct. In England, Wales and Northern Ireland, the Human Tissue Act 2004 requires that appropriate consent be given for the removal, storage and use of material from a deceased person for a range of purposes, including transplantation. Appropriate consent means the deceased person's consent or that of his or her

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nominated representative, or of a person who stands in a qualifying relationship to the dead person. There are no plans to change that principle.

Lord Davies of Coity: My Lords, can the Minister-

Lord Patel of Bradford: My Lords, while we have seen an improvement over the years in the number of donors from minority and ethnic groups, particularly the south Asian community, for a whole host of reasons, including religious and cultural matters, the number of donors needed to come through the system remains very short of what is required. What are the Government doing to improve the situation?

Earl Howe: The noble Lord is quite right: 75 per cent of people from a BME background refuse to donate organs when asked to, compared with an average figure of 40 per cent across the population. We are completely committed to increasing organ donor rates among the BME population, and there has been funding to support specific projects to work with local faith leaders and explore issues around organ donation. We held a workshop on 7 February with national and local groups to identify the barriers that exist in the BME and mixed-race communities, and plans are being developed to take forward that work. We have public awareness campaigns on local radio stations and through organisations such as the African-Caribbean Leukaemia Trust.

Lord Cormack: My Lords, if a donor expressed his or her wish in a will, would that not be legally binding?

Earl Howe: My Lords, I am advised that it would not be legally binding.

Lord Davies of Coity: My Lords, the question that I was going to ask earlier has been answered. However, the question I am going to put now is this: are the same people who will not participate in the donation of organs also reluctant to receive organs from donors?

Earl Howe: No, my Lords, and that is part of the problem.

Baroness Walmsley: Will the Minister accept that it can be very difficult for doctors to approach a bereaved family to ask about organ donation? I know this from personal experience, because doctors did not approach me when I lost my late husband; I had to raise the matter myself. It is understandable that they do not want to upset the family. However, can it not be even more upsetting for a bereaved family who have not been asked about donation to realise some time later that they have missed the opportunity for their loved one to give life to other people?

Earl Howe: My noble friend raises an extremely important set of issues. This was one issue identified by Chris Rudge when he took up the post as National Clinical Director. A great deal of work has been done in the NHS to increase the number of organs available to patients and to have the kinds of conversations with families that are necessary but very delicate. There has been an increase in the number of specialist nurses for

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organ donation who are of course highly trained in that area, and appointments of clinical leads for organ donation have also helped.

Film Industry: Development and Production


2.51 pm

Asked By Baroness Jones of Whitchurch

Baroness Garden of Frognal: My Lords, the independent review panel of the noble Lord, Lord Smith, recently recommended to government that discussions should be initiated with the major broadcasters with the aim of agreeing a memorandum of understanding with each, setting out agreed commitments to support British film. Should discussions prove unproductive, the panel recommends that the Government consider legislative solutions. We are actively considering the report and will respond to its recommendations in the spring.

Baroness Jones of Whitchurch: I thank the Minister for that reply and extend my congratulations to last night's Oscar nominees of films produced and filmed in the UK. It is widely acknowledged that British film is able to compete with the best in the world. However, although we have the creativity and talent, the noble Baroness will know that filmmakers still struggle to raise the finance to make independent UK films. Channel 4 and the BBC make an important contribution through their separate film production arms, but other national broadcasters are effectively able to freeload on the investment of others. I very much acknowledge that the noble Baroness said that she was considering the report of the noble Lord, Lord Smith. However, given the importance of UK film to both our economy and our national identity, are the Government prepared to follow the example of several other European countries and require all broadcasters to invest in future film production at similar levels to that of Film4 and BBC Films?

Baroness Garden of Frognal: I happily join the noble Baroness in congratulating the Oscar winners, and indeed Channel 4 on its recent BAFTA successes and the BBC on its highly acclaimed BAFTA nominations. I entirely agree with her about the important contribution that Channel 4 and the BBC make to British films. However, on her other point, at the moment the Government do not have the levers to require broadcasters to invest in film. As I indicated, we are actively looking at the wide-ranging recommendations put forward by the noble Lord, Lord Smith, in his review, and we will respond to those after due consideration.

Lord Smith of Finsbury: My Lords, in the aftermath of the success of the film "The Artist" at both the BAFTAs and the Oscars, will the Minister recognise that in France the broadcasters are required, in return for their licence, to invest in French film production?

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This resulted last year in investment of £420 million in French film production. Here in the UK, the BBC currently invests £10 million, Channel 4 invests £15 million, and Sky and ITV invest precisely nothing. Is it not time that all the major broadcasters here in the UK stepped up to the table and played their part in investing in British independent film production?

Baroness Garden of Frognal: I thank the noble Lord for his review, which has some very important recommendations in it. The points that he makes about other countries investing in film are indeed well made and we shall be looking at the patterns that they suggest. However, public funding for film is reasonably substantial. It is estimated to have been £296 million in the financial year 2009-10, which is an increase on the previous year and does not include local authority, research council or higher and further education funding. There is possibly room for more investment from some of the television channels but at the moment British film is not doing too badly from public sector money.

Baroness O'Cathain: My Lords, is it not true that this would create an enormous precedent? Is there any other industry where investment in something would be insisted on? Surely any organisation has the right to decide what it invests in on the basis of the business plan it is marketing. I do not feel that we should make an exception for film, even though it is part of the creative industries. I think that a fantastic job has been done in film without asking people to invest in it.

Baroness Garden of Frognal: My noble friend is of course right that those other channels are commercial and therefore they have to take decisions on commercial grounds. However, as I said, all these issues will come under much deeper consideration as we look through the recommendations from the report of the noble Lord, Lord Smith.

Baroness Farrington of Ribbleton: My Lords, will the noble Baroness join me in congratulating particularly those in further and higher education who in this area and the areas of arts and culture often find that the high level of work that they do and the very good opportunities and careers that many of their students have are depressed when there is a generalised attack on what are called "soft subjects"?

Baroness Garden of Frognal: Yes, I would indeed agree with the noble Baroness on that. The cultural industries make a huge contribution to the nation. Regarding her reference to education, in his report the noble Lord, Lord Smith, makes a point about trying to bring a new unified offer for film education, suggesting that making, seeing and learning about film should be available to schools in an easy and accessible offer. That enthusiasm within schools will also build on and strengthen the offerings to this area being made in further and higher education.

Baroness Benjamin: My Lords, we have a wealth of creative talent here in the UK, as we have already heard, and I add my congratulations regarding all the

27 Feb 2012 : Column 1042

BAFTA and Oscar nominated British productions. However, we have a wealth of talent which is grossly underused because of the lack of British-made and British-produced films for children. Will the Government consider following the examples of other European countries, especially that of Denmark? As well as asking UK broadcasters to fund films dedicated to children and teenagers, will they also encourage the BFI to ring-fence a percentage of its budget for such productions? Will the Government also consider implementing a tax credit for the UK animation sector?

Baroness Garden of Frognal: My noble friend is a great champion of programmes for children and young people. Indeed, the review recognises that British independent films aimed at children and families may be underrepresented. Tomorrow, Darren Henley's cultural review will be published. Without pre-empting it, I imagine that it will also fuel further discussion in this area on programming for children and young people.

Baroness McIntosh of Hudnall: My Lords, the Minister referred to the availability of public funds for film production. Can she say whether in future the quantum of funding available through the BFI arrangements will be protected and indeed whether it has any chance of growing?

Baroness Garden of Frognal: My Lords, future funding is a matter for further discussion. There are some very strong arguments about why it makes economic sense, as well as sense in all sorts of other areas, to keep that funding at its current levels. However, that will have to be taken into consideration along with other funding demands.

Health: Neurological Conditions


2.59 pm

Asked by Lord Walton of Detchant

Lord Walton of Detchant: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare an interest as a former neurologist holding honorary positions with many neurological charities.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, we will be providing a detailed written response to the National Audit Office report Services for People with Neurological Conditions in due course. While some progress has been made, we acknowledge that there is more to do to improve care for people with neurological conditions. Work is under way to develop a new outcome strategy for long-term conditions and to introduce more personalised care, including piloting of personal health budgets.

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Lord Walton of Detchant: My Lords, I thank the noble Earl for that reply. This report was extremely critical in demonstrating serious inequalities in the standards of care for patients with various neurological conditions, not least Parkinson's disease, multiple sclerosis, neuromuscular disease and many more, in different parts of the UK. That is highlighted by two major inquiries conducted by all-party groups demonstrating serious deficiencies in the care of patients with parkinsonism and neuromuscular disease. Is it not time that the Government appointed a neurological tsar to oversee the situation and to recommend improvements?

Earl Howe: My Lords, I pay tribute to the noble Lord's extensive work in Parliament on behalf of those with neurological conditions. We have taken the view that the appointment of a tsar or a clinical specialist in this area should be one for the NHS Commissioning Board. It is satisfied with that position and we must await its determination on that.

Baroness Hussein-Ece: My Lords, the report also highlighted important indicators that the quality of care for people with neurological conditions in some instances had worsened. For example, the number of people admitted to hospital as an emergency had increased significantly and, indeed, emergency readmissions after spending a night in hospital have increased for patients with Parkinson's disease, multiple sclerosis and motor neurone disease, to give three examples. What are the Government doing to address this?

Earl Howe: My noble friend is quite right. We know that people with long-term neurological conditions are high users of NHS services and, as the NAO report identifies, they often have high levels of unplanned admissions to hospital. To help to provide personalised care and to support better-planned care, there is quite a deal of evidence-of the generic kind, but nevertheless very useful-out there for neurological patients. It focuses on the individual, on planning, on supported self-care and on how patients themselves can improve their own outcomes. We are building a strategy on that model to set out how local authorities, the voluntary sector and government agencies can work together to prevent the kind of emergency admissions to which my noble friend refers.

Baroness Masham of Ilton: My Lords, does the Minister agree that specialised nurses working on these very complicated neurological conditions are very important? Would he see to it that their services are not cut but increased?

Earl Howe: The noble Baroness is quite right that specialist nurses provide an important source of support and advice to patients with a range of neurological conditions. They enable patients to manage their own condition effectively, as I mentioned just now. Guidance issued by NICE is clear on the important role that specialist nurses can play in the provision of effective services for those living with a range of neurological conditions.

27 Feb 2012 : Column 1044

Baroness Gardner of Parkes: Has the Minister seen the reports in the newspaper today about the worry that people have about the shortage of medication for those with Parkinson's disease, for example? Is it a worry more in the press than in reality? How can the Government ensure adequate supplies of necessary medication for these cases?

Earl Howe: There have been shortages of certain medicines over the past two or three years for a number of reasons; there is not a single reason. The Department of Health is working with the medicines supply chain established under the previous Government, and is doing very effective work. It is liaising with manufacturers, wholesalers and the pharmacy trade to ensure that medicines are available when needed. I have not seen the article to which my noble friend refers, but we are not of the view that there is any need for undue concern. However, we are keeping the position under review.

Baroness Thornton: My Lords, it has been suggested that the UK currently does not have enough neurologists-that there should be one neurologist per 40,000 people, and at the moment we have one neurologist per 125,000 people. How will the Government increase the number of neurologists; and how will they do that under the current proposals for the reform of the NHS? Who will drive that increase?

Earl Howe: As the noble Baroness may remember, the National Service Framework for Long-term Neurological Conditions set out as a principal requirement the need for an appropriately skilled workforce to manage the care of people with long-term neurological conditions. At the moment that is the responsibility of primary care trusts. The good news is that full-time equivalent numbers of consultants have been rising steadily. According to the Information Centre census, there were 523 in 2010, an increase from 517 the previous year and from 449 in 2004. To answer the latter part of the noble Baroness's question, I can say that the Centre for Workforce Intelligence will feed into Health Education England, which will in turn inform the local partnerships that we intend to establish under the reforms, so that there is both a national and a local input on workforce numbers and the numbers we need to train to deliver the service that patients require.

Lord Brooke of Sutton Mandeville: My Lords, in the context of the all-party report to which the noble Lord, Lord Walton of Detchant, referred, is my noble friend aware that, of the time invested in the production of that report, some 97 per cent was provided by Members of your Lordships' House? Does he think that that has any relevance in the context of discussion about the future of the House of Lords?

Earl Howe: I am sure that my noble friend will introduce that and other considerations when we come to debate House of Lords reform. I will observe that, when I was on the opposition Benches and used to attend all-party group meetings on neurological conditions, practically the only people there were Members of your Lordships' House.

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Licensing Act 2003 (Diamond Jubilee Licensing Hours) Order 2012

Motion to Approve

3.07 pm

Moved by Lord Henley

Baroness Royall of Blaisdon: My Lords, I speak to this Motion in relation to a matter of business that the Government would like your Lordships' House to take on Wednesday of this week-namely, consideration of Commons amendments to the Welfare Reform Bill.

During the passage of the Welfare Reform Bill we on these Benches have risen on business Motions to speak to a number of matters, including Commons financial privilege. I apologise to the House for having to do so again today, but the lack of proper opportunities to raise points of order about the business of this House is a gap in the procedure of this House. I intend to write to the chairman of the Procedure Committee, the Chairman of Committees, proposing that the committee consider this issue. It will not be a surprise to the Leader of this House that I am raising my concerns today about the ping-pong arrangements for the Welfare Reform Bill, because we discussed the matter in a telephone call on Thursday.

The Government have decided that this business should take place on Wednesday as dinner-break business. We believe that that is completely inappropriate for this Bill, which is a major piece of government legislation that affects large numbers of people in this country, especially vulnerable ones. We on this side of the House believe that welfare in this country needs reform. However, we do not believe that some of the changes put forward in the Bill are the right ones. It is precisely because we believe in welfare reform that we believe that the Bill should at all times be handled and considered properly by this House. In line with that, we do not believe that considering what the Commons wishes to put before this House should be done as a piece of dinner-time business during another major Bill. This Bill and the House deserve better.

We also object to the way in which this business is being scheduled for your Lordships' House. This House is not like the other place, and we rightly pride ourselves on self-regulation. This House is proud, too, that in many respects we proceed by agreement and consensus. This House wants to see these points reflected in the way that business is organised here, which in turn means the smooth running of the usual channels arrangement. We have a very good relationship between the usual channels of this House.

However, the usual channels, of course, occasionally have their ups and downs. We do not believe that announcing that a stage of a Bill of this magnitude will be taken as dinner-break business should be

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done without the agreement of the usual channels. To make such an announcement simply by changing the forthcoming business publication makes things that much worse, especially when it happens during a week when your Lordships' House is in recess. I believe that this could be to the inconvenience of the whole House, and we do not believe that this is what the Government should be doing. Whatever the scale of the Government's political majority in this House, we do not believe that this is the sort of behaviour that your Lordships' House wants to see.

We on these Benches have put all these points to the Government previously, but even at this late hour we urge them to reconsider. We urge them not to take this important parliamentary stage of this important Bill as dinner-break business on Wednesday, but to allow the matter to be considered by the House properly and in full. We urge the Government to reflect on this and to think again.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I am astonished and a little disappointed by what the noble Baroness has just said. I would understand it if there were some sort of government ploy to catch out your Lordships by giving the House just under a week's notice of ping-pong, but everything that we have done on this Bill has been entirely precedented. It is well precedented to take more than one Bill in a day; it is well precedented to take divisible business, including ping-pong, in the dinner break; and it is well precedented not to take ping-pong as first business. What is so appalling about what the noble Baroness has just said is that each was done under her own Administration and, indeed, under her leadership.

I should remind the House that the Standing Orders allow us to take ping-pong not only at any point in the day but as last business and without notice, both of which are also well precedented. On this occasion, we advertised a date for this second round of ping-pong last Thursday, in time for each party's Whip and group notices. The Government can hardly be accused of squirreling away the business when we have given the House nearly a whole week's notice.

I am at a loss to understand what is going on. However, there was brought to my attention a twitter by the Deputy Leader of the Opposition, who calls himself-

A noble Lord: A tweet.

Lord Strathclyde: A tweet, rather. He calls himself LordPhilofBrum. In it, he said:

"Appallingly the Govt have scheduled vote out of normal voting time on Wednesday evening".

But the last time we voted on this issue it was 8.17 at night. The idea that we vote only before 7 pm is entirely new to me in the 25 years that I have been a Member of this House. This is a bogus protest and I very much hope that we can carry on with the Motion before us.

Motion agreed.

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Health and Social Care Bill

Report (3rd Day)

Relevant documents: 18th and 22nd Reports from the Constitution Committee

3.15 pm

Clause 19 : Regulations as to the exercise of functions by the Board or clinical commissioning groups

Amendment 38A

Moved by Baroness Masham of Ilton

38A: Clause 19, page 14, line 9, at end insert-

"( ) The regulations must require the Board to include in terms and conditions prepared by virtue of subsection (5)(a) provision for a requirement to be placed upon any organisation that enters into a commissioning contract to provide healthcare with the Board or with a clinical commissioning group to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the contracted healthcare to that patient where the incident has resulted in-

(a) any injury to a patient which, in the reasonable opinion of a health care professional, has resulted in-

(i) an impairment of the sensory, motor or intellectual functions of the patient which is not likely to be temporary,

(ii) changes to the structure of a patient's body,

(iii) the patient experiencing prolonged pain or prolonged psychological harm, or

(iv) the significant shortening of the life expectancy of the patient; or

(b) any injury to a patient which, in the reasonable opinion of a health care professional, requires treatment by that, or another, health care professional in order to prevent-

(i) the death of the patient, or

(ii) an injury to the patient which, if left untreated, would lead to one or more of the outcomes mentioned in paragraph (a)."

Baroness Masham of Ilton: My Lords, in moving Amendment 38A, I must explain to your Lordships why it is so important. I wish only that the Minister, the noble Earl, Lord Howe, was moving it.

When legislation is before your Lordships it is our duty to try to improve it. For years there has been a serious cover-up and a closing of ranks in many cases when something has gone wrong with patients' treatment and they or their next of kin have not been kept informed. If there is not openness and honesty, there could be years of frustration and consternation resulting from trying to find the truth through litigation. The only winners are the lawyers.

Last Monday at 8 pm on Radio 4, and today, there was a programme entitled "Doctor-Tell Me the Truth". The programme explores how patient safety can be improved by doctors admitting to mistakes. In some states in America, medical practitioners must be open about their errors. Instead of increasing litigation, this has lessened it.

I was involved through the Patients Association with some of the next of kin of the patients who tragically died in the Mid Staffordshire NHS Foundation Trust hospital. I congratulate the Government on

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holding a review into the hospital, where the culture was the very worst and there was a fear to disclose the truth. Surely it is time we put something into legislation to help change this culture.

I was sorry that the amendment which I previously moved-which would have introduced a statutory obligation to provide a duty of candour applying to all providers registered with the Care Quality Commission-did not succeed. However, it was made clear by the Minister that the CQC could not undertake this role. Perhaps it has too much to do satisfactorily and it is just not up to it.

The Minister, the noble Earl, Lord Howe, said:

"I remind the House that the Government's preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC".-[Official Report, 13/2/12; col. 591.]

An independent body still seems to me to be the best option as it is transparency and honesty that we need, and front-line medical personnel may still try to cover the mistakes made by members of their profession. I hope not.

Amendment 38A covers what the Government say is the best route to go down. I have had letters imploring me not to give up as so many members of the public, who have been patients or who are their next of kin, have had bad experiences and feel now is the time to change this culture of fear and secrecy. The amendment makes provision for,

and the amendment goes on to mention various harms. If the amendment is not quite correct, perhaps the Minister would accept it and correct it for Third Reading. It would be a start to something that must happen if patients and families are to have much-needed trust in the professionals who care for them. I beg to move.

Lord Walton of Detchant: My Lords, I added my name to this amendment for one reason and one reason only: in the hope of seeking assurances from the Minister. When I first joined the General Medical Council in 1971, the president was the late Lord Cohen of Birkenhead, who was a wonderful man. He was a fine physician, but he was an autocrat and his views were very traditional and in some respects, I have to say, somewhat backward. He told me, "Never apologise to a patient. The lawyers will get after you". He told me, as a young man, "Never speak to the press or to the television. They will misquote you always". Happily, since that time the General Medical Council has progressively changed its view. Now the recommendation made to all medical practitioners is that, if you have made a mistake, if you have committed an error, it is your duty to apologise to that patient sincerely. An apology does not mean an admission of

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liability; it is simply a sincere apology for a mistake. I hope that is the case in respect of all other healthcare professionals whose activity is regulated by law. I would like an assurance from the Minister that that is the case.

The purpose of this amendment, which has been so well proposed by my noble friend, is to confer on health bodies, whether clinical commissioning groups, independent foundation trusts or other organisations providing medical care, a similar obligation and, indeed, the duty to apologise for errors that have occurred under the auspices of those organisations. I simply ask the Minister whether, in the contracts that these bodies hold with the NHS, such an obligation is a part of the contract. If it is, it may not be necessary to have such an amendment on the face of the Bill. I hope the Minister can give me those assurances.

Lord Harris of Haringey: My Lords, I support this amendment because I believe that it is a sincere attempt by the noble Baroness, Lady Masham, to help the Government out. I do not intend to repeat the arguments that we had a few days ago on Report about placing on institutions a rather stronger statutory obligation to inform patients where mistakes had taken place, partly because we have had that debate. During that debate, the Minister repeatedly expressed the view that the objectives of the amendment could be achieved by placing a contractual obligation on organisation to do this. This amendment quite simply requires that that contractual obligation takes place. I am assuming, therefore, that the Minister will accept the amendment, because it does exactly what he said he wanted to do in his previous speech.

The amendment also expresses the concerns raised by a number of your Lordships in Committee and one or two on Report that perhaps placing the duty and obligation directly on organisations and the individuals involved would be inappropriate and that that would provide too rigid a framework. However, as the amendment does what the Government said would solve the problem, I hope that the Minister will indicate that he is happy to accept it in this form.

The reason why I think that it is helpful to the Government is, as may not have escaped the Minister's attention, a certain amount of criticism of the Department of Health and of this Bill is prevalent at the moment. For example, a letter was published in the Telegraph this morning which said:

"The Coalition Government promised to ensure greater NHS accountability to patients and the public. We believe this aspiration has now been abandoned".

That was signed by a large number of people active in representing the interests of patients around the country. It is not specifically about this issue; it is about an issue that we will come on to very shortly in terms of HealthWatch. But there is a very widespread concern that, despite all the rhetoric that we have heard from the Government about "no decision about me without me", that aspiration has been lost in this Bill.

Part of the way of getting patients to have confidence in their health service is through the knowledge that if something goes wrong the fact will be shared with them. The Government said that they did not want a

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statutory obligation to be placed on individuals or institutions to do that, but they said that they would like contractual arrangements to be put in place. This amendment makes sure that those contractual arrangements are put in place, and I would have thought that the Government would want to accept it so as to demonstrate that even now there is some good faith left around their desire to put patients at the centre of the NHS changes.

Baroness Finlay of Llandaff: My Lords, I support this amendment and urge the Government to accept it as it is written. I hope that the Government can see that this is very helpful; it fits with the points made by the Minister in his summing up in response to the previous amendment tabled by my noble friend Lady Masham about there being agreement on the importance of openness and candour in healthcare. The Minister went on to say that,

He added that there was agreement that something needed to change.

The beauty of the way in which the amendment is worded is that it distinguishes between major and minor occurrences. It emphasises the true duty of candour to disclose events that have affected a patient either medically or physically and that may have long-term effects. It does not focus in any way on anything trivial and requires the contractual duty of candour to be put into the contracts, which was exactly the content of the Minister's summing-up speech last time.

Lord Faulks: My Lords, I remember well the degree of consensus in your Lordships' House when we debated the statutory duty of candour-namely, that everything should be done to embed in the NHS the culture of openness and to be against any form of cover-ups. However, as I said on that occasion, the world has moved on a little since the days of Lord Cohen-with great respect to the noble Lord, Lord Walton. A number of initiatives have resulted in greater openness by clinicians and a sense of responsibility, which one can find right across the health service. All is not perfect, of course. The duty of candour has been much discussed in academic circles, and the noble Baroness referred to the experience in America where some states-not many-have a duty of candour. But there are very serious arguments that run to the effect that imposing a duty of candour can have adverse effects in that many are thereby encouraged to sue in circumstances where they might not otherwise have sued.

The form of this amendment is certainly good in the sense that it focuses on the serious rather than the trivial. None the less, it does contain the word "incidents", which is extremely difficult to define. In what circumstances does a clinician, or those employing a clinician, have to go through the processes that the amendment involves? From what the noble Earl said on the last occasion, the Government clearly take the matter of candour extremely seriously. There is a consultation about it and, in due course, there will be reflections of that duty in the contract. Although I am entirely sympathetic

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to what lies behind this amendment, I am a little concerned that imposing terms, with the inevitable imprecision that this form of amendment carries with it, is not at the moment the answer.

Baroness Tyler of Enfield: My Lords, I, too, spoke briefly in the debate last time about the statutory duty of candour. At the end of that debate the Minister gave a number of important reassurances. One was to review the contractual duty in a specified period to see how effectively it was working. The second was to do with further work to explore how this whole issue could be taken forward in the area of primary care-an area which I, and certainly colleagues on these Benches, still feel is extremely important. I would be grateful if the noble Lord, in summing up, could say anything further about how a contractual duty of candour would apply to those in primary care. Also, could he give any further reassurances at this stage about the reasons why he feels that a contractual duty of candour in the way which is set out in this particular amendment would be effective?

Lord Campbell of Alloway: I very briefly take the point made about an apology for the mistake. I do this because when I was an advocate I appeared before the BMA for quite a lot of medical professionals. If your client says, "I am terribly sorry for my mistake", it puts one in a very difficult position; the advocate must show that the mistake had nothing to do with the result. I will not take up time, but say merely, as an erstwhile advocate, watch it.

Lord Faulks: Before the noble Lord sits down, could he confirm that, since the Compensation Act 2006, an apology is no longer deemed to be an admission of liability?

Baroness Hollins: My Lords, I support the amendment, particularly because it draws attention to the point that often patients experience prolonged psychological harm after an incident, something that is not well understood across the whole of the medical field. Such psychological harm is often overlooked. However, there is plenty of evidence that an honest and prompt apology can do so much to help the person and their family going forward. It is fair to say that delaying a response is very much like denying a response. The timeliness of a response is critical.

Lord Turnberg: My Lords, As someone who taught medical students for many years that it is very important to be absolutely open and candid with your patients, and that, if something has gone wrong, to explain it in full to the patients and their relatives-explaining that that is not necessarily an admission of guilt in some way-I am very keen on the sort of sentiment that is being expressed in this amendment. I am particularly keen on the GMC imposing on doctors the duty of being open. I am all behind the sentiments of this amendment. I have some anxiety, though, about how this can be put into law. How can you legislate for someone to be candid? How will it work? How do you know that someone has been candid or not? There is a great deal of subtlety about this candour and about

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putting it into law as a duty on every occasion. I am slightly apprehensive about the amendment, even though I support everything about the principle.

Lord Winston: My Lords, I find it very difficult, as I have said before, to accept or support this kind of amendment, but I strongly believe in candour and I totally support what many noble Lords, including my noble friend Lord Turnberg, have said around the House. However, there are major problems with putting this kind of amendment into legislation, which would make it extremely difficult to be reasonable. There would be real risks of serious psychological harm to quite a lot of patients. One of the last things we want to do is to involve patients in a perceived injustice or perceived negligence which turns out to fail miserably in the courts of law. I have seen that as horribly damaging with patients I had in the past when I was a medical practitioner, which I am of course no longer.

The other issue not adequately dealt with in this amendment is that of time. At what stage is it justified no longer to be candid? Should somebody who, let us say, sees something from that same health authority a year or two later, or three or four, still be candid about what they think may have gone wrong, or where they are not absolutely certain that it has gone wrong? There is a colossal difficulty in trying to enforce this. Far better is the idea of having some kind of code of practice, to which I think my noble friend Lord Turnberg referred, which ought to be acceptable to doctors.

When I was a trainee surgeon, we did innumerable partial gastrectomies. We now know that that operation was really mutilating and totally wrong; it actually resulted in many people losing weight and not being able to hold down a proper diet. Subsequently, of course, peptic ulceration could be treated by a simple antibiotic therapy. Now, at what stage does that treatment become established or a gastrectomy become a negligent operation? These are very difficult things to define, and I urge that we should not write this proposal into law in the way that is proposed.

Baroness Wheeler: My Lords, we had a long debate on this very important issue of the duty of candour before the Recess, and I do not intend to take up very much of the House's time on this amendment by responding to the issues that we covered then, or by repeating our views on why we are concerned that the Government's current proposal for a contractual duty will not address the need for the huge cultural change in the NHS that has to take place in order to ensure openness and honesty when things go wrong in the care and treatment of patients.

Nevertheless, I hope that the Minister will accept the case for regulations on including the duty of candour in commissioning contracts. We on these Benches emphasise our commitment to trying to help to make the contractual duty work. I therefore place it on record that we welcome the Minister's reassurance during the previous debate that he will come back to the House on the outcome and actions resulting from the current government consultation on the contractual duty. I also hope that he will be magnanimous in the victory that he had before the Recess in the vote rejecting statutory requirement by standing by his

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assurances on a future review of the effectiveness of the contractual duty, after an appropriate period, and whether its effectiveness is being held back by the lack of statutory provision. My third hope is that the NHS Commissioning Board will issue clear and strong guidance to assist CCGs in this matter, and I look forward to the Minister's response.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, this has been another very good debate on the duty of candour. As we have discussed previously, the Government's position is that the NHS contracts are the most appropriate mechanism through which to implement a further requirement for openness. Amendment 38A proposes that the contractual duty of candour should be given a specific reference in primary legislation. I hope that I can satisfy the House on this and that the undertakings I am about to give the noble Baroness from this Dispatch Box will reassure her sufficiently to enable her to withdraw the amendment.

I give an assurance to the House that the Government propose to use the provisions in Clause 19 relating to the standing rules to specify that the contractual duty of candour must be included in the NHS standard contract, developed by the NHS Commissioning Board. If that assurance is accepted, as I hope it will be, a specific reference is not required to ensure that a contractual duty of candour is imposed. The question, therefore, is whether, despite my assurance, it is necessary or appropriate to include a provision in Clause 19. I have given this proposal substantial thought, and I admit that it is one which on the surface has some appeal. I have spent a good deal of time discussing the matter with noble Lords as well as with Professor Sir Bruce Keogh, the NHS Medical Director.

Let me explain where my deliberations have taken me. At present there is a very wide range of issues that we incorporate into the standard contract. These include issues of paramount importance to the quality and safety of healthcare. For example, the contract is used as one of the mechanisms that we are using to drive improvements in prevention of venous thromboembolism, or VTE. It has been estimated that every year 25,000 people in England die from VTE that they have contracted in hospital. We also use the standard contract for driving improvements in cancer treatments and referrals in healthcare-associated infections in issues such as consent and many other areas.

As the Bill stands, it does not contain a list of the requirements which are to be included in the standard contracts, and for good reason. The Bill should not contain unnecessary detail. On top of that-and I think that this is perhaps a more important point-there should be sufficient flexibility for the Secretary of State and the board to consider and draft appropriate terms and conditions and adapt them to changing circumstances.

The question I pose to myself is this: if, through a reference to the duty of candour, we are to start down the road of specifying particular quality and safety contractual requirements in the Bill, then where do we stop? Just including the few issues that I have briefly mentioned, without any others, means that we will

27 Feb 2012 : Column 1054

almost certainly land up with a cumbersome and unwieldy list. There are many other areas besides those which some might see as having a similarly valid claim to be mentioned. We should not use primary legislation to cherry-pick priorities to the detriment of other equally important areas.

We have further concerns about precisely what the amendment would require the Secretary of State to provide in the standing rules. We are still looking at what the appropriate contractual term should be in the light of the recent consultation that was mentioned. Imposing a duty in the Bill to adopt a specific formulation, as the amendment would have us do, constrains our ability to take proper account of the consultation and the engagement that we have had with stakeholders-it risks forcing us to implement an inappropriate requirement-and from easily improving it in the future, if the evidence supports that.

I was struck by the very powerful speech of my noble friend Lord Faulks during our last debate on this topic, and indeed by his words today, when he challenged the House to consider the difficulties involved in drafting a duty which adequately encapsulates these obligations. The noble Lord, Lord Winston, was very wise in what he said. For example, how would we specify the types of incidents to which any contractual requirement would apply? The contractual duty and provision in the regulations must be neither too wide nor too narrow in order to be effective and proportionate. We need the flexibility to consider this in more detail.

The noble Baroness's amendment would have us require particular steps to be taken in particular defined circumstances and adopt a particular definition of the incidents to be covered by the duty of candour. I am extremely uncomfortable with that. Apart from anything else, we specifically asked this question in the public consultation, so we would be undermining that process if we were not properly to consider the responses we received. I really think, therefore, that it would be better to let that consultation guide us as to the precise way in which the duty should be framed. It is for those reasons that, after considerable thought, I can tell the noble Baroness that I do not think it would be wise for us to accept Amendment 38A.

The noble Lord, Lord Walton, asked about the duty placed on individual doctors within a trust. Doctors are expected to follow the code of practice laid down by the GMC, as he will know, and failure to do so may lead to action against a doctor by the regulator in the exercise of its statutory powers. I can confirm to the noble Lord that the code is not just words; it is backed up by real regulatory force. Indeed, I have the wording of the code in front of me:

"If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects".

There are similar provisions in the Nursing and Midwifery Council code as well.

3.45 pm

My noble friend Lady Tyler asked about the time period for the review of the contractual duty that I promised last time we debated this. My view at present

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is that about three years from the implementation of the duty would be an appropriate period. We will be setting out in more detail when we propose to conduct that review when we respond to the consultation.

I reiterate on the record the Government's and my commitment to introduce a contractual duty of candour to require openness and transparency in the NHS. I understand the strength of feeling on the topic; indeed, it is for exactly that reason that I promised in our earlier debate that the Government would undertake a review in future of the effectiveness of the contractual duty of candour, and to include that within a specific analysis of whether its effectiveness was being substantially held back by the lack of a reference in primary legislation. If that review were to highlight that this was indeed happening, the Government would give that fact significant consideration and take it fully into account in the context of any future primary legislation. On top of that, I reiterate the commitment that I have given today that the Government intend to use the "standing rules" regulations to specify that the contractual duty of candour must be included in the NHS standard contract. I hope that I have provided the noble Baroness with cast-iron reassurance upon this topic, and I therefore ask her to withdraw her amendment.

Baroness Masham of Ilton: My Lords, I thank all noble Lords who have spoken. I think that because I was thanking the Minister last time, I forgot to thank all those who had spoken then, so I thank them now as well.

This is a complicated Bill, and I do not think it is a very popular one-certainly not outside your Lordships' House. I worry intensely that while patients were said to have been centred in the Bill, in fact they are getting less and less so. However, we will come on to that later.

I am passionate about patient safety. I thank the Minister for his assurances. We have moved on a little. Things take a long time, but a lot of people now feel that doctors, patients, and all those looking after them should be a team. I hope that this will happen.

I am pleased that the GMC has come out against the gagging clause. It was terrible and extremely confusing for doctors when they were told by managers that they were not allowed to say when something had gone wrong. I am glad. We are moving on, and I hope that this debate has been useful. With that, I beg leave to withdraw the amendment.

Amendment 38A withdrawn.

Amendment 38B

Moved by Lord Hunt of Kings Heath

38B: Clause 19, page 14, line 32, at end insert-

"(8A) The standing rules under subsection (1) shall make provision as to how clinical commissioning groups are required to register, manage and report upon conflicts of interests of both members and employees of a clinical commissioning group, or any individual engaged by a clinical commissioning group to be involved in any part of the process of commissioning NHS services ("the Conflict and Financial Interests Rules").

(8B) The Secretary of State shall consult upon and then publish a Code of Conduct for members of clinical commissioning groups concerning the registration of pecuniary and non-pecuniary

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interests by members of a clinical commissioning group, and setting out how clinical commissioning groups shall manage actual or potential conflicts of interests amongst its members, which shall include provisions concerning the provision of services (other than NHS services) to NHS patients.

(8C) The Conflict and Financial Interests Rules shall include the following provisions-

(a) a duty on members of a clinical commissioning group to abide by the terms of the Code of Conduct to be published by the Secretary of State under subsection (8B) hereof;

(b) that each clinical commissioning group shall maintain a register of pecuniary and non-pecuniary interests of members of the clinical commissioning group;

(c) a requirement that each member of a clinical commissioning group shall register all of his pecuniary and non-pecuniary interests in the Register unless the said interest shall be within a de minimis classification set out in the Regulations, and shall keep the said register up to date;

(d) a requirement that the register of interests of each clinical commissioning group shall be published and made available for public inspection;

(e) a requirement that, unless approved by the Board, a clinical commissioning group shall not be entitled to enter into any arrangements to commission healthcare or other services with any person where any member of the clinical commissioning group has a financial interest or link to that person of a type set out in Regulations ("a Conflicted Arrangement");

(f) a procedure ("the Exemption Procedure") under which a clinical commissioning group shall be entitled to request an exemption from the Board so as to permit the clinical commissioning group to enter into any a Conflicted Arrangement;

(g) that the Exemption Procedure shall require the clinical commissioning group to publicise the application for the exemption and to permit any objections thereto to be considered by the Board;

(h) that the Exemption Procedure shall provide that, after considering the merits of the individual application, the Board shall be entitled to approve the arrangement if but only if the Board is satisfied that the proposal to enter into any such arrangement has been the subject of an open and transparent procurement process, that it provides the best value for money for the clinical commissioning group and that there are appropriate safeguards proposed by the clinical commissioning group to manage any conflict of interest in the management of the said arrangement;

(i) that no member of a clinical commissioning group shall be permitted to take any part in any discussion of or decision making process concerning any arrangement or proposed arrangement with a provider of services with whom that person has a registerable interest;

(j) a procedure for complaints to be made to the Secretary of State by any person who alleges that a member of a clinical commissioning group has acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Regulations;

(k) a procedure for the Secretary of State to appoint an adjudicator to investigate and to rule upon any such complaint; and

(l) for the adjudicator to be able to impose sanctions on any member of a clinical commissioning group has been found by an adjudicator to have acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Rules including-

(i) such financial sanctions as the Secretary of State shall consider appropriate;

(ii) suspension of such a person from being a member of a clinical commissioning group;

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(iii) removal of such a person from current membership of a clinical commissioning group;

(iv) a bar on such a person being a member of a clinical commissioning group for a period of up to 10 years;

(v) the referral to the Board for action to be taken against any individual who is a performer under the National Health Service (Performers List) Regulations 2004; and

(vi) the suspension or termination of any contract or arrangement for the provision of NHS services that may exist between the Board or any clinical commissioning group and that person or any partnership, company or other organisation with whom that person shall have a registerable interest.

(8D) Where any contract or other arrangement is suspended or terminated by the action of an adjudicator following an adjudication under sub-section (8C)(I), no other person shall be entitled to assert any legal right or make any claim for damages or financial compensation on any other basis whatsoever against the Board or any clinical commissioning group as a result of the said adjudication."

Lord Hunt of Kings Heath: My Lords, we return to one of the most important matters in the Bill: clinical commissioning groups and their effective corporate governance, or lack of it-specifically, the question of how conflicts of interest are to be dealt with. In his letter of 16 February to putative clinical commissioning groups, the Secretary of State spoke enthusiastically of the freedoms that they were to receive. There can be little doubt that they are one of the most important features of this Bill. They are to be given a huge amount of money. They are to be given freedom to commission services. They are to be given freedom to decide when and how competition should be used. Because clinical commissioning groups will exercise such important roles, I would have thought that public interest demands that the principles of good corporate governance should apply as much to them as to any other public body.

In Committee, the noble Lord, Lord Kakkar, drew attention to the seven principles of public life and asked whether they applied to clinical commissioning groups. I asked the noble Earl, Lord Howe, whether independently appointed non-executives would be on the board of clinical commissioning groups. I also asked how conflicts of interest were to be dealt with. He said that the Bill places a duty on the Secretary of State,

To my suggestion that each clinical commissioning group board should have on it a majority of non-executives and be independently appointed, he said-disappointingly-that each group must only have at least two lay members and that one must be either the chair or deputy chair of the governing body.

On the conflicts of interest, the noble Earl said that the Bill had three safeguards: statutory requirements on clinical commissioning groups to make arrangements to manage conflicts of interest, governance arrangements, and specific regulations on good practice in the procurement and commissioning of healthcare services. Is that sufficient? I do not think that it is. These groups are unique. In essence they represent groupings of small businesses which have had handed over to them

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billions of pounds, a proportion of which they can spend on primary care services. Sometimes these are to be provided in the surgeries of GPs who are members of the clinical commissioning group, or perhaps are to be provided by companies in which GPs within a clinical commissioning group may have a financial interest. The potential conflict of interest is so obvious that it surely begs the question as to why the Government are not putting safeguards on this matter in the Bill.

My amendment is a lengthy one, but I hope comprehensive. It sets up a register of pecuniary and non-pecuniary interests. It places an obligation on clinical commissioning groups to register. It prevents any arrangements being entered into between a clinical commissioning group and a party with whom a member has an interest. It provides for an exemption procedure whereby the board could approve the arrangement if it was open and transparent. It prohibits a member of a clinical commissioning group taking part in discussions with any business in which he or she has an interest. It also provides a process under which an adjudicator appointed by the Secretary of State can adjudicate on complaints about members of clinical commissioning groups breaching the code of conduct, which is provided for in my proposed new subsection (8C). The sanctions include removing the individual as a member of the clinical commissioning group and the termination of any contract which has been put in place between the group and anyone with whom the member has a registerable interest.

A clinical commissioning group board will have a majority of GPs sitting on it. They are involved in running businesses which are largely dependent on the NHS for their income. The role of a clinical commissioning group will be to commission services, some of which will be commissioned from those GPs who are members of that group or, as I said earlier, from companies in which some of those GPs may well have an interest. Independent lay members will be in a minority and we have yet to receive assurance that they will be independently appointed. We have not even been assured that the chairman of the clinical commissioning group will be an independent lay member. It will have the weakest corporate governance of any public body in this country.

We know that over the past 20 or 30 years any number of inquiries have shown the problems of poor corporate governance. After all, the Nolan commission was started because of such problems. This will explode in the Government's face unless they strengthen the corporate governance of clinical commissioning groups. If you combine these weak corporate governance arrangements with the ability of a clinical commissioning group to make decisions that could be to the financial advantage of GPs who are members of that group, you are heading for trouble. We need robust safeguards and they ought to be in the Bill. I beg to move.

Baroness Barker: My Lords, noble Lords will recall that in Committee I too highlighted the issue of conflicts of interest. I did so because, like many other noble Lords, I had listened to and read the briefings sent by the professional bodies, many of which raised fears and concerns about conflicts of interest. Like many other noble Lords, I believe it is important not only

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that members of the public have faith in the integrity of the decisions being made by CCGs but that members of the professions believe in those decision-making processes and feel able to participate in them. They should also have the protection of good governance and good conflict-of-interest policies to enable them to carry out what will be a difficult role.

Before we look at the detail of this, it is important to remind ourselves a little of the context. There are conflicts of interest in the National Health Service now. There always have been, as anyone who has ever sat around the table at a joint finance meeting at which every single person has an interest in the discussion will know. It may not be a direct financial interest; it could be about a post, a project or money. Managing conflicts of interest is something that the NHS and PCTs do now. That is not to say that we should not take the opportunity of the Bill to make the principles according to which the NHS should act more overt. They should be the highest of principles.

It is for that reason that my colleagues and I raised the matter in Committee. We then drafted a set of amendments that are in this group-Amendments 84, 89, 91, 92, 93 and 116. I am very grateful to several noble Lords, including the noble Lord, Lord Newton of Braintree, who looked at those amendments with the seasoned eye of an ex-Health Minister. His response was, "Very good but an awful lot of this needs to be in regulation, not in the Bill". I took his comments to heart, which is why my colleagues and I withdrew those amendments on Friday and noble Lords now have Amendments 79A, 82A, 86A and 86B before them on the Marshalled List.

It is also important that noble Lords understand one particular point about the interpretation of the Bill. A great deal of anxiety has been expressed by some of the professional bodies about the role of commissioning support organisations. Noble Lords may recall that I raised that in Committee. I have been in discussion with several members of the professions to try to understand the source of that concern. As far as I can understand, there is a view within some of the professional bodies that commissioning support and the commissioning of services are one and the same thing, whereas the Minister was at great pains in Committee to stress that they are two different processes that go side by side.

4 pm

Noble Lords may have seen a briefing by Professor Allyson Pollock on her interpretation of Schedule 2. Would the noble Earl, Lord Howe, in his response to these amendments, talk particularly about the role of commissioning support? There is a view outside, which is informed by some of those briefings, that people who are not clinicians will have a responsibility for commissioning clinical services. In Committee he was at pains to stress that that was not the case; that it would be members of CCGs only who had that responsibility and that they would be given support to do that only by CSOs.

I return to the issue of conflicts of interest. They are extremely difficult things to legislate for because they take a number of different forms. On the ground,

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a conflict of interest can be financial or non-financial-it is a difficult thing to define in legislation. In our amendments, and particularly Amendment 79A, we state that there must be a register of interests of members of a CCG, the governing body, its sub-committees and its employees. Noble Lords might find it helpful to know that, for the purposes of the legislation, "employees" covers people who work as consultants. I do not mean medical consultants, but people who work in a consultancy capacity to the CCG. Under the amendment, they must publish registers of those interests and ensure public access to them; and the registers must be kept up to date, with information being placed on them within 28 days. Why is that important? People's interests change and these organisations will be in the business of giving out contracts to providers. It is therefore important that if someone has a material interest and that interest changes-particularly around the time of the contract being issued-this is brought to public attention quickly.

Proposed new subsection (4) in our Amendment 79A states that CCGs,

It is extremely important that these groups not only set out to uphold the highest standards but that they are seen to uphold them.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. Could she clarify what happens in the situation that she has laid out in these amendments if a member of a CCG does not do the right thing? Are there any sanctions in her amendment?

Baroness Barker: The noble Lord is quite right and I will come on to that.

These amendments also refer to the board publishing guidance and what that guidance would include. As I understand it, members of CCGs who are in material or consistent breach of a conflict-of-interest policy might be referred to their professional body. Amendment 86A is a regulation-making power. It is under that power that many of the important details could be included. They would, I imagine, include issues such as the ones which the noble Lord has just raised about the sorts of sanctions which CCGs should include in their guidance and policy.

Lord Hunt of Kings Heath: My Lords, with respect to the noble Baroness, she has withdrawn some amendments and put in some substitutes, so I think it is fair to ask her these questions. Without sanctions, this is not going to have any teeth. There is a major concern about corporate governance in CCGs. Surely it would be better to put it on the face of the Bill rather than, as it seems to me she is doing, leaving it up to CCGs to do the necessary.

Baroness Barker: Not entirely, my Lords. As I was coming on to say, an important piece of work is that the GMC is updating its guidance on how its members should work in the new setup. It is important that members of bodies such as the GMC, the BMA and other professional bodies are involved, should they

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wish to be, in setting out the detail of what those sanctions should be. We should end up with something that is effective and workable, as well as principled. The noble Lord's argument does not therefore stand up. Nothing in these amendments would preclude that sort of sanction being put into regulations or guidance.

Our amendments are, admittedly, not as detailed as the amendment of the noble Lord, Lord Hunt, nor do they-as his amendment does-incorporate language from the world of commercial legislation. The terminology of conflicted arrangements and exemption procedures comes from commercial law, and I am not sure that that is appropriate for what we are seeking to do. At the end of this debate we should achieve the objective that all noble Lords are seeking-transparency and accountability around the decision-making processes of CCGs, and the legislation and regulations around them should be sufficiently robust so that not only can members of the public have faith in those procedures but the procedures should be workable. I accept that our previous amendments included provisions that were so draconian that they would not work in practice. We could have ended up in a position whereby the very people who should be making decisions on CCGs would not have been eligible to do so, particularly at the precise moment at which their expertise would be necessary.

Our amendments are not by any means the end of the matter; they are the beginning of a process that should move on further in the discussion on regulations and guidance. That is where much of the detail of this should come to the fore, but the principles that we have set out in these amendments are robust and workable, and I hope that in his reply the Minister will accept them.

Lord Patel: My Lords, I support the amendments relating to conflict of interest and I agree that there needs to be something in the Bill. I will give an example to indicate why I believe that more strongly following a seminar that we attended before the Recess. For those noble Lords who were not there, we had a presentation from a GP who told us, first, that he was salaried, and I therefore presume he did not have a standard general medical services contract, and that his salary came from somewhere else-it may well have come from another general practitioner. He said, secondly, that he was involved in commissioning and, thirdly, that the commissioners had found that the provision of some services in his area was not satisfactory or of the quality that they had asked for-particularly, in relation to hand surgery. They therefore set up an independent provider of surgical services, of which the GP was a non-executive director. The conflicts of interest are quite obvious: here is a commissioner who is a salaried doctor, and that raises a question. If the commissioning board is to hold the contracts of primary care providers, will they not include those who have a general medical services contract, or will they include those who are salaried? More and more primary care providers are salaried GPs employed by other practitioners. We therefore also need to clarify who will be asked to be a member of the commissioning group: will it be only those who hold the general medical services

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contract, or will it be all those who provide primary care services? The conflict of interest here is many-fold, and therefore we need to address how it is to be resolved.

While I was, and still am, very attracted to the amendments of the noble Baroness, Lady Barker, because I had not seen those of the noble Lord, Lord Hunt, the question of sanctions needs to be addressed more clearly. I agree with the noble Lord, Lord Hunt, on the need for this question of sanctions to be clarified so that those who may be involved in conflict know from the very beginning how those sanctions will apply to them.

Lord Winston: My Lords, perhaps I may deal very briefly with one area of medicine with which the noble Lord, Lord Patel, and I are particularly familiar. One problem raised is that increasingly general practitioners are doing minor surgical procedures; increasingly in practice, often in groups. I know of one large practice in south-east England, for example, that is now carrying out a procedure called a hysteroscopy, which is an endoscopic or telescopic examination of the inside of the uterus. This is quite a specialised procedure designed to identify cancers of the uterus at an early stage. The problem is that general practitioners may well be able to carry out this procedure somewhat more cheaply than gynaecologists in a practising group. Of course, there is clearly a conflict of interest here, because they may well be in the very practice that is also commissioning this procedure, and a patient might perhaps be wrongly given a particular treatment when a slightly more expensive treatment, done elsewhere, may be more effective and reduce the risk of the cancer.

Baroness Finlay of Llandaff: My Lords, this group of amendments and this debate has focused on conflicts of interest. For clinical commissioning groups, conflict of interest will arise where the leaders of the groups have financial interests, but also where private companies which may have separate provider arms competing as a qualified provider are contracted to provide commissioning support. The other area of conflict which has not been addressed is where quality rewards for commissioning are linked to financial performance of clinical commissioning groups. Further, there are cases where local medical committee officers are key officials in a clinical commissioning group.

The clinical commissioning group is meant to represent the constituent practices. Indeed, there have been articles in the press about commissioning support and commissioning support organisations. Many of those have raised alarm among clinicians who have become increasingly concerned by the talk revealed in the press about the profit to be made by commissioning support organisations. There has also been a realisation that profit going to the commissioning support organisations will reduce the amount of money going into the provision of core NHS services at any level-whether in the community or in secondary care and the hospital sector.

Several amendments are tabled here. The amendment in the name of the noble Lord, Lord Hunt, is very comprehensive and deals with an area which the other amendments do not. There is also an amendment, on

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which my name is the first, regarding conflict of interest. I can see that Amendment 79A is more detailed than the amendment which I have tabled, and therefore goes further and would be better. However, I am concerned that it does not go quite as far as the amendment in the name of the noble Lord, Lord Hunt, and that some of the principles in there need to be incorporated into Amendment 79A if the Government are minded to accept that amendment. We may have to come back to amend the amendment should it be accepted and incorporated.

4.15 pm

My Amendment 102 in this group addresses a quite different aspect of the commissioning process. It aims to ensure that the registered secondary care specialist who is to be included on the governing board of each clinical commissioning group can be someone working within the area that the clinical commissioning group covers, the reason being that a person working in an area will be able to establish integrated care across that area far better than someone who comes from outside. In Teams without Walls-a document on which the Royal College of Physicians led but which was written in conjunction with the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health-it was made very clear that the complementary skills of the different groups need to be integrated. There has been quite a lot of concern at the suggestion that the secondary care specialist should not be employed by a local provider and should therefore come from outside the area or even be a retired person.

That concern arises because there will be nobody in the local community who understands that community, who knows the clinicians across the community and, indeed, who has an interest in the patient services for that community. Furthermore, if it is a rural area, such a clinician may be relatively disadvantaged in having to travel many miles to attend meetings and in not being embedded in the healthcare delivery system. It seems to go counter to a localism agenda to insist on taking somebody from outside the area. Therefore, the amendment is designed to allow a clinical commissioning group to take the best person, whether they are from within or from just outside the area, to drive forward integration and collaborative working. One would hope that a representative from primary care would also be invited on to the trust board within an area so that there was a degree of reciprocity-again, to build bridges rather than to create a division between the primary and secondary care sectors.

Conflicts of interest will have to be declared at every stage, and obviously the secondary care doctor will have no right of veto. The argument that the secondary care doctor from within an area would argue only in favour of their own discipline or trust is fallacious. I have not seen a strong evidence-base for that, given that medical directors and others currently work in an area representing different disciplines. A criterion of the person's job description, appointment and regular appraisal could be that they are seen to represent all providers within an area so that trust is built up across all the providers with which a clinical commissioning group enters into some form of contract.

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We have a group of amendments here covering a wide range of aspects of the structure and functioning of clinical commissioning groups. I hope that we will shortly find that a declaration of interests is included in the Bill, in whatever form, and that the Minister will be amenable to revising the rigid stance taken over insisting that the secondary care representative and nurse come from outside the area.

Lord Walton of Detchant: My Lords, this is an exceptionally complex issue and I believe it is absolutely crucial that in some way and in some form the issue of a conflict of interests is covered in the Bill. The membership of clinical commissioning groups will consist very largely of general practitioners, but it is important to remember that GPs are not employed by the National Health Service but are independent contractors. As such, it is therefore inevitable that they will have a pecuniary interest in the activity of the clinical commissioning group. I am aware of a number of general practitioners from large practices who have shares in or part-ownership of care homes for elderly patients. I am also aware of some who have shares in private hospitals and in many other organisations. If we were too rigid about declarations of interest, we could end up excluding virtually every GP from membership of clinical commissioning groups, meaning that CCGs could not really exist. Therefore, the provisions must not be too draconian, but at the same time, it is desperately important that they should protect the public interest and that some mechanism be found to ensure that matters of financial and other public interest are not in any way detrimental to the work of the clinical commissioning groups.

I am therefore very attracted by Amendment 79A, which I believe goes a long way towards covering the major issues concerned with conflicts of interest. The amendment so ably proposed by the noble Lord, Lord Hunt has many attractive features, but it is immensely lengthy and complex. I appreciate entirely the point that he made about sanctions, but to go back for a moment, the Minister misunderstood me when I was talking about the duty of candour. I fully appreciate that doctors working for clinical commissioning groups, foundation trusts, and so on, have the same duty of candour as defined by the regulations of the GMC as any other doctor. I intended to ask the Minister whether the actual clinical commissioning groups and foundation trusts, as corporate bodies-not the individual employees of those organisations-had the same responsibility of a duty of candour in relation to patients.

Here, of course, the same problem arises in relation to the whole issue of conflict of interest. How is it defined? It is necessary to recognise, as the noble Lord, Lord Hunt, said, that there has to be a sanction. But the same sanctions apply to individual doctors and other healthcare professionals working for clinical commissioning groups. If they were seen to breach the rules laid down in such an amendment on conflicts of interest, they could be called to account by their regulatory authority. The GMC would no doubt take a serious view of anyone who breached that duty under conflicts of interest. It is crucial that the Government should put something about conflicts of interest in the Bill based, I hope largely, on Amendment 79A, which

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I strongly support. That is an excellent basis on which to go ahead, and I shall be fascinated to hear what the Minister has to say.

Lord Warner: My Lords, I had not intended to speak for very long on this set of amendments but some issues have cropped up which are worth reflecting on, particularly by those of us who have sat in Richmond House and have had to deal with them. It is easy to assume from listening to the debate that we have a wonderful set of arrangements in place to deal with conflicts of interest. That is very far from the case. The noble Lord, Lord Walton, made the point very well that many doctors already do a range of activities-rightly, appropriately and well within their competence-that potentially involve conflicts of interest. One of the great dangers in this area is that we tie ourselves up in a labyrinth of controls that actually work against innovation in an area where science is driving change rapidly. We want people to use their creativity and to change the way they work. We want them to take on new roles. We should not always assume that in doing that they are just seeking to line their pockets. There is a danger that we might do a very British thing and create a large number of rules that will prevent innovation. We had that debate over research and we are in danger of going down the same track in this area.

The other point raised by the noble Lord, Lord Walton, which is very important, is in relation to the role of professional bodies. We had a case-I will not mention the name-of an eminent businessman doctor who was the chief executive of a large chain of nursing homes. He was taken to the GMC because of something that went wrong in one of the nursing homes for which he had no direct responsibility whatever. Although the governing bodies of the professions have an important role, their role was constructed in relation to the actions of a doctor towards individual patients, not in relation to a doctor who was performing other business and organisational functions. It is very important that we do not rely on professional bodies to deal with what is organisational malfeasance rather than lack of professional integrity in dealing with individual patients.

My noble friend Lord Hunt made a very important point. It is very strange that at this stage we are still arguing the toss around corporate governance of some of the bodies in the Bill, particularly the clinical commissioning groups. That is a bit of an indictment of the Government for not getting some of this material thought through at an earlier stage rather than well into Report stage in the House of Lords after having gone through the Commons. However, we are where we are and I think we should not tie ourselves up in knots and prevent incumbents.

Lastly, a very important point that has come out in a number of speeches today is that two issues are critical. First, it should be clear legally to all people participating in these new sets of arrangements that declarations of interest are essential. Secondly, it should also be clear in the Bill exactly what the consequences are of not declaring those interests and pursuing deliberately a conflict of interest for your own advancement, financially and otherwise. Those are the

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two issues about which we need to be clear in the Bill and I rather agree with the noble Baroness, Lady Barker, that much of the rest of it should be for regulation, provided that the Bill has sufficiently powerful regulation-making powers.

Lord Kakkar: My Lords, I too have my name to one of the amendments in this group and would like to reiterate much of what has been said in this very helpful discussion. There is no doubt that there remains considerable anxiety about potential conflict of interest. If, early after enactment of the Bill, the new structures that come into place with regard specifically to clinical commissioning groups were to be attended by serious conflict of interest failings, very rapidly confidence in these new structures would be eroded. That is of very considerable concern.

In Committee, I proposed an amendment suggesting that the Nolan principles be included in this Bill. The Nolan principles are well accepted in public life and play an important role in the conduct of acute and foundation trusts. They have served those organisations well in providing a framework and drawing the attention of those involved in the discharge and governance of those organisations to their obligations with regard to potential conflicts of interest and their conduct more broadly with regard to execution of public responsibility.

In Committee, the Minister felt that adoption specifically of the Nolan principles was not an appropriate course of action and may have a rather unhelpful limiting effect on more broadly ensuring that conflict was dealt with appropriately. Having listened to debate in your Lordships' House today, it is very clear that considerable anxiety continues. It is important that something is done to ensure that in having taken this Bill forward the Government well recognise the potential for conflict of interest and provide the specific obligations for those who for the first time are going to be directly involved in commissioning and therefore the spending of large amounts of taxpayers' money. Those obligations are in many ways different from acting as a private individual and it will help those discharging these new responsibilities to understand the high standards to which they will inevitably be held and ensure that they discharge those responsibilities for the benefit of the general public and patients.

4.30 pm

Earl Howe: My Lords, this has been a very good debate indeed and I thank noble Lords for the careful consideration that they have given to how CCGs should best manage conflicts of interest. I have listened carefully to the various points raised and it is clear that this is an area of key concern. I hope that the House will therefore forgive me if I start by setting out the position on this issue before I turn to the detail of the amendments before us.

At the heart of the Bill is an intention to balance autonomy with accountability. We are giving freedom to those best placed to take decisions in the interests of patients to do so, but we will also hold them to account, not only for the outcomes they achieve but also for their managing this responsibility effectively, transparently and with integrity.

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CCGs will be the guardians of significant amounts of taxpayers' money, as the noble Lord, Lord Hunt, rightly pointed out, so it is only right that there are strict requirements in terms of governance, probity and transparency of decision-making. We must balance the benefits of the clinical autonomy of doctors with a robust management of potential or actual conflicts of interest. It is essential to get this right, and that means a proportionate and reasonable approach.

I reinforce the point that the Bill already provides very real safeguards in relation to conflicts of interest. The CCG must make arrangements in its constitution for managing conflicts and ensuring the transparency of its decision-making process. The CCG must have appropriate governance arrangements, including a governing body with lay members and other health professionals. These arrangements will be scrutinised by the NHS Commissioning Board as part of the process of ensuring that a CCG is fit to be established as a commissioner.

Let me be clear that this is not just about declaring conflicts of interests, which of course is vital, but also about putting in effective and appropriate arrangements to manage these conflicts where they arise. There is not, and cannot be, a one-size-fits-all approach to managing conflict, as it depends on the interest itself and where it may become a conflict. However, likely methods may include absenting the person from decisions in that area, or bringing in others-for example, the independent lay members-to oversee the process for decision-making in a particular area. The key factor here is that they cannot avoid the need to manage the conflict and to be clear about how they are going to do so.

The provisions around conflict of interest apply to all aspects of a CCG's commissioning activity, which means that they would apply to how it worked with a commissioning support organisation. I appreciate that there is apprehension and, in some cases, misunderstanding about the role of commissioning support organisations, so I shall set out the facts about this issue for the benefit of noble Lords today, in particular my noble friend Lady Barker, to whom I was grateful for referencing the brief on this issue provided by Professor Allyson Pollock.

Commissioning support organisations are not intended to act on behalf of a CCG in making decisions. They provide support, which might take the form of analysis of performance or finance data, supporting procurement or the management of a contract, and back-office functions. Let me be clear: at no point can they take decisions for the CCG or assume responsibility for a CCG's statutory duties. It would be unlawful for a CCG to sub-delegate its commissioning responsibility to another organisation.

I am, however, conscious of the concerns, particularly those raised by my noble friend Lady Barker, about whether members of commissioning support organisations could sit on a CCG governing body. I give noble Lords a commitment today that we will prohibit any representative of a commissioning support organisation sitting on a CCG governing body through our secondary legislation-making powers under new Section 14N.

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I should also like to explain some of the other safeguards in the Bill relating to management of conflicts of interest. Under Clause 73, the Secretary of State may make regulations which we intend will impose specific requirements in relation to the management of conflicts of interest. They will also confer on Monitor various powers to investigate the actions of a CCG and take remedial action. Monitor will be required to issue guidance on these regulations.

The NHS Commissioning Board may also provide guidance on conflicts of interest. This renders unnecessary any additional amendment requiring the Secretary of State to issue guidance on conflicts of interest, as Amendments 86 and 93 would do, or to issue a specific code of conduct or financial interest rules, as Amendment 38B requires. I shall return to that point in a moment.

The Bill is also clear on the transparency and accountability of the decision-making process. Schedule 2 provides that the CCG constitution must specify arrangements for securing transparency about the decisions of the CCG and governing body. The NHS Commissioning Board will be able to issue guidance on the publication of minutes and will ensure that the constitution meets these requirements. This meets the intention behind Amendment 92. We cannot accept the amendment because it might not always be appropriate to publish details of all decisions made by a governing body.

Transparency and accountability must not be achieved at the expense of the effectiveness of the commissioner. PCTs are not required to discuss all matters in public now and we should ensure that CCGs are not subject to more onerous requirements. Amendment 91 may well prevent CCG governing bodies discussing potentially commercially sensitive issues relating to contract values or performance without the public being present, which could pose difficulties.

I can fully understand the intention behind Amendment 102, tabled by the noble Baroness, Lady Finlay, to ensure that local knowledge informs the work of the CCG. However, we have always maintained that the presence of health professionals on a CCG governing body is not intended to be a means for the CCG to obtain advice to inform its commissioning decisions. The non-GP members of the governing body are there to provide an independent perspective, informed by their expertise and experience, in the body responsible for ensuring that the CCG adheres to the principles of good governance. They must have no conflict of interest in relation to the clinical commissioning group's responsibilities. Amendment 102 would mean that a CCG could have only local professionals in the governing body. This would obviously limit the CCG in its choice of governing body members and risks a conflict of interests. I urge the House not to accept that amendment.

GPs in CCGs have to meet the ethical standards set by the General Medical Council in good medical practice. That includes provision to avoid conflicts of interest. Anyone may raise a concern that a doctor has failed to meet the conditions of their registration with the regulator. However, a failure to meet the conditions which Amendment 93 would impose would not necessarily mean that a GP had been in breach of their conditions

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of registration, and the duty which Amendment 110 would place on the board would be disproportionate. I know that there is a real concern among some noble Lords and that it is felt that this is a necessary sanction, but it is far better to ensure the robustness of the approach that CCGs take and that it is appropriately overseen. It is more appropriate for an independent monitor to police the transactional behaviour of CCGs and to be able to take effective remedial action where it discovers evidence that a CCG has not followed regulations in relation to procurement and the management of conflicts of interest, which is the approach taken in the Bill.

I similarly urge that we do not place in legislation an indiscriminate requirement, as Amendments 38B, 93 and 116 would do, that people with an interest withdraw from the relevant decision-making process of the CCG. Clearly, that is often going to be the most appropriate means to manage a conflict of interest, and that is made clear by the NHS Commissioning Board Authority's guidance, Towards Establishment, which was published recently. However, it should not lead us to impose on CCGs a blanket ban on individuals being involved in a decision-making process or sitting on the governing body in all circumstances in which they have an interest. It ignores the fine line that can be drawn between situations in which withdrawal is absolutely necessary and those in which it would be more effective for the CCG's exercise of its commissioning function for the conflict to be managed, carefully and with external oversight, in a different way that maintains the integrity of the CCG.

I listened with great care in particular to the speeches of the noble Lords, Lord Warner and Lord Walton, on this theme. The best example of the second category that I mentioned is where a CCG is commissioning for local community-based alternatives to hospital services and it determines that the most effective and appropriate way to secure these is from all local GP providers within its geographic area. There are already inherent safeguards in the legislation to help manage conflicts in this scenario. The CCG would have to declare its commissioning intentions as part of its annual commissioning plan, on which it would consult the public, and it would engage with health and well-being boards in developing; and that makes the proposal transparent. It enables the health and well-being board and others to challenge the proposals. CCGs could similarly secure additional involvement in the decision-making process-for instance, by involving members of the health and well-being board or, indeed, other CCGs or members of the CCG's audit committee. There is a choice. We have not identified one single right way of doing this. We think it is important to allow best practice to evolve rather than trying to pin it down in legislation. If all GP members of the CCG had to withdraw from the decision-making, it would be extremely hard for the CCG to actually make a valid decision, as it could not be delegated to the non-GP members of the governing body or a similar arrangement. It is only in certain circumstances that we would expect individuals with a conflict not to withdraw absolutely, but we have to keep this option open in legislation.

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For the same reasons, I cannot support the proposals of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, in Amendment 38B, which would either require a CCG not to contract with a provider in which any member of the CCG had an interest, or require them to secure an exemption from this rule from the NHS Commissioning Board. The conflict and financial interests rules, which this amendment references, already require an individual to withdraw from any part of the decision-making process with a provider in which they have an interest. It is hard to see why it would be necessary also to prevent the CCG from contracting with such a provider or undergo a cumbersome-I have to say cumbersome-exemption process. That approach would make the board have to scrutinise individual procurements and generally police the transactional behaviour of CCGs. It would not allow for alternative local arrangements for quality-assuring the openness and transparency of a CCG's approach. It should not have to be the board only that can ensure the probity of the commissioning decision. As I have suggested, the health and well-being board might provide a suitable external view, as might another CCG.

Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way so freely. I understand what he is saying about the bureaucratic process. However, will he not accept that the reason for that is that the corporate governance processes around the clinical commissioning group are so weak? For instance, why is there not to be a majority of independently appointed non-execs, as there would be on any other public board?

Earl Howe: I will come to that point in a moment. I do not agree with the noble Lord that the governance arrangements are weak. As I have said, one of the things that the board will have to do when authorising CCGs is to assure itself that there are fit and proper governance procedures in place.

I turn to the question of sanctions, which has been raised by a number of noble Lords. It is essential that patients and clinicians remain confident that members of clinical commissioning groups will always put their duty to patients before any personal financial interest. It is important that CCGs take all possible steps to avoid conflicts of interest. We foresee that the guidance that Amendment 79A requires the board to produce would set out the need for CCGs to make clear in their conflict of interest policy that any member of a CCG found to have failed to declare an interest may face a number of possible sanctions and individuals may also be referred to their professional body, which is a serious matter. The noble Lord, Lord Walton, was quite right in all that he said. I am very drawn to the provision of Amendment 79A, and I will come on to that more fully in a moment.

4.45 pm

When there is any breach of the provisions in proposed new Section 14NA, the board would have a range of powers to intervene. The GMC is currently updating its advice to doctors about how they will be expected to exercise their professional responsibilities

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within the new structure of CCGs. The board's guidance we expect to be consistent with the profession's own high standards.

Amendment 38B would also give the Secretary of State the role of appointing an adjudicator with a range of sanctions, including suspension or removal of a person from being a member of a CCG for up to 10 years. Such a sanction could of course result in the patients of the GP so removed not having their interests represented in the decision-making of the CCG. That would strike at the heart of the principle of clinical commissioning. There is already in the Bill provision for independent scrutiny of the behaviour of CCGs in relation to procurements by Monitor, as I have mentioned. The Secretary of State' regulations will give Monitor the power to investigate commissioning behaviour and, if necessary, take a range of remedial actions, including rendering a contract ineffective.

I do not want noble Lords to be in any doubt as to how seriously we take ensuring the integrity of clinical commissioning, or that we have not considered carefully their concerns. So while I cannot support most of the amendments in this group as they stand, I am supportive of elements of some of them. I am persuaded of the necessity to have a register of interests, placing the CCG under a duty to ensure that interests are declared in a timely manner, and that the CCG acts on those declarations. I am therefore persuaded to accept the amendments tabled by my noble friend Lady Barker, Amendments 79A, 82A, 86A and 86B. I see those amendments as absolutely consistent with the guidance towards the establishment, as I mentioned a moment ago. In my judgment, they would provide the best additional safeguards to those in the Bill. The amendments will deliver much of what is proposed by other amendments, in the most effective way, and I hope and trust that they will therefore receive support from across the House.

I add for reassurance that in placing a new duty on the board to issue guidance on conflicts, the board can build towards establishment and set out unequivocally the expectations of CCGs in how they should manage conflicts of interest and hold CCGs to account. I would also expect the guidance to reinforce the existing GMC guidelines, making clear to CCG members their accountability to the board and the GMC. A number of amendments call for new guidance or codes of conduct. I think that allowing the board to issue statutory guidance in that respect will deliver the intentions of those amendments.

As a consequence of my support for the amendments tabled by my noble friend, I do not intend to move the four government amendments in this group, Amendments 83, 85, 88 and 90, because they will be superseded.

I hope that I have said enough to reassure the House that the Government have acknowledged the concerns on these issues around conflicts of interest. We have listened to the concerns and are willing to amend the Bill accordingly.

Lord Hunt of Kings Heath: My Lords, I think that that is a very disappointing response. The noble Earl, Lord Howe, said that clinical commissioning groups will balance autonomy with accountability, and he acknowledged that they will be guardians of billions

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of pounds of taxpayer's money. He went on to say that there were three safeguards: the constitution, transparency and the governing bodies. However, he still fails to respond to the fundamental gap, which is the lack of proper corporate governance around clinical commissioning groups. Looking at other public sector bodies-NHS trusts, for instance; not foundation trusts, but NHS trusts-how would we feel if the Government came forward with proposals stating that the board of an NHS trust would consist of executive directors and one or two lay members? It is just possible-but it is not certain-that one of those lay members will be the chairman of the trust, or they could, indeed, be the chief executive. That, in essence, is what the Government are proposing for the governance of clinical commissioning groups. A group of GPs will sit round the table. They will have a couple of lay members who presumably will be appointed by the clinical commissioning group, because the Government consistently fail to say whether there will be an independent appointments process. The noble Earl never responds to me on this point. They will be deciding how billions of pounds should be spent. The noble Earl refuses to acknowledge that these GPs are business people who run businesses which depend mainly on contracts-

Earl Howe: My Lords, I realise that I did not answer the noble Lord and I apologise to him. It may be helpful for him to know that we intend to work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. We will be issuing regulations in due course setting out in more detail the requirements for appointing clinical-that is to say, non-GP-members to the governing body.

The report that we had from the NHS Future Forum stated that it would be unhelpful for clinical commissioning groups' governing bodies to be representative of every group under the sun. We agreed with that. Requiring a bigger group of professionals on the governing body itself, or expanding it in any way at all, would not really mean that a broader range of interests are involved in designing patient services. It would just lead to governing bodies that are too large and slow to do their job well. However, we think that it is important for clinical commissioning groups to be led clinically. That is the point.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl. However, that ultimately means that a majority of the people on the board of a clinical commissioning group will potentially be able to take advantage of the commissioning decisions of that group. That is why the corporate governance is so concerning. I accept that my amendment might be regarded as rather lengthy. However, I am pushing this forward because I am trying to replace the lack of effective corporate governance.

The noble Earl says that sanctions will be contained in guidance, but I do not think that that is sufficient. The potential for conflicts of interest are so great and the amount of public money involved so considerable that we should have in the Bill a clear commitment to sanctions. I do not agree with the noble Earl that this

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is something that can be left to professional bodies. My noble friend Lord Warner was absolutely right to mention that case. It shows some of the risks of what essentially was, in that person's case, a managerial issue being pursued by a regulatory body. I do not think that that is the right way of dealing with GPs who, it was alleged, had pursued actions in breach of whatever guidance was issued.

Earl Howe: The noble Lord should not forget what I said about Monitor's powers to look at improper conduct at the CCG level.

Lord Hunt of Kings Heath: My Lords, I am sure that Monitor will play an extremely useful role, but surely it would be much better to give further and clear guarantees that these matters will be dealt with effectively. I believe that we need more provision in the Bill specifically on sanctions. I should like to test the opinion of the House.

4.56 pm

Division on Amendment 38A

Contents 186; Not-Contents 259.

Amendment 38A disagreed.

Division No. 1


Adonis, L.
Afshar, B.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bhatia, L.
Bhattacharyya, L.
Bilston, L.
Blackburn, Bp.
Blackstone, B.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Carter of Coles, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Corston, B.
Darzi of Denham, L.
Davies of Coity, L.
Davies of Oldham, L.
Deech, B.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Dubs, L.
Durham, Bp.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Temple Guiting, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Giddens, L.
Gilbert, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.

27 Feb 2012 : Column 1074

Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Laming, L.
Lea of Crondall, L.
Leicester, Bp.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Manchester, Bp.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Monks, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Nye, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Owen, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Singh of Wimbledon, L.
Smith of Basildon, B.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Touhig, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Worthington, B.
Young of Old Scone, B.


Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashton of Hyde, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Best, L.
Birt, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Cathcart, E.

27 Feb 2012 : Column 1075

Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Coussins, B.
Craig of Radley, L.
Craigavon, V.
Crisp, L.
Cumberlege, B.
Dannatt, L.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Edmiston, L.
Elton, L.
Empey, L.
Falkland, V.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman of Elstree, L.
Fellowes, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Geddes, L.
German, L.
Glasgow, E.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hollins, B.
Home, E.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Janvrin, L.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Kerr of Kinlochard, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Listowel, E.
Liverpool, E.
Lloyd-Webber, L.
Lothian, M.
Lucas, L.
Luke, L.
Lytton, E.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
MacLaurin of Knebworth, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Naseby, L.
Newby, L.
Newton of Braintree, L.
Northbourne, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Oxburgh, L.
Palmer, L.
Palmer of Childs Hill, L.
Palumbo, L.
Pannick, L.
Parminter, B.
Patel, L.
Perry of Southwark, B.
Plumb, L.
Popat, L.
Quirk, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Rennard, L.
Richardson of Calow, B.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.

27 Feb 2012 : Column 1076

Rodgers of Quarry Bank, L.
Rogan, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Sterling of Plaistow, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wade of Chorlton, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Waverley, V.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Willis of Knaresborough, L.
Wilson of Tillyorn, L.
Younger of Leckie, V.
5.08 pm

Amendment 38C

Moved by Lord Warner

38C: After Clause 19, insert the following new Clause-

"Integration of services

(1) In discharging any duties under this Act, or any related regulations or guidance, "integration" means the integration of health and social care commissioning, assessment, service provision or payment arrangements with the primary purpose of improving the delivery of integrated care and treatment to individual patients or service users or groups of such individuals.

(2) Annual reports produced in accordance with this Act by the National Commissioning Board; and a clinical commissioning group shall report progress made by that body on improving the delivery of integrated care and treatment in accordance with this definition.

(3) The National Commissioning Board's annual business plan must explain how it proposes to improve integration of services in accordance with this definition.

(4) In developing tariffs, both the National Commissioning Board and Monitor shall have regard to improving integrated care and treatment in accordance with this definition."

Lord Warner: My Lords, I shall speak also to Amendment 143.

A noble Lord: Not before time.

Lord Warner: Better late than never, my Lords. This brings us back to the issue of integration that we discussed in Committee. Since those discussions, which themselves followed the report of the Future Forum, we have had two important and relevant reports from

27 Feb 2012 : Column 1077

the Commons Health Select Committee, one on public expenditure and one on social care. There was also a robust report in January by the King's Fund and the Nuffield Trust for the Department of Health and the Future Forum on the case for moving forward with greater pace on integrated care. It is clear to me and my fellow signatories to these amendments that it would be a mistake not to use this Bill to provide some stronger requirements and make it more likely that integration of services to benefit patients will actually happen. None of us believes that legislation on its own will deliver integration, but providing a stronger legislative framework is more likely to make it happen. That is the purpose of these amendments.

Let me remind the House what the three reports that I have mentioned actually said. The King's Fund and the Nuffield Trust said that the Department of Health and the NHS Commissioning Board should,

The report went on to say that they should set,

In its January report on public expenditure, the all-party Health Select Committee, with a Conservative chair, said on page 32, at paragraph 13, that it,

that is, integration-

The committee called on,

In its further report on 6 February on social care, the Health Select Committee made clear that the key to joined-up services is joint commissioning. It recommended that the Government should place a duty on clinical commissioning groups and local councils to create a single commissioning process. Its main focus is on integrating services for older people, but much of what it says applies to a wider group of people. It also draws attention to the difficulty of defining the boundary between the NHS and local authority services.

This is the context in which I believe that we need to strengthen this Bill while it is still before us. It would be a missed opportunity not to do so. We must tackle this issue of the definition of integration, but make sure that it is not limited to particular groups of patients and service users, and that it is not simply restricted to those who straddle the NHS and social care boundary. Those depending solely on NHS services need improved integration, as I have discovered from some of my family episodes and circumstances. We also need not just integration of commissioning, important though that is and on which I fully support the Select Committee's recommendation. Organisational integration is not sufficient, as history has shown us. The definition of integration has to make clear that the primary purpose of the organisational and process changes for

27 Feb 2012 : Column 1078

integration is to bring benefit to patients and service users through the delivery of integrated care and treatment. As the Oxford English Dictionary makes clear, "integration" is:

"The making up or composition of the whole by adding together or combining the separate parts or elements".

If we are to progress service integration for individuals, we need to put a clear definition of integration and its purpose in this Bill. That is what proposed new subsection (1) in Amendment 38C does, in a way that supports the conclusions of the Health Select Committee. The three other subsections ensure that there is no escape for any of the actors in this drama from taking seriously the issue of service integration. Subsection (2) requires that annual reports provided by the Commissioning Board and clinical commissioning groups, under the terms of this Bill, should report progress on improving the delivery of integrated care and treatment in accordance with the definition in proposed new subsection (1). The NHS Commissioning Board is required by the Bill to produce an annual business plan. Proposed new subsection (3) requires that plan to explain how the board,

the definition in proposed new subsection (1).

5.15 pm

Proposed new subsection (4) requires the Commissioning Board and Monitor to have regard to integration of services in the setting of tariffs, which should encourage tariffs that move away from hospital episodes of care to ones that support integrated pathways of care over periods of time.

I turn briefly to Amendment 143, which completes the picture by requiring the Secretary of State's annual report to cover not only the performance of the NHS but its integrated working with adult social care.

I do not claim that these amendments will, on their own, deliver the integrated care that we all want to see, and which the three reports that I have mentioned and the Future Forum are trying to drive. However, they strongly support that drive and put the Bill in a better shape to make greater integration of services more likely. I hope the Minister will see them as a constructive way forward that supports the Government's policy and that he will be able to accept them. If he wants to go further and produce his own amendments to support the Select Committee's recommendations on joint commissioning by placing duties on clinical commissioning groups and local councils, I for one would be glad to give him my full support. I suspect that many people across the Benches in this House would follow that. I beg to move.

Lord Patel: My Lords, I have put my name to Amendments 38C and 143 and support them very strongly. They cover the issues that we raised in Committee and which need to be addressed.

The Government's intention in the Bill is clearly stated: they want to see better quality of care and outcomes, particularly for patients with long-term conditions. I spoke at length about this in Committee and will not repeat myself. However, in brief, a patient who suffers from a long-term condition will get better

27 Feb 2012 : Column 1079

care and outcomes only if that care is individualised and integrated from primary care, through acute care to community care. If we are to do this, we need some guidance in the Bill itself as to who will be responsible, how it will be done, who will give the guidance and how it will be monitored. I do not mean by Monitor, but how whether it is happening will be monitored. It is for this reason, if no other, that I strongly support these amendments. I agree with my friend, the noble Lord, Lord Warner, about hoping that the Minister will be able to accept these amendments or the principles behind them; and, if he cannot accept them, that the Government support them by tabling their own amendments at a later stage.

Baroness Pitkeathley: My Lords, I, too, will speak strongly in support of these amendments, to which I have added my name. In spite of my major misgivings about the content of the Bill when it was originally published, I remember being delighted by its title because it had "social care" up there with "health". Did this mean, I thought to myself, that at long last health and social care were to be given equal status? At long last, was there to be a proper recognition that the patient experience of being ill, disabled or in need of care is an integrated one? The Bill was supposed to be about making the patient experience better-less confusing, and more effective and efficient from the point of view of the patient-so I was hopeful.

In more than 40 years of working at the margins of health and social care, I have seen two experiences constantly repeated. The first is of patients always being surprised, distressed and horrified by the lack of integration between health and social care. Since they cannot put their own needs into two separate boxes, they are surprised that the services seem to be provided in separate boxes. They are further distressed by having constantly to give their details and history to different people, having to undergo unnecessary repeat tests and yet still being left alone or reliant on their families to negotiate between the NHS, social care agencies and local authorities, not to mention voluntary and private sector providers.

The second experience which has been constant in my life is the seeming commitment of all those who work in the system to how important integration is to the delivery of proper patient-centred care. Indeed has anyone in your Lordships' House or anywhere else ever heard any professional say that there are benefits to care which is not integrated? Yet that is what we continue to deliver and there seems little hope of the Bill in its current form rectifying and ensuring a joined-up approach. Indeed, I fear for the practice manager or the social worker who has to interpret the new diagrams of the system to an elderly and confused patient or client.

My noble friend quoted the Health Select Committee, which said:

"Although the Government has 'signed up' to the idea of integration, little action has taken place to date. The Committee does not believe the proposals in the Health and Social Care Bill will simplify the process".

The committee further said that the reforms in the Bill were built on the hope that GPs, hospitals and local authorities will respond to payments for working together.

27 Feb 2012 : Column 1080

These amendments are about more than hoping for the best. They make practical proposals, first, about defining integration which, as the Law Commission found, is not easy. It will surely not be difficult to agree, as the Law Commission did, around contributing to or promoting the well-being of the individual. That would cover not only health and social care but housing too. That separation, as your Lordships are well aware, has always been a problem.

The proposals about annual reporting and business planning to check progress are also very practical and taking into account the levels of integration in setting tariffs is also very important. It is of the utmost importance that we take the opportunity given by the Bill to move the reality of integration forward in a way which will make a radical difference. The benefits to the patient, the client and the carer are obvious but there are benefits to the community and society which are similarly significant, since integration clearly delivers more effective and efficient care. There is lots of research evidence about this. For example, Turning Point identified that for every £1 spent on integrating health, housing and social care, £2.65 was saved. This is not only better for patients but provides better value for money. What is not to like in these amendments? I hope the Government will accept them.

Lord Mawhinney: My Lords, it would be very courageous for anyone in your Lordships' House to argue that there was no benefit to the patient in trying to have as integrated a service as possible. I am not that courageous. It is a good place to start. Having said that, I do not believe that these amendments are the answer or that they move forward the argument for integration. I searched through these proposed new clauses and I find no mention of any legal responsibility on the local authority, the social care agencies or anyone else. They are entirely directed to health bodies. That imbalance struck me as being a pretty poor starting point if you are genuinely interested in trying to produce integrated services.

Your Lordships will know that, even before the introduction of the Bill, there were various attempts to integrate services in various parts of the country. I happen to be a reasonably well-informed individual in respect of one of those attempts. It is one thing to say to the PCT, the cluster, or whatever is the latest development in that area that it has responsibilities to integrate with the local authority, just as it will be a different thing to say that a local commissioning group has to integrate with the local authority if some attempt is being made legally to define the role of the health component but there is no commensurate attempt to deal with the legal framework with regard to the providers of social care. I know of one example of attempted integration in this country that is foundering because the health component is seeking to shift its deficit on to the local authority. Sometimes the quality of those who serve in one is so different from the quality of those who serve in the other that no right-minded person who was dealing with his or her own money would invest in a partnership that was as skewed as those that exist up and down the country.

I started where I did because I do not wish to be interpreted as being against useful, appropriate and

27 Feb 2012 : Column 1081

constructive forms of integrated provision. I have taken a view throughout the Bill that it ought to be for the benefit of the patient. It would be courageous to suggest that some appropriate form of integration would not be of benefit to the patient. However, these skewed and flawed amendments are not helpful and certainly do not beat a path to the future for the benefit of patients.

Baroness Young of Old Scone: My Lords, I rise to support Amendment 38C and to disagree violently with the noble Lord, Lord Mawhinney. I think that the importance of integration applies not just between health and social care but also within health services. We have to start somewhere, and the Bill before us gives us the opportunity-now, today-to start with the important new bodies that will come into existence on the health service side of the partnership. It is fundamental and vital that they are properly tasked with responsibility for integration. Let me explain why.

I hope that many noble Lords listened last week to the interesting and powerful "File on 4" programme on the dreadful condition, in terms of lack of integration, of our diabetes services. Diabetes is a long-term condition and those who have it require each year that about 15 essential and different services are clustered around them in an integrated way; otherwise they run a high risk of suffering premature death or horrific and expensive complications. I emphasise the word expensive because those complications can include kidney failure, blindness and amputation, which are hugely expensive for the National Health Service to treat and could, at the current rate of increase in diabetes, financially wreck the NHS. I hope that at least some noble Lords heard that programme because it demonstrated that integration between health and social care and within healthcare is vital for long-term conditions-not just for diabetes but for other long-term conditions as well.

This is a disputed figure, but it is thought that long-term conditions now take up somewhere between 60 and 70 per cent of the NHS budget. If the Bill is about the future provision of healthcare in this country and how healthcare needs to be joined up internally and with social care, it will have to address that 60 or 70 per cent of NHS expenditure that relates to long-term conditions. Therefore, it is pretty important that the new institutions of the NHS Commissioning Board, the clinical commissioning groups and Monitor are clearly now tasked-while we have the opportunity to influence them-with incorporating integration into their annual plans and with reporting annually on how they have got on with fulfilling this obligation and important duty. I do not think it is too much to ask; I think it is pretty important. I hope the Minister will agree.

Monitor will also have a crucial role in the development of tariffs. At the moment we have tariffs which, unless properly constructed, get in the way of integration: they form a barrier to putting together sensible packages of services. In a competitive environment, that will be even more so. It is fundamental that tariffs are constructed in a way that supports the important integration-and

27 Feb 2012 : Column 1082

I am not going to apologise for repeating this-which if not delivered results in premature deaths and horrific complications. I hope that the Minister will take this point and support the amendment.

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