Health Bill [HL]

My Lords, I am sure that the Minister will have been gratified by the general content and tone of this debate, which, with one notable reservation, has indicated a good measure of support for the Bill from all quarters of the House. He will be glad to know that I do not propose to be the one to spoil the general mood, for even if I cannot let out a rousing cheer for every single clause now before us, I am the first to acknowledge that this Bill is shot through with good intentions, and to that extent the Government and the Minister are deserving of our good will. Unfortunately, there are two parts of the Bill on which I will sound a note of criticism, and I shall come to those later. But knowing as I do how immensely hard the Minister has worked to bring his next-stage review to this point of fruition, I should like to congratulate him on those parts of this Bill which have his distinctive imprimatur visible upon them. When it comes to the NHS Constitution, my reaction is little different from that of many other noble Lords: one cannot sensibly oppose it. Indeed, it was my own party that originally proposed the idea of an NHS constitution some time ago. I agree with what has been said; there is a benefit to be gained from articulating in a single document those values and principles which characterise the way in which the NHS goes about its work alongside the rights and pledges which patients of the NHS should be able to rely on. Restating all these things is by no means a sterile exercise. It serves to refresh the mission and purpose of the health service and, one hopes, underpin public trust. On the whole, I think the constitution reads very well. There is only one small problem. If you look for the constitution or any part of it in the Bill, it is nowhere to be seen. Not even the founding principles of the NHS are included here. What is more, they will not appear before us in a formal way at any time in the future, either in regulations or in any other statutory form. With all the talk in the constitution about parliamentary accountability, that is rather regrettable. Indeed, one has the feeling in this particular context that Parliament is something of an irrelevance. When we reach Grand Committee, I think we need to challenge the Minister on that point. The other noticeable thing about the NHS Constitution is the one mentioned by the noble Baroness, Lady Barker, in that it is not really a constitution in the accepted sense at all. One of the defining features of a constitution is that it should serve to provide clarity on issues of principle that are likely to prove contentious and to act as a point of reference when disputes or matters of definition need to be settled. Section 1 of the National Health Service Act 2006, for example, speaks of a ““comprehensive health service””, and the constitution itself echoes that phrase. If we look for a definition of what the word ““comprehensive”” should actually be taken to mean, we will be disappointed. It would have been helpful to know the extent to which people have a right to access NHS dentistry, an issue of widespread concern, but the constitution is silent on dentistry altogether. Similarly we all remember that one of the most knotty and contentious issues of health policy in 2008 concerned NHS top-ups. In precisely what circumstances should a patient who is receiving healthcare in the private sector be denied access to the NHS? It is a question of fundamental significance but the constitution fails to answer it. The Minister will know only too well, and it has been mentioned today, that the issue of mixed-sex accommodation has been a highly charged one for more than a decade. Does the constitution take us anywhere near an understanding of what NHS patients have a right to expect in this area? It does not. The NHS constitution seems to be a lost opportunity. Equally, some of us would have liked to see within it a clear articulation of how and to whom the powers, rights and responsibilities within the health service are allocated and distributed. Constitutions are normally a convenient vehicle for defining the broad structure of governance within an organisation, but not here. Ministers have told us, and we have to accept, that the constitution was never intended to create any new legal rights for patients. Given that, it seems a distinct pity that it has ended up ducking some of the key issues of structural definition. I am not wholly clear why it is necessary to incorporate in statute a duty for NHS bodies and independent sector organisations to have regard to the NHS constitution. The Secretary of State already has a power of direction. Why would it not be sufficient for him to issue a Section 8 direction to health service bodies under those existing powers and to achieve the same result with independent sector providers by means of contractual obligations? Perhaps the Minister will be kind enough to tell me. If it turns out that the Government could have created that duty by another and more straightforward route, we need to ask why they did not do so. If there was another route open to them, this part of the Bill looks suspiciously like political grandstanding. Ultimately, as noble Lords have said, the test of the constitution will be the added value that it brings to patients and staff. We owe it a fair wind, but I wonder how close we will come to being able to measure its effectiveness with any degree of precision. I support the Minster’s wish to measure quality in the NHS and to improve outcomes. The noble Lord is eloquent on his proposals to introduce quality accounts, and I am certain that this House will want to give him the chance to put them into practice. If I have doubts about the policy, they centre around the gap that may emerge between ambition and actuality. The first requirement for quality accounts is reliable and meaningful information. The collection and presentation of that information will be no mean task. The noble Lord, Lord Walton, sounded a warning about the burden imposed on healthcare providers. The second requirement is that the information which is published tells the story that needs to be told. Will it? If it is up to local providers to decide what should make up the greater part of a quality account, there needs to be some way of ensuring that the bad news is published as openly as the good news. How will we know that this is happening? Who will audit the completeness and accuracy of what a provider chooses to publish? I am aware that the noble Lord, Lord Patel, who regrets that he cannot be here today, would have wished to voice his concerns on this very point. There is another dimension to quality accounts which makes me somewhat anxious. We understand that the accounts will focus on three principal areas of a provider’s performance: safety, effectiveness and patient-reported outcomes. There is one important element that seems to be missing from those headings, which is the uptake of innovation. A provider may score high marks on safety and on patient-reported outcomes, and may be judged as being effective under certain definitions. However, if the provider does not constantly improve and develop new and better ways of working for the benefit of patients, the quality of his performance is, at best, questionable. I have not seen or read anything on this aspect of quality in the literature provided by the noble Lord, and it would be helpful if he would comment on it. I also give broad support to the proposals on direct payments for healthcare contained in Chapter 3 of Part 1. It is extraordinary: this was a proposal that my party put forward more than three years ago. The then Secretary of State denounced us, and in the Government’s White Paper of 2006 the idea was ruled out. Undeterred, we made direct payments one of the central tenets of the health policy paper that we published in 2007. I am glad that the Government have changed their mind, because the whole purpose of this proposal is to extend the control that people have over the services provided to them—particularly those people living with reasonably predictable long-term illness or disability. For them, the divide between healthcare and social care can be a source of frustration and bewilderment. Services that should be seamless are not, and costs are often shunted between the NHS and social services. If we take people’s individual needs and wishes as our starting point, instead of the traditional structures of service delivery, we can begin to break down the barriers to providing people with better care. However, we have to go about this carefully. The Government are right to start off with pilot schemes. Much detail needs to be developed and wrinkles need to be ironed out. The questions that we will ask in Grand Committee will centre on how the Government want the scheme to work; what kinds of healthcare will fall within the scope of direct payments; how individual budgets will be calculated; and how patients will be able to make informed decisions about what services to choose. Noble Lords were right to indicate the potential pitfalls. We need to take time to identify and overcome them. I shall touch briefly on Part 2 of the Bill. We have waited some time for the Government to put in place a failure regime for NHS bodies. The proposals before us are a disappointment in one important respect: that of foundation trusts. The Government are obliging Monitor to hand over to the Secretary of State its responsibility for overseeing foundation trusts and for securing the services that they provide. The net effect of this is that all liabilities of NHS foundation trusts will be underwritten by the taxpayer. As a matter of principle as well as practice, I take issue with that, and in Grand Committee I shall explain why. Finally, I will say a few words about tobacco. I am a spokesman on health and I take extremely seriously the public health imperative to reduce the prevalence of smoking, in the general population and in young people in particular. I support any reasonable and evidence-based measure that will bear down on teenage smoking. The Bill's proposals to outlaw point-of-sale displays of tobacco products are unjustified and repressive. The evidence to back them up is flimsy, and the data has been hyped. In 2002, when tobacco advertising was banned, the Government said that they had no plans to interfere with the right of retailers to display a perfectly legal product in shops. We must be absolutely sure of our ground before removing that right. I worry about what this measure will do to small shops, and I find it surprising that the Government have chosen to pass over other measures that would promote smoking cessation and make the existing law work more effectively. Our detailed debates on this must wait for Grand Committee, but the Minister will recognise that they are likely to be well attended. I have concluded on a note of scepticism merely because I have followed the sequential order of topics in the Bill. As I said at the beginning, for the greater part of the Bill, the Government can count on our general support; and they can count on our constructive engagement on the whole of it. I join other noble Lords in looking forward to our later debates and, in the immediate term, to the Minister's reply.