Health and Social Care Bill

My Lords, I am sure that all Members of the Committee will join me in expressing our admiration for the long record of the noble Lord, Lord Rix, in championing the cause of disability rights. They will have had a great deal of sympathy with what he and others have said in this debate. The Government are committed to improving the lives of people with learning disabilities and the lives of their carers and families. Since we last had a debate of this kind in the context of a health Bill, the legislative backdrop has changed in a very material and important way. I am referring, of course, to the Equality Act 2010. The public sector equality duty in Section 149 of that Act requires public bodies to consider the impact of policies and decisions on particular groups across the protected characteristics. It also requires public bodies to have due regard to the need to eliminate discrimination and to advance equality of opportunity. This general public sector equality duty came into force in April 2011. This means that public bodies such as commissioners, local authorities, health trusts, other providers of NHS services and regulators need to understand how different groups are affected by their policies and practices across all protected characteristics, including disability, and ensure that they routinely use equality data in order to have due regard in their decisions. Furthermore, public authorities need to have a clear evidence base from which they can determine and set clear and measurable equality objectives in line with their specific duties in regulations made under Section 153 of the Act. Sections 29 and 39 of the Equality Act 2010 prohibit discrimination against disabled persons, whether direct or indirect, by NHS employers, providers of health services and persons exercising other NHS functions. There are, in addition, important duties that apply to the NHS in relation to disability discrimination and reasonable adjustments which public bodies must make. Duties to make reasonable adjustments in relation to employment or the provision of services are set out in Sections 20, 29(7) and 39(5) of the Equality Act. The purpose of these duties is to ensure that employers and service providers have a positive and proactive duty to take steps to remove or prevent obstacles which may place a disabled person at a disadvantage in comparison to a non-disabled person. This Bill plays its own part in helping to ensure that the care system delivers these commitments and improvements. It introduces new duties in relation to quality and fairness. It creates underpinning legislation for the NHS outcomes framework, which links to the public health and social care frameworks, and that will shine a light on the experiences of all patients and service users, including disabled people. The Bill brings clarity to quality through NICE quality standards that describe high-quality care along a pathway addressing the key issue of co-morbidities. The changes to the regulatory framework give Monitor a role in Clause 59 in relation to improvement in quality and fairness, as well as efficiency. The Secretary of State’s annual report will be closely linked to the objectives that he sets for the NHS Commissioning Board and Public Health England. These are likely to evolve over time to meet changing health needs. Because the new duties relating to quality and the reduction of inequalities apply to a number of bodies in the system, it would seem logical to include these aspects in the annual report. I can give an assurance that we have every expectation that the improvement of quality and the reduction of inequalities will be key reporting themes in the Secretary of State’s annual report. Our starting point is that people with a learning disability are people first. They have the right to lead their lives like any others, with the same opportunities and responsibilities, and the same dignity and respect. There is a clear policy framework towards people with learning disabilities, including those with profound and multiple learning disabilities and behaviour that challenges. Valuing People, published in 2001, set out the previous Government’s commitment to improving the lives of people with learning disabilities, and set out the core principles of rights, independence, choice and inclusion. In 2009, that Government reaffirmed these principles in Valuing People Now. The coalition Government have also endorsed them. Key areas include improving outcomes for people with learning disabilities and their family carers around health, housing and employment, in particular enabling people to live healthier and for longer, including by improving access to high-quality healthcare, helping people to secure and stay in employment and supporting people to live in their own homes, including closing NHS campuses. The first NHS outcomes framework signalled a number of important areas that needed to be included in it in the future. One of those areas was to understand and measure good outcomes for people with learning disabilities. The existing data and data collections do not easily allow outcomes for people with disabilities, including learning disabilities, to be identified. To help rectify this my right honourable friend Andrew Lansley launched the innovation in outcomes competition earlier this year to try to help to fill these gaps. I am delighted that we received some extremely helpful suggestions for how we might incorporate outcomes for people with learning disabilities in future iterations of the framework. In addition to the NHS outcomes framework, the mandate is a mechanism through which it may be possible to draw attention to the importance of improving the quality of services and outcomes for people with learning disabilities. Improving outcomes for people with learning disabilities and their family carers is about making change happen at a local level for all people. It needs the full commitment of the full range of service providers and agencies across all sectors that need to work in partnership to plan, review and commission strategically. As was well emphasised by the noble Lord, Lord Beecham, local authorities and health bodies are required to develop a joint strategic needs assessment and to commission services to address those needs. Joint commissioning with local authorities in relation to care and support for people with learning disabilities will help to support them better. We expect services delivering support to people with learning disabilities to act to ensure they are fully compliant with the law, especially the Equality Act 2010. I turn now to the noble Lord's amendment to Clause 12. This clause allows the Secretary of State to make regulations requiring the NHS Commissioning Board to commission certain services that it would be less appropriate for clinical commissioning groups to commission. One of the reasons for giving GPs within clinical commissioning groups responsibility for commissioning NHS services locally is their unique position as the gateway by which patients access the majority of NHS services. However, there are some services that patients do not access via their GP, and there are others, for patients with rare conditions which are high cost and where clinical expertise needs to be concentrated, that require them to be commissioned and organised separately. For those services we believe that it would be better for the NHS Commissioning Board to take the lead. Dental services and services for members of the Armed Forces and for persons detained in prison or other accommodation of a prescribed description were included in the Bill because there was a clear policy intention for the board to commission the majority of services in these areas, and they could be easily defined in broad terms in primary legislation. This was confirmed by the consultation process on the implementation of the NHS White Paper and in the subsequent Command Paper. Clause 12 provides that regulations may require the board to commission such other services or facilities as the Secretary of State considers it appropriate for the board rather than clinical commissioning groups to commission. The intention is that this would include specialised services for very rare or rare conditions where different arrangements currently apply because of their low volume and high cost. Currently, these services are either commissioned nationally by NHS London or regionally by primary care trusts working through collaborative commissioning arrangements with their specialised commissioning groups. In deciding what services it would be appropriate for the Commissioning Board to commission directly, the Secretary of State would be required to take into account a number of factors. These four factors are set out in Clause 12. For services such as those for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, it is expected that some services will be considered specialised and therefore should be commissioned nationally. This is the specific question posed to me by the noble Baroness, Lady Hollins. Some services will not be considered specialised and should be commissioned by clinical commissioning groups working with local authorities. The services included in the regulations could change over time as new services develop, existing specialised services become more common, and so on. The point here is that there is flexibility for the Secretary of State to take account of these changing factors and to require the board through regulations to commission certain services in a way that primary legislation does not. We do not think it would be suitable to include services for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services in Clause 12, although I hope that what have said is helpful in this context. We have, however, set up a clinical advisory group to make recommendations on an initial list of specialised services that will be directly commissioned by the board and tested against the four factors set out in Clause 12. That work is progressing and no final decisions have been made, but I can assure the noble Lord that the CAG’s considerations have been based on the premise that the specialised services national definition set will form the solid basis for the specialised services included in the regulations. The current SSNDS includes a number of services that people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services can access. That includes specialised neurosciences services for adults, specialist mental health services and specialist services for children. I am looking particularly in the direction of the noble Earl, Lord Listowel. On Amendment 117, the general public sector equality duty already requires public authorities to pay due regard to eliminating discrimination and advancing equality of opportunity. The Bill imposes additional, health-specific duties in relation to reducing health inequalities. In practice, this would entail collecting and analysing data to understand the needs and experiences of people using their services according to their protected characteristics. Furthermore, the NHS outcomes framework will include a number of measures of patient experience. Wherever possible these will be broken down by protected characteristics in order to promote a renewed focus on tackling inequalities in outcomes from healthcare services. The framework provides a mechanism by which the Secretary of State can hold the NHS Commissioning Board to account for the outcomes that it is securing for patients. The board will be under a duty to assess the outcomes achieved by clinical commissioning groups for their local populations. It will be expected to discharge this duty in ways that support reductions in inequalities and promote equality. I am afraid that I do not think it would be appropriate to give greater emphasis in the Bill to some protected characteristics and not to others. On Amendment 143, the noble Lord, Lord Rix, should be assured by the fact that the Government are committed to involving patients and the public in decisions about health services that are being or may be provided to them. As I have already indicated, the general public sector equality duty already requires public authorities to pay due regard to eliminating discrimination and advancing equality of opportunity. The Bill imposes an additional health-specific duty in relation to reducing health inequalities. The means through which to involve and consult must be capable of reflecting the needs of all members of the community. The health inequalities duty on the board, as on the Secretary of State and clinical commissioning groups, will require it to act appropriately in order to comply with its duties. The same applies to the board’s public involvement and consultation duty at new Section 13P. The board will be required to involve or consult people appropriately in order to fulfil this duty and will have to have its duties in relation to equality firmly in mind when doing so. It is clearly right that the views of people with any impairments or disabilities are appropriately sought. However, we need to bear in mind that there are other groups in the community for whom reasonable adjustments may need to be made to ensure meaningful consultation, for example those whose first language is not English. I realise that the noble Lord may consider those with learning disabilities to be a special case, but to single out one group over another would be inequitable. On Amendment 245, I can assure the noble Lord, Lord Rix, that the Secretary of State will include in his annual report a comprehensive account of the state of the health service. I have already mentioned the duty to reduce inequalities in this context. I believe that the existing robust legislative framework, allied with the changes introduced by this Bill, will deliver demonstrable improvements in outcomes for disabled people. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.