Health and Social Care Bill

My Lords, the Government are committed to reducing health inequalities, to ensuring equity and fairness across the health service, and to improving the health of the most vulnerable in our society. On top of the pre-existing general public sector equality duty, for the first time the Secretary of State will have a specific responsibility to, "““have regard to the need to reduce health inequalities””," whatever their cause. This duty will be backed by similar duties on the NHS Commissioning Board and clinical commissioning groups. Taken together, these duties will ensure a focus on the reduction of health inequalities throughout the system, with special consideration paid to outcomes achieved both in relation to NHS services and to public health. While many noble Lords seek to amend these new duties, we believe that they are right as they stand. The duty will not be an add-on or an afterthought. The Secretary of State, the Commissioning Board and clinical commissioning groups will be required always when carrying out any and all of their functions to have regard to the need to reduce inequalities. I should also point out here that the duty is purposefully non-specific. Amendments 21, 22, 23, 25, 27 and 27A all aim in different ways to strengthen the wording of the Secretary of State’s duty. While I fully accept that the reduction of health inequalities must be a priority for the Secretary of State, it must also be recognised that the causes of health inequalities and the remedies to them are complex and multidimensional and require a multisector approach. Factors such as poverty, education, employment and culture require solutions which extend far beyond the Secretary of State’s or the Department of Health’s remit or capabilities. The duty on the Secretary of State must recognise the nature of the challenge we face in reducing health inequalities, and it must be deliverable. We should hold the Secretary of State to account only for the things that he is responsible for. The duty in the Bill is drafted with these factors in mind. For the same reasons, I am afraid that I cannot accept attempts to amend the wording of the duty to ““act with a view to”” or ““seek to reduce””. While I understand the noble Lord’s attempts to make the duty as strong as possible, ““have regard to”” captures the intention of the legislation; that is, that the Secretary of State must consider the need to reduce inequalities in every decision that he takes about the NHS and public health. The approach that the unamended clause sets out is the right way to achieve this. As it stands, the Secretary of State would have to have regard to the need to reduce inequalities in any decision that he made. Contrary to what some have thought, having regard is a strong duty which shows the Government’s commitment to the reduction in health inequalities. The duty to ““have regard to”” has established meaning and has been used in other important legislation, such as the duty to have regard to the NHS constitution in the Health Act 2009. The courts can and do strike down administrative actions in cases where decision-makers have not had regard to something in contravention of a statutory duty to do so. For example, they have struck down decisions of public authorities for failure to have due regard to their equality duties. The courts have said in relation to public sector equality duties that the duty to have due regard must be exercised with rigour and an open mind—it is not a question of ticking boxes. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that due regard has been paid before any decision is made. Perhaps I could clarify for the benefit of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, that the duty in Clause 3 already applies to public health functions. The expression, "““functions in relation to the health service””," covers both NHS functions and the Secretary of State’s public health functions. ““The health service””, as that term is used in the 2006 Act, is not limited to the NHS. Amendment 27, tabled by my noble friend Lady Williams, would have the effect of making the Secretary of State and the Department of Health responsible for reducing inequalities generally, beyond those relating to health. We cannot accept the amendment because there are many areas, such as wealth inequality, which are rightly not within the department's responsibility, and therefore to place a duty on the Secretary of State for Health to reduce these would not be practical. Amendment 27A, tabled by the noble Baroness, Lady Thornton, would specify that the Secretary of State’s duty in reducing inequalities should be in relation to health status, outcomes achieved, experience and the ability to access services. The amendment is modelled partly on the wording of the Commissioning Board’s and CCGs’ inequality duties. While I agree with the intention behind the noble Baroness’s amendment, I can reassure her that the reference to ““benefits”” in the unamended clause already covers these aspects and so the amendment is unnecessary. The reason that the Secretary of State’s duty talks of benefits that people can obtain from the health service is that it includes public health as well as the NHS. The Secretary of State's duty is deliberately broader than the duty of the board and CCGs. Amendment 29, tabled by the noble Lord, Lord Warner, aims to ensure that promoting patient choice is not given a greater priority than reducing health inequalities. I understand that some people have concerns that greater choice and competition could exacerbate inequalities, and I am aware that there are particular concerns that choice could benefit the better-off at the expense of others. However, our proposals on choice are intended to ensure that all patients are given opportunities to choose. We do not believe that the assertion that the better-off will benefit more from choice is borne out by the evidence. Indeed, recent evidence suggests that choice has the potential to improve equity. For example, some noble Lords may have seen the study published recently by the Centre for Health Economics at the University of York, which found that, "““increased competition from 2006 did not undermine socio-economic equity in health care and, if anything, may have slightly increased use of elective inpatient services in poorer neighbourhoods””." So I do not believe that there are any grounds for thinking that improving choice and tackling health inequalities are incompatible. They should be mutually reinforcing. Amendment 31, tabled by the noble Baroness, Lady Thornton, would introduce wording to ensure that if the duties placed on commissioners or regulators came into conflict with any other duty, the duty to reduce inequalities would prevail. I fully share the intention of making sure that these organisations do not ignore the goal of reducing inequalities. However, the inequality duty must already be complied with when bodies are exercising all their other functions. Therefore, I cannot agree that other duties placed on commissioners or regulators would conflict with their general duty to have regard to the need to reduce inequalities. Amendment 32, also tabled by the noble Baroness, Lady Thornton, seeks to place on the Secretary of State a duty to publish evidence about the extent to which inequalities have been reduced annually. I fully agree that the NHS and the Secretary of State should be accountable for their efforts to reduce inequality. Clause 50 already places a duty on the Secretary of State to report annually on the NHS. Since tackling inequality will be such an important legal duty throughout the NHS, we have every expectation that inequalities will be a key reporting theme in the Secretary of State’s annual report. Amendment 33, tabled by the noble Baroness, Lady Greengross, would place a duty on the Secretary of State to give particular regard to certain factors and characteristics when having regard to inequalities. Amendments 120B and 190B, tabled by the noble Baroness, Lady Thornton, would amend the Commissioning Board’s and clinical commissioning groups’ inequality duties, in new Sections 13G and 14S of the 2006 Act, to include the same list of characteristics and factors. I hope that I can persuade the noble Baronesses that there is no need for these amendments. First, it is unnecessary to prescribe the characteristics and factors to be covered by the Secretary of State, the Commissioning Board and the clinical commissioning group duties. The current, unamended duties would already cover health inequalities arising from any characteristic or factor. On top of this, as we have already discussed, the Secretary of State and the NHS are already bound by the general Equality Act 2010. Section 149 of that Act lists the characteristics covered in paragraphs (a) to (i) of the amendments. Therefore, the Secretary of State and NHS bodies will already have to give specific consideration to these characteristics. In not being specific in the duty on the Secretary of State, Commissioning Board or CCGs, we are keeping the duty with regard to health inequalities as broad as possible, so that no characteristics which drive health inequalities are inadvertently omitted. As the noble Baroness made clear, there are two new factors not listed in the Equality Act but proposed by the amendments. These are geographical variation and socioeconomic variation. However, it is unnecessary to specify these factors either. They are already well-established dimensions of health inequalities and will be taken into account under the duties on the Secretary of State, NHS Commissioning Board, and CCGs. They are also already specified in the NHS outcomes framework, subject to data considerations. Apart from being unnecessary, the amendments are also in a real sense undesirable. While I am sure that this is not the intention, their effect would be to give pre-eminence or priority to certain characteristics or factors. We are dealing here with the perennial problem of ““the list””; by implication, anything not on the list is less important. Instead, the Government are committed to ensuring that all dimensions of health inequalities are encompassed by the proposed duties, a principle that I am sure all noble Lords can agree with. All factors leading to health inequalities should be considered, with the weight given to them depending on particular circumstances. Amendments 25A, 68A, 68B, 69B, 120A and 190A have been tabled by the noble Baroness, Lady Thornton, and focus on health inequalities between communities. The amendments to Clause 9 would alter the duty on local authorities to take steps to improve the health of the people in their area and the equivalent power for Secretary of State. Amendment 25A would amend the existing duty of the Secretary of State to reduce inequalities. While I share the noble Baroness's concerns about the reduction of health inequalities between communities, the unamended Secretary of State's duty already covers this. The current duty applies to inequalities between the people of England, and communities are made up of people. Amendments 120A and 190A would place a similar duty on both the NHS Commissioning Board and CCGs, when exercising their functions, to have regard to the need to reduce inequalities between people and between communities, not only in access and outcomes, which includes the patient experience, but in health status, which is intended, as I understand it, to mean a standard of health and well-being. Moreover, the amendments would require CCGs to have regard to the need to reduce inequalities between individuals and communities in their area, and in England as a whole. The board, similarly, would need to reduce inequalities between individuals, and between communities across England. However, the amendments go beyond this simple replication of existing duties on commissioners by including a reference to health status. This would place a significant additional burden on CCGs and the NHS Commissioning Board, as neither is directly responsible for commissioning for public health. Amendments 68A, 68B and 69B would amend new Section 2B of the National Health Service Act 2006, which relates to functions of local authorities and the Secretary of State in the improvement of public health. The amendments would add duties to reduce health inequalities as well as to improve health. While I fully appreciate the noble Baroness’s intentions in highlighting inequalities, we do not think that the amendments are necessary or appropriate. I hope to reassure the noble Baroness that tackling inequalities in health is a priority for public health professionals and for the Government. At a national level, Public Health England will be a source of information, advice and support for local authorities and clinical commissioning groups as they develop local approaches to improving health and well-being and communicating intelligence to local commissioning about how best to tackle the public health challenges that they face. As the Committee may be aware, Public Health England will carry out the Secretary of State's functions. This means that the Secretary of State will already be closely involved in matters of public health. In exercising these public health functions, the Secretary of State is already under a duty to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service, as set out in Clause 3. Amendment 69B would amend the Secretary of State's power to take steps to improve the health of the people in England. The amendment would be intended to give the Secretary of State additional powers to take steps to improve health and reduce health inequalities between people and communities as well as steps to improve health. We think that such a power is unnecessary. In exercising his powers to improve health, the Secretary of State must have regard to the need to reduce inequalities, as a result of Clause 3. This means that he would be able to take steps to reduce inequalities in exercising his health-improvement powers. Reducing inequalities should be an integral part of how other functions are exercised, so this amendment is not the best way of achieving the noble Baroness’s aim. Amendment 68B would amend the local authority duty to take steps to improve the health of the population. The amendment would require local authorities to take steps to improve the health of the population and to reduce health inequalities between people and between communities. Local authorities are independent democratic bodies that are accountable to their populations in a different way from NHS bodies. We have used different levers such as the grant circular to ensure that a reduction in inequalities is the fundamental driver of the public health system. We believe that these non-legislative levers will be at least as effective as any duty, although of course local authorities are already subject to the provisions in the Equality Act 2010. The noble Baroness indicated that without area-based populations for CCGs it would be too difficult to measure public health data and tackle inequalities. She is incorrect about that. We disagree that the reforms will hinder the collection and usage of public health data. First, in response to her specific point, CCGs will continue to have a strong geographical basis, as we discussed at length last week. CCGs will play an active role in tackling inequalities. Secondly, the functions of bodies that are currently responsible for public health information and intelligence will also be brought into the department, such as the public health observatories and the cancer registries. This will enable Public Health England to make the most of opportunities for synergies across different services and to eliminate gaps in information to support the better delivery of public health interventions at a national and local level. Finally, the noble Baroness asked about the reduction in the disability-free life expectancy component of the resource allocation formula. The DFLE adjustment is retained as part of our commitment to reducing health inequalities. The size of the adjustment determines the weighting of the main formula, which aims to fund equal access for all and funding for work to support work to reduce health inequalities. The main formula already includes weighting for additional need to access healthcare in elderly and/or deprived populations. In the last allocations round, ACRA could find no technical basis for the weighting of the DFLE adjustment and left it to ministerial decision. Until further work on allocations to GP clinical commissioning groups and the public health service has been completed, it is being set at 10 per cent to ensure that funding for work on health inequalities continues. I apologise for the length of my remarks, but it was important to set out the Government's position on each of the amendments. I hope that I have persuaded noble Lords that the Government are committed to reducing health inequalities, and that the current duties in the Bill are the most effective way of supporting this aim. In the light of my explanation, I hope the noble Lords will not press their amendments.