Health and Social Care Bill

My Lords, this large group of amendments all relate to the different ways in which patients, the public and others will be involved in decision-making, and although I shall be suggesting that noble Lords should not press them, I am very much in listening mode on the themes that they raise. The only thing that I cannot promise to take forward is the suggestion of the noble Baroness, Lady Masham, that I should introduce an amendment on the death penalty, but, no doubt, she can persuade me. The issues that noble Lords have covered are central to our vision of informed and empowered patients, and responsive commissioning that is clinically led. These are also issues that were considered in great depth as part of the listening exercise, in response to which significant improvements were made. Those improvements created much stronger duties than currently apply to primary care trusts, so it is important to begin by recognising how this Bill takes us forward from the current position. Nevertheless, I recognise that some confusion remains about what we mean when we talk about involvement, and what the different duties in the Bill are intended to achieve. The noble Lord, Lord Warner, has tried to frame an all-embracing definition of involvement through Amendment 125, and I find little to criticise as regards the purpose and intent of that amendment. However, I would argue that much of what the noble Lord intends through this amendment is already provided for in the Bill. Indeed, it is because there can be different elements to involvement that would be appropriate in different situations that I would be cautious about trying to wrap them up in a single definition. It will be helpful to begin by considering the duties on the board and clinical commissioning groups to involve patients in decisions about their own healthcare. The noble Lord, Lord Harris, made some useful distinctions on this point. These new duties reflect our vision of shared decision-making, referred to by the noble Baroness, Lady Finlay—““no decision about me without me””, and an NHS where patients are involved fully in decisions about their care in partnership with clinicians. This is primarily about the relationship between the individual patient and their clinician; it does not extend to commissioning decisions. Therefore, I do not think that it would be appropriate for HealthWatch or indeed any other body to have a role in what are meant to be sometimes very personal decisions. There is clearly a role for CCGs as commissioners, as distinct from the role of general practitioners, in supporting and encouraging this personal involvement. However, it is not completely within their control, so I do not think that it can be for them to secure, as the amendment proposes. Nor do I think that there should be any sort of hierarchy, where the board is in the lead with a weaker duty on CCGs. That would run counter to what we are trying to achieve, which is after all a more personalised service. Therefore, I am afraid that I cannot agree with Amendments 121, 123, 124A, 191 and 192. However, such a service might include giving patients greater control over their medical records, as Amendment 124 suggests. The noble Lord, Lord Patel, may know that this was a key theme of our consultation on an information revolution. Responses to that consultation showed a clear desire to enable people to be more in control of their care, supported by greater access to the information held about them in their care records. We are committed to this and our forthcoming information strategy will set out how we propose to achieve it. These duties are of course closely linked to those relating to enabling choice. As noble Lords will be aware, patient entitlements to choice are set out in the NHS constitution. These are underpinned by directions by the Secretary of State, which will in future be the standing rules and regulations under Clause 17 which we have already discussed. I reassure noble Lords that, as now, the role for commissioning bodies in respect of enabling choice in the future will include acting with a view to making people aware of their rights and entitlements, giving them the information that they need to make informed decisions and working with providers to ensure that these are delivered. I did, however, listen with considerable care and sympathy to the noble Lord, Lord Neill, regarding patients who need advocates to speak on their behalf. This will be further reinforced by the new duty that the board and clinical commissioning groups will be under in relation to promoting the NHS constitution among both patients and staff. The board will set the choice offer, establishing the parameters for choice and competition, based on the choice mandate that the Secretary of State will set as part of the annual mandate to the board. I remind the Committee that we recently sought views on these issues through the consultation, Liberating the NHS: Greater Choice and Control. This is an important approach because it allows the Secretary of State and the board to manage the rollout of choice in a controlled way—something that I know many noble Lords are anxious to ensure. That is why we have deliberately used broad terms in describing the types of choice that patients can exercise. Indeed, I think that defining them in more detail, as some of the amendments attempt to do, could paradoxically limit their scope. They could also be unsuitable or indeed unfeasible in particular circumstances, and that is why, although I am in sympathy with the spirit behind them, I am unable to agree with Amendments 126, 127, 193, 196, 197 or 197ZA. Greater choice means, among other things, patients being able to choose between a greater range of providers. Amendments 125A, 125B, 195A and 195B are particularly concerned with the impact that greater choice and provider plurality might have on the viability of existing services—a matter that we discussed at our last session in relation to amendments tabled by noble Lords opposite about the interdependency of services. That is an issue that I completely understand. In securing healthcare services to meet the needs of their patients and populations, commissioners must have regard to the stability and financial viability of those services, including taking account of the interlinkages between services, where relevant, on an ongoing basis. Commissioners will need to commission high-quality integrated care that will deliver value for money for local communities and promote opportunities for patients to exercise choices in relation to their care. In taking commissioning decisions, they will have to consider what the noble Baroness, Lady Pitkeathley, reminded us of—that is, what will be in the best interests of their patients. This would always be their primary concern, and we would expect the board to ensure sufficient competency over these issues in authorising CCGs to take on their new responsibilities and in holding them to account for doing the job. Monitor would need to support commissioners in carrying out their duties by promoting economy, efficiency and effectiveness in the provision of services while maintaining or improving quality. That would include setting prices that deliver sufficient reimbursement for the efficient costs of providing the services specified by the board. It would also mean supporting commissioners in securing sustainable, continued access to services where communities were dependent on one or very few providers. However, above all, our focus and that of commissioners should be on securing the best possible outcomes for patients, and I do not think that protecting the interests of individual providers should come above that priority. I hope that the noble Baroness, Lady Finlay, will therefore understand why I cannot accept Amendments 125A, 125B, 195A and 195B. The board and clinical commissioning groups will also be under duties to make arrangements to secure the involvement of people in decisions about service provision in their area, just as primary care trusts and strategic health authorities are now. The very purpose of these duties is to ensure that commissioning decisions are informed by, and responsive to, the views of local people, as indeed Amendment 207 seeks to ensure. They will apply to anyone who is already using services or who may do so in the future, and in that sense they are all-encompassing. Therefore, there is no need to specify that this includes carers or representatives, as Amendments 141B and 206B propose. Nor is there any need, as Amendment 205 suggests, for an additional role for local healthwatch, whose role on health and well-being boards and in providing recommendations to commissioners we have already considered. In my view, it is right that the duty should apply specifically to changes to services that affect patients, rather than applying to every aspect of the board’s work, as Amendment 142 would require. I also believe that it is important to allow these bodies some leeway to exercise their judgment in how they fulfil these duties. Consultation will not be appropriate in every case. However one defines it, there will always be a need to determine what is or is not appropriate in a specific instance. Where information is provided, it should certainly be made available in accessible forms, where necessary, and the board would be required to consider this under Section 149 of the Equality Act 2010. Therefore, I am afraid that I cannot agree with Amendments 140, 141, 141A and 141AA or 206, 206A and 206AA. I appreciate that the intention behind many of these amendments is to prevent the board and CCGs undertaking, so to speak, cosmetic exercises in public involvement without really engaging with people or taking account of their views. However, the Bill as it stands includes a number of safeguards to prevent this—in particular, the fact that CCGs must set out the principles that they will adopt in exercising this duty as part of their constitution, and the requirement that the board’s and clinical commissioning groups’ commissioning plans and annual reports, as well as annual assessments of CCGs, must all include particular consideration of this duty. I also appreciate the concern to ensure that the board and CCGs—