Last night in the House of Lords (in between the debates on the Justice and Security Committee which led to the Government’s proposals on so-called secret courts being savaged) there was a debate on the regulations that set out how the Chair and members of the committee of Healthwatch England are to be appointed as a sub-committee of the Care Quality Commission.
The regulations are controversial because the subservience or apparent subservience of Healthwatch England to the Care Quality Commission undermine the independence of Healthwatch England as the national body representing patients’ interests – particularly as part of its job in the future may be to raise, on behalf of patients, questions about how the Care Quality Commission has carried out its functions.
The Minister’s response was pretty unimpressive – essentially that the initial appointments made to Healthwatch England were so good that there would never be any problems in the future.
You can read the full debate here.
My contribution was as follows:
‘Lord Harris of Haringey: My Lords, I am pleased to have the opportunity to follow the noble Baroness, Lady Jolly, on this Prayer. She has highlighted the weakness in the Government’s position. I am confident that the people who have set up Healthwatch England are of good will and that they intend and wish it to work; that Anna Bradley will be an excellent person as chair of Healthwatch England; that the outgoing chair of the Care Quality Commission is committed to making it work; and that the chief executive of the Care Quality Commission is committed to making it work. I even believe that Ministers in the Department of Health are committed to making it work.
The problem is that we are provided with a framework of regulation which does not guarantee that in future. One or two appointments down the road, with a new leadership of the Care Quality Commission and, perhaps, with different Ministers at the Department of Health, how will those things be ensured, especially if budgets remain tight and Healthwatch England starts to be effective and makes criticisms which are difficult for Ministers-or, worse still, in this context, for the Care Quality Commission? That is when those problems may arise.
That is why, when the Bill was passing through this House, there was so much concern about the importance of independence for the Healthwatch structure. My concern is that, given that the legislation has passed, this is a wasted opportunity to make it stronger.
One of the lessons that is expected to come from the Mid-Staffs inquiry relates to independence. The report is expected to identify the systemic failure of organisations to focus primarily on the needs of the patients of that hospital. Because each was looking at its own area, nobody was taking the step back to say, “How does this work from the point of view of patients?”. That is where Healthwatch should come in and be influential: to cut through the complicated organisational structures which the Health and Social Care Act has bequeathed to the NHS. That is why the simple issue of how it preserves its independence is so vital.
When the Bill was going through Parliament, the noble Earl held a meeting to discuss how Healthwatch England should work. He made the point that there would be valuable synergies from Healthwatch England being located within the Care Quality Commission. He did not stress, but it was clearly part of the equation, that there would also be some useful cost savings associated with that. The cost savings could be achieved in a whole variety of ways. It would be possible to have an agency agreement whereby some of the back office functions were provided by the Care Quality Commission or any of the plethora of structures that the Health and Social Care Act has bequeathed to the NHS. Similarly, because the duty of co-operation exists, you would hope that those synergies could be activated without the need for the Healthwatch organisation to be subservient to the Care Quality Commission. It would have been possible in these regulations to create a structure which, while preserving the general framework of the Act, would ensure that there was independence.
If we look at the regulations that we have before us, we see a number of flaws. First and foremost, for example, is the size of the Healthwatch England committee. Potentially, this will be a committee of as few as six members. I appreciate that in the initial instance it is larger than that, because people of goodwill are trying to make this structure work. However, in three, four or five years’ time there may not quite be the same atmosphere or there may be a feeling that the wings of Healthwatch England need to be clipped back. In any event, with six to 12 members it is going to be extremely difficult to ensure that there really is the geographical diversity that is necessary; the coverage of all the many major areas of special need that exist as far as health and social care is concerned; and proper recognition of ethnicity and gender within that. Again, the initial membership has provided a reasonable attempt to achieve that diversity, but where is the guarantee of that in the future?
I know there is a feeling that small boards work well. The noble Baroness, Lady Cumberlege, who is not in her place on this occasion, has talked to us glowingly about the value of having small, dynamic boards to run organisations but this is a different sort of organisation. It is supposed to be one that represents the generality of the interests of patients across the whole country and which derives its authority from what is happening in local Healthwatch organisations around the country-the 150-odd local organisations that will exist. It is therefore not appropriate to have a small board in such a case, as it is not the same sort of structure.
Then we have the rather strange arrangements for the appointment process. In the first instance, the chair of Healthwatch England has to get the approval of the chair of the Care Quality Commission before appointments can be made. The future arrangements are that the chair will make the appointments directly but let us be clear: the chair of Healthwatch England is a Secretary of State appointment and has the potential to be the poodle of the Department of Health. I have been in the position of being in charge of the organisation representing patients and I remember successive Secretaries of State, from two parties, making attacks on the organisation because we were being effective and raising issues that were uncomfortable.
Under those circumstances, can we be satisfied with a future arrangement whereby the Secretary of State solely makes the appointment of that individual, who then appoints all the other members of the Healthwatch England committee? In the initial stage, you have a double lock where the chair of the Care Quality Commission gets involved but in future you will have someone who might be appointed as a poodle or to muzzle the watchdog nature of Healthwatch England appointing individuals who are, no doubt, like-minded. That is why the arrangements are strange.
We then have the provision for suspending members, which is set out here. Presumably, the suspension is different from disqualification but the Secretary of State may dispense with the chair of Healthwatch England for a variety of reasons, which includes,
Who is going to determine what those duties should be? Essentially, we are being told that the Secretary of State will decide what he or she thinks is appropriate for Healthwatch England to be carrying out. Again, the chair then has similar powers in respect of individual members. I make a specific request of the Minister: that in his reply he spells out absolutely that it will not be appropriate for either the chair or the members of Healthwatch England to be suspended from their membership if they are pursuing their interpretation of what is in the interests of patients and their organisations, and the people that they represent.
Because of the requirement saying that the chair of Healthwatch England must be a member of the board of the Care Quality Commission, we are inevitably creating that subservient relationship. Will the chair of Healthwatch England be subjected to, in essence, the collective responsibility of the members of the board of the Care Quality Commission? There have been recent issues with the membership of that commission’s board, where the chair has taken a different view about what the role of individual members should be. That has led to conflict and serious problems.
Let us pan forward a few years: if the chair of the Care Quality Commission does not like the approach being taken by the chair of Healthwatch England, are they then able to say, “You are not fulfilling your duties as a member of the board of the Care Quality Commission because you are not abiding by the collective responsibility of that board’s members. I am therefore asking the Secretary of State to remove you from office and suspend you because you are not fulfilling your roles”? Even if that does not happen we will have, as my noble friend Lord Collins said earlier, the appearance of potential conflict of interest. Ultimately, how are the public going to have confidence in a structure where it looks to them as though the leadership of Healthwatch England is subservient to the Care Quality Commission, one of those important agencies about whose effectiveness it may have to make criticisms?
We should remind ourselves that the aim of all this is to enhance the collective voice of patients in the NHS. You will succeed in doing that only if the public at large have confidence in the structures that you have created. If you build into them the appearance of subservience and potential conflicts of interest, you are weakening that voice. That cannot in any way be in line with what either your Lordships would expect to see from this, or indeed with what I believe Ministers’ intentions to be as far as Healthwatch England is concerned.”
Last Friday there was a debate in the House of Lords on the Second Reading of a Private Members Bill introduced by Baroness Howe of Idlicote on Online Safety with particular emphasis on the protection of children. The Bill would have the effect of requiring internet safety providers ansd mobile phone operators to provide an internet service without access to pornography (although adult subscribers would be able to opt in to receive adult material).
The Bill was welcomed by virtually every speaker from all parts of the House (although reservations were expressed by one Conservative and one LibDem peer). The Minister (Viscount Younger of Leckie), however, declined to say whether the Government supported the principle of the Bill (ie of protecting children from adult content online) and said that such matters were the responsibility of parents, even though many parents are far less technologically adept than their children.
A flavour of the Minister’s equivocation is given by these exchanges from the closing section of his speech:
“Viscount Younger of Leckie: I realise that many questions have come out of this interesting debate. If I have not been able to answer any, particularly on age verification, I will certainly make it a point to reply to noble Lords.
Baroness Thornton: The Minister mentioned age verification, and he prayed in aid the totally inadequate self-regulatory proposals that have been proven not to work. They are not working and we have an increasing problem. Will the Minister confirm that both the Byron report and the Bailey report recommended the use of age verification to block adult content on the internet?
Viscount Younger of Leckie: I can give the briefest of answers in the time available on age verification. It is an important issue. However, I would make a distinction between age verification in terms of the gambling sites, which the noble Baroness, Lady Howe, mentioned. My understanding is that with gambling sites there is a clear distinction at the age of 18. Material for the over-18s is pin-protected. Taking our view that parents would in effect be in control, parents would want to set a range of controls appropriate for their children, which may be different for a five year-old and a 15 year-old.
Lord Harris of Haringey: I am sorry because I realise the Minister is trying to close his remarks. But I am trying to understand the answer that he has just given my noble friend. Is he in essence saying that the Government are disregarding the recommendations from those two reports because the age verification used for gambling sites kicks in only at 18? The point is that they are saying that age verification is an important mechanism. We have the evidence from the gambling sites that age verification is possible and can work. Why is it not possible to put the two things together and introduce age verification structures that may kick in at younger ages?
Viscount Younger of Leckie: I note the noble Lord’s comment but the issue of age verification is more complicated than at first it appears. We need more time to discuss this. The best thing for me to do is to get back to the noble Lord and other noble Lords who have raised this particular issue with some answers.
Technology changes rapidly and legislation does not. Industry is better placed than legislators to design the simple and effective tools that parents want, keeping pace with technology and the way that their children access the internet. But there is a role for government in setting an expectation, bringing the right people together and always pushing for more and better-
Lord Maginnis of Drumglass: I am sorry to intervene again, but it is necessary. Everything that the Minister appears to be telling us is unsatisfactory. If it is not possible for legislators to set standards, how will a mishmash of providers across the entire community come up with anything that is consistent and reliable? Will he at least tell us that?
Viscount Younger of Leckie: I can reassure the noble Lord that it is in their interests to bring themselves up to scratch in order to be able to produce online safety for children. I know that this will not be a satisfactory answer for him, but our view is that it is the responsibility of parents, ultimately, to take this forward.
Lord Harris of Haringey: My Lords, why does the Minister say that it is in the interests of online suppliers to do this? It costs them money, they are in a highly competitive market and I suspect that a large number of them make money on the basis that they know perfectly well what some of their users want to access online and they simply want to increase the number of users. Why is it in their interests to introduce this without some form of regulation in the background?
Baroness Thornton: I am sorry, but before the noble Viscount sits down, I asked very specifically at least twice during my remarks whether the Government support the Bill in principle. The Minister has not answered that question. It is very important. It does not necessarily mean that the Minister wants the Bill, as it stands, to go forward, but the principle behind the Bill, that of protecting children from adult content online, seems obvious and I would really like to hear from the Government that that is the case. I do not wish to be rude to the Minister, but I wonder whether his speech was drafted in California or Whitehall.
This morning I have signed a letter sent by Baroness Howe to the Prime Minister seeking urgent clarification of the Government’s position. The letter says:
“We are writing to express concern about the Government’s policy on child internet safety following Friday’s debate on the Online Safety Bill in the House of Lords.
Just last month OFCOM published research highlighting the problems parents face in setting up their own filtering arrangements without government assistance, demonstrating what we already know, namely that parental controls are perceived to be “a fairly complex area, and… choosing and installing them would therefore require a considerable investment of time and effort”.
In this context, we feel that the approach suggested by the Minister – who appeared to suggest that putting in place appropriate protections is a matter for parents who should be better educated – is less than helpful.
We were particularly concerned that the Minister dismissed an opt-in system, as if the Government had always been opposed to it. This is troubling for two reasons. First, the opt-in model provides parents with the greatest level of assistance with filtering, whilst not in any way taking their decision-making responsibility away. It actually empowers them. Second, the opt-in model has just been presented by the Government (further to your very welcome intervention after the publication of the Perry Report) as one of three options that it is considering for promoting child safety on-line in its summer Parental Internet Controls Consultation, to which it has yet to make a formal response. This is particularly unfortunate not least because many parents engaged with the consultation believing opt-in to be a genuine option.
As the Government has yet to publish its response to the Parental Internet Controls Consultation, the good news is that there is still scope for the position presented on Friday to be reassessed in light of consultation submissions and indeed arguments made during the Second Reading debate.
We would urge you to do this and would be grateful for the opportunity for a meeting with you to discuss this matter further.
In closing a positive note from the Minister’s response is that he did not seem very sure about rejecting age-verification and said he would write to Peers. The truth is that without age-verification any form on online protection will be very weak. That age-verification is possible is clearly demonstrated by the regulatory frameworks surrounding online gambling and the sale of alcohol online which were stressed during the debate. Age-verification must be central to whatever regulatory framework the Government adopts.
We remain deeply concerned about this issue, as we know you are, and want to work with you to secure the most robust regulatory framework for our children. They deserve it.”
The letter is signed by three Labour, one Conservative, one LibDem and five independent/crossbench peers.
My speech in the debate was as folows:
“My Lords, the whole House is enormously grateful to the noble Baroness, Lady Howe of Idlicote, for bringing forward this timely and important Bill today. The degree of support that it seems to be finding from all quarters of your Lordships’ House is encouraging. Indeed, it is encouraging to see the range of speakers that we have today. That fact alone should send a very clear message to the Government that they should no longer be dithering on these issues but moving to try to find some solutions. There is also a very clear message to the internet service providers that they, too, need to put their house in order and start to find the most appropriate technical solutions to these problems.
The only note of dissent so far has been from the noble Lord, Lord Lucas. He seemed to make the point that the Bill would place too much of an onus on internet service providers, that this was not what they were good at, and that responsibility should essentially rest with parents. I hope that I have not misrepresented his argument too greatly. That is the standard defence that is heard in these arguments in all aspects: that the internet service providers are the mere conduit or the mere pipeline by which this stuff gets into people’s homes and that somehow, because they are merely the provider of the pipe, they are not responsible for anything that flows through it. To argue that they therefore have no responsibility is rather like saying that water companies have no responsibility for purifying the water that they deliver, because their main purpose-the thing that they are good at-is providing pipes. Actually, they are not that good at that either, given the level of leaks. We do not accept that argument. We say that there is a responsibility on the providers of the pipeline to ensure that the water is pure and safe. That is essentially what the Bill is about.
Let us be clear. In this country, access to pornography is controlled offline. Therefore, there are limitations but they are not total limitations. However, it is made more difficult to access pornography in printed form, on DVD or whatever else. This legislation, should it be passed, will enable us to adjust to the fact that society increasingly exists online. It levels the playing field. It brings what is happening on the internet to the level of everything else, whether it is the top shelf of the newsagent or the age clarification which exists for cinema or DVD material.
We also know that Parliament has already legislated on the principle of age verification. The Gambling Act requires robust age verification. We have already tested this and Parliament has been through these arguments. As my noble friend Lady Dean said, the world did not end because age verification was required in that area-actually, she was applying it to another area, but the principle is that the world did not end. Age verification can be done and it now needs to be applied more generally. The solutions are available and workable. A number of sites notionally have an age restriction but the reality is that those restrictions are laughably weak. However, mechanisms are available that can make those age restrictions work. We should be encouraging that and this Bill is a step towards enabling that to happen.
The other change that has happened in recent years, which we have to accept, is that most children now spend much of their lives online. Most of their social transactions are mediated through internet-enabled mobile phones. The days when I recall one of my sons spending about three hours on the phone to arrange where he and his mates would meet no longer apply. Now, it is all done through the internet-through social media networks and so on. Ofcom’s survey in 2011 found that the average time spent online by five to 15 year-olds was 90 minutes per day. However, I suspect that that statistic is already out of date. It is probable that most five year-olds do not spend that amount of time online but that therefore means that the figure for slightly older age groups is much higher. The same survey found that many-in this instance, I think it was 41%-had been disturbed by something that they had found online and that a quarter had received unsolicited explicit material online.
That was a survey of a year ago. This is an area where things move rapidly and I suspect that we need to have in place legislation that is able to respond to these changes. Those figures will already be out of date. Even I was surprised to learn that 37% of three to four year-olds use the internet, but we have all heard stories of, and perhaps even seen, toddlers whose reaction to a picture in a printed book is to try to expand it with their fingers to make the image get larger. Again, I suspect we are simply not keeping up with the trends.
The reality, which again was found by the Ofcom survey, is that parents know less about the internet than their children do. I recall that when I was part of the sub-committee of the Science and Technology Committee that looked at personal internet security, we were told repeatedly of parents who could not quite manage the parental control software and so got their children to install it for them. That is hardly going to induce this sort of control and maybe they were not quite the responsible parents whom we are looking for, but that is the reality. The children are ahead of their parents in all this, so you have to make it easier for the parent who wants to be responsible. In my view, this is what this Bill is about: opt-in control through ISPs will limit unsolicited and inappropriate material getting into the home.
There is also a sort of golden age view, rather like the image of the family sitting around the dining table in their front room listening to the Home Service, which we were all brought up with in the 1950s. If it ever really was a golden age, the day of the concept of the computer being somewhere in the main room of the home, so that access to the internet is mediated through that process, has long passed. There are now so many internet-enabled devices in most homes that such access is not confined to one room where there may be adequate supervision.
Most children, as has already been said, will have internet-enabled mobile phones but most of the game machines that they use in their bedrooms are also now internet-enabled. There are Xboxes and Game Boys, and all these things are internet-enabled. Not all of them can receive images or material but that is the direction of travel. Children play games on them with people all over the world whom they do not know. That raises all sorts of interesting and wider child protection questions but it demonstrates why we have to be able to control the pipeline that delivers what comes into the home. It is not just about the main computer; it is about all the internet material that comes into the home, which is mediated through the channel of the internet service providers. However responsible parents may be, they can simply no longer actively monitor all the material that their children are accessing, even if such total monitoring would be wholly desirable.
There is of course a collective responsibility in all this. In that inquiry into personal internet security, we used the road safety analogy. We said that responsibility for safety on the roads was accepted and that there was: a personal responsibility as to how you were a road user, whether you were a driver or a pedestrian; a responsibility on the manufacturers of cars to make their cars more safe; a responsibility on local authorities to ensure that roads were well lit; and a responsibility to have roads that were well maintained. All that was with a view to delivering safety. We need to take that same approach to these sorts of issues.
Frankly, children need to be educated about internet safety at the same time as they receive road safety advice. We should be looking at them doing it at that young an age. Parents need to be enabled to be responsible through the measures contained in this Bill by being able to decide, in terms of the material that can come into the home, not to opt in to pornographic material. ISPs and equipment manufacturers need to make it easier for parents, and site owners need to have robust age verification.
This Bill is not a total solution to the problems of online safety but it is a step in the right direction, making it easier for everyone to play their part in securing online safety. I sincerely hope that the Government are going to be supportive and, if not, I hope that they are going to tell us how they will move forward on these issues.”
Lord Blair of Boughton (the artiste previously known as Sir Ian Blair) has made a particularly silly suggestion. Interviewed on Sky News, he has suggested that people should boycott the elections on 15th November for Police and Crime Commissioners:
“I’ve never said this before but I actually hope people don’t vote because that is the only way we are going to stop this.”
Like most other people, Ian Blair thinks the proposed system of elected Police and Crime Commissioners is flawed. There are no proper checks and balances in the governance arrangements, many of the police force areas make little sense as electoral districts, there is a risk of politicising aspects of operational policing that should not be politicised, and the changes are a waste of money at a time when frontline police budgets are being cut as never before.
However, the legislation rightly or wrongly was passed last year with a its flaws intact (despite the best endeavours of some of us in the House of Lords). The elections ARE going to take place in just over three weeks time (holding the elections in November when it is likely to be cold, wet and dark was an incomprehensible sop to the Liberal Democrats). And yes, the turnout will probably be low – maybe very low – but a boycott is simply going to mean an even lower turnout and an even greater risk that maverick candidates will be elected.
Police accountability matters. This may be the wrong system, but on 15th November forty-one Police and Crime Commissioners will be elected in every part of England and Wales with the exception of London (where we have the “benefit” of an elected Mayor in charge of the Metropolitan Police and where the Corporation of London retains its own medieval system of oversight of the City Police).
A boycott will achieve nothing. I am confident that before too long this new system will have to be changed – probably drastically. In the meantime, because police oversight is so important in any democracy, everyone will have to make the best of the flawed arrangements. And that means ENCOURAGING people to vote on 15th November.
My colleague Lord Philip Hunt reported on the Labour Lords Blog that the new governance arrangements for the new Clinical Commissioning Groups (CCGs) through which most local NHS money will be channelled are odd in the extreme, saying:
“A massive £60bn is to be entrusted to them despite very weak accountability and corporate governance structures supporting what are essentially a federation of GPs. Only two lay members will serve on the Board of each CCG so they will always be outnumbered by GPs who will have little or any accountability to the public. This is even more perverse given that the CCGs may make funding decisions which are advantageous to GPs.
Bizarrely, although the regulations we are debating in the Lords allow for a hospital doctor and a registered nurse to be appointed to the CCG Board, those employed by a local hospital are not. This is apparently because it would be a conflict of interest!”
Last night’s debate in the Lords on the Government regulations setting out how CCGs are to operate showed up the sheer absurdity of the arrangements and the normally-sensible Minister, Earl Howe, tied himself in knots trying to explain why certain categories of person were to be excluded from the Boards of CCGs and why it would NOT be a conflict of interest for GPs on the Boards to so arrange local services so that their practices benefitted.
I rather lost my temper when it was suggested by former Tory Health Minister, Baroness Cumberlege, that local councillors should in all cases be excluded from CCG Boards on the grounds that they would be incapable of making difficult decisions affecting their electorates (what does she think local councillors are having to do at the moment given the budget cuts that the Government has imposed on them?).
However, the debate also highlighted the absurdity of the Government’s proposals which would prevent someone being appointed to be a “lay member” of a CCG Board if they were employed by a local authority anywhere in the country; or – even more bizarrely – prevented someone who is a member (not even a governor) of a local NHS Trust, when in some areas every person who uses the local hospital is automatically enrolled as a member of the Trust!
You can read the full debate here and my rant was as follows:
“In this debate we are perhaps being asked to suspend our disbelief that the governance arrangements for the clinical commissioning groups make sense. We are being asked to suspend our belief on the question of whether pigs may fly. However, the extraordinary statement from the noble Baroness, Lady Cumberlege, that somehow locally elected councillors are incapable of making decisions which affect the livelihoods of the populations that elect them is disgraceful.
Baroness Cumberlege: My Lords, I object to that. I said that they have a role on health and well-being boards, which is where the strategy is set out, and that is where the NHS, local authorities, Healthwatch and other organisations come together.
Lord Harris of Haringey: I understand that. My point is that the noble Baroness does not seem to understand that today, all over the country, locally elected councillors are making decisions about closures because they are having to balance the reductions in budgets that this Government are forcing on them and on their local communities. They are making those decisions on behalf of the people whom they represent. Why is it being said that somehow they have a conflict of interest which means that they are incapable of making decisions along with colleagues about health matters?
There are issues of principle here and issues of sheer practicality. The issue of principle concerns conflict of interest. The noble Baroness, Lady Cumberlege, has talked about conflict of interest. Perhaps we will also hear about that from the noble Earl in a minute. However, the biggest conflict of interest will be the fact that the primary care practitioners are key elements of the boards of CCGs’ governing bodies. They are not being excluded; it is just everyone else who is being excluded. Let us be clear about who is being excluded. It is not simply elected members but any employee not just of the local authority in the CCG’s area but of any local authority in the country. Therefore, any person who, under paragraph (4) of Regulation 12, the CCG feels has knowledge about the area and who does not have the misfortune of being an elected councillor but does have the misfortune of being a part-time employee of a neighbouring local authority is exempt.
When the Minister replies, I should like him to explain to us why every single employee of every single local authority in the country is being excluded from participation in CCGs. While he is about it and we are talking about conflicts of interest, we have already heard the point made by my noble friend Lord Hunt of Kings Heath that any person who has been public-spirited enough to decide to become-and frankly it is a fairly meaningless undertaking-a member of a local foundation trust or a local NHS trust is also excluded from membership of a CCG. Again, what is the point of that? It is being said that any person who is public-spirited enough already to have had some engagement with the local NHS is not allowed to sit on the board of the CCG.
This is frankly fatuous. You have ended up with a situation in which you have enshrined one set of conflicts of interest and excluded from the membership of the CCG all sorts of other people who could make a valuable and useful contribution. I am afraid that for the first time in our considerations I agree with 99% of what the noble Baroness, Lady Jolly, said. The 1% with which I disagreed was that we should allow this instrument to go through and review it again in two years’ time. It is so flawed and riddled with poorly thought-out considerations of what would work at local level, and so dismissive of the best judgment of local people to decide who is best to be part of the board, that frankly we should endorse my noble friend’s Motion. I urge the Minister to withdraw the regulations and bring forward revised, more sensible regulations.”
I went along to the so-called “People’s Launch” of Healthwatch this morning. This followed on from the presumably rather more select official launch of Healthwatch England that happened ten days ago. It took place about three floors underground with a couple of hundred local health activists packed into a low-ceilinged rather-too-small room to hear Norman Lamb MP, the (LibDem) Minister of State for Care Services, and Anna Bradley, the newly-appointed Chair of Healthwatch England, set out their vision of how Healthwatch will work.
What they said was positive and they are clearly keen for Healthwatch England (and, when they are formally established next Spring, for local Healthwatch organisations) to be effective in articulating the voices of the users of health and social care services.
The assiduous reader of this blog (you know who you are) will be aware that I have been critical of the way in which, during the passage of the Health and Social Care Bill through Parliament, the Government watered down the arrangements for Healthwatch and essentially facilitated the privatisation of patient representation and failed to ensure that Healthwatch England was genuinely independent.
Those battles were lost in the House of Lords, when – as always happened on key votes on the Health and Social Care Bill the LibDem peers voted en masse with their Conservative colleagues.
Two further big elephants remain in the room. The first is the extent to which local Healthwatch organisations will feel ownership of their national organisation, Healthwatch England. The regulations formalising the governance of Healthwatch England have yet to be confirmed by Parliament and they are being prayed against by the Opposition (the procedure that precipitates a debate and potentially a vote on a statutory instrument) later this month. Anna Bradley was keen to say (in response to my question) that it should not be a matter of ownership, either by local Healthwatch organisations in respect of the national body or vice versa. However, with Healthwatch England being formally a sub-committee of the Care Quality Commission it will remain the case that local Healthwatch organisations are going to feel that the national organisation is a top-down construct unless that have a substantial or majority stake in its governance.
The second elephant in the room is the budgets that will be available for local Healthwatch organisations. The money for these is being passed from the Department of the Health to the Department of Communities and Local Government who will then parcel it out to individual local authorities who are responsible for ensuring that local Healthwatch organisations exist in their areas. (Incidentally, these are the same local authorities which are responsible for the social care provision that local Healthwatch will be supposed to be monitoring – no potential conflict of interest there then.)
These monies are not going to be ring-fenced and there is no guarantee that all of the money provided will be made available for the local Healthwatch bodies (or even that it will be transparent as to how much was passed to the local council concerned). Norman Lamb (again in response to a question from me) lauded the principle of localism but was silent about how the Government would ensure that sufficient was passed on locally to deliver the high expectations that he had set in his earlier speech. He did, hower, report that he had increased the amount of money that is notionally being passed across to Eric Pickles’ Department for local Healthwatch. I asked him to look at the issue again …..
LibDem discipline in the House of Lords is pretty monolithic – at least as far as the divisions on the Health and Social Care Bill are concerned.
I reported earlier in the week that in Tuesday’s five votes on amendments to the Health and Social Care Bill LibDem peers had voted en masse against every single one.
Today they were at it again.
The first vote was on a Labour proposal which would have removed the arrangements enabling NHS Foundation Trusts to earn up to 49% of their income from private patients. This was defeated by a majority of 58 with 53 LibDems voting against the amendment.
The second vote was on making HealthWatch England a genuinely independent body. This was voted down by a majority of 24 with 44 LibDems voting against the amendment.
The third vote was on Government amendments removing statutory status and governance requirements from local HealthWatch organisations. The Government pushed through their amendments with a majority of 77 with 40 LibDems supporting the Government line.
The fourth vote was on a Labour amendment which would have required clinical commissioning groups to get approval from local Health and Wellbeing Boards to their commissioning plan (i.e. to introduce some democratic accountability). This was defeated by a majority of 87 with 34 LibDems voting against the amendment.
In none of the four divisions did a single LibDem peer defy their Party whip and vote the other way.
Late this afternoon the Government finally got their way in the House of Lords and pushed through a group of fifty amendments that transform their proposals on how local HealthWatch organisations (the structures being created under the Health and Social Care Bill to represent the interests of patients in local communities) should operate. The amendments, produced without consultation and with little warning, remove the statutory status of local HealthWatch organisations, remove the schedule to the Bill that would have specified their governance and how they should be structured, and pave the way for the privatisation and fragmentation of the functions of local HealthWatch.
The amendments were approved by 168 to 91 – a Government majority of 77 (40 LibDems voted for the Government amendments with none against).
For the really, really, keen here is what I said in opposing the amendments:
“My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.
In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.
We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.
That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.
In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.
That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.
This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:
“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.
It says that it is not convinced. It points out that local healthwatch should,
“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—
which the Government’s amendments will make happen—
“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.
It says that only:
“Statutory, body corporate status would deliver this”.
“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.
It suggests, although I could not possibly automatically agree, that:
“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.
If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:
“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.
That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.
Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:
“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]
He later said:
“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]
could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.
The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.
In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:
“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.
With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:
“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.
I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,
“activities carried on for the benefits of the community in England”.
Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.
The noble Earl went on to say in that June 2007 debate:
“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—
we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:
“The main problem with the Bill is that because LINks”—
and you could say the same about HealthWatch now—
“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]
Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.
Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.
Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?
In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.
How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.
The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises—how will representatives be produced at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.
Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:
“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—
there is the lay leadership of the noble Baroness, Lady Jolly—
“and our Management Committee has been redesignated as an ‘Advisory Group’”—
again, lay leadership—
“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.
I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,
“My most precious resource—the time I have given—has, at a stroke, been set to nought”.
There is no local lay leadership in these arrangements. That is why these amendments are so sad.
We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.”
The Government successfully fended off an attempt to ensure that HealthWatch England (the national body that is being set up to represent the interests of patients) is a genuinely independent body in the House of Lords this afternoon.
Under the proposals in the Health and Social Care Bill HealthWatch England is constituted as a committee of the much-criticised NHS regulator, the Care Quality Commission. The amendment, which I had seconded would have made it a genuinely independent body and given it responsibility for supporting and funding local HealthWatch organisations.
In the end the amendment was narrowly defeated by 165 votes to 189 – a Government majority of 24 (44 Liberal Democrats voted against the amendment, none voted for it).
For those with time to kill, my speech was as follows:
“My Lords, I think this is the part of the Bill which I assume the Minister had hoped would give him a quiet time. Indeed, he has passed on the responsibility for answering this amendment to his noble friend Lady Northover. Originally, one had to respect the Government’s intention with regard to HealthWatch because I am sure the intention was to create effective patient representation at national and local level. That intention has been challenged in the discussions that we have subsequently had and in some of the changes that have occurred over the past few months. However, it is worth going back for a moment to first principles. What constitutes effective patient representation? The first significant element of that has to be independence. The organisation representing patients’ interests has to be independent of the providers of health services, those who commission them and those who regulate them because the act of representation can potentially challenge any or all three of those interests.
Secondly, effective representation at national level must be representative. There must be real representativeness within that structure. It must be derived from local groups and local individuals and have that authority which is derived from being a representative structure. With the best will in the world, you cannot be an organisation which can speak with proper authority on behalf of patients or, indeed, any consumers if you are simply appointed from on high by a Secretary of State. In my time, I have worked for organisations that have been structured like that and I have to say that although they can do good work, they cannot be properly representative. They cannot properly have the authority that comes from being derived from the grass roots. The third element which is critical is that the work and the comments that these bodies produce have to be derived from sound local information, which necessitates being able to pick up information from local networks around the country. That has to be safeguarded in whatever proposals are put forward.
The Government originally promised us that HealthWatch England would be the independent patients’ champion. However, as the noble Lord, Lord Patel, has just pointed out, being a subcommittee of the Care Quality Commission does not demonstrate independence. It demonstrates a subsidiary role in relation to the Care Quality Commission. I am sure that the people currently at the Care Quality Commission are motivated to try to create an arm’s-length structure. We do not know, of course, whether that desire for independence would survive the first occasion when HealthWatch England challenged the decisions made by the Care Quality Commission, or how often it would survive after repeated such challenges. However, independence is also about the perception and the appearance of being independent. How can you appear to be independent if you are a subcommittee of one of the organisations that you may have to criticise from time to time?
This amendment seeks to do three key things. It would set up HealthWatch England as an independent statutory body and write that independence into statute, set out a clear relationship with local healthwatch organisations and safeguard their funding mechanism. I recall some very wise words said to your Lordships’ House in July 2007 when we were debating the creation of the Commission for Patient and Public Involvement in Health. It was stated that,
“one signal advantage of the commission is that the money that it distributes to forum support organisations cannot be used for purposes other than those for which forums were established. Under the arrangements in the Bill, however, there is no guarantee at all that money intended to support the activities listed … will actually reach the front line. It would be possible for a local authority to say that it was delivering the activities in the Bill when, in reality, those activities were so minimal that they were hardly worth the name of patient and public involvement. What steps could be taken, in those circumstances, to ensure that such involvement in health and social care is delivered properly?”.—[Official Report, 23/7/07; col. 615.]
The person speaking said that the answer was not delivered by the Bill brought forward at that time by the Labour Government. Who was the person who delivered those words? It was, of course, the noble Earl, Lord Howe—the current Minister. He made it quite clear that the arrangements which he is now seeking to replicate were not adequate and would not, and could not, work. Yet the proposals which were going to establish the independent patients’ champion are weakened precisely because he has not accepted the lessons of his own words.
The noble Earl, Lord Howe, went on to say that he was concerned that, as:
“LINks are going to assume different forms and guises in different localities, it is axiomatic that the level of activity that they undertake is going to vary”.—[Official Report, 23/7/07; col. 615.]
He asked how the amount of money in any given area was to be assessed. Therefore, I ask the noble Baroness—who will respond on behalf of the noble Earl, who gave us that wise advice in 2007—what will be the mechanism for determining how much money is allocated to each local authority for healthwatch in its area? Will this be a global sum that will go from the Department of Health to the Department for Communities and Local Government, and then be allocated to local authorities by the mysterious process by which the block grant from the DCLG is decided for each local authority area? Or will there be a separate formula that will go with that money and decide how much money is allocated to local healthwatch around the country? If it is the latter, will that information be published? Will it be possible for residents in a local area to know how much money has been allocated so that they can see whether it is being used? I suspect that unless we have the answers to those questions we will know that the reality is that this money will disappear in the wash and not be effective. The point about the amendment is that it provides a solution to that problem because the same money would be channelled through a body that would be dedicated to the provision of local healthwatch organisations and want to ensure that the money was spent properly and appropriately.
The Government’s arguments—we have had several discussions about this with Ministers, and I am grateful to the noble Earl and the noble Baroness for providing those opportunities—seem to be broken down into three areas. First, they argue that there is a natural synergy with the work of the Care Quality Commission. However, I have already pointed out that the CQC is one of those bodies that HealthWatch England may have to criticise. There is also a synergy with the work of the NHS Commissioning Board, Monitor, Public Health England and all sorts of other parts of the new NHS. Why is there specifically a synergy with the CQC?
The Government’s second argument was that there would be cost efficiencies and that this would be the most efficient way of doing this because there would be savings due to the collocation. However, as the noble Lord, Lord Patel, pointed out, you can achieve that in many ways. You can simply say that one of the things that HealthWatch England, as an independent statutory body, could be required to do through guidance, would be to look at how its back-office operations could be provided from a variety of organisations of appropriate stature and size, where the issue of conflict would not necessarily arise. That provision could then be made by way of a clear legal agreement. However, that is not being done, and I am not quite sure why the Government are saying that there are efficiencies and cost savings that could be made only by the precise structure that they propose. In terms of providing the funding to local healthwatch, our proposal has to be a more efficient provision that will deliver the resources without leakage and without local authorities deciding that perhaps there is a greater local priority than local healthwatch.
The noble Baroness, Lady Northover, spoke vehemently about the way in which the former Commission for Public and Patient Involvement in Health had operated, and how it had a wasteful and top-heavy way of distributing resources to local patients and for public involvement. That is not the only way to distribute resources. The only reason that the former commission distributed resources in that wasteful and inefficient way is because the Department of Health at that time—I regret, led by a Labour Minister—insisted that it was done in that rather ridiculous and cumbersome way. If Ministers want distribution done efficiently and simply, perhaps that can happen. If you appoint the right people to the initial board of HealthWatch England, I am sure that they would want to ensure that that is the case. It does not have to be done in the way I described.
The third argument that I have heard Ministers make for locating this body within the CQC is that it will provide all sorts of informal support and guidance—that there will be a library, information resources and so on. However, the Government have told us how important the duty of collaboration is within the new NHS and how significant it will be. Why do you need to collocate and have HealthWatch England as a subordinate structure within the CQC when there is a duty to collaborate? Indeed, why cannot HealthWatch England collaborate with other national bodies as part of the NHS?
Within this group there are other amendments, including Amendment 224 and 225, which propose that the majority of members of HealthWatch England will not be from the CQC and will be appointed by local healthwatch. I have two concerns about those amendments. Why cannot all the members be derived from local healthwatch organisations? The bigger question comes in a later group of amendments, which is: if you have destroyed the statutory status of local healthwatch organisations, how can contractors, which will be delivering local healthwatch services at a local level, deliver representatives to a national structure? Will we thereby have representatives of different local social enterprises appointing people to sit on a national body? That is a strange representative structure.
Then there is Amendment 226ZG, which is the Government’s answer as to how they make sure that local healthwatch organisations are satisfactory. This gives HealthWatch England—this sub-committee of the Care Quality Commission—the power to write a letter. It is the power to write a letter to a local authority and say, “In our opinion, the local healthwatch organisations that you have organised in your area are insufficient”. My goodness, as a former local authority leader, I know that I would be quaking to receive a letter from a sub-committee of a national organisation that did not really regulate anything that I was particularly bothered about, telling me that I was not doing something absolutely right. There would be no enforcement powers and no means of intervention, but the power to write a letter. Brilliant. Excellent. It is just what we are looking for. It offers hardly any solution, although I appreciate the concession that the noble Baroness and the noble Earl have made in that amendment.
I conclude by saying that this is not a party-political issue. The previous Government got this wrong and, sadly, the present Government look as if they are about to get it wrong. This was an opportunity to get it right. Patients need effective representation, particularly in the context of the Bill. Even if you believe that the Bill will deliver to us a better health service—and I am obviously not one of those—patients need to be given confidence that their interests will be properly represented. At the moment, the arrangements proposed by the Government do not do that. That is why an independent HealthWatch England is so important.”
On Friday, when Parliament was not sitting, the Government published 68 amendments to the Health and Social Care Bill changing the status of local HealthWatch organisations (the local bodies that are intended to protect patient interests in the new Tory/LibDem vision of the Health Service), as I predicted a few weeks ago.
The amendments are very complex and difficult to follow – they amend amendments to Part 14 of the Local Government and Public Involvement in Health Act 2007. And they are scheduled to be debated next week during the House of Lords Report Stage consideration of the NHS Bill.
That means that these amendments – slipped out without proper warning or explanation (a normal courtesy of writing to those Peers with an interest in a particular matter doesn’t yet seem to have happened in this case) – will not receive proper Parliamentary scrutiny. They have never been considered by the House of Commons (and, if passed in the Lords, will now only be taken there as part of the truncated Consideration of Lords Amendments procedures). In the House of Lords, they have not been subjected to detailed scrutiny at Committee Stage and will essentially have to be debated on a take it or leave it basis when they are eventually reached probably some time late on Thursday. That will be the only opportunity for any discussion on what these amendments mean.
So what are these amendments about?
The biggest change is to remove Clause 181 and Schedule 15 of the Bill. These established local HealthWatch organisations as statutory bodies with a defined local membership (appointed in accordance with regulations) that could employ staff, would meet in public etc.
Instead, local authorities will be expected to make “arrangements” with a body that “a person might reasonably consider … acts for the benefit of the community in England”. And these bodies will then be able to sub-contract the patient representation work further.
The role of the national body, HealthWatch England (which the Government still want to be a sub-committee of the heavily-criticised Care Quality Commission) to advise local HealthWatch organisations is also being diluted with their power to give “advice” being changed in another amendment to a weaker role of giving “general advice”.
Presumably as a sop to people like me who had complained that there was nothing to require local authorities to provide an adequate local HealthWatch organisation (or even to spend the money allocated for local HealthWatch for that purpose), there is an amendment that gives HealthWatch England the power to give a local authority “written notice of its opinion” that the services expected of a local HealthWatch organisation are not being provided properly. This gives HealthWatch England the power to write a letter, but that is all. There is not even a requirement for a recalcitrant local authority even to respond to the letter. I am sure they will be quaking at the prospect!
The Government acknowledges that there may also be a conflict of interest between a local HealthWatch organisation and the local authority that is responsible for setting it up and funding it (for example, if a local HealthWatch criticises the quality of the social care provision provided by a local authority). They are therefore putting forward an amendment saying that local authorities “must have regard to any … guidance on managing conflicts” that the Secretary of State may issue. Again, not much of a safeguard.
The amendments also seem to envisage that a local authority may get different contractors to provide the various functions of local HealthWatch organisations, so one contractor may “gather information” and “make recommendations”, another may be responsible for “monitoring” services with the power to “enter and view” them, a third might provide advocacy services and a fourth might be responsible for “influencing commissioning”. This is hardly a recipe for an effective structure.
And there is another strange amendment which suggests the possibility of imposing a requirement that in any area “Local HealthWatch contractors (taken together) are representative of people who live in the local authority’s area”. This acknowledges that there are likely to be several sub-contractors providing patient representation services in an area, but also opens up the possibility that the sub-contractor providing one service may not be representative provided the other subcontractors compensate for the first’s unrepresentativeness.
Without these amendments, there would at least have been some clarity as to what a local HealthWatch organisation might look like – even though they would be hampered, possibly shackled and potentially starved of funds by being subservient to the local council in their area whose social care provision they would be monitoring. However, with these amendments local HealthWatch organisations are likely to be fragmented and will lose the authority they would have had by being statutory bodies. What is more by deleting the schedule that would have specified membership arrangements and governance they will now be shadowy and unaccountable structures.
The net effect of these amendments will be to make it more likely than not that the new local HealthWatch organisations will be ineffective and that there will be no proper and coherent structure of patient representation at local level.
One can only speculate as to why these amendments have been brought forward in this way at this time.
One possibility is that some obscure unit in the Cabinet Office charged with dismantling the public sector suddenly realised that there was a bit of the Health and Social Care Bill that did not facilitate privatisation and instructed the Department of Health to change it.
Another is that Department of Health Ministers have realised that the changes they are making to the NHS are so unpopular and are likely to have such a damaging effect on patients that they simply cannot risk having an effective mechanism for patients’ interests to be represented.
I don’t know which is the real reason, but it is difficult to conceive of any other rational explanation.
There is an excellent article in the New York Times that explains the behavioural psychology that is now linked to supermarket loyalty cards and on-line shopping patterns to target and personalise adverts and offers.
It describes an incident in a Target store (a major US chain) as follows:
“a man walked into a Target outside Minneapolis and demanded to see the manager. He was clutching coupons that had been sent to his daughter, and he was angry, according to an employee who participated in the conversation.
“My daughter got this in the mail!” he said. “She’s still in high school, and you’re sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?”
The manager didn’t have any idea what the man was talking about. He looked at the mailer. Sure enough, it was addressed to the man’s daughter and contained advertisements for maternity clothing, nursery furniture and pictures of smiling infants. The manager apologized and then called a few days later to apologize again.
On the phone, though, the father was somewhat abashed. “I had a talk with my daughter,” he said. “It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”