Second Standing Committee on Delegated Legislation
Monday 10 March 2003
[Mr. Peter Atkinson in the Chair]
Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002
4.30 pm
Dr. Evan Harris (Oxford, West and Abingdon): I beg to move,
That the Committee has considered the Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 (S.I. 2002, No. 3048).
I welcome you to the Chair, Mr. Atkinson. I also welcome the Under-Secretary of State for Health, the hon. Member for Tottenham (Mr. Lammy) to the Committee. One of his early meetings as a Minister, accompanied by the then Minister responsible, the Under-Secretary of State for Health, the hon. Member for Salford (Ms Blears), was with me and members of the Association of Community Health Councils for England and Wales. We raised a number of significant concerns about the future of community health councils and the function of overview and scrutiny committees. We will demonstrate today that many of those concerns have not been meet. Indeed, matters have gone from bad to worse in respect of who is to represent the interests of patients and the public.
The regulations are made under the Health and Social Care Act 2001. Overview and scrutiny committees are intended to replace some of the functions of community health councils, which the Government have announced will be abolished in September 2003. The major concerns that I shall raise today are to do with whether overview and scrutiny committees are appropriate bodies to deal with the functions previously carried out by community health councils, and whether significant omissions in their powers, which could have been put right in the regulations, will result in the voices of the public and the patient being heard less.
For the past 28 years, CHCs have monitored and scrutinised on behalf of the community the work of the local NHS. Their functions include taking a major role in arrangements for public consultation in the NHS. That was done under regulation 18 of the Community Health Councils Regulations 1996, section 5 of the National Health Service and Community Care Act 1990, the Primary Care Trusts (Consultation on Establishment, Dissolution and Transfer of Staff) Regulations 1999 and the National Health Service Trust (Consultation on Establishment and Dissolution) Regulations 1996. I shall return in a moment to the issue of the establishment and dissolution of NHS trusts.
CHCs will be abolished on 1 September 2003. The Committee must judge whether overview and scrutiny committees will be capable of taking on some of the roles of CHCs as the Government believe they
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should-wrongly, I think, because that was never the intention. In theory, local authority overview and scrutiny committees were established on 1 January 2003. Those that have been established will apparently assume parallel responsibilities to those of CHCs, and are to be consulted over substantial developments or variations in health services in the local authority area. Indeed, when she was the Minister responsible, the hon. Member for Salford said in a letter that
''a key principle for this government is the right of the public to expect its concerns over major changes to health services to be expressed through a formal statutory process.''
I support the principle of overview and scrutiny committees. The record will show that I believe that it is important that local authorities should be given more control over local decision making in the NHS. I do not dispute the fact that the Government were right in principle to set up such a framework. The NHS needs to be democratised locally. However, the powers given to overview and scrutiny committees could weaken the ability of patients and communities to ensure that they have appropriate local health services, and particularly to challenge decisions that might otherwise lead to a failure by the NHS to provide the services required to meet their health needs. There are many reasons for that. One is that it is not yet clear that overview and scrutiny committees will have the campaigning and community development profile that has enabled CHCs to influence local NHS policy and health care provision.
When the Government decided to abolish CHCs, they cited as a reason the allegation that CHCs' performance was patchy. Because some were bad, the Government chose to abolish them all and to replace them with a new system. Therefore, the least that we can expect from the new system should be that neither the patients forums-which we shall discuss under another statutory instrument-nor the overview and scrutiny committees should be patchy. They should exist everywhere.
The first issue that I should like to raise is that, because local authorities can decide not to establish a health overview and scrutiny committee, the residents in those areas will lose a power that they previously had. They will be denied access to the legal mechanism that would allow overview and scrutiny committees to refer proposals concerning, for example, closures and major change of use of NHS facilities to the new independent reconfiguration panel. I draw the attention of the Committee to regulation 3, which states:
''An overview and scrutiny committee may make reports and recommendations to local NHS bodies and to its local authority on any matter reviewed or scrutinised by it pursuant to regulation 2.''
The key word is ''may''. There is no enforceable duty for an overview and scrutiny committee to undertake scrutiny and no right for local communities to demand that the overview and scrutiny committee act in a way that protects their interests in the NHS, although CHCs have a duty under regulation 17 of the 1996 CHC regulations to do so. If at the moment they fail to do so, they could in principle be subject to a judicial review by interested and concerned citizens. It is not clear whether that power is retained. If it is not, that
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represents a diminution of the rights of local people. One might argue that one has to leave the designated bodies to make the decisions. However, the public will already have suffered a significant diminution of rights in those areas where, after the abolition of CHCs, no overview and scrutiny committee has been set up.
I have a number of questions for the Minister. First, what steps will he take to ensure that all local authorities exercise their right to establish a health overview and scrutiny committee? What encouragement can he give to them? I would not like to find myself asking for more central control of a discretionary local authority function. Given that the Government are willing to set out a lot of the functions that have to be performed by local authorities, and that it is the Government who propose to abolish the existing structure, it was not wise to give a discretion in setting up the new one. That is not centralising.
Now that there is a discretion, I am not sure that all local authorities will be aware that the functions of CHCs will fall to them by default when CHCs are abolished, and that they will need to set up committees. Can the Minister tell us how many committees have been set up? In my area, the excellent CHC can be partially reassured by the fact that Oxfordshire county council has set up a health overview and scrutiny committee. Therefore, from a local viewpoint, some of my concerns are reduced. However, it is not clear that committees will be set up across the country and will use the powers granted to them to undertake local scrutiny of the NHS.
Secondly, if in many areas local authorities have not set up overview and scrutiny committees, what steps will the Minister take to protect the rights of local people to be consulted through some body or another by the long-awaited independent reconfiguration panel on objections to a major change of use or variation in service?
Thirdly, what action will the Minister take to prevent any diminution in accountability in the NHS as a result of section 7 of the Health and Social Care Act 2001 in respect of consultations over substantial variations in NHS services?
Fourthly-I raised this question during consideration of the legislation-will the Minister place a duty on overview and scrutiny committees to make reports and recommendations to local NHS bodies regarding scrutiny exercises? At the moment, there is no duty to make such reports. That represents a significant reduction in comparison with what is available at the moment. Regulation 3 states:
''An overview and scrutiny committee may make reports and recommendations to local NHS bodies and to its local authority on any matter reviewed or scrutinised by it pursuant to regulation 2.''
There is, however, an argument that overview and scrutiny committees should make reports and recommendations even if their recommendation is to accept the proposals that have been made. Leaving the committees without a specific duty to make reports and with only a power to do so may well represent-I argue that it does-a diminution of the powers available.
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I am concerned about regulation 4 because it fails to provide for overview and scrutiny committee arrangements in respect of NHS trust and primary care trust mergers and dissolutions. As I said, the right to be consulted on those matters is currently held by CHCs under the legislation that I mentioned at the beginning of my speech. If those powers are not transferred to overview and scrutiny committees, there will be a significant and irrational diminution in the ability of the local community to respond to what may be substantial variations in services.
Let us deal with the establishment and dissolution of a primary care trust. PCTs provide as well as commission community services; they are therefore significant organisations. I should have thought that, by rights, OSCs would need to be consulted and should comment on the dissolution or merger of PCTs. The same argument applies to an NHS trust, which is obviously a major provider of services. Even if the buildings and the staff remain the same, a trust merger can have significant implications for the geographical location in which services are to be provided or re-provided. There are many examples of how trust mergers, which may have been good or may have been bad, have led to reorganisations, and trust mergers were the start of those reorganisations.
I would argue that in every case the establishment or dissolution of an NHS trust or PCT requires the consultation of an overview and scrutiny committee, where one exists. I should like reassurance from the Minister that he is going to do something about what appears to be a major gap in provision. The regulations suggest that only where it is felt that there will be a substantial variation in services as a result of a change will there be a right to consult the overview and scrutiny committee, but that will be very difficult to tell in advance. It is not clear to me that the committees will have the knowledge base, at least initially, to judge how big the variation in service might be as a result of such a dissolution or merger, and I think that the Government need to clarify that point. In summary, I should like the Government to seek to reassure me that they are going to do something to ensure that there is not a significant gap in provision.
Regulation 4(2) states that ''Paragraph (1)'', which I mentioned before,
''shall not apply with respect to any proposal to establish or dissolve an NHS trust or a Primary Care Trust (unless the establishment or dissolution involves a substantial development or variation as referred to in paragraph (1)''.
Perhaps I should have set that out earlier to show where I think that there could be a gap.
My next concern relates to whether there will be a time scale for consultation. Regulation 4(4) states:
''Subject to any directions issued under regulation 10, an overview and scrutiny committee which has been consulted by a local NHS body pursuant to paragraph (1) may make comments on the proposal consulted on by such date as may be specified by the local NHS body.''
It will be relatively obvious to Committee members that it might be inappropriate for a local NHS body to set a random date, which could be far too soon to allow time for adequate consultation. The Minister
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knows that under the present system, bodies consulted must be given a reasonable time for such consultation. In my experience, that is usually three months, but the consultation is sometimes so flawed that it must be reissued, making three months insufficient. Guidance on time scale is important, as NHS bodies wanting to consult quickly may sometimes attempt to reduce consultation periods to one month or less. I have seen that happen in my area. NHS bodies have been saying that they need to make cuts quickly to make in-year savings-that has been happening under this Government. Bodies have therefore sought to curtail consultation to a ludicrously short period. The least that the Minister could do is specifically recommend a minimum three-month period for consultation, as has been advised in Cabinet Office guidance.
The Government must answer several serious concerns. I hope that the Minister will give a detailed response to the issues that I have raised, and I look forward to hearing it.
4.47 pm
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