Care Bill [Lords]
The Committee consisted of the following Members:
John-Paul Flaherty, Committee Clerk
† attended the Committee
‘(A1) In section 65H of the National Health Service Act 2006 (Chapter 5A of Part 2: consultation requirements), in subsection (7) after “Secretary of State;”, insert—
“(c) any overview and scrutiny committees in whose area the affected trusts have hospitals, establishments or facilities; and”
(A2) In section 65H of that Act (consultation requirements), in subsection (8) leave out
“(a) an overview and scrutiny committee of any authority to which section 244 applies;”.’.—(Paul Burstow.)
‘(A3) In section 65H of that Act (consultation requirements), at the end of subsection (4) insert—
( ) The Trust Special Administrator must hold at least one meeting with overview and scrutiny committees in whose area the affected trusts have hospitals, establishments or facilities.”.’.
‘(A4) In section 65KB of the National Health Service Act 2006 (Secretary of State’s response to regulator’s decision), after paragraph (1)(b), insert—
“(ba) that in the discharge of its functions the trust special administrator has reasonably sought and considered responses from any affected trusts, staff of any affected trusts and such persons as the trust special administrator may recognise as representing staff of any affected trust, and any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report.”.’.
The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter): It is important to respond fully to the earlier discussion, although we were beginning to stray into a clause stand part discussion earlier when I was trying to respond to some of the points raised by my right hon. Friend the Member for Sutton and Cheam about his amendments.
Amendment 170 tabled would require the Secretary of State to decide if he was satisfied that an administrator appointed only to a foundation trust had reasonably sought and considered responses to their statutory consultation from all provider trusts, their staff and commissioners who may be affected by the administrator’s recommendations.
As we have already discussed, the consultation provides an important opportunity for the TSA to validate and improve on their draft proposals by formally consulting with all relevant stakeholders. They must have confidence in the outcome of the regime. The consultation process must therefore be credible. I would like to reiterate that it is in an administrator’s interest to consult widely and to make sure the perspectives and concerns of all those interested are heard. In the case of a foundation trust, if Monitor is satisfied with the administrator’s final report, it is forwarded to the Secretary of State who must already decide if the administrator has carried out the administration duties required of them by the 2006 Act. For the benefit of the Committee, the Act sets out the administration duties, including the duties imposed on the administrator under the legal regime in that Act, as well as any directions which may apply to the administrator and their terms of appointment.
Clause 118, as amended by the Government, would mean the Secretary of State must decide whether he is satisfied that all affected trusts, their staff and commissioners have been properly consulted and their views considered. If not, the TSA must amend the report to address his concerns. Furthermore, following ordinary principles in public law, the Secretary of State would expect to have assurance that the consultation has been conducted reasonably, and that responses had been adequately considered.
All administrators must attach to their final report a summary of all responses to their draft report which were received during their formal consultation. It will show how responses were given consideration. The final report is also published and laid before Parliament prior to the Secretary of State’s consideration in the case of a foundation trust or an NHS trust in administration. In the case of a foundation trust, the Secretary of State must decide whether he is satisfied the administration duties have been met. On that basis, we do not believe amendment 170 is necessary. I hope that my right hon. Friend feels able to withdraw his amendments.
Paul Burstow (Sutton and Cheam) (LD): The Minister is setting out the reasons why I should withdraw amendment 170. I am grateful for his reassurances. For the benefit of the Committee and others, will he explain the intentions behind clause 118(3) and (5)? My reading of the explanatory notes suggests that a trust special administrator’s report will be subject to agreement by commissioners before it can be finalised and submitted to the Secretary of State. In other words, the implication is that local commissioners have some form of—I hate to use the word—veto. It would be useful to be clear about the role of commissioners with regard to subsections (3) and (5) and their agreement to a TSA appointment.
Paul Burstow: We may have drifted into the stand part debate, but the amendments try to explore how we can ensure, while the process of doing these things at some speed was necessarily established in the Health Act 2009, that the public interest is none the less being properly safeguarded. One of the ways in which that can be done is through ensuring that the overview and scrutiny committees in the affected area are recognised in the Bill as being one of the ways in which the special trust administrator discharges their obligations under the Bill.
I am grateful to the Minister for saying that the intention is to make that clear in statutory guidance, but I do not think that that will go sufficiently far to assuage the concerns that I, and I am sure other hon. Members, have received in representations. Will he continue, as I think he said he would in his remarks, to think about tabling something on Report? I intend to return to this matter at that time, so I hope that he will give that further thought.
In our discussions, the 2009 Act is relevant to understanding how the clause works and why my amendments are necessary. That Act gives the Secretary of State power to include or exclude overview and scrutiny committees. My amendments would undo what I think was a wrong decision then, which is something that, hopefully, the Government will want to put right. I welcome the reassurances and hope that, on Report, we can get to a final conclusion that includes those measures.
The hon. Member for Leicester West—she is not in her place at the moment, but I am sure she will be later—seemed to imply that she wanted to maintain the fiction that individual NHS trusts are islands of themselves and completely cut off from everything else. I know, however, that she is an arch advocate for integration. The destination that she wants to arrive at, which I think Government Members do too—where the boundaries become less relevant to the public’s experience of health care and it feels joined up because it is joined up—must mean that that fiction can no longer stand.
Dr Poulter: Just to make it clear to my right hon. Friend, I have committed to taking away the overview and scrutiny role and looking at that further. I am sure that we will have conversations and come back to that on Report. To clarify, subsections (3) and (5), which he mentioned, relate to the foundation trust regime. The formal sign-off by clinical commissioning groups of drafts and final reports is extended to CCGs of affected trusts as part of our amendments. NHS England can agree in default of CCG agreement. For NHS trusts, there is a slightly different process, which is what I was talking about with the regulator. We will set that out in guidance to the TSA for trusts.
Paul Burstow: I am grateful to the Minister for giving that helpful clarification. Given that the shared endeavour of both sides of the Committee is to arrive at a world where all NHS trusts are foundation trusts—opinions about the pace at which that is to be achieved
The Minister of State, Department of Health (Norman Lamb): I share my right hon. Friend’s view about the importance of a holistic approach to integrate health and care much more effectively. He mentioned the views that the shadow Minister expressed. Does he share my concern on behalf of Opposition Members that some of their comments may well come back to haunt them if they are ever back in Government and have to make rational decisions about joining up health and care systems?
Paul Burstow: The Minister tempts me, but I will try to avoid goading the Opposition. That is a precept that I would have thought any party aspiring to Government should always keep in the back of its mind. The question is how deep in its mind that is buried. When I was on the Health and Social Care Bill Committee, it felt at times that it was buried very deeply, but I hope that it will be at the forefront of the Opposition’s thinking today.
To conclude, I want to underscore the responsibility of clinical commissioning groups to get things right first time with their local providers in order to ensure that the last-resort mechanism is not triggered in the first place. That must be the right course of action, and that is why we must safeguard, as far as we can, the autonomy of those bodies to act in the interests of their patients. That is also why the Department, NHS England, Monitor and the Trust Development Authority must be a bit clearer—indeed, some might argue a lot clearer—about the route and steps that would be taken before the process was triggered. As I said earlier, in the end, a lot turns on the quality of the public engagement. If it is perfunctory and simply intended to tick the boxes, it is no wonder that people man the barricades and oppose what is proposed; if it is inclusive and genuine, and hard decisions are still made, often that results in a better, more widely supported decision.
Sarah Newton (Truro and Falmouth) (Con): My right hon. Friend makes a really important point about ensuring that the whole of a local community is consulted widely because care will be affected as well as the health service. Does he feel that not only the local commissioning groups but the health and wellbeing boards have an important role in engagement? All the stakeholders, including people in the communities, must come together to plan the integrated health and care services in their area.
Paul Burstow: My hon. Friend is right to raise that point. Health and wellbeing boards’ role as systems leaders at the local level must be reflected in the guidance that comes out, and I hope that the Minister will be able to say something about that. He has been very reassuring to us about the role that local authorities more generally should be allowed to play in such processes. Clearly, the health and wellbeing board is where all parts of health and social care and public health come together to try to ensure that in any locality we are delivering services that meet the needs of the population. By extension, it
The debate has been a useful appetiser to what I suspect will be the main course: the clause stand part debate. It has revealed that the previous Government put in place improvements to the trust administration regime that would be brought into force by the Government’s amendments and those that I have tabled. I look forward to Report stage, when perhaps my amendments will be tabled in a technically correct form under the Minister’s name, but for now I beg to ask leave to withdraw the amendment.
‘( ) After subsection (7) of that section insert—
(8) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”.’.
‘( ) In section 65H of that Act (consultation requirements), in subsection (4)—
(a) after “trust special administrator must” insert “—
(a) ”, and
(b) at the end insert “, and
(b) in the case of each affected trust, hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.”
( ) In subsection (7) of that section, after paragraph (b) (but before paragraph (ba) inserted by section 84(10)(a)) insert—
“(bza) any affected trust;
(bzb) any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report;”.
( ) In subsection (9) of that section—
(a) after “trust special administrator must” insert “—
(b) after “subsection (7)(b),” (but before the insertion made by section 84(10)(b)) insert “(bzb),”, and
(c) at the end insert “, and
(b) hold at least one meeting to seek responses from representatives of each of the trusts from which the administrator must request a written response under subsection (7)(bza).”
( ) After subsection (11) of that section, insert—
“(11A) In this section, “affected trust” means—
(a) where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report;
(b) where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.”.
( ) In subsection (12)(a) of that section, after “subsection (7)(b)”, insert “and (bzb)”.’.
‘() in that paragraph, after sub-paragraph (7) insert—
(8) Omit subsection (8).”.’.
‘() in paragraph 17, in sub-paragraph (2)(a), for “paragraph (b)” substitute “paragraphs (b) and (bzb)”,
‘() in that paragraph, after sub-paragraph (4) insert—
(4A) In subsection (11A)—
(a) omit paragraph (a), and
(b) in paragraph (b), omit “where the trust in question is an NHS foundation trust,” and “, or an NHS trust,”.”.’.—(Dr Poulter.)
Mr Jamie Reed (Copeland) (Lab): With your permission, Mr Bayley, it is my understanding that the Committee may discuss clause 118 in real depth. I intend to do that and I am sure colleagues will also do so. For the benefit of the Committee, the Clerk, the Official Report and every Member of this House, I have written to Mr Speaker to express the view of every Opposition Member that this clause must be selected for discussion on the Floor of the House on Report.
Potentially more than any other clause in the Bill, Clause 118 is of direct relevance to every community represented by every Member of Parliament. It is essential that they are allowed to voice their opinions with regard to what is, in effect, a significant and profound policy change.
The first two sections of the Bill have been considered by the Committee so far with a degree of consensus, for the most part. That should encourage everyone who cares about health policy in our country. Our considerations so far have understood that we often have an shared analysis of the problems facing patients across the country, of the demographic challenges that we face and of the very real and present financial difficulties facing a health service that we all want to be—and believe to be capable of being—the best in the world.
Reaching this ambition is not an end point in itself, but providing the people of our country with the health services they deserve is. Our discussions have also shown that, even when we share the desire to achieve a particular outcome, we do not always necessarily agree on the policy means through which it should be delivered.
Both sides of the House share a clear commitment to improve adult social care in part 1 of the Bill. Some of the Bill builds on the very good work of the last Labour Government and we welcome that. Part 2 stems in part from the recommendations of Robert Francis QC and his two reports into Mid Staffs and the consequent work of Professors Don Berwick, Bruce Keogh and Tricia Hart, and my right hon. Friend the Member for Cynon Valley (Ann Clwyd). It is a genuine attempt to help to improve the regulatory environment and working culture of the NHS.
In many areas, the Bill does not go as far as the Opposition would like, nor does it follow the entirety of Robert Francis’s recommendations, but again it builds on the unprecedented work that the last Labour Government began with the first ever introduction of independent quality standards regulation to the NHS.
At this stage, it is evident to everyone that there is no regulatory silver bullet in any industry or practice, let alone the national health service. Regulation is an iterative process. If undertaken constructively and intelligently, it will get better and yield better results over time, but the notion that a new regulatory regime—any regulatory regime—is capable of solving overnight any and all problems in a system that is fundamentally based on the culture, behaviours and practices of 1.3 million people is completely flawed. Any claims to the contrary are knowingly false. That said, part 2 of the Bill again demonstrated a collective desire from all parties to solve the problems facing patients and the health service.
It is my sincere hope that we can maintain this spirit throughout part 3 of the Bill. To do so perhaps only requires the application of simple logic and an informed understanding of realities on the ground—outside Parliament—rather than anything as high-minded as a fundamental political rethink of clause 118.
At times during the consideration of the Bill, we have veered across a fairly broad landscape: the causes of the global financial crash; the challenges facing our economy; the right policy prescriptions with which to ensure economic growth and so on. We have also pondered the purpose of power—the progressive purpose at least—and more besides. I do not want to broaden those horizons any further. On the contrary, I would like to rein them in somewhat. But before I do that, I would like to talk about the notion of hospitals and hospital services in the everyday life of a community and in general public discourse. All of this is directly relevant to clause 118, its likely effect and the problem it seeks to address. I fear that a lack of understanding of that notion has contributed towards the mindset that resulted in clause 118.
I have touched on the huge disconnection between the public and politicians in our country throughout this Committee. In my view, this disconnection is more keenly felt in the forgotten Britain largely ignored by the political mainstream; in the towns people have heard of, but have never visited. These are peripheral areas and areas of market failure. They are both rural and urban, but not entirely one or the other. People who live in these areas feel almost entirely disconnected from the national political mainstream as presented to them by a wealthy, metropolitan media class. This is a political point, but it is not a party political point.
This situation did not arise overnight at some point in May 2010. The people in the communities I describe, in so far as they have faith in any politicians at all, will vote for all parties and they live in all parts of the country. For all the complex problems faced by areas of market failure, outside the major urban conurbations, daily life looks and feels very different in our de-industrialised towns, our often struggling rural villages and our smaller cities.
In many places, the community fabric is being destroyed and the very pillars of society and community are disappearing. The plight of the high street is well known. Local newspapers are struggling and disappearing in increasing numbers, stripping out local identity as a
Very often in these communities—increasingly, in fact—health services, but hospitals in particular, are the remaining symbols of community and local society. They demonstrate to people that they and their community belong to a wider community and a wider society. They show people that they are not alone, that they are part of the nation, and that they are not only cared about, but cared for. If the NHS is our national religion—and I confess that I believe it is—our hospitals are its churches, its synagogues, its mosques and its temples. They have a unique place in our national life; they are seen as a protector and a provider. The NHS is now part of our shared national identity, but that identity is not just notional; it is physical. In the same way that the very existence of the NHS is not just about health care, but about a fairer, better, more egalitarian society, so the ideas that underpin the NHS are more than ephemeral, noble notions. They are notions made real by the National Health Service Act 1946, but they are similarly notions given life by the physical existence of hospitals, GP surgeries, dentists, walk-in centres and more.
Even as we discuss failure regimes, regulatory practice, staffing ratios, duties of candour and a comprehensive desire to improve care failings where they occur, the feeling at large is one of protection towards the NHS, its staff and its institutions.
Andrew Griffiths (Burton) (Con): I am struck by the hon. Gentleman’s comment on the loss of services and particularly the loss of post offices. I gently remind him that under his Government, 2,500 post offices closed. Under this Government, none have.
Mr Reed: I genuinely admire the hon. Gentleman’s chutzpah. I remember being in this House when we voted through a £1.3 billion subsidy for post offices that his party opposed. If he was not here at the time, perhaps he can consult the official record.
Even as we discuss failure regimes—failures are still happening a long time after the publication of Robert Francis’s second report—those feelings still endure. In areas of market failure, I would expect that they are growing rapidly. All that makes it increasingly difficult for Governments of any colour, in times of economic sunshine or despair, to achieve change in the NHS, particularly with regard to hospital closures, service reductions or hospital service reconfigurations.
Clause 118 has its genesis in the Government’s failure to understand that and will have the effect of compounding the difficulties that I mentioned with achieving the reform that the NHS needs. The clause may be irredeemable. As it stands, before I even begin to address the principles contained in it, we need to address its practical effect. The clause will make service reform and clinical reconfiguration more, not less, difficult. It will result in contested cases taking longer to resolve than is currently the case. It will increase costs, not reduce them, and it will disengage patients, medical practitioners and the public in any affected community.
It is critical to understand the Opposition’s view on change in the way our hospitals work and the services that they provide. We all recognise the need for stability and predictability in the health service. We appreciate that the nature and pace of change needs to be driven by local populations, clinical commissioners and patients. If change is not owned in that way, top-down, enforced change is likely to have a detrimental effect. That was one of our principal concerns about the Health and Social Care Act 2012. Regrettably, our reservations have been borne out by the experience of the country and the service to date. In January last year, the shadow Secretary of State gave a speech to the King’s Fund that introduced the concept of whole-person care and the need for hospital reform to facilitate that. The Daily Telegraph called it the most important speech by a politician that year.
We are clear about the need to accommodate changes in the health service where those changes would lead to better clinical outcomes. There can be no question about that. The King’s Fund was right to call for
In that regard, I point colleagues towards the Future Hospital Commission, which the Royal College of Physicians established, and its report, “Future hospital: caring for medical patients”. Its report stated:
“The need for change is clear. The time has come to take action. Those working in the NHS have a responsibility to lead this change, supported by the organisations that represent them and empowered by national policy-makers. Organisations and professionals involved in health and social care—including doctors, nurses, politicians, hospitals and national bodies—must be prepared to make difficult decisions and implement radical change where this will improve patient care.”
“unclear if, when the Administrator makes recommendations relating to a nearby trust not in administration, they must consult with the provider, commissioners and local communities affected by these recommendations.”
The clause could not be more antagonistic to that ambition. Back-door reorganisation is the antithesis of that very conversation. It is not and can never be an honest process. It is bound to hamper the necessary work of reform. The confederation states:
Clause 118 is the Government’s reaction to an incredibly telling and significant defeat in the courts. Its purpose is to extend the ability of TSAs to close, remove or reconfigure hospital services in perfectly good, high-performing hospitals, such as Lewisham, which are adjacent to hospitals in difficulty. That is its purpose. That is the stated aim of this legislation, in response to a High Court judge who told the Government in no uncertain terms that the TSA regime should not be used for such a purpose and that that was never Parliament’s intention. If that is the purpose, what is the plan?
Norman Lamb: I am listening carefully to the hon. Gentleman. Is his conclusion that one should look at the one hospital in isolation and not at the wider picture, or take a holistic view as described by my right hon. Friend the Member for Sutton and Cheam in his earlier contribution?
Mr Reed: That is not my contention. If the contrary is the Government’s intention, clause 118 as drafted will not meet those concerns or enable that kind of working practice. It is not fit for that purpose.
Dr Poulter: The hon. Gentleman should also reflect on the fact that the original TSA regime, which we are modifying, was set up under the previous Government. If he has such concerns, is he also concerned about the approach taken by the previous Government?
Mr Reed: No, I am not. The Minister seeks deliberately to confuse the purpose of the TSA under the 2009 Act and, frankly, the judgment of the Court of Appeal and that of the High Court with regard to the Government’s case on Lewisham. I will get to those points in due course.
Dr Poulter: We all accept that any case of judgment is exercised under statute and that public organisations are subject to judicial review. That process always has to be there. The fundamental mechanisms that were being used, however, were enacted by the previous Government. To make the process clearer, it is necessary for the mechanisms to be clarified and wider public engagement strengthened. Does he accept that he is criticising the previous Government’s provisions on TSA in the 2009 Act?
Grahame M. Morris (Easington) (Lab): Is this not a “Four legs good, two legs better” argument? We remember the arguments from the Government Benches about raising the cap on private patient work, saying that this was a natural extension of what was done under the previous Government. Yet they have raised the cap to more than half of possible income. It is a quantum change and this clause is a fundamental diversion from what Labour was proposing.
When the TSA was introduced in 2009, the scope of its powers—this will please the Minister—was precisely drafted. Mr Justice Silber repeatedly referred to that during the Government’s defeat over Lewisham at the High Court. Indeed, the Government were defeated in court precisely because they sought to use the TSA for a purpose for which it was never intended; namely, health service reorganisation with regard to another trust to which it had not been appointed.
We all know the challenges facing the NHS. The economics of austerity combined with an ageing population, complex and multiple lifetime conditions and ever-growing demand make it hard to achieve change. We know that more than 20 hospital trusts are in a serious and deteriorating financial position. We know that the likelihood is that there are many more on the way. We know, too, that there is a clinical challenge. So, I repeat, what is the plan? The QED of clause 118 is that the plan is to embark on a series of hospital service closures and reconfigurations the like of which this country has never seen. Clause 118 is, in effect, the political equivalent of Al Capone’s tax return.
It is obviously not my place to offer political advice to any party other than my own, but clause 118 is a hand grenade with the pin removed. The Government should throw it away and run for cover as quickly as they possibly can. The Bill can and should stand without this clause. It is not wise to remove barnacles from the boat with high explosives.
Norman Lamb: What a moment to intervene. That was a wonderful description. I seek to understand better, genuinely, the case that the hon. Gentleman is making. There has already been an exchange about what the previous Government enacted, and he has said that the Court of Appeal made its judgment on that, but is he saying that, in those circumstances where his Government’s legislation provided for a route—which, of course, is now added to in terms of quality failure—one should look at a hospital in isolation? Is that the point he is making?
Mr Reed: That is not and never was the point. The point is that, in those circumstances, other routes are available, both through successive Secretaries of State under the 2008 Act and with regard to the statutory regulation process already laid down by this Government
Norman Lamb: Clearly, the previous Government envisaged some circumstance in which a trust special administrator was needed. We are saying that that should apply to quality failures as well as financial failures and I suspect that the hon. Gentleman would agree with that. We are there, in the circumstances that the previous Government envisaged. Is the hon. Gentleman saying that, in those circumstances, we look only at that hospital in isolation?
Mr Reed: I am saying that the point of the TSA—a point repeatedly made by the High Court, the Court of Appeal and Parliament before 2010—is that it explicitly should not be used for the purpose of reorganising the health services of an entire health economy.
Norman Lamb: I understand the point about not using it for the purpose of reorganising, but on the purposes for which it is intended—in other words, financial failure or quality failure—is he saying that, in those limited circumstances, we should look only at the hospital in isolation?
“The reconfiguration process involves a much more substantial consultation of stakeholders in an affected area and clause 118 effectively bypasses this and follows a much lower standard of consultation in achieving redesign of services in nearby trusts. Failure to engage with key local stakeholders could have very serious negative consequences for the proper planning of local healthcare services”.
“The BMA believes that the process should have been better thought through from the onset to avoid the failure regime from becoming an avenue for back-door reconfiguration. This clause was introduced without full consultation and has significant implications for the failure regime, which have not been thought through. If implemented it would pay no attention to the needs of the local population.”
If this clause becomes law, successful and financially viable hospitals will be at risk of having services shut down…it is the TUC’s view that this is an attempt by the Government to facilitate the closure and downsizing of hospital services by avoiding consultation with the communities affected.”
I wish that the Government’s amendment to the clause resolved that, but it does not, because it does not place specific duties of consultation on the TSA. Even if it did, it seeks to use that regime for a fundamentally different purpose from that which is intended. To that end, it does not really matter how many consultation duties are placed on the TSA, because it is being incorrectly used to drive a coach and horses through the principles of reconfiguration as laid down by the then Health Secretary and the NHS chief executive in 2010.
Dr Poulter: The only possible conclusion to draw from the hon. Gentleman’s comments is that he believes that the TSA regime should be applied to a hospital only when it is done without wider consultation or
Mr Reed: It is bad law to leave open-ended powers in clauses that lack sufficient accountability. Also, there is the contravention of the reconfiguration principles—laid down in 2010 by this Government—which are destroyed by the clause. To repeat, the Bill can stand without the clause. Without it, the Care Bill is a modest Bill that may yet command broad political support. The clause is not just rotten, but bad law, and each and every one of our constituents will regret it ever becoming law.
“Society, in general, and leaders and opinion formers, in particular—including national and local media, national and local politicians of all parties, and commentators—have a crucial role to play in shaping a positive culture that…can realise the full potential of the NHS.”
What a spirit that is—we should all embrace that. Professor Berwick is entirely right and, in that spirit, I make this offer to Ministers: withdraw the clause and we will work with the Government openly and transparently on a reconfiguration process and a failure regime process that can command the support of the entire House. That would be in the best interests of patients, medical professionals and commissioners and the NHS as a whole.
The Ministers are used to working in coalition. I ask them, on a matter of profound national importance, to broaden that coalition a little further and to join with us to work on a set of transparent proposals that will command widespread support.
Paul Burstow: Will the shadow Minister tell us when he will get on to setting out what the Labour party thinks is the alternative? That would be helpful in order to have the constructive dialogue that he seeks. Secondly, I asked the Minister earlier about subsections (3) and (5), which relate to foundation trusts and the continuing power of local commissioners effectively to veto reports by TSAs. Surely that is a significant check that did not exist under the regime in the 2009 Act but will do thanks to the Bill.
Mr Reed: My party’s position will become clear through the course of my remarks. On the point that the right hon. Gentleman makes about extending the TSA powers to that effect, if that is the desired outcome, let us throw away the reconfiguration statutory codes laid down in 2010 by the then Health Secretary and the NHS chief executive, because those powers would contravene and destroy the codes.
I have made what is a pretty unprecedented offer: withdraw the clause and we will work with the Government. The clause received little support during debate in the other place, despite consensus on the need for an effective failure regime and reconfiguration process.
“I see this not as a clarification of the law but as a major policy change that is at odds with the approach taken by the Secretary of State in the 2012 Act, when he repeatedly put his faith in local commissioning by local doctors.”
“key concern about the amendment is that it removes the requirement to go through a properly defined and structured reconfiguration process, with extensive consultation with the local community. From all that we have learnt about successful reconfigurations, we know that they need to take a special form of open and honest leadership, a patient process of engagement and consultation, and proper consideration of the wider impact.”
Dr Poulter: Evidence demonstrates that clinical reorganisation has a bearing on the immediate and wider population in ensuring that distribution of clinical specialisms is a matter of local and regional clinical interest, for example, the inner London stroke plan. It is also essential that any reorganisation does not just focus on acute services. Does he agree with that with regard to the TSA’s function?
“This procedure of trust special administrators was set up to deal with a relatively small number of cases that might come along. It was not a system set up to deal with major overhauls of acute hospitals up and down the country.”
“even if you have this set of arrangements on the statute book, you are going to end up with many cases of Lewisham hospital writ large, dotted around the country. There is nothing in these provisions which really ensures that the wider public debate about the reshaping of these services takes place. They are a recipe for a very large number of one-off local rows on a major scale. The lawyers in this House must be rubbing their hands at the prospect of judicial review because a very likely outcome of all this is a large number of contested claims about the way the exercise has been done.”
In comments made before the Government had lost their appeal against their defeat at the hands of the courts with regard to Lewisham, Earl Howe, a health Minister, made clear the intended effect of clause 118:
“I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour…But I argue that it must be possible to take such a step”.—[Official Report, House of Lords, 21 October 2013; Vol. 748, c. 790-799.]
Let us be absolutely clear that the closure of successful hospitals or the reduction of good services provided by good hospitals adjacent to struggling ones is the clear intention of the clause. There is nothing unintended about its consequences. Clause 118 was brought into the Bill because of the Government’s incredible attempt to remove services from Lewisham hospital.
Norman Lamb: I am still trying to understand the shadow Minister’s position. The previous Government introduced a trust special administrator in a set of circumstances. We seek to extend that to cover quality as well as financial crisis. In what other way does the clause seek to extend the circumstances? He seeks to suggest that it will be used in inappropriate circumstances all over the country. In what other ways does the clause achieve the claim that he makes? I do not see it.
Mr Reed: I am grateful to the Minister and I will come to that. Every MP, every local authority, every hospital, every hospital league of friends, every hospital campaign group and patients’ association in the country are indebted to Lewisham borough council, the Save Lewisham Hospital campaign and my hon. Friends the Members for Lewisham East (Heidi Alexander) and for Lewisham West and Penge (Jim Dowd), and my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock).
If clause 118 becomes law, the Lewisham legal dispute will come to be seen as the canary in the coal mine. On 31 July last year, Mr Justice Silber upheld the Lewisham appeal to the High Court when the campaigners contended that the actions of the TSA with regard to Lewisham hospital were unlawful. The Government appealed against that decision, believing it was right that maternity, A and E and other services at a successful and well performing hospital should be reduced.
On 8 November last year Lord Justice Sullivan and Lord Justice Underhill dismissed the Government’s appeal against the original decision in very short order. I urge every member of the Committee to read both those concise, clear judgments. From first page to last, they make it clear that the Government never had a case and that the TSA was being deliberately used for a purpose that was never intended. It is because of that abuse of the law as it stood that the clause has been brought forward. I believe in evidence-based policy making, and the evidence in the legal judgments against the Government and their attempt to exercise functions that the clause would make law demonstrate entirely why it should be struck from the Bill.
As though pre-empting the Government amendments before us today, Mr Justice Silber also noted that the superficial and limited engagement of the TSA with regard to Lewisham council was never one of Lewisham’s grounds for review.
Mr Reed: The Minister makes an important point. The intention, the language, the clarity and purpose of the law, and Parliament’s will were clearly and specifically reflected in both the legal judgments that I come to now.
There was essentially a twofold foundation to Lewisham’s appeal: that the TSA was acting unlawfully with regard to Lewisham hospital because it had no statutory powers in relation to a separate legal entity to which it had not been appointed; and that the reduction and removal of services from Lewisham contravened all the Government’s reconfiguration tests. That meant that the TSA was being used to reconfigure hospital services without observing the established statutory reconfiguration process.
Mr Justice Silber even cited the Prime Minister in support of the appellant’s case that the Government were seeking to ignore requirements that they had themselves introduced. He quoted the Prime Minister:
“What the Government and I specifically promised was that there should be no closures or reorganisations unless they had support from the GP commissioners, unless there was proper public and patient engagement and unless there was an evidence base…if they do not meet those criteria, they will not happen.”
Dr Poulter: The hon. Gentleman is making points about whether the right process was followed. It is exactly the role of the court to ensure that processes are followed. That is what judicial review is there to do: to ensure that there is probity in decision making. However, he is conflating two issues: the standard for tests for reconfiguration for the majority of services, and in very special circumstances a TSA regime, which has other criteria that are broadly in line with those tests that we are looking to apply through the amendments to the clause.
Mr Reed: The conflation is by the Minister, and I urge him to read those judgments in close detail. The Government’s failure to misapply legislation and get away with it demonstrates both the effect and the likely use of clause 118 if it stands part of the Bill.
Clause 118 is bad law, but not just because it changes the purpose of the TSA regime from that which was originally intended. It is bad law not just because it is a poorly thought through element of law that has sprung
Dr Poulter: Any decision can be tested in the courts by any public body, and can be subject to judicial review. The important thing is that it is for the courts to decide whether the appropriate process has been pursued, and it is for Parliament to set the law. Because there were concerns about the original drafting to deal with extreme cases of hospital failure, we have established that the TSA regime can be put in place for quality reasons as well as financial ones. There is a very specific set of circumstances in which that is the right process to follow because of the extreme failure of a trust. That is very different from the general tests for reconfiguration that are set out, and he must acknowledge that important distinction.
Mr Reed: There is an incredible cognitive dissonance here. The Government sought to use the TSA process to reconfigure a local health economy. The court said that they could not do that, so the Government said, “Okay, we will change the law so that we can use the TSA process to reconfigure a local health economy.” That is the crux of the matter. When he quickly dismissed the Secretary of State’s appeal against the defeat handed down by Lord Justice Silber, Lord Sullivan noted that
“it is most unlikely that Parliament would have conferred a power on a TSA to recommend, eg the closure of an A and E department or a maternity unit in a hospital within another Trust for which he has no responsibility”.
Norman Lamb: The shadow Minister said that he would come back to this, and I am conscious that he is reaching the end of his speech so I want to test him again. He seeks to argue that the way in which the clause is constructed allows it to be used as a back-door route to reconfiguration. Can he refer specifically to parts of the clause that provide for that? It is our contention that it adds nothing that would facilitate the use of the power as a back-door route to reconfiguration. Can he be very specific about what it does that allows him to make that claim?
Norman Lamb: It is the Government’s contention that when a hospital trust is in financial or quality failure and action has to be taken, it does not make sense, as the previous Government also recognised, to look at the hospital in complete isolation. It is necessary to look at the holistic state of the local health and care system. Coming back to the point I was making earlier, is it the hon. Gentleman’s contention that in the narrow circumstances in which there is financial or quality failure we should look at a hospital in isolation? If it is, that will have serious consequences for the Labour party if it is ever to return to government.
Mr Reed: The Minister asks where it is, but he must have regard to the two legal judgments in which the Government were defeated. This is absolutely critical. In the run-up to the most recent general election, the Prime Minister promised a “bare knuckle fight” to preserve hospital services in district general hospitals. He told the BBC:
That fight never materialised. The opposite has happened, and it is now manifested in the major policy change that the clause represents. This hospital closure clause is bad law. For the sake of the service, for the sake of the Government’s reputation and for the sake of every Government MP in a marginal seat with a hospital in their constituency, I urge the Government to drop the clause and work with us on a cross-party basis to build a consensus and give the service the stability that it requires.
Paul Burstow: The shadow Minister has set out clearly his view on why the clause should not stand part of the Bill, but he did not set out the alternative, despite promising to do so before concluding his speech. In this Committee, given the importance that he and his colleagues are attaching to the matter, it surely behoves him to have set out at least some of the detail of what he would do in government to manage a very narrow set of circumstances that are about the severe, serious and enduring financial failure or quality failure of an organisation.
Mr Reed: The right hon. Gentleman makes my point for me entirely. The logical inference from what he has just said is that the TSA regime, as seen in, as hoped for, as extended under the clause, will be used to address those care issues and those financial issues. As we heard earlier, they affect at least 20 trusts that we know about and probably more. They are the ones in financial distress. We expect there will be more in clinical distress.
Paul Burstow: What I am trying to do is coax the hon. Gentleman into being a little bit more transparent with this Committee about what he thinks is the right way to do it. He has not shared that with the Committee yet and so people might think that he realises that this is the only way one could deal with this very narrow set of circumstances.
Mr Reed: I do not accept that at all. This is not the only way. The current TSA regime, unamended, is better than what the Government are seeking to advance here. The TSA regime, without extending its current powers, and the powers that are available to the Secretary of State for Health under previous Acts and with the existing principles of reconfiguration which the Government have already set down for the local health economies, is better than clause 118.
Norman Lamb: Does that mean that the hon. Gentleman commits to looking only at one hospital in isolation because the current regime completely fails to recognise that we have to look at the whole of a local health system holistically?
Mr Reed: The point is that the Government’s scheme is unworkable. Extending the powers of the TSA in the terms established by clause 118 as it stands is unworkable. Every time the TSA goes into a hospital in financial distress and seeks to change the services of a well performing hospital next to the hospital in distress, it will have an open-ended power and a completely blank cheque. Where is the statutory provision that limits the extent of that power? Would it go to the trust next to that and then the trust next to that?
Andrew Griffiths: Some clarity is needed here. My hospital, Queen’s hospital, is a Keogh hospital. It has financial and clinical issues. Part of my constituency is also served by Stafford hospital and there are serious problems there. The hon. Gentleman still has not answered my right hon. Friend’s question. What would the regime be if he were the Minister? Would he look at one hospital and not the other, and not the overall health care economy, so my hospital in Burton, but not the one in Stafford? Or is he saying that he would leave the regime exactly as it is at the moment? These are very simple, straightforward questions. What would he do?
Mr Reed: There are very simple, straightforward answers, which I hope the hon. Gentleman can understand. The TSA, as it is now, can look at a whole system, but it has specifically defined powers only for one legally constructed body, to which it is appointed. That is a legally workable situation. The situation set out in clause 118 as it stands is not legally workable. The existing system is better than this hand grenade that the Government are throwing into the reconfiguration of principles and proposals, which they themselves established in 2010.
Dr Poulter: It has all been said. If the hon. Gentleman wants to have any credibility on this, he has to make this clear: does he believe that the system should be isolated in an individual trust or does it need to be expanded to
Dr Poulter: I can. It is defined in the clause, as amended. We have also taken on board points, which we will look at before Report, about the role of health and wellbeing boards and the importance of health and care being put together as part of that wider health care economy. That is what the clause is about: amending what was not very good legislation in 2009 from the previous Government.
Dr Poulter: I am happy to read out clause 118 to the hon. Gentleman if he would like. I will give a detailed explanation in my speech on Report. The clause talks about other effective health care providers—the very thing that the hon. Gentleman has been talking about—commissioners, public engagement and a whole series of other issues and matters that relate to the wider health care economy, which is clearly defined in the Bill and the amendments to clause 118.
Mr Reed: So every time a TSA is appointed to a trust in difficulty, they will have to define what a health economy is. That is an open-ended power, and every single Member of this House should be concerned about it. It is one of our principal concerns about the Bill. The cognitive dissonance—the Minister rolls his eyes, as well he might—is stunning. He is asking every single Member of Parliament to write a blank cheque for the district general hospital and other health services in their constituency, and he is opening up all Members to the threat of what happened in Lewisham. I do not believe that a Member of any party deserves to go through that.
Dr Poulter: Absolutely not. The TSA regime was established in the Health Act 2009 and was modified with the single failure regime, which introduced quality, not only financial, requirements, and there are rigid criteria for how it can be triggered. It will be used only in exceptional circumstances. That is what Labour Ministers said when they set up the regime in 2009, and since then the regime has been used only twice. It is not to be used in the majority of situations, which can be resolved by local commissioners, Monitor or the Trust Development Authority.
Mr Reed: The Minister singularly fails to acknowledge what every commentator in the health policy field is saying about how the clause will be used. They fear the inclusion of the clause in an otherwise fairly modest Bill whose aspirations command broad support. The Minister knows that the proposal will have profound consequences. He has been given a hospital pass with this Committee. Clause 118 is a disfiguring clause in an otherwise modest Bill. It should not stand part of the Bill.
Grahame M. Morris: I wish to make several points in support of my hon. Friend the Member for Copeland. I agree that clause 118 should not stand part of the Bill. It was not part of the Bill during the Joint Committee’s scrutiny process. It is an add-on, an aberration. I feel that I have no mandate to support it, given the detailed work that we did in the pre-legislative scrutiny Committee.
The clause goes to the heart of trust. I was intrigued when Government Members were talking about the consequences for a future Labour Government, because I distinctly remember prominent Members of the coalition parties campaigning against individual hospital closures in Chase Farm and elsewhere in 2010; they have gone silent on the subject now. If we are to move forward, we need to rebuild trust and seriously engage with people.
Clause 118, or, as it is aptly referred to in some circles, the “hospital closure clause”, brings that principle into question. If I am allowed to say this, I think the Ministers are being disingenuous in how they are portraying it. Tom Clancy is one of my favourite authors, and I think the clause poses a “Clear and Present Danger”. It will take health services and, as my hon. Friend the Member for Copeland said, every NHS trust and NHS foundation trust away from the public, leaving no hospital bed in the country safe. It should not stand part of the Bill. To suggest that the TSA regime is a natural extension of the existing regime, which arose from the 2009 Act, is a gross distortion of how it would be applied. If the Bill is enacted, the clause will mean that the NHS in England will face further wholesale top-down reorganisations. No one wants that—I do not think that Government Members want that, and certainly no one voted for that. The problem is that there would be virtually no accountability to local people.
The successful legal challenge brought by the London borough of Lewisham and the Save Lewisham Hospital umbrella campaign—I think some of its representatives are in the Public Gallery—showed conclusively that the Secretary of State did not have the power to axe Lewisham’s accident and emergency and maternity wards as a solution to the problems in the neighbouring South London Healthcare NHS Trust. Clause 118 is designed to allow the Secretary of State to do what he failed to do in Lewisham—to close down thriving and financially sustainable hospitals on a whim, without full and proper consultation.
With all due respect to the right hon. Member for Sutton and Cheam and the probing amendments that we discussed earlier, to suggest that a tokenistic meeting with a local authority overview and scrutiny committee would assuage public concerns does not hold water. We must rebuild trust. We need full and proper consultation with patients and the public. We also need agreements with the clinical commissioning groups. I am surprised at the willingness of Government Members who have championed the cause of GP-led commissioning to subvert their role.
The trust special administrator process will bring a drastic change to hospital configurations. It represents a move away from the principle of reconfiguration of services on the basis of clinical need in favour of reconfiguring services based solely on financial
Figures cited earlier suggested that around 20 hospitals are facing financial difficulty, but the NHS Trust Development Authority has reported that around 30% of non-foundation trusts are forecasting a deficit for this financial year, and Monitor reports that around 11% of foundation trusts are forecasting a similar position. The number seems to be considerably more than 20, so I suspect that it will be hugely significant if the clause stands part and the Bill is enacted. There is a growing pessimism about the financial health of the NHS, and the figures suggest that there will be a growth in the number of trusts undergoing the trust special administration regime.
The Minister talked about clinical failure, but given the fact that that the clause will permit the Secretary of State, on recommendations from a trust special administrator, to take action against hospitals that lie outside the initial scope of the administrators’ investigation, any organisation neighbouring a trust in financial distress—regardless of how popular, successful or robust its services are, or how financially viable it is—could be downgraded or closed. As my hon. Friend the Member for Copeland said, the whole House—not just Opposition Members, but Government Members—really should be concerned about the implications of the clause.
There is sometimes a need for changes in a local health economy that extends beyond the trust that is failing. However, the fundamental problem is that the clause seeks to change the trust special administrator process in a way that was never intended, and it has the potential to change radically the way in which our NHS services are configured. The Secretary of State’s failed bid at the financially driven closure of Lewisham hospital’s maternity and accident and emergency units sparked a mass protest. Large numbers of people—thousands—participated in public meetings and demonstrations. If the clause is agreed, we can expect tensions to be further exacerbated, and it should serve as a warning to us that the lack of meaningful consultation in the trust special administrator process leaves a huge democratic deficit and a black hole in accountability. Indeed, when the Minister was pressed four times by my hon. Friends the Members for Oldham East and Saddleworth and for Copeland, he could not give a reply.
The amendments that we have already rejected would not have mitigated the consequences of the clause, and they fell far short of providing meaningful consultation. The additional consultations for staff, commissioners and service users in affected trusts amount to only a bare minimum and would still be far fewer and far shorter than what is typically required.
Such reorganisations require consensus for change on clinical grounds and they require political support. They at least require a huge amount of engagement and understanding. The Minister gave an example of stroke services, and something similar happened with heart services in my region. There needs to be a sustained
Clause 118 as currently drafted supports none of the preconditions and will allow trust special administrators to overrule any concerned parties. If the clause becomes law, the Secretary of State will be granted the power to issue directions to require foundation trusts and clinical commissioning groups to take steps that they do not want to take. The Secretary of State’s increased power and Monitor’s expanding role directly contradict earlier Government promises that local commissioners would no longer be subject to central diktat, and represent a reversal of the vision of a decentralised health service that was presented during the passage of the Health and Social Care Act 2012. The consequences of the clause will be a decline in the quality and nature of local health services, and, I fear, an increase in health inequalities.
We have agreed on much of the earlier parts of the Bill, certainly on part 1. The right hon. Member for Sutton and Cheam and I are in agreement on clause 118. I urge the Minister to remove the clause.
Paul Burstow: I am grateful for the opportunity to follow the hon. Member for Easington, not least to address directly the last point in his contribution, because it absolutely does not speak to the debate. The circumstance at St Helier was part of an attempt by a combination of clinical commissioning groups that inherited a process started by primary care trusts to reconfigure services across south-west London. That reconfiguration is one of the reconfigurations that has led me to be as critical as I have been in Committee today and elsewhere on the public record about the fact that the NHS has failed to provide a cadre of managers and clinical leaders who are effective at engaging with the public and leading and managing change well. We are not good at this in the NHS. That is why, all too often, we wind up with bad proposals that do not add up and can be legitimately criticised and ultimately judicially reviewed.
We also end up with proposals that do not go anywhere and large amounts of public money are wasted. We have to ask what can be done to change the process at the front end. Clause 118 provides for a last resort. It is what the original TSA process that was put in place in 2009 is all about. The hon. Member for Easington, who made some important points, should not confuse good process and its absence, which leads to bad decisions, with this process, which is about trying to deal with last resort situations.
Paul Burstow: I am sure that the offer was intended to be a useful contribution to the debate, but for it to be meaningful and transparent, we needed to be clear about the parameters of that discussion. By the end of the exchanges between Front Bench Members, it became apparent that the status quo should remain. My conclusion is that, if the arrangements in the Bill for trust special administration as a last resort are retained—when there has been a chronic financial or quality failure—the Opposition are saying that anyone who has the misfortune of running an NHS or foundation trust that meets the criteria to trigger a trust special administration will be thrown to the wolves on their own, because no other part of the health care system in their area will be able to play a part in working out a way in which the future can be secured.
That is the message that comes from Opposition Front Benchers, and it is a very bad message for them to have allowed to come out of their mouths and be the conclusion that would be perfectly reasonably drawn from what they have said. The absence of an alternative—it would have been constructive and helpful to understand what might have been done instead—is a weakness in the Opposition’s argument.
Grahame M. Morris: I will be brief. The hon. Gentleman says that it would be a bad message to send out. Is it a bad message to send out to a hospital trust like Lewisham, where there was never any dispute about the quality of the services that were provided, their popularity or the robustness of their financial position? Was that an acceptable way to proceed?
Paul Burstow: Let me quickly go back to the concluding remarks of the hon. Gentleman’s speech. By extension, he was trying to encompass my local hospital’s travails, which are not primarily financial and are certainly not a matter of quality. The quality of my local NHS trust bears very good comparison with its neighbours. The situation was simply that it happened to be considered to be in the centre of the area that was subject to reconfiguration and therefore was the most convenient candidate for change.
That is not a good process and it is why I have challenged that and will continue to do so, and why I believe there is a fundamental issue around the quality of these processes. I would have thought the hon. Gentleman and I agreed that the quality needs to be significantly better than it has been historically, not least because of the points made by the hon. Member for Copeland about the greater pressures on the NHS through demographic change, the rise in non-communicable diseases and all the other things that require significant change to the NHS.
Norman Lamb: My right hon. Friend is making a good contribution. It seems to me that there was a recognition by the shadow Minister of the need for change in the NHS and facilitating that change with proper engagement. This clause is about a narrow set of circumstances where there is financial or quality failure. The question in those limited circumstances is whether to consider the hospital in isolation or to take a more holistic approach. Does my right hon. Friend agree that any sensible Government would take an holistic approach to addressing the consequences of financial or policy failure?
Paul Burstow: One has to reach that conclusion. It is entirely right for the shadow Minister to rehearse the court case at length, but it is entirely right for Parliament to reflect on what the court has had to say and to take a view on whether the law, as a result, is defective and needs to change. That is what the Committee is now scrutinising. It is not sufficient simply to hold up the court’s judgment and say that Parliament cannot take a different view, because that is what Parliament is here for.
Mr Reed: I am grateful to the right hon. Gentleman for again making my point for me. The Government want to change the purpose of the TSA so that they can reconfigure hospitals and hospital services in the health economy without going through the processes and procedures established since their election in 2010.
Norman Lamb: Has my right hon. Friend identified anything in the clause that seeks to change the TSA’s purpose in the way the shadow Minister suggests, other than to introduce an important measure to address quality failure? I have not found anything, and I have tried to test the shadow Minister.
Paul Burstow: I re-read the clause during that intervention to satisfy myself, and the shadow Minister has not adequately dwelt upon proposed new subsection (3) of section 65O of the National Health Service Act 2006, which is relevant to the narrowness of clause 118. If ever there was a case for a consolidation Bill, we need one for NHS legislation. I do not know whether we will ever agree to such a Bill, because consolidation Bills are simply about maintaining the status quo, but attempting to follow all the consequential changes made to NHS legislation over the past 20 years is a nightmare—[ Interruption ]—the shadow Minister is nodding, and I am sure he agrees with me—especially for those of us who do not have the luxury of a civil service to help to navigate our way through it.
The measure is a narrowly defined extension of the TSA’s remit; it is not the sweeping monster portrayed in the speeches of Opposition Members and in the material circulated to constituents of mine who have raised the concerns with me. Secondly, in response to the Minister’s intervention, subsections (3) and (5) make it clear that there is a role for local clinical commissioning groups in saying yea or nay to the appointment decision on a TSA, which is important.
Mr Reed: The sweeping monster that the right hon. Gentleman describes is precisely why the courts found against the Government: they sought to use the TSA for a purpose for which it was never intended. The clause will give effect to the sweeping monster that he describes.
Norman Lamb: Is it not the case that, rather than as the shadow Minister implies, if ever a future Government sought to use the measure inappropriately as a back-door route to reconfiguration where the narrow test does not apply, the High Court would strike them down, as it did in the autumn?
Paul Burstow: I assume that a court trying to construct the intention behind the clause would look to this debate and, more importantly, to the Bill, and they will read the words “necessary for” and “consequential.” I suspect the power will be deemed to be fairly narrow, not broad and sweeping.
Earlier, in our consideration of the proposed amendments to the clause, I asked the Minister to say a bit about how the duty on NHS England and the Secretary of State will protect the autonomy of bodies exercising functions under the 2012 Act. That is clearly relevant to the exercise of decisions by Monitor and the Secretary of State under the trust special administration regime. It would be useful for that to be made clear—either now or in writing ahead of Report—because that consideration clearly acts as an additional brake on the Secretary of State using the power in the way that has been portrayed by some members of the Committee. That clarity would give a useful further reassurance to those following the debate as well.
I have found this debate really quite illuminating. Maintaining the status quo, which is effectively what the Opposition want, would send the message out from this place that if a trust is in financial trouble sufficient to trigger the regime, it has to deal with that on its own, and that no one else in the health economy of its area should play a part in working out the way to a sustainable future for the health care of the local population. I look forward to the remainder of our debate.
Debbie Abrahams (Oldham East and Saddleworth) (Lab): I want to make only a few remarks, as a lot has already been said. My hon. Friend the Member for Copeland was absolutely right to set out the importance and value of the NHS and how our society as a whole sees the NHS and symbols of it, including hospitals. As Members on both sides of the Committee have said, we should not be afraid of the reconfiguration of services where it can improve quality and ensure patient safety. That is important. However, the process by which we come to decisions about how services can deliver the best for their communities is also important, as the right hon. Member for Sutton and Cheam identified. In particular, he identified the importance of change management, and I would not disagree that our ability to manage change within the NHS has not always been the best.
The process should be based on evidence, however, as my hon. Friends the Members for Easington and for Copeland have said. Clinical evidence and evidence from communities and from managers all need to be considered. The issue with the clause is its unintended consequences. One is the potential that evidence from the full range of the health economy, to which my hon. Friend the Member for Copeland alluded, might not be taken into account. Another consequence is that the potential to usurp—in other words, to abuse—power, as we saw happen in Lewisham, will still be there. The British Medical Association and the Royal College of
Dr Poulter: We have had a debate that Government Members find disappointing in many respects. There has been a wilful—or perhaps non-wilful—attempt to conflate the normal process for reconfiguration with the processes in place under the TSA regime, which are for specific circumstances in which there is an abject failure of quality or in which a trust is unsustainable for financial reasons. I remind the Committee that those powers have been used only twice for providers since the then Labour Government introduced them in 2009. One occasion, as we know, was for Mid Staffs—we need not dwell upon the situation that led to that trust’s difficulties—and the other was for Lewisham.
There is an important point here. There is an issue with the Lewisham judgment, and it is important not to conflate the power of the courts with the separation of powers that we have in Parliament. Parliament passes laws; it is then for the courts to judge whether a body or person exercising given powers has acted in the right way in accordance with those laws. More broadly, judicial review is always available to ensure that the process and the extent to which the powers were used are right.
In the context of the Lewisham case, there were issues with the process and about whether the scope of the powers in the 2009 Act were adequate to look more broadly at the wider health economy. It was found that the TSA had gone beyond the scope of the powers in the 2009 Act. That was the judgment, and it was for the court to make—whether the process was right and whether the TSA had acted in accordance with the powers. The matter was a grey area, which is why it went to court and why the judicial review was made. There were arguable points on both sides.
As a result of what happened with that case in south London, we have been forced to make improvements to the TSA regime. We need to recognise that in that context it was the 2009 regime enacted by the Labour Government that was judged. Since the guidance to the 2009 Bill was issued, and from the debate on the Bill, the understanding was always that there would be a broader look at the wider health economy. The courts, however, felt that the legislation was not sufficiently drafted to allow the TSA to act as it did. That was in the judgment of the courts and, because the legislation was not drafted accurately and in the spirit of the parliamentary debate in 2009—which I will come on to—that is why we are where we are today. We are putting in place changes that will increase the scope for consultation as part of the TSA regime; ensure that the broader health economy is properly consulted in every case and that the TSA may do that; enshrine the need for public consultation; and ensure that local health care commissioners are properly consulted in the TSA process.
Mr Reed: The Minister is being generous with his time, but that is simply not the case. The principal contention of both the High Court and the Court of Appeal was that the Government were seeking to use
Dr Poulter: That is a fundamental misunderstanding of the judicial and court processes. The court is there to interpret whether the powers should have been interpreted in a narrow way, as drafted in the 2009 documentation. It was for the court to interpret whether the powers were drawn narrowly or so as to allow the wider health economy to be taken into account, as we are now providing for in our amendment. The clear judgment of the court was that the powers should be interpreted in a narrower way. That was the judgment on the TSA process in south London—it was a matter for the court to decide and to apply the process. It was a legal matter.
Public bodies may always be taken to judicial review to examine a process or the way in which they exercise their powers—that is always available to members of the public or, as in that case, a local authority. That is the case under much legislation passed in this place. It is a right and important check on the process. It is for the courts to decide whether the appropriate judgments were made and whether the process and the relevant Act were interpreted correctly—because of that, the case went to appeal. It is right for the issue to be tested in that way. That is what any Government would do to ensure that legislation is being applied appropriately. It is right that we should do that.
On the substantive points, however, what we have discussed today is whether a mechanism that has been used only twice since 2009 should be in place. When there is extreme failure of a trust or foundation trust, does there need to be a mechanism in place that deals with quality failure or with sustainability failure, which is when the sustainability of the trust is at question due to financial pressures? Of course there does, because we are dealing with people’s lives. If a trust or foundation trust fails in extremis, for financial or quality reasons—the two cannot often be distinguished from each other—it is important that there is a process for dealing rapidly and effectively with that failure, so that we can protect patients and the public.
Dr Poulter: I have already given the fact that the powers under the Labour legislation have been used—[Interruption.] It is not different; it is the same legislation, and we are making it more workable, to provide greater public engagement and ensure that we look at the wider health economy. That is why we are making these changes.
That power has been used twice in five years—I have made that point repeatedly—and is used only in extremis. The normal mechanism for dealing with concerns about a trust is through the TSA and Monitor and, more importantly, trusts and foundation trusts talking to their commissioners, who should hold them to account on the quality of services they deliver. Indeed, as my right hon. Friend the Member for Sutton and Cheam rightly said of the Health and Social Care Act 2012, which he took through Parliament, that should be done through health and wellbeing boards and local authorities,
That is what the right hon. Member for Leigh (Andy Burnham) said on Second Reading of the Health Bill, when he put in place the trust special administration process, which the Labour party now seem to want to distance themselves from, as well as rewriting history, saying that it was not Labour legislation that led us to where we are today.
“The vast majority of trusts perform well, but in the rare instances where that is not the case, there must be transparent processes in place to deal with poor performance.”—[Official Report, 8 June 2009; Vol. 493, c. 544.]
That is exactly what the Labour Government did by establishing the TSA to deal with such extreme failures. We have strengthened that process by allowing the TSA now to consider quality failures, to ensure that we have not just a process that is transparent and open for failures of financial sustainability, but one that allows rapid action when there are the kinds of failures that I mentioned.
It may be rare for a Conservative Member of Parliament —or, indeed, a Liberal Democrat Member—positively to endorse something that Unite the Union has said, but I agree with it. However, the shadow Minister failed to agree, although Unite is a great funder of many Labour MPs. Unite submitted a letter as written evidence. I am sure that it would be disappointed that a Labour Member could not agree with what it said, when I asked and quoted it. It said:
“Evidence demonstrates that clinical reorganisation has a bearing on the immediate and wider population and ensuring that distribution of clinical specialisms is a matter of local and regional clinical interest, for example, the London Stroke Plan. It is also essential that any reorganisation does not just focus on acute services.”
That was said by the funder and supporter of many things that the Labour party does, but the shadow Minister could not support it. I find that disappointing. I support exactly the spirit of what Unite said; that point is well made. It is a pity that the shadow Minister is unable to do so.
It is worth saying that clause 118 was tabled following calls to the Government by many key stakeholders representing NHS providers. Like us, they recognised that the trust special administration regime set up by the previous Government needed amendment to make it workable in the spirit of what the right hon. Member
“Ask any one of our members and they’ll tell you that no NHS trust is an island. After all, the cause of failure in quality or finance can often be rooted in how the local health economy operates in its entirety, not just one hospital.
So when considering financial failure, we need to look at the whole local health service and not just one trust in isolation. Why? Because failure isn’t neat or tidy, it’s messy and quite often creates a ripple effect beyond the lines on a map.”
That is the very point made by my right hon. Friend the Member for Sutton and Cheam. He also said that, with the Opposition’s complete failure to provide any constructive discussion in the debate and their effective opposition to any trust special administrator regime, they are failing to provide a mechanism to deal with failing trusts. [Interruption.] They would say, “Patients more broadly than this hospital don’t matter.”
Dr Poulter: I will take interventions. The Opposition would say, “It doesn’t matter if there are other hospitals in the local area that may or may not be able to provide those services.” According to the shadow Minister, we should look at just one hospital in isolation. That is unacceptable. That is not good health care. It is not in the interests of patients and it is absolutely against the best interests of the NHS and social care in local areas.
“it is most unlikely that Parliament would have conferred a power on a TSA to recommend…the closure of an A and E department or a maternity unit in a hospital within another Trust for which he has no responsibility…Parliament would have been astute to guard against conferring too broad a power which might be used as a ‘back door approach to reconfiguration.’”
Dr Poulter: The hon. Gentleman is confounding his argument. He quotes from a judicial review and says that he does not like what the TSA regime does, but now he says that it is okay for the Secretary of State to have those powers under the existing legislation. It is always possible—I have said this many times—to take judgments to judicial review and that will always be the case. It is important, though, to differentiate the process in the courts from what actually happens. It is important that the will of Parliament is put across clearly in legislation.
If someone takes issue with the way in which the process is followed or how the powers are exercised, that can be interpreted in the courts if a case needs to be
Liz Kendall: The Minister is trying to suggest that Opposition Members somehow think that hospitals are an island. He has conveniently forgotten that we had a plan for fundamentally changing hospital services in every region of the country, which involved professionals from every part of the service, as a result of Ara Darzi’s next stage review. The previous Health Secretary scrapped those plans for political reasons. If the Government had got on and made the changes that had the buy-in of professionals, patients and the public, they would not be in the situation that we now face.
Dr Poulter: All I can do is judge the previous Government by the legislation that they passed, and they did not pass legislation with the effect of anything that the hon. Lady said—it would be wrong to suggest that. It is a bit like when we talked about social care: after 13 years of doing nothing, the previous Government brought introduced legislation at the very last minute.
Dr Poulter: I am not. It is absolutely the case—they did nothing. That is clear for the parliamentary record. We are judging the previous Government by their actions in legislation. There can be warm words, and I recognise and accept the important point—[ Interruption.]. The important point that the hon. Lady is making is in complete contradiction to that made by the other shadow Minister. [Interruption.]
Dr Poulter: The hon. Lady is talking about the broader health economy. I know that she was not here for all of the speech of the hon. Member for Copeland, but he just said that trusts should be seen in isolation. The positions of the two shadow Ministers cannot be reconciled. They need to go away and have a think about this.
On one side, the hon. Lady said in an intervention that she wanted to take a broader view. The other shadow Minister, who has just spoken for 45 minutes, said that he wants trusts to be seen in isolation. It does not add up. It is incoherent. It does not work, and it is against the spirit of the 2009 legislation that the Opposition introduced.
Dr Poulter: The point that I have made consistently is that there is a general process for reconfiguration—we discussed the issue when considering previous amendments tabled by my right hon. Friend the Member for Sutton and Cheam and the Government amendments—and four clear tests are set out. We are well aware of those; the shadow Minister quoted them in his remarks. Those tests are clinical commissioning group or GP commissioning support, so the local commissioners are signed up, clinical
However, there is a distinct process that will operate for the trust special administrator regime. It is broadly in line with the tests that are set out. We have laid out that there needs to be proper consultation with trusts and their staff, which is part of the TSA process. There is also consultation with providers and commissioners, and a much broader process that we are outlining to do that. There is commissioner engagement, patient engagement, and the engagement of front-line staff in decisions about a trust. It is absolutely right that that should take place. We also need to remember that the TSA regime is dealing with very urgent examples of failure. Importantly, as part of the absolute duty for involvement of local CCGs, we now know that under this Government’s changes in 2012, the CCGs are clinically led, so fundamentally, I do not understand the point that the hon. Member for Oldham East and Saddleworth is making.
Dr Poulter: There is a clear process. In the four tests for reconfiguration, other groups as well need to be involved in decision making, in terms of general reconfiguration. On specific issues with the TSA regime, local commissioners are involved. Obviously, NHS England has a responsibility for overseeing what local commissioners do. There is also the involvement of providers and affected providers and commissioners in the wider health economy. There is engagement with staff at trusts and with patient groups. A much more holistic approach is being taken. There is full engagement, and on the basis of that engagement and looking at the broader health economy, decisions can rapidly be made to ensure that things get better.
Norman Lamb: If the clause is lost from the Bill, as the Opposition are arguing for, is not there a real risk that the NHS would be left unable to cope adequately and in a sustainable way with either financial or quality failure? The potential risk to patients from that would presumably be quite substantial.
Dr Poulter: My hon. Friend is absolutely right. I just do not understand the Opposition’s point. The fact that the hon. Member for Leicester West was not present for most of the debate perhaps exposed a contradiction in the arguments offered by the Opposition Front-Bench team. She spoke about the wider health economy and the hon. Member for Copeland talked about trusts in isolation. My hon. Friend is right that we need to ensure that we have—
Dr Poulter: The hon. Lady may ask that, but the point is that she is talking about the wider health economy, and that is exactly what our amendments are designed to address and exactly what the hon. Member
Dr Poulter: The point that my hon. Friend the Minister made is key. When there is extreme failure in a trust, we must have a mechanism to deal with that failure. That is exactly what the right hon. Member for Leigh (Andy Burnham) envisaged when he was Secretary of State when the measure went through Parliament in 2009, and it is what we are looking at here. We must have a regime that takes into account quality of care, and if there are extreme failures in quality of care or extreme failures in sustainability—sustainability will have effects on quality of care—we must have a rapid means of dealing with that.
The powers are to be used only in extremis, and they have been used only twice in five years. They are about protecting and looking after patients and ensuring that we act rapidly in their best interests. If a trust is letting patients down because they are not receiving the right care or treatment, and if that treatment is of an extremely low standard, it is not in patients’ best interests to allow that trust to continue operating in the same way. In such extreme circumstances, the TSA regime would potentially be triggered. I do not understand why the Labour party is not standing up for the best interests of patients in its proposal.
Following the argument made by the hon. Member for Copeland—as opposed to the one made by the hon. Member for Leicester West—if the clause is removed, we will not have an effective way of dealing with trusts that have let patients down badly and given dangerous care. The Labour party has made no proposal except “We do not like the clause”. Labour Members are quite happy to allow things to carry on as they are, but when severe failures of care occur, such as the one in Mid Staffordshire trust, they are happy for those failings to continue. The Government are not happy to do so. [ Interruption. ] Again, we have an argument from a sedentary position that this is not the way to do it. If there was a way to do it, why did the shadow Minister not say what it was? Not a word came—[ Interruption. ] Mr Bayley, I think some order may be required.
Dr Poulter: Thank you, Mr Bayley. It would have helped the hon. Member for Leicester West had she been here earlier to hear what her fellow shadow Minister said. It was completely contradictory, unfortunately, to the tenor of the intervention she made. I agree with the point she made: we must look at the broader health economy and ensure that we act in the best interests of patients.
The Labour party is advocating no policy, but Government Members are happy to stand up and say that there is an important issue at stake. When patient care is of a standard such that we need to trigger the TSA regime, or when a trust is financially unsustainable and patient care is affected, we need a regime to deal with that and make sure that patients are properly looked after and protected. That must take into account what provisions are available in the wider health economy and how other trusts can help in dealing with that failure. That has to be the right thing to do. Opposition Members may stand up and say that they want to continue to fail to deal with failure, but I do not think that such a position is justifiable or in the interests of patients.
Dr Poulter: No, I am not going to give way, because I need to make some progress. I am going to talk directly to the clause, and I will not repeat some of our discussions about how the TSA regime is triggered.
Dr Poulter: I hear “Hear, hear,” from my hon. Friend. It is important to outline that the improvements to the TSA regime are about making sure that there is proper public engagement and that local commissioners and providers are taken into account. The improvements to the regime recognise that if a trust fails, for whatever reason, other trusts and other commissioners who are willing need to be part of the solution because they are inherently involved in the provision of services in that local area and local health care economy. That has got to be the right thing.
We are strengthening the powers of the TSA to engage. We are lengthening the process slightly to ensure that there can be that active engagement with the local community. We have taken away the important points from this debate raised by my right hon. Friend the Member for Sutton and Cheam about ensuring that health and wellbeing boards and that important aspect of social care in the health economy are taken on board. We have also taken away the points raised about the oversight and scrutiny committees. This is a good regime that deals with failure, protects patients and ensures that the views of the wider health economy are taken into account.