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Lord Hunt of Kings Heath: I can think of a number of examples where a trust fails to deal with a given situation despite many efforts to try to persuade it to perform better. Clearly, one route is the "bicycle shed" to which the noble Baroness, Lady Cumberlege, referred, whereby an attempt is made to persuade the chair of the trust to resign. Other efforts may be made by the regional office to persuade the trust to make a change of management. But there may be real problems where the trust board absolutely refuses to make the necessary changes. It is in those circumstances where this power of intervention might come into play.
Baroness Noakes: I was trying to probe the Minister on what examples have led the Government to make such a sweeping power to intervene in the management of health bodies. When my noble friend Lady Cumberlege referred to the bicycle shed, she was referring to what happens in many organisations where there are one or more levels of management failure. Obviously pressures are brought to bear on an organisation to achieve management changes or changes in corporate governance generally. Over the past 50-odd years, the NHS has worked rather well to cope with many circumstances. That is why I was trying to press the Minister for some examples of why this additional power needs to be taken in the legislation.
Lord Hunt of Kings Heath: There may be instances where that has not worked. For instance, although a trust, may have made efforts to pressurise an organisation into making a change, either its management has been unwilling or, because of the way
in which it provides services, it is unable to do so. So it is an issue of last resort where it is clear that it is the only realistic way of getting the effective change made.
Baroness Noakes: I press the Minister yet again; have there been any such examples in recent memory which would lead us to think that this power is an appropriate power to include in the legislation?
Baroness Masham of Ilton: Just recently there was a case. I represent a voluntary organisation. We were very unhappy with a trust because all kinds of matters were going wrong. The noble Baroness, Lady Cumberlege, previously mentioned the trust. The Minister kindly came down to that particular hospital. It was very helpful. There are problems. It is helpful if a Minister can come down to help sort matters out.
Baroness Noakes: The Minister would not have to visit the hospital to sort out matters because of a provision on the statute book. I fully accept what the noble Baroness has said. There are problems from time to time in many types of organisation. But I am seriously concerned about the making of these sweeping powers to deal with common-place situations relating to large complex managerial organisations.
Baroness Cumberlege: I rise to support my noble friend Lady Noakes. Our concern is that already there are powers that the Secretary of State can use. The noble Baroness, Lady Masham, is absolutely right. I referred to a hospital the other day. I know that since then heads have rolled. In the Bedford case, many people thought that very unfair, idiosyncratic and really quite vindictive action was taken to sort out the matter. In the Explanatory Notes we are told that the Secretary of State can intervene,
- "where there has been a one off catastrophe".
Lord Hunt of Kings Heath: I want to make two points. First, I shall not engage in a debate about the specific circumstances of Bedford. I do not think that would be appropriate without the full facts of what happened being available for everyone to understand, although I believe that at the end of the day chairs and chief executives of NHS organisations ultimately have to bear responsibility for what occurs in their trusts.
Secondly, there are actions that can now be taken, there are powers of direction and there is an ability to require non-executives to retire in the interests of the health service. That is true. But there may be
occasions--either when there is a specific incident that requires immediate intervention or where a trust is continuing to fail to provide an effective service despite all the pressures and reminders and despite all the performance management systems that are in place--when an intervention would be in order. Surely there is benefit in the sense that, because of the way in which the proposal is made, that is much more likely to be a transparent process than any bicycle shed approach that may have had to be adopted in the past.These powers can be considered only as part of a much wider package of performance improvement initiatives outlined in the NHS Plan. We have debated the whole performance management framework, earned autonomy and the traffic light system. The intention is that, as the NHS Plan is implemented, we shall see more and more of the NHS move towards local ownership of targets and freedom to innovate within a clear framework of accountability, with the intervention power very much a last resort.
I turn to Amendment No. 146. If the amendment were accepted, there would be a requirement that the Commission for Health Improvement, the Mental Health Act Commission or the Audit Commission would have to present evidence to the Secretary of State showing sufficient justification for an intervention order. That would mean that at least one of the commissions would have to inspect the NHS body concerned before an intervention order could be issued. That could lead to delays, which in some cases might be vital. In most cases where an intervention order might be needed, the NHS body in question would probably already be classified as red under the new system of performance traffic lights. That means that it would already have a recovery plan in place and would now most likely be subject to intervention orders because of its failure to carry through the detail of the plan.
Amendment No. 147 would have the same effect as Amendment No. 146. But it would also alter the first element of the test for intervention, so the Secretary of State would have to demonstrate that an NHS body was failing to perform one or more of its functions "to a significant extent" rather than "adequately". Amendment No. 148 also makes that change. To amend the clause as suggested would mean that, ultimately, there would be no sanction against persistent failure over a period of time if the NHS body was performing its functions to some extent. That is unacceptable since we need to ensure that patients receive the high standard of care which they have a right to expect.
Amendment No. 149 would stipulate that the Secretary of State should make an intervention order only when all other possible action has been taken. I have no disagreement with the principle being put forward. I have already said that the measures in the clause should be taken as a last resort or at the end of a series of other measures except in the event of an immediate or, as has been mentioned, a catastrophic failure when urgent action must be taken.
I appreciate the reasons why Amendment No. 150 has been tabled. I understand the concern that the Secretary of State might seek to use these powers of intervention out of the blue and that the NHS body concerned would not be forewarned and might not appreciate why the order was being made. If the Secretary of State wished to use the intervention powers in a case where an NHS body was failing to perform to an adequate standard, it is likely that he would do so if that body had already failed to respond over a period of time to other support mechanisms. In such a situation, the body would already have been working on areas of concern with its Department of Health regional office and the Modernisation Agency. It would have agreed a recovery plan with them and it might also have been visited by the Commission for Health Improvement.
The body would therefore be fully aware of what it needed to do to improve, which would be set out clearly in the recovery plan. The recovery plan would also specify the timescale that was agreed for the necessary performance improvements. This would vary depending on the nature of the body's problems, but the body would always know what it had to do and by when. It would thus be fully aware that continued failure to make the necessary improvements could lead to an intervention order being applied.
The other situation in which the Secretary of State might wish to use the intervention powers is when a NHS body experiences a very serious one-off service failure, or if there was a significant failing in the way the body was being run. In such situations, patients and the public would quickly lose confidence in the body if swift action was not taken to ensure appropriate standards of service and patient safety. If we were to accept this amendment, we would introduce unnecessary delay into the process because we would need to use these powers in the most serious of cases.
Amendment No. 151 follows on from Amendment No. 150 and is concerned with the Secretary of State giving detailed reasons for intervening; in effect, what the NHS body would have to do once it was subject to an intervention order. I have already explained that bodies subject to an intervention order would have to have a detailed recovery plan, agreed with their Department of Health regional office and normally the modernisation agency. As I said, the recovery plan would have set out the areas of failure and what action needed to be taken. It would also agree a timescale over which specific improvements would be monitored.
It is therefore our intention that the issues raised in paragraphs (a), (b) and (c) of this amendment would be covered by the recovery plan, which would then be reinforced by the intervention order if the body had shown insufficient signs of progress since agreeing the original recovery plan. There would therefore be no need for these paragraphs of the amendment.
The second part of the amendment is concerned with a period of notice before the intervention order could take effect and with what seems to amount to a
right of appeal for the NHS body concerned. I have reservations about a formal period of notice, 28 days or otherwise, from the issuing of an intervention order to it taking effect. This would surely introduce unnecessary delay into the process and might even threaten patient safety in cases where a serious incident required quick application of intervention powers.Similarly, I would not wish to introduce what amounts to a formal right of appeal on behalf of the NHS body concerned because of the delay that this would cause to implementation and service improvement. This does not mean that Ministers would not be interested in the views of those representing the body concerned. Indeed, it is hard to imagine a situation in which Ministers would not wish to meet representatives of the body concerned and to discuss the problem and action required.
Amendment No. 153 is in two parts. The first part of the amendment would stipulate that the Secretary should make an intervention order only when all other possible action had been taken. I have already confirmed that it is our intention that the measures in this clause are to be taken as a last resort. The second part of the amendment would insert a new subsection (5) into the clause requiring a report to be laid before both Houses setting out what action had been taken to ameliorate the situation, why the order was being made and for how long it was expected to be in force. This matter was discussed at some length during the Committee stage of the Bill in another place. My right honourable friend the Minister of State for Health,
- "concluded that it is sufficient to recognise that the Secretary of State will need to state clearly why he has taken action".
- "not persuaded that a formal reporting system would add anything to the procedure".--[Official Report, Standing Committee E, 23/01/01; col. 58.]
Amendment No. 154 would require a report to be published giving a detailed description of the serious and persistent failure which is the subject of the intervention order. I have discussed this already in answer to the previous amendment. I do not believe that a more formal reporting system is necessary.
As to Amendment No. 157, which is also concerned with making details of the reasons for intervention available, it would be unusual to make it a statutory duty to lay copies of an intervention order before both Houses as this order is not a statutory instrument.
So far as concerns the point raised by the noble Baroness, Lady Cumberlege, let me make it clear that, in relation to executive directors, the power does not relate to the dismissal of those directors as employees of the trust. It would ensure that they stood down as directors of the trust; their employment position would clearly then be a matter for the trust concerned.
All I wish to say in conclusion is that this has to be seen in the round; this has to be seen in the context of earned autonomy. We are seeking to provide a great
deal of incentive to organisations to improve their performance and to reward them for doing so. We are also seeking to ensure that those organisations which have weaknesses are given all possible support to enable them to improve their position. At the end of the day, it may be necessary in a few cases for the intervention powers to be used. This is the purpose of the clause.
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