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14 May 2008 : Column GC321

14 May 2008 : Column GC321

Grand Committee

Wednesday, 14 May 2008.

The Committee met at fifteen minutes to four.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) in the Chair.]

Health and Social Care Bill

(Sixth Day)

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): I remind the Committee that if there is a Division when we are sitting, the Committee will adjourn immediately we hear the Division bell and will resume after 10 minutes.

Clause 50 [Studies as to economy, efficiency etc]:

[Amendment No. 101A not moved.]

Baroness Cumberlege moved Amendment No. 101B:

(a) financial savings likely to be generated as a result of the recommendations,(b) economic gains likely to arise as a result of the recommendations, and(c) improvements in the effectiveness of patient care likely to arise as a result of the recommendations, in so far as such improvements take advantage of medical technology.”

The noble Baroness said: I am speaking for my noble friend Lord Howe and myself on this amendment. In Clause 50(1), the Bill proposes:

Subsection (2) outlines those activities. Amendment No. 101B seeks to broaden the scope of the comparative studies to include the wider benefits and savings that medical technologies can bring. This is particularly timely given the Heath Select Committee’s recent report on NICE. The committee said of the NICE process that,

The Government agree that, while this is a complex area, the issue of how NICE takes into account the wider benefits and costs is a very important one and that it warrants further consideration. I hope that the Minister will give this item further consideration today.

Since the Care Quality Commission will take over the functions of the Healthcare Commission, including its role in ensuring implementation of NICE guidance, it is important to equip the new Care Quality Commission with the power to do so in an effective way. We talk a lot about joined-up government, and I applaud the appointment of Dame Carol Black, who works across the Department of Health and the Department for Work and Pensions. I am sure that she would welcome

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a little help from the CQC that would look beyond the costs and benefits delivered solely to the NHS. For example, where medical technologies enable people to continue in employment rather than have to claim incapacity benefit, those costs and benefits should be recognised.

A good case in point is the cutting edge technology Osigraft, which can be used to accelerate healing a bone following a break. Used during surgery, it can avoid the need for further operations and the resulting disruption to a patient’s working life. New improved implants to replace damaged hips and other joints are being developed using newer materials. The impact on a patient’s ability to continue in employment, thanks to increased longevity of the implants or their ability to improve the patient’s mobility, should be taken into account. Currently, only the net cost and benefit to the NHS are looked at.

My final example is the improved insulin pumps, which provide a convenient yet sophisticated treatment for diabetic patients, benefiting their quality of life and equipping them to lead normal and productive lives. They are far preferable to multiple daily injections for many people. Unfortunately, five years after receiving NICE approval, there remains a pronounced variation in access to the pumps according to patient groups, including the members of the Medical Technology Group, which is a coalition of patient groups, research charities and manufacturers of medical technologies. I declare an interest as chair of the Association of Medical Research Charities.

Our amendment, at Clause 50(6)(c), seeks to redress the balance between medical technologies and drugs and to recognise the benefits that technologies can bring to patients. The Health Select Committee’s report on NICE stated that there are problems with NICE’s topic selection, and,

As a country, our record on the uptake of innovation within the NHS is poor. Only 4.8 per cent of the NHS budget is spent on medical technology, compared with the European average of 9.4 per cent. As a regulator of health and social care, the CQC should rectify this situation.

The Health Select Committee, in its concluding remarks, stressed that NICE requires the backing of the Government. NICE must not be left to fight a lone battle and support cost and clinical effectiveness in the NHS. Paragraph (c) of our amendment supports the Select Committee’s view. Again, I hope that the Minister will support the Select Committee here.

The recently formed Health Innovation Council—unfortunately shortened to HIC, which sounds like something to do with the alcohol industry—is a good idea. It has been established and is chaired by the noble Lord, Lord Darzi. It covers technologies as well as pharmaceuticals and other interventions. It seeks to deploy a strategy for speeding and embedding innovation across health and social care. In the light of that, I hope that the Minister will recommend the amendment to her ministerial colleague. I beg to move.

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Baroness Thornton: I have listened carefully to the noble Baroness about matters that might be included in studies under Clause 50, particularly her remarks about innovation, NICE and HIC. The studies will look at both the independent assessment of the quality of NHS services nationally and the analysis of value for money, which is what we mean by economy, efficiency and effectiveness.

In presenting recommendations, I would expect the commission to consider both the costs and the benefits in order to present a balanced view when making recommendations. Considerations of quality cannot be divorced from whether a service represents value for money. I also believe that the commission will consider both financial savings and economic gains in its reports. The amendment is therefore probably unnecessary.

In particular, the emphasis on medical technology in the proposed Clause 50(6)(c) seems narrower than we hope these studies will be, given that they will cover both health and social care. We have discussed the important role of the National Institute for Health and Clinical Excellence in producing guidance on the use of new and existing treatments and procedures within the NHS. While the Care Quality Commission absolutely should have regard to the use that providers make of innovation and technology, we would not want to duplicate NICE’s role or to be too prescriptive about the way in which effectiveness can be achieved. As an independent body, the commission is best placed to decide what expertise it can draw on to carry out studies under Clause 50 and what recommendations are appropriate. I hope that the noble Baroness will now be reassured about our intentions for Clause 50 and feel able to withdraw the amendment.

Baroness Cumberlege: I thank the Minister for that reply, which I find reassuring. It is nice to have it on record that the Care Quality Commission will consider all the costs and benefits. I agree that we do not want to duplicate work done by someone else. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 50 and 51 agreed to.

Baroness Cumberlege moved Amendment No. 102:

(a) for establishing principles and rules relating to competition between different commissioners or providers of health care; or(b) for promoting transparency and fairness in such competition.

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The noble Baroness said: These are probing amendments. We are seeking to discover the department’s proposals for regulating the emerging NHS market. Amendment No. 102 would introduce a new clause after Clause 51 and is designed to give the regulator powers to manage emerging competition within the NHS.

I would be very interested to know whether that is the Government's intention or whether they have a different model and a different regulator in mind. Whatever the model, subsections (1), (2) and (3) of the proposed new clause will be relevant. Subsection (1)(a) seeks to establish the principles and rules relating to competition between different commissioners or providers of healthcare. Subsection (1)(b) seeks to promote transparency and fairness in competition. This is in line with our previous amendments which set out to encourage openness. Subsection (2) would enable the regulator to publish studies and recommendations in the same way as the Healthcare Commission does now, and subsection (3) would ensure that the Secretary of State paid regard to the recommendations of the regulator.

It is clearly the Government's intention to have a mixed economy within the NHS—competition between commissioners and providers within the NHS, and competition between the NHS and other providers from the private and independent sectors. Competition is seen as a tool to ratchet up quality standards and efficiency. Experience shows that there is a large body of opinion within the NHS that is ideologically against any quarter being given to the private sector. These people believe that the values of the founding fathers are being betrayed and that however good the private sector may be, it is not to meddle with the Christian socialist ethic that, whether rich, poor, black, white, young or old, healthcare should be provided free at the point of use. The Government, indeed, any Government, have an uphill struggle to change these attitudes and beliefs which are very deep in the British psyche.

When United Health Care Europe was selected to provide services in a GP practice in north-east Derbyshire, the PCT was taken to judicial review by the local people. Later the same company was successfully selected to take over another practice in central Derby. The results have been very interesting. The points awarded through the quality and outcomes framework have increased from 80 per cent to 98 per cent and the number of patients using the practice is up by 30 per cent. Neighbouring GPs who previously closed their practice lists have had to reopen them. It is evident that they have had to respond to competition in a way that they would not have done following a diktat from above.

Of course markets need to be managed and there is huge merit in the management being undertaken by an independent body, which, acting without fear or favour, will ensure a robust and fair system. It could be argued that the new CQC is well placed to take on this role since it will also control market entry and exit through registration, and has duties to ensure value for public money. I understand that at one time the Government considered giving this task to the CQC but then rowed back, and have now decided to set up their own

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“Co-operation and Competition” panel within the department. The title of the panel alone illustrates the complexities involved. When should co-operation be encouraged regardless of competition? When should competition be stimulated at the expense of co-operation? The two are uncomfortable bedfellows.

Understandably, the Government wish to start with a cautious approach and to feel their way, but this does beg the question: how independent is an independent regulator sitting snugly in Whitehall? Will there be pressures from down the Corridor—temptations to favour NHS services in preference to independent providers, especially with the payment by results system in operation? Is it envisaged that the new panel will set prices in the same way as Ofcom and Ofgem do now? In the long term, are the Government planning that their regulator should be an economic regulator? How will it relate to the CQC and Monitor?

However these issues are managed, it will always be essential for the regulator to assess each case openly and fairly, and for people to recognise it as a champion of public interest which is independent of the system. The proceedings, reports and findings will need to be published and made widely available.

If the Government seriously want to open up the market to competition, I think that their current approach with a departmental panel will be short-lived. There will be mounting pressure to have a freestanding body that is not only independent of government but seen to be independent, and, as we all know, perception is reality. As I have said, this is a probing amendment, and I hope that the Minister will be able to answer my questions. I beg to move.

4 pm

Baroness Thornton: The noble Baroness is completely correct that competition and choice are powerful levers to drive up service quality, deliver better value and reduce inequalities. Indeed, that is the Government’s view. Yet they can be effective only if, as she said, there are clear rules guiding and governing behaviour in the healthcare system. I agree that developing competition principles and rules, and promoting transparency and fairness in competition, as Amendment No. 102 seeks to do, is very important. Indeed, in December 2007, the Department of Health published principles and rules for co-operation and competition as part of the NHS 2008-09 operating framework. In addition, in December, the Secretary of State made a commitment to establish a non-statutory co-operation and competition panel to provide independent advice on competition issues arising from the application of those principles and rules that have not been able to be resolved locally.

One of the functions that we currently propose for the panel is providing feedback and making recommendations to the department on how it should update the principles and rules for co-operation and competition. The noble Baroness asked how we will ensure that the panel is sufficiently independent and adequately resourced. It will have a high-calibre independent chair and operational vice-chair who can call on a range of relevant experts to resolve competition

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issues in the NHS, including competition economists, lawyers, consumer advocates and procurement specialists. It is intended that the panel will be established by October 2008.

The Department of Health is currently working with a range of regulators, including the OFT, Monitor, the Advertising Standards Authority and other government departments to ensure that the panel’s approach is robust and achieves a consistency of values and approach with other regulators. We therefore see the panel, rather than the Care Quality Commission, as having the remit to advise the Department of Health on the principles of competition. This is in line with the results of our consultation on the future regulation of health and adult social care in England, which considered a role for the Care Quality Commission in competition issues. We propose that the panel has a role in advising the Department of Health and its stakeholders, such as other regulators, on competition rules, and we are establishing formal relationships between the panel and other relevant regulators to ensure that the panel operates effectively and efficiently. Once the Care Quality Commission is established, those discussions will commence.

That said, Clause 50 enables the commission to promote or undertake more general studies and make recommendations. In the course of carrying out those studies or any of its other statutory functions, the new commission may identify good practice that could inform competition rules and principles or other aspects of competition. Clause 49 constitutes a mechanism for the commission to feed such advice to the Secretary of State. I hope that I have explained our position sufficiently well to allow the amendment to be withdrawn.

Baroness Cumberlege: I thank the Minister for that reply. However, I am even less reassured because the panel is a creature of the department, and a body that will regulate competition in the NHS really should be independent. I understood her to say that the panel is not independent in that it is there just to advise the department, so who will regulate the economic side of this in the way that other regulators do?

Baroness Thornton: The panel is not a regulator; it advises the department. My understanding is that because it will have a high-calibre and independent chair and vice-chair, it will have the resources to draw on independent advice from competition economists, lawyers and anyone else it cares to ask and then put its recommendations on competition issues to the department. As the noble Baroness knows, I am very much in favour of the competition and choice agenda, and it is very likely that many people will be watching to see how this works and will see that it is reviewed in due course.

Baroness Cumberlege: I shall be one of those watching with great interest. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 52 to 55 agreed to.

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Clause 56 [Inspections]:

[Amendment No. 103 not moved.]

Clause 56 agreed to.

Clause 57 [Inspections carried out for registration purposes]:

[Amendment No. 103ZA not moved.]

Baroness Jones of Whitchurch moved Amendment No. 103A:

The noble Baroness said: The amendment builds on the concerns already expressed by a number of noble Lords, not only during the Second Reading debate, but in our discussions on the Bill, about the additional safeguards needed for those using social care facilities. It addresses the difficult issue of the frequency and circumstances in which inspections are carried out in the social care sector.

We already know that the moves towards lighter-touch regulation will further reduce on-site inspections from annual or twice-yearly to more periodic reviews. However, we continue to have an overriding duty of care to the most vulnerable people using, in particular, residential social care, who are less likely to have observant family and friends acting on their behalf and are less likely to complain about standards for fear of the consequences. This issue becomes even more critical when a wider variety of providers is entering the social care market.

The amendment would allow the Secretary of State by regulation to identify specific conditions which would trigger automatic additional inspections. This would need to be done in consultation with the commission. These conditions would be linked to circumstances in which it is known that deterioration is more likely. We already know some of those risk factors. They could include a change of ownership, a change of registered manager, adult protection proceedings on an individual who is in receipt of care at the premises, or an unexplained increase in staff turnover. Other conditions may be new factors that come to light in the application of the new provisions of the Act and the increasing competition in the market.

That is why giving the Secretary of State the powers to add conditions by regulation will provide flexibility in the application of the inspection regime in the future and will give some additional reassurance to service users and their families. I beg to move.

Earl Howe: The purpose of Amendment No. 104A in this group is simply to ask what the difference is between the inspection programmes referred to in paragraph 5(1)(a) of Schedule 4 and the document referred to in Clause 43, which will set out the frequency with which periodic reviews are to be conducted.

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